Archive for
February, 2011

Could the Prosecutor Decide Not To Investigate the Libyan Situation?

by Kevin Jon Heller

Moreno-Ocampo said the following today:

The chief prosecutor of the International Criminal Court says information of attacks on civilians by forces loyal to Libyan leader Moammar Gadhafi suggests they could constitute a crime against humanity.

Luis Moreno Ocampo says he has assembled a team to collect more information and has been in contact with Libyan officials and army officers to understand the command structure in Libya.

He says he will decide “within days” whether to open an investigation of those responsible for civilian deaths.

It may come as a surprise to some readers, but nothing in the Rome Statute obliges the Office of the Prosecutor to act on a Security Council referral.  Indeed, Article 53 indicates that the Prosecutor has the discretion not to investigate a referred situation:

1.  The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

    (a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
    (b)     The case is or would be admissible under article 17; and

    (c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

2.  If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:

    (a)     There is not a sufficient legal or factual basis to seek a warrant or summons under article 58;
    (b)     The case is inadmissible under article 17; or
    (c)     A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime;

the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.

3.  (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

Two things are worth noting about Article 53.  First, although it gives the Prosecutor the right not to open an investigation into a referred situations, the Pre-Trial Chamber has the right to ask him to reconsider his decision.  That’s Article 53(3)(a).  Second, and more importantly, if the Prosecutor’s decision not to investigate a referred situation is based solely on the “interests of justice” — such as that an investigation would undermine the prospects for peace — the Pre-Trial Chamber can order the Prosecutor to open an investigation.  The Prosecutor has unreviewable discretion with regard to referred situations only if he believes that there is no reason to believe that a crime within the Court’s jurisdiction has been committed in the situation (a very low standard) or that the situation does not satisfy the admissibility requirements of Article 17, which deals with complementarity and gravity.  That’s Article 53(3)(b).

I think it is very unlikely that Moreno-Ocampo will decline to investigate the Libyan situation.  But it’s interesting to note that he can — and that, if he based a declination on complementarity or gravity grounds, there is nothing the Pre-Trial Chamber could do about it.

Welcome to the Blogosphere, Justice in Conflict!

by Kevin Jon Heller

The blog is a solo venture run by Mark Kersten, a PhD student in international relations at the LSE.  I would explain the subject-matter of the blog, but I think the name speaks for itself.  I will say that the posts have been excellent so far; readers interested in international criminal justice should definitely check out, inter alia, this post on the Libyan referral and this post on international criminal justice in the Arab world.

Welcome, Justice in Conflict!

Can the Security Council Define the Limits of a “Situation”?

by Kevin Jon Heller

Milan notes in a comment to my previous post that he is “troubled that the Security Council seems not to be referring ‘situations’ as much as certain crimes committed by certain actors.”  He is referring to paragraphs 4 and 6 of the SC Resolution:

4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

[snip]

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

I think this is a very important point.  I am not sure why the Security Council included paragraph 6; my guess is that the US wanted to reaffirm its traditional position that the ICC has no jurisdiction over nationals of states that have not joined the Court, even if those nationals commit a crime on the territory of a State Party.  Whatever the reason, there is a strong argument that paragraph 6 is inconsistent with the Rome Statute and should not be recognized by the Court.  Here, in relevant part, is Article 13:

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(b)    A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.

Article 13 is not the picture of clarity, but it seems to suggest that once the Security Council has referred a situation in which at least one crime within the Court’s jurisdiction has been committed, the Court may prosecute any crime in that situation over which it has jurisdiction — even if it was committed by a national of a non-State Party.  That is certainly the understanding of how “situations” work generally, and there is no indication in Article 13 (or anywhere else in the Rome Statute) that Security Council referrals function any differently than referrals by a State Party (Article 14) or proprio motu investigations by the Prosecutor (Article 15).

Nor should they.  Referrals are limited to situations for a reason: because they prevent the referring party (whether Security Council, State Party, or Prosecutor) from using the referral as a weapon against its political opponents.  The Prosecutor must be able to prosecute any crime committed by any party to a conflict for the Court to be seen as legitimate.  Paragraph 6 of the Security Council resolution referring the situation in Libya, if accepted by the ICC, would undermine that basic principle.

It will be interesting to see how the Court reacts to paragraph 6.  In my view, it should hold that paragraph 6 is illegitimate, affirm the Court’s right to prosecute any crime committed in Libya after February 15 regardless of the nationality of the perpetrator, and remind the Security Council that, if it wants to defer the prosecution of a national of a non-State Party, it is entitled to do so under Article 16 of the Rome Statute.

NOTE: As Marko points out, paragraph 6 would only protect a national of a non-State Party who committed crimes as part of a Security Council-authorized peacekeeping mission; it would not cover a national of a non-State Party who was involved in a crime committed in the Libyan situation generally.  (An American mercenary, say, who participated in government attacks on civilians.)

NOTE 2: Dov Jacobs has a very interesting post at his Spreading the Jam blog questioning “the legality of the referral mechanism” as a whole.  Instead of trying to summarize his argument, I’ll simply encourage readers to go read it.

Security Council Refers the Situation in Libya to the ICC

by Kevin Jon Heller

The referral is part of a larger set of sanctions against Libya.  From the UN News Centre:

The Security Council today voted unanimously to impose sanctions against the Libyan authorities, slapping the country with an arms embargo and freezing the assets of its leaders, while referring the ongoing violent repression of civilian demonstrators to the International Criminal Court (ICC).

In its Resolution 1970, the Council obligated all United Nations Member States to “freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities” listed in resolution.

The Council imposed a travel ban on President Muammar Al-Qadhafi and other senior figures in his administration, including some members of his family and other relatives.

“All Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related material of all types, including weapons and ammunition,” according to the arms embargo clause of the resolution.

The arms embargo also prohibits Libya from exporting all arms and related materiel, and obligates UN Member States to prevent the procurement of such items from Libya by their nationals.

The Council directed the Libyan authorities to cooperate fully with the ICC in its investigations of the situation in Libya since 15 February 2011, while recognizing that the country is not party to the Rome Statute that created the Court.

In their resolution, members of the Council said that they considered that the “widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity.”

The Council demanded an immediate end to the violence and called for steps to fulfil “the legitimate demands of the population.” It called upon the Libyan authorities to ensure the safety of all foreign nationals and their assets, and to facilitate the departure of those wishing to leave the country

This is the second Security Council referral, but the first — as Bill Schabas notes — that the United States has openly supported; the U.S. abstained from the vote to refer the situation in Darfur.

It will be interesting to see what critics of the ICC say about the referral.  Conservatives in the U.S. like to complain that ICC investigations undermine peace negotiations and provide dictators with an incentive not to relinquish power; our own Julian has argued precisely that with regard to Darfur.  Will they take the same position regarding Libya?  And what about the African and Arab states that have so assiduously criticized the ICC for targeting Africa and for supposedly preventing local justice mechanisms from addressing the crimes committed in Kenya and Darfur?  Will they criticize the Libya investigation on the same grounds?

As readers know, I’m troubled by the extent to which the ICC has focused on Africa.  But this is a Security Council resolution, and all three African countries on the Security Council — Gabon, Nigeria, and South Africa — voted in favor of the referral.  (South Africa’s vote is particularly interesting, given that it has supported deferring the ICC’s investigation in Kenya, much to the consternation of Max du Plessis and Christopher Gevers).  More importantly, though, the referral seems a wholly appropriate response to the unconscionable violence perpetrated by Gaddafi and his henchmen against Libya’s civilian population.  (In case anyone’s wondering, bombing civilians is indeed a crime against humanity.)  I’d like nothing more than to see Gaddafi end up in the dock at the ICC.

UPDATE: The full text of the resolution is available here.

Judge Refuses to Attend Taylor Lawyer’s Disciplinary Hearing

by Kevin Jon Heller

Here’s something you don’t see every day:

A disciplinary hearing for the chief defence lawyer for former Liberian President Charles Taylor was adjourned indefinitely Friday after just seven minutes because one judge refused to attend.

The hearing by the Special Court for Sierra Leone was to weigh possible punishment for British lawyer Courtenay Griffiths after he stormed out of Taylor’s war crimes trial two weeks ago to protest the court’s rejection of his written summary, which was filed late.

Griffiths appeared Friday, represented by Peter Robinson, the American legal adviser to former Bosnian Serb President Radovan Karadzic.

But Ugandan judge Julia Sebutinde did not attend.

Presiding Judge Teresa Doherty read a brief statement in which Sebutinde said she decided to stay away because she disagreed with the court’s move to discipline Griffiths.

Doherty adjourned the hearing indefinitely, saying all three judges needed to be present.

I’m not sure it’s particularly ethical for Judge Sebutinde to boycott a hearing with which she disagrees — but it’s difficult to understand why the tribunal demanded the hearing in the first place, given her opposition.  Indeed, the tribunal should have simply accepted the final brief; rejecting it for being less than three weeks later after a nearly four-year trial makes no sense.  (According to the defence, the brief was late because it was waiting for the tribunal to rule on a number of outstanding motions.)  Admonishing defence counsel would have been more than enough.

Libya: Did Citizen Evacuations Stand in the Way of Better Policy?

by Peter Spiro

It now seems to be the conventional wisdom (hard to shake once in place) that the U.S. has been slow off the mark on Libya.  That may have consequences for U.S. standing in the region.  As long-time Middle East hand Aaron David Miller put it in a tweet this morning: “the arab spring isn’t mainly our story; but president obama is now seen by arab democrats and autocrats alike as a weak friend and foe.”

The Administration got a defense out (on background) that it held off on more decisive action — such as imposing the sanctions that were finally put in place last night — pending the evacuation from Libya of U.S. citizens, U.S. diplomats in particular.  As always, safety of U.S. citizens is said to be the highest priority in such unstable situations.  Apparently, the U.S. embassy compound in Tripoli is poorly secured, with no Marine guards in place to defend.  (Vulnerability of nationals in Libya is also now being floated as a reason why other countries are not yet on board with UN sanctions.)

That’s a tough place to be.  Obviously you don’t want to end up in a hostage situation (the politics of that would be horrific for Obama in addition to all the other reasons — the Carter comparison perfected).  But does it have to be the case that U.S. policy itself is held hostage?

Perhaps the lesson here is to have contingency plans in place to pull U.S. officials out of such situations quickly (as of today, think Sanaa, Libreville, Yaounde, among others).  That would have the downside of leaving other U.S. citizens without exit assistance, at least not in place.  But many of them are taken care of by their corporate employers.  Many others will be dual nationals, and only nominally American, and should be able to fend for themselves as well as locals.  (State’s P.J. Crowley seemed implicitly to make this point in an early briefing on the question.)  In any case the safety of the few has compromised the global effectiveness of the whole.

Conceptualizing Accountability in International Law and Institutions

by Kenneth Anderson

I had the privilege of moderating a panel today at the Yale International Law Journal annual confab of junior (meaning untenured?) scholars, a panel on accountability of international organizations.  International organizations in this setting means the United Nations, but also a vast array of organizations beyond what we ordinarily think of as the UN (the General Assembly, Security Council, Secretariat, etc.), including many organs and sub-organizations of the UN, and many others, such as the World Bank or the World Trade Organization, that might be in some formal sense part of institutions the UN system but which in fact have their own mechanisms of governance and funding.  The three panelists were Kristin Boon (Seton Hall), David Gartner (Arizona), and Stadler Trengrove (UN Office of Legal Counsel), and their remarks were uniformly excellent, and I commend their work to you.

I

I am a skeptic of global governance on grounds of being both unachievable on the terms and to the ends that its proponents seek, and undesirable as well, so I am perhaps a surprising choice to moderate a panel that takes more or less as an assumption both of those things.  I am finishing the copy edits of a book to appear in May or June from Hoover Press, Living with the UN, which includes such phrases as “The General Assembly, which vascillates between waste and wickedness …”  You catch my drift.  My basic point in that book, however, is the message to American conservatives that the UN is not going anywhere and they need to work that into their calculations, principally by turning the vacuous slogan of the Obama administration of  “engagement” with anything that looks “multilateral” into a genuine policy.  Principally that means treating different parts of the UN differently, and engaging with them, or not, or sometimes deeply opposing and obstructing them, each according to its function and effects. Continue Reading…

ICCPR and IHL

by Kenneth Anderson

Bobby Chesney and Human Rights First’s Daphne Eviatar debate the extent to which the ICCPR applies in Afghanistan and, in important matters, in regimes of IHL.  The back and forth at Lawfare is well worth reading.

Let me be distressingly candid.  This is an area in which I find it difficult to get “inside” the legal debate because I find it irresistibly a matter of public choice theory, which is to say, it is simply a political move by political actors to get a new set of standards and decision-makers into something that started out with another set of standards and decision-makers. To be clear, I do think there are important legal arguments and I don’t mean this statement of reductionism to mean that it is a better way of seeing the issue, but I do find it hard to be seized of the legal arguments as legal arguments.  I don’t think the two regimes fit together meaningfully, but from the standpoint of public choice theory, the contradictions and ambiguities are a feature, not a bug, because those features automatically create new opportunities to draw in new decision-makers.  (I realize this must sound cynical, but … public choice theory?  Cynical? But I repeat myself.)

(By the way, I am attending today the Yale International Law Journal and Yale Forum on International Law symposium featuring folks from the Junior International Law Scholars Association.  Topic is non-state actors and international law.  Very exciting panels; I am grateful to be included as a moderator of the panel on Accountability for International Organizations in Global Governance, and we are about to begin a panel on Kiobel and the Alien Tort Statute.  Goodness, these folks are all very smart and frighteningly articulate.)

Will Anyone Publish Saif Gaddafi’s Book on Civil Society?

by Peter Spiro

We already knew that Muammar scion Saif Gaddafi had written a dissertation at LSE entitled “The Role of Civil Society in the Democratisation of Global Governance Institutions: From Soft Power to Collective Decision Making?” But I didn’t know that it was slated to be published by Oxford University Press.  This at HuffPo from Ben Barber (who, ahem, knows something about the Gaddafis):

If the father is deposed, there is little chance the son can go back to being a reformer and human rights advocate. And Oxford University Press, which contracted to publish the two extraordinary books Saif wrote on civil society and democratic reform in the developing world, will presumably now cancel publication.

Barber is probably correct in predicting that Oxford will back down from publication.  But is that necessarily the right decision?  The junior Gaddafi’s study sounds pretty useful to anyone interested in nonstate actors.  It’s not every academic study that has The Monitor Group on board crunching the data!  Although Oxford could no longer count on a large bulk sale, it would surely sell better than average for its list. I suppose the study’s credibility is undermined by the recent posture of the its author. Perhaps the bigger problem is that Seif may not have a lot of time to do copy edits (on the other hand, maybe he will).

UPDATE:  Mother Jones has linked to the full text of the dissertation here.  Leaving aside the dubious provenance, from a quick scan it looks pretty interesting.  But would you cite it?

FURTHER UPDATE:  Apparently the dissertation includes plagiarized passages.

The “Libya and Humanitarian Intervention” Meme

by Chris Borgen

“Libya”and “humanitarian intervention” are being used more and more often in the same sentence.  Over at Ratio Juris, Patrick O’Donnell has a round-up of  blog posts and opinion pieces concerning humanitarian intervention and the situation in Libya. Patrick’s post is especially helpful for anyone trying to get up to speed on this issue as it includes a bibliography on humanitarian intervention, more generally.

Moreover, Anne-Marie Slaughter, recent head of Policy Planning at the State Department and now back at Princeton, has tweeted a call for intervention in Libya. Here’s the opening of a post about it from The Cable:

Former State Department Policy Planning Chief Anne-Marie Slaughter used her brand-new Twitter account on Thursday to call for international intervention on behalf of the Libyan people.

“The international community cannot stand by and watch the massacre of Libyan protesters. In Rwanda we watched. In Kosovo we acted,” Slaughter tweeted, in one of her first ever entries. She confirmed to The Cable that the Twitter account is genuine.

Stay tuned…

Event on Miranda and Terrorist Suspects

by Deborah Pearlstein

In case any one finds themselves in/around Philadelphia on March 5, this event may be of interest:

Supreme Court litigators Carter G. Phillips and Kannon Shanmugam will argue a case based on hypothetical federal legislation that exempts police from issuing Miranda warnings to individuals suspected of terrorism. A jury of nine distinguished judges will decide if such legislation can withstand constitutional scrutiny. This event is presented by the National Constitution Center as part of the 2011 Peter Jennings Project for Journalists and the Constitution. The moot court will take place on Saturday, March 5, 2011, beginning at 1:00 p.m., in the Ceremonial Courtroom at The United States District Court for the Eastern District of Pennsylvania at 601 Market Street. Admission is FREE, but seating is limited. Reservations are required and can be made by calling 215.409.6700 or online at www.constitutioncenter.org.

The panel of judges includes: Michael Chertoff, Senior of Counsel, Covington & Burling LLP, former Judge, United States Court of Appeals for the Third Circuit, and former Secretary of Homeland Security (2005-2009); Michael A. Fitts, Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Law School; Brett Kavanaugh, Judge, United States Court of Appeals for the District of Columbia Circuit; Judith S. Kaye, Of Counsel, Skadden, Arps, Slate, Meagher & Flom LLP and former Chief Judge, New York State Court of Appeals; Timothy Lewis, Of Counsel at Schnader, Harrison, Segal & Lewis and former Judge, United States Court of Appeals for the Third Circuit; Theodore McKee, Chief Judge, United States Court of Appeals for the Third Circuit; Marjorie O. Rendell, Judge, United States Court of Appeals for the Third Circuit; Albert M. Rosenblatt, Of Counsel at McCabe & Mack LLP and former Associate Judge, State of New York Court of Appeals; Dolores K. Sloviter, Judge, United States Court Appeals for Third Circuit.

Orin Kerr on the Strange Fourth Amendment Case of Ashcroft v. Al-Kidd

by Kenneth Anderson

Orin Kerr is the Fourth Amendment scholar that I definitely am not, so I read with interest his Volokh post this morning on Ashcroft v. Al-Kidd, which the Supreme Court will be hearing next week.  He says it is a strange case for a couple of reasons.  The two basic issues in the case are:

First, whether using the material witness statue for national security reasons violates the Fourth Amendment; and second, whether Ashcroft has immunity against liability.

Al-Kidd is a strange case for two reasons. First, the high stakes of the case are largely separate from the ultimate outcome. The Ninth Circuit’s ruling that Ashcroft was not entitled to qualified immunity is pretty clearly wrong. As Al-Kidd’s brief concedes, there was no precedent that covered the question at the time of the detention in this case. As a result, the Court will almost certainly reverse, probably 9–0, on the immunity issue. But that turns out to be only a small part of the case. The parties really care about the Fourth Amendment issue in the case: Both DOJ (counsel for Ashcroft) and Al-Kidd want a ruling on the underlying Fourth Amendment issue no matter how the Court rules on qualified immunity. As a result, the parties are focused on the merits of the Fourth Amendment claim even though it’s highly likely to be irrelevant to the outcome of the litigation.

The second strange part of Al-Kidd is that DOJ is using this case to get a ruling on its use of the material witness statute for national security reasons without actually making any national security-related Fourth Amendment arguments. This may sound puzzling at first, so let me explain. Right after 9/11, in the debate over the Patriot Act, DOJ tried to get a statute passed on the legal rules governing national security detentions. The statutory proposal proved controversial and was never passed. In the absence of an explicit statute, DOJ relied instead on the material witness statute, a statute designed to ensure the presence of witnesses in criminal cases, to obtain warrants to detain citizens for national security reasons. In the Al-Kidd case, DOJ wants a ruling on whether it can use the material witness statute in this way. If the Court gives DOJ a thumbs up, DOJ doesn’t have to go back to Congress and can just use the material witness statute in the future.

Misrepresenting Al-Haq’s Position on Palestinian Rocket Attacks

by Kevin Jon Heller

David Bernstein and NGO Monitor have worked themselves into a lather about Human Rights Watch’s decision to appoint Shawan Jabarin, the head of Al-Haq, a leading Palestinian human-rights group, to its Mideast Advisory Board.  In support of their ire, they cite decisions of the Israeli Supreme Court that have concluded that Jabarin is also an official in the Popular Front for the Liberation of Palestine, a terrorist organization.

Debating the merits of Jabarin’s appointment is pointless, given that the Israeli Supreme Court decisions are based — as HRW has pointed out — on secret evidence that Jabarin has never been able to see, much less challenge.  (Illustrating his profound commitment to due process and the rule of law, Bernstein asks rhetorically, “[s]ince when is ‘secret’ a synonym for ‘baseless’?”)  What is beyond debate, however, is that Bernstein and NGO Monitor’s attacks on Al-Haq grossly distort the group’s record.  Here is the relevant paragraph of Bernstein’s post:

[NGO Monitor’s] Hertzberg retorts: “I have been personally monitoring Al Haq [Jabarin’s NGO] and Jabarin for nearly 5 years. I have never seen any evidence that either has condemned suicide bombings or rocket attacks.” I (Bernstein) checked Al Haq’s website, searching for, among other things, “rocket” and could find no criticism of Palestinian rocket attacks, suicide bombings, or other attacks on civilians.

That’s curious.  I entered the following search into Google: al haq +”rocket attacks”.  The first link is to a legal brief that Al-Haq published on 7 January 2009 entitled “Legal Aspects of Israel’s Attacks on the Gaza Strip During Operation ‘Cast Lead’.”  Though certainly devoting most of its attention to Israel’s actions — as we would expect from a Palestinian human-rights group — the brief not only criticizes Palestinian rocket attacks, it even acknowledges Israel’s “right and duty” to use proportionate military force to respond to them (my emphasis):

4.2   Al-Haq acknowledges that rocket attacks by Palestinian armed groups, including Hamas, against civilian population centres within Israel are in violation of international humanitarian law. However, while Israel has the right and duty to protect its civilian population from such attacks, any response to Palestinian rocket attacks must respect the fundamental international humanitarian law principles of military necessity, proportionality and distinction. The conduct of hostilities during “Operation Cast Lead” can under no circumstances be considered to be in accordance with these principles.

That brief, not surprisingly, is also available on the Al-Haq website — just type “legal aspects” into the search engine; it’s the only result that comes up.

Bernstein and Herzberg also seem to have somehow missed this press release, published by Al-Haq on its website on 4 August 2010, concerning the Palestinian Independent Committee of Enquiry into the Goldstone Report:

The Committee’s investigations found evidence that the following violations have been committed by the P.A.: (i) arbitrary detention and torture by security forces, including the practice of subjecting civilians to the military court system, (ii) the restrictions placed on the work of NGOs and the freedom of the press, (iii) violations of the right to peaceful assembly, (iv) the dismissal of P.A. employees on the basis of their political orientation. The Committee also held that the de facto Gaza government had perpetrated unlawful killings, torture and arbitrary detention. The Committee was not able to investigate the factual circumstances related to the launch of rockets from the Gaza Strip into Israel due to impeded access to relevant information. However, it condemned and provided a comprehensive analysis of the legal implications of the illegal practice.

The Committee’s findings on the violations of international law were entirely consistent with Al Haq’s documentation and repeated calls to halt and investigate violations committed by both the P.A. and the de facto Gaza government.

It took me a grand total of five minutes to find these two Al-Haq documents, both of which directly contradict Bernstein’s and NGO Monitor’s claims.  Remember that the next time you are tempted to take their attacks on HRW (or any other progressive NGO) seriously.

American’s Panel Discussion on Guantanamo

by Deborah Pearlstein

Cross-posted at Balkinization

It felt like a lively discussion Friday at the panel hosted by American University scholar Dan Marcus on “Guantanamo Detainees – What Next?” (Many thanks to Ken for plugging it earlier in the week. I take it the session will at some point be available among webcasts on the law school website.) Jack Goldsmith gave a keynote address to a very full house, and then Bobby Chesney (UTexas), Steve Vladeck (American) and I had a chance to respond and interact. It felt a little like old home week with folks like Gene Fidell, Marty Lederman, Geremy Kamens (Hamdi’s defense counsel) and Ken Troccoli (Moussaoui’s defense counsel) in the audience. Good to see everyone, and thanks to all for an engaging conversation.

For those of you who’ve been following this for a while, I’m not sure we broke any major new ground, but a few points may be worth mentioning. Jack Goldsmith is no longer arguing in favor of a statutory fix to the Guantanamo problem in the form of a clearer AUMF-type authorization. As he rightly notes, the D.C. courts have now in key respects answered questions of what habeas hearings look like procedurally, and even who may be detained. I hardly agree with the courts’ answers in all these respects, but I wholeheartedly agree that congressional involvement at this point to try to “clarify” the law in those habeas cases would only set back the litigation clock another 8 years. We were also quite in agreement about many of the deficits of the military commissions. And there was vigorous, bipartisan consensus on the panel about Congress’ foolhardiness – either as a matter of constitutional power or as disastrous policy or both – in trying to prevent the criminal prosecution of any of the Guantanamo detainees under any circumstances.

On the subject of Congress’ attempts to prohibit the transfer of Gitmo detainees to the United States for trial, a number of people in and outside government have floated the idea of creating D.Gtmo – bringing Article III judges to Guantanamo to hold federal criminal trials there. The question was raised again Friday. (Feel free to out yourselves in comments, I just didn’t want to do it for you without asking.) The notion is that detainees might waive jury trial (so avoid the deeply problematic question of how to get impartial civilian jurors to Gitmo) in exchange for an actual prosecution of some kind. And there is (Steve Vladeck notes) at least some, albeit equivocal precedent for the idea of creating a federal district of sorts outside the territorial United States. It’s a creative suggestion, and in principle I don’t much care where Article III trials are held as long as they involve Article III judges and Article III process. But this proposal, like everything with Gitmo, comes with its own set of problems. First and probably most problematic, one would still need congressional authorization. Perhaps the politics of trials at Gitmo are different from the politics of trials in NYC. Hope springs eternal. Then there must be some question of venue, which as Padilla reminded us, may actually matter from time to time. And there is also the dilemma of detainee incentives. Detainees have done quite well for themselves overall in reaching plea agreements under the military commission system, achieving rather minor sentences compared to the equivalent defendants facing federal courts. (Only one of the ironic features of Congress’ preference for commissions over courts.) Defense counsels’ relative success in this regard hardly makes the outcomes legitimate. Among other things, commission defendants may be pleading “guilty” to offenses that don’t actually exist as war crimes under international law. But if they can get a lesser ‘sentence’ in commission bargaining than in criminal plea bargaining, why would any defense attorney recommend that her client waive jury trial to get access to the potentially more punitive federal courts?

To my ear, the single area of most apparent disagreement was on the question of the need for some additional, military detention power going forward. That is, setting aside the thorny dilemma of how to resolve the unique mess at Guantanamo Bay, aren’t we losing something as a matter of policy, or creating incentives (to kill rather than capture) if we don’t find some source of authority more robust and enduring than Congress’ 2001 Authorization for the Use of Military Force to enable the ongoing detention of international terrorists? A fair and important question. I’ve written about this a lot before e.g. here and here and at the panel today, so I won’t rehearse my arguments again. For what it’s worth, I argued Friday I don’t think we are losing much.

Welcome to the Blogosphere, War and Law!

by Kevin Jon Heller

Max du Plessis and Christopher Gevers, ICC experts who teach at the University of KwaZulu-Natal in South Africa, have launched a new blog, War and Law.  The blog focuses on international criminal justice from an African perspective, making it a must-read for anyone interested in international criminal law.  Recent posts discuss Kenya’s attempts to amend Article 16 of the Rome Statute, the Pre-Trial Chamber’s admonishment of Moreno-Ocampo for announcing the names of the Kenyan Six before summonses were issued, and what happens now that South Sudan has voted for independence.

Check it out!

Cybersecurity Conference at Fordham Law

by Duncan Hollis

I’m off to Tokyo for a week, but before I go, I wanted to flag a really interesting looking upcoming conference at Fordham Law School.  It’s entitled, Cyber Attacks: International Cybersecurity in the 21st Century and will take place next Friday, February 25, 2011.  The program is free subject to registration (see here).  More details after the jump.

The Rule of Law as a Condition of Development?

by Kenneth Anderson

A proposition at the center of much international development work in the past decade or more has been the importance of institutions – whether one talks about “good governance” or the “rule of law” or other terms referring to institutions of governance in a society that permit stability across time.  The claim has always seemed to engage the happy coincidence – rather than tradeoff – between morality and efficiency.  A society increases its wealth by having available to it institutions of good governance, starting with lowered levels of corruption, greater public accountability of institutions, and perhaps running all the way over to accountability through specifically democratic institutions.

One problem, of course, is that China seems to defy this model, or at least a democratic version of it.  Undemocratic, authoritarian, corrupt, and yet somehow maintaining sufficient coherency to achieve economic growth of a breathtaking kind.  It is a model of growth and, more importantly perhaps, legitimacy of an internal kind that has enormous appeal many other places in the world where regime leaders have no particular desire to be democratically accountable or to promote the rule of law, either.  The ability to point to an authoritarian model of growth that is not based merely on resource extraction is enticing to many as a new model of internal growth and legitimacy – and one of the many effects is to increase China’s appeal as a leader among nations in the world as an alternative to the US on that very basis.

It is also quite true that the story of China’s success is still quite new.  Americans in particular are prone to ignore the weaknesses in the Chinese social economy, including its demographics and the difficulties of industrial policy.  It is a bit premature to count the outcomes of the Chinese explosion in growth as though it were history a century old and we could look to assess it as though it were the first or second world wars.  Nonetheless, China’s economic story of the past two decades or so raises important questions as to the role of the rule of law and institutions in economic growth.

So I’m pleased to say that I will be chairing a panel tomorrow, Friday, at UVA on East Asia and the rule of law in economic growth, at the annual symposium of the JB Moore Society, the international law society at the law school.  I know very little about East Asia, but I know a fair amount about development, and the panelists – I’m merely moderating – are all experts.  The panelists are Nicholas Kissas of US AID, John Ohnesorge at University of Wisconsin Law School, and Katherine Southwick of the ABA’s Rule of Law Initiative.

(This is the 60th anniversary of the JB Moore Society at UVA, and the overall program is on the rule of law.  It has a great lineup for the other two panels as well – ASIL’s Elizabeth Andersen, Freedom House’s Lisa Davis, Wash U’s Brian Tamanaha, UVA’s Dick Howard, USIP’s Collete Rausch, the JAG School’s John Reese, UVA’s Thomas Nachbar, and UVA’s John Setear.)

Muhammed Pleads Guilty to “Conspiracy” and “Material Support”

by Kevin Jon Heller

Yes, after nearly nine years of detention in Guantanamo, Noor Uthan Muhammed has pleaded guilty to two non-existent war crimes.  As the ACLU notes in its post on the plea, although the court reporter faithfully translated each time he said “yes” to whether he understood what he was doing, the reporter did not translate the only full sentence Muhammed uttered: “Enough, enough already…Let’s get it over with.”

Quite a victory for the military commissions.  Still waiting on that decision in al-Bahlul

Another Dangerous Lawsuit — This One Involving a Former U.S. President

by Kevin Jon Heller

According to the Jerusalem Post, five purchasers of Jimmy Carter’s new book Palestine: Peace Not Apartheid have filed a $5 million lawsuit in federal court in New York against Carter and Simon & Schuster, the book’s publisher.  The lawsuit alleges that the book violates New York consumer-protection laws by claiming to be a work of non-fiction (my emphasis):

The five plaintiffs in the suit, readers of the book, want their lawsuit, which seeks compensatory and punitive damages, to be deemed a class action, meaning that the plaintiffs would be seen to represent a much larger group – that is, everyone who purchased Carter’s $27 book.

The plaintiffs are Americans, with two of the five holding dual American-Israeli citizenship.

The suit alleges that the five plaintiffs in the suit who purchased Carter’s book, as well as others, assumed they were buying an accurate record of historic events relating to Israel and the Palestinians.

By claiming to be a Middle East expert, the suit claims, Carter and, by extension, his publisher, intentionally presented inaccurate information that was highly critical of Israel and therefore violated a New York law that makes it illegal to “engage in deceptive acts in the course of conducting business.”

According to a press release sent out by plaintiffs’ attorneys David Schoen and Nitsana Darshan-Leitner, the suit is “the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual.”

The complaint notes that former Carter aides and colleagues contacted Simon & Schuster with concerns about inaccuracies in the book, but that the allegations were not investigated further.

Schoen, in an e-mail to The Jerusalem Post, noted that there is precedent in New York for a class-action suit against writer and publisher “for falsely marketing as true and accurate a book that is neither.”

Similar suits, Schoen said, have been filed in New York against James Frey, the much reviled author of the notentirely- accurate memoir A Million Little Pieces. Those suits ended in settlements.

“Ours is a much more serious subject I believe, because the book intentionally misleads and misrepresents about actual historic events and much of the public debate going on today about Israel is based on what people believe actually has transpired in past discussions, etc.,” Schoen wrote in his e-mail.

This lawsuit is no less dangerous than the criminal-libel lawsuit against Joseph Weiler.  I am personally uncomfortable with branding Israel an apartheid state, no matter how much I disagree with its treatment of Palestinians.  But it is quite simply absurd to claim that Carter’s book ceases to be non-fiction simply because it makes a claim that Israel’s right-wing defenders consider to be untrue. Perhaps Carter is overstating the comparison; perhaps he is even grossly overstating it. That does not make his book fiction.  After all, Carter is a fomer President of the United States, with literally decades of experience in the Middle East.  And, needless to say, the plaintiffs and lawyers in the lawsuit have offered no evidence whatsoever that Carter intentionally published false information, if in fact some of his recollections in the book are inaccurate.  (See here for an interview with Carter about some of the book’s alleged inaccuracies.)

I would hope that both the left and the right could agree that using consumer-protection laws to sue authors and publishers who publish books with controversial theses is a very bad idea.  Indeed, in a world full of Glenn Becks and Pat Buchanans, it is revealing that this is the first lawsuit of its kind (a point of pride, scarily enough, for the plaintiffs’ lawyers). But, of course, this is a book about Israel — and this lawsuit is simply a new front in the never-ending war against anyone who has the temerity to criticize Israel’s treatment of the Palestinians.  The goal of the lawsuit isn’t to force Simon & Schuster to pay damages for publishing Carter’s book; its goal is to bully Carter and other would-be critics of Israel into not writing books like Palestine: Peace Not Apartheid in the first place.

You want to talk about lawfare?  This is it in its purest form.

Hat-tip: Bianca Dillon.

Guantanamo Detainees, What Next?

by Kenneth Anderson

My home institution, Washington College of Law, American University, will be putting on an important lunchtime program on Friday, February 18,12-2 pm, on the vexed question of what happens next for the Guantanamo detainees. I am committed to another program that day, so I won’t be attending, but this program has a stellar lineup of commenters. Jack Goldsmith will deliver the keynote address and the commenters are Robert Chesney, Deborah Pearlstein, and Steve Vladeck; Dan Marcus will moderate. My guess is that the Q&A will be outstanding as well, as knowledgeable people from DC organizations and the various government agencies have told me they plan to attend. The program is below the fold, including information on signing up and CLE credit.

Continue Reading…

ICC Pre-Trial Chamber Criticizes Prosecutor

by Kevin Jon Heller

Even when Moreno-Ocampo wins, he loses.  Pre-Trial Chamber II recently rejected a request by Mohammed Hussein Ali, one of the six Kenyans for whom the OTP has sought summonses, to submit “observations” on the investigation  That was an easy call; nothing in the Rome Statute permits a suspect to participate in the investigative process so early.  The Pre-Trial Chamber nevertheless made it clear that it was very unhappy with Moreno-Ocampo’s decision to release the name of the six Kenyans before it had approved the summons request.  Here are the relevant paragraphs:

21. Lastly, the Applicant argues that he has suffered negative publicity due to the Prosecutor’s decision to publicly name the persons for whom he had requested the issuance of summonses to appear. The Applicant therefore contends that, given this circumstance, he has the right to make observations on the Prosecutor’s application under article 58 of the Statute.

22. The Chamber is cognizant of the concerns of the Applicant with respect to the prejudice suffered due to the public disclosure of his name made by the Prosecutor. However, the Chamber is not of the view that such publicity caused could ground a construction of the proceedings of article 58 of the Statute in adversarial terms, contrary to the legal instruments of the Court. While it is not the Chamber’s role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor’s course of action in the present case, as it has unduly exposed the Applicant to prejudicial publicity before a determination of the Chamber pursuant to article 58 of the Statute has even been made.

The language is relatively mild, but it needs to be read against the backdrop of the withering criticism Moreno-Ocampo has received (see, for example, Antonio Cassese here) for publicly revealing the arrest warrant for al-Bashir instead of keeping it sealed until al-Bashir traveled somewhere he could be arrested.  I am generally supportive of the ICC’s investigation of the Kenyan situation, but Moreno-Ocampo clearly should have waited to release the six names until the Pre-Trial Chamber granted the summons request.  After all, the Article 58 standard for issuing a summons is extremely low, requiring only “reasonable grounds to believe that the person committed the crime alleged.”  It is thus difficult to avoid the conclusion that naming the suspects was a purely political move on Moreno-Ocampo’s part.

In related news, the ICC has convened a search committee for Moreno-Ocampo’s successor.  His term expires in June, 2012.  Any nominations?

UPDATE: James Gathii (Albany) has a similar reaction here.  James is running a blog dedicated to the ICC and Kenya; interested readers should add it to their RSS feeds!

Plaintiffs’ Lawyer Pablo Fajardo Discusses Chevron Ecuador Judgment

by Roger Alford

As I discussed yesterday, an Ecuador Court has issued an $8.6 billion judgment against Chevron. I just got off a press conference call with plaintiff’s chief lawyer in Ecuador, Pablo Fajardo. He stated that the plaintiffs will seek enforcement of the Lago Agrio judgment throughout the world as soon as the Ecuador appeals process is complete. (At least two levels of appeal are anticipated). No specific countries were mentioned as preferred venues to enforce the judgment, although he seemed to believe that the judgment might still be enforceable in the United States.

He stated that Judge Kaplan does not have jurisdiction over the non-American lawyers or plaintiffs, and therefore he felt no obligation to comply with his order. He admits that his American co-counsel will be prevented from assisting in the enforcement of the judgment as a result of Judge Kapalan’s order, but suggested that there are plenty of other lawyers or third-party funders who will facilitate enforcement and recognition of the judgment. He also stressed that Judge Kaplan’s order is now on appeal, and therefore it is not yet binding.

As for the BIT arbitral tribunal’s injunction ordering Ecuador to prevent recognition and enforcement of the judgment at home and abroad, he stated that the private plaintiffs are not parties to that arbitration and that the Ecuador courts are constitutionally protected from any such attempts at interference by the Ecuador government. When I asked about the prospect of the tribunal ordering Ecuador to pay Chevron for damages it incurs in the recognition and enforcement of the Lago Agrio judgment, he seemed unconcerned about the possibility. He viewed the entire BIT arbitration as an illegitimate attempt by Chevron to undermine the Ecuador litigation.

Dehn and Heller on the Targeted Killing of Anwar Al-Aulaqi

by Kevin Jon Heller

Pennumbra, the on-line companion to the University of Pennsylvania Law Review, is hosting the debate.  John’s opening statement and my reply — which is something of a misnomer, because the reply doesn’t directly address John’s arguments — are currently available.  Both focus on Judge Bates’ opinion dismissing the ACLU/CCR lawsuit; I argue that, contrary to the Judge’s claim, his opinion makes it impossible for a US citizen to ever challenge the legality of his or her targeted killing.  John’s closing statement will be up next Monday, and my closing statement — which does reply to John’s arguments — will be available the week after that.

Readers will recognize some aspects of my argument from previous blog posts, but my Pennumbra contribution is longer and more detailed.  You can find the debate here.  My thanks to the University of Pennsylvania Law Review for the invite!

Ecuador Court Fines Chevron $8.6 Billion

by Roger Alford

Today an Ecuador court fined Chevron $8.6 billion for environmental damage. According to the Wall Street Journal, $5.4 billion of that is to restore polluted soil, $1.4 billion to create a health system for the community, $800 million to treat individuals injured by the pollution, $600 million to restore polluted waters, $200 million to restore native species, $150 million to transport water, and $100 million to create a community cultural reconstruction program. The judgment in Spanish is available here. (English translation forthcoming)

Chevron responded to the judgment with the following statement:

The Ecuadorian court’s judgment is illegitimate and unenforceable. It is the product of fraud and is contrary to the legitimate scientific evidence. Chevron will appeal this decision in Ecuador and intends to see that justice prevails. United States and international tribunals already have taken steps to bar enforcement of the Ecuadorian ruling. Chevron does not believe that today’s judgment is enforceable in any court that observes the rule of law. Chevron intends to see that the perpetrators of this fraud are held accountable for their misconduct.

Amazon Watch responded with its own statement:

Today’s case is historic and unprecedented. It is the first time Indigenous people have sued a multinational corporation in the country where the crime was committed and won. Today’s historic ruling against Chevron is a testament to the strength of the Ecuadorian people who have spent 18 years bringing Chevron to justice while suffering the effects of the company’s extensive oil contamination.

To give one perspective, Ecuador’s GDP is $42 billion, so the award exceeds 20% of Ecuador’s total annual GDP. The total amount awarded by the United Nations Compensation Commission against Iraq for the environmental damage to Kuwait and other neighboring countries resulting from the 1991 Persian Gulf war was $5.3 billion. Exxon paid just over $4.3 billion for the damage caused by Exxon Valdez.

The next step for Chevron is to appeal the judgment in Ecuador and then challenge enforcement abroad. The plaintiffs have been ordered by a U.S. federal court to cease further litigation of the case and have been enjoined from benefiting from recognition or enforcement of any judgment. Ecuador has been ordered by an BIT tribunal to “take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron].” Given the orders of the United States federal court and the arbitral tribunal, the plaintiffs will have an extraordinarily difficult time executing judgment. If they do, I would strongly suspect that the federal court would hold the plaintiffs in contempt of court and the arbitral tribunal would hold Ecuador liable for any damage Chevron suffers in paying on the judgment.

Farewell to Opinio Juris (At Least for a Little While)

by Julian Ku

For the next five months, I will be a Fulbright Distinguished Lecturer in Law at East China University of Political Science and Law in Shanghai. For a variety of reasons related to my status as a Fulbright Grantee as well as being a blogger living within the range of Chinese internet censors, I will take a sabbatical from blogging here at Opinio Juris for the time being. I prefer not to entangle this blog with the Great Chinese Firewall, if at all possible. During this time, therefore, I will be blogging at my new personal blog julianku.com (I know, what an original name!). It will be mostly about China and my experiences teaching and studying law in China. I hope some of you can visit me there while I am gone. But for now, I’m signing off.再见!

Setbacks in the Case Against Julian Assange

by Kevin Jon Heller

It’s been a while since I checked in on the WikiLeaks kerfuffle, so now that the HILJ symposium is over — and I thought it was great — I wanted to flag this recent article in the Wall Street Journal, which reports that the government has found no evidence that WikiLeaks or Julian Assange solicited or conspired with Bradley Manning to steal government documents:

New findings suggest Pfc. Bradley Manning, the intelligence analyst accused of handing over the data to the WikiLeaks website, initiated the theft himself, officials said. That contrasts with the initial portrait provided by Defense Department officials of a young man taken advantage of by Mr. Assange.

Further denting the push by some government officials to prosecute Mr. Assange, the probes have found little to link the two men, though others affiliated with WikiLeaks have been tied to Pfc. Manning, officials said.

For the U.S. to bring its preferred case against Mr. Assange of inducing the leak, it would have to show that the WikiLeaks founder specifically encouraged Mr. Manning to hand over the documents, which included thousands of State Department cables, as well as low-level intelligence reports on the wars in Iraq and Afghanistan.

Federal Bureau of Investigation agents and Justice Department lawyers continue to gather evidence for a possible conspiracy charge against Mr. Assange, but that’s a harder case to make, government officials said. Such a charge would be based on contacts, which are more evident, between Pfc. Manning and lower-level WikiLeaks activists, and on Mr. Assange’s leadership of the group, these officials said.

[snip]

In Washington, military officials have been examining how the data was stolen and how the theft could have been prevented. Army investigators now believe Pfc. Manning decided to steal the documents and give them to WikiLeaks on his own, out of his own malice toward the military or the government, according to a senior U.S. official.

None of this comes as a surprise to anyone who has been following the story carefully.  The US government’s initial attempts to portray Manning “as a confused young person who was taken advantage of by Mr. Assange,” in the words of the WSJ article, were simply designed to demonize Assange; it was always irrelevant whether there was any evidence to support the government’s claim.

In the absence of criminal charges based on solicitation or conspiracy, the government can only prosecute Assange via the provisions of the Espionage Act that WikiLeaks’ media partners equally violated.  Fortunately, there seems to be a growing consensus — on both the left and right — that such a prosecution would be a terrible idea.  In that vein, I can’t recommend Jack Goldsmith’s recent editorial in the Washington Post, “Why the U.S. Shouldn’t Try Julian Assange,” highly enough.  Go read it!

The Shift from Proportionality to Necessity and an Indirect Comment on Gaby Blum’s Article

by Kenneth Anderson

Oh heck, one final comment about the Texas International Law Journal discussion of the model air and missile warfare manual, which does run to Gaby Blum’s article and discussion here at OJ.  It is only somewhat responsive to the article, so I’ll put it below the fold. Continue Reading…

The Model Air and Missile Warfare Manual

by Kenneth Anderson

I don’t mean to interrupt the flow of this outstanding set of articles and exchanges on the several HILJ articles – really a glittering collection, and great commentary here, so I’ll put my comments on the Texas discussion below the fold.   Continue Reading…

A Response to Robert Ahdieh by Eric A. Posner

by Harvard International Law Journal

[Eric A. Posner, co-author of Universal Exceptionalism in International Law with Anu Bradford, responds to Robert Ahdieh]

I am grateful for Professor Ahdieh’s illuminating comments on my paper with Anu Bradford. Ahdieh offers three interpretations of the charge of U.S. exceptionalism:

Degreeism: The United States does not always win, but it wins more often than Europe and China do. Exceptionalism is a matter of degree, but it still exists. I don’t think that the traditional notion of American exceptionalism permits this interpretation, but it is possible that people misuse the word “exceptionalism” in the way that Ahdieh describes. Still, our purpose was to cast doubt on the appropriateness of exceptionalism (and, a fortiori, degreeism) as a moral category. Rather than criticizing states for being exceptionalist, we should focus on the relative normative appeal of the competing exceptionalist visions. An exceptionalist country that always gets its way, or a country that merely gets its way more often than other countries, may be a good country. Such country may also be “better” than the others, which is why we don’t sympathize with North Korea and Myanmar, which rarely get their way, and we retrospectively cheer on the British when they abolished the international slave trade. Everything depends on whether getting its way helps or hurts others—not whether a country is exceptionalist or not or the degree to which it can enforce its exceptionalist view.

Presentationism: Continue Reading…

A Response to Anu Bradford and Eric A. Posner by Robert Ahdieh

by Harvard International Law Journal

[Robert Ahdieh, the Associate Dean of the Faculty, Professor of Law, and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law, responds to Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law]

In Universal Exceptionalism in International Law, Professors Anu Bradford and Eric Posner help to advance our understanding of international order in at least two respects.

To begin, there is the distinction they draw (if sometimes imperfectly) between the familiar trope of “exceptionalism” – a term most commonly found with “American” in front of it – and the distinct concept of “exemptionalism.” As I will suggest below, I have some doubt about the definitional premise on which the Article is based. The notion that we should distinguish between a desire to have one’s values reflected in international law and a desire to operate beyond its strictures, however, has the potential to offer valuable leverage in the discourse of international law and relations.

I was also struck by their systematic analysis of each of the states/regions of relevant interest – Europe, China, and the United States. It is beyond my expertise to assess the substantive accuracy of their review of distinct patterns of exceptionalism in each locale. Their embrace of what I would cast as a “microanalytic” approach to the question presented, however, holds great promise – perhaps especially when played out within a broader framework, such as the exceptionalism versus exemptionalism approach they advance.

Notwithstanding these contributions, I have significant doubts about the conclusion that Bradford and Posner would have us take away from their Article. Continue Reading…

Universal Exceptionalism in International Law by Anu Bradford and Eric A. Posner

by Harvard International Law Journal

[The following summary is the abstract from Universal Exceptionalism in International Law by Anu Bradford (an Assistant Professor of Law at the University of Chicago Law School) & Eric A. Posner (the Kirkland & Ellis Professor of Law at the University of Chicago Law School).]

A trope of international law scholarship is that the United States is an “exceptionalist” nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly “exceptionalist,” in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.

A Response to John Armour, Jack B. Jacobs and Curtis J. Milhaupt by Zenichi Shishido

by Harvard International Law Journal

[Zenichi Shishido, a Professor at the Graduate School of International Corporate Strategy, Hitotsubashi University, responds to John Armour, Jack B. Jacobs and Curtis J. Milhaupt, The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework]

It is a great pleasure to be able to comment on Armour, Jacobs, & Milhaupt’s excellent analytical, comparative study on a major issue of corporate governance. The article is focused on hostile takeover regimes and, at the same time, covers wide areas of the world, including three developed and three emerging capital markets. It is also important to note that they provide an analytical framework for analyzing different modes of business law reform in general, from the perspective of demand- and supply-side factors, which could be applied to a wide range of legal reforms.

The article starts by raising a good question of why the regulatory responses to hostile takeovers are very different among the three countries who share the similar capital markets (the United Kingdom, the United States and Japan). Continue Reading…

The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour, Jack B. Jacobs and Curtis J. Milhaupt

by Harvard International Law Journal

[The following summary is the abstract from The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour (the Hogan Lovells Professor of Law and Finance at the University of Oxford and a Fellow of the ECGI), Jack B. Jacobs (a Justice of the Supreme Court of Delaware) & Curtis J. Milhaupt (the Parker Professor of Comparative Corporate Law and Fuyo Professor of Japanese Law at Columbia Law School.).]

In each of the three largest economies with dispersed ownership of public companies—the United States, the United Kingdom, and Japan—hostile takeovers emerged under a common set of circumstances. Yet the national regulatory responses to these new market developments diverged substantially. In the United States, the Delaware judiciary became the principal source and enforcer of rules on hostile takeovers. These rules give substantial discretion to target company boards in responding to unsolicited bids. In the United Kingdom, by contrast, a private body consisting of market professionals was formed to adopt and enforce the rules on hostile bids and defenses. In contrast to those of the United States, the U.K. rules give the shareholders primary decisionmaking authority in responding to hostile takeover attempts. The hostile takeover regime in Japan, which developed recently and is still evolving, combines substantive rules with elements drawn from both the United States (Delaware) and the United Kingdom, while adding distinctive elements, including an independent enforcement role for Japan’s stock exchange.

This Article provides an analytical framework for business law development to explain the diversity in hostile takeover regimes in these three countries. Continue Reading…

A Response to Kevin Jon Heller by Gabriella Blum

by Harvard International Law Journal

[Gabriella Blum, author of On a Differential Law of War, responds to Kevin Jon Heller]

First of all, let me express my thanks to Professor Heller for his exceptionally careful and thoughtful reading, as well as for his insightful commentary. It is also a very generous reading, for which I am grateful. I am especially pleased at the opportunity to respond to his comments, as I think they raise a crucial issue.

The main theme of Prof. Heller’s commentary is the difficulty, perhaps impossibility, of maintaining the separation between the jus in bello and the jus ad bellum. The notion that the rules of war should apply equally to all sides – regardless of whether any party’s entry into the war was right or wrong at the outset – has been a feature of Just War doctrine since Grotius (who himself built on the Scholastics), but remains intensely debated even today. Prof. Heller illustrates persuasively how, as we consider raising the humanitarian obligations of stronger parties in wartime (thereby importing greater moral content, in terms of our theory of global justice, into IHL itself), ignoring the comparative justness of the parties’ causes becomes even less normatively attractive.

Continue Reading…

A Response to Gabriella Blum by Kevin Jon Heller

by Harvard International Law Journal

[Kevin Jon Heller, a Senior Lecturer at the University of Melbourne Law School, responds to Gabriella Blum, On a Differential Law of War]*

Blum’s normative analysis of the desirability of common-but-differential responsibilities in IHL is exceptionally powerful, and I agree with most of her conclusions. I have written a formal response to her essay that will be published online by HILJ; here I want to briefly mention the aspect of her essay that I find most intriguing: namely, its implications for the distinction – fundamental to IHL – between the jus ad bellum and the jus in bello. Blum claims that, “in remaining loyal to the skepticism of IHL with regard to dependence on jus ad bellum,” she “ignore[s] the question of whether the parties are conducting a just or unjust war.” Her essay however, indicates that her loyalties are divided at best. She openly acknowledges, for example, that there “may not be valid reasons to maintain that distinction” when considering the corrective-justice rationale for CDRs, because identifying the “causes of suffering” sufficient to trigger the rationale “may be inextricable from the causes of the war and its justification.” Similarly, although the frequency with which states go to war is a jus ad bellum consideration, Blum accepts that incorporating CDRs into IHL will have a powerful effect on the utilitarian calculus that states use to determine whether they will use armed force, because “[i]f CDRs raise the bar for stronger parties, these states may calculate the costs of war differently and exercise further caution against the use of military force to begin with,” while “the greater constraints on stronger parties might encourage weaker parties, believing they stood a greater chance of success, to initiate conflicts, thereby increasing the overall incidence of violence.”

(More…)

On a Differential Law of War by Gabriella Blum

by Harvard International Law Journal

[Gabriella Blum, an Associate Professor of Law at Harvard Law School, describes her recently published article On a Differential Law of War]

Should the United States, as the strongest military power in the world, be bound by stricter humanitarian constraints than its weaker adversaries? Would holding the U.S. to higher standards than the Taliban, Iraqi insurgents, or the North Korean army yield overall greater humanitarian welfare or be otherwise justified on the basis of international justice theories? Or would it simply be another attempt at tying American hands, a form of “lawfare”?

The paper offers an analytical framework through which to examine these questions. It begins from the observation that the current system of international humanitarian law (IHL) builds on the principle of the equal application of the law—the uniform and generic treatment of all belligerents on the battlefield according to the same rules and principles, and regardless of any disparity in power.. Yet regulation has taken a different path in some other areas of international law—most notably, international environmental law (IEL) and international trade law (ITL)—by linking obligations with respective capabilities. This linkage has been accomplished in several ways: by defining obligations with reference to resources, exempting weaker parties from compliance with certain obligations altogether, and even ordering more powerful parties to extend material assistance to weaker ones. As a group, these types of unequal obligations have been called “Common-but-Differentiated Responsibilities” (CDRs).

Continue Reading…

A Response to Erin F. Delaney and Samuel Issacharoff by David Schleicher

by Harvard International Law Journal

[David Schleicher, author of What If Europe Held an Election and No One Cared?, responds to Erin F. Delaney and Samuel Issacharoff]

I would like to again thank Erin Delaney and Samuel Issacharoff for their kind if skeptical response to my paper. Their praise is particularly appreciated as Professor Issacharoff’s brilliant work on election law has been, and remains, an inspiration for my own scholarship. And their criticisms are well taken, even if I disagree with some of them.

They make three basic points, which I’ll address in turn. First, they argue that the European Parliament (EP) is not the only repository of democratic responsiveness in the European Union (EU), and that my claim that pan-European electoral competition in EP elections is necessary for the EU to achieve the balance between elite, national and democratic power called for in its institutional set-up is overstated. Delaney and Issacharoff point to new powers given to national parliaments as evidence that key figures in the EU might not really want – or are least unsure about the value of – real political competition at the European level, and have turned to other tools for solving the democratic deficit. It is certainly true that there are lots of forms of democratic engagement inside the ever-more complicated EU policy-making apparatus. So there is something to this point. However, EU treaties have continuously increased the power of the EP, and the rise of the EP, along with the introduction of qualified majority voting in the Council, have been the two most important institutional changes in the EU over the last 20 or so years. Continue Reading…

A Response to David Schleicher by Erin F. Delaney and Samuel Issacharoff

by Harvard International Law Journal

[Erin F. Delaney, a Research Fellow at Columbia Law School (she holds a Ph.D. from Cambridge University and a J.D. from the NYU School of Law), & Samuel Issacharoff, the Reiss Professor of Constitutional Law at New York University School of Law, respond to David Schleicher, What If Europe Held an Election and No One Cared?]

Eurodemocracy

Multilevel democracy is difficult. Voters have limited time and even less information. Political parties provide the indispensable integrative mechanism for the polity and bring order to the chaotic political marketplace. But parties form around core political concerns, and national parties translate poorly across different levels of government. In this article, David Schleicher turns to the European Union and perceptively analyzes the failure to generate meaningful Europe-wide political parties and campaigns as symptomatic of many forms of multilevel democracy, and thus perhaps less distinctly European. He takes the analytic framework he honed with regard to the absence of robust partisan competition at the local level and directs it now to political institutions that pale beside vigorous national-level politics – specifically, the European Parliament, an institution which inspires mostly apathy and neglect in European voters. The result is a proposal to jigger the institutional prerequisites for EP representation in order to incentivize cross-European political organization and politics.

What emerges is creative and provocative. Continue Reading…

What If Europe Held an Election and No One Cared? by David Schleicher

by Harvard International Law Journal

[David Schleicher, an Associate Professor of Law at George Mason University School of Law, describes his recently published article What If Europe Held an Election and No One Cared?]

So, to start, I would like to thank my editors at the Harvard International Law Journal and the good people here at Opinio Juris for providing this forum. And I would particularly like to thank Erin Delaney and Samuel Issacharoff for writing a response to my paper. I’m looking forward to hearing your responses as well.

My paper, What If Europe Held an Election and No One Cared?, examines the difficulties the European Union (EU) has had in introducing direct democratic representation into its law-making process. In so doing, it provides an explanation for why multi-level political systems frequently feature a common type of democratic failure. Elections at non-national levels of government (ranging from the pan-European elections I discuss in the paper to state and city legislative elections in the U.S.) regularly fail to provide much in the way of democratic accountability because voters treat them as a referendum on national political figures while paying little attention to the effect they will have on local, or supra-national, public policy. In the paper, I argue this is a result of “mismatch,” or an election law system that causes (or doesn’t discourage) a lack of fit between the governmental level at which political party systems are organized and where elections are held. Looking at the EU provides a window into this endemic problem for multi-level democracies.

So, some background: Continue Reading…

A Response to Stavros Gadinis and Eric Pan by Pierre-Hugues Verdier

by Harvard International Law Journal

[Pierre-Hugues Verdier, author of Mutual Recognition in International Finance, responds to the comments by Stavros Gadinis and Eric Pan]

I would first like to thank Professors Pan and Gadinis for their generous and insightful comments on my article.  While it is impossible to offer a full response in this forum, I would like to offer some thoughts on three salient points.

First, as Professor Pan correctly points out, financial cooperation arrangements that share important features of mutual recognition have existed for decades.  However, I believe the arrangements described in the article constitute a significant development relative to those prior approaches.  Take, for instance, the CFTC’s acceptance of foreign trading screens and PCAOB’s reliance on foreign auditors.  Continue Reading…

A Response to Pierre-Hugues Verdier by Eric Pan

by Harvard International Law Journal

[Eric Pan, an Associate Professor of Law and Director, The Samuel and Ronnie Heyman Center on Corporate Governance, responds to Pierre-Hugues Verdier, Mutual Recognition in International Finance]

Pierre-Hugues Verdier has written an extremely important paper about one of the key regulatory strategies in international finance.  As Prof. Verdier has noted, many jurisdictions have applied mutual recognition arrangements to provide cross-border access to financial services providers, issuers and investors, and he skillfully analyzes the challenges facing mutual recognition arrangements.  In order to provoke a further discussion about the importance of mutual recognition in international financial regulation, I wish to draw out some of the points made by Prof. Verdier and express additional thoughts regarding how mutual recognition arrangements have been used in the past, the implications for future mutual recognition arrangements and the main challenges facing mutual recognition arrangements.

Continue Reading…

A Response to Pierre-Hugues Verdier by Stavros Gadinis

by Harvard International Law Journal

[Stavros Gadinis, an Assistant Professor of Law at U.C. Berkeley School of Law, responds to Pierre-Hugues Verdier, Mutual Recognition in International Finance]

Pierre Verdier’s piece, “Mutual Recognition in International Finance,” centers on a fundamental question in this area of the law: how can regulators from one state admit inside their borders institutions and products shaped under another state’s regime, without imposing additional requirements to admission? Lifting regulatory barriers is the primary step towards a truly global financial market, because it removes high transaction costs that constrain capital flows. However, opening the regulatory gateways to foreigners is a matter of heated debate, which typically evokes rational objections as well as deep-rooted fears: do these foreign institutions and products provide to investors similar safeguards to those honed after decades of domestic regulation? Will the sudden influx of – perhaps more cost-effective – foreign providers put the domestic industry in a competitive disadvantage? Could the admission of foreigners ultimately undermine the importance of domestic regulators by providing an official back-door channel into a closely guarded domestic market?

Continue Reading…

Mutual Recognition in International Finance by Pierre-Hugues Verdier

by Harvard International Law Journal

[Pierre-Hugues Verdier, an Associate Professor of Law at the University of Virginia School of Law, describes his recently published article Mutual Recognition in International Finance]

In the absence of an international organization devoted to financial regulation, the rapid globalization of finance since the 1970s has taken place against a legal background shaped primarily by national regulators.  As the multiplication of large, transnational financial institutions and cross-border transactions increased the need for international policy coordination, regulators responded by setting up transgovernmental regulatory networks (TRNs) and adopting soft law instruments.  In an article published in 2009, I argued that TRNs suffered from significant limitations stemming from domestic legal and political constraints, their inability to overcome distributive obstacles to harmonization, and their lack of monitoring and enforcement capabilities.  In the aftermath of the financial crisis, many commentators agree that existing coordination mechanisms did not live up to expectations in pivotal areas such as bank capital standards.  Thus, while TRNs are likely to remain an important component of financial governance, we need a more complete understanding of the various means through which states can cooperate to ensure effective cross-border financial regulation and market access.

Continue Reading…

Harvard International Law Journal, Vol. 52(1): Online Symposium

by Harvard International Law Journal

The Harvard International Law Journal is proud to partake in its inaugural online symposium hosted by Opinio Juris. Beginning today, each day this week we will be bringing you discussion surrounding one of the articles in our recently released Volume 52, Issue 1. We would like to thank Opinio Juris for partnering with us, as well as the many contributors who have made this online symposium possible.

Our discussion begins today with Mutual Recognition in International Finance by Pierre-Hugues Verdier (U. Virginia). This article on transnational financial regulation proposes a theoretical account of mutual recognition that identifies its potential benefits, the cooperation problems it raises, and the resulting institutional frameworks in multilateral and bilateral settings. Stavros Gadinis (U.C. Berkeley) and Eric Pan (Cardozo) will provide responses to this article.

On Tuesday we will feature What if Europe Held an Election and No One Cared? by David Schleicher (George Mason). This article takes a comparative look at European Parliament elections, finding that their mismatch problem has many similarities with American state and local elections and then proposing election law solutions. Samuel Issacharoff (NYU) and Erin F. Delaney (Columbia) provide a joint response to this article.

Wednesday will provide debate over On a Differential Law of War by Gabriella Blum (Harvard). This article offers an analytical framework for considering whether some countries should be held to higher humanitarian standards during war by analogizing to international trade and climate agreements where obligations have been linked to capabilities through the principle of Common-but-Differentiated Responsibilities (CDRs). Kevin Jon Heller (Melbourne) will give his thoughts on this article.

On Thursday the discussion will shift to The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework by John Armour (Oxford), Jack B. Jacobs (Justice, Delaware Supreme Court) & Curtis J. Milhaupt (Columbia). This article traces the development of national regulatory responses in the United States, the United Kingdom, and Japan, and proposes an analytical framework that is then extrapolated to provide insights on emerging markets including China, India, and Brazil. A response will be provided Zen Shishido (Hitotsubashi University, Japan).

Finally, on Friday, we will conclude with Universal Exceptionalism in International Law by Anu Bradford (U. Chicago) & Eric A. Posner (U. Chicago). This article argues that all major powers, not just the United States, are similarly “exceptionalist,” in the sense that they take distinctive approaches to international law that reflect their values and interests. Robert Ahdieh (Emory) will provide his thoughts on the article.

We hope you join us all week for our launch of Volume 52, Issue 1 and our first ever Opinio Juris Symposium.

Inaugural Harvard International Law Journal/Opinio Juris Symposium

by Duncan Hollis

We here at Opinio Juris are very pleased to host this coming week our first on-line symposium featuring work from the Harvard International Law Journal. For those interested in a preview of the week’s events, here’s the line-up:

On Monday, Stavros Gadinis and Eric Pan will respond to Pierre-Hugues Verdier’s article, Mutual Recognition in International Finance

On Tuesday, Samuel Issacharoff will respond to David Schleicher’s article, What if Europe Held an Election and No One Cared?

On Wednesday, our own Kevin Jon Heller will respond to Gabriella Blum‘s article, On a Differential Law of War

On Thursday, Zen Shishido will respond to John Armour, Jack B. Jacobs & Curtis J. Milhaupt‘s article, The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework

And on Friday, Robert Ahdieh will respond to Anu Bradford & Eric A. Posner‘s article, Universal Exceptionalism in International Law

Most of the authors will also be offering introductory comments on their work or direct responses to the questions and comments of the contributors. All in all, it should be a very interesting week ahead.

Bobby Chesney on Targeting Al-Awlaki

by Kenneth Anderson

Bobby Chesney has posted to SSRN an important draft paper on the law surrounding the targeting of Anwar Al-Awlaki, the Yemini-American radical Islamist cleric in hiding presumably in Yemen.  It is still in draft form (to appear in final form in the Yearbook of International Humanitarian Law), and Bobby is still revising and soliciting comments from knowledgeable folks.  Here is his comment at Lawfare; the draft paper is up on SSRN at this link.

My comments on an initial read?  First, I agree with the overall structure of the analysis — the questions and the order of raising them.  One observation is that I would put less weight on sovereign consent for the jus ad bellum analysis (ie, Yemen permitting the US action).  This is in large part because in my view the bedrock international law principle for the United States is, and always has been, that although territorial integrity is foundational to legal sovereignty, a state that is either unwilling or unable to control the use of its territory by non-state actor terrorist or other armed groups acting against other sovereigns — safe havens — gives up its sovereignty and right to territorial integrity to that extent.  Whether one sees it as an exception to the territorial integrity rule, or instead that the state is failing to exercise sovereignty and so does not have it at that point over the relevant territory, it seems to me a far more important legal principle in addressing terrorist groups than sovereign consent.  The politics and diplomacy of that might be a very different matter, of course.

My view of “naked” self-defense outside of armed conflict remains as it has been since the beginning of this debate over targeting, as a formal category.  However, as a factual matter regarding Al Qaeda in the Arabian Peninsula, I believe that the connections between it and AQ proper are sufficient to bring it within the AUMF; at one point I didn’t think that was the case, but I have certainly been persuaded otherwise as more facts have emerged.  In that case, the Obama administration, which has various political and domestic legal reasons for preferring the AUMF-armed conflict characterization over the naked self-defense characterization, is on firm ground.  It would in my view be on firm ground either way.  However, I remain fully committed to the view that self-defense as an independent category remains available as a legal rationale, and that it will be necessary and appropriate in future circumstances. Continue Reading…

A Very Short Comment on Kiobel

by Julian Ku

I’m dashing off to China in a few hours, but I couldn’t resist a brief post on the Second Circuit’s denial of rehearing on Kiobel v. Royal Dutch.  Does anyone doubt this case is headed for the Supreme Court?  Which is not to say that I disagree with the panel majority on the merits. indeed, I have offered a full-scale defense of the majority’s position in a recent issue of the Virginia Journal of International Law here.  I will have more thoughts soon, but for now, here is the abstract.

This Article challenges the widely held view that the Alien Tort Statute (ATS) imposes liability on private corporations for violations of customary international law. I lay out the modern origins and development of this cause of action in U.S. federal courts and argue that doctrine rests on shaky, indeed illusory, analytical and jurisprudential foundations. Despite the absence of a well defined norm of customary international law that imposed liability upon private corporations, courts, when they even considered the validity of the claims, built a consensus around the fact that no norm existed forbidding the imposition of liability on private corporations. This doctrinal approach was particularly questionable in light of the Supreme Court’s position that recognition of causes of action under the ATS be limited to situations involving violations of norms that are specific, universal, and obligatory. Finally, I argue that the rise of this flawed consensus reveals that our system of federal courts is particularly ill-suited to the type of independent lawmaking that modern ATS doctrine has enabled up to this point. These developments indicate that courts should adopt a restrictive approach to corporate liability under the ATS going forward.

Kiobel Rehearing Denied

by Roger Alford

Today the Second Circuit denied panel rehearing and rehearing en banc in Kiobel v. Royal Dutch Petroleum. My colleague Trey Childress has details here.

Vatican Sovereignty

by Kenneth Anderson

(Note:  I’m going to pull down most of this post, although alas it makes Peter’s comment not relevant to anything.  Martined over at VC points out a couple of mistakes.  I think I”m going to delete anything but the reference to the news article.  Peter, apologies I’ve untethered your comment!)

The Milwaukee Journal-Sentinel reports that the Vatican has refused service of process in a widely-followed priest child abuse case.

The Vatican has refused service of a federal lawsuit over its handling of the notorious sex offender Father Lawrence Murphy — a move that could delay the Milwaukee lawsuit for months if not years, victims’ advocates said Monday ….  But a California-based lawyer for the Vatican dismissed it as a procedural step in keeping with U.S. laws on diplomatic relations that allow states to choose how to be served in lawsuits.

US and Pakistan in Diplomatic Immunity Dust-up

by Peter Spiro

Perhaps not getting the coverage it might in the face of more important developments elsewhere: Pakistan continues to hold Raymond Davis, a US government official posted to Lahore, in the killing of two Pakistanis last week despite protests from the US that the official is entitled to diplomatic immunity.  Here’s a report from the LA Times; here’s a more detailed version from a Pakstani news outlet.

It’s not absolutely clear what Davis was doing at the Lahore consulate.  US Embassy Islamabad claims he was a member of the technical staff, and as such entitled to immunity under article 37 of the Vienna Convention on Diplomatic Relations.  (The Embassy has posted “facts about diplomatic immunity” to make the point.)  But here’s an item claiming that he wasn’t on a diplomatic visa.  What governs the status determination?

Also not clear what’s going on internally in Pakistan.  There are provincial, judicial, and federal players (including legislative ones).  Remind you of anyplace else?  The incident also seems highly politicized (note the photo of protesters holding a reticent banner, “Hang the American killer of innocents”; a member of the Pakistani senate has called for “the government has to take a strong stand to give exemplary punishment to the US commando for killing innocent people”).  Any chance the US will waive immunity, as other countries appear increasingly willing to do with respect to their diplomats posted here?  Don’t count on it!

Israel Set to Investigate Progressive NGOs

by Kevin Jon Heller

This must be that vibrant democracy Richard Cohen recently extolled in defense of denying democracy to Egyptians:

The Knesset House Committee on Wednesday approved the composition of two parliamentary panels to investigate the funding sources of human rights organizations.

Most of the opposition parties have decided to boycott the committees. The motion passed at the House Committee by a majority vote of 10-7.

The House Committee approved a motion for the first panel to be chaired by MK Fania Kirshenbaum (Yisrael Beiteinu), who proposed its establishment.

Her proposal calls for the panel to examine financial support by foreign governments and organizations for “Israeli organizations taking part in the campaign of delegitimization against Israel Defense Forces soldiers.”

The second committee will also be chaired by its architect, in this case MK Danny Danon (Likud). He described its mission as “investigating the involvement of foreign governments and organizations in supporting activities against the state and attempts at the organized acquisition of state land.”

[snip]

The committees will not be empowered to subpoena individuals from nongovernmental organizations, but governmental organizations can be required to send representatives to the sessions.

Funny how the panels won’t be investigating right-wing groups like NGO Monitor, who actively conceal their own funding sources while criticizing human-rights groups for their lack of transparency.  Indeed, the hypocrisy is so obvious that even the Knesset’s legal advisor criticized the plan.

Chevron Files RICO Lawsuit Against Donziger, et. al.

by Roger Alford

The stakes just became larger in the ongoing battle over alleged environmental damage in Ecuador. Chevron just filed a lawsuit in the Southern District of New York against Steven Donziger and forty-seven lawyers, experts, consultants and named plaintiffs alleging RICO, fraud, tortious interference with contract, trespass and unjust enrichment. The Complaint is available here.

The Complaint alleges that Donziger and his co-conspirators “have sought to extort, defraud, and otherwise tortiously injure plaintiff Chevron by means of a plan they conceived and substantially executed in the United States.” Among the co-conspirators are (1) environmental consultants; (2) Ecuadorian lawyers and plaintiffs; (3) U.S. law firms Patton Boggs, Motley Rice, and Kohn Swift & Graf; (4) and environmental activists Amazon Watch and Rainforest Action Network.

“… [T]he RICO Defendants initiated a sham litigation in Lago Agrio, Ecuador … claiming to seek money damages for ‘collective environmental rights’ of the ‘affected’ ‘communities’ to remediate alleged petroleum contamination in Ecuador’s Oriente region…. In prosecuting the Lago Agrio Litigation, the RICO Defendants have engaged in a series of corrupt acts. For example, … they arranged the appointment of Richard Stalin Cabrera Vega … as the Ecuadorian court’s sole expert, … then secretly met with Cabrera to plan … and … ghostwrite the report…. To pressure Chevron in the United States, RICO Defendants have cited … fabricated evidence, Cabrera’s supposed ‘independent’ report and … trumped-up criminal charges in false statements to U.S. Congress, the U.S. Department of Justice, state and federal regulatory agencies, … the U.S. media, and Chevron shareholders…. The RICO Defendants’ conduct violates [RICO] with predicate acts of extortion, mail and wire fraud, money laundering, obstruction of justice, and witness tampering, among others.”

The Complaint seeks general damages, treble damages against the lawyers under New York Judiciary Law § 487, and a declaratory judgment that any judgment rendered in Ecuador is “unenforceable and non-recognizable.”

Glenn Beck, Foreign Policy Expert

by Kevin Jon Heller

I realize that Fox has long since given up any pretense of engaging in journalism, but I’m still shocked that it continues to let someone who is so clearly mentally disturbed poison political discourse (and put lives in danger) in the U.S.  Here’s his latest gem:

BECK: I believe that I can make a case in the end that there are three powers that you will see really emerge. One, a Muslim caliphate that controls the Mideast and parts of Europe. Two, China, that will control Asia, the southern half of Africa, part of the Middle East, Australia, maybe New Zealand, and God only knows what else. And Russia, which will control all of the old former Soviet Union bloc, plus maybe the Netherlands. I’m not really sure. But their strong arm is coming. That leaves us and South America. What happens to us?

I’m pretty sure, having spent years in both, that Australia and New Zealand are never going to fall to the Chinese.  The Netherlands to Russia, maybe…

Time for Richard Falk to Resign as U.N. Special Rapporteur?

by Julian Ku

Richard Falk, professor of international law at Princeton and U.N. Special Rapporteur for the situation of Human Rights in the Palestinian territories, is rejecting calls for him to resign from his U.N. position due to alleged comments he made about a 9/11 conspiracy theory.

NEW YORK – Richard Falk, UN special rapporteur on the situation of human rights in Palestinian territories occupied since 1967, “flatly denied” recent allegations by Geneva- based NGO UN Watch that “he had endorsed the conspiracy theory that the 9/11 terrorist attacks were orchestrated by the US government and not by al-Qaida terrorists.”

UN Watch called for Falk to resign last week, citing Falk’s personal blog posts. In response, UN Secretary-General Ban Ki-moon’s office condemned Falk. In a letter to Hillel Neuer, executive director of UN Watch, the secretary-general’s spokesman Vijay Nambiar wrote that Falk’s remarks were “an affront to the memory of the more than 3,000 people who died in the attack.”

Falk denies that he was endorsing a 9/11 “Truther” theory. He at least was sympathetic to it, though.  Based on what I can tell, Falk was not making a full-blown endorsement of a 9/11 conspiracy theory, although he seems oddly open to it. In any event, I have never thought Falk was particularly well-qualified to be a U.N. rapporteur, both his background and political preferences make him a relentlessly one-sided advocate rather than an objective investigator.  But then again, are special rapporteurs supposed to be objective?

Even the U.S. has had enough with Falk.  From Amb. Susan Rice:

Mr. Falk endorses the slurs of conspiracy theorists who allege that the September 11, 2001, terrorist attacks were perpetrated and then covered up by the U.S. government and media.

Mr. Falk’s comments are despicable and deeply offensive, and I condemn them in the strongest terms.  I have registered a strong protest with the UN on behalf of the United States. The United States has in the past been critical of Mr. Falk’s one-sided and politicized approach to his work for the UN, including his failure to condemn deliberate human rights abuses by Hamas, but these blog comments are in another category altogether.