Archive for
March, 2011

St. John’s Center for International and Comparative Law Inaugural Symposium

by Chris Borgen

Tomorrow, the Center for International and Comparative Law (CICL) of St. John’s University School of Law will have its inaugural symposium. Peggy and I are CICL’s Co-Directors, and we are looking forward to what we hope will be a great kick-off.

The symposium, entitled Challenges to International Law, Challenges from International Law: New Realities and the Global Order, is co-sponsored by the American Society of International Law and the St. John’s Journal of International and Comparative Law  (the Center’s new online journal). Presenters will include  Michael Mattler, the Minority Chief Counsel of the United States Senate Committee on Foreign Relations; Joseph Cassidy, the Director of Multilateral and Global Affairs in the State Department’s Bureau of Democracy, Human Rights and Labor, Ruth Wedgwood of SAIS, Opinio Juris co-blogger Roger Alford (which reminds me… ) and many other great speakers.

The keynote will be delivered by Donald Donovan of Debevoise & Plimpton. Donald, who is the President-elect of the ASIL, will also be joined by David Caron, the current President of the ASIL, and Peter Trooboff, a past President of the ASIL in a closing roundtable with Mattler on the question of American exceptionalism and the future of international law.

Full agenda after the jump…

How Should the Conflict in Libya Be Categorized?

by Michael W. Lewis

The UN Security Council’s approval of the no-fly zone over Libya serves to answer the thorniest jus ad bellum questions, but there are also jus in bello questions that need to be answered. Most importantly, what kind of conflict is this?

Before the UN became involved, the conflict was clearly a conflict “not of an international character” (NIAC) between the Libyan government and rebel forces within Libya. That conflict was governed by common article 3 of the Geneva Conventions and Additional Protocol II. Did the UN’s entry into the conflict change this into an international armed conflict (IAC) subject to all of the provisions of the Geneva Conventions and Additional Protocol I (for ratifying nations which include Libya, France, Italy and the UK)? The language of common article 2 of the Geneva Conventions speaks of an armed conflict between “two or more of the High Contracting parties”. Who is employing force in Libya, the UN, NATO or the coalition nations individually? If the answer is the UN or NATO, neither of those groups are “High Contracting parties” to the Geneva Conventions. It should be recalled that Justice Stevens in Hamdan determined that the conflict between the US and al Qaeda was not an IAC because one of the parties to the conflict was not a party to the Geneva Conventions. The same reasoning might be applied here. It is only if the conflict is viewed as being between the allied nations of the US, the UK, France, Italy, etc. and Libya that this conflict would clearly be considered an IAC.

Does the fact that the United States has gone to great lengths to make it clear that NATO is in charge of the operation lend weight to viewing this conflict as NATO v. Libya? On the other hand, does the French recognition of the Libyan rebel forces as the legitimate government of Libya favor viewing the conflict as France (and its allies) v. Libya?

One reason why the characterization of the conflict matters is the concept of the combatants’ privilege. This privilege allows members of national armed forces to avoid criminal liability for the harm they do, as long as their actions comport with the laws of war. Without this privilege participants in an armed conflict could be subject to criminal liability for assault, murder, arson, etc. resulting from any use of a weapon. If this is an international armed conflict then the privilege applies to members of national armed forces (Libya, France, the US, etc.) involved in the conflict. If this conflict is a NIAC then combatant status, and the privilege that flows from it, is not clearly developed. AP II contains no mention of “combatants”. It assumes that the domestic law of the state in which the conflict is taking place will regulate the conduct of the conflict.

If this is a NIAC are the allied forces entitled to the combatants’ privilege? The common sense answer to this question must be yes, that US and French armed forces are not incurring potential criminal liability for conducting strikes that comport with the laws of war under the authorization of the UN. However it is less than clear what the source of that privilege might be. Is there a privilege associated with being part of a UN authorized force, even in a NIAC, and is the scope of that privilege the same as the combatants’ privilege found in IAC’s? Or is the need to find a combatants’ privilege for the UN authorized force another independent and compelling reason to classify the conflict as an IAC in the first place?

I don’t believe that IHL currently provides definitive answers to these questions, and the status of the rebel forces complicates matters even further. My own proposed solution, which will be the subject of another post, is that the conflict be treated as a NIAC but that the status of all parties to the conflict, not only the UN forces and the Libyan army, but that of the rebels as well, be more clearly and symmetrically articulated.

Web Seminar on Libya — April 5

by Kevin Jon Heller

I wanted to call readers’ attention to an upcoming web seminar on Libya held by Harvard’s Program on Humanitarian Policy and Conflict Research.  The Program’s web seminars are always excellent, and this one — which features Luis Moreno-Ocampo and Nicholas Burns — shapes up to be superb.  Here are the details:

On Tuesday, April 5, 2011, the Program on Humanitarian Policy and Conflict Research at Harvard University will host a Live Web Seminar on “The Crisis in Libya: The International Response.” Registration (free) required; click here.

This Live Seminar will examine the modalities through which (elements of) the international community may respond to the ongoing crisis in Libya. Amid reports of violence, refugee and IDP flows, and other forms of instability, this Live Seminar will address the following questions:

  • How may the situation be qualified under international law, and what legal and policy consequences result from such a qualification?
  • What tactical and strategic dilemmas arise for the international community, especially in terms of prevention and mitigation of civilian harm?
  • What legal and policy frameworks provide a basis through which the international community may respond to the situation in order to repress violations?

These questions will be examined by reference to the complex crisis in Libya.

Naz Modirzadeh (Associate Director of HPCR) and Claude Bruderlein (Director) will host the discussion.


Luis Moreno-Ocampo, Prosecutor, International Criminal Court (Keynote)

Amb. R. Nicholas Burns, The Sultan of Oman Professor of the Practice of International Relations, Harvard Kennedy School of Government (Principle Presenter)

Sarah Leah Whitson, Executive Director, Middle East and North Africa Division, Human Rights Watch

Dirk Vandewalle, Associate Professor of Government, Dartmouth College

Philippa Thomas, Nieman Journalism Fellow, Harvard University


What: Live Web Seminar on “The Crisis in Libya: The International Response”

When: Tuesday, April 5, 2011, 9:30-11:00 a.m. (DST–Boston). Click here for local time conversion.

Where: Online

Registration: Free and required: click here.

Make sure you register, so you can access the seminar on-line.

OpenLeaks Founder Explains Assange’s Indifference to Privacy Interests

by Roger Alford

I had a wonderful time at the ASIL annual meeting last week, and greatly enjoyed the panel discussion with Mary-Rose Papandrea and Simon Chesterman. One of the principal points that I was trying to convey in my presentation was the government’s legitimate interest in protecting the individual privacy interests. As I said in that presentation,

“The government recognizes that disclosure of certain information constitutes a fundamental infringement of civil liberties and takes drastic measures to prohibit it. The government prohibits disclosure of the names of rape victims, the surreptitious filming of a college roommate, or the publication of social security numbers. It imposes prior restraints on the free speech of attorneys—so-called gag orders—if that speech will compromise a fair trial. We create criminal penalties for prosecutors and civil remedies for private citizens if basic civil liberties are infringed by speech.”

In other words, regardless of what one thinks about Wikileaks’ harm to U.S. interests, civil libertarians have good reason to oppose Julian Assange’s callous indifference to privacy interests.

This week, Foreign Policy published an interview with Daniel Domscheidt-Berg, founder of OpenLeaks, that strongly reinforces my impression. In the interview, he explains the reasons for his break with Julian Assange. When asked about specific examples of reasons that Domschedt-Berg decided to break from Assange, he states at minute 3:25:

“The most striking [example of our differences] was with respect to the Afghanistan publication which happened shortly before I decided to leave them. There was a dispute about the whole way that Julian dealt with names that needed to be redacted from these documents before they were published in order to not put any sources … of the United States forces in Afghanistan in danger. I mean we’re talking about … regular peasants in Afghanistan that have nothing to do with the war that do not follow any specific political agenda. They just happen to be living in the wrong place where there is a war going on. These people should not be implicated by an effort where you are just trying to make transparent what is happening in the war. Julian basically, as much as I can tell, didn’t really care for protecting these people and I think that is a really bad attitude for anyone who’s in the publishing business.”

The interview is available here:

Anne Orford on the Security Council and Libya

by Kevin Jon Heller

My colleague Anne Orford has a fascinating contribution today to the official blog of the London Review of Books questioning the universality of the supposedly universal international law that underlies the Security Council’s authorization of military action in Libya.  Here is a taste:

In 1954, Carl Schmitt bemoaned the destruction of European international law in the 20th century. According to Schmitt, European international law had depended for its meaning on the recognition that ‘European soil or soil equivalent to it had a different status in international law from that of uncivilised or non-European peoples’. Once it had been transformed into ‘a universal international law lacking any distinctions’, it had ceased to be meaningful. Yet only two years later, the Suez intervention marked the emergence of a form of international rule premised on new distinctions, a response to the revolutions that swept the Arab world during the 1950s and 1960s.

Then, as now, young leaders were fired by dreams of pan-Arabic solidarity, by the desire to end oppressive and exploitative rule, and by hopes for a better future. Yet they were met with cynical disbelief, mockery and sullen hostility on the part of Western leaders. In Egypt, Libya, the Congo and many other states throughout the Middle East and Africa, the hopes vested in independence were destroyed by an alliance between local elites who gradually came to accept that their survival depended on powerful foreign sponsors, and a Western political and business leadership determined to ensure that independence did not deny them access to the resources of the decolonised world.

If today’s Western leadership is really ready, in the words of William Hague, to support the people of the Middle East in their ‘aspirations for a better future’, it will need to do more than use international law to target its enemies while protecting its friends. In rejecting their authoritarian leaders, the current wave of Arab revolutionaries is also rejecting the international system that has profited from their existence. As the US declares yet again that Israel has the right to defend itself against terrorists while bombs rain down on Libya, as protesters continue to be killed in Bahrain, Syria, Yemen and Iraq, and as the numbers of people detained continue to grow, the idea that Nato is working to support the freedom fighters of this Arab spring rings increasingly hollow. The bombing of Libya in the name of revolution may be legal, but the international law that authorises such action has surely lost its claim to be universal.

Anne recently published a book entitled “International Authority and the Responsibility to Protect” (Cambridge 2011), which can perhaps be best described as a post-colonial critique of R2P.  Both the LRB post and the book are must-reads for anyone interested in the subject.

Michael Glennon on Chapter VII and Congressional Authorization

by Kenneth Anderson

I don’t have anything of my own to add to the very instructive debate underway over Congressional authority and war powers, and actions authorized by the Security Council under Chapter VII.  However, to go with the terrific interventions by Michael Ramsey and others, I wanted to flag Michael Glennon’s 1991 AJIL article on this topic, which he has now put up at SSRN as an intervention in the current debate.  The abstract reads:

A resolution of the UN Security Council authorizing the use of force cannot substitute for congressional approval under the United States Constitution or the War Powers Resolution.

United Nations Releases Guiding Principles for Business and Human Rights

by Rachel Davis

[Rachel Davis is Legal Advisor to the Special Representative of the UN Secretary-General for Business and Human Rights]

On March 24, the UN released a much-anticipated set of Guiding Principles for Business and Human Rights. The Guiding Principles seek to provide for the first time an authoritative global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity. The UN Human Rights Council will consider formal endorsement of the text at its June 2011 session.

The Guiding Principles are the product of six years of research and consultations, led by the Secretary-General’s Special Representative for Business and Human Rights, Harvard Professor John Ruggie, involving governments, companies, business associations, civil society, affected individuals and groups, investors and others around the world. The Guiding Principles outline how States and businesses should implement the UN “Protect, Respect and Remedy” Framework in order to better manage business and human rights challenges. That Framework, which Professor Ruggie proposed in 2008, was unanimously welcomed by the Human Rights Council at the time, and has since enjoyed extensive uptake.

The Guiding Principles highlight what steps States should take to foster business respect for human rights; provide a blueprint for companies to know and show that they respect human rights, and reduce the risk of causing or contributing to human rights harm; and constitute a set of benchmarks for stakeholders to assess business respect for human rights. The principles are organized under the UN Framework’s three pillars: the State Duty to Protect Human Rights; the Corporate Responsibility to Respect Human Rights; and the need for greater Access to Remedy for victims of business-related abuse.

The Special Representative’s mandate was created in 2005 by what was then the UN Commission on Human Rights (now Human Rights Council) in order to move beyond what had become a stale-mate in the debate over the human rights responsibilities of companies. Professor Ruggie’s aim was to build meaningful consensus among all stakeholders about the roles and responsibilities of both States and companies with regard to business’s impacts on human rights. To achieve that, he conducted extensive research, convened consultations around the world, made site visits, and conducted pilot projects. This inclusive process was made possible by voluntary financial contributions from numerous governments. In addition, more than 20 corporate law firms from around the world with expertise in over 40 jurisdictions conducted pro bono research for the mandate.

For more information, please visit the Special Representative’s web portal.

Declaring War and the Security Council

by Michael Ramsey

In previous posts I’ve argued that the U.S. intervention in Libya requires congressional approval under the Constitution’s original meaning and that there’s no longstanding uncontested precedent that would warrant departure from that meaning.  Here I’ll consider the significance of UN Security Council Resolutions 1970 and 1973, calling for a cease fire by the Libyan government and authorizing nations to use force against the Libyan military.  Some commentators have taken these resolutions to somehow distinguish the Libya situation from earlier ones, such as the potential attack on Iranian nuclear facilities debated in 2007.

I can see two arguments that the Council’s actions might help the President, but I don’t find either persuasive.  First, the Resolutions are adopted pursuant to a treaty, the UN Charter, and thus have the force of law in the U.S.; perhaps the President, exercising his obligation to “take Care that the Laws be faithfully executed” (Article II, Section 3),  has constitutional power to enforce them without needing congressional approval.

It might pose a difficult question if a treaty itself declared war or obligated the U.S. to declare war.  The issue would be when and whether powers of Congress could also be exercised by treaty – a matter vigorously debated in the post-ratification period without producing a fully satisfactory conclusion.  But that is not the question here.  Resolution 1973 authorizes the use of force in Libya for certain purposes.  It does not obligate the U.S. (or any other nation) to use force against Libya.  Even if the President’s “take Care” power fully empowers (and requires) him to enforce U.S. treaty commitments, the President is under no treaty obligation to use force here.

Resolution 1973 addresses a distinct issue: under Articles 2(4)  and 51 of the  Charter, the U.S. has a treaty obligation not to use force against other nations except in defense of itself or its allies.  Since neither situation applies to Libya, the intervention would be illegal under these provisions but for Resolution 1973 (because using force with Security Council approval is another exception to the Article 2(4) obligation).  So the Resolution says what the U.S. as a nation may do, but it doesn’t say anything about which branch of the U.S. government should make the decision to do it.  

I suppose one could argue that the President has power under Article II, Section 3 to use the military to enforce other nations’ treaty obligations.  If so, the key resolution is not 1973 but 1970, which calls on the Libyan government to end violence against its citizens (and, by this theory, the President is “tak[ing] Care” this “Law” is executed).  That’s an extraordinarily broad claim, though, that would radically undermine Congress’ declare war power in a way clearly not accepted by the founding generation.  For example, no one thought President Adams in 1798 could attack France without congressional authorization just because France had violated a treaty with the U.S. (which it had).  The founding generations’ categorical statements that the President alone could not start a war make no sense if the President can in fact start a war to enforce a treaty – a justification that would very commonly be available.

A second argument might be that the Security Council resolutions change the nature of the conflict, so that it is no longer a “war” (and so not subject to the declare war clause).  President Truman tried this argument in 1950 in the conflict in Korea, but history hasn’t been kind to it: everyone calls that conflict “the Korean War” although Truman claimed it was a “police action” to enforce the U.N. Charter.  (Similarly the 1991 Gulf War is called a war despite being approved by Security Council  resolution.)   In any event, this argument does not get around the text and original meaning of the declare war clause.  Resolution 1973 sets the objectives and limits of the intervention, but the intervention remains the “exercise of violence under sovereign command” – the 18th century definition of “war.”  And, especially because U.S. participation in the intervention is voluntary under international law, the U.S. had to manifest “by word or action” its commitment to war – which is the 18th century definition of “declare.”

Finally, even if some conflicts fought under Security Council approval are “wars,” perhaps this one is not, because it is – as State Department Legal Advisor Harold Koh said in a recent statement – “time-limited, well-defined, discrete and aimed at preventing an imminent humanitarian catastrophe.”  As Ken Anderson explores in this post, the Resolution itself is quite vague, and it’s not clear what limits it actually provides on the intervention.    But in any event, as I argued earlier, the founding generation surely understood limited wars, and still called them “wars” subject to the declare war clause.  The limits Koh describe may make the intervention just and reasonable, but they don’t make it any less a war.  According to recent news reports, among other things we are using sustained aerial attacks to destroy Libyan army tanks and ground forces, clearing the way for rebel forces to advance.  Wherever the line between war and not-war may be, this intervention seems firmly on the “war” side.  The fact that our actions are done with Security Council approval doesn’t change their nature – it only makes this a war in pursuit of objectives blessed by the Council.

ASIL 2011

by Kevin Jon Heller

I’m in Los Angeles, on my way home to Melbourne.  I had not attended an ASIL conference in five years, since I was teaching at Georgia, and I’m very glad I attended this one. I met a number of interesting people, including some with whom I’ve had a virtual friendship for a number of years.  (I still have not met my co-blogger Julian Ku face to face!)  I was particularly impressed by two panels.  The first was on the Kosovo advisory opinion; I learned a great deal about the legal aspects of secession and independence, and I also learned that Marko Milanovic — current lecturer at Nottingham, future President of Serbia — is as funny as he is brilliant.  The second was on Israel’s attack on the Turkish flotilla.  Although the representative of the Israeli government simply parroted Israel’s talking points (the government must have macros for them on all its computers, accessible by various functionaries at the push of a button), I was very impressed with the presentations by Naz Modirizadeh of Harvard’s superb Program on Humanitarian Policy and Conflict Research and by Sari Bashi, the Executive Director of Gisha, an invaluable Israeli NGO that protects the freedom of movement of Palestinians, especially those that live in Gaza.  Sari was simply brilliant, managing in a short 12 minutes to show — often using quotes by the Israelis themselves — how Israel’s blockade of Gaza is illegal even if we accept the Israeli government’s legal characterization of the blockade.  (Which, of course, we shouldn’t.)  I also greatly enjoyed the lunchtime talk given by Fatou Bensouda, the deputy prosecutor of the ICC, although I had to listen to it through the door of the conference room because I forgot to purchase a ticket.  Bensouda’s talk, which demonstrated both her legal acumen and her deep humanity, reaffirmed my belief that she would be an ideal replacement for Moreno-Ocampo in 2012.

The very best part of the conference, however, was meeting so many Opinio Juris readers.  At least 20 people came up to me and told me how much they liked the blog.  (That they liked my blogging was less common.)  It is incredibly gratifying to know that the blog remains a vital part of the international-law conversation after so many years.  I can only hope that the next five years will involve more of the same.

Declaring War and Libya: A Comment on Past Practice

by Michael Ramsey

My previous post argued that the original meaning of the declare war clause requires the President to get Congress’ approval before beginning military conflicts (including the current conflict in Libya).   I’ll now turn to two leading counterarguments: first, that Presidents have routinely engaged in low-level conflict without Congress’ approval; and second, that the President’s action to enforce a resolution of the U.N. Security Council differs from ordinary war.

I’ll take the historical practice first.  To start, it’s important to note that my reading (and basically every reading) of the declare war clause allows the President independent power to respond with force when the U.S. is attacked.  The clause only means that the President must get Congress’ authorization to begin a war (that is, to “declare” it).  As Madison said at the Constitutional Convention, the President has power to “repel sudden attacks” (though exactly how far this power extends is subject to serious debate).

Recognizing this power accounts for essentially all material presidential uses of force in the 18th and 19th centuries.  For example, in 1819 then-General Andrew Jackson attacked the Seminole tribe in Spanish Florida, as well as several Spanish posts, on the President’s orders but without Congress’ approval.  When some members of Congress objected, citing the declare war clause, Jackson’s defenders responded that the Seminoles, with Spanish support, had attacked first.  Similarly, at the outset of the Civil War, President Lincoln ordered a naval blockade of the South without Congress’ approval.  Lincoln argued that the South’s attack on Fort Sumter justified his response.

The Supreme Court accepted Lincoln’s argument in The Prize Cases, upholding the blockade.  The Court first stated the general rule that the President “has no power to initiate or declare a war.”  (67 U.S. 635, 668 (1863)).  But, the Court continued, once the other side began the war, the President could fight in response (including not just defensive but also offensive measures).  This holding is consistent with the argument of Jackson’s defenders in the Seminole conflict and Hamilton’s argument, mentioned in my last post, concerning the 1801 Tripoli conflict.

Thus longstanding historical practice – not just in the 18th century but throughout the 19th  – supports my view of the declare war clause: there was broad agreement that the President could not engage in hostilities independently unless the U.S. was attacked.  It was not until the 20th century that a practice arose of Presidents using military force without approval other than in response to attacks.  This practice of course has little bearing on the Constitution’s original meaning.

Perhaps, though, modern practice acts as a sort of precedent that allows the President’s action despite the Constitution’s original meaning.  This seems to be the core of Jack Goldsmith’s important post in support of the President’s power that I mentioned earlier.   Many attempts to apply the Constitution’s original meaning to modern circumstances must wrestle with the question of precedent.  But here I think the practice isn’t sufficient to raise the question, mostly for the reasons explained by Ilya Somin in this excellent discussion.  The short of it is, first, that there have not been all that many instances of Presidents unambiguously beginning military conflicts in the last 50 years (as opposed to sort-of-plausibly claiming to be responding to attacks or making deployments not involving actual hostilities).  And second, most of those instances have been strongly contested by members of Congress and legal commentators.

Just in the last decade, some members of the George W. Bush administration initially suggested in 2003 that the President might have power to attack Iraq without Congress’ approval, but this claim was widely criticized on constitutional grounds; the administration reconsidered and (successfully) sought approval.  Later, in 2007, there were rumors that the President might bomb Iran’s nuclear facilities.  Congressional leaders again strongly objected to any unilateral presidential action, invoking the declare war power.  Though his administration tested the boundaries of presidential power in several respects, Bush did not undertake any wars without Congress’ approval.

On this record, it seems hard to say – whatever force one gives to precedent generally – that practice has established a precedent sufficient to override the Constitution’s original meaning.  Historical practice before the 20th century gives little support to the President, and the only Supreme Court case to consider the matter expressly stated that the President lacked power to “initiate” war.  Modern practice is deeply contested, and has been at least since the Vietnam War.  As recently as 2007, congressional leaders sharply asserted Congress’ power under the declare war clause to approve a possible campaign of aerial strikes.  We’re far from a Constitution-altering consensus in the President’s favor.

There remains the question, though, whether the Libya intervention is different because it is being done by authority of a resolution of the U.N. Security Council.  I’ll turn to that question next.

Opinio Juris at ASIL: Cocktail Hour at 7:00 pm, March 24

by Peggy McGuinness

Greetings from Washington, where several OJ bloggers are attending the American Society of International Law Annual Meeting.  Congratulations to the meeting co-chairs and organizing committee for putting together a terrific program.  If you are attending the meeting or in Washington, please stop by The Bar at the Ritz-Carlton for an informal gathering of the OJ team at 7:00 pm tonight, March 24.  It’ll be great to see our friends and readers!

The Constitution and Libya

by Michael Ramsey

I appreciate the opportunity to guest blog on the Constitution and the Libya intervention.  In a post at Slate, Jack Goldsmith says that the Constitution’s original meaning in this area is “indeterminate.”  I respectfully disagree:  I think congressional approval is clearly required.  In this post I’ll set out my basic argument, and in the next one I’ll consider leading counterarguments.

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war.”  (References are found in my article “Textualism and War Powers,” 69 U. Chicago L. Rev. 1543 (2002), in part I.A).

Does the Libya intervention amount to a “war” in constitutional terms?  Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.”  International law writers of the time expressed similarly expansive definitions.  Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course. 

The fact that our use of force is limited to air strikes should not matter.  Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution).  The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801.  So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks.   (In 1801, Hamilton argued that authorization wasn’t needed because Tripoli, not the U.S., began the war; but he agreed that congressional authorization would otherwise be necessary even in the context of an attack on a single Tripoli warship.)

Thus the founding generation thought the Constitution reserved war-initiation power to Congress.  How could this be, though, if Congress has only the power to “declare War”, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities.  John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.”  Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way.  Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.”  Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks.  (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war. 

Perhaps, though, the President also has power to declare war (after all, the Constitution expressly says only that Congress has it, not that the President doesn’t, and it could be part of the President’s power as commander-in-chief).  Returning to Hamilton, a key passage in his Federalist 32 argued that often constitutional power could be held concurrently by different entities.  But, he continued, an exclusive grant of power would arise where concurrent power would be “totally contradictory and repugnant” – that is, when one branch’s exercise of a power would wholly undermine an express grant to another branch.  Hamilton didn’t give the example of declaring war here, but it fits his model: war, once launched, cannot be undone without consequences.  If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power.  James Wilson told the Pennsylvania ratifying convention:  “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

 As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.”  In Libya, President Obama has “declared” a war – a limited one, to be sure, but still a war by 18th century definitions – without congressional approval.  That contravenes both the Constitution’s text and the founding era’s consensus understanding.

Welcome Guest Blogger Michael Ramsey

by Duncan Hollis

We are pleased to welcome Michael Ramsey back to Opinio Juris, this time as a guest blogger. Mike is a Professor of Law at the University of San Diego Law School where he teaches U.S. Constitutional Law, Foreign Relations Law and International Business Transactions. His scholarship often focuses on U.S. foreign relations; he is the author of The Constitution’s Text in Foreign Affairs (Harvard Univ. Press, 2007) and his articles have addressed a range of topics, including the original scope of Executive Power and the distribution of war powers. Before joining the USD, Mike clerked for Ninth Circuit Judge J. Clifford Wallace and U.S. Supreme Court Justice Antonin Scalia. He has taught as a visiting professor for the University of California, San Diego, Department of Political Science and for the University of Paris-Sorbonne, Department of Comparative Law. Currently, he is visiting at Melbourne Law School. Welcome Mike!

Can the Coalition Lawfully Target Gaddafi?

by Kenneth Anderson

Can the coalition forces using force in Libya under the Security Council’s authorizing resolution lawfully target Gaddafi personally?  This question has provoked some heated back and forth among political leadership of several coalition countries, including the US and the UK:

Yesterday a war of words erupted between the U.S. and Britain after the U.K. government claimed Muammar Gaddafi is a legitimate target for assassination. U.K. government officials said killing the Libyan leader would be legal if it prevented civilian deaths as laid out in a U.N. resolution. But U.S. defence secretary Robert Gates hit back at the suggestion, saying it would be ‘unwise’ to target the Libyan leader adding cryptically that the bombing campaign should stick to the ‘U.N. mandate’.

Here is my very quick take.  The international law questions are two; followed by a US domestic law question (and not the Constitutional law, separation of powers question being hotly debated):

First, under the laws of war generally, would targeting Gadaffi personally be lawful?  Quick answer: Yes. As commander of Libya’s armed forces (which might be the case whether he is a civilian or a military officer), as a matter of status as well as operational fact, Gaddafi is a lawful target.  There are many difficult questions of when it is lawful to target a person — status, participation in hostilities, etc.  Some of them involve hard questions of interpretation of law; others include hard questions of what is the proper, or most plausible, understanding of the law itself.  But it is not necessary to jump into those issues to find that Gaddafi can be targeted; his does not appear to be a hard case.

Second, under the terms of the Security Council’s authorizing resolution to use force, is it lawful  to target Gaddafi personally?  Quick answer: Yes. The text of Security Resolution 1973 (2011) reads with reference to protection of civilians (and repeats the same language with reference to the no-fly zone), and under the mandatory authority of the Council under Chapter VII:

Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, totake all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi … (emphasis added).

The resolution thus protects a category of persons, “civilians,” and a geographical status, “civilian populated areas that are under threat of attack.”  It does so by permitting “all necessary measures.”  Does this permit the targeting of the political and military leadership at the top that is attacking or threatening to attack civilians or civilian areas?  “Necessary” could be read here as a term of limitation, but it is joined to “all,” which effectively runs the other way (it does not say “only,” for example).  Additionally, however, “necessary” itself can also be read as a term of authorization — viz., the Council has issued not merely an invitation, but a mandate, to end the attacks and threats of attacks.  In that sense, “necessary” can be understood plausibly as an instruction to accomplish the mandate by the means necessary.

Each of these is a plausible reading, and indeed each contains an element of what seems to be intended by the resolution, limitation and expansion.  On that basis, then, it seems quite plausible to read the language permissibly to undertake whatever the coalition military authorities conclude is prudentially required, all other legal issues being equal, to end the attacks and threats of attacks.  The permissive notion of “necessary” here carries an element of the prudential aspects of “military necessity,” conceptually though not in a strictly legal sense.  As in the first, general laws of war question, above, it is easy to make a case that the most efficient route for ending the current regime’s ability to attack civilians is to end the regime’s current leader.  It is equally easy to make that case for ending the regime’s ability to threaten civilians, whether immediately or into the future.  Indeed, one might well argue that at this juncture, it is the only way; that conclusion is not foreclosed by the text of the resolution.

Third, as a matter of US domestic law and regulation, would US forces targeting Gaddafi personally constitute a violation of the US executive order that prohibits “assassinations”?  Quick answer:  No. The executive order — revisable by a new order by the President, and not a statute — does not define assassination and has remained controversial as to its scope.  State Department Legal Advisor Harold Koh, as well as his predecessor from the time it was promulgated, Abraham Sofaer, have each given authoritative statements as to how the executive branch sees the executive order, and its meaning is highly restrictive in their interpretations.

However, it is not necessary to enter those discussions in this case.  No one in any position of authority, so far as I am aware, has ever suggested that the ban would apply to a person otherwise lawfully targetable in an international armed conflict under the laws of war.  Irrespective of the conflict’s status for Constitutional purposes, it is an interstate, international armed conflict for purposes, governed by that body of law’s rules on targeting.  If the analysis of the first question is correct, Gaddafi is a lawful target; no authority of which I am aware has ever argued that in the midst of an armed conflict, the targeting of a lawful target would violation the assassination ban.

[Thanks for the correction on my question two, commenters!]

Update:  I see that Dapo Akande has weighed in with an analysis well worth reading over at EJILTalk!

Max Boot’s Curious Understanding of the Taylor Trial

by Kevin Jon Heller

In a post today at Commentary, Boot argues that Taylor’s arrest after going into exile makes it more likely that Gaddafi will fight to the death instead of negotiating a gracious exit from power:

Once upon a time, an autocrat could step down and live out his days securely in the south of France or some other plush locale. That option still exists for some; for instance Tunisia’s deposed strongman, Ben Ali, is now in Saudi Arabia. Maybe he’s even taken over Idi Amin’s old villa.

But Qaddafi is a special case because he has committed war crimes such as the bombing of Pan Am flight 103. He knows that if he leaves power he could wind up in the dock at the International Criminal Court.

The ability of the international coalition or the Libyan opposition to make a deal for his abdication has been complicated by the Charles Taylor precedent. Taylor was the former president of Liberia who left office in 2003 as part of an agreement that allowed him to escape into exile in Nigeria. But Interpol promptly issued an arrest warrant for him and in 2006 Nigeria handed him over to the UN’s Special Court for Sierre Leone. Eventually he wound up in the custody of the International Criminal Court in the Hague where his trial continues to drag on.

I have generally been supportive of the ICC as a tool for holding war criminals to account but incidents such as this are clearly an example of proceduralism run amok: in return for getting Taylor into court, we are making it more difficult to depose other dictators. Qaddafi has every incentive to fight to the death and take a lot of people down with him.

There is, however, a fatal flaw in Boot’s argument: Taylor was indicted by the SCSL before he stepped down, not after.  David Crane filed the indictment on 3 March 2003; the Trial Chamber confirmed the charges on March 7; and Crane unsealed the indictment on June 4, while Taylor was attending peace talks in Ghana.  Taylor then stepped down and went into exile on August 11.

Taylor stepped down, then, even though he knew that he was facing international prosecution.  The lesson of the Taylor prosecution is thus precisely the opposite of what Boot argues: namely, that domestic considerations play a much more important role in an autocrat’s decision to give up power than international ones.  If an autocrat enjoys domestic support, he will hold onto power as long as he can; if he loses that support, he will go into exile (or be removed from power) regardless of whether he faces eventual prosecution before an international court.  That was true for Taylor, and it remains true for Bashir.  There is no reason to think that Gaddafi’s calculus will be any different.

Caution on the Private Manning letter

by Michael W. Lewis

Although the publicly available information indicates that there is cause for concern about how Private Manning is being treated, and an impressive array of legal academics and others have signed the Ackerman/Benkler letter condemning that treatment, there are two reasons why I hesitate to join them. My first reason for hesitancy is best illustrated by the letter’s use of ellipses. In support of its claim that Manning’s treatment may constitute torture, the letter says that the torture statute defines torture as, inter alia, “the administration or application… of… procedures calculated to disrupt profoundly the senses or the personality.” The actual language of the statute is not significantly longer and reads in full: “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.” While the first set of ellipses merely eliminates a redundant phrase, the second set obscures the fact that the statute’s definition was directed primarily at prohibiting the use of “mind-altering substances” and that the term “other procedures” is to be read in light of the prohibition against mind-altering substances. This exclusion may simply be viewed as effective advocacy. If that is the case it is appropriate to consider the tension between scholarship and advocacy and the effect that choosing one mode of communication over the other has upon both the message and the messenger. This is particularly true where, as here, the message is being advanced as the opinion of legal scholars.

More importantly I have concerns about the letter’s assertion that Private Manning’s treatment may amount to torture, and the effect that may have on the definition of torture. The recent past has clearly illustrated how malleable the definition of torture may be and the harm that this indefiniteness may cause. This malleability has been used on many occasions by governments, American, British, German and Israeli to name just a few, to justify interrogation techniques that many believe to be torture. There are two possible responses to this. One is the approach taken by the letter which acts on the proposition that malleability has been used for the “wrong” (human rights’ limiting) reasons in the past and should now be used for the “right” (human rights’ expanding) reasons today. There are two flaws inherent in this approach. The first is that by expanding the definition of torture to encompass Private Manning’s treatment as a “procedure designed to disrupt profoundly the senses or personality” it threatens to undermine the peremptory nature of the norm against torture. Solitary confinement alone certainly profoundly disrupts the senses, yet if that is considered torture then we must either end such confinement for all individuals, no matter how dangerous they are to themselves or others or how dangerous others may be to them, or we must make an exception to the absolute prohibition against torture. Such exceptions, as we have constantly seen with “ticking time bomb” scenarios, severely undermines the prohibition against torture to the point of ineffectiveness. More importantly from a practical standpoint, flexibility and indefiniteness in the definition of torture which this approach encourages, has been far more frequently used to undermine human rights than it has been used to protect them.

The other approach is the one I take here, which asserts that the prohibition against torture must be viewed as absolute and that torture can and should have a clear definition that does not change between September 10 and September 12. That definition can be fixed in a manner designed to withstand national security pressures in times of crisis while preventing most of the excesses attributed to American, British, German and Israeli captors/interrogators. However, it is unlikely that the definition I propose would find that Manning’s treatment constitutes torture.

Eric Posner Discusses ‘Executive Unbound’ at Volokh Conspiracy

by Kenneth Anderson

In case you weren’t aware, Eric Posner is discussing his and Adrian Vermeule’s new and highly provocative book, The Executive Unbound, in a series of posts this week at Volokh Conspiracy.  The Libyan conflict has unsurprisingly raised the stakes over this discussion – Eric is engaging with vigor, and linking up the book’s argument to current events and arguments.  Well worth reading.  The latest post by Eric is here, and it concludes:

[Andrew] Sullivan exaggerates but gets at the essential truth, which is that the imperial presidency has been institutionalized, as Adrian Vermeule and I argue in The Executive Unbound. On Congress’ tomb should be inscribed this epitaph, courtesy of a Democratic congressman: “They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress.” As for the Republicans, with some trivial exceptions, they range from complaining that Obama did not communicate with them (nothing about consultation let alone a vote of some sort) to complaining that he did not act aggressively enough!

Strategic Ambiguity and Libya

by Kenneth Anderson

Many commentators have discussed the “strategic ambiguity” — undoubtably purposeful — of the Security Council’s resolution authorizing the use of force in Libya.  The resolution speaks of protection of civilians, but nowhere nails down the following, among many other issues:

  • Is regime change a lawful policy as the means to protection of civilians?  There is little question that the Obama administration believes that it is the preferred outcome, but is that built into the terms of the SC resolution?  Alternatively, does the resolution permit only narrow actions either in defense of civilians coming under direct attack?
  • Are the civilians only those who are genuinely non-combatants, or does it include, as has been suggested, even those civilians who have taken up arms in rebellion?  Meaning, does it include fighters who take part in hostilities but who are, under current rubrics in the law of armed conflict, regarded by many as still “civilians” even if targetable by opposing forces on account of their participation?
  • Does the US remain committed to its Kosovo-era view that Security Council authorization for humanitarian intervention might be a good idea or legitimizing or diplomatically useful — but not a legal necessity?  Or has it by implication, and by the decidedly expansive language of its diplomats, accepted — or at least significantly furthered — the idea that only the Security Council can authorize such expeditions.  This was, after all, what the 2005 UN reform Final Outcome document — a General Assembly resolution, but one with greater diplomatic weight than most, because of its connection to a larger UN reform debate — said about the much-debated Responsibility to Protect, that it required Security Council authorization.

The fundamental fudge in all of this debate arises over the meaning of “humanitarian” action in relation to the use of force.  It might have a broad meaning that endorses, in this particular instance, regime change as the only way to achieve the humanitarian outcome — in other words, taking sides in the war, but without openly acknowledging it.  Or it might have a narrow meaning (or several potential narrow meanings) that limits intervention to “neutral” humanitarian activities.  Ensuring the delivery of humanitarian aid might be one such activity, even if it means using force; but the activity itself does not take sides and remains neutral.  Or it might have a narrow meaning that allows the interventionists to target fighters insofar as they are engaged in unlawful attacks upon civilians; once again, the interventionists are “neutral” and in a role akin to referees to ensure that the fighting sides leave the true non-combatants out of it.

Different parties — read China and Russia and many other countries in the world not present on the Security Council — are able to take the Security Council resolution in any of these or other ways.  It was almost certainly drafted precisely to that ambiguous end.  The upside, of course, is that it provides an avenue by which parties can move forward.  The downside, equally obviously, is that precisely that features that make ambiguity attractive in the short run are the features that cause it to come-a-cropper in the longer run.  A longer run that, in the case of Libya, might turn out to be days or weeks rather than years or decades.

Strategic ambiguity, as I discuss in a certain forthcoming book, is often a bad idea for these reasons, no matter how beloved of diplomats.  It indeed has an honorable, if occasional, place: the fiction of the two Chinas has long been a useful ambiguity, since the alternative might be a truly devastating conflict.  The question is one of judgment as to whether ambiguity lessens or instead stores up greater trouble in the future. Continue Reading…

Warren Christopher

by Peggy McGuinness

I was deeply saddened to hear of Warren Christopher’s passing this weekend. He was one of the last lawyer-statesmen of his generation within the Democratic party establishment – a veteran of World War II, with service in the Johnson and Carter administrations before being named Secretary of State by President Clinton. Jim Fallows’ has a lovely tribute here, which honors the local Southern California roots of Christopher’s public service and his engagement on the national and international scene. I had the honor to work as a junior assistant to Christopher during the first year of the Clinton administration, and came to admire him tremendously as a lawyer, statesman and mentor.

The press corps was not terribly forgiving of Christopher in those first months, which were marked by American hesitancy and perceived inconsistencies in approaches to the war in the Balkans (Christopher was initially reluctant to commit troops to the region), the attack on US Army Rangers in Somalia, and later the genocide in Rwanda. Many have faulted Christopher for not playing a stronger hand in guiding the young, inexperienced president through those rough foreign policy waters. In part, Christopher bore the brunt of the blame because he was the most visible face of a policy in disarray. I learned important lessons about the fickle nature of press coverage and the pressures of Washington politics in those first few months, and was constantly impressed by Christopher’s ability to remain focused on the job at hand and by his sheer energy and doggedness in shouldering the considerable burdens of the job. (He was in his late 60s when he took the position, which is remarkable in itself.)  Working with Christopher and the attorneys he had brought with him from O’Melveny – including his then-Chief of Staff and Obama National Security Adviser Tom Donilon – offered a new window on problem solving and negotiation. Lawyers and career diplomats have much in common, but they come up through different training and apprenticeships, a difference which is reflected in their styles and methods of problem solving.

As many have observed over the years (including Christopher himself, who was refreshingly self-aware), he possessed neither a sparkling public persona, nor a compelling public speaking style. The latter was a major point of frustration for his speech writers and aides. He was, as Jim Fallows noted, the opposite personality type of the late Richard Holbrooke – with whom he crafted the 1995 Dayton Accords to end the war in Bosnia. Indeed, their opposite characteristics – Christopher was taciturn and discreet, where Holbrooke was flamboyant and constantly schmoozing counterparts and the press – served as useful complements in that process. Christopher’s diplomacy was in the model of the quiet, back-room negotiator which had made him a successful corporate lawyer.  He said on more than one occasion that he was most proud of his own leadership of the quiet negotiation that led to the safe return of the U.S. hostages from Iran under the terms of the Algiers Accords.

He was unfailingly gracious and impeccable in dress and manner, known for his bespoke suits and ever-present pocket squares. I remember warmly his meeting with my family when they took a tour of the State Department; my father was both shocked and thrilled that the Secretary of State would take the time to meet them. On another occasion, en route to Capitol Hill to testify, I was carrying the briefing books and sitting in the tiny “jump seat” of the Secretary’s limousine. As he was being briefed by Tom Donilon, the Secretary quietly leaned over and gently adjusted the collar of my suit jacket, which was askew. There was something quite charming in that small gesture. When I made my own transition from the diplomatic corps to the law, Christopher was supportive and encouraging of a career path with a foot in both law and diplomacy. He believed in balancing service to country, to the profession, and to the community, and he leaves an impressive legacy in each. His was a model of the life well lived. My deep condolences to his family. 

Libya and the Three Modes of the Security Council

by Kenneth Anderson

In my forthcoming book on US-UN relations (appearing this summer from Hoover Press), Living with the UN, I describe three different “modes” of the Security Council.  By this I mean ways in which the Security Council might function, for some given situation, in regards to international peace and security.  (An early version of this is found in this paper on the Security Council in a multipolar world at SSRN, and I will post a non-final-edited version of the chapter from the book to SSRN as well.)  The three modes are:

  • The Security Council as the “management committee of our fledgling collective security system.”  The phrase “management committee” comes from Kofi Annan, who used it repeatedly in his final months as Secretary General.  It refers to the Security Council as acting as a genuine “corporate” whole to make global determinations and take action regarding international security.
  • The Security Council as the “concert of the nations,” acting as the conduit great powers, or at least a sizable number of them, in concert toward some end that has at least some blessing or acquiescence or non-veto by the members of the Security Council.  The difference from the management committee is that the Council acts  functionally not as a “corporate” body but instead a group of great powers, an agglomeration and not an entity.
  • The Security Council as the “talking shop of the nations.”  In this mode, the Security Council is just that — a negotiating space for the great powers, in which one hopes they reach a modus vivendi with respect to themselves and others.

Continue Reading…

DeGirolami on the ECtHR decision in Lautsi v. Italy: Display of Crucifixes within “Margin of Appreciation”

by Peggy McGuinness

My St. John’s colleague Marc DeGirolami has a post up at Mirror of Justice summarizing today’s European Court of Human Rights decision in Lautsi v. Italy.  The full decision is at the ECtHR’s website here.  At issue in the case was the display of crucifixes in Italian public school classrooms. In 2009, the ECtHR ruled against Italy’s display of the crucifixes, igniting a political firestorm across Catholic states in Europe.  Today’s 15-2 decision by the Grand Chamber of the court is issued following an 2010 acceptance by the Grand Chamber of referral by Italy. (Referral to the Grand Chamber operates sort of like an en banc appeal.) It reverses the earlier opinion, finding the display of the crosses is public schools fell within Italy’s “margin of appreciation” and is therefore not a violation of the European Convention of Human Rights. From Marc’s  post:

What [according to the court] is the meaning of the crucifix?  “[T]he crucifx is above all a religious symbol . . . . The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive[.]”  (66)  The Court therefore did not decide for itself whether the crucifix partook of an identitarian or cultural meaning independent of and in addition to its religious meaning.  But it accepted that the State (here Italy) believed that the crucifix was a symbol with multiple meanings, some of which were foundational as to its civic traditions, and…and here is the key…”the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State.”  (68)

The concept of the margin of appreciation, interestingly enough, in some ways is similar to the doctrine of subsidiarity (see Prof. Paolo Carozza’s excellent work here) and the concept was absolutely crucial to the Court’s judgment.  Because of the well-documented lack of consensus among and even within the European states, and because the crucifix was a “passive symbol” (compare the Folgero and Zengin cases out of Norway and Turkey, respectively — par. 71) whose purpose was not “indoctrination,” the decision whether to retain the crucifix fell within Italy’s margin of appreciation.  (70-72).

Libya No-Fly Operation: What Comes Next?

by Peggy McGuinness

Now that the supporters of a no-fly zone over Libya have got the legal authority they required  — both international and domestic (I agree with Peter that the president does not need additional congressional authority to vote for and contribute to a UN SC action) — what comes next? Despite herculean efforts by the punditry to analogize the situation in Libya to Iraq, Kosovo, Bosnia, Sudan, Afghanistan, etc., the end game for this conflict seems to be more of a black hole than any in recent memory.  And the swiftness of this turn of events is pretty stunning.  President Obama’s State of the Union address at the end of January had no mention of Egypt, Tunisia, Bahrain, or Libya.  Just 45 days later, we have committed to an open-ended UN Chapter VII operation that authorizes “all means necessary” to protect the civilian population of Libya from its own government.  Outside of the response to the attacks of the 9/11, I can’t think of any time there has been so swift an enforcement action against a member state of the UN. And, in the case of Afghanistan post-9/11, the “government in exile”, not the Taliban, continued to hold the Afghan seat at the UN.  There are many observers, like Anne-Marie Slaughter, who believe the international community has been too slow in this case. But relative to past Chapter VII actions, this is lightening speed.

So, what next? The history of Chapter VII operations — and other non-UN authorized interventions like Kosovo and Iraq — tells us that lots can go badly wrong for the intervening powers at this stage.  Andrew Sullivan has usefully rounded up the reactions from the punditry here.  I share Marc Lynch’s sense of feeling conflicted, which he discusses here at Foreign Policy.   Lynch describes what it means for the no-fly to “succeed”:

The intervention is a high-stakes gamble. If it succeeds quickly, and Qaddafi’s regime crumbles as key figures jump ship in the face of its certain demise, then it could reverse the flagging fortunes of the Arab uprisings. Like the first Security Council resolution on Libya, it could send a powerful message that the use of brutal repression makes regime survival less rather than more likely. It would put real meat on the bones of the “Responsibility to Protect” and help create a new international norm. And it could align the U.S. and the international community with al-Jazeera and the aspirations of the Arab protest movement. I have heard from many protest leaders from other Arab countries that success in Libya would galvanize their efforts, and failure might crush their hopes.

The problem with even this rosiest view of success is that it doesn’t tell us what, beyond the end of Qaddafi’s regime, the end game is.  What does post-Qaddafi Libya look like? (Or, to frame it as a question I heard asked last week:  can you name three Libyans in public life other than Qaddafi or someone with the last name Qaddafi?)  Frederic Wehry has a useful primer up at Foreign Affairs on the Libyan political landscape and the likely make-up of the post-Qaddafi ruling class, which raises lots more questions about who would be in control.  And is there any historical precedent to suggest that the western powers leading the no-fly effort (with only a thin veneer of political cover from the Arab League)  would not be (a) drawn directly into and/or (b) held responsible for what happens next?  Who among the regional powers has the capacity to broker and, most importantly, keep some kind of post-conflict peace arrangement?  Military, economic, political, and administrative capacity matters in these sort of large-scale interventions, and interventions that take place before a workable peace agreement is in place are the least likely to succeed.  (Two 2005 Rand studies on UN- and US-led interventions documented the importance of settlements on the ground before stability and nation building operations can succeed.)

Even the idea that the intervention could establish a new “norm” for R2P and humanitarian intervention is on pretty shaky ground. In Libya’s neighborhood the bloody crackdown in Bahrain is being largely played down and the only intervention has been by the Saudis seeking to bolster the status quo rather than hasten a path to reform. Norms only solidify if they are broadly accepted and are seen as effective. So, if Qaddafi does go quickly? Lots of hard decisions to come about stabilization and nation building.  And if he doesn’t go quickly?  No norm setting, and lots of hard decisions ahead about the escalation of regional and international involvement.

Call for Papers: Inaugural ASIL Research Forum

by Peter Spiro

Kal Raustiala asked that we post the following.  Sounds like an excellent initiative on ASIL’s part.

Call for Scholarly Papers
The Inaugural ASIL Research Forum
November 4-5, 2011

The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011.

The Research Forum is a new initiative of the Society aimed at providing a setting for the presentation and focused discussion of works in progress. The Spring Annual Meeting does this in part through its “works-in-progress” sessions, but the Research Forum aims to do this exclusively.

The Research Forum will be held in the fall and, as possible, coordinated as an integral part of the Fall ASIL Mid-Year Meeting. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Interested participants should submit a proposal (preferably 500, and no more than 1,000, words in length) summarizing the scholarly paper to be presented at the forum. Papers can be on any topic related to international and transnational law. Works-in-progress are particularly encouraged. Interdisciplinary projects, empirical studies, and jointly authored proposals are welcome.

Submissions should be sent to 2011forum [at] asil [dot] org by April 30. Proposals will be vetted anonymously by the Research Forum Committee with selections to be announced by June 15.

At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers.

The 2011 ASIL Research Forum Committee

Laura Dickinson (ASU) CoChair
Kal Raustiala (UCLA) CoChair
Mark Drumbl (Washington & Lee)
Nienke Grossman (Baltimore)
Mary Ellen O’Connell (Notre Dame)

Would Libya No-Fly Zone Require Congressional Authorization?

by Peter Spiro

Bruce Ackerman and Oona Hathaway say yes; Jack Goldsmith, no.  I’m with Jack on this one.  Especially as authorized by the UN Security Council, there’s solid precedent for proceeding without an advance congressional okay.  As Jack points out, Kosovo is probably the closest analogy in terms of the scope of the operation (a case in which authorizing legislation was voted on and defeated).  Somalia evidences some constitutional significance to the UNSC authorization, reflected (against type) in this OLC memo from Bush I OLC head Tim Flanigan, under cover from AG Bill Barr (hardly a softy on international law).

Whatever argument one might make for authorization, it certainly doesn’t require a formal declaration of war, which Richard Lugar is reportedly asserting (so wacky it’s almost hard to believe that the reporting is accurate).  Lawprof congressman Tom Campbell introduced a joint resolution declaring war against Serbia during the Kosovo bombing, which was defeated by a vote of  427-2.  This aside, we can expect a debate on the authorization question.  Republicans will now be asserting congressional power; Democrats, executive prerogatives; you are where you sit.

Could R2P Justify a No-Fly Zone in the Absence of Security Council Approval?

by Natalie Oman

The following is a guest post by Natalie Oman, an Assistant Professor of Legal Studies at the University of Ontario Institute of Technology in Canada.

As the Libyan rebels’ requests for an internationally-enforced no-fly zone have multiplied and regional support has coalesced among the Arab League, the GCC and some members of the African Union, public hand-wringing over the lack of a Security Council resolution to ‘legalize’ such action has intensified. But Security Council authorization under Chapter VII of the UN Charter is not the only available legal basis for military action to close Libyan airspace.

As is well-known, in 2001, the International Commission on Intervention and State Sovereignty (ICISS) identified what it described as a crystallizing principle of international law – the responsibility of states to protect the ‘human security’ of their citizens. According to the Commission’s reading of evolving customary international law, when states fail to fulfill this fundamental role, the responsibility to protect devolves upon state-members of the international community.

Led by the United Nations, this principle has been developed as a central plank in the current Secretary-General’s human protection agenda. The interpretation of the responsibility to protect championed by the UN (‘R2P’) is ‘narrow but deep,’ holding that the principle applies only when threats to human security take one of four forms: possible genocide, ethnic cleansing, war crimes, or crimes against humanity. Key to the R2P view is the assertion that the principle is a moral and political one, with no legal character. It follows that military intervention for human protection purposes is only legal on this account when approved by the Security Council (or in rare cases, presumably involving a Uniting for Peace resolution, by the General Assembly).

But this isn’t the whole story, because the UN’s interpretation of the responsibility to protect is not the only one possible. It is plausible not only to regard the responsibility to protect as a legal principle in line with the ICISS’s account, but also to understand it as possessing an over-determined legal character, with its origin in multiple sources of international law. There is evidence to suggest that the responsibility to protect can be interpreted not only as a product of customary international law, but perhaps more revealingly as having its source in ‘the general principles of law of civilized nations’ identified in Article 38(1) of the Statute of the International Court of Justice.

The means by which general principles of international law come into being are under-explored in international legal research and jurisprudence…

Letter Protesting the Treatment of Bradley Manning (Updated!)

by Kevin Jon Heller

As of March 19, 220 academics have signed the letter.  (You can read the full list here.)  Well done, colleagues!

Bruce Ackerman (Yale) and Yochai Benkler (Harvard) are circulating the following letter protesting the inhumane conditions of Bradley Manning’s detention and asking for law professor support.  I have already signed, as have 103 other scholars.  I encourage our academic readers to do the same.  You can add your support at the email below.

Yochai Benkler and I invite members of the academic legal community to join us in signing the following statement, asking the Administration either publicly to justify, or end, the humiliation and mistreatment of Private Bradley Manning, the suspected whistleblower who is said to have leaked classified government documents to Wikileaks.

For background, you can read this editorial in today’s New York Times, The Abuse of Private Manning and get more details from Soldier in Leaks Case Will Be Made to Sleep Naked Nightly.

If you’d like to add your signature, please send your name and institutional affiliation to manningprofletterjoin [at] gmail [dot] com. We will post the signatories at this site at appropriate intervals.

UPDATE:Our initial draft relied on news reports in the major news outlets. Comments we received since then lead us to think that two facts may be overstated in the original draft:

1. The instance of forced nudity overnight and in morning parade apparently occurred once. The continuing regime apparently commands removal of Pvt. Manning’s clothes and his wearing a “smock” at night.

2. The shackling apparently occurs when Private Manning is moved from his cell to the exercise room, but not while walking during the one hour of exercise.
Other responses we have received suggest that there are claims of myriad other abuses that make conditions worse in various ways than we describe. We do not, and cannot, seek to adjudicate these factual claims. The conflicting responses underscore the need for a public, transparent, and credible response to the reported abuse, and cessation of those among them that cannot be justified.

Signatories added below in periodic updates. 104 signatories as of March 16, 5:00pm.

Private Manning’s Humiliation

Bradley Manning is the soldier charged with leaking U.S. government documents to Wikileaks. He is currently detained under degrading and inhumane conditions that are illegal and immoral.

For nine months, Manning has been confined to his cell for 23 hours a day. During his one remaining hour, he can walk in circles in another room, with no other prisoners present. He is not allowed to doze off or relax during the day, but must answer the question “Are you OK?” verbally and in the affirmative every five minutes. At night, he is awakened to be asked again, “are you OK” every time he turns his back to the cell door or covers his head with a blanket so that the guards cannot see his face. During the past week he was forced to sleep naked and stand naked for inspection in front of his cell, and for the indefinite future must remove his clothes and wear a “smock” under claims of risk to himself that he disputes.

The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment, and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application… of… procedures calculated to disrupt profoundly the senses or the personality.”

Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention. But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention. The Brig psychiatrist began recommending his removal from Prevention of Injury months ago. These claims have not been publicly contested. In an Orwellian twist, the spokesman for the brig commander refused to explain the forced nudity “because to discuss the details would be a violation of Manning’s privacy.”

The Administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.

If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pre-trial punishment. As the State Department’s PJ Crowly put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.

The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does; not what it says.

President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as Commander in Chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions –and immediately end those which cannot withstand the light of day.


Bruce Ackerman, Yale Law School
Yochai Benkler, Harvard Law School

Additional Signatories (institutional affiliation, for identification purposes only):

Jack Balkin, Yale Law School
Richard L. Abel, UCLA Law School
Peter Brooks, Princeton University
Joseph Fishkin, University of Texas School of Law
Lisa Hajjar, Department of Sociology, University of California
A. Michael Froomkin, University of Miami School of Law
John Palfrey, Harvard Law School
David Luban, University Professor, Georgetown University Law Center…

ASIL Annual Meeting and the WCL-Lieber Society Event

by Kenneth Anderson

Alas, I won’t be at ASIL this year, and apologies to everyone, as I will miss seeing folks.  But I did want to flag particularly the meeting that Kevin mentioned in his post, taking place on March 23, co-sponsored by my law school, Washington College of Law and ASIL’s Lieber Society, on emerging issues in the law of armed conflict.  It is a special program that will feature the winning papers from the Lieber Society competition on law of armed conflict, presented before a panel of senior scholars and experts.  I am sorry not to be in DC for this event, or for ASIL, but best wishes to everyone who attends.

Takeaways from the Raymond Davis Episode

by Peter Spiro

Now that it appears to have been resolved with the payment of “blood money” to the families of those killed by Davis, there may be some lessons here.

First, the compensation element poses an interesting precedent.  Though presumably ex gratia and at least nominally made by Davis in his personal capacity, payment makes victims whole while avoiding the risk of politically charged prosecutions.  Why not do it in all cases where there’s at least some sort of colorable claim, perhaps even by way of perfecting the assertion of immunity?

Second, the U.S. should explore legislative possibilities for asserting U.S. criminal jurisdiction over diplomats gone bad.  Assume that the killings in the Davis case weren’t justifiable homicide.  Although there are now reports that DOJ was looking into the incident, I don’t know that there would have been a basis for prosecution.  That could be corrected legislatively, and might go a long way to mollifying unhappy foreign publics (or at least give their governments some important cover).

The New Cover

by Kevin Jon Heller

Here it is:

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My thanks to all of our readers who provided me feedback on earlier covers.  Note that the dust jacket now provides a short description of Ben Shahn and the painting; particular thanks to readers who suggested the description!  I hope you can read the text on your screen.

East Coast Travels (Updated)

by Kevin Jon Heller

I don’t get to the East Coast of the U.S. very often these days, so I thought I’d mention that I will be in Boston and DC next week, in case any Opinio Juris readers want to meet up.  I will be giving a lecture on the Karadzic trial (with a bit of discussion afterward about the ICC and Libya) at Harvard Law School on Tuesday the 22nd.  The lecture, which will take place in Hauser 102 at noon, is open to the public.  I will then be in DC from the 22nd to the 26th. On the 23rd, I plan on attending this event on Darfur from 10-11:30 and this roundtable on IHL from 1:00-3:00.  I’ll then be milling about aimlessly at the ASIL conference for the next few days, with plenty of time for coffee.

I also want to add that Oxford University Press will have bound proofs of my book available for inspection at ASIL.  The book looks beautiful, as OUP’s books always do; I will try to post a new image of the dust jacket in the next couple of days. But by all means check the proofs out if you are at the conference!

UPDATE: Here is a link to the talk at Harvard Law School.

Guatemalans Bring Class Action Against United States for Syphilis Medical Experiments

by Roger Alford

A class action complaint filed this week by Guatemalans has all the ingredients for a blockbuster case not unlike the syphilis experiments of Tuskegee, Alabama. Regardless of the outcome of the case, it is a public relations nightmare for the United States. As the complaint alleges, “It has been revealed that despite … global attention to medical ethics following the Nuremberg Trials that had concluded eight months prior, the [United States Public Health Service] … sanctioned a VD [venereal disease] medical study in Guatemala…. This decision to move to Guatemala was part of a deliberate plan to continue the Tuskegee testing offshore, where it would not be subject to the same level of oversight as in the United States.” (p. 2-3).

The complaint raises ATS, constitutional, and state law claims. The ATS claims allege that the United States engaged in unlawful medical experimentation on non-consenting adults in violation of international law and violated international law prohibitions against cruel, inhuman and degrading treatment. The constitutional arguments raise Fifth Amendment substantive due process claims and Eighth Amendment cruel and unusual punishment claims.

In October of last year, Secretary of State Hillary Clinton and HHS Secretary Kathleen Sebelius apologized to the victims:

“The sexually transmitted disease inoculation study conducted from 1946-1948 in Guatemala was clearly unethical ,… Although these events occurred more than 64 years ago, we are outraged that such reprehensible research could have occurred under the guise of public health. We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices.”

However, according to recent reports, efforts to reach a settlement have failed.

As a legal matter the claim is weak. The statute of limitations has long since run on the claims, the United States enjoys sovereign immunity, and the Guatemalan victims are not within the class of individuals that enjoy constitutional protections. The U.S. Constitution simply does not travel abroad to protect foreigners against the foreign misdeeds of the United States. The Eighth Amendment is not applicable because the experiments were not part of a “punishment” in a constitutional sense. Nor is it even clear that the substantive due process claims that the plaintiffs rely upon were recognized at the time these medical experiments were conducted. The state law claims are not alleged with sufficient specificity to judge their merits. (Claims under the FTCA are not raised and would be unsuccessful anyway as that statute bars claims arising in foreign countries).

However, as a moral and ethical matter the United States should reach an appropriate settlement and compensate the victims. It is simply scandalous to conduct medical experiments on unsuspecting Guatemalans to test the effects of untreated sexual diseases. If the facts alleged in the complaint are true, the United States intentionally injected syphilis in Guatemalan prison inmates and mental patients. At precisely the same time Telford Taylor was prosecuting twenty-three German medical doctors at Nuremberg, the United States was conducting clandestine syphilis experiments of its own.

Does AP I Art. 75 apply to NIAC’s?

by Michael W. Lewis

There has been a good deal of discussion both here between Kevin Heller and Cully Stimson and over at Lawfare by Jack Goldsmith, Gabor Rona and John Bellinger on the impact of the Administration’s declaration on Additional Protocol I and it’s possible effect on hearsay admissions in military commission hearings.

While I agree with Jack and Kevin that it should not effect the military commissions it is for a reason scarcely touched upon in any of the other posts. That is the existence of Article 6 of Additional Protocol II, the AP II analog to Article 75(4) of AP I. While John acknowledges its existence he states that it is virtually identlical to Article 75, and he is right to a point, but it is the difference between these articles that is so critical.

It was the “right to examine . . . the witnesses against him” which prompted Cully to posit that this might undermine the hearsay exclusions found in the military commissions. This right is found in Article 75(4)(g) of AP I. However, unlike Article 75(4) which has ten subparagraphs (a-j), Article 6 only contains 6 subparagraphs (a-f). The included paragraphs are essentially identical, but Article 6 does not contain a subparagraph (g) or any language about a right to examine witnesses.

This matters because both the plain language of the Geneva Conventions and their interpretation by Justice Stevens in Hamdan, indicates that the conflict between the United States and Al Qaeda is a non-international armed conflict (NIAC) which is governed by Common Article 3 and Protocol II, as opposed to an international armed conflict (IAC) which is governed by the full panoply of the Geneva Conventions and Protocol I.

Because the Additional Protocols were drafted in parallel, AP I applying to IAC’s and AP II to NIAC’s, differences between the two would seem to reflect the contracting states’ desire to differentiate between the two types of conflict. As a result, claims that portions of AP I have become customary law for IAC’s, the field of conflict they were intended to regulate in the first place, are much stronger than claims that provisions of AP I have become customary law for NIAC’s. This is particularly true where, as here, the provision governing NIAC’s, Article 6, consciously excludes the very language that is being advanced as having achieved customary status (Article 75(4)(g)). In such a circumstance, absent a clear and unequivocal statement that a state considers itself bound by the AP I provision in the context of a NIAC, such AP I provisions cannot achieve customary status. The Administration’s statements regarding Article 75 and AP I fall well short of this mark.

I wrote at more length on this issue here in discussing the Hamdan opinion’s reliance on Article 75 rather than Article 6 in the context of a NIAC.

Egyptian Constitutional Reform: Presidential Eligibility Clause Only a Birther Could Love

by Peter Spiro

This from Gianluca Parolin in EUI’s excellent EU Democracy Observatory on Citizenship on proposed changes to Egypt’s constitution regarding presidential eligibility:

The current text (albeit suspended) requires the candidate to be an Egyptian citizen born of Egyptian parents.  The proposed text further requires the candidate and his (sic!) parents never to have acquired a foreign citizenship (thereby excluding also those who have renounced a previously acquired foreign citizenship), and not to be married to an non-Egyptian (woman — feminine in the text!).

I guess Obama is ineligible to succeed Mubarak.

In addition to being a little silly, entrenching this kind of requirement as a constitutional matter just raises the stakes for inevitable future disputes.  Several countries are grappling with dual nationality barriers to elective office that they probably wish they’d never adopted (Jamaica, Australia, and Ghana, among others).  Voters should be able to make up their own minds about whether an additional citizenship poses a real problem of loyalty.  Conflict of interest is a better way of thinking about the problem, such as one exists.

Let Slip the Coasean Bribes of War

by Kenneth Anderson

I am in transit and can’t comment on this now, but Ian Ayres offers this post via Freakonomics blog and Balkinization on war-time bribes to officers on the other side to switch sides or not fight.  Thoughts?  (Update:  I hope these links work now to the original articles.)

I have a mildly technical and pedagogical question … in what sense are these bribes “Coasean?”  If you wanted to use this as an example for a 1L class on law and economics, how would you explain this clearly and non-technically as being “Coasean”?  How might you formulate this as a final exam question for 1L Law and Economics.  No, I’m not going to use a question formulated on a blog post on the actual exam, but maybe as a sample question on how Coasean reasoning can be applied to things that 1Ls might not have imagined.  So I have this nagging pedagogical question — in what sense are these bribes “Coasean” — and that being so, what assumptions are being made about the nature of the bargaining situation to make it consistent with the three standard assumptions about Coase bargaining?

Kristof had previously suggested that the U.S. should assure safe passage for Libyan defectors.

But the officer’s story reminded me of an alternative, more economic, incentive deployed in Iraq, where the U.S. offered defecting officers cash to lay down their arms. As reported by Fred Kaplan inSlate in 2003:

A fascinating piece in the May 19 Defense News quotes Gen.Tommy Franks, chief of U.S. Central Command, confirming what had until now been mere rumors picked up by dubious Arab media outlets—that, before Gulf War II began, U.S. special forces had gone in and bribed Iraqi generals not to fight.

“I had letters from Iraqi generals saying, ‘I now work for you,’ ” Franks told Defense News reporter Vago Muradian in a May 10 interview.

The article quotes a “senior official” as adding, “What is the effect you want? How much does a cruise missile cost? Between one and 2.5 million dollars. Well, a bribe is a PGM [precision-guided munition]—it achieves the aim, but it’s bloodless and there’s zero collateral damage.”

A “Smart Bribe” can be a lot cheaper than a “Smart Bomb.”

Gideon Parchomovsky and Peter Siegelman (friends and coauthors) have published a fascinating article detailing the pros and cons of bribing enemy combatants to switch sides.

Ayres includes a chart from the Parchomovsky and Siegelman article that walks historically through instances of such bribes in wars in the past and the results; I’ll stick it below the fold, but you can get a more readable view at Ayres’ original post. Continue Reading…

Why The US Declaration on AP I Will Not Prevent the Admission of Hearsay

by Kevin Jon Heller

Our friends at Lawfare have been having a typically intelligent debate about the meaning of the Obama administration’s recent declaration that “The U.S. Government will… choose out of a sense of legal obligation to treat the principles set forth in Article 75 [of the First Additional Protocol] as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.”  I won’t try to recapitulate the debate; readers interested in IHL should check out the sequence of posts for themselves.  (You can start with John Bellinger’s guest-post here.)  I would, however, like to respond to a guest-post by Cully Stimson, a former Deputy Assistant Secretary of Defense for Detainee Affairs, in which he claims that the declaration opens the door to detainee arguments that hearsay is inadmissible in the military commissions:

Here’s the question: by recognizing Article 75 of API as customary international law, which includes in §4(g) the “right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf,” has the administration inadvertently (or intentionally) invoked the Confrontation Clause of the Sixth Amendment, thereby potentially gutting the relaxed rules on the admission of hearsay available to both sides in military commissions? … I believe that this will result in substantial pretrial, trial, and appellate litigation.

The idea that Article 75(4)(g) prohibits hearsay is incorrect.  Although the provision bears a superficial resemblance to the Sixth Amendment, it was in fact carefully drafted to accommodate both the common law and civil law approaches to evidence.  Here is the ICRC’s commentary on the provision:

According to the Rapporteur of Committee III, this provision was worded so as to be compatible with both the system of cross examination of witnesses and with the inquisitorial system in which the judge himself conducts the interrogation.

Properly understood, therefore, Article 75(4)(g) only applies to witnesses who actually testify during trial; it does not apply to hearsay declarants, much less adopt the common law’s understanding of the right of confrontation.

That limitation may seem artificial or counterintuitive, but it is consistent with the significant influence that the civilian tradition’s “free proof” approach to the admissibility of evidence has had on the development of international law.  Every international criminal tribunal since Nuremberg has followed the civilian approach, even though nearly all of them have adopted adversarial models of procedure.  And that includes limiting the right of cross-examination to witnesses actually called by the prosecution, as indicated by the (slightly more clear) text of Article 16(3) of the London Charter, which provided that “[a] Defendant shall have the right through himself or through his Counsel… to cross-examine any witness called by the Prosecution” (emphasis mine).  It would thus be doubly strange if Article 75(4)(g) prohibited hearsay.

American military tribunals, it is worth noting, have followed the civilian approach embraced by Article 16(3).  For example, Article IV(e) of Ordinance No. 7, which specified the evidentiary and procedural rules for the Nuremberg Military Tribunals, simply reproduced Article 16(3) verbatim.  And although three NMTs ignored the text of Article IV(e) in favor of the common-law approach to hearsay — Farben, Flick, and Hostage — they were in the minority.

I would much prefer a military commission system that prohibited the admission of hearsay.  Article 75(4)(g), however, doesn’t advance the cause.

Darfuri Rebels to Stand Trial (Maybe)

by Kevin Jon Heller

With all the attention being paid to the situations in Libya and Kenya, the situation in Darfur has receded into the background.  (Par for the course, unfortunately, with Darfur.)  So it’s worth noting that the ICC’s Pre-Trial Chamber I has confirmed charges against two Darfuri rebels alleged to have orchestrated a September 2007 attack that killed 12 African Union peacekeepers:

On Monday, 7 March 2011, Pre-Trial Chamber I of the International Criminal Court (ICC) unanimously decided to confirm the charges of war crimes brought by the ICC’s Prosecutor against Abdallah Banda Abakaer Nourain (Abdallah Banda) and Saleh Mohammed Jerbo Jamus (Saleh Jerbo), and committed them to trial.

In accordance with article 61 of the Rome Statute, Pre-Trial Chamber I found substantial grounds to believe that Abdallah Banda and Saleh Jerbo are criminally responsible as co-perpetrators within the meaning of article 25(3)(a) of the Statute, for three war crimes:

  • violence to life and attempted violence to life;
  • intentionally directing attacks against personnel…  involved in a peacekeeping mission;
  • pillaging.

These crimes were allegedly committed during an attack led by Abdallah Banda and Saleh Jerbo and other commanders and directed against the compound of the African Union Mission in Sudan at Haskanita on the evening of 29 September 2007. The Chamber found substantial grounds to believe that the attack was directed to personnel, installations, material, units and vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations which were entitled to the protection afforded to civilians and civilian objects.

As regular readers know, I am very ambivalent about these charges.  I have long argued that the ICC should consider attacks on peacekeepers to be particularly grave, even if they involve relatively few victims.  But I have also regularly criticized Moreno-Ocampo for his obsession with rebels, and I think this case is a perfect example of that.  Ordinary Darfuris are overwhelmingly opposed to the prosecution of rebel leaders, and with good reason — the rebels didn’t systematically kill, rape, and displace them; the Sudanese government did.  So I continue to believe that it would be  unseemly, damaging to the ICC’s legitimacy, and inconsistent with the spirit of the Security Council referral for the first Darfur-related trial to involve rebels instead of Bashir, Haroun, or Kushayb.

I have no idea whether Abdallah Banda and Saleh Jerbo will surrender themselves for trial; although they voluntarily complied with summonses in June of last year, they did not attend the confirmation hearing in December.  Stay tuned.

Does French Recognition Have Any International Law Consequences?

by Kenneth Anderson

I have some views, but they are not entirely solidified, so let me put this out as a question.  France has recognized the the rebels as the sole legitimate representatives of the Libyan people, and withdrawn its recognition of the Qaddafi government.  If that is so, what, if any, are the international law consequences of that recognition?

I understand that many readers think of this as having quite obvious, cut-and-dry answers, but let me encourage people to think in terms of plausible ways that different points of view within the main currents of international law might view the answer.  Legal effects, if any, with regards to the rebels; the arms embargo; assistance by France or others to the rebels; the rights and obligations of neutrals; the existence of a civil war or non-international armed conflict; the authority of the Security Council; etc.  Alternatively, is this merely a political-diplomatic step with no further international law consequences? Or some mingling of the two, such that such diplomatic recognition is intended to provide legitimacy for a related legal view?

The Libya Crisis and the ICC

by Peggy McGuinness

Although I support the Security Council referral of the Libya situation to the ICC, I do not have any degree of confidence that the ICC referral has not altered Moammar Qaddafi’s negotiating or fighting posture at this time.  I have no idea whether Qaddafi’s state of mind (if you can even refer to it in normal psychology terms) has or has not been altered by the ICC referral.  And whether Qaddafi himself says it has been or not would obviously be completely unreliable. On the other hand, I don’t think there is anyone in a position to say with any degree of certainty that Qaddafi would indefinitely remain in power if the ICC had not been invoked.  We need to acknowledge that the threat of prosecution for past crimes does have some effect on individual behavior.  (And in the case of Qaddafi, effectively cut off the chance that he could seek exile in Venezuela, a state party to the ICC.)  But we also need to be honest that we really have no reliable way of knowing, ex ante, whether that effect will include a worsening of atrocities and crimes themselves.  Sadly, we won’t really know until we have reached some sort of end point in the current crisis.  And even then it will be difficult to make any reliable determinations of what the alternative outcomes might have been.

On this question of bargaining away justice for peace, there is one minor parallel with the crisis in the Balkans in the 1990s.  Before the international community could agree on meaningful intervention in Bosnia, it created the ICTY.  Many at the time saw this as a move to be seen as “doing something,” without committing troops or using force to end the war.  One effect of that move to “do something,” as I have written about here, was a kind of “tail wagging the dog” scenario where, because  the framework for prosecution of past atrocities was created before the more robust intervention and the final peace process took place, the idea of criminal prosecution became a non-negotiable.  The U.S. and other western powers were able to temporarily postpone the danger that they couldn’t negotiate with potential indictees by lending only anemic intelligence support to the ICTY until after the Dayton process was over.  Still, once the court was in place, it had to be factored into any peace process.  In some ways it was a useful bludgeon (keeping Karadzic and Mladic out of Dayton); in other ways it limited options that some of the mediators might have wished to have on the table.  One of the concerns many of us have about the ICC as a permanent institution was the danger that a prosecutor could open an investigation without coordination with the other actions of the international community.   Disconnecting criminal prosecution from peace processes and/or transitions to democratic removes some flexibility and tends to narrow options for a negotiated peace.   The ICC statute as currently drafted preserves a role for the Security Council, and in the case of Libya, the referral itself was passed unanimously by the Council.  This means the ICC case is already a part of the international response. In fact, this was precisely the sort of referral process the U.S. supported in 1998 at the negotiations over the Rome Statute and, for me, is the highest best use of an ICC that is now a permanent part of the international legal architecture.  The Security Council is a deeply flawed instrument to reflect the power and will of the international community, but it is the best one we have.

From the Annals of Stupid Headlines

by Kevin Jon Heller

Today’s headline in the Wall Street Journal:

Threat of Trial Keeps Gadhafi Fighting.

Yes, because if the Security Council hadn’t referred the situation in Libya to the ICC, Gadhafi would clearly have transferred power to the rebels in an orderly and peaceful fashion by now.

Oh, well.  I don’t expect very much from the Wall Street Journal.  After all, in the very same article, the author claims that “the U.S. hasn’t ratified the ICC statute and doesn’t recognize its jurisdiction, in part because of fears that American soldiers and politicians could find themselves prosecuted one day for their involvement in the wars in Afghanistan and Iraq.”  Apparently, the author knows so little about the ICC that he doesn’t realize the Court already has jurisdiction over U.S. crimes in Afghanistan, which is a signatory to the Rome Statute.

France Recognizes Libyan Rebels

by Kenneth Anderson

The Wall Street Journal reports that France “formally recognized Libya’s main opposition group, the first country to do so.”

It is an excellent story and walks in brisk fashion through the latest moves in diplomacy and assessment of the military chances of the rebels.  However, it is prudent at this point not to over-interpret the implications of this report about France.  From a legal standpoint, there are degrees and types of recognition, and I have so far not been able to get more detail from either English or French-language press on what exactly this recognition is in a technical sense.  (I’d welcome more information if readers have any on what the French government has actually said, in English or French sourcing.)

Possibilities include, however: recognition of the rebels as the legitimate government of Libya, or recognition of belligerency and the rebels as a belligerent group.  These and more have different international law implications.   The US government seems to have suspended relations with the Qaddafi government and apparently plans to meet with some representatives next week.  But it has not moved to recognize the rebels in whatever way France has.

Update: Thanks Xavier – France recognizes the opposition as the only legitimate representative of the Libyan people and will be sending a diplomatic representative shortly.

Celebrating the Legacy of Louis Henkin at Columbia Law School

by Kevin Jon Heller

Our friends at Columbia Law School have asked us to announce a one-day conference celebrating the legacy of the late Louis Henkin.  The conference will be held on March 28 in Jerome Green Hall:

4:00-5:00 pm        A Commemoration of the Life and Legacy of Louis Henkin, JGH 104

Judge Rosemary Barkett, U.S. Court of Appeals for the Eleventh Circuit
Sarah Cleveland, Louis Henkin Professor in Human and Constitutional Rights; currently Counselor on International Law, Office of the Legal Adviser,U. S. State Department
Lori Damrosch, Hamilton Fish Professor of International Law and Diplomacy;Henry L. Moses Professor of Law and International Organization
David W. Leebron, President, Rice University
Peter Rosenblum, Lieff Cabraser Clinical Professor in Human Rights Law; Co-Director of the Human Rights Institute

Reception to follow in Drapkin Lounge

6:30-8:00 pm         Louis Henkin: A World of Ideas and Action, JGH 104

Moderated by: Sarah Cleveland

Andreas Lowenfeld, Herbert and Rose Rubin Professor of International Law Emeritus, New York University School of Law
Andrew Nathan, Class of 1919 Professor of Political Science and Chair of the Institute for the Study of Human Rights, Columbia University
Gerald Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School; Member, UN Human Rights Committee
Catherine Powell, Director, International Law and the Constitution Initiative, Fordham Law School; currently Office of Policy Planning, U.S. State Department
Sir Nigel Rodley, Professor of Law and Chair of the Human Rights Center, University of Essex; Member, UN Human Rights Committee

Dinner and refreshments will be provided.

Questions about the conference should be directed to Greta Moseson at greta [dot] moseson [at] law [dot] columbia [dot] edu.

Human Writes

by Roger Alford

I just received Anuradha Kumar’s book “Human Rights: Global Perspectives” from interlibrary loan. Perhaps they should increase the salary for book binders.

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Is @StateDept’s eDiplomacy Unit Going Slightly Rogue?

by Peter Spiro

Is Syria the next domino?”  That’s an official source asking, the State Department’s e-diplomacy unit, tweeting under the somewhat awkward handle eDipAtState.

Tweets from eDipAtState run the gamut, mostly re-tweets from other sources, but they suggestively tilt towards the next freedom fight.  Iran, Ivory Coast, Zimbabwe, Belarus — these are places were the US is on record as supporting change.  But there is also stuff relating to Saudi Arabia, Yemen, Mauritania, Morocco, Algeria, and other places where the US government either supports or is neutral with respect to governing regimes.  (Here’s another one that probably doesn’t jive with the official line.)  The tweets seem pretty clearly to be the product of one hand.  No clearance from Public Affairs or anyone else, since a lot of it is real-time.  (The e-Diplomacy office is not a part of PA at all.  It’s in the Bureau of Information Resource Management, State’s IT arm.)

Other State Department units have their own twitter accounts, some of which are also unsupervised from the center.  The US embassy in Pretoria (USEmbPretoria), for example, has produced almost 20,000 tweets, very little of it the kind of PR pap one might expect.  The focus is on human rights and turmoil elsewhere in Africa, but there have been recent items on China and Iran as well.  This is presumably a young foreign service officer having a little fun.  (PA Assistant Secretary PJ Crowley, meanwhile, has his own twitter account.  The product there is more clearly fine-tuned in the way of talking points.)

Not your grandfather’s kind of diplomacy.  Nothing necessarily wrong with it, presumably a conscious part of “21st Century Statecraft,” and another example of disaggregation.  But I have to wonder if there might be some implications, or at least the possibility of complications.

Federal Court Issues Anti-Suit Injunction Against Ecuador Plaintiffs

by Roger Alford

On March 7, a federal court in New York issued an anti-suit injunction order enjoining Ecuador plaintiffs from enforcing the $9 billion Ecuador judgment against Chevron. The injunction applies to all Ecuador plaintiffs and their counsel, including “directly or indirectly funding, commencing, prosecuting, advancing in any way, or receiving benefit from any action or proceeding, outside the Republic of Ecuador, for recognition or enforcement of the judgment.” (p. 125)
The most interesting part of the injunction is the Court’s analysis of international comity. It is, of course, a significant issue of international comity for a court in the United States to enjoin parties with respect to their litigation conduct in other jurisdictions. Applying Second Circuit precedent of China Trade v. M.V. Choong Yong, Judge Kaplan concluded that there were five comity factors in determining whether to issue an anti-suit injunction:

(1) frustration of a policy in the enjoining forum; (2) [whether] the foreign action would be vexatious; (3) [any] threat to the issuing court’s in rem or quasi in rem jurisdiction; (4) [whether] the proceedings in the other forum prejudice other equitable considerations; or (5) [whether] adjudication of the same issues in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to judgment.

In analyzing those criteria, the Court found that an injunction was appropriate: (more)

UN Releases Comments on Draft Articles on Responsibility of International Organizations

by Kristen Boon

The UN has just released its comments on the ILC’s set of 66 Articles on the Responsibility of International Organizations (“RIO”) as document  A/CN.4/637/Add.1 (available on the ILC website). The commentary is interesting both for what it says and what it doesn’t say. It should be noted that the comments take a more conciliatory view of the ILC’s enterprise than a number of other IOs who suggested the project should be abandoned. In certain cases, the UN even endorses the inclusion of a rule despite concerns about its implications in practice. (Eg, Art. 20 on Self-Defense).

Points of note include the UN’s detailed discussion of peacekeeping operations, in which they distinguish between command and control and UN authorized peacekeeping. According to UN practice, the UN assumes responsibility for the former, but not for the latter. The ECtHR’s failure to recognize this distinction led to the much criticized Behrami and Saramati decision. The UN’s commentary helpfully elucidates the potential application of Articles 5 & 6 of the Draft Articles (on attribution and effective control) going forward. Interestingly, it also shows that the UN’s application of effective control is broader than that proposed by the ILC, in that the UN notes it continues to assumes responsibility for peacekeeping missions under its command and control even after it has lost effective control.

The UN comments echo two common complaints about the ILC’s attempt to progressively develop the law relating to the responsibility of international organizations: limited practice, and the principle of speciality. In particular, the UN notes that IOs are not created alike, and the scope of their personality is a function of their specific mandates. As a result, the UN suggests that the recognition of lex specialis does not go far enough in recognizing the diversity of IOs.

The UN does not hold its punches on certain proposed articles. For example, it criticizes the current definition of “agent”, noting that the UN could be held responsible for an unjustifiably broad range of acts. It also notes how the pervasive references to “internal” rules need to be clarified. In addition, the UN suggests the ILC reconsider or even drop Articles 14 and 15, which address indirect liability from directing and controlling, or coercing another IO or State. The UN pushes back on Article 16, which would assign responsibility to an IO that authorizes members or IOs to commit an act that would be internationally wrongful if taken by the IO itself.

The UN’s commentary also interesting for what it doesn’t say. For example, Articles 40, 41 & 48 set out an aggravated responsibility regime applicable to breaches of peremptory norms.  These articles (common to RIO and the state responsibility articles) authorize IOs and states other than those injured, to invoke the principles of responsibility where erga omnes obligations are concerned. The State Responsibility commentary on the parallel provisions give as examples acts of aggression, apartheid, and genocide. Given the obvious overlap between these crimes and the Security Council’s jurisdiction, the UN’s silence on these articles is curious. Indeed, the aggravated responsibility regime is an area where primary norms have leaked into the secondary rules of responsibility, in that they prioritize community interests like peace. Moreover, these articles could legitimize non-institutional reactions to violations of certain international obligations, which might side-line an inactive Security Council.

A second provision that passed without much comment is Article 66. This provides that “the articles on responsibility operate without prejudice to the Charter of the United Nations.” The UN took a curiously technical approach to this article, simply reacting to the ILC’s commentary with regards to a reference to Article 103, and urging consistency on phrasing in the parallel article on State responsibility. What the UN does not acknowledge explicitly however, is that the interplay between the UN Charter and the rules of responsibility are likely to be significant going forward. Not only has the Security Council invoked principles of responsibility on a number of occasions (e.g. finding Iraqi responsible for the invasion of Kuwait and requiring it pay for damages), but states may use the law of responsibility as well, by for example,  invoking excuses like necessity before UN organs. Despite the ILC’s efforts to insulate the law of collective from the effects of the law of responsibility therefore, and we can anticipate considerable interplay going forward.

A Response to Milanovic and Verdier on Rights Beyond Borders

by Chimene Keitner

First and most importantly, my sincere thanks to Marko Milanovic and Pierre-Hugues Verdier for taking the time to offer such careful and insightful reactions to my work. I’m extremely fortunate to have them as “virtual” colleagues, and I appreciate the efforts of the YJIL editors and folks at Opinio Juris in creating a forum for this online exchange.

As Marko and Pierre-Hugues note, I focus on the interpretation and application of constitutional and quasi-constitutional rights — what I call “domestic rights regimes” — by domestic courts. This is both because the domestic rights story had not yet been told in comparative perspective, and because there are qualitative differences in how judges reason about domestic, as opposed to international, rights.

As Marko rightly notes, and as I discuss in the article (pp. 96-98), the case of the United Kingdom is peculiar insofar as the U.K. Human Rights Act is intended to give effect to protections under the European Convention on Human Rights. In some sense, then, rights under the HRA are hybrid, rather than purely domestic. Marko expresses the view that “citizenship shouldn’t have any relevance whatsoever for the extraterritorial application of human rights, whether before a British court or in Strasbourg.” To the extent that one views a constitution or domestic rights regime as protecting certain fundamental human rights, I would certainly agree. However, as Marko points out, I take the view that there are certain differences between constitutional rights and human rights, grounded in the idea of a constitution as a “compact.” I would take a more expansive view of the beneficiaries of that compact in many cases, and I would also increase the ability of domestic courts to enforce a clearly defined set of fundamental human rights, based on international instruments (p. 112). But I do stop short of advocating what I call a “conscience” approach to constitutional rights, even though this has generated pushback from some of my colleagues who find the conscience model more appealing.

Marko also rightly points out that “It’s one thing to identify what judges say they do, another to identify why they’re actually doing it.” This is a concern that I lived with for much of this project, which consists largely of the exegesis of case law. That said, I don’t believe (and I don’t take Marko as suggesting) that judicial opinions are purely epiphenomenal. Particularly in common-law systems such as those examined in the article, patterns of judicial reasoning foster path-dependence by shaping which arguments will be recognized as legitimate and persuasive. It is these patterns that I characterize under the rubrics of country, compact, and conscience. At the same time, I concede that extrajudicial factors will often influence outcomes, and I agree with Marko that judges are to a large extent engaged in a balancing act between judicial intervention and restraint (e.g., pp. 110-111).

Pierre-Hugues appropriately points out that recent case law involving the extraterritorial application of domestic rights has often involved an overlay of the potential applicability of the laws of war, as well as international human rights obligations. He notes that the human rights exception in Canadian jurisprudence (under which the Canadian Charter applies extraterritorially if Canadian agents violate an individual’s fundamental human rights) must stem from an assumption that “states cannot effectively ensure respect for their human rights obligations abroad unless constitutional rights also extend extraterritorially.” He questions this assumption, and suggests that some extraterritorial regulation of state agent conduct could be done for example by statute, rather than through constitutional means. This raises important and interesting questions of institutional competence and, as Pierre-Hugues indicates, “self-compliance” by states (which I consider briefly, e.g., p. 111).

To a large extent, delineating the extraterritorial reach of domestic rights also defines the role of domestic courts in enforcing those rights against the political branches. Talking about the reach of rights thus naturally leads to conversations about the role of judges. As I suggest in the article, declining to extend rights extraterritorially in the cases I discuss often seems to have more to do with deference to the domestic political branches than it does with deference to foreign sovereigns. Theorizing extraterritoriality in this context thus has more in common with other forms of constitutional theorizing than is sometimes acknowledged. As I suggested on a “Hot Topics” panel discussing “The Cutting Edge of Extraterritoriality” at the AALS Annual Meeting in January, cases involving the extraterritorial application of the U.S. Constitution in fact constitute at least three types of internal boundaries:

(1) the boundary between executive and judicial roles;
(2) the boundary between law and policy; and
(3) the boundary between legislative and judicial remedies.

In some ways, then, the “borders” in the title of my YJIL article are primarily, but not exclusively, territorial. I hope that my analysis will encourage others to continue exploring and interrogating how these borders are constructed, and with what implications – both for individuals affected by extraterritorial state action, and for states grappling with difficult policy choices and demands from competing constituencies.

A Comment on Chimène Keitner’s “Right Beyond Borders”

by Pierre-Hugues Verdier

First of all, I would like to thank Chimène for the opportunity to comment on “Rights Beyond Borders.” I have also had the opportunity to read Marko’s insightful comments, and I will refer to them later on. The article takes on a thorny question that constitutional courts around the world have faced in recent years: whether, and to what extent, rights protected by national constitutions apply to acts of the state abroad. In a world of transnational law enforcement, global cooperation against terrorism, and extensive counterinsurgency campaigns, the lack of a satisfactory theoretical framework to approach this question is increasingly problematic. The article proposes a careful comparison of cases from the United States, Canada and the United Kingdom, and uncovers three competing approaches: country, compact and conscience. How, then, do courts choose among these approaches and put them in practice?

One might have thought that a natural starting point would be the international law of prescriptive jurisdiction. The first lesson from the cases, however, is that international law does not get us very far. R. v. Hape, the one decision that relied most extensively on customary international law, misunderstood it and sent Canadian courts down a conceptually confused road. The Hape court purported to find a prohibition on extraterritorial application of constitutional rights, but as a general rule states plainly are entitled to regulate the actions of their agents abroad, including by requiring compliance with such rights. It is conceivable that, in some circumstances, extending constitutional rights abroad might interfere with the territorial sovereign’s authority to the point of raising prescriptive jurisdiction issues, but it is clear that international law does not demand anything like the blanket rule in Hape. This is why prescriptive jurisdiction does not play a significant role in the U.S. and U.K. cases. The extraterritorial reach of constitutional rights is primarily an internal question, to be resolved by interpreting the relevant national instruments rather than by reference to international law.

Of course, this is where the real problems begin. As Marko points out, there are many reasons why national courts are hesitant to extend rights extraterritorially. These reasons, however, are not external to the constitutional interpretation process; they are entirely legitimate and proper considerations for a court trying to interpret provisions that rarely speak directly to the issue. For instance, U.S. courts have long recognized the centrality of separation of powers and institutional capacity concerns in deciding the extent to which they should interfere with foreign affairs. In this context, territoriality may be quite relevant, as it informs both the expectations of the parties involved and the extent to which other states are likely to look upon application of a foreign constitution as an affront to their sovereignty. In other words, the problem is not so much that the home state lacks authority to regulate the acts of its agents, but that doing may obstruct effective cooperation with the host state or, in more severe cases, harm diplomatic relations and the accomplishment of important foreign policy objectives. This is, after all, why extraterritorial prescriptive jurisdiction is politically controversial and used sparingly, despite often being permissible as a matter of international law.

Of course, the gravity of such concerns will depend on the circumstances, and must be considered in light of the seriousness of the potential rights violations. It is one thing to prohibit state agents from taking part in torture or unlawful executions abroad, but it is quite another to require the details of multinational investigations to be overseen and approved by judges in each participating country, or to apply the same procedures and conditions to the handover of detainees in a conflict zone as to an ordinary extradition case. More generally, the issues become more complicated, and controversial, as one contemplates applying constitutional protections to military operations abroad. In most cases, those rights have been developed and interpreted in peaceful democracies. Can they be applied to conflict zones abroad and if so, how? Will national courts have to develop exceptions to accommodate the law of armed conflict and the realities of the battlefield? The interaction of international human rights and the laws of war has caused much controversy and uncertainty, and national courts may be less than eager to subject their constitutions to the same stress test.

Each court is also working within the constraints of its own constitutional text, structure and history. For instance, Chimène suggests that the compact approach has found more support in the United States because of its unique constitutional history. Other features of the U.S. Constitution have also shaped the debate, including the lack of a general provision that would shed light on the extraterritorial application of the instrument as a whole. The relevant U.S. cases are decided by interpreting individual provisions, and their distinctive texts and histories shape the discussion in cases like Reid v. Covert and Verdugo-Urquidez. By contrast, in Hape, the Supreme Court of Canada faced the difficult task of interpreting Section 32 to establish a general rule that would apply across the entire Charter. In this light, it is perhaps somewhat understandable that it recoiled from extraterritoriality. While the implications would have been manageable in Hape itself, the Court was surely concerned that other rights would not be flexible enough to handle state action abroad. Section 1, of course, provides that all rights are subject to certain “reasonable limits,” but systematically placing the burden on the government to justify such limits could cause substantial interference with foreign relations.

One critical issue that the article does not develop at length is the relationship between the extraterritorial application of constitutional rights, on the one hand, and international human rights obligations, on the other. In recent years, human rights bodies have sometimes held that the relevant treaties apply to the actions of member states outside their own territory. How should this affect the reach of constitutional rights? Chimène notes that while UK courts must follow the European Convention, they have restrictively interpreted ECHR decisions on extraterritoriality. After Hape, the Supreme Court designed a conceptually unsatisfying international human rights exception to ensure compliance with Canada’s international obligations. To believe this is necessary, one must assume that states cannot effectively ensure respect for their human rights obligations abroad unless constitutional rights also extend extraterritorially. This is, however, neither legally nor logically necessary. International human rights law does not require constitutional protection of all rights. Efforts by states to improve “self-compliance” are of great practical importance. If one believes a more robust approach is needed, a possibility would be to develop or enhance statutory regimes specifically designed to regulate state action abroad, to avoid some of the interpretive and practical difficulties of applying constitutional rights extraterritorially.

Chimène’s article lays out the issues with great clarity and, in so doing, opens up a rich field for scholarship that will continue to expand as more cases reach the courts. For years to come, it will be an indispensable starting point for any scholar interested in the extraterritorial application of national constitutions and human rights.

A Comment on Rights Beyond Borders

by Marko Milanovic

Chimène Keitner has written a powerful article in ‘Rights Beyond Borders.’ She is right that there have been few comparative discussions of the extraterritorial reach of domestic (constitutional) protections of individual rights. Her piece goes a long way towards filling that gap.

I am in complete agreement with Chimène that there is much to be learned from such a comparative examination. Judges in a number of countries are now increasingly faced with cases arising from extraterritorial situations, and their approaches in dealing with them are remarkably similar. This is even more the case when it comes to the policy considerations that underpin them. This is not to say that aren’t significant differences between the various domestic legal systems, and that we shouldn’t be cautious in making such comparisons. By and large, however, the problems faced by the courts are the same; the instruments they are applying either say nothing about their territorial scope (as e.g. with the US Constitution) or use remarkably vague and open-ended concepts (as that of state ‘jurisdiction’ in Art. 1 ECHR, that UK courts are applying under the Human Rights Act 1998). It is thus upon the judges themselves to articulate the rules on their (extra)territorial application.

Chimène identifies three types of judicial reasoning that percolate through the case law on the extraterritorial application of domestic individual rights instruments: country, compact, and conscience. I again completely agree with Chimène that all of these types of reasoning are present in the case law, but I am not sure that these pithy three Cs provide us with a sufficiently complete understanding of the outcomes of these cases. It’s one thing to identify what judges say they do, another to identify why they’re actually doing it. Other considerations also seem to be at play. For example, in the UK context in particular we have the additional dynamic of the relationship between the UK courts and Strasbourg, with the British judges essentially trying to follow Strasbourg but at the same time not overtake it – a particularly unenviable task considering the horrible mess that the European Court has made on the whole extraterritoriality front.

As Chimène rightly points out, it is compact-based reasoning, i.e. one which conditions the existence of rights by membership in the polity, that distinguishes domestic case law from that on the extraterritorial application of human rights treaties. This is a particularly distinguishing characteristic of US case law; we need only remind ourselves of the debate in Eisentrager between Justice Jackson, writing for the majority and emphasizing the importance of citizenship quite heavily, and Justice Black, admonishing the Court that ‘[o]ur nation proclaims a belief in the dignity of human beings as such, no matter what their nationality or where they happen to live.’

Ultimately, the question whether rights should depend on citizenship admits only of an ideological answer. It is in the final analysis for American lawyers and people to determine how their Constitution applies abroad. However, other legal systems have already decided that citizenship should not be the basis for the protection of individual rights, whether extraterritorially or not. It is above all international law that has unambiguously adopted the principle of universality of human rights. To that extent I must part ways with Chimène somewhat – in my view citizenship shouldn’t have any relevance whatsoever for the extraterritorial application of human rights, whether before a British court or in Strasbourg. A UK national in Iraq should never have more rights vis-a-vis the UK than an Iraqi national in the same situation. To that extent, as I discuss here, the UK Supreme Court’s recent decision in Smith v Secretary of State for Defence, in which it held that UK soldiers do not have rights against the UK under the ECHR when operating outside an area under UK effective control, was in accordance with the principle of universality. Its flaw lies not in failing to engage in compact-based reasoning, but in following the prior Al-Skeini judgment of the House of Lords which denied Iraqis rights under the ECHR outside a custodial context.

This brings me to my main point. In many cases judges simply disguise the real policy considerations behind their decisions in pure legalisms, offering nothing more than formalist justifications for a denial of rights. This was the case, for example, with the European Court’s exegesis in Bankovic on the concept of state ‘jurisdiction’ in Art 1. ECHR (see more here), or with the Canadian Supreme Court’s equally flawed discussion and reliance on the general international law concepts of jurisdiction to prescribe and enforce in R v. Hape (see more Pierre-Hugues Verdier’s case note in (2008) 102 AJIL 143). This is I think also the case more generally with all types of ‘country’-based reasoning, as Chimène puts it, i.e. those based on strict considerations of territorial sovereignty. I have never understood (nor seen it explained) why exactly should naked territorial title at all matter in deciding whether an individual affected by a particular state action should have rights against that state. Cuba’s sovereignty over Guantanamo is an irrelevancy, as is the United States’ lack thereof; it is de facto control over territory and individuals, not the right to exercise such control, that enables either the protection or the violation of the rights of individuals.

Judges hide behind ‘sovereignty’ as if it was some sort of magic word simply because it is easier for them to do so than to openly acknowledge that they are engaging in policy-making on the basis of considerations of practicality and effectiveness. It was not the arcana of the concept of state jurisdiction that guided the judges of the European Court in Bankovic, but their own (perfectly understandable and reasonable) fears: do we want to micromanage the use of force by states? Even if we wanted to, how would we do so? Do we have an adequate institutional capacity? Are we, for example, sufficiently familiar with IHL and with how it should interact with human rights? Are we prepared to pay the price that introducing the starkly realist calculus of IHL into the oh-so-fluffy and cuddly world of human rights might carry? (and vice-versa; see more this excellent article by Naz Modirzadeh). Are we able to engage in effective fact-finding? Where do we get the evidence? And so forth. It is these same considerations of effectiveness that led Justice Kennedy in Boumediene to confine the Court’s holding to Guantanamo, and leave Bagram and the rest for the future.

In short, in my view the real tension is between these considerations of effectiveness and practicality on the one hand and those of conscience (including the universality of human rights, if that is one’s ideological framework) on the other. It is primarily this tension which explains the conflicting strands of case law across several jurisdictions. While Chimène of course does take note of this tension in her article, it is perhaps a bit too overshadowed by the three Cs. This small criticism notwithstanding, her article is a must-read for anyone interested in the extraterritoriality of individual rights, whether under domestic or under international law.

Rights Beyond Borders

by Chimene Keitner

[Chimène I. Keitner, Associate Professor of Law, University of California, Hastings College of the Law; Co-Chair, American Society of International Law Annual Meeting]

United States courts are not alone in confronting the question of whether certain domestic rights extend beyond the country’s territorial borders. Yet, the field of comparative constitutional law has largely ignored the question of extraterritoriality. My Article, Rights Beyond Borders, addresses that gap by examining recent case law from the United States, Canada, and the United Kingdom—three common law countries whose courts have grappled with claims by individuals seeking legal redress for harm that occurred beyond national borders, based on domestic rights guarantees.

The Article begins by identifying three basic ways of thinking about rights beyond borders, which I call country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-à-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them. At the micro level, emphasizing one of these approaches over another can determine whether or not a given individual can successfully invoke domestic rights provisions as a basis for seeking relief from a domestic court. At the macro level, emphasizing one approach over another can both signal and reinforce a particular conception of political ordering based on territory (country), membership (compact), or a set of fundamental values (conscience).

This tripartite framework provides a vocabulary for identifying and describing certain patterns of reasoning in judicial decisions. The jurisprudence canvassed in detail in this Article (which I will not replicate here) includes U.S. cases culminating in Boumediene v. Bush and Al-Maqaleh v. Gates; Canadian cases including R. v. Hape and R. v. Khadr, as well as cases relating to extradition to face the death penalty; and U.K. cases including Al-Skeini v. Secretary of State for Defence, Al-Saadoon v. Secretary of State for Defence, and Smith v. Secretary of State for Defence. The analysis reveals several trends, notably:

(1) the persistence of country-based reasoning in all three jurisdictions;

(2) the presence of compact-based reasoning in U.S. jurisprudence, but its relative absence from Canadian and U.K. decisions; and

(3) the lack of judicial adoption of conscience-based reasoning, except as a backstop to perceived violations of the political branches of domestic separation of powers principles and certain fundamental human rights.

On a descriptive level, domestic courts have generally been more circumspect about curbing the activities of the political branches when they act abroad than at home. Whether or not one thinks such circumspection is problematic depends on one’s degree of confidence in the political branches to conform their own activities to applicable legal standards.

As a prescriptive matter, I suggest that U.S. Supreme Court should give greater weight to the exclusive control of U.S. authorities over U.S. military bases, even within foreign territory, when it considers the extraterritorial application of certain constitutional constraints to the activities of U.S. agents. I suggest that the Canadian Supreme Court should revisit Hape (which adopted a country approach, with an exception based on international human rights) in light of its extradition jurisprudence, and thus anchor judicially enforceable constraints on the activities of Canadian agents more firmly in the Canadian Charter of Rights and Freedoms, especially when those agents act vis-à-vis Canadian citizens. Finally, I suggest that the U.K. Supreme Court should incorporate elements of compact-based reasoning into its analysis of jurisdiction under the U.K. Human Rights Act, especially where the claimants are U.K. citizens. That said, I would stop short of endorsing a conscience approach that is not sensitive to the exigencies of conducting extraterritorial law enforcement or military operations, or that subjects the political branches to excessive legal uncertainty. In an ideal world, rather than using international rights violations as a trigger for the application of domestic law (as Canada currently does), I would strengthen the ability of domestic courts to enforce a limited set of clearly defined fundamental human rights guarantees, even when the political branches act beyond national borders.

In contrast to domestic rights, which remain tethered to ideas of territoriality (country) and membership (compact), international human rights seem particularly well suited to a conscience approach, and thus to extraterritorial application. This is because they are based explicitly on the intrinsic dignity and worth of individual human beings regardless of geographic location or national membership. As a predictive matter, however, it seems likely that many of the practical considerations that drive restrictive interpretations of domestic rights would also tend to limit the interpretation and application of international rights by domestic courts, notwithstanding the relatively broader interpretations adopted by international bodies. Unless and until international bodies face the same political and institutional constraints as domestic courts, we might expect their (generally unenforceable) interpretations to remain relatively more expansive, and the (generally enforceable) pronouncements of domestic courts to remain relatively more narrow. That said, if domestic courts focus excessively on the constraining role of territorial borders, this could have the paradoxical effect of fostering increased reliance on international, rather than domestic, rights in legal and political discourse and, eventually, in legal and political institutions.

YJIL Online Symposium

by Roger Alford

We are pleased to introduce to you today an online symposium discussing Hastings Law Professor Chimène Keitner‘s article, Rights Beyond Borders, published in the Yale Journal of International Law. Her interlocutors will be Marko Milanovic of the University of Nottingham and Pierre-Hugues Verdier of Virginia Law School.

Call for Papers: Affective States of International Criminal Justice

by Kevin Jon Heller

On behalf of the organizers and the APCML, of which I am a part, I want to call readers’ attention to the following conference:

20 ‐ 22 July 2011

Melbourne Law School
Presented by Asia Pacific Centre for Military Law (APCML)
Institute for International Law and the Humanities (IILAH)
Supported by an Australian Research Council Discovery Project Grant

Convenors: Peter Rush (IILAH) and Gerry Simpson (APCML)


International criminal justice is repeatedly called upon to respond to events which overwhelm our common sense or explode the limits of the law, unsettling the settled frameworks through which law comes to know and act upon the world. In the midst of war crimes and atrocities, trials and tribunals, treaties and resolutions, analysis and advocacy, what binds international criminal justice as a community or field? And, how are we to understand our relations with the forms of knowledge and institutional practices of International criminal justice?

In this symposium, we want to bring together people interested in reflecting on, talking about and engaging with the emotional life that organises or informs or disrupts the distinctive but plural communities of international criminal justice. Many possibilities present themselves. Under the rubric of affective states, we might think of the communities of victims and of survivors (such as the Mothers of Srebrenica), those of the international legal profession (e.g. the office of the prosecutor, or the conscience of the judge, or the practice of the teacher), and those of the witnesses (eg their memorywork and advocacy). We might also think of the institutional forms and technologies through which emotions are harnessed and expressed or tamed and repressed; for e.g. criminal trials, truth commissions, Argentinian truth trials, apologies, amnesties and pardons, as well as executions and testimonial procedures. We might also consider the affective states which are prevalent in and give shape to international criminal justice: horror and revenge, pity and consolation, anger and aggression, sadness and outrage, joy and hate amongst others. Moreover, what are the intellectual and scholarly resources capable of addressing these emotions, passions and feelings of injustice: jurisprudence, doctrine, policy, literary trope (e.g. tragedy), psychology and psychoanalysis (for example, the idioms of trauma and memory), the language of the virtues (and vices), and the discourse of conscience (eg the UN, as well as advocacy groups, often present themselves as institutions of conscience).

Keynote speakers include Professor Jill Stauffer (Haverford College, USA) who will speak on resentment and reconciliation, and Professor Rob Cryer (University of Birmingham, UK) who will speak on monsters. The Centre for Contemporary Photography will present an exhibition in association with this event.

Expressions of interest in the form of a 300‐500 word abstract are to be received no later than 2 May 2011 by Vesna Stefanovski at IILAH vesnas [at] unimelb [dot] edu [dot] au.

It should be a great conference.  I hope some of our readers will submit abstracts!

Some preliminary thoughts on the Gitmo Executive Order

by Deborah Pearlstein

Having just read through the new order quickly, a few thoughts. First, as had been long rumored, the order essentially sets up a periodic review system for the Guantanamo detainees. The review system is discretionary in nature, but appears designed to supplement the already existing and fairly robust review available to Gitmo detainees through the federal courts since 2008 (thanks to the Supreme Court). In this respect, the order should be seen as a positive development. Especially given that not all of those seeking habeas review win their cases, I certainly don’t see how it can hurt to have an additional layer of periodic review to ensure that the circumstances that made detention appropriate in the first place (the existence of a particular armed conflict, for example) continue to hold.

Indeed, such a system of review seems directly contemplated by the Geneva Conventions (at least as they apply to more traditional situations of occupation and international armed conflict) when it comes those a state thinks necessary to detain for “imperative reasons of security,” as the Fourth Convention puts it. (This is not to suggest I think that convention or its Art. 78 directly applies here in any way; I note it only to show that systems of periodic review are generally favored by the Conventions in circumstances of armed conflict. Again, on very quick scan, the order reads to me as though it is trying to extend this IHL-by-analogy idea in explaining, for what it says are discretionary purposes (not to change or impact how the district courts have already resolved this question) that in the President’s view “[c]ontinued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.” More on the utility of this standard for these limited purposes below.) For an administration interested in attending at all to the international law of armed conflict, and in the face of a Congress that has proven itself repeatedly loopy when it comes to all things Gitmo (most recently with the deeply ill-conceived use-of-funds ban on detainee transfers even for criminal prosecution), this seems like a fine step.

As for the quality/nature of the review process itself, much will have to wait for guidelines the order requires the Secretary of Defense to issue, but the parameters set forth in the order seem sensible as far as they go (and again, on very quick survey). There’s notice and an opportunity to be heard, and, I take it, to be assisted by both a government-appointed representative and an outside/private counsel. And the order appears to establish a separate process to keep tabs on what progress the government is making on transferring detainees who are found (by this process or otherwise) eligible for transfer. One red flag – as I read it, after the initial review, although files are reviewed annually, the detainee doesn’t get this kind of full review again for another 3 years. Why wait so long? The answer no doubt relates to a fuller understanding than what is reflected in this document of why/under what circumstances the President thinks these detainees will ever be entitled to release. More on that below, too, but for now I’d say the answer (to why/what circumstances) remains unclear.

Second, and probably more important, the new executive order is limited to the handling of the ongoing detentions at Guantanamo. (Per the text, “The periodic review described in section 3 of this order applies only to those detainees held at Guantánamo on the date of this order…. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law.”) In this respect, I read it to reject efforts by some to make more permanent the detention regime Guantanamo currently models. This is a good thing. And it seems consistent with the Administration’s moves on detention policy elsewhere. Worldwide, the Obama Administration appears to have been working actively to get out of the “wartime” detention business, and wisely so. Having held tens of thousands of detainees since the attacks of 2001, the U.S. is now out of the detention business in Iraq, well on its way to getting out of the detention business in Afghanistan, and (according to the administration) entirely out of the secret-CIA-facility-detention business for good. The uniquely backwards Guantanamo regime – and a substantial reason why there is ongoing detention at Guantanamo at all – emerged patchwork and as a lesser-of-multiple-other-evils response to the foolishness of the Bush Administration on detention policy, a policy that needlessly ignored international law (among other legal strictures) over a period of years.

These days, the working theory behind Gitmo – now blessed in somewhat different form by two administrations, endorsed by the D.C. federal appeals court, tolerated by Congress, and by its terms untouched by this order – is that the statutory Authorization for Use of Military Force passed in 2001 includes authority for the President to detain certain individuals (a category defined with modest and fuzzy reference to international law) for the duration of an armed conflict (within the meaning of international law) between the United States and Al Qaeda. Not an implausible basis of authority in principle. But in reality, the AUMF is vague, and international law informs the statutory meaning in incomplete ways at best. To the extent that international law does offer guidance – for example, on the question of whether the chronic, global threat of hostilities (and occasional actual hostilities) between a terrorist organization and much of the rest of the world counts should really count as an “armed conflict” within the contemplation of the Geneva Conventions – I’ve argued that its guidance should lead us to avoid such broad definitions. Armed conflict in international law terms was meant to describe an exceptional state of affairs; a defined, and definable, moment in time during which ordinary law does not apply. In an age in which the threat and reality of transnational terrorism has been and seems foreseeably likely to remain a condition of human existence indefinitely, the U.S. v. Al Qaeda armed conflict on which the Gitmo regime depends, while arguably better than the “war on terrorism” the last administration asserted, is indistinguishable from the world’s ordinary state of being. It is the exception that swallows the rule. For these reasons, among others, I’m glad to see the executive order read in ways that seem to limit the necessary damage that ameliorating the situation at Guantanamo does.

All that said, the order seems to leave open some critical questions. The prospect of periodic review of detention implies that there are circumstances that do not exist now but that might arise in the future in which a prisoner currently deemed detainable becomes eligible for release. What are these circumstances and how, exactly, may a detainee go about demonstrating they exist? In some respects, the order does specify what particular eventualities it has in mind. The transfer review process, for instance, is designed to monitor the cases of those who are currently “conditionally detained,” i.e. detained pending a finding improved security circumstances Yemen (unclear assessed according to what metric and by whom); or detained pending only the identification of a suitable rehabilitation program or other third-country transfer option. For those individuals, the circumstances that would necessitate their release seem at least marginally clear. But beyond the detainees who find themselves in one of those categories, what does it mean that continued detention is available where “necessary to protect against a significant threat to the security of the United States?” Must there be a finding of an end to the armed conflict US v. Al Qaeda? May more individualized findings also be dispositive? May a detainee once deemed a security threat show by his words, conduct, or psychiatric profile that he no longer poses such a threat? I pose the questions not only because any detailed periodic review regime must be prepared with answers to them, but also because in practice I’ve often found that friends and colleagues who favor “preventive” detention with periodic review in principle become flummoxed and mute when asked to describe how/when such periodic review leads to release. Because it seems difficult to imagine that an individual President will ever enjoy a political environment in which releasing Gitmo detainees is easy or uncontroversial, it seems particularly important for any periodic review system that exists to be thoughtful, specific and to the extent possible binding about the process by which it might ever lead to release. Without such identified circumstances, it becomes not so much a useful additional layer of review, but a process that adds more to the appearance than the reality of legal legitimacy.

This order goes farther in answering such questions than any U.S. law, legal brief, or set of guidelines I’ve yet seen in the public realm – and that is a strength. But I don’t believe it can be understood as definitively answering the remaining questions about what we are doing at Guantanamo Bay.

How to Announce ‘Opinio Juris’

by Kenneth Anderson

Opinio juris meaning the legal concept, not the blog.  The “Fact Sheet” (linked here to Lawfare) that went out with the new executive order on Guantanamo detainees that Deborah notes below has a final section on international law principles.  The points it makes are not related expressly to Guantanamo or detainees there, but about the broader context of laws of war.  So, the administration announces its support for Additional Protocol II, the one covering non-international armed conflict, and which was supported by the Reagan administration and submitted by it to the Senate in 1987 – but which was never actually ratified.  The other statement by the administration is its support for Article 75 of Additional Protocol I.  Here is the text of the fact sheet on this point:

Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.

Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

On the substantive side, note that the administration states that it “continues to have significant concerns with Additional Protocol I,” and hence presumably will not be pushing for ratification.  On the procedural side, if I can call it that, the statement says that the administration will choose “out of a sense of legal obligation” to treat the principles of Article 75 as applicable to any individual it detains in an international armed conflict.  The quoted language is, of course, the classic expression of the “intentional” part of “state practice and opinio juris.”  I think it is a good move for the administration to make this clear as a matter of formal and unmistakeable language of international law, and think that US administrations need to have a better process for informing the world – including, at this point, courts everywhere – of the formal opinio juris of the United States.

New Executive Order on Guantanamo

by Deborah Pearlstein

The President’s much-anticipated executive order on Guantanamo was released today. I hope to read and comment on it shortly (not to mention figure out how to post a PDF). In the meantime, the press statement is here. It reads in its entirety as follows:

Statement by President Barack Obama:

“From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.”

Humanitarian Intervention in Libya: Follow-up Post

by Kenneth Anderson

A few days ago, I asked the question (here), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)?  The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond.  (ps.  Also check out Jack Goldsmith’s discussion of US domestic law and intervention at Lawfare.)

I.  Intra-USG Politics

So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero.  Since that almost certainly mirrors US public opinion, that is not a surprise.

But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates).  I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties — including, interestingly, even if blessed by the Security Council — is prudentially a terrible idea.    The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements.

Calls to create a no-fly zone have been expressed loudly by Republicans and “revived” neoconservatives; the Wall Street Journal has an editorial calling for exactly that this morning. As widely noted, it has revived a sharp debate over Bush-era neoconservative foreign policy idealism, grounded in pressing for democracy and liberty for the Middle East.  It is a position long ridiculed by conventionally realist conservatives including George Will, but more importantly also attacked by what I have sometimes called the Obama administration’s “New Liberal Realists.” (I explain these categories in more detail in a long review essay, “Goodbye to all that? A requiem for neoconservatism.”) There have been some calls for the creation of a no-fly zone by liberal American foreign policy idealists, notably former Obama administration DOS official, Anne-Marie Slaughter — now out of the administration and back at Princeton (and of course her views on this are evolving with the situation; this should not be taken as necessarily her last word).

I am no expert on Libya and express no view at this point on the prudential or strategic aspect of this.  However, the most striking comment I’ve heard came from a military officer who (like numbers of officers I’ve known) has always been skeptical of the CIA using force, including Predators in targeted killing.  This officer said to me, somewhat tongue in cheek, but somewhat not:  “Where’s the CIA?  Isn’t this what we’ve got a CIA for?  Isn’t this what you think the CIA is supposed to do?  Covert or at least deniable ops? Why don’t they go support the rebels and not pull us into an overt conflict?” Continue Reading…

Knowledge vs. Wisdom: The Sad Case of Karin Calvo-Goller

by Roger Alford

“Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC. What is still missing is a book that might help to resolve these issues.”

It’s not the best book review one could hope for, but neither is it the worst. Undoubtedly it would have gone unnoticed by almost everyone if she had used better judgment. (Before this story, how many of you have ever read a review from Global Law Books?)

Poor Karin Calvo-Goller. I have been thinking quite a bit about Karin Calvo-Goller and her strange libel case against Joseph Weiler. The details of the affair are now well-known to you and will not need repeating here. Far more interesting to me is the question of the wisdom of academics and spectacularly bad judgment of Calvo-Goller.

We have come to expect bizarre behavior from celebrities like Charlie Sheen and Lindsay Lohan. We assume that celebrities are self-important, insecure and dysfunctional. Not so with professional academics. We assume that learned professors combine expert knowledge with practical wisdom. But, alas, that is not always the case.

Let’s be honest, many legal academics are a strange lot. At their best, they forego riches to pursue a higher calling of knowledge. Good for them. But occasionally one senses they are not pursuing knowledge for the sake of knowledge alone. Along the way they come to cherish their reputations, and will exert great effort to burnish their images. I do not fault academics for being concerned about their reputations. But there is a distinction between reputation and vanity. It is in the breathless pursuit of vanity that we are overexposed to bad episodes of professors gone wild.

Many law professors frequently commit errors of vanity. They keep score. They are thin-skinned. They become caught up in their own self-importance. They crow about their latest congressional testimony or busy speaking schedule. Occasionally they will go to extreme measures and write laughable law review articles to stand out from the crowd. They feel slighted when they are not invited to speak at a conference within their area of expertise. These transgressions are common enough and obvious to almost everyone–except the ones who commit the error. But these mistakes are relatively harmless and easily forgivable.

Then there is the sad case of Karin Calvo-Goller. I’m not a international criminal law scholar, and frankly had never heard of her before the Joseph Weiler affair. Her decision to sue for criminal libel is the most notorious example of knowledge without wisdom that I have ever encountered in the legal profession. She is the poster child for the proverbial warning that “Pride goes before destruction, a haughty spirit before a fall.”

Someone who once was a respected scholar in her field is now the object of derision. The book reviews on make one cringe. Her book has 52 one-star reviews that give one a sense of the public outrage: (more)

Bellinger on Avena Implementing Legislation

by Peggy McGuinness

Almost three years have passed since the Supreme Court’s decision in Medellin v. Texas. The only remaining avenue to overturn Medellin and make the ICJ’s decision in Avena (holding that the US violated its obligations under the Consular Convention and ordering review of the cases) binding as domestic law — a federal statute — has not been passed.  Former State Department Legal Advisor John Bellinger has again made the case for Congress to pass an implementing statute in this op-ed in the Washington Post last week. Bellinger lays out the politics of getting a law passed to review the death row convictions at issue in Avena:

In contrast to the Bush administration, the Obama administration has made less visible efforts to comply with the World Court rulings. The White House has not asked Congress for legislation authorizing the president to order a review of the convictions of the remaining Mexican nationals, presumably because it is not popular to side with an international tribunal in favor of a group of convicted murderers. The next execution is scheduled for July.

Although Republicans might not be eager to cooperate with President Obama, legislators should craft a narrow law authorizing the president to comply with the World Court ruling. Even if they are skeptical of vague principles of international law, House Republicans should recognize that U.S. compliance with the Vienna Convention is vital. Members of Congress condemn other countries that fail to comply with their treaty obligations to the United States in cases of consular access and diplomatic immunity. But lawmakers cannot expect other countries to comply with their treaty obligations to us unless the United States observes its treaty obligations to them. Congress and the president must ensure that the United States observes the Vienna Convention not as a favor to foreigners but because it serves a “plainly compelling” national interest in protecting Americans who travel and American companies that operate in foreign countries.

To me this should be an easy call for Republicans and Democrats alike: an effective foreign policy requires the protection of the Consular Convention (not to mention the Diplomatic Convention — see, e.g., the Davis case in Pakistan.)  The recent evacuations of American citizens from Egypt and Libya demonstrate the importance of our consular presence oversees and the protection our consular work receives under international law.  We should be doing everything we can to ensure that we comply with the Convention as a way to underscore our commitment to consular protection.  But I don’t sense a whole lot of momentum here.  Do our readers have any additional insights into the current state of play?

At Least He Didn’t Use Conservapedia

by Kevin Jon Heller

So, you’re a state senator in the deep South.  You love freedom, which is why you’re a Republican.  You know that Shariah (aka Shari’ah) is the enemy of freedom.  You also know that, although Shariah currently plays no role in the law of your state, it will eventually supplant the Constitution (sometime in the next four decades, you estimate) unless you stop it.  So you decide to sponsor a bill that would prohibit  judges from relying on Shariah (and that icky freedom-hating international law) when making legal decisions.  There’s only one problem — how should you define Shariah?  After all, Muslim jurists have been struggling over a definition for centuries.  Then it hits you: the answer is obvious.  There is only one source that you can truly trust.

Wikipedia, of course:

Allen is the sole sponsor of SB 62, a bill that would ban Alabama courts from using Shariah law or international law in making legal decisions.

The bill defines Shariah as “a form of religious law derived from two primary sources of Islamic law: The divine revelations set forth in the Qur’an and the example set by the Islamic Prophet Muhammad.”

That definition is the same, almost word for word, as wording in the Wikipedia entry on Shariah law as it appeared Thursday. Allen said the wording was drafted by Legislative staff. A source on the staff at the Legislature confirmed that the definition was in fact pulled from Wikipedia.

Allen could not readily define Shariah in an interview Thursday. “I don’t have my file in front of me,” he said. “I wish I could answer you better.”

The good citizens of Alabama will sleep better tonight knowing that Gerald Allen’s watching out for them.

Live Blogging the Harvard National Security Symposium

by Duncan Hollis

I’m at Harvard Law School today for a symposium, Cybersecurity: Law, Privacy, and Warfare in a Digital World.  I’ll be talking about my e-SOS paper, how international law deals with cyberthreats, and ways it could do a better job.  Anyone who’s interested can watch the proceedings; it’s being live web-cast here

I wanted to flag a fascinating debate over the future of the Internet that just occurred between HLS Professor Jonathan Zittrain and Stewart Baker.  Baker, of Volokh fame, is well known for flagging the great potential of cyberthreats to produce systemic or catastrophic effects.  Today, he was on message, emphasizing how the threat of cyberwar and severely intrusive cyberexploitations like Ghostnet require construction of new social norms for the Internet.  And, for Stewart, he’d construct those norms by imposing attribution and punishment on the Internet.  Only by knowing who’s attacking and punishing them does Baker think the Internet can have true social order. 

Zittrain, who’s thought a lot about the Future of the Internet, agreed with Baker that its current state is problematic, and that things like Ghostnet are scary and worthy of real concern.  But, he disagreed that attribution (whether “attribution lite,” meaning more investigative resources, or “full attribution,” meaning a restructuring of the Internet to allow for real-time attribution) was the solution.  For starters, he doubted that total attribution would ever be possible, arguing that Ghostnet’s authors would always be sophisticated enough to circumvent whatever attribution system is devised.  He also suggested there were far more “boring” solutions to many cyberthreats in terms of better authentication and security to persue before restructuring the whole system.  Instead, Zittrain favored working with, rather than overriding, the Internet’s generative capacity and developing voluntary structures of mutual aid among Internet users.  He proposed some technical solutions to do so, most notably his preference that users help other users reciprocally by allowing basic applications to always be mirrored, thereby making it much more difficult to deny services to those applications. 

Both Baker and Zittrain made compelling arguments and did so without fireworks (but quite a bit of humor involving everything from the entire state of Qatar being banned from Wikipedia to Stewart Baker’s time at Brown).  It was great to see two people who have obviously different priors recognizing their common ground and trying to discern ways to deal with such a big (and serious) question as what the future holds for the Internet.  It bodes well for the rest of the day, which will conclude with a Keynote Address by Steven Bradbury, formerly a Principal Deputy in OLC.

[Update:  contrary to Ben’s hope, Steven Bradbury’s talk did not go to detainee issues, but he did make a rather dramatic assertion about the capacity of the United States to engage in cyberoperations, namely that where the law is unclear (which, by my own estimate, covers quite a lot of ground in the cybercontext), the President is free to decide as a matter of policy what cyberoperations to pursue.  In other words, I heard him to suggest that in the absence of a specific rule restricting U.S. activity, it is free to act as a matter of policy.  Not sure how well this matches up with the Martens clause (I’m going to try and ask him about that).]

Joseph Weiler, No Longer in the Dock!

by Kevin Jon Heller

The Tribunal de Grand Instance de Paris has issued its judgment in the unconscionable criminal-libel suit brought by Karine Calvo-Goller against NYU’s Joseph Weiler.  Weiler, I am happy to report, prevailed on both of the key issues: lack of jurisdiction and whether the lawsuit had so little merit that Calvo-Goller’s decision to file it was abuse of process.  In terms of academic freedom, what the court said about the latter issue is particularly important…

Did Bradley Manning “Aid the Enemy”? Did The New York Times? (Updated)

by Kevin Jon Heller

As Roger noted earlier, Bradley Manning has been formally charged with “aiding the enemy,” a potentially capital offence.  (The military has said that it will not seek the death penalty.)  The strength of the charge, however, is difficult to determine. Here is the text of Article 104 of the Uniform Code of Military Justice:

28. Article 104—Aiding the enemy
a. Text of statute.
Any person who—
(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or correspond with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.

The charge sheet provides almost no information about the allegations against Manning.  It simply charges him with a violation of Article 104, “[i]n that Private First Bradley E. Manning, U.S. Army, did, at or near Contingency Operating Station Hammer, Iraq, between on or about 1 November 2009 and on or about 27 May 2010, without proper authority, knowingly give intelligence to the enemy, through indirect means.”

To analyze the strength of the charge, we need to know whether the military intends to rely on 104(1) or 104(2).  104(2) would seem to be more appropriate, given that the case involves the dissemination of information to the enemy, not the provision of tangible items.  To be sure, 104(1) also prohibits aiding the enemy with “other things.”  The canon of construction ejusdem generis, however, would seem to limit “other things” in 104(1) to things that are themselves tangible.  That interpretation is supported by the existence of a separate paragraph, 104(2), that specifically addresses information.

So, is there a colorable argument that Manning violated 104(2)? Note first that nothing in 104(2) specifically requires the intent to aid the enemy.  Indeed, intent is mentioned in the elements of Article 104 only concerning an attempt to aid the enemy under 104(1); following traditional attempt doctrine, such an attempt requires proof that the defendant intended to complete the crime. Presumably, then, as long as the defendant “gives intelligence to or communicates with or hold any intercourse with the enemy, either directly or indirectly,” he is guilty under 104(2).

Has Manning done that?  Here is where things get tricky…

New Charges Against Bradley Manning

by Roger Alford

According to NBC News, “Pentagon and military officials say some of the classified information released by WikiLeaks contained the names of informants and others who had cooperated with U.S. military forces in Afghanistan, endangering their lives. According to the officials, the U.S. military rounded up many of those named and brought them into their bases for their own protection. But, according to one military official, “We didn’t get them all.” Military officials tell NBC News, a small number of them have still have not been found.”

The irony is that the charge of “aiding the enemy”–a capital crime–is a direct result of Wikileaks’ profound failure to carefully edit and redact the information Manning provided to them. The moral to the story is that future Bradley Mannings who wish to leak classified government documents should be more careful about who they trust with their leaks. Had Manning provided the information to a reputable and careful news organization, he likely would not be facing this capital crime.

Future whistleblowers should be wary of dealing with the likes of Julian Assange. The mainstream media organizations care about their own sources, not to mention innocent third parties–such as Afghan insurgents, far more than unprofessional news outlets like Wikileaks. Because of Julian Assange’s carelessness, Bradley Manning now faces the death penalty.

What Are the Best Legal Arguments For and Against Military Intervention in Libya?

by Kenneth Anderson

Question to OJ readers.  Suppose that you were the chief legal advisor to the US DOS, or to the UK foreign minister, or to NATO, or some country or coalition in which there is active discussion about armed intervention on humanitarian grounds in Libya, for the express purpose of preventing attacks upon the civilian population.  What would you regard as the best legal arguments available today that would legally permit intervention as well as the arguments against, ie, arguments that would legally preclude it?  Under intervention here, let us include both a no-fly zone enforced militarily as well as any intervention on the ground that goes beyond simply rescue of one’s own nationals. 

Another way to frame this is to ask what the application, if any, of R2P might be – what is its status as a legal position today, and also whether there are other legal grounds apart from R2P as currently discussed on which to base intervention.

Pennumbra Debate on Targeted Killing Concludes

by Kevin Jon Heller

Just a quick update to point out that Pennumbra, the University of Pennsylvania Law Review’s online companion, has published the fourth and final installment of my debate with John Dehn on the targeted killing of Al-Aulaqi.  You can find the entire debate, including my just-published Closing Argument, here.

My thanks to Pennumbra for inviting me to participate, and to John for being such a willing and intelligent interlocutor.