Anna Dolidze on WikiLeaks and International Law

by Kevin Jon Heller

The following is a guest post by Anna Dolidze, a JSD candidate at Cornell Law School. In 2007-08, Dolidze was
 an Albert Podell Global Scholar at Risk at New York University Law
 School and a Visiting Fellow at Columbia University’s Harriman Institute.  She has worked for a number of international organizations, including for Save the Children, Russian Justice Initiative, and Human Rights Watch.  Our thanks to her for the contribution.

Does International Law Matter?  Ask WikiLeaks

Legal commentaries on WikiLeaks’ publication of thousands of otherwise confidential documents can be grouped in three main discourses. First is a cluster of conversations about the legality or illegality of some of the actions depicted in reports. Second is a discourse about possible legal responses by various governments against the organizations and individuals implicated in the released of documents. The third discourse comprises debates around the possible criminal prosecution of WikiLeaks’ founder. In all of these discourses, commentators are looking at leaked cable reports through the law, applying or weighing legal concepts to be applied.

Nevertheless, there is a need for a fourth, different kind of a discussion. Information released by WikiLeaks can be extremely useful for those interested in learning about the law itself, especially about the perception, respect, or fear of law by those in power.

The first discourse comprises a series of conversations about the legality of actions depicted in the documents and about the possible legal reaction to illegalities committed by government officials. Illegalities reportedly committed are both of domestic and of international concern. For example, a cable report from an American Consulate in China alleged that a Chinese mining company paid thousands of dollars to the Chinese premier to secure access to copper deposits in North Korea. This incident alleges bribery and corruption in Chinese government, both of which, if proven, are criminally prosecutable actions.  In a different vein, a set of cable reports confirms that the Obama Administration has been secretly operating cruise missile attacks on terrorist suspects in Yemen.  Reportedly, these attacks have resulted in the deaths of dozens of civilians for which the Yemeni government routinely takes responsibility. Extrajudicial killings operated by the US government have already been subject to criticism by the legal and human rights communities for violating norms of international law. But the suspicions of carelessness in targeting and the unnecessary deaths of civilians might insight further charges of war crimes.

The second discourse is about the government response to the release of documents and  the possible legal actions against the organization and individuals connected to the disclosure of classified information. There have been calls to prosecute the leaders of WikiLeaks, among others, on the basis of the United States Espionage Act. On the extreme of these lie public statements calling for WikiLeaks to be classified as a terrorist organization.

The third discourse is about personal criminal charges against the founder of WikiLeaks, Julian Assange. The Red Notice released by Interpol informs that Assange is wanted by the Swedish authorities to question him in connection with a number of sexual offences. Many countries view Interpol Red Notice as a valid request for provisional arrest, especially if they are linked to the requesting country by an extradition treaty. But this question of individual criminal responsibility of Assange is different from the question of responsibility of those related to the release of classified documents.

Nevertheless, the importance of the recently released records goes far beyond these debates.  As the century old debate between the international lawyers and political scientists on the importance of international law in international relations continues, materials published by WikiLeaks have the potential to meaningfully contribute to this debate. Cable reports released by WikiLeaks present hands-on empirical evidence as to the weight that government officials give to international law. Records of conversations between government leaders on planned or committed government actions around the globe are useful in assessing to what extent concerns about violating international law played a role in deliberations. Consider, for example, widely circulated cable report of leaders of Saudi Arabia urging the United States to attack Iran to put an end to its nuclear program. Although there is no right under international law to use military force against another country for the possession of weapons, the cable report does not mention that the apparent illegality of such an action was raised. The Foreign Minster of Saudi Arabia and one of the Princes did mention, however, that tougher sanctions against Iran could be implemented without UN’s approval, demonstrating by the same token a degree of awareness of international law and legal procedure.

Furthermore, there is some more interesting preliminary quantitative evidence on the importance of law in the discourse of officials. Cable analysis prepared by Guardian shows that as a subject matter in correspondence between officials the word “law” is mentioned in 2,473 documents and occupies 92nd place, in contrast to the word “rights” which is mentioned more frequently and occupies 21st place with 6,862 documents mentioning it. It should also be noted that words like “lawsuit,” “lawyers,” and “lawless” are given separate classification and rankings. This fact allows for certain but very limited conclusions. Could one argue based on these figures that the notion of “Human Rights” is more important for government officials than the concept of “Law”? What will be the consequences of this argument for those who favor divorcing international human rights law from old style public international law? It is too early to draw any conclusions. Nevertheless, WikiLeaks data can help future research draw very interesting insights.

Moreover, in the data looking at the frequency of words in content, “law” comes 230th as it is mentioned in 69,773 documents. In contrast the word “war” takes the 731st place, with 29,422 documents mentioning it. This data shows that although not being one of the most frequent usages in correspondence, “law” continues to occupy an important role in government conversations. Do governments care more about law, legality or legitimacy than about any other concept less frequently mentioned? More in-depth study of this data could lead to very interesting answers to these questions.

This is certainly just a brief overview of the material that will take months to study and explore. It is important to discern, however, that while legal commentators have looked differently at the recent leak of documents, they have all looked at the leak through the lens of the law. Commentaries can be roughly grouped in three discourses based on the way that legal concepts have been applied to information contained in WikiLeaks documents and to WikiLeaks itself. However, it is high time to look at the released materials in a fourth, different way. Cable reports can provide unique insights into the meaning and importance of law to those in power.

http://opiniojuris.org/2010/12/04/anna-dolidze-on-wikileaks-and-international-law/

4 Responses

  1. Interesting post, but perhaps you’re overlooking the most obvious point, and that is, the very indeterminacy of international law, which makes diplomats not only not “care” about the law, but to use legal tools as just other tools of statecraft.  Your “empirical” analysis of off track — doesn’t matter how many times the words ‘law’ are used.  What’s important is a qualitative analysis of the instrumentalist use of law by the world’s diplomats, not only Americans.

  2. Bill,

    You are correct about the need for qualitative analysis, but that will take a great deal of time.  I think the Guardian and Anna are just giving initial impressions of the documents from a quantitative perspective in the early days following the release.

    Roger

  3. The wikileaks is the ideal ‘state practice’ formating the customary law.

  4. on the main page in the first paragraph it says “wikipedia’s” founder.  when you get to the comments page that changes to “WikiLeaks’ founder.”  That change should be made on the main page as well.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.