Archive for
October, 2010

More Thoughts on Targeted Killing (A Friendly Reply to Wittes)

by Kevin Jon Heller

Human Rights Watch’s Tom Malinowski and Ben Wittes — whom, for the record, I consider a friend — have been having an interesting and useful dialogue about targeted killing.  Here is how Malinowski lays out HRW’s position:

Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative. A case could be made that these conditions have at times been met in Yemen — for example, if there is credible evidence that a targeted individual is planning attacks on the US, the threat is imminent, and he or she is in a place where an arrest operation would be impossible. And if such conditions have been met, a case could also be made that drones are one of the best weapons from the point of view of reducing the likelihood of harm to civilians, since they deliver small warheads with precision, and can hover over their targets to observe if civilians are present. (We are concerned about the overzealous use of drones, particularly in the absence of on-the-ground intelligence to guide them, but they are better than most alternatives).

But the administration has not made this case. It has not laid out a clear legal rationale for drone strikes in Yemen or anywhere else. It has not explained what if any limits exist on the president’s ability to order targeted killings. Who can be targeted? Can strikes be launched anywhere on a global battlefield, or only in ungoverned areas where arrest is impossible? Does the threat have to be imminent and if so how is that defined? How does the United States distinguish between the targeted killings it believes are lawful and those it would consider outrageous (say, if the Russian or Chinese governments declared a political enemy a threat to their national security and on that basis killed that person on the streets of New York or London)? The US is not the only country in the world with the capacity to kill its enemies beyond its borders. It is profoundly unwise to legitimize the tactic without establishing the limits on its use.

The assumption Ben makes about our views on drone strikes reflects, I think, a common misconception about Human Rights Watch – that our sympathies always lie with those who are subject to the coercive power of governments. In fact, we often find ourselves urging governments to use their coercive power more assertively to protect civilians. We want to see Joseph Kony and others responsible for atrocities – whether they are abusive leaders in countries like Sudan, or terrorists who kill civilians, brought to justice. When governments cut deals with rights abusers, we condemn them (as we did when the Musharraf government in Pakistan ceded territory to the Taliban, with the toleration of the Bush administration). At the same time, we subscribe to what was once thought a conservative principle – that governments’ coercive power, especially the awesome power to deprive people of liberty and life, must be exercised within limits defined by law that protect due process and human rights.

Ben thinks that this understanding of targeted killing is similar to his:

Among other things, Tom’s statement provides a real basis for describing some common ground on drones. Human Rights Watch here has sketched out a position quite distinct from that of the ACLU and CCR, and that is worth a lot. Indeed, in many ways, HRW’s position is closer to mine than it is the litigating position taken by the ACLU and CCR in Al Aulaqi. So in addition to admiring the seriousness of Tom’s statement, I am very pleased to learn that the distance between us is actually narrow.


More fundamentally, I am delighted to see that the HRW has given a clear and very constructive answer to my question about intermediate uses of force. I asked whether HRW would support taking out Joseph Kony with a Predator if that were possible. Tom’s answer? “We see this as a law enforcement operation, in the sense that the primary objective should be to capture Kony and others wanted by the ICC and deliver them to justice. We also recognize that lethal force is sometimes necessary in law enforcement operations when there is an imminent threat to life, and that this is a plausible outcome, given the nature of this group and of the terrain where it hides.”

Now I wouldn’t frame this as a law enforcement operation, but that’s quibbling over details. Though I question the realism of the project, it’s worth emphasizing that both Tom and I think it is legally and morally appropriate to use force to capture or if need be to kill Joseph Kony in the name of justice and civilian protection.

Now consider Yemen. Here Tom’s statement is remarkable: “Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative. A case could be made that these conditions have been at times met in Yemen–for example, if there is credible evidence that a targeted individual is planning attacks on the U.S., the threat is imminent, and he or she is in a place where an arrest operation would be impossible.” In such situations, Tom writes, drones may be the most discriminating–and therefore most desirable–option.

I suspect, though I don’t know, that there is daylight between our positions here. Tom and I likely have a modestly different sense of what imminence means, at a guess…

That said, the much more striking point than any difference between us is the common ground: Our framework here is virtually identical. To wit, we both believe targeted killings outside of the battle space can be appropriate and lawful in situations in which safe havens in ungoverned spaces make law enforcement options unavailable and the government is left with no other means of reaching military enemies of the United States actively plotting attacks. All the rest is commentary. And while the commentary is important–I think Tom and I would both agree on the importance of whatever differences remain–it is critical to remember which is the commentary and which is the text.

I may be misunderstanding Malinowski — and I hope he will correct me if I am — but I think that the differences between Ben and HRW are much greater than Ben believes.  Before turning to that issue, however, I would question Ben’s claim that “HRW’s position is closer to mine than it is the litigating position taken by the ACLU and CCR in Al Aulaqi.”  How, exactly? …

Congratulations to Vicki Jackson

by Kenneth Anderson

I spent the day at Georgetown University Law Center, at a seminar put on by Georgetown and the Queen’s University Belfast School of Law, on Professor Vicki Jackson’s splendid new book, Constitutional Engagement in a Transnational Era.  Fabulous small discussion seminar with comparative constitutional law scholars from around the planet, and a fine discussion of the book.  This book partly arises from the debates over comparative constitutional law in US courts, in which Vicki stakes out a carefully argued position around the idea of engagement (rather than either “convergence” or “resistance”).  I’ve also staked out a position, though in the resistance camp, but the book takes up questions much broader than simply citation of foreign law sources and offers a robust but carefully focused theory.  But this was a terrific discussion and a wonderful day.

There is a There, There: The Political Geography of Cyberspace

by Chris Borgen

William Gibson (appropriating Gertrude Stein’s bon mot about Oakland, California) said of cyberspace: “there is no there, there.”  While this captured the feeling of Gibson’s fictional cyberpunk protagonists, it obscures all the physical “theres” that make cyberspace possible.  A student post at Infranet Lab called Re-Link:The Physical Network of Data is a quick visual primer on all the stuff of cyberspace that we sometimes forget about: trans-oceanic submarine cables, landing points, and so on.

The author notes that the U.S. is the de facto physical hub of the Internet, whereas “you can count the number of lines feeding Africa on one hand.” However, the author argues:

With cheap land, availability of natural resources and proximity to Asia, Europe and South America, Africa can provide fertile grounds for international data center activity. Big Internet companies such as Microsoft, Google and Yahoo, whose data center activity is mostly concentrated in North America and Europe, can start investing in the internet infrastructure of African countries by providing better connections, and in return can be allowed to establish data centers in areas with little economic activity. These companies can take on an active role in shaping the information economy of Africa by not only providing internet connections, but also by providing jobs and training. All this cannot be achieved by corporate colonization, but through an active and dedicated participation in the growth of the information economy of the region.

He also discusses making Africa the new hub of the internet, due to its physical location.  While increasing the connectivity of Africa to the Web is important to assist development in Africa, we need, however, to keep in mind that that is not the same thing as deciding to place in Africa key infrastructure for the connectivity of the Americas to Europe to Asia. At that point, the risk of political instability becomes a key issue.

Looking at the issues of the physical infrastructure of cyberspace from a different angle, a 2008 post on Infranet Lab, Rewiring (Tele)Geography, noted one national security implication of the physical infrastructure of cyberspace:

The NY Times recently reported on the tendency of countries to redirect internet trafficaway from the United States. Intelligence agencies have previously been gifted with the convenience of a large majority of international internet usage eventually finding its way through US cables. This trend has been reversing in the last 5-8 years, as the US falls woefully behind up-to-date submarine cable updates, and as increased intraregional networks offer an ability to keep terabytes more local.

That post closed with the following observation:

What appears initially as (invisible) lines on a global map suddenly can be read as the very modern day gates and thresholds that assert the power, economic vitality, cultural credentials driving competitive urbanism. Villages such as Tarifa, Spain, strategically positioned as a constricted data threshold between the Atlantic and Mediterranean hubs, become a key information harbor at the scale of the data intraregion.

In the end, these posts with their maps showing webs of connections-thick in some places, thin in others-remind me of a more recent William Gibson aphorism, which is perhaps more apt than the one I began with:

The future is here. It’s just not evenly distributed.

Treaties and Custom in Trade and Investment

by Roger Alford

Last week I had the privilege to attend an investment arbitration conference and FDI moot court competition at Pepperdine. Kudos to Murdoch University of Australia for winning the competition and my alma mater NYU for winning the highest overall ranking.

There was much to ponder in the conference from the likes of Andrea Bjorkland, Todd Weiler, Anna Joubin-Bret and Mark Kantor. For me at least, Andrew Guzman’s presentation was the most challenging, in which he summarized his theory that BITs do not create or reflect customary international law with respect to the standard of compensation for unlawful expropriations.

One of his most interesting arguments was to compare state practice in the trade context and the investment context. He notes that the WTO has 153 members and yet no one would argue that MFN or national treatment are standards that should be applied as a matter of customary international law vis-à-vis non-WTO members. If this is true (which it surely is), then why should we assume that BITs create or reflect customary international law?

Guzman has a point. If you run the numbers, the WTO reflects general and consistent practice among nations to a greater extent than BITs. Of the 18,721 possible country pairings (assuming there are 194 independent countries), the 153 members of the WTO reflect 11,628 country pairings, or 62 percent of all possible pairings. By contrast, according to the latest estimates from UNCTAD, there are 2,750 BITs, reflecting only 15 percent of all possible country pairings. Thus, 85 percent of all possible investment pairings are outside a BIT, whereas only 38 percent of all possible trade pairings are outside the WTO.

On this basis, can one say that the WTO standard of non-discrimination either reflects or creates a customary international law norm of non-discrimination in the treatment of goods from all countries? The answer has to be no. But why?

I would suggest that the reason is that WTO members clearly intended for non-discrimination to be a benefit that accrues only to members. The WTO is, to borrow a distinction from Jose Alvarez, a “contract” treaty rather than a “legislative” treaty such as the VCLT. We know this in part by the process of tariff negotiations in trade rounds and in accession talks. We also know this because there is a general and consistent practice of discriminating against non-WTO members in collecting duties. The Harmonized Tariff Schedules of virtually every country have a general column for the tariff rate of WTO members, and a separate column for higher tariffs for non-WTO members. Differential treatment among WTO members and non-WTO members is an uncontroversial feature of international trade. (Of course, this is a simplification. Each year the United States grants certain non-WTO countries, such as Russia, MFN treatment under Jackson-Vanik. Non-discrimination is a right WTO members enjoy; it is a privilege non-WTO members may receive as a matter of annual discretionary review.)

Can the same be said of international investment law? It certainly would be odd to devise a standard of compensation for all nations based on the state practice of 15 percent of nations. But that may not be the correct way to count countries. If virtually every country has signed a handful of BITs, then one might say this reflects a general consensus of nations, even though it is a small percentage of the total number of possible dyads.

As a rational choice scholar, Guzman’s essential question is why a developing country would sign a BIT. His answer is that BITs give a capital-importing host country a competitive advantage over other similarly-situated countries. Why establish a textile factory in country X without a BIT when a corporation can go to country Y with a BIT? On this theory, foreign investors follow BITs that afford greater protection than they would otherwise obtain.

But there may be other rational choice explanations for why a state would sign a BIT even though the standard for compensation for expropriations may not change. The purpose of BITs may not be to alter the standard of compensation enjoyed under customary international law (or under contract or constitutional law), but rather to provide an effective mechanism for enforcement of the recognized standard of compensation. On this theory, BITs are about effective procedure, not new substance. Another theory is that BITs offer a different type of substantive protection than customary international law. BITs incorporate new substantive rights, such as fair and equitable treatment. One need not deny the customary international law status of fair market compensation for takings to find a rational explanation for the proliferation of BITs.

Of course, the larger question of whether BITs reflect or create custom remains controversial. BITs standing alone arguably do not create custom, but they provide additional evidence of custom, combined with other indicia such as FCN treaties, the jurisprudence of international tribunals (such as modern ICSID awards, and older decisions from the Iran-United States Claims Tribunal and ad hoc tribunals), and state practice reflected in domestic takings laws and international and domestic government contracts. Moreover, unlike the WTO, it is hard to identify a general and consistent practice of states that distinguishes the standard for members as compared to non-members in the investment context. There is nothing akin to Harmonized Tariff Schedules that pronounces a differential standard for states that do not enjoy investment treaty rights.

An Update About the Karadzic Case

by Kevin Jon Heller

I wanted to let readers know that I am no longer associated with the Karadzic defense team, either formally or informally.  Being involved in the case was a remarkable experience, one that I will always value.  I wish the defense team well — and more importantly, I wish Dr. Karadzic a fair trial.

Khadr Admitted to Being a Murderer — But Did He Mean It?

by Kevin Jon Heller

Omar Khadr accepted a plea deal yesterday that called for him to plead guilty to all of the charges against him in exchange for serving one more year at Gitmo and then being repatriated to Canada to serve another seven years in prison.  Predictably, the government is claiming that the guilty plea is proof that Khadr is factually guilty; as the chief prosecutor at Guantanamo colorfully put it after the hearing, “Omar Khadr stands convicted of being a murderer, and also an al-Qaida terrorist. The evidence… came from a source that the law recognizes as the most powerful evidence known to the law, and that is his own words,”

I don’t know whether Omar Khadr is innocent, although I suspect that he is — the government’s evidence that he committed murder has always been extremely weak, relying primarily on testimony elicited through coercive interrogation techniques, if not outright torture.  But I do know that his willingness to plead guilty in no way indicates that he is factually guilty, given the unfairness of the military-commissions system:

Yesterday, when reporters asked Edney why Khadr might plead guilty, he said, “There’s not much choice.” Edney added, “He either pleads guilty to avoid trial or he goes to trial, and the trial is not a fair process.”

Indeed, the prospect of trial in the illegitimate military commissions system was an awful one. Khadr could have faced life imprisonment if convicted. Self-incriminating statements that were coerced out of him by interrogators at Bagram and Gitmo were to be used against him at trial. And under a new military commisions rulebook issued in the spring, he could not get credit for the eight years he has already served. Omar Khadr’s entire military commissions experience thus far has been a circus spanning several years, 11 lawyers, more than three arraignments, and multiple sets of rules since he was first charged in 2004. It has been plagued by legal and procedural problems since the beginning, and any result at trial would probably have been subject to years of appeals.

One of the dirty secrets of the domestic criminal-justice system is that innocent people often plead guilty, either because they are convinced they will be convicted if they go to trial or because a plea offer is so good that they are not willing to run the risk of a conviction.  Khadr faced the same pressures — and the additional pressure of the Obama administration’s position that individuals acquitted in civilian courts or military commissions remain subject to indefinite detention under the “laws of war.”

Given the near-certainty that Khadr would be convicted, the possibility of a life sentence, the fact that any sentence would be in addition to the eight years he had already served, and the threat of indefinite detention, an eight-year sentence that would be primarily served in Canada was an excellent deal, especially as the Canadian government has already acknowledged that Khadr might be able to serve some of his sentence in home detention, where conditions are presumably a bit nicer than at Gitmo.  Under the circumstances, Khadr had to take the deal — even if he was innocent.

In the weeks that come, we will no doubt hear many triumphant claims by the Obama administration that Khadr’s plea means that he is guilty and that the military commissions work.  Unfortunately, nothing could be further from the truth.

The Mary Ellen O’Connell and Benjamin Wittes Debate on Targeted Killing and Drone Warfare

by Kenneth Anderson

Interest in targeted killing and drone warfare is not letting up in intensity to judge by the pace of events on the topic. Right on top of my debate with Mary Ellen O’Connell on this at Washington University two weeks ago, Mary Ellen and Ben Wittes undertook another one, this past Saturday at International Law Weekend in New York.  It was considerably more testy than the Washington University debate.  Some in the audience were unhappy with the confrontational nature of the exchange; some thought it refreshingly direct; my view is the latter and congratulations to Vincent Vitkowsky for an excellent job of moderating the debate.  I’m sure it will generate a lot of interest and a lot of pushback in several directions.  Ben has posted up video of the event at Lawfare.

Ben has also added a second post with some transcription, specifically on the question of whether, if one takes Mary Ellen’s statements at what they say, Barack Obama is not therefore a “serial killer” for having directly ordered the CIA to carry out what Mary Ellen characterizes as “crimes” and Harold Koh at the least an aider and abetter.  Ben has in mind, for example, statements in Mary Ellen’s widely noticed article, “Unlawful Killing with Combat Drones,” which among other things declares that “members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime.”  One might argue Ben’s choice of provocative words in the debate – serial killing – or one might argue various technical points over whether it is murder or not murder, whether or not there can be the proper intent given the presumed opinions of many lawyers advising inside the government (many of those questions came up, of course, in the detention-interrogation-rendition arguments as well).  His fundamental point is to say, as far as I understand it (and if I do, I agree), if you declare that CIA participation is a crime, then it follows that somewhere there is a perpetrator.  Not to go after him or her is to permit impunity; it is not a matter of saying, well, you are committing crimes, but all we want to do is persuade you to change your policies going forward to bring you into compliance with international law.  Crime is a charge of more than mere non-compliance.  If there is a crime, someone must be responsible for doing it, whether you call it murder, criminal extrajudicial execution, what have you.

And whether one calls these crimes serial killing, murder, extrajudicial execution, etc., they are still a large number of killings. It’s not the kind of crime that just happens to be a tort or civil infraction criminalized, but for which as a regulatory matter one can simply agree not to do it any more, like various of the lesser environmental “crimes” for which corporations routinely pay criminal fines in the domestic United States.  Killing is not like that, presumably, at least not when it’s systematic, systemic, large-scale, and under direct orders.

The article by Mary Ellen specifically says who commits a crime – members of the CIA.  Yet they are not acting as rogues in this, but rather under direct orders of the President.  If it is correct to call the acts a crime, then it is correct to identify the criminals, and those criminals will have to include those who ordered them to do the crimes.  So what is it to be?  I think it a salutary reminder that one ought to be careful in cranking up the machinery of international criminal law over contested interpretations of international law. One risks either over-invoking it or trivializing it or both.  I take it that was Ben’s larger point in seeking to force the question onto the table by insisting on using an ordinary, non-legal term like serial killing. Continue Reading…

Holding the UP Law Faculty in Contempt Would Be a Grave Mistake

by Evan Criddle and Evan Fox-Decent

[Opinio Juris is delighted to post these remarks by Professors Evan Fox-Decent (McGill) and Evan Criddle (Syracuse) on the fallout from the allegations that their article was plagiarized by a member of the Philippines Supreme Court]

We are writing to lend support to the University of Philippine’s College of Law, which now faces a very serious charge of contempt from the Philippine Supreme Court (PSC). If the members of the College are held in contempt, they face the loss of their bar licenses and with that the loss of their ability to teach and practice law.

A few months ago the PSC rendered its decision in Isabelita Vinuya et al. v. Executive Secretary et al. The complainants asked the PSC to order the Philippine government to seek reparations from Japan for the Japanese military’s mistreatment of Philippine women during World War II. During the Japanese occupation of the Philippines, the Japanese military interned scores of Philippine women and placed them in sexual slavery. The Vinuya decision discusses jus cogens or peremptory norms of international law, as these norms enjoy a status that cannot be overridden by treaty. The PSC concluded the no such norm prohibited sexual slavery, and thus that jus cogens was irrelevant to the case.

In its jus cogens discussion, the PSC quoted without attribution numerous selections from an article by Evan Criddle and myself, an article featured here at Opinio Juris. In the aftermath of Vinuya, Professor Criddle noted that the most troubling aspect of the PSC’s jus cogens discussion is that it implies that sexual slavery, crimes against humanity, and other abuses are not covered by jus cogens, whereas we had emphatically argued that they are.

The complainants in Vinuya filed a motion for reconsideration, pointing to more than 30 tracks lifted without attribution from our article. The complainants also alleged that material from Mark Ellis and Christian Tams had been used without proper attribution. The motion is available here. The University of the Philippine’s College of Law issued a statement critical of the apparent plagiarism, available here.

The PSC held a hearing to review the plagiarism charge and delivered a split decision. The majority acknowledged that some of our article’s text was used in Vinuya without appropriate referencing, but chalked this up to clerical errors. The minority doubted that so many selections could be used innocently without attribution, raising the possibility that the lack of attribution stemmed from the Vinuya Court reaching conclusions directly contrary to those expressed by us, Ellis and Tams.

On 18 October 2010 the PSC issued an order giving members of the UP College of Law 10 days to show cause as to why they should not be sanctioned for issuing the statement critical of Vinuya.

Professor Criddle and I believe that it is not the place of a court to sanction individuals or institutions that have been critical of it. This principle is especially important in the case of a law school, where discussion of cases is an integral part of legal pedagogy. The idea that a law school or its members cannot express an opinion on a case is contrary to the best practices of law schools everywhere, and an affront to free expression. That a court would assert jurisdiction to sanction its detractors is, in our opinion, an abuse of judicial power. To the best of our knowledge, no court in a democracy has ever attempted to assert the kind of jurisdiction the PSC is asserting now against the UP College of Law.

We initially declined to comment on the substance of the plagiarism complaint, except as noted above. Readers can draw their own conclusions from the ‘tables of comparison’ (comparing the original text with text in Vinuya) provided by Justice Sereno who wrote with the minority in the plagiarism decision. Given the stakes involved now for members of the UP College of Law, we believe it is important for us to offer our opinion on the merits of the plagiarism charge. The point of our doing so is only to underline that the UP College of Law issued its critical statement in good faith and has clean hands in its dispute with the PSC. While the UP statement contains some harsh and uncompromising language, it emerged in the wake of a controversial decision, and is clearly within the scope of speech protected under any reasonable interpretation of freedom of expression.

A cursory glance at the tables of comparison set out in Justice Serano’s opinion reveals repeated verbatim or near-verbatim uses of text from our article without attribution. If a law student submitted an essay with this much cut-and-paste text, without attribution, he or she would almost certainly be subject to disciplinary action. We say this with all due respect to the PSC, and only to emphasize to others in the legal community that we believe the UP College of Law acted in good faith when it criticized the use of our article in the Vinuya opinion. The College has clean hands in this dispute, and in our view deserves support.

The Other Face of Collective Punishment: Israel’s Ban on Exports from Gaza

by Kevin Jon Heller

AFP ran an interesting story yesterday about how Palestinians are using their tunnels to smuggle goods into Egypt, in defiance of Israel’s ongoing ban on exports from Gaza:

But the canvas sacks full of food, beauty products and second-hand clothes that used to be dragged through hundreds of tunnels beneath the border now flow the other way in a lucrative trade conducted by an entrepreneurial few.

“We reversed our trade since the easing of the Israeli blockade and now we export,” said a tunnel operator who goes by Abu Jamil.

“The Egyptian traders demand Israeli livestock to breed with their own to improve its quality,” the 45-year-old smuggler said, calling his partners on the other side of the heavily-guarded border to tell them the cows are coming through, each with an Israel tag on its neck extolling its breeding potential.

The Egyptians also order Israeli coffee, blue jeans, mobile phones, and what Abu Jamil refers to as “raw materials” — scrap copper, aluminium and used car batteries that can be recycled in Egypt.

This is the other face of Israel’s deliberate infliction of collective punishment on Gaza, which it believes — despite all evidence to the contrary — will eventually force the Palestinians to withdraw their support from Hamas.  Indeed, Israel openly admits that, having bowed to international pressure and somewhat relaxed its overbroad ban on imports into Gaza, the export ban remains its last hope of undermining Hamas’s popularity.  From the Jerusalem Post:

Last week, the cabinet approved an easing of the land blockade on Gaza. Prime Minister Binyamin Netanyahu said during the cabinet meeting last Sunday that while there would not be a “civilian closure,” there would be a “security closure.” The defense establishment fears that international organizations will read into what Netanyahu said and argue that exporting agricultural produce should not fall under the security closure.

“This is the next natural step after the government lifted the blockade over Gaza,” another official said. “If this happens, we will lose all of our leverage over Hamas.”

Israel is hoping that Hamas will moderate its views and resolve its dispute with Fatah in the ongoing reconciliation talks that are being mediated by Egypt.

On Tuesday, Amos Gilad, the head of the Defense Ministry’s Diplomatic-Security Bureau, met with Egyptian intelligence chief Omar Suleiman for talks on the situation in the Gaza Strip, as well as the ramifications of Israel’s decision last week to ease the blockade.

“The lifting of the blockade effectively removed any leverage that Israel had over Hamas,” one official explained. “The only leverage left now is the ban on exports.”

Israel has already privately admitted that the import ban is about economic warfare, not security.  I suppose it’s progress of a sort that it is willing to publicly admit that the export ban is similarly motivated.

Philippines Supreme Court Threatens Law Faculty With Contempt After Allegations of Judicial Plagiarism

by Julian Ku

Back in July, I noted this story out of the Philippines, which alleged that a justice of the Philippines Supreme Court had plagiarized (and distorted) an article by Evan Criddle and Evan Fox-Descent in the Yale Journal of International Law (and featured here at Opinio Juris). (see the comment under the original post for a comment by Professor Criddle). Well, things have gotten a bit out of hand over there. A number of faculty at the University of the Philippines issued a statement denouncing the alleged plagiarism, and the Supreme Court has apparently threatened to punish or sanction these faculty.

Whew, this is getting serious. I post below the jump an account of the dispute by Diane Desierto, a UP faculty member.   She is appealing to fellow international law scholars to support the academic freedom of the UP faculty.  This certainly seems, from what I know of the dispute, a worthy cause.


An Open Appeal to fellow International Legal Scholars

by Diane Desierto on Friday, October 22, 2010 at 7:18am

Dear friends and fellow legal scholars,

I apologize for this long note, but I thought I should set the record straight on the maelstrom of ongoing institutional persecution against the UP Law Faculty, where I serve as a faculty member.  Several hours ago, a majority at the Philippine Supreme Court issued an unprecedented contempt order for the “Statement of the Faculty of the UP College of Law”, naming 37 out of 81 faculty members (including five present and former deans, a retired Justice of the Supreme Court now back in the faculty, among other senior academics and junior faculty members) whose physical signatures appeared in the Statement.  Many faculty members  support this Statement, but, as is customary, did not need to physically sign the Statement so long as we signified our support over email.  For this reason, many of us understand the contempt order to eventually extend to all 81 members of the UP College of Law.  All our bar licenses, without which we cannot teach, work, or practice as lawyers, are now at stake.

Governing Civil Society Symposium at Brooklyn Law School

by Kenneth Anderson

Although everyone is justly excited about International Law Weekend, I wanted to mention another conference in New York that took place yesterday at Brooklyn Law School, Governing Civil Society: NGO Accountability, Legitimacy and Influence.  Congratulations to Professors Claire R. Kelly and Dana Brakman Reiser at BLS for putting it together.  I was on one of the panels at this one day session and there were many other terrific people who represented a quite fascinating and too-rare mingling of the international law and nonprofit law worlds.  As someone who cuts across both, I thought this was a great conference.

The issue that drove it was to ask (this is my summary) whether there is a way to bring together two basic questions about non-governmental organizations and nonprofit organizations in the international world, the transnational world, the global space: accountability in the sense of large political legitimacy, and accountability in the sense that is usually meant in non-profit and charitable organization law.  So one panel addressed the interactions of NGOs and international organizations; a second addressed models of governance and regulation of NGOs; and the last panel asked whether and how legitimacy and accountability might be linked.

One of the takeaways for me was that the question of the legitimacy and governance function of international NGOs, global civil society, is still a salient question.  I have long criticized (very sharply) the suggestion that international NGOs ought to have a legitimacy function within the international system, which is to say, a role in governance, even if you think, as I do not, that liberal international global governance is a good idea.  But I had mostly stopped writing on this theme, except when specifically invited (here and here, for example), because I had thought that the idea had died away.  That was something I thought I had learned from Anne-Marie Slaughter’s impressive A New World Order; she specifically rejects the global civil society-international organization partnership in governance as failing basic tests of legitimacy (I discuss this in a long review of the book).  Instead, focus seemed to have shifted to the also important question of NGO accountability with respect to the performance of their own missions – internal governance of international NGOs, their relationships with governments in their operational work, and questions that implicate accountability and governance about them as institutions, not global governance.

More recently, however, I have realized that something that I thought had faded away as a model project in global governance is still around, somewhat incorporated into some of theories of global constitutionalism that have been a staple of European academic writing on global governance for many years.  But definitely active once again as a proposed theory of global governance and legitimacy.  So I guess I am back writing about it again.  I am no more in favor of it than I ever was, I’m afraid.  Of the academic international law writers in this area, the one who seems to me the most important is Steve Charnovitz of GW, who presented a very interesting paper at this conference.  Steve always offers a careful and measured view, and this paper was exactly that, but also exceedingly interesting not just in the critique of critics like me, but in offering a step forward in a positive account of NGOs in governance.  Indeed, in some respects it was quietly the most audacious of the papers at the seminar, because Steve set out the form of an argument for asking how anyone could propose to leave the NGOs out.  I will very much look forward to reading the essay when published in the symposium issue. Continue Reading…

Recording of Seminar on Targeted Killing and Al-Aulaqi

by Kevin Jon Heller

On Thursday night I had the privilege of participating in a live webinar on targeted killing and Al-Aulaqi held by the Harvard Program on Humanitarian Policy and Conflict Research.  The other participants included Yale’s Andrew March, Emory’s Laurie Blank, and Seton Hall’s Jonathan Hafetz.  It was a wonderful, wide-ranging discussion, one that focused not only on the international-law aspects of targeted killing (Blank and me), but also on Al-Aulaqi’s history and beliefs (March) and the ACLU/CCR lawsuit (Hafetz).

If anyone is interested in listening to the webinar, the audio recording is available here.  My presentation — which systematizes and expands on many of the points I’ve discussed here on the blog — starts about 75 minutes in.  If I didn’t make any sense, blame the fact that I conducted the presentation from a Sydney hotel room at 1:30 in the morning…

Louis Henkin (1917-2010): The Power of His Ideas Live On

by Anne-Marie Slaughter and Catherine Powell

[Anne-Marie Slaughter is the Director, Secretary’s Policy Planning Office, U.S. Department of State; Former Dean and (on leave) Professor, Princeton University, Woodrow Wilson School for Public and International Affairs. Catherine Powell is Staff Member, Secretary’s Policy Planning Office, U.S. Department of State; (on leave) Professor, Fordham Law School; Former Clinical Professor and Founding Director, Human Rights Institute, Columbia Law School.]

With Louis Henkin’s death, we marvel at how the power of his ideas live on. As a Jewish immigrant whose family fled communism in what is now Belarus, Lou came of age as part of the greatest generation — during the Great Depression, New Deal, and World War II. He went on to become one of the leading international lawyers of his time and a primary founder of the contemporary idea and study of human rights.

Four of Lou’s ideas – embodied in his memorable pithy expressions – frame important challenges with which we must continue to grapple:

1. From Constitutional Rights to Human Rights: “[I]n the cathedral of human rights, the United States is more like a flying buttress than a pillar[.]”

In the past, Lou had said that “in the cathedral of human rights, the United States is more like a flying buttress than a pillar—choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system.” On the one hand, Lou reminded us that America helped invent the idea of human rights, in declaring in the U.S. Declaration of Independence that we all have certain “inalienable rights” simply by virtue of our humanity. On the other hand, the United States has never accepted the full spectrum of rights that exist in otherwise widely-ratified international human rights treaties.

The term “human rights” itself didn’t actually exist in international law or U.S. law, except colloquially, until the abolitionist Frederick Douglass called slavery a violation of human rights. Then Franklin D. Roosevelt’s Four Freedoms speech called for a New Deal for the world – insisting on a broad scope of rights, including freedom of expression, freedom from religious persecution, freedom from fear, and freedom from want. While FDR’s vision moved beyond the negative rights paradigm of the State, to embrace a positive role for the State in affirmatively providing social safety nets and economic security (i.e., freedom from want), the United States never fully accepted economic and social rights as being on par with civil and political rights. Even with civil and political rights, the United States attached numerous reservations, understandings, and declarations. Lou claimed:

Self-Defense and Non-International Armed Conflict in Drone Warfare

by Kenneth Anderson

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it.  I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality.  Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict – partly under domestic law considerations and partly under international law considerations.  The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict.  But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force.  The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict.  Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.<!–more–>

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia.  With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ.  The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue – a new form of transnational Maoism in the Andes, say – then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met for a non-international armed conflict not already underway.  But this is in the context of understanding that, in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view.  Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best – and not merely a decently plausible – characterization is to understand them as part of the non-international armed conflict.  It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views today is to see attacks there as part of the on-going non-international armed conflict.  That would include the targeting al Al Aulaqi.

I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia.  This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive.  I think this is perfectly plausible as an international law rationale – either seems to me available to it – and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia.  The Obama administration is on sound grounds, in my view, in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them.  But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict.  But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography.  As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France.  Territorial integrity is an important, vitally important principle of international law – but it can be overcome where a state either cannot or will not control its territory – which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation.  “No safe havens” has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and evidenced by consistent state practice.

At this moment, strategically, safe havens for both AQ and the Taliban in Pakistan are at the center of the storm, because they represent the intersection of Petraeus’s counter-insurgency strategy as well as what Woodward terms the Biden “counterterrorism-plus” strategy of attacking the safe havens in Pakistan as the locus of the terrorist groups; there is convergence on attacking the safe havens from every strategic view, combined with a view that the real source of the threat is not just <em>in</em> Pakistan, for leading players in the adminstration’s strategic team, it <em>is</em> Pakistan, far more than Afghanistan.  And finally, if one adds to this the John Brennan view, the safe havens already have largely shifted to Yemen and Somalia and will continue to shift into other places in Africa.  If that is the Obama administration’s strategic lens in a nutshell, then the traditional and consistently held US view that safe havens are not immune from attack will not remotely be up for discussion, whether on an armed conflict view or an independent self-defense view of targeted killing and drone strikes.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing.  It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks – some are involved in armed conflict, for example, and some might not be.  But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position.  Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and – given the current understanding of facts on the ground in Yemen and Somalia – the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

(Added:  Thanks to the comments below.  Two quick thoughts.  First, with respect to Alan’s comment on assassination, my understanding of the legal meaning of the assassination ban at this point, as a descriptive legal matter, is that it is indeed only the restatement of the illegality of something that was already illegal; Koh’s speech restates Sofaer’s 1989 statement that the ban applies to acts that would already be illegal.  Hence it does not add a new category of previously illegal things, and in that sense says that the original executive order was hortatory or a restatement of existing US law and policy.  I understood Koh to be reaffirming precisely that interpretation in his speech.  Second, to Nathan, no worries.  But I’d add that I don’t think my factual view of AQAP from two years is correct, on the basis of what has been publicly shown; I had been inclined as a matter of factual characterization to see it as “inspired” by but not coordinated with AQ in any substantial way, and that was, I believe, not actually the case, and not the case now in any event.)

Court Orders Donziger Communications in Chevron-Ecuador Battle

by Roger Alford

Yesterday a federal district court granted Chevron’s motion under Section 1782 to discover communications and interactions that Steven Donziger and others affiliated with the Lago Agrio plaintiffs had with Ecuadorian courts, the Ecuadorian Special Master, and the Ecuadorian government. The order was in furtherance of Chevron’s efforts to respond to a criminal investigation brought in Ecuador against two Chevron attorneys.

The order left no doubt as to the court’s opinion regarding the damage that had been done to Donziger and the plaintiffs’ case as a result of the Crude outtakes. (For my discussion of those outtakes see here and here). Here’s a flavor of the court’s opinion:

The Court has had … an opportunity to review the Crude outtakes, which are extraordinarily revealing…. The outtakes … depict Donziger, along with others acting for the Lago Agrio plaintiffs, describing their campaign for a renewed criminal investigation … for the purpose of … exerting pressure on Chevron by prosecuting its personnel. The Prosecutor General changed course and reopened criminal investigation in light of new evidence within days of completion of the ostensibly neutral and impartial “global assessment” for civil litigation….

The outtakes … contain substantial evidence that Donziger and others (1) were involved in ex parte contacts with the court to obtain appointment of the expert, (2) met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs’ own consultants, and (3) wrote some or all of the expert’s final report that was submitted to the Lago Agrio court and the Prosecutor General’s Office, supposedly as the neutral and independent product of the expert.

In these circumstances, the outtakes and other evidence demonstrate at least a significant need for the discovery sought by … Chevron–discovery concerning … the role of the Lago Agrio plaintiffs in selecting and procuring the appointment of the expert, in writing the report, and in procuring the reopening of criminal charges.

As for concerns about deposing opposing counsel, the court concluded that Donziger’s “principal functions have included lobbying, media and public relations, and politics…. Donziger’s role at least in major respects is that of a political operative, not a lawyer.”

So now Donziger and the Lago Agrio plaintiffs are under court order to disclose the communications and interactions they have had with the Ecuadorian court, special master, and government.

Whatever happens in Ecuador, enforcement here of any judgment against Chevron looks more and more unlikely. The Lago Agrio plaintiffs will have to satisfy the Hilton v Guyot standard (or the codified version in the UFMJRA) requiring proof of a “full and fair trial abroad” under a “system of jurisprudence likely to secure an impartial administration of justice” that shows no evidence of “either prejudice in the court, or in the system of laws under which it is sitting, or fraud in procuring the judgment.” The Crude outtakes and forthcoming evidence of plaintiffs’ communications with the Ecuadorian government make that standard increasingly hard to satisfy.

Who would have thought that Section 1782 would be a tool in the hands of a corporate defendant to successfully unravel an entire case?

UPDATE: Michael Goldhaber of Corporate Counsel has just posted a few of the damaging video clips from the Crude outtakes. You can view them here.

“Timely” International Law Publishing

by John Louth

When asked the secret of his success, ice hockey great Wayne Gretzky is said to have responded “I skate where I think the puck will be”. This gets trotted out in a number of management texts as exemplifying the “planning school” of strategy. You can see how it might be applied to book publishers – I ponder what will be the hot topics for research, case law, or masters degree courses and then try to sign up books that will come out at roughly the right time. Believe me, I do try. The problem with this approach in international law publishing is that Harold MacMillan turns out to be more sage than Wayne Gretzky: “events dear boy events” get in the way.

Another problem with aiming to publish on timely subjects is that everyone else does so too. In recent years there were successive waves of proposals on complimentarity and the ICC, international territorial administration, R2P, and private military companies. With each of these topics we only chose one title but they were greatly outnumbered by those published elsewhere. So it is not so much a problem of knowing where the puck will be as it is of avoiding getting crushed in a stampede all converging on the same puck.

Strategy happens at a number of different levels. As editors we do certainly try to publish on timely subjects and proactively commission works which cover perceived gaps in the literature. In addition to simply spotting topics you have to look for deep trends that can change the competitive landscape.

So what deeper trends can we divine? The University of Denver published a survey in which they discovered that 49.2% of titles published by university presses had not been accessed once in the previous five years, putting me in mind of Grey’s line: “full many a flower is born to blush unseen, and waste its sweetness on the desert air”. This has fuelled talk of the demise of the monograph but is really a sign of how material that isn’t online is invisible. Another emerging truth, gleaned from the interviews I mentioned in an earlier post, is that there is no clear distinction between the use scholars make of monographs and of journals in international law (that is, any difference in usage is down to online accessibility rather than the genre). A third is that as academic publishers we compete not so much for buyers but for suppliers, that is authors of great works and societies that own major journals.

As inputs for a strategy these are less pithy than the Gretzky quote, but they add up to something fairly coherent. What is most important to scholarly authors is to be read, cited, and have their work recognized as an authority. Journals already offer a model for how to maximize this as they have been online for over 10 years, so our question is how we can achieve the levels of dissemination and citation for books what we have done for journals? This is an over-riding strategic imperative for academic publishers.

Most people’s first answer is e-books. Terminologically this should only be used to refer to something downloaded locally e.g. to a reader or a computer but not to materials hosted remotely. Applying the term in this strict sense e-books would not offer much more than portability – searching entire collections or other value added functions are not currently available. A different usage has sprung up which refers to “e-book collections”. These are offered by aggregators such as ebrary. They are PDF based, remotely hosted, and replicate a library’s print collection. An alternative model is making books available in publisher-specific databases. OUP launched such a service in 2004 called Oxford Scholarship Online (OSO) which now has over 4200 OUP titles from 18 disciplines in it, including 337 in the Law module. This is HTML based and offers extra functionality such as exporting citations and cross-referencing within the site. Neither of these models yet incorporates both books and journals however and they do not yet offer all of the functionality that can be found currently in journals sites.

Getting all scholarly books into searchable online systems is a priority but will only aid discoverability of material your library has paid for. However scholars want to know everything that’s out there, regardless of whether their library has already got it. They often use general Google or Google Scholar as their first search. This means that all scholarly books will need to be included in Google Books and/or have abstracts for each chapter freely available (as with OSO) if they are to be picked up on these more general searches.

Once books are more easily accessible in this way, another development from the journals field which could be applied to sales of online books is the emergence of consortia sales. This is where journals (usually in subject groupings or even a publisher’s entire collection) are sold at a deep discount to a network of libraries, usually covering an entire country. The idea is that the value of each sale to each institution is low but there are so many institutions that overall income to the publisher is increased. It means that even sub-disciplinary journals within international law are reaching over 2500 institutions with everyone at those institutions enjoying electronic access.

Since a number of journals innovations originate with science publishing we can look to science journals for other possible future scenarios. One is open access publishing where the author pays for the publication of material but it is free to air. This has some obvious problems for international law in that research is not necessarily funded in the same way as in science but it is already an option on an article by article basis in journals publishing, and we may one day evolve a business model for open access books. Another innovation is the citation index, where a journal is given an impact factor indicating how frequently its content is cited. Currently this is limited to sciences and some social sciences such as economics. Due to these restrictions only one of our international law journals, the Journal of International Economic Law is included and has had a (steadily improving) impact factor since 2006. Impact factors face a lot of criticism and indeed our recent research interviews revealed near universal derision for any system of journals rankings. Nevertheless there have been recent attempts to get a large group of international law journals into a citation indexing system so it could happen sooner than we think. As with several other matters I would be most interested to read about OJ readers’ experiences finding and using online books, and your feelings about open access and impact factors/journals ranking systems.

One of Kevin’s original suggestions when he invited me to guest blog was what subjects were hot. I have tried to show in this posting how we need to keep an eye on more seismic changes. But if you want a short answer, I would say law of the sea.

Reminder: International Law Weekend Starts Today

by Chris Borgen

Peggy has already posted on this, so this is just a reminder that ILW 2010 starts today (October 21) in New York City. The website of the American Branch of the International Law Association has this description:

On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law Weekend (“ILW”) in New York, in conjunction with the 89th annual meeting of the American Branch.

ILW 2010 will bring together hundreds of practitioners, professors, members of the governmental and non-governmental sectors and students. It will feature numerous panels, distinguished speakers, receptions, and the Branch’s annual meeting. ILW 2010 will take place at the Association of the Bar of the City of New York on October 21, 2010, and at Fordham University School of Law on October 22 and 23. The overall theme of ILW 2010 is “International Law and Institutions: Advancing Justice, Security and Prosperity.”

The global strategic and financial turmoil of the last several years has created unprecedented challenges and opportunities for international law and institutions. ILW 2010 will address the role of international law and institutions in reducing conflict, promoting security, fostering human rights, protecting the environment, facilitating trade and investment, and resolving public and private international disputes. Panels will examine subjects such as the extent to which treaties currently under negotiation or consideration would further these objectives, and the operation and effect of international organizations, international courts, and arbitral institutions on the global legal order. One of the objectives of ILW 2010 is to promote a dialogue among scholars and practitioners from across the legal spectrum. Panels at past ILWs have also addressed a wide range of topics related to public and private international law.

Additionally, on Saturday, October 23rd, beginning at 2:00 pm, the American Branch will launch a half-day program of speakers, break-out sessions, and other events designed to help law students gather information about career paths in different areas of international law and to gauge the future demand for lawyers with expertise in different aspects of private and public international law.

Full program .pdf is here.

I’ll be speaking on the Kosovo panel on Friday morning. I hope to see you there!

U.S. Digests go Digital

by Duncan Hollis

I was introduced to the U.S. Digests on International Law as a graduate student working on my first international law research paper (an exposition of nineteenth century international law arguments over the British Guiana/Venezuela boundary dispute, which, I might add, is still around).  I found John Bassett Moore’s 8-volume digest from 1906 magisterial in its compilation of key primary resources such as diplomatic notes, letters, and internal memoranda.  I ended up buying my own set, which still sits on my shelf today. Since then, I’ve culled together the complete series of these digests, including (a) Francis Wharton’s early 3-volume work in 1886, (b) Green Hackworth’s set that follows Moore’s and runs through WWII, (c) Marjorie Whiteman’s 15-volume set that succeeded Hackwork’s, and (d) the annual (or semi-annual editions) covering 1974 to the present day.  For some years, publication of these volumes lagged, but through the hard editorial work of the likes of Sally Cummings, David Stewart and now Elizabeth Wilcox, the century-long tradition continues.

And, I’m happy to add that tradition is now a digital one.  You can already see .pdfs of Moore and Wharton’s work on-line (see, e.g., here).  Recently, however, the Office of the Legal Adviser has posted the latest digest editions to its website.  The volumes covering 1989-90, 1991-1999, and each year from 2000 to 2008 are now all online (I understand that 2009 is coming soon).  So, for those of you looking to work with primary materials–particularly those involving U.S. views on international and foreign affairs law–this is a welcome addition to the basic set of international law research tools.  I’ll always keep (and love) my hard copies of the digests, but I suspect that my own digest research is going to start creeping online.  And, I suspect, I won’t be alone.

Why Not Allow Foreign Spending in U.S. Elections?

by Peter Spiro

Richard Hasen writes in Slate:

There are of course good reasons to limit foreign money in the electoral process—it’s just that none of them are compatible with the Supreme Court’s First Amendment absolutism. Unlike American citizens, foreign individuals, governments, and associations are unlikely to have allegiance to the United States. A foreign entity may even have military or economic interests adverse to the United States. Foreign individuals or groups could support candidates to curry favor, or at the least, to secure preferential access to elected officials. Even putting aside the possibility of corruption and the sale of access, would we really want the close and intense battle for a majority in the House of Representatives to be influenced by money from a foreign government, corporation, or millionaire? The answer is obviously no, whether you sit on the Democratic or Republican side of the aisle. And foreign spending on U.S. elections could undermine public confidence in the electoral process.

It’s not quite as obvious to me that foreign spending should be rejected out of hand.  The principled defense is that foreigners are affected by US elections, too.  (One can even fashion a pretty respectable argument on that basis that foreigners should be allowed to vote in US presidential elections, though of course that would be a lot less practical.)  The pragmatic one is that foreigners already wield substantial, direct influence in US politics, so this would be more a matter of degree than kind.  So long as there were adequate disclosure (a big if, I understand), we wouldn’t have to worry too much about foreign spending, either.  It’s not as if “this message was approved by the government of China” would help many candidates.

That said, I agree with Hasen that the Court is unlikely to uphold a free speech right for foreigners in this context.  A doctrinal lever is at hand with Sugarman v. Dougall and progeny, upholding discrimination by states against aliens in the context of “political functions.”  This isn’t a very principled jurisprudence, but it looks to me to be easily transposed.

International Law Scholarship and the Internet

by John Louth

In this second post I will focus on the production of international law scholarship and what opportunities and frustrations are presented by online communications.

To try and get a better understanding of the impact of the internet on legal scholarship we set off earlier this year on a programme of depth interviews, which were then transcribed, in which we asked scholars to talk us through their research processes. There were a number of fairly predictable, although still useful, points of general agreement. Among them were the difficulties of staying up to date with current developments, filtering through thousands of search results, and the fact that journals increasingly play a more central role than books due to their greater online availability. More surprising though was scepticism about the need for peer review, anxieties over what you could and could not cite, and the lack of networks for asking for help with research questions.

For the rest of this post I would like to consider these more surprising results, suggest some reasons for them and generally ask for your comments and experiences.

The points about peer review were far from universally held and to some extent they contradicted the comments about what you can cite. Here is a quote representing the former: “I honestly think that there is excellent content in pre-peer reviewed or non peer reviewed outlets that is discernable by trained and practising academics”. And here is the opposing point of view: “a blog doesn’t give me the same type of quality – because it’s not peer reviewed, quite simply. So I think I would never quote a blog in a journal article I was writing”. This speaker then goes on to say how she would however use blog content for teaching purposes.

The first speaker is surely right that in your specialist area there are signals of quality such as who or what is referred to in the footnotes and the precision with which particular debates are summarised. Peer review can also be uneven since it depends on who does the review, how long they were given, and whether their advice was heeded. But as an indicator of quality it comes into its own in instances where you can’t just rely on your own good judgement, such as when you are under time pressure, where the material is outside your specialist area, or with book-length studies where you can’t afford to wade through a large part of it simply trying to assess whether it has been well done.

If the mere fact of peer review is not sufficient to push a source higher up your list of research priorities, what other filters do people apply to items that appear in a long list of search results? Going for known authors seems to be the most common method, followed by how “on point” a specific item is. Where material has been formally published the publisher or journal brands also play an important part. I would be most interested in hearing readers’ own views about peer review and of any others filters that they apply.

Whether you can cite a blog seems to be increasingly problematic. It depends on who you are and how you will use it. Younger scholars feel uneasy about referencing anything other than a final published piece fearing it will drag their reputation down, whilst conversely more established scholars feel they are in a position to endow some authority on a pre-publication piece by including a reference to it. We repeatedly heard similar distinctions being made about using something but not citing it (and wondering what the correct citation would be if they did). Another variant of this is the problem with multiple versions of the same article appearing in a working paper series, SSRN, and in a published journal, and then the published journal version itself appearing on the publisher’s website as well as being licensed to West, Hein, EBSCO, and faculty archives. This proliferation is demand driven (publishers would obviously like there to be just the one official version of everything) yet the end users seem confused by it.

Using networks to solve problems or get quick answers is clearly something the internet should be suited to. The question about what to cite and how is exactly the sort of thing which might be subject of a short blog posting but it will soon disappear down the page and it relies on who was visiting the blog that day. List Servs are probably the more appropriate means to deal with questions of that kind since they push the question out to recipients rather than needing to pull visitors in to a website. They are common amongst librarians. The Int-Law list for foreign and comparative law librarians for instance features frequent requests for materials so obscure that no publisher run website could ever think of covering them all. Investment lawyers will be aware of the formidable OGEMID list and a number of ASIL interest groups also have discussion groups (although I am not aware of people using the ASIL lists to locate materials). Yet when we asked doctoral students whether there are any such lists that they can use to help track down useful primary materials they couldn’t think of any. Perhaps there is a sense that using an email list to locate material seems like cheating or laziness when you are studying for a research degree, but it could greatly increase the exchange of information about highly specialised material which would enhance the quality of research.

Web 2.0 has been with us now for over five years and for all the increase in scholarly communications that it has facilitated, publishers and academy need occasionally to step back and think about the challenges that are posed to some of the fixed points of our joint endeavour to disseminate scholarship. Eliminating confusion so that greater use can be made of what is being produced, and increasing the efficiency of direct exchanges between people working on similar issues are but two starting points.

Logan Act Watch: Korea Trade Agreement Edition

by Peter Spiro

No surprise that that the U.S.-Korea Free Trade Agreement is languishing short of congressional approval in an election year.  But who knew that members of Congress now feel free to team up with foreign legislators jointly to lobby their executive counterparts.  From Foreign Policy’s The Cable:

On Monday, 21 U.S. lawmakers joined with 35 South Korea lawmakers to write to both presidents demanding significant changes in the agreement. “An FTA that prioritizes corporate interests over those of our constituents is not an agreement but a compromise of our countries’ ideals, and it is one we foresee working to defeat,” the lawmakers wrote.

Congressman Mike Michaud (D-ME), chairman of the House Trade Working Group, said in a statement publicizing the letter, “Even beyond the market access issues for textiles, autos and beef, the current free trade agreement is based on the same failed NAFTA model and promises to ship U.S. jobs overseas.”

The letter also calls on the agreement to better address issues of alleviating poverty, advocating social justice, advancing human rights, and protecting the environment.

This would seem better to fit the letter of the Logan Act bar than in its usual deployment against the errant Jim Wright, Jesse Jackson, or Nancy Pelosi breaking bread with the bad guy of the moment.  (The Act proscribes “carr[ying] on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States,” with three years in the clink as punishment.)  But no paper tiger is going to stop this sort of legislator freelancing, which is clearly on the rise.  Yet another example of the increasing disaggregation of the state.

Interdisciplinarity in International Law Scholarship

by John Louth

As a publisher I am used to staying behind the scenes and cajoling my authors into writing for us, so it is with trepidation that I take up this kind invitation from the OJ team – but as the quote from Bull Durham goes “the world is made for people who aren’t cursed with self-awareness”.

When I was invited to guest blog a number of topics were suggested, but the more I thought about it the more I realized that all the topics I want to address relate in some way to the impact of the internet on publishing. So these posts will explore questions of the dissemination and discovery of ideas in international law and I would be very interested in reading OJ readers’ responses to the issues raised. This post will consider interdisciplinarity as a possible way to increase dissemination.

We often ask our international law authors whether the internet has increased the amount of interdisciplinary work that they do. The problems addressed by international legal scholarship already do attract inputs from other disciplines, most notably international relations, political theory, and political economy, but I was always under the impression that international law is susceptible to a great deal more interdisciplinary scholarship than is currently the case. Would that be desirable though? Certainly as a marketer of books I would say yes as it increases potential sales. Assessment criteria for the (as yet not fully defined) Research Evaluation Framework which will apply in the UK place value on impact, and presumably successful interdisciplinarity can only increase impact.

Perhaps it is unfair though to expect more. There are more than enough points of black letter law to argue over without bringing in perspectives which can completely change the terms of the debate. Moreover we will all have witnessed exchanges between scholars from different disciplines that end up as a dialogue of the deaf. It might be helpful first to attempt a taxonomy of the types of interdisciplinary publishing that occur.

An admittedly crude classification of interdisciplinarity posits three types which could even be seen as evolutionary stages. Type 1 is simple cross-pollination: an author addresses a topic of interest to international lawyers but almost entirely from another disciplinary perspective, and hopefully with good cross-marketing by the publisher, international lawyers will pick up on it. Type 2 is where an international lawyer incorporates insights from another discipline (often gleaned from a Type 1 study described above) in a book or article still aimed primarily at other international lawyers. Type 3 is where the international law scholar fully engages with the material from another discipline intending to make an impact both on that other discipline’s understanding of a problem as much as on international law’s understanding of it. (By some definitions the first two types are referred to as “multidisciplinarity”.)

Quality assurance processes act against Types 2 and 3 as you need to approach a wider range of peer reviewers. Getting unequivocally positive reviews of such proposals or manuscripts is actually very difficult as Type 2 books can be dismissed as mere dabbling, whilst Type 3 books require the author to achieve a form of disciplinary bilingualism where readers from the other discipline would not notice any rough edges or bum notes. Within the confines of traditional publishing it is very difficult to reconcile notions of acceptable quality with the desirability of wider dissemination of ideas that interdisciplinarity promises.

The blogosphere offers a way around this. Open enough (by virtue of being global and free) not to present barriers to dissemination yet still targeting a rarefied audience, it knowingly engages in a trade off between immediacy and exhaustive research. Such an environment could be expected to foster interdisciplinary exchange by being less judgemental about attempts to go beyond one’s comfort zone.

It might be interesting to look at what are arguably the leading international law blogs to see whether this has happened. Opinio Juris’s About page states that it is a blog focussing on international law and international relations (admittedly the latter may be understood as referring to world events rather than the scholarly discipline) whilst EJIL Talk!’s About page talks about exploring “wide systemic meaning” which might also imply bringing in insights from other disciplines. It seems to me that the book discussions both here on OJ and over at EJIL Talk! do the most to foster interdisciplinary exchange, which should not be surprising as the writers are invited specifically to provide a variety of perspectives. As for the general analytical pieces my impression (and it is just that, I cannot say that I read every post in detail) is that on the topics where you can compare the posts, say on issues of targeted killings, EJIL Talk! seems to stick to black letter law expositions (and very thorough ones at that) whereas the OJ debates combine discussions of IHL alongside say the appropriate limits of the power of the Executive.

If that characterisation is right, can we read into this anything about national scholarly tendencies? Does Opinio Juris display a more American approach to interdisciplinarity and EJIL Talk! a British or European one? Of course there is no difference in the abilities of international law scholars from different places to study and write about other disciplines, but there may be a difference of temperament and of an understanding of the role of international law born of academic and national traditions. In terms of temperament this might be to do with the prevalence of law as a first degree in many countries outside the US, leading to an emphasis on specialization and excessive modesty about venturing further without “proper” qualifications, whilst American scholars who have first degrees in other subjects might be less cautious. The national traditions in international law reflect the extent to which academic and practitioner cultures in particular countries that have already ceded a good deal of sovereignty to international bodies are more open to the idea that international law provides answers rather than just arguments.

Whatever the causes I would be interested to know whether readers feel we need more interdisciplinarity of the types I described in journals in books or in our favourite blogs.

John Louth Guest-Blogging

by Kevin Jon Heller

On behalf of all of us at Opinio Juris, I am delighted to announce that John Louth of Oxford University Press will be blogging with us this week.  John joined OUP in 1997 and is now Editor-in-Chief of Academic Law, covering books, journals, and online services. He graduated from Cambridge with an undergraduate degree in law and philosophy and with an MPhil in international relations.  He has also just about finished his distance learning MBA from Warwick University.

John will post three times this week, on Tuesday, Wednesday, and Thursday.  Each post will explore a different aspect of international-law publishing. John has also graciously agreed to answer any questions that readers might have about his job, OUP, and publishing in general.

Welcome, John!

Goldsmith Responds About “Co-Belligerency”

by Kevin Jon Heller

Jack Goldsmith has responded to my post about the D.C. Circuit’s rejection of co-belligerency in Al-Bihani.  It’s an interesting response, worth a few additional thoughts.

To begin with, it is important to note that Goldsmith does not respond to the substance of the panel’s criticism of the idea that state-centered notions of co-belligerency can be applied to non-state actors in NIAC. Recall what it said:

But even if Al-Bihani’s argument were relevant to his detention and putting aside all the questions that applying such elaborate rules to this situation would raise, the laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states. See 2 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE § 74 (1906). The 55th clearly was not a state, but rather an irregular fighting force present within the borders of Afghanistan at the sanction of the Taliban. Any attempt to apply the rules of co-belligerency to such a force would be folly, akin to this court ascribing powers of national sovereignty to a local chapter of the Freemasons.

It can’t be pleasant for Goldsmith, one of the primary architects of the co-belligerency rationale, to see his position described as “folly” by a panel of the D.C. Circuit.  So I would hope that, at some point, he would take the time to explain why it makes sense to analogize between states and non-state actors with regard to concepts such as neutrality.  I”m skeptical, but I’m certainly willing to be persuaded otherwise.

Instead of making that argument, however, Goldsmith simply points out — correctly — that the panel’s rejection of co-belligerency was dicta.  I did not argue otherwise.  Indeed, I chose my words carefully: I said the panel “concluded” that co-belligerency did not apply in NIAC, not that it “held” that it did not; and I said that, as a result, the argument was “discredited,” not that it was “rejected.”  The government remains perfectly free to continue to argue co-belligerency.  It is also under no obligation to make a substantive argument in defense of that idea.  But it is certainly my right to point out (1) that neither Goldsmith nor the government has ever explained why the state/non-state actor analogy is justified; and (2) that, dicta or not, a panel of the D.C. Circuit has described the analogy as “folly.”

Finally, I’m baffled by Goldsmith’s statement that my position may lead me to a place I don’t want to go, because “if the laws of war for NIAC are silent on an issue, the main alternative to arguing by analogy to IAC in interpreting the AUMF is to conclude that the laws of war place no limits whatsoever on the AUMF.”  That statement implies that when the laws of war — in IAC or NIAC — are not silent on an issue, they do in fact place limits on the interpretation of the AUMF.  But that is certainly not the US position, nor does it seem to be the position of conservative scholars like Goldsmith.  Both insist, for example, that the AUMF authorizes the targeted killing of anyone who is a member — to quote the government’s brief in Al-Aulaqi — of “an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda.”  The idea that the US is in a global NIAC with al-Qaeda directly contradicts the laws of war, which limit NIAC to specific areas in which hostilities reach a certain level of intensity.  Yet I don’t see the government or conservative scholars arguing that the AUMF should be interpreted to limit targeted killing to individuals who participate in the NIACs that are actually taking place in Afghanistan and Pakistan.  Nor do I see the government or conservative scholars arguing that the AUMF limits targeted killing to individuals who are either members of an “organized armed group” participating in those specific NIACs or otherwise directly participate in them, which are the only criteria consistent with the laws of war that apply in NIAC.  Those laws are not “silent” on the issue of who can be targeted, as Goldsmith suggests.  What they say is simply too limiting for the US’s tastes.  So the government and conservative scholars invent new ways to expand the category of individuals who can be “lawfully” targeted under the AUMF beyond the limits imposed by the laws of war — such as by arguing that an individual who does not fall into either of the traditional categories can still be killed at any time if he is a member of an organization that is a “co-belligerent” of a group involved in the (imaginary) “noninternational armed conflict between the United States and al-Qaeda.”  That is not interpreting the laws of war, by analogy or otherwise.  That is ignoring them.

I am fully aware, of course, that the US is going to decide for itself who it can “lawfully” kill and when it can “lawfully” kill them.  What I object to is the desire of the government and conservative scholars to minimize the political repercussions of their radical approach to targeted killing by appropriating — and distorting — the language of international law.  And let’s be clear: that is exactly what they are doing. It is no accident that the government and conservative scholars take the position that the AUMF is informed by the laws of war, not governed or limited by them. Doing so enables the US to pretend that it takes the laws of war seriously while still reserving to itself the right to ignore those laws when it finds them inconvenient.

A Toast for Lou Henkin

by Martin Flaherty

[Martin Flaherty is the Leitner Family Professor of International Human Rights and Director of the Leitner Center for International Law and Justice at Fordham Law School. He is a visiting professor at St. John’s Law School Fall 2010.]

Louis Henkin influenced – and will continue to influence – countless lives in untold ways. Not least, in fact perhaps most, are those persons throughout the world and in the United States who benefit from the prospect of their fundamental rights receiving a measure of recognition. Of course most of these persons will never know of Lou or their debt to him. I consider myself infinitely grace to be in the still considerable number of people who did know Lou directly. My debt is that much greater.

My association with Lou did not begin the way so many others did, as a student or colleague or human rights advocate. I frankly had never heard of him until I became of freshman counselor for a group that included his son, David. Back then I was a graduate student with the goal of teaching colonial history. The Henkins did not shift my goal to the law. (In fact David, perhaps because the law held no mysteries, has since become a leading historian at Berkeley.) But when my goals did shift, the path became clear. David, brilliant yet always playful, was a good advertisement for his father. Lou was a stellar poster prof for Columbia. So, having applied nowhere else, it was off to Morningside Heights I went.

I was immediately disappointed, though certainly not by Lou. To the contrary, he invited me to his office the first week and listened to whatever half-considered career plans I had. His advice to me about first-year, delivered with a twinkle, was, “Do well!” Instead what disappointed me was I did not get assigned Lou for Constitutional Law. My solution was simply to audit his classes. The experience was breathtaking. He seemed to cover five cases to every one in any of my other classes. Yet he didn’t skimp on critique or analysis, though he briskly made it clear why in his view a given decision made sense or did not. I thought I had the best of both worlds: an encyclopedic survey without Socratic examination. Then one day he called on me in passing. I’m not sure whether I “did well.” But I made sure that I never treated his course as a simple audit again, which I’m pretty sure was the real point of his query.

But the truly life-changing experience was Lou teaching international human rights. This education was in truth a family affair. It was Alice Henkin who along with Jack and Deborah Greenberg, were running one of the country’s first program’s giving law students a chance to serve as interns with NGOs around the world. As a result I was able to work for a summer in Belfast with a leading group while the “Troubles” made the city a grim primer for both human rights violations and advocacy. After that, there was no turning back. Fortunately, the first place to turn to were Lou’s classes. As with Con Law, these were encyclopedic and rigorous. But they also had a measure passion that went beyond what I’d experience before. Though ever scholarly and avuncular, Lou also imparted a deep and ardent sense of rage at injustice, and empathy for its victims.

That example remains indelible. Rarely, if ever, have I encountered the combination of intellectual rigor with an urgency to change the world for the better. Yet with all that he somehow avoided the trap of zealotry. My first encounter of him was as a family man, and that will always be my primary image. Over the years we’d always first talk about how things were going in his family and in mine. In fact I’ve rarely seen parents more proud than when David gave a reading for one of his newly-published books at the Columbia Bookstore. He was also unfailingly kind to his extended family of hundreds of former students and colleagues. Lou was always there for further teaching on points of law, advice on how to set up a human rights program, of simply general counseling. And, until the last few years, his energy was prodigious. The writing and teaching speaks for itself. But, more concretely, I remember even after I graduated meeting him at his office, and then him bounding down eight flights of stairs before we hit the street level for lunch.

I’ll miss those lunches, the phone conversations, the meetings at conferences, lectures, and human rights sessions. I am and will be forever grateful, though, for Lou Henkin’s scholarship, teaching, advice, and most of all, the inspiration. That is one toast that can be made around the world.

Louis Henkin: An Extraordinary Professor and Colleague

by Sean D. Murphy

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law, George Washington University Law School]

I recall that Louis Henkin’s first-year constitutional law course at Columbia Law School was unique in that he assigned extraordinarily short reading assignments. While at first that seemed a blessing to an overburdened student, it became readily apparent that he expected you to read every single word (perhaps twice!) for meaning, rather than speed-read your way to a hasty (and probably misguided) conclusion.

In upper-level courses on human rights, Lou was a complete master, able to advance an exceptional vision for how the law can and should protect human dignity, but always with a strong sense of the practical problems encountered outside the walls of the classroom. When he co-taught seminars with eminent experts in the field, everyone wanted Lou to advise on their papers, leaving him pleading with students at least to consider tutelage under his co-teacher.

As the editor-in-chief of the international law review, I would often seek out Lou’s advice on articles under consideration. He was typically generous with his time, though I do recall bringing to him a piece on compensation for expropriation right at the time when that issue was of great controversy in the draft Restatement, and Lou all but threw me out of his office in exasperation! All told, I entered Columbia uncertain about whether a career in international law made sense, but under Lou’s influence (and that of Oscar Schachter and Richard Gardner) the decision was easy.

Lou was, of course, a very strong proponent of international law, devoting much of his scholarship to upholding values and norms embedded within the system. Yet he also had a strong sense of the rule of law at the national level, and he had little doubts about what to do when the two conflicted. A few years after graduating from law school, I returned for a banquet, and told Lou that I was working in the State Department Office of the Legal Adviser on politico-military affairs. The principal issue of the day was Iraq’s invasion of Kuwait and whether President Bush should seek authorization from Congress to use military force against Iraq, knowing that Congress was very closely divided over the issue. I spoke with Lou about the difficulties in organizing a multinational coalition to stop what was clearly wrongful aggression if Congress also had to be involved in the decision-making. He was not impressed, stating firmly that Congress must authorize the action. I pressed him: “What if Congress declines to authorize it?” He responded that the President could not proceed. I pressed further: “But what if the President proceeds anyway, in order to stop the aggression?” He then looked me straight in the eye and said: “Then the President should be impeached.” In a world of confusion and grey areas, Lou tended to see the bright lines.

In the years that followed, I continued to benefit from him in so many ways: as a colleague on the Board of Editors of the American Journal; as a co-author; as a consumer of his continued scholarship. The era of great post-WWII scholars in international law is now ending and I fear that we are all the worse off for it.

Louis Henkin: Remember and Emulate

by Mary Ellen O'Connell

[Mary Ellen O’Connell is Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolutin at Notre Dame Law School]

Louis Henkin dedicated his classic work, How Nations Behave, to his father

Who All His Days Loved Law,
Sought Peace and Pursued It
Psalms 34: 12-14

The verse applies equally to Lou. He loved the law and sought peace through it. He loved the United States Constitution, the UN Charter, the Universal Declaration of Human Rights, and the Human Rights Covenants. These last he dubbed, “the international bill of rights.” His ability to create such phrases exemplifies his particular gift as scholar and teacher. He could go to the heart of complex legal concepts and find a way to clarify, explain, and convince. We all know his iconic statement about most states and their fidelity to most of their international legal obligations. And most know his title: Reports of the Death of Article 2(4) are Greatly Exaggerated.

My personal favorite is his argument against relaxing the UN Charter restrictions on the use of force:

It is not in the interest of the United States to reconstrue the law of the Charter so as to dilute and confuse its normative prohibitions. …[I]t is important that Charter norms…be clear, sharp, and comprehensive…. Extending the meaning of ‘armed attack’ and of ‘self-defense,’ multiplying exceptions to the prohibition on the use of force and the occasions that would permit military intervention, would undermine the law of the Charter and the international order established in the wake of world war.

Louis Henkin, Use of Force: Law and U.S. Policy in MIGHT V. RIGHT, INTERNATIONAL LAW AND THE USE OF FORCE 69 (Louis Henkin et al., eds., 1989).

These were not the views of an ivory tower idealist. Lou served four years in combat during World War II. He won the Silver Star for valor, something he never mentioned to me, although I was his research and teaching assistant for three years at Columbia and for years after spoke with him regularly about the use of force. He did mention to me once that Germans seem to understand Yiddish–he had gotten some Germans to surrender during the war when he spoke to them in Yiddish. It was actually 75 Germans and was the basis of his Silver Star.

He was simply the opposite of arrogant—he never boasted of accomplishments. I met him for the first time when he was inducted into the Institut de Droit International in 1982 because I was a graduate student in Cambridge assisting Robbie Jennings with the meeting. When I went to work for Lou at Columbia a few months later, I congratulated him on his induction. He told me he didn’t think much of such things. What he plainly thought a lot about was advancing international law. In the years I worked for him, 1982-1985, he was co-editor-in-chief with Oscar Schachter of the AJIL; he was Chief Reporter of the Restatement Third of American Foreign Relations Law; he produced the second edition of his casebook; wrote several important articles, taught law courses, and the required course on international law for 200 students in Columbia’s School of International Affairs (now SIPA.)

He was also fully engaged with his family. He loved talking about “Mrs. Henkin” and his sons. He often pointed out that each son had chosen a fascinating career outside the law. Our last conversations were about Alice, his grandchildren, and my husband Pete, also a highly decorated combat veteran.

Lou did all this with energy, humor, and deep interest in the people around him. I am convinced he taught the concept of human dignity so persuasively because he really saw in everyone profound dignity. He certainly treated all with respect, even those who opposed him. He might give me a heads-up about difficult personalities, but that was for me, not idle gossip.

At his funeral, his sons, rabbi, and friends spoke movingly and authentically about him. Of greatest moment for international lawyers were these words: remember and emulate.

How to Write a Book in 647 Easy Steps (Part Two)

by Kevin Jon Heller

In Part One of this series, I discussed how to decide whether to write a book and offered some thoughts about book contracts.  In this post, I want to discuss the calling card that every potential book author needs to obtain a contract — a good proposal.  Bill Schabas can submit a one sentence proposal that says “I want to write a book about X” and publishers will offer him a contract.  The rest of us, particularly junior scholars who don’t have a book or dissertation under their belt, have to convince a publisher that we have a good idea for a book and that we will be able to actually write it in a reasonable amount of time.

So, what does a good proposal look like?  Although I doubt that one size fits all, my sense is that the structure of my proposal for Oxford (which you can see here) is fairly typical.  Indeed, I adapted it from Rob Cryer and Neil Boister’s proposal for their excellent The Tokyo International Military Tribunal — A Reappraisal, also for Oxford, which they were kind enough to let me read.  (I highly recommend asking a colleague who has written a book in the same vein as yours to let you take a look at her proposal.  You can then base your own on it.)  The primary difference between mine and theirs was length — while Neil and Rob’s proposal was, to the best of my recollection, about six single-spaced pages, mine was 12.  I made a conscious decision to write a more comprehensive proposal, for a number of reasons: Rob and Neil were much more established scholars; they were writing the book together; and Rob had already written a successful book on his own.

In any case, my proposal had six sections: (1) an introduction; (2) the nature of the book; (3) the place of the book in the literature; (4) the audience; (5) a chapter plan; and (6) a short bio.  I’ll discuss each in turn, as well as the process of external review…

D.C. Circuit Rejected “Co-Belligerency” in Al-Bihani

by Kevin Jon Heller

In its motion to dismiss the ACLU/CCR targeted-killing lawsuit, the government claims (p.5) that Al-Aulaqi can be lawfully targeted because Al Qaeda in the Arabian Peninsula is “an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda” (emphasis added).  In my previous post on the lawsuit, I argued that there was no justification for the government’s attempt — backed (and perhaps inspired) by conservative scholars like Bradley and Goldsmith — to import the concept of co-belligerency into non-international armed conflict.

I didn’t realize when I wrote my post, but the D.C. Circuit reached the same conclusion in Al-Bihani.  Indeed, it described the idea that co-belligerency applies in non-international armed conflict as “folly” (p.11; emphasis added):

Al-Bihani… [argues] that the 55th Arab Brigade was not lawfully subject to attack and detention. He points to the international laws of co-belligerency to demonstrate that the brigade should have been allowed the opportunity to remain neutral upon notice of a conflict between the United States and the Taliban. We reiterate that international law, including the customary rules of co-belligerency, do not limit the President’s detention power in this instance. But even if Al-Bihani’s argument were relevant to his detention and putting aside all the questions that applying such elaborate rules to this situation would raise, the laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states. See 2 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE § 74 (1906). The 55th clearly was not a state, but rather an irregular fighting force present within the borders of Afghanistan at the sanction of the Taliban. Any attempt to apply the rules of co-belligerency to such a force would be folly, akin to this court ascribing powers of national sovereignty to a local chapter of the Freemasons.

This is absolutely correct — and stands in marked contrast to Judges Bates’ willingness to rely on co-belligerency to uphold the detention of the habeas petitioners in Hamlily, a decision that includes the remarkable statement (p.16 n.16) that “[l]ike many other elements of the law of war, co-belligerency is a concept that has developed almost exclusively in the context of international armed conflicts.  However, there is no reason why this principle is not equally applicable to non-state actors involved in noninternational conflicts.”  (Apparently, U.S. courts only correctly interpret international law when doing so leads to the rejection of a detainee’s claim.)

Given the D.C. Circuit’s conclusion in Al-Bihani, why is the government still relying on the discredited notion of co-belligerency in Al-Aulaqi?

The AfPak Conflict and the Leadup to the December 2010 Review

by Kenneth Anderson

I am currently underwater with some things and won’t be posting much, despite my interest in the debates over drones, targeted killing, and much else besides.  However, I wanted to suggest that, for those trying to make sense of US actions in AfPak – including the overt strikes by NATO against safe havens in Pakistan, the sharply increased public pressure by the US on the Pakistan government to take action against these safe havens, the unapologetic defense of targeted killing even of US citizens in places like Yemen or Somalia or beyond, etc. – at this moment there are two key sources.  One is Woodward’s new book.  I took a pause out of writing some stuff on these topics to read the book; events unfolding now appear quite directly to follow on the path laid out in the President’s review of Afghanistan and Pakistan strategy a year ago.  This is the main narrative of the book, and well worth reading closely.  There’s little going on now that is not presaged in those discussions.  And current events are both following a plan laid out a year ago, almost exactly, and running up to the planned December 2010 strategic review.

Two, the reporting by Adam Entous, Julian Barnes, Siobhan Gorman, and others at the Wall Street Journal’s news pages.  I follow the reporting in all the papers closely, and the Journal’s news coverage at this point in time is eating the other newspapers’ coverage for lunch.  I think the Washington Post figured they had it covered with the excerpts from Woodward’s book, and have been caught somewhat flatfooted by what is going on now – and seem curiously unable to connect it to their own excerpts from Woodward’s book.  The Washington Times is always very good because its national security team is well connected in DC and on the ground in AfPak, but outgunned in this particular phase of reporting.  The New York Times is unfocused; Helene Cooper is unsuited to this beat, and despite my considerable respect for Scott Shane and others there, alas, the national security reporting team seems to have lapsed into simply waiting for someone to leak it something.

Entous, who just came over from Reuter’s, and the other folks at the Journal have been aggressively working sources in DC as well as on the ground in AfPak, and I admire the way in which they approach analysis as news reporters – it’s not fit to a preexisting political narrative, but instead trying to link up the longer run picture of strategy by closely reading Woodward and others close to the process from a year or two or five ago, and see events in a strategic frame that is not about prior narratives.  It’s exemplary reporting that is both very detail oriented and yet analytically clear-eyed. It is still newspaper reporting, rather than magazine journalism let loose on the front page, but scrupulously neutral and simultaneously an analytic and factually detailed take.  Actually, it’s a little bit like what one would hope the best intelligence analysis inside the agencies would look like; one hopes that Panetta and others receive stuff this good with all the secret stuff tucked in as well.

Louis Henkin (1917-2010)

by Harold Hongju Koh

[Harold Hongju Koh is the Legal Adviser, United States Department of State; previously he was  Martin R. Flug ’55 Professor of International Law and Dean, Yale Law School (2004-09), as well as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998–2001). This tribute is adapted from “The Future of Lou Henkin’s Human Rights Movement,” Columbia Human Rights Journal (2007).]

Lou Henkin, who died today, was my hero. He was one of the few truly great men I have ever met. During his six decades at the State Department, Penn, and Columbia Law School, Lou shaped modern international human rights law. In his years as an international lawyer, there was no important issue on which he did not take a stand. One measure of his influence is that every human on this planet has found some shelter or affirmation in his ideas. His commitment for human rights universalism came through in The Rights of Man Today; his passion for the rights of aliens and refugees in The Constitution and United States Sovereignty: A Century of “Chinese Exclusion” and Its Progeny, 100 Harv. L. Rev. 853 (1987). As a framer of the Refugee Convention and U.S. member of the Human Rights Committee of the International Covenant on Civil and Political Rights, he fought for human rights not just in the academy, but in the trenches.

Lou dreamed of a world where the executive branch would use diplomacy and compliance with international law to promote global cooperation; where legislatures would maintain our compliance with our international obligations; where the courts would pay “decent respect to the opinions of mankind;” and where civil society would monitor our leaders and hold them accountable. In each of these areas, Lou did foundational work. As a law student, I first read Foreign Affairs and the Constitutionand saw new vistas opening from Lou’s crystalline analysis. As a graduate student studying international relations, I read How Nations Behave and paused over “the sentence that launched a thousand articles”: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.” Id. at 47 (2d ed. 1979) (1968). Lou’s thought pushed me toward the question–why do nations obey international law– that has since occupied my career.

I first saw Lou in the flesh thirty years ago, at D.C. ‘s Mayflower Hotel where he was running a meeting of the Restatement (Third) of Foreign Relations Law as the American Law Institute’s Chief Reporter. Like Daniel in the lion’s den. Lou was standing amid perhaps one hundred lawyers, each billing $500+ an hour, who were ferociously criticizing the Restatement’s expropriation provisions. After one particularly savage exchange, Lou turned to the speaker and said: “That may be what your clients pay you to say, but that’s not the law, and I won’t say it.”

At that moment I realized that what made Lou a true hero was not just his brilliance and scholarship, but his utter incorruptibility. For if Lou said it, people knew it must be true, because there was no one smarter, and because there was no one more honest. When I was a minority professor in my first year of teaching, the first person who invited me to speak on a scholarly panel was the great Lou Henkin. Once I finally met him, I realized that Lou was not one of those people who loved human rights, but hated human beings. I was as touched by his personal kindness, as by his clarity of thought. He regularly reached out to the underdog, the unnoticed, the unknown.

When I heard of his passing earlier today, I remembered Lou walking through the meadows of Aspen, with his dear friend, Justice Harry Blackmun, debating the right to privacy. And if you ever wanted to know what love looks like, imagine Lou and his beloved partner Alice, strolling in the sunset at Wye Meadows, arm in arm, talking about international human rights.

In his dedication to How Nations Behave, Lou remembered his own father with the words of the Psalms. Today, let us remember our greatest international lawyer the same way: as a simple man, an authentic hero “Who All His Days Loved Law, Sought Peace and Pursued It.”

Louis Henkin RIP

by Roger Alford

Terribly sad news today on the death of Louis Henkin. Here’s the message from Columbia Law School Dean David Schizer:

I’m very sorry to report that our colleague, Lou Henkin, passed away this morning. Lou has been a towering presence here at the Law School since he joined the faculty in 1962. His intellectual and personal contributions were immense. An influential pioneer in the field of human rights law, Lou was an inspiration, an intellectual giant, a generous mentor and teacher, and a cherished friend. Our hearts go out to Alice and their sons, Joshua, David, and Daniel, and their grandchildren for this great loss.

The funeral for Lou will be at Riverside Memorial Chapel, 180 West 76th Street (at Amsterdam), on Sunday October 17 at 11:45am.

Chinese Currency Manipulation and the WTO

by Roger Alford

If passed, the House bill, “Currency Reform for Fair Trade Act” (H.R. 2378) has all the markings of a major trade battle before the WTO. At bottom, the law requires the United States administrative agencies to treat currency manipulation as a subsidy that would be subject to countervailing duties equal to the benefit to exporters conferred by the manipulation.

The International Economic Law and Policy blog has the best coverage of the issue. (See here, here, here, here, and here). Professors Robert Staiger and Alan Sykes have the most sophisticated analysis of the economic and trade implications of currency manipulation.

The critical legal questions are whether (1) currency manipulation constitutes a benefit; (2) the subsidy is contingent on export; and (3) the subsidy is specific to an industry or enterprise. The last two, in particular, will be difficult to establish.

Politicos are following the case closely, and most trade lawyers are betting that the bill will not pass in the Senate and/or will not be signed by President Obama.

I’m not so sure. The China currency crisis reminds me of President Clinton’s controversial decision to sign the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (“Helms-Burton”). If you will recall, that bill was passed in March of an election year with an eye on Florida voters. Of course, the EU immediately challenged the action before the WTO, and absent a U.S. invocation of the Article XXI security exception, it most assuredly would have won. In the meantime, in the 1996 presidential election Clinton won 35% of the Cuban-American vote in Florida, a 15-percentage point improvement over his 1992 showing. In January 1997, just two months after the 1996 presidential elections were over, Clinton waived the most onerous parts of Helms-Burton. Three months thereafter, in April 1997, the EU and the United States reached a settlement, with the EU’s WTO complaint lapsing in exchange for President Clinton’s commitment to amend Helms-Burton.

Thus, I would not put it past Congress or President Obama to pursue controversial trade legislation that enhances their political standing with disgruntled voters in an election year during a down economy. The bill passed in the House by an overwhelming margin (97 percent of House Democrats voted in favor) and Senators Schumer and Brown have vowed to push for passage in the Senate during the lame duck session beginning on November 15. As reported here, “The overwhelming vote in the House appears to make Senate passage likely, perhaps by a veto-proof majority.”

As for the merits of a WTO case, I seriously doubt that the United States could succeed if the only questions were about currency manipulation as an export subsidy. But it’s not just about subsidies. Article XV:4 of GATT 1947 provides that “Contracting parties shall not, by exchange action, frustrate the intent of the provisions of this Agreement.” As Staiger and Sykes argue, “[a] powerful argument can be made that any exchange action that frustrates these market access commitments would qualify as a potential violation under Article XV.” (p. 29). It’s a provision of the WTO that has never been adjudicated, and much like the security exception in the context of the Helms-Burton dispute, it is sufficiently ambiguous that it might dissuade China from aggressively pursuing a WTO case. Strategic ambiguity is something China may wish to maintain when it comes to the WTO-consistency of currency manipulation.

Watch for more saber rattling the rest of 2010 and a compromise solution between the United States and China in 2011.

On the Wittes/Heller Debate over Al-Aulaqi

by John C. Dehn

[John Dehn is an Assistant Professor in the Department of Law at the United States Military Academy. The views expressed in this post are his own and do not necessarily reflect those of the Department of Defense, U.S. Army, U.S. Military Academy, or any other department or agency of the U.S. government]

I agree with Kevin that not every wartime decision of our government is a judicially unreviewable political question. We can certainly debate whether the Supreme Court properly exercised jurisdiction in Hamdan, and whether the Court properly interpreted Common Article 3 of the Geneva Conventions of 1949 (my take on the latter is that it did not properly interpret the text, but effectively and properly stated customary international law). However, I do not believe that the courts determine the existence of an armed conflict or the identity of the enemy without reference to acts of Congress.

For these reasons, I believe the court must decide whether targeting al-Aulaqi is arguably within the scope of war-making authorized by the AUMF, and if so, whether the Constitution allows or requires judicial review of that determination under the circumstances. All of the legal issues Kevin mentions are ancillary to that primary question. Congress has, in effect, declared “war” on certain organizations (and even some “persons” if one reads the AUMF). The courts possess no power to review that decision, only to ensure its application consistent with any applicable domestic and international law to the extent possible, and only in cases over which the courts may properly exercise jurisdiction.

International law does not determine who may be designated an enemy by Congress. It is relevant only to determining what the executive has implied authority to do or not do when carrying out congressional war-making authorization, and then only if Congress has not spoken to the precise war measure at issue.

Congress has already authorized the use of the government’s war powers against certain groups and persons. The decision to do so is primarily vested in Congress by the Constitution according to Supreme Court case law (and may devolve to the President by congressional delegation, see the Prize Cases and others). While Congress cannot declare war on a U.S. citizen, it may authorize the use of war powers against state or non-state actors in which U.S. citizens are or may become members (see Prize Cases, Ex parte Milligan, etc.).

Congress placed no territorial limits on the AUMF, and — contrary to what Professor O’Connell often states — none is dictated by international humanitarian law such that the AUMF may be judicially limited, extraterritorially, to active war zones. Even if it somehow did, under the later-in-time rule, Congress may establish national policy in violation of international law. The Charming Betsy canon of statutory interpretation requires that the courts find Congress’s intent to do so is clear. If al-Aulaqi is within the scope of the AUMF, this requirement would appear to be satisfied. The AUMF should not be interpreted to apply or to be delimited to any specific location. There were no active war zones in which the U.S. was engaged when it was adopted. Those battlefields were created pursuant to its authority. Others may be created (even quite temporarily) if the object of those hostilities is within the scope of the AUMF.

The international law of neutrality and state responsibility is relevant to all hostilities conducted under the auspices of the AUMF. It protects only the legal interests of other nation-states, and only derivatively of their nationals. If Yemen has consented to U.S. military operations there, neutrality is not implicated. The Charming Betsy canon requires (and indeed, the Charming Betsy case itself required) the executive to respect the neutrality of other nations and their nationals without clear congressional authority (or probably ample justification under the law of nations) to violate it.

The most fundamental issues, then, become only whether al-Aulaqi’s conduct brings him within the scope of the AUMF and whether he may be targeted consistently with any relevant international laws regulating war (at least any not superseded by Congress). Kevin does not believe so under relevant international humanitarian law, and I certainly have my concerns. Contrary to what some D.C. Circuit judges think, Supreme Court case law is clear that the resort to war powers by Congress requires the application of relevant IHL by the courts. IHL delimits who or what may be targeted or subjected to other measures of war unless Congress has otherwise stated. In the day-to-day of combat, decisions on these matters are made by mid-to-low-level government agents, meaning soldiers, airmen, marines, seamen and their commanders, without prior judicial review.

The threshold question in this case is fundamentally the same as it was in Rasul and Boumediene. It is whether Congress has somehow authorized (Rasul) and the Constitution allows (meaning it does not involve a political question, there is standing, the case is ripe, etc.) — or whether the Constitution requires (Boumediene) under the circumstances of this case — judicial review of an executive war measure argued to be taken in furtherance of the AUMF. Like Boumediene, the answer to that question may turn on the very unique circumstances of this case. The same or similar factors relevant to the availability of habeas and articulated by the Court in Boumediene are probably going to be relevant to this Fifth Amendment due process question as well, assuming the case is otherwise justiciable.

By way of example, if a soldier were to encounter a U.S. citizen member of an enemy armed organized group on the battlefield, I doubt that due process demands much other than an accurate or even fairly arguable identification of that individual as either a member of that targetable group, or if a civilian, as one directly participating in the hostilities of an enemy. U.S. citizenship is probably unknown. Prior judicial review is virtually impossible and probably not constitutionally required. Post hoc judicial review is possible (perhaps in a criminal trial or Bivens case) but the measure of deference to be afforded such decisions is probably quite great. Al-Aulaqi is not this case.

I could go on, but this is enough to emphasize that the key to this whole discussion is what the AUMF allows, and what the Constitution allows or requires, in this particular case. Compliance with IHL is a secondary consideration that might somewhat inform the threshold question of the authority, propriety or necessity of judicial review, but it does not determine it. The primary issue concerns the scope of hostilities authorized by the AUMF.

For these reasons, in my opinion, Wittes is correct to assume the existence of armed conflict pursuant to the AUMF and to frame this as a targeting question. Kevin is correct to emphasize the importance of al-Aulaqi’s status under relevant international humanitarian law.

The ACLU/CCR Reply Brief in Al-Aulaqi (and My Reply to Wittes)

by Kevin Jon Heller

You can find the brief here.  I was going to write about the “political question” section, but Ben Wittes beat me to it.  Here is what he says (emphasis added):

Fifth, the groups’ arguments that the case does not present a political question are deeply radical and fascinating. For present purposes, consider only some of the main themes of the section. They begin by asserting that targeting decisions with respect to a U.S. national in Yemen are “no less justiciable that the question[s] of whether the executive branch could indefinitely detain an American citizen captured in Afghanistan” or “indefinitely detain non-citizens at Guantanamo Bay” or “charge and try suspects in ad-hoc military commissions.” In other words, the brief frontally and overtly attempts to do exactly what conservatives have warned would result from judicial intervention in detention matters: create a judicial supervisory role over at least some targeting matters. What’s more, the brief insists that the nature and scope of armed conflict overseas is itself a judicial matter. A subsection of the brief bears the heading, “The existence and scope of the armed conflict is not a political question” and argues that the court should evaluate government claims that an armed conflict exists based on the conflict’s intensity and the degree of organization of the parties.  If the courts ever adopt this vision of their role in overseas conflict, it would constitute a revolution in military affairs.

With respect to Wittes, this is an inaccurate description of the brief.  The brief does not attempt to “create a judicial supervisory role over at least some targeting matters.”  Targeting is a term of art; it describes the act of determining where, when, and how to use armed force against an enemy in the context of an armed conflict.  As such, the U.S. “targets” an alleged terrorist only if the laws of war govern the use of force against him — if, in other words, the alleged terrorist is participating in an actual armed conflict.  If there is no armed conflict, there is no targeting — there is simply the use of force incident to law-enforcement activity.  The ACLU/CCR brief is arguing that, as a matter of law, there is no armed conflict between the U.S. and the group of which Al-Aulaqi is a part, Al-Qaeda in the Arabian Peninsula (AQAP), so the use of lethal force against him does not qualify as “targeting.”  And it is arguing that the government’s legal determination that such an armed conflict exists is reviewable by the judiciary.  Neither claim, however contestable, is even remotely “radical”…

Chinese Political Dissident Liu Xiaobo Wins Nobel Peace Prize

by Roger Alford

Today’s announcement that Chinese political dissident Liu Xiaobo has won the Nobel Peace Prize is welcome news. The award is consistent with a longstanding tradition of the Nobel Peace Prize to honor political dissidents. In announcing the prize, the Nobel Committee stated that “The campaign to establish universal human rights also in China is being waged by many Chinese, both in China itself and abroad. Through the severe punishment meted out to him, Liu has become the foremost symbol of this wide-ranging struggle for human rights in China.”

The media is focusing on the fact that Liu is only the third recipient to receive the prize while in prison, the first two being German opposition journalist Carl von Ossietzky and, of course, Aung San Suu Kyi. But since 1960, there have been many other recipients honored for political dissent, including Martin Luther King, South Africans Albert Lutuli, Desmond Tutu, and Nelson Mandela, pro-democracy dissidents Kim Dae-jung, Carlos Belos, and Jose Ramos-Horta, and Communist dissidents Lech Walesa, Andrei Sakharov, and the Dalai Lama.

The Chinese government has responded to the announcement with outrage. “Liu Xiaobo is a criminal who has been sentenced by Chinese judicial departments for violating Chinese law,” the statement said. Awarding the peace prize to Liu “runs completely counter to the principle of the prize and is also a blasphemy to the peace prize.” The Chinese government also warned the Nobel Committee that giving the prize to Liu “would adversely affect relations between the two countries.”

The Chinese response is almost identical to Nazi Germany’s response to the Carl von Ossietzky prize. Ossietzky was editor-in-chief of the opposition newspaper Die Weltbuhne, which published numerous stories about the secret efforts of Germany to re-arm in violation of the Treaty of Versailles. Ossietsky was imprisoned for betraying military secrets. When news broke in 1935 that he had won the Nobel Peace Prize, Hitler exploded with fury, describing it as “an insult to the German people.” The German Government issued a declaration that “the award of the Nobel Prize to a notorious traitor is such a brazen challenge and insult to the New Germany that it will be followed by an appropriate unequivocal answer.” Hitler went so far as to forbid Germans from accepting Nobel Prizes and issued a decree establishing competing prizes for Germans who excelled in the arts and sciences. Hermann Goering announced the new German national prizes with rhetorical flourish: “When we see attempts to insult Germany before the world by awarding a peace prize to a traitor, to a person punished with penal servitude, then such action does not shame Germany but merely makes those ridiculous who are responsible for it.”

The Chinese response also is remarkably similar to the Soviet response when Andrei Sakharov won the prize. The Soviet official press, Tass, responded to the award of the 1975 peace prize to Sakharov by attacking the Nobel Committee: This award “only shows that the persons who awarded this prize were guided by interests other than the interests of peace.” They also attacked Sakharov, describing him as a modern-day Judas Iscariot. “It is difficult to say how [the prize money] corresponds at the official rate of exchange to the 30 pieces of silver that the ancient Judas received. The bourgeoisie has paid for services rendered, and the ‘high court’ of the West is delighted.”

As with other dissident Laureates, Liu’s voice will now command power as never before. Desmond Tutu, after he won the prize, stated that “no sooner had I got the Nobel Peace Prize than I became an instant oracle…. [Th]he prestigious prize possessed the remarkable powers of an Open Sesame…. Our case was given an imprimatur as a noble and just cause and the apartheid system stamped as unjust and evil.” If the past is any example, Liu’s prize will give him such prestige that he will be almost immune from Chinese government attack. Like other dissident Laureates, he will have much more freedom to speak without fear of reprisal, and everything he says will be taken with utter seriousness.

The prize could have broad repercussions. We could see the modern-day equivalent of what Daniel Thomas described as the “Helsinki Effect” in the Soviet Union, with human rights taking on added significance there following the signing of the Helsinki Accords. To borrow from Thomas, human rights matters today in China not “because the Communist regimes were immediately anxious to comply … [but rather] because individuals and NGOs … [will insist] that states must be accountable to their international obligations, and thereby entrapped … in a transnational process of political change structured by formal international norms.”

The Nobel Committee is adopting the same approach, using international and constitutional commitments to pressure the Communist regime to reform. As the Committee put it today, “China’s new status must entail increased responsibility. China is in breach of several international agreements to which it is a signatory, as well as of its own provisions concerning political rights. Article 35 of China’s constitution lays down that ‘Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.’ In practice, these freedoms have proved to be distinctly curtailed for China’s citizens.”

Washington University Law School Debate Over Drones and Targeted Killing

by Kenneth Anderson

Today at noon, the Whitney R. Harris World Law Institute at Washington University Law School is holding a debate on targeted killing using drone aircraft.  It features Notre Dame’s Mary Ellen O’Connell and yours truly, and moderated by Minnesota Public Radio’s Matt Sepic.  Mary Ellen and I each hold strong views on this topic, of course, and I am greatly looking forward to the discussion.   The event will be webcast, live, I believe, and then available archived at the website if anyone is interested.  My thanks to the folks at the Harris Institute, and Leila Sadat particularly, who invited us, and congratulations to the Institute on its 10th anniversary.  The Harris Institute could not have picked a more timely discussion for its anniversary debate, as a quick glance at the newspapers reveals.  The link to the Harris Institute event notice is here.

Egginton on Mario Vargas Llosa

by Kevin Jon Heller

At Foreign Policy, Bill Egginton, the chair of German and Romance Languages and Literatures at Johns Hopkins — and more importantly, my best friend — has a fascinating article on Mario Vargas Llosa, the Peruvian novelist who just won the Nobel Prize for Literature.  Here is a snippet:

[H]is latest book, El sueño del celta, which will be released on Nov. 3, is also fundamentally concerned with the plight of individuals and with the desire for self-determination. The book is based on the life of a historical figure, the Irish nationalist Roger Casement. As his Spanish-language publisher Alfaguara writes in the book’s promotional copy, “the author spent three years reconstructing the life of this defender of human rights, a British diplomat who ended up actively fighting in the cause for Irish nationalism.”

Vargas Llosa himself, however, notes something else about Casement that attracted his attention, namely, that “he led an adventurous and really novelesque life.” This last remark suggests one possible link between Vargas Llosa’s political interests and his creative motivation. In a lecture he delivered in Edinburgh in 1986, the author spoke of the power of fiction to intervene in human reality, a power he felt had even greater sway and potential in the Latin American context. Speaking of the program of censorship instituted by the Inquisition in the conquered territories and extended in the form of a prohibition on novels that lasted until the wars of independence, Vargas Llosa remarked that the censors “did not realize that the realm of fiction was larger and deeper than that of the novel. Nor could they imagine that the appetite for lies — that is, for escaping objective reality through illusions — was so powerful and rooted in the human spirit that, once the vehicle of the novel was not available to satisfy it, the thirst for fiction would infect — like a plague — all the other disciplines and genres in which the written word could flow.”

But if the culture of censorship lead to a present condition in which, as he said then, “we are still victims in Latin America of what we could call ‘the revenge of the novel,'” because “we still have great difficulty in our countries in differentiating between fiction and reality,” he also identifies in this condition a kind of saving grace, attributable to the writer’s art: “We novelists must be grateful to the Spanish Inquisition for having discovered, before any critic did, the inevitably subversive nature of fiction.

I prefer Jorge Luis Borges myself — he really should have won a Nobel Prize — but Vargas Llosa is indeed a wonderful writer.  Check out Bill’s article.

International Law Weekend 2010: Oct 21-23

by Peggy McGuinness

The American Branch of the International Law Association will be hosting its annual International Law Weekend in New York City, October 21-23.  The full program can be found here, and includes some great panels on a range of topics under the theme “International Law and Institutions: Advancing Justice, Security and Prosperity.”  (You might even see an OJ blogger or two!)  In addition to the scholarly discussion, the organizers have put together what looks to be a really terrific career program for students:

On Saturday, October 23rd, beginning at 2:00 pm, the American Branch will launch a half-day program of speakers, break-out sessions, and other events designed to help law students gather information about career paths in different areas of international law and to gauge the future demand for lawyers with expertise in different aspects of private and public international law. In addition to the American Branch, the following organizations are participating in this career program: the American Bar Association Section of International Law, the American Society of International Law, Debevoise & Plimpton LLP, EarthRights International, the Frederick K. Cox International Law Center at Case Western Reserve University, Freshfields Bruckhaus Deringer, Human Rights Watch, the International Law Students Association, Lawyers Committee on Nuclear Policy, Munger, Tolles & Olson LLP, New York Law School, the United Nations Office of Legal Affairs, Wayne State University Law School, and Willkie, Farr & Gallagher. For more information, click here.

You can register online here.

No More Non-Citizen Law Clerks?

by Peter Spiro

That appears to be the upshot of section 704 of Public Law 111-117, a doorstop appropriations measure enacted last December:

SEC. 704. Unless otherwise specified during the current fiscal year, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States; (2) is a person who is lawfully admitted for permanent residence and is seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B); (3) is a person who is admitted as a refugee under 8 U.S.C. 1157 or is granted asylum under 8 U.S.C. 1158 and has filed a declaration of intention to become a lawful permanent resident and then a citizen when eligible; or (4) is a person who owes allegiance to the United States.

So much for the practice under which citizens of select foreign countries (those with mutual defense arrangements) have been permitted to serve as judicial law clerks.

All may not be lost, though, for the fifth column.  The Administrative Office of the U.S. Courts has issued guidance advising judges that they can still put those noncitizens on payroll in light “confusion about [legislative] intent” and ACUS efforts to seek “clarifying legislation.”  (Existing employees are grandfathered.)  In the meantime, noncitizens who have clerkships lined up might want to apply for naturalization.  Although it’s somewhat opaque (see the text of 8 USC 1324b(a)(3)B)), it appears that the second exception allows the employment of such aliens where they have commenced the naturalization process within six months of becoming eligible to do apply.  It will be interesting to see whether this was just an oversight or whether Congress meant to shut the door on the noncitizen payroll, an entirely plausible possibility in these anti-immigrant times.

More on the Trade in Rare Earth Elements and National Security

by Chris Borgen

A while back I wrote a sort post on the violent political economy of rare earth elements, also known as REE’s. A recent Congressional Research Service report (.pdf is here) describes the central (and until recently under-reported) role of REE’s in the modern economy and national security infrastructure:

Some of the major end uses for rare earth elements include use in automotive catalytic converters, fluid cracking catalysts in petroleum refining, phosphors in color television and flat panel displays (cell phones, portable DVDs, and laptops), permanent magnets and rechargeable batteries for hybrid and electric vehicles, and generators for wind turbines, and numerous medical devices. There are important defense applications, such as jet fighter engines, missile guidance systems, antimissile defense, and space-based satellites and communication systems.

The problem is that most rare earth mining takes place in China and, as described in my previous post, the industry is dominated by criminal gangs. The CRS report notes that:

While more abundant than many other minerals, REE are not concentrated enough to make them easily exploitable economically. The United States was once self-reliant in domestically produced REEs, but over the past 15 years has become 100% reliant on imports, primarily from China, because of lower-cost operations.

Moreover, according to one tech industry website,

China has warned that its own industrial demands could compel it to stop exporting rare earths within the next five or 10 years.

Although CRS believes that global reserves are sufficient to meet future demands, the concern is the power that China may have in the short to medium term with its domination of the REE market. Today’s New York Times notes that China has started using REE embargoes in its diplomatic relations with Japan:

Late last month, amid a diplomatic spat with Tokyo, China started to block exports of certain rare earths to Japan.

The shipping ban was still in effect on Monday evening in Japan, an industry official said, though a trickle of shipments seemed to be seeping out as a result of uneven enforcement of the ban by customs officers at various ports. China has allowed exports of Chinese-made rare earth magnets and other rare earth products to Japan, but not semi-processed rare earth ores that would enable Japanese companies to make products.

The cutoff has caused hand-wringing at Japanese manufacturers, from giants like Toyota to tiny electronics makers, because the raw materials are crucial to products as diverse as hybrid electric cars, wind turbines and computer display screens.

Late last week, Japan’s trade minister, Akihiro Ohata, said he would ask the government to include a “rare earth strategy” in its supplementary budget for this year.

The main thrust of the article, though, is that Japanese companies have started recycling rare earths from used electronics. In addition to this there is the possibility of increasing domestic U.S. mining of rare earths; however, the start-up costs are daunting  and one independent consultant working with one of the U.S. mining companies “suggested that many U.S. companies have not jumped into the market because China’s state-owned mines keep rare earth prices artificially low,” making market-entry difficult. Hints of a possible WTO issue?

Another speculative possibility is the extraction of rare earths from the moon. This has its own set of problems, technical, legal, and strategic, similar to the issues discussed in a recent article by Richard Bilder.

How will the U.S., China, Japan, and other countries navigate this potential area of resource conflict? It will be interesting to see if any of the countries will attempt to multilateralize the issue or bring in institutional dispute resolution or whether the issue will remain one dealt with through a combination of bilateral deals and fresh investment (both public and private) in new mining ventures.

Juan Mendez Appointed UN Special Rapporteur on Torture

by Kenneth Anderson

Congratulations to my old friend (and currently WCL colleague) Juan Mendez on his appointment as UN special rapporteur on torture.  Professor Mendez has a long and distinguished record of service and achievement in the human rights field, including heading Americas Watch at Human Rights Watch for many years, a term as president of the Interamerican Commission on Human Rights, a professorship at Notre Dame law school, service as the UN special rapporteur on prevention of genocide, heading the International Center for Transitional Justice and, well, the list goes on and on.  But I want to point out that not only is Juan a visiting professor now at my school – he studied here many years ago as an LLM student, after he fled the generals’ regime in Argentina.  (Juan and I spent some exciting times together in Panama at the time of the US invasion in 1990; we did a couple of missions there just after the invasion took place, and wrote the HRW reports on it as well as an article for the Journal of Terrorism and Political Violence.)

How Bird Dung Affected American Imperialism and U.S. Views of International Law

by Chris Borgen

The Summer 2010 issue of Cabinet has an interview with Professor Christina Duffy Burnett of Columbia about the legal status of islands.  When we’ve written about this issue here on Opinio Juris, we thought of issues relating to how islands can affect claims to underwater resources, or the question of Guantanamo as a legal black hole, or the issue of climate change and sinking islands. But I don’t think we ever discussed the connection between bird poop and imperial history. So I guess it’s about time.

Burnett’s interview has this near the beginning:

This is a very general question, but let’s take a stab at it anyway: do islands matter in the law?

The best way to get at this may be to start with something quite specific. In the summer of 2003, I stumbled on a 969-page typescript treatise which is kept in the library of the US State Department. Flipping through this great leather-bound brick of onion-skin pages, I gradually absorbed that the whole massive volume had been put together in the 1930s by a lawyer working for the US Government who’d been given a killer assignment. Apparently somebody had walked over to the desk of this poor functionary, scribbling away in some basement office, and said something along the lines of: “You know, we have a bunch of islands in the Pacific and the Caribbean—little islands. How about you figure out what the deal is with all these places, legally speaking.” I was holding the result: The Sovereignty of Islands Claimed Under the Guano Act and of the Northwest Hawaiian Islands, Midway, and Wake. And it was splendid to behold: nearly a thousand pages of intricate legal arguments and historical documentation on the strange history of the United States’ nearly invisible, but surprisingly vast, insular empire.

The Guano Act? What is guano? It’s bat excrement, right?

Yes. And bird doo, too. In this case, it refers to the bird version.

So there was a US law about bird droppings that somehow proves important for thinking about the law of sovereignty?

Indeed. The Guano Islands Act of 1856 arguably laid the legal groundwork for American imperialism.

Can you explain how?

Basically what happened was that in the first half of the nineteenth century, Europeans and Latin Americans figure out that the phosphate-rich deposits of seabird droppings that had accumulated on many small Pacific islands make spectacular fertilizer. The stuff is like magic, and farmers everywhere are suddenly clamoring to get their hands on some. There’s a boom, the price skyrockets, the Peruvians more or less control the market, and supplies are short. Everybody is looking for new sources, there’s tons of fake guano trading hands—it’s chaos. Enter the US farm lobby. Farmers in the United States start pressuring Congress to pass some sort of legislation that will improve domestic access to this vital excrement. The result is the Guano Islands Act, legislation that authorized the United States to take control of a guano island if a citizen discovered it and undertook certain actions to take possession of it.

The interview goes on from there with discussions of U.S. practice regarding the territorial acquisition of islands, the legal neologisms that were used to provide a bit of cover for policymakers, how the jurisdictional ambiguities that were devised have echoes today in the Guantanamo litigation, and the lasting importance of the “Insular Cases” decided by the U.S. Supreme Court.

Very interesting and surprisingly relevant for a wide variety of issues ranging from national security policy to the relationship of domestic courts to foreign policy, to current debates over sovereignty and self-determination. I had not been familiar Burnett’s scholarship but now I am looking forward to reading it.

Hat tip: Things Magazine

Thanks to Amos Guiora and our Guest Bloggers

by Chris Borgen

On behalf of all of us at Opinio Juris, I want to thank Amos Guiora for taking time to blog with us this past week about his new book, Freedom from Religion. We would also like to thank Paul Cliteur, John Lentz, and Mark Movsesian for guest blogging with us as well and providing such an interesting and informative discussion on religious freedom and national security.

And, of course,  thanks to all of you who took time to read the posts (and comment as well!).

Apologizing to Guatemala — and Perjury at Nuremberg

by Kevin Jon Heller

Obama apologized on Friday for experiments conducted in Guatemala between 1946 and 1948 in which American scientists deliberately infected prison inmates, prostitutes, and mental patients with syphilis without their consent.  The apology is a striking reminder that the Nazis were not the only ones that conducted horrific, non-consensual medical experiments on human subjects in the first half of the 20th century (although, to be sure, the Nazi experiments were vastly more brutal than any conducted by American scientists).  Indeed, America’s own sordid history of medical experimentation led to the worst example of perjured testimony during the Nuremberg Military Tribunals.  From Chapter Four of my book:

The misconduct involved Andrew Ivy, the head of the University of Illinois at Chicago’s Medical College, who was the prosecution’s star expert witness at trial. Prior to his testimony, he was present during the cross-examination of another prosecution witness, Walter Leibrandt, a professor of medical history at the University of Erlangen, who had testified that experimentation on humans was unethical even if the subjects consented and the experiments had medical value. On cross, Leibrandt admitted that the standard he endorsed condemned not only the defendants’ experiments, but also American malaria experiments conducted on inmates at Stateville Prison in Illinois during the war. Concerned by Leibrandt’s testimony, Ivy decided to defend the Stateville experiments by testifying that they had been overseen and approved by a public ethics committee. No such committee had existed, however, much less one that approved the experiments.

Undaunted, Ivy returned to the United States and convinced the Governor of Illinois, Dwight Green, to form an ad hoc committee – the Green Committee – to advise him on the ethics of medical experimentation on human subjects. Ivy did not tell the Governor that he intended to testify when he returned to Nuremberg, the committee never met, and the committee’s “report” was authored by Ivy himself. Ivy nevertheless not only claimed at the Medical trial that the Green Committee had approved the Stateville experiments, he responded to a defense question about whether “the formation of the committee had anything to do with the fact that this trial is going on” by testifying that “there is no connection between the action of this committee and this trial.” It is unlikely that the prosecution was aware of the true facts – but it is beyond question that Ivy blatantly perjured himself.

In an interesting move, the Medical tribunal permitted two defendants in the case, Ruff and Rose, to personally cross-examine Ivy.  Rose’s questioning was extremely effective — so effective, in fact, that the judges suddenly decided to limit him to 30 minutes of cross-examination!

That’s just a snippet from the book.  If you want to learn more, you’ll just have to buy it…

Drones as Force Protection in AfPak, and the Dream of Drones as Strategic Air Power

by Kenneth Anderson

Adam Entous, Julan E. Barnes, and Siobhan Gorman have an outstanding piece of national security reporting on the front page of the weekend Wall Street Journal, “CIA Escalates Campaign in Pakistan: Pentagon Diverts Drones to Afghanistan to Bolster Campaign Next Door.” This is a fine piece of journalism that integrates reporting from AfPak and Washington to present findings that are new to the public, and more than merely a deliberate leak to a leading reporter from a government official or a magazine story rather than hard news.  My congrats to what is emerging as a leading national security affairs reporting team at the news pages of the Journal.  (Update: Here is Greg Miller’s account in the Washington Post, Sunday, front page.)

(Note: I’ve made some lengthy revisions and additions to this post.  Also, I’m not so sure that the contents of this post count as international law, and I’m not sure that our international law readership especially cares about Anderson’s views on strategy, but I decided I should cross-post it from Volokh.  The link, if any, to law is that although we are used to analyzing things like drone attacks from the standpoint of the law of targeted killing and other legal categories, at least once in a while it might help to step back and consider the strategic categories first, and then work our way to the law.)

September 2010 saw another sharp uptick in the number of drone attack missions in Pakistan.  The question behind the raw numbers is what strategic purpose they aim at.  One strategic mission of drone missions in Pakistan is counterterrorism aimed at Al Qaeda leadership.  This uptick in September 2010 points to a quite distinct function – rather than counterterrorism as its own mission, the purpose is, as article says in a telling quote, “force protection” for the US counterinsurgency troops in Afghanistan.  The articles details an increasing impatience of the US military and political leadership with Pakistan’s government, and an increased willingness both to strike overtly using NATO military assets quite openly across the border, as happened in the last week, as well as to use CIA Predator attacks in the border regions.

(Added: Moreover, the “force protection” use of drones described in these articles is distinct from stillanother strategic use of drones, one recounted in earlier articles in the last two weeks, talking about their use to disrupt the planning of attacks against European targets by groups such as the Haqqanis, regional groups thought to be seeking to use people with European or American passports to strike from Pakistan against Western targets; Mumbai shifted further west, so to speak.  As Woodward quotes someone in his new book, “Mumbai changed everything.”  It is because of these overlapping but also separate and shifting roles for drones that it seems to me worthwhile to analytically distinguish them, as I do below.)

But the CIA attacks are now on safe havens for Taliban who are part of the fight in Afghanistan but taking refuge in Pakistan.  Rather than simply a raiding strategy against terrorist leadership in Pakistan as an exercise in counterterrorism, it is now a raiding strategy against the safe havens as part of the Afghanistan counterinsurgency surge.  Hence the desire of the Pentagon to divert drone aircraft – which are in demand in Afghanistan for a variety of missions – from Afghanistan to attacks in Pakistan on bases that are seen as links for attacks on US forces.

This is an important shift, or addition, to the role of drones in Pakistan.  (Added:  And of course it has always been part of the use of drones; I’ve hardened the analytic categories, so to speak, to make them clearer, but really it is a question not of something new, but of scaling up.)  The article makes note of something else, too – that drone aircraft can’t be produced fast enough to meet demand for them in AfPak.  The article has excellent graphics, including a chart on numbers of attacks on a month by month basis, and maps.

As it happens, this article is timely for me, as I am completing this weekend the draft of an essay for the Hoover Institution on a roster of strategic uses of drones.  In bullet point form, here is an analytic breakdown of categories, as I see them, of drone use.  (I’m not providing more than the bullet title, even though the result is overly-cryptic; the full essay will be available once finished and edited at Hoover’s website or SSRN.  Also, if anyone is interested in my earlier published writing on drone warfare and the law, at SSRN’s free downloads, see this book chapter, this lengthy piece in theWeekly Standard, and two pieces of Congressional testimony, here and here.) Continue Reading…

Coded language

by John Lentz

I am interested in the issue of “coded language.”   As a protestant minister who preaches from sacred texts often using theological language concerning, for example, “sin” “redemption” “judgement,” etc., am I to interpret that this theological language is “coded?”  It is, of course, in a way – for it is language that is full of meaning(s) – hence, meaningful.  Professor Marcus Borg, author of a great little book The Heart of Christianity writes that the best way to interpret biblical language is metaphorically – rich in multiple meaning; it saves us from narrow literalism. 

A good example is Islam is “jihad” – inner jihad, outer jihad, spiritual jihad or military jihad?  Christianity has the same issue with “Kingdom of God.” 

But my sense is that the esteemed professors are using “coded language” in another way – perhaps I am wrong.  I doubt that preachers are using words like “sin” when they really mean “go kill the bastard.”    It seems to me that when the imam, rabbi or pastor wants to share with his congregation that, for example, homosexuality is an abomination, he comes right out and says it.  So it isn’t “coded” at all – it is as clear as it can be.  That is the thing about fundamentalist preachers – there is no irony or “hidden” meanings because there is a word means ONE thing.  The issue is not what word is used but what kind of reaction is caused and what kind of action is anticipated.  There are many so-called conservative Christians who would argue that the Bible clearly states that homosexuality is an abomination – however, there would be no necessary cause and effect to violence in a direct way.  Many churches would use this interpretation for outreach and conversion because they “love the sinner, but hate the sin.” 

Furthermore, I am also not sure there is such a clear distinction between religious language and secular language – there is nothing “magic” about the language.   What is at stake is how one interprets the language of the sacred text – literally, metaphorically, or whatever.    J. Lentz

More on Incitement

by Mark Movsesian

Thanks to Professors Guiora and Cliteur, and my colleague and friend Chris Borgen, for their helpful responses to my posts. I find that I can agree with some important aspects of Prof. Cliteur’s most recent response. For example, he advocates a theoretical approach to the problem of religious terrorism – “a scholarly understanding of its nature” rather than the “judicial reactions” to it. Such an approach could be very fruitful. I agree with him that religious convictions can incite violence. As Weber – and, more recently, Huntington –recognized, religions can have profound, and profoundly different, social consequences. Some religious ideologies encourage violence and others do not; it would be very interesting to study religious ideologies empirically and see why, precisely, some rather than others pose a threat to liberal democracy. With respect, though, that is not the goal Prof. Guiora has set for himself in Freedom From Religion. Prof. Guiora does focus on the proper judicial reaction to terrorism and treats “religion” as a general category. I remain unconvinced that the religious/non-religious distinction is very helpful in that context. In any case, as I said in my last post, I don’t think it would be constitutionally permissible to treat extreme religious expression less favorably than extreme non-religious expression.

A word about Professor Guiora’s response to the thought experiment I proposed in my last post. I believe he begs the question when he responds by pointing out that the extremists who incited the murder of Yitzhak Rabin were religious, not ultra-nationalist. I understand that. My question is whether we can’t imagine a situation in which non-religious extremists incite followers to murder. Such a situation seems entirely possible to me. For example, in 2007, the Turkish-Armenian journalist Hrant Dink was murdered by an ultra-nationalist who was offended by Dink’s references to the Armenian Genocide. Dink had been prosecuted under a law criminalizing statements “insulting Turkishness”; this prosecution made him a target of ultra-nationalist groups who regularly issued death threats against him. Does it make a difference that the extremists who incited Dink’s murder were non-religious?

Let me close by saying thanks again to the folks at Opinio Juris for inviting me to this symposium. I have enjoyed this interchange and learned a lot.

Freedom from Religion—Rights and National Security

by Amos Guiora

In response to the previous comments, I very much appreciate the justified concern raised regarding my identification of the danger posed by religious extremists. Prof Movsesian is, of course, correct that non-religious terrorism (the groups he identifies) is also a contemporary reality. However, where we disagree is that I believe the greatest (not only) danger is posed by religious extremists and my proposal addresses that threat. That said, Prof Movsesian is also correct that solely identifying religious extremist speech raises (obviously) important constitutional issues; in that vein, including non-religious extremist speech in the ‘posing a danger’ category is certainly viable.

 However, as i previously commented, the present danger is largely posed by religious extremist speech in Houses of Worship. In that vein (in response to Rev Lentz’s comment) I propose law enforcement engage in monitoring and surveilling of a Houses of Worship if information is received that the faith leader  is inciting his/her particular congregation to violence; if justified the faith leader can be prosecuted based on the available evidence.

 The deep reluctance of law enforcement/prosecutors in the US, Israel, UK and Netherlands (with whom I met while researching the book) is the clearest manifestation of what I previously referred to as the granting of immunity to religious extremists actors. In that vein, I suggest that religious extremist speech that has the ability—in the name of the divine as interpreted by the faith leader—must be defined as ‘unprotected speech’ based on the possibility that an individual in that specific audience might act.

Because many religious extermists speak in ‘code’ –what I believe Prof Borgen refers to as ‘metamorphical speech’—it is incumbent upon law enforcement to develop a sophisticated understanding both of religion and religous speech. Otherwise, it will be extremely difficult to truly understand the message intended by the speaker. What is essential to my proposal is recognizing the extraordinary power of extermist faith leaders in all three monotheistic faiths and the willingness of indiviudals to act on their words.

In the Israeli context, the impact of the ‘pulsa danura’ (see previous comment) issued against Rabin could have been minimized had concrete measures been taken against the Rabbi’s who were openly inciting against Rabin. It is important to note that the speakers were religious extremist faith leaders (not far right secular Israelis as Prof Movsesian suggests in his hypothetical) who clearly had the ability to incite (as they did) members of their community. Similarily, when a fatwa was issued by an imam in the Netherlands against an Islamic politician (for suggesting Islam must come to grips with homosexuality) the threat to that individual was direct and real; the literally unlimited freedom of speech extended to the imam directly threatened the politician (with whom I met the day the fatwa was issued) because of the very real possibility that someone in the imam’s congregation will act in accordance with the ‘religious dictate’. That same principle holds true for child brides in the Fundamental Latter Day Saints Church; underage girls are directly endangered by faith leaders who literally order their marriage to adult males predicated on religious belief (in that vein, a faith leader was convicted of being an accomplice to a rape though the conviction was recently overturned).

It is in response to these examples that I propose acting proactively to minimize the harm caused both to larger society (external) and members of a particular community (internal) by religious extremist actors. As Prof Cliteur correctly suggests religious extremists are intimately connected to divine commands; it is, as Prof Cliteur comments (in his response to Prof Movsesian) that distinction with respect to motivation and the power of the divine as interpreted by extremist faith leaders  that distinguishes religious extremist terrorism.

How to Write a Book in 674 Easy Steps (Part One)

by Kevin Jon Heller

So, I finished my book on the Nuremberg Military Tribunals last Friday.

Okay, that’s a lie.  Or at least an exaggeration.  I still have about 2,500 footnotes to fix (literally).  And a few thousand precious, perfectly crafted words to cut.  But I have a very polished first draft of the text.  I even printed it out to see how big it would look.  (Answer: big.)

I now find myself somewhat mired in PBD — post-book depression.  The only thing more difficult than writing a book is not writing one.  I have a number of projects stacked up, but I still feel rather lost when I wake up in the morning and don’t have another chapter, another section, another paragraph of the book to think about.  I can already tell that I’ll start writing a second book sooner rather than later.

While I have the time, I thought I might write a series of posts reflecting on how I wrote my first book — and discussing how young scholars can write their first one.  My advice will probably not be particularly helpful for our non-American academic readers, most of whom will have written doctoral dissertations.  But I know how lost I was when I set out to write the book, never having written anything longer than two 30,000 word law-review articles.  (My book is about 165,000 words.)  So I hope our American readers will get something out of my reflections.  (And needless to say, I encourage readers to chime in with their thoughts, as well.)

Should I Write a Book?

That, of course, is the threshold question.  I started thinking about my book my second year of teaching, while I was still at the University of Georgia, and began to work seriously on it my third year, when I was at Auckland.  I was confident that I had a great project — more on that in the next section — but I was not sure whether I should try writing a book so early in my career.  (I’m now in my sixth year of teaching.)  I asked a number of colleagues, at Georgia and elsewhere, and was consistently “encouraged” not to write a book until I had tenure.  (The opposite of the humanities and social sciences, where a book is basically a prerequisite for tenure.)  My colleagues all thought that disappearing from publishing for two or three years that early in my career, while I wrote the book, was a bad idea.

I think for many young scholars, that’s good advice.  It takes a long time to write a book, and it’s almost impossible to publish other work while you’re doing so.  (Unless you are Eric Posner or Adrian Vermuele, of course, and you can write two different articles at the same time, one with your left hand and one with your right.)  So you will indeed disappear for a while, which can be a problem when you are trying to get yourself noticed in your field.

That said, the advice did not completely apply to me…