Archive for
August, 2011

The Tea Party Goes After the U.N. Budget

by Julian Ku

You saw this coming:

House Republicans introduced legislation today that seeks to force major changes at the United Nations, using as leverage the threat to withhold some of the U.S.’s 22 percent contribution to the world body’s operating budget.

The bill by Ileana Ros-Lehtinen, the Republican chairwoman of the House Foreign Affairs Committee, would demand that the UN let countries decide how much to pay and which programs they will support, rather than assessing payments based on a formula. It would end funding for Palestinian refugees, limit use of U.S. funds to only purposes outlined by Congress and put a hold on creating or expanding peacekeeping operations until management changes are made.

“We need a UN which will advance the noble goals for which it was founded,” Ros-Lehtinen of Florida said in a statement. “The current UN continues to be plagued by scandal, mismanagement and inaction, and its agenda is frequently hijacked by rogue regimes which protect each other while targeting free democracies like the U.S. and Israel.

I don’t have an actual copy of the proposed bill (anyone?) but it sounds like a variation on previous efforts to pressure the U.N. through budget measures. I don’t fully understand what it means by making funding “voluntary.”  Are they talking about renegotiating underlying international agreements?

I know this strategy has had some limited success in the past, but I am skeptical of whether it really has had much impact.  Still, I suppose nothing talks like money.  And I do think this will get the U.N.’s attention.

Did You Hear the One About Fox News Being Less Biased than the “Liberal” Media?

by Kevin Jon Heller

The Volokh Conspiracy is hosting a discussion of a new book on media bias entitled Left Turn: How Liberal Media Bias Distorts The American Mind.  Here is a snippet from the summary on the Amazon page:

Dr. Tim Groseclose, a professor of political science and economics at UCLA, has spent years constructing precise, quantitative measures of the slant of media outlets. He does this by measuring the political content of news, as a way to measure the PQ, or “political quotient” of voters and politicians.

Among his conclusions are: (i) all mainstream media outlets have a liberal bias; and (ii) while some supposedly conservative outlets — such the Washington Times or Fox News’ Special Report — do lean right, their conservative bias is less than the liberal bias of most mainstream outlets.

If you can stop laughing long enough at the central thesis of the book, you might want to note that there is already a burgeoning critical literature on its flawed methodology, which somehow manages to lead to the conclusion that the RAND Corporation is more liberal than the ACLU, the NRA is barely right-of-center, and the ACLU is on the conservative side of the ledger.  (Were that it so!)  It also claims that, but for liberal media bias, McCain would have defeated Obama 56% to 42% in the last election.

In any case, you can find the Volokh Conspiracy’s intro post here.  And here is a roundup of links to sources that debunk the book and/or its underlying academic studies:

  • A forthcoming article by Carnegie-Mellon’s John Gasper.
  • An analysis by Brendan Nyhan, a professor of government at Dartmouth.
  • An analysis by Geoff Nunberg, a linguistics professor at Berkeley.
  • Critical thoughts by Columbia’s Andrew Gelman.
  • An analysis by Media Matters.

Not surprisingly, the authors of the book have received funding from the usual conservative suspects, such as AEI, The Heritage Foundation, and the Hoover Institute.

Will China Rethink the Law of the Sea Treaty?

by Julian Ku

China has tons of disputes with its neighbors regarding borders, especially maritime borders. It has recently been embroiled in disputes with Japan and all of its Southeast Asian neighbors over various claims in the East China Sea and the South China Sea.  Since all relevant nations are members of the UN Convention on the Law of the Sea, one might imagine that such disputes will be resolved peacefully or at least within an agreed-upon legal framework.  Indeed, the Philippines has been pushing China to avail itself of international dispute resolution.

My guess is that Chinese thinking is turning in a different direction, especially as its claims date from the pre-UNCLOS period  and as its naval power continues to expand. This editorial in the government-approved China Daily might be indicative.

As tension heats up in the South China Sea, some bordering countries insist
on solving the dispute simply within the framework of the United Nations Convention
on the Law of the Sea (UNCLOS), but this insistence ignores history and violates inter-temporal law, a doctrine of international law.

This seems like a promising line for China to take, since its claims under UNCLOS (at least over the South China Sea) are pretty hopeless otherwise.  Expect to see more of this type of argument in the near future.

CLR Forum: Welcome to the Blogosphere!

by Peggy McGuinness

CLR Forum is an impressive new entry to the law professor blogosphere has been launched by my St. John’s colleagues Mark Movsesian and Marc DeGirolami.  The CLR Forum is the official blog of the St.John’s Center for Law and Religion, a center which in just one year has put itself on the map hosting conferences and significant scholarly exchange in the area of religious legal theory, comparative law and religion, and religion and human rights.  Their coverage is global, and those of you interested in international and comparative perspectives on the intersection of law and religion will find lots to chew on here.  (See, for example, the proceedings of their “Laïcité in Comparative Perspective” symposium, and this discussion on “Christians in the Middle East: Contemporary Human Rights Perspectives.”)   The “Scholarship Round-up” is one-stop shopping for articles, essays, and books on law and religion and related topics. And the CLR Forum also includes useful posts by their research fellows on legal developments, such as this summary of the various anti-Shari’a laws around the USA.

Here’s Mark Movsesian’s [corrected!] recent response to a Ross Douthat op-ed on religion in the presidential election:

Ross Douthat  . . . argues that reporters are absolutely correct to ask candidates who “wear their religions on their sleeves” to explain how their beliefs would influence their policy decisions.  He cautions, though, that reporters should not assume that a candidate shares the most extreme views associated with his or her denomination, or apply a double standard.  If Barack Obama is not identical with Jeremiah Wright, Michele Bachman may not be identical with R.J. Rushdoony. She’ll have to explain.

I think Douthat is right on both counts, but what interests me is the use of the term “theocracy” in American public life. Traditionally, “theocracy” means government by clergy, the sort of thing that exists today in Shia Iran, and, I suppose, Vatican City.  But that is an extremely rare arrangement nowadays, and no one in America, including the overwhelming majority of conservative Evangelicals, would favor it.  I suppose “theocracy” could also mean a state in which religious law applies to civil matters. That arrangement is the norm in classical Islam, but classical Islamic states no longer exist (except in a place like Saudi Arabia), and it remains unclear whether contemporary Islamists will succeed in re-establishing them.  There is no large movement to govern America according to “Christian law” (what would that be, anyway?).  Rushdoony’s Recontructionists are absolutely a fringe movement, even among Evangelicals.

When critics use the term “theocracy” in America today, it seems to me that they mean “too much religion.” A “theocrat” is someone who makes religious arguments for political programs, uses religious imagery in political speeches, or allows religious beliefs to influence policy decisions.  By this definition, America is a theocracy, and always has been.  For example, American politicians on the left and the right have always used religious imagery to win support for their programs.  But if FDR was a theocrat, the word has no explanatory power….

[Click here for full post]

Welcome to the blogosphere!

The Middle Kingdom Strikes Back: New Criminal Procedure Law Conforms with International Law

by Julian Ku

Apropos of Kevin’s post below criticizing China’s new criminal procedure law amendments, it is worth noting that some Chinese legal scholars are defending the consistency of such laws with international treaties. 

China’s draft amendment to the Criminal Procedure Law will further help protect human rights, and conforms rather than contradicts international conventions, legal experts in Beijing have said.

The experts made the remarks in response to doubts cast by international media outlets on an article in the draft submitted to the Standing Committee of the National People’s Congress (NPC), China’s top legislature, last week. These outlets contend that the article violates international conventions and international law.

Article 73 of the draft provides that, in cases involving crimes regarding national security, terrorism or serious cases of bribery, the defendants or suspects can be put under residential surveillance in places outside their own homes if residential surveillance at the home of the suspect or defendant is likely to hinder an ongoing investigation.

The draft amendment does not violate international conventions. Instead, it is in line with the purposes of international law that advocate the protection of suspects’ rights by using the fewest compulsory measures possible in criminal procedure, he said.

Legislation in China is becoming more humane, with greater attention being paid to the protection of citizens’ civil rights and an increasingly cautious approach to the use of compulsory measures, Wang said.

Their analysis doesn’t sound very convincing but it could very well be the translation. In any event, I haven’t seen the draft law (anyone want to post it?), but  I agree with Kevin that it could very well violate norms against arbitrary detentions and “disappearances.” And I wholeheartedly agree with other critics that there is strong evidence China is already engaging in widespread practices of arbitrary detentions and disappearances, even without this law.  The question for critics of China here should be: Is this new law better than the old non-legal system? Probably somewhat better, but definitely not good enough is my guess. But it is still worth looking at the text of the actual new law before jumping to conclusions. 

Accountability and Legitimacy of International NGOs

by Kenneth Anderson

(Shameless self-promotion alert!)  I have been meaning to mention a new essay of mine in a fine symposium issue of the Brooklyn Journal of International Law that came out a few weeks ago, ‘Accountability’ as ‘Legitimacy’: Global Governance, Global Civil Society, and the United Nations. I’ve linked to the SSRN page, but I see that all the articles from the symposium issue are up on Westlaw.  I’ve put the abstract below the fold, but I suppose I should say that not all my time is spent droning about drones … accountability, legitimacy, and governance in international institutions and civil society are also big interests.  However, I want to emphasize the papers in the whole symposium issue (here is the link to the BJIL) – it was a wide-ranging and intellectually vigorous conference and the published papers are terrific. Continue Reading…

Can an Italian Village (Pop. 598) Achieve Statehood? Why Not?

by Julian Ku

The NYT reports on an interesting strategy by an Italian village to avoid political oblivion. Statehood and independence!

The mayor of Filettino has loftier aspirations: he wants his town in the hills east of Rome — population 598 — to become an independentstate under a monarch.

“If that’s what it takes to keep the town autonomous and protect its natural resources,” said the mayor, Luca Sellari, who was elected in May. Besides, he added, “it’s everyone’s dream to be a prince.”

As befits a monarch, Mr. Sellari has lost little time in pursuing his dream. The would-be principality already has a coat of arms that now graces everything from T-shirts (“going like hotcakes,” Mr. Sellari said) to a liqueur, the Amaro of the Principality, which a local bartender, Maria Cerrocchi, said was just a brand-name bottle “with a photocopied label stuck on it.”

Filettino has even printed its own currency, the fiorito, which means “flowered” (“like the town will flower in its new guise,” the mayor explained) and which harks back to the florin, the money first coined in 13th-century Florence. If fioritos become legal tender (so far they are just souvenirs), the exchange rate is supposed to be set at two to the euro, or about 72 cents apiece

How cool is that!  And after the recognition of Kosovo and (soon) Palestine, the bar for statehood is definitely not what it used to be.  So why not?!?

President Romney Rebuffed: Libya Will Not Turn Over Lockerbie Bomber

by Julian Ku

Not shocking, really.

Aug 29, 2011 (Voice of America News/ContentWorks via COMTEX) — Libya’s rebel government said Sunday it will not extradite the Libyan man convicted in the 1988 bombing of a U.S.-bound jetliner which killed 270 people when it exploded over Lockerbie, Scotland.

Mohammed al-Alagi, the Transitional National Council’s justice minister, told reporters in Tripoli that Abdel Baset al-Megrahi already has been tried and convicted in Scotland for bombing Pan Am flight 103. He said the rebels will not hand over Libyan citizens as former leader Moammar Gadhafi did.

But the comments by the new minister for justice also suggests the new Libyan government won’t be turning over individuals to the ICC either. We’ll see how much pressure they get on this point and whether they cave.

Distinguishing High Value Targeted Killing and “Signature” Attacks on Taliban Fighters

by Kenneth Anderson

Adam Entous and Siobhan Gorman of the Wall Street Journal’s national security reporting team have a good discussion of the targeted killing-drone strike on August 22, 2011 that killed Attiyah Abd al-Rahman, Al-Qaeda’s second in command.

A considerable part of the Pakistani government’s irritation with the conduct of drone strikes is that the US not only does not seek permission – it no longer needs to, from an operational standpoint.  After years of sustained effort, it has been able to establish its own ground level intelligence operations to provide it with targets and intelligence.  The US has become less and less dependent upon the highly compromised intelligence provided by Pakistan; the hobbling of the Pakistan government’s ability to “steer” targeted killing in ways congenial to it is part of the sore point of US-Pakistan relations.

From the US standpoint, it is partly that it does not depend as much as it did on Pakistan’s intelligence.  But it is also partly, as a couple of well-publicized incidents a few months ago made clear, that sharing targeting decisions with Pakistan’s military and ISI runs a very considerable possibility of having the targets tipped off (as even The Onion has observed).  The article notes in this regard, the U.S. worries that “if they tell the Pakistanis that a drone strike is coming someone within Pakistani intelligence could tip off the intended target.”  However, the Journal’s reporting goes from there to emphasize an aspect of targeted killing and drone warfare that is not sufficiently appreciated in public discussions trying to assess such issues as civilian collateral damage, strategic value and uses, and the uses of drones in counterterrorism and counterinsurgency as distinct activities.  The article explains:

The CIA carries out two different types of drone strikes in the tribal areas of Pakistan—those against so-called high-value targets, including Mr. Rahman, and “signature” strikes targeting Taliban foot-soldiers who criss-cross the border with Afghanistan to fight U.S. forces there.

High-value targets are added to a classified list that the CIA maintains and updates. The agency often doesn’t know the names of the signature targets, but it tracks their movements and activities for hours or days before striking them, U.S. officials say.

Another way to put this is that, loosely speaking, the high value targets are part of a counterterrorism campaign – a worldwide one, reaching these days to Yemen and other places.  It is targeted killing in its strict sense using drones – aimed at a distinct individual who has been identified by intelligence.  The “signature” strikes, by contrast, are not strictly speaking “targeted killing,” because they are aimed at larger numbers of fighters who are targeted on the basis of being combatants, but not on the basis of individuated intelligence.  They are fighting formations, being targeted on a mass basis as part of the counterinsurgency campaign in Afghanistan, as part of the basic CI doctrine of closing down cross-border safe havens and border interdiction of fighters.  Both of these functions can be, and are, carried out by drones – though each strategic function could be carried out by other means, such as SEAL 6 or CIA human teams, in the case of targeted killing, or manned aircraft in the case of attacks on Taliban formations.  The fundamental point is that they serve distinct strategic purposes.  Targeted killing is not synonymous with drone warfare, just as counterterrorism is analytically distinct from counterinsurgency (I discuss this in the opening sections of this draft chapter on SSRN.)

This analytic point affects how one sees the levels of drone attacks going up or down over the years.  Neither the total numbers of fighters killed nor the total number of drone strikes – going up or down over months – tells the whole story.  Total numbers do not distinguish between the high value targets, being targeted as part of the top down dismantling of Al Qaeda as a transnational terrorist organization, on the one hand, and ordinary Taliban being killed in much larger numbers as part of counterinsurgency activities essentially part of the ground war in Afghanistan, on the other.  Yet the distinction is crucial insofar as the two activities are, at the level of truly grand strategy, in support of each other – the war in Afghanistan and the global counterterrorism war both in support of the AUMF and US national security broadly – but at the level of ordinary strategic concerns, quite distinct in their requirements and conduct.  If targeted killing against AQ leadership goes well in Pakistan, those might diminish at some point in the future; what happens in the war against the Afghan Taliban is distinct and has its own rhythm, and in that effort, drones are simply another form of air weapon, an alternative to manned aircraft in an overt, conventional war.  Rising or falling numbers of drone strikes in the aggregate will not tell one very much without knowing what mission is at issue.

Moreover, to the extent that one can have confidence in counts of civilian casualties (though there is a convergence on accepting that drone warfare is gradually producing far lower civilian casualty counts than alternative means), it is still crucial to distinguish between the two types of strategic uses of drones.  Totals that run the two activities together are not analytically very useful.  Moreover, there is some reason to believe that the kind of targeting that might produce the most civilian casualties is, under some circumstances (and perhaps counterintuitively) targeting a single, individual terrorist leader, rather than a larger group of fighters.  The reason is that a terrorist leader in Al Qaeda might well deliberately surround himself with many women and children all the time, as human shields, thus raising at least the possibility of greater civilian harm, should political authorities decide that a strike is warranted despite the civilian presence.  The Taliban formation might consist of more fighters, but fewer civilians.

These are analytic possibilities; the publicly available data does not seem to me sufficiently robust to draw strong conclusions about the kind of activity and civilian casualties. My point is an analytic one – one has not said very much about drone warfare without disentangling the distinct strategic uses to which the weapon is put.

Don’t TV Writers Use Google?

by Kevin Jon Heller

As some readers may know, I spent four years writing television in Los Angeles — law, cop, and terrorism shows — before becoming an academic.  When I wrote scripts, I prided myself on accuracy: although I occasionally took artistic license, I always tried to get the law and facts right as best I could.  So it bothers me to no end when television shows use plot devices that even cursory research would indicate are inaccurate.  A recent case in point: an episode of White Collar, an enjoyable trifle of a show about a con man who gets captured and has to work with the FBI.  The entire episode is built around a cold-blooded killer who pretends to be an Interpol agent in order to extract information from various main characters on the show — all of whom are supposed to be extremely sophisticated about the world of law enforcement. Just one problem…

Interpol, of course, doesn’t have agents.  Its job is to facilitate communication and cooperation between various police agencies around the world.

Seriously, this isn’t rocket science.  There is even an entire internet page dedicated to cataloging all of the various popular-culture references to Interpol agents.  It took me 30 seconds to find using Google.

Enforced Disappearance: Not Just for Latin American Dictators Anymore

by Kevin Jon Heller

It’s not every day that a state enacts a law that blatantly authorizes crimes against humanity, so I feel obligated to give a special shout-out to China, who intend to make the crime against humanity of enforced disappearance official government policy:

Chinese police will gain new legal powers to detain suspects for up to six months without telling their families where or why they are held, according to a state newspaper’s account of planned reforms.


The proposed changes are part of an overhaul of criminal procedure law now being considered by the National People’s Congress (NPC), China’s legislature.


The draft text has not been published, but the Legal Daily newspaper reported that police would be able to hold suspects in state security, terrorism or major corruption cases at a “designated residence”, if holding them at home would impede the investigation. The decision would need to be approved by higher officials.

In state security and terrorism cases the police would not have to notify the suspect’s family if they believed it might hinder the investigation – a criterion that scholars say is so vague as to be meaningless. Experts say residential surveillance has been misused in the past.

Here are the elements of Article 7(1)(i) of the Rome Statute:

Crime against humanity of enforced disappearance of persons

1. The perpetrator: (a) Arrested, detained or abducted one or more persons; or (b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons.

2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom.

3. The perpetrator was aware that: (a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or (b) Such refusal was preceded or accompanied by that deprivation of freedom.

4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization.

5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization.

6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time.

7. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

8. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Deprivation of freedom?  Check.  Refusal to acknowledge said deprivation of freedom?  Check.  Deprivation carried out by the state?  Check.  Refusal to acknowledge said deprivation official state policy?  Check.  Intent to remove detainees from protection of the law?  Check.  Widespread or systematic attack?  There will be, if the law is used often enough.

Congratulations, China.  You’re on the cusp of entering an elite fraternity, one whose most famous members are the Nazis and Latin American dictators.

The Pro-Palestinian Case Against Palestinian Statehood

by Julian Ku

This legal opinion by Oxford prof Guy Goodwin-Gill has been drawing some attention in recent days.  It argues that the planned campaign to establish a Palestinian state this fall at the United Nations has a number of policy and legal pitfalls that could work against the interests of most Palestinians. Here is an excerpt from an interview with Al-Jazeera:

You tackle three specific issues; constitutional, statehood, and representation. Starting on the issue of constitutional, you are saying the Palestinian Authority (PA) is a subsidiary body, formed by the PLO, as an administrative entity, and that “it does not have the capacity to assume greater powers, to ‘dissolve’ its parent body, or otherwise establish itself independently of the Palestinian National Council and the PLO”. What does this mean, both for the quest for statehood, and subsequently for the Palestinians if statehood is granted?

On the legal standing and capacity of the Palestinian Authority, I was applying non-controversial legal principles regarding the powers and competence of subsidiary bodies. Does the PA have the power to move the issue of statehood ahead, and if so, what are the origins and parameters of that power? Have the people of Palestine, through their representative – the PLO – granted such power? I recognise that there is an urgent, pressing need for statehood, particularly in the face of the intransigence of other parties, but I am also concerned that the essentials of modern statehood – democracy, representative government and accountability – may be sidelined, if not sacrificed, perhaps to the long-term disadvantage of the people at large.

One issue here is that the majority of Palestinians are refugees living outside of historic Palestine, and they have an equal claim to be represented, particularly given the recognition of their rights in General Assembly resolution 194 (III), among others. It is not clear that they will be enfranchised through the creation of a state, in which case the PLO must continue to speak for their rights in the UN until they are implemented.

I’m not sure I buy Goodwin-Gill’s definition of “modern statehood” as requiring  “democracy, representative government, and accountability.”  But he does raise a fascinating problem and challenge for the Palestinian statehood movement.  What will happen to the Palestinian diaspora after the PLO is replaced by a Palestinian state?

Petraeus and the Culture of the CIA

by Kenneth Anderson

The Wall Street Journal’s Siobhan Gorman has an interesting profile today of Michael Morell, a veteran CIA insider (31 years in) who is tapped to help guide the new director, David Petraeus, as he steps out of the uniform and into the suit, through the maze of internal CIA culture.  (It might be behind the subscriber wall.)

In a rare interview, Mr. Morell, a longtime agency power with a nearly nonexistent public profile, emphasized the importance of humility for an agency stained by intelligence misses over 9/11 and weapons in Iraq and controversy over interrogation techniques and rendition. “We end up having bits of information that have a multitude of possible explanations,” he says. “You’ve got to be really humble about the business we’re in.” Some agency veterans say Mr. Morell may be too much of an insider. He has never worked anywhere else, and might miss areas where the CIA’s culture or management are due for a change, they point out.

Gen. Petraeus, the agency’s fifth director in eight years, is the four-star general who led allied troops in Afghanistan, steeped in a culture that confers authority with the insignia on an officer’s uniform. Mr. Morell rose in an agency averse to hierarchy and hostile to leaders who don’t assimilate.

Petraeus has indicated in various ways that a high priority for him is the intelligence and analysis side of the CIA, in which Petraeus has had experience as an outside military consumer of the CIA’s intelligence product.  I would hope, however, that he not neglect the forward-looking legal-policy architecture of the CIA’s role in operations.  These include drone operations and special operations, and I’d suggest there are two basic issues that can’t be ignored.  One is the increasing integration of military and civilian intelligence operations: what is the legal architecture from the standpoint of domestic, military, and international law, and how is the US government’s view of the legitimacy and legality of that framework conveyed to the public?  The second is closely related to the first: in a world in which US operations in these arenas are increasingly in the “deniable” category, rather than truly “covert” and therefore “unknown,” what are the rules by which such operations are legitimately conducted?

The connection between these two is that simple silence, or the ability to figure that either no one really knows that the operation took place, and hence it can take place in some space that is ungoverned by law or rules – well, that is gone, at least for the United States.  Merely “deniable” inevitably forces questions of legitimacy, which in the United States forces questions of law, international and domestic.  The American public does not have some burning, Assange-like desire to reveal operational secrets, but it does want to feel like there is some legitimate domestic process in place for accountability, even if it is necessarily secret.  That requires standards.

I am all in favor of drone strikes and targeted killing and special operations by both military and CIA teams; I am also convinced that the public acceptance and legitimacy of those operations will be undermined bit by bit unless successive American administrations make clear that “covert” does not mean “standardless.”  I don’t think this is an especially difficult task as far the American public is concerned – more difficult with the elites of the universities, NGO world, think tanks, etc. who, regarding themselves as players and not mere bystanders like the public, demand a quid pro quo for sign-off.  A lot of legitimacy is being willing to assert the standards one thinks are right, announce them and defend them, while flat out denying any obligation to discuss operations anywhere but in formal and secret oversight processes.

This does require sustained attention and a recognition that crystallizing legitimacy is a long term process, a process of accretion – hard to sustain in the face of day to day pressures, and yet crucial to institutions.  That alone would be enough to ensure that no one ever quite got around to executing a long term strategy of elaborating, in effect, a set of legal-policy standards for covert operations.  What might force the issue forward, however, is that the much vaunted integration of military and CIA operations does require legal standards, because that is already a requirement built into any military operation, and if these are going to be jointly and integrated operations, the military is not free to leave those standards behind just because it is “covert.”  Formalizing a set of standards applicable to special operations that would be a good thing, but I would guess that only Petraeus, given his standing with the military and given his new intelligence position, is in a position to direct the attention and resources to do so.

Did NATO Violate International Law in Libya? Will the ICC Investigate?

by Julian Ku

The legality of NATO’s action in Libya seems to me fairly straightforward. I understand that there are some quibbles about whether NATO exceeded its mandate under the UN Security Council Resolutions.  But I don’t think there is a very strong case, as a question of jus ad bellum. Then again, the hard left (in the form of Dennis Kucinich) and, more seriously, various African notables plainly disagree.

A COALITION of 200 prominent African scholars, professionals and politicians — including Thabo Mbeki and former government ministers Ronnie Kasrils and Alec Erwin — yesterday accused western nations and the International Criminal Court of “subverting international law” in Libya…..

“Increasingly, we have seen how the UN, especially the Security Council, has been misused to militarise policy, legalise military action and effect regime change,” said University of Johannesburg professor Chris Landsberg. He was speaking at a press briefing in Johannesburg to communicate the group’s open letter to the international community.

“It’s unprecedented for the UN Security Council to outsource military intervention to Nato.”

Prof Landsberg challenged the International Criminal Court to investigate Nato for “violating international law”.

I think the ICC probably does have some very small and thin basis for opening an investigation into NATA, but I don’t think it will. Nor should it.

“Libya Will Advance on the Road to Freedom”

by Roger Alford

“People of Libya! In response to your own will, fulfilling your most heartfelt wishes, answering your incessant demands for change and regeneration and your longing to strive towards these ends, listening to your incitement to rebel, your armed forces have undertaken the overthrow of the reactionary and corrupt regime, the stench of which has sickened and horrified us all…. From this day forward, Libya is a free, self-governing republic…. She will advance on the road to freedom, the path of unity and social justice, … where injustice and exploitation are banished, … where all will be free, brothers within a society in which, with God’s help, prosperity and equality will … rule us all.”

~ Muammar Gaddafi, September 1, 1969 announcing the coup against the government of King Idris.

Just a gentle reminder not to get too excited about the forces of change sweeping the Middle East.

Judicial Review of Potentially Lethal Targeting Decisions — Through the Lens of the bin Laden Operation

by John C. Dehn

Last week I posted about the challenges to and importance of judicial review of war measures against U.S. citizens.  This post will use the bin Laden killing to explore the issue in the context of targeting — hopefully in manner accessible to the average reader.  After reviewing issues likely preventing prior judicial adjudication or review of a potentially lethal (“kill or capture”) targeting order, it briefly explains why after-the-fact judicial review of such orders is important to preserving the rule of law.

Because ours is a limited federal government, our federal courts may not hear any and every lawsuit.  A case must be within the jurisdiction of a federal court, meaning within its legal power to hear and decide.  Jurisdiction has two major components: the subject matter of and the parties to a lawsuit.   For example, the case brought on behalf of U.S. citizen Anwar al-Aulaqi raised claims arising under our Constitution and other federal laws.  Therefore, it involved a “federal question” typically within the subject matter jurisdiction of the federal courts.   Additionally, the plaintiff invoked and submitted to the court’s authority, and the defendants were federal government officials acting in their official capacities.  Therefore, the court also had jurisdiction over the parties to the suit.

Cases filed in our federal courts must also be “justciable,” which basically asks whether they are appropriate for judicial intervention.   Importantly, a plaintiff must have “standing” to bring a suit.  To have standing, a plaintiff is must have suffered or be sufficiently likely to suffer some unique and legally cognizable injury (or be able to raise such a claim on behalf of an individual).  A claim should also be “ripe.”  This requires that events be sufficiently developed to manifest and clarify the injury to be addressed.  Cases must also not be “moot,” which means that the underlying claim or injury must remain unresolved at the time of the trial and judgment, giving the judgment appropriate legal meaning and effect.  Many believe these justiciability doctrines to be based in constitutional provisions extending federal judicial power only to “cases” and “controversies.”

The “political question doctrine” is another of these justiciability doctrines.  Based in the Constitution’s separation of powers, the political question doctrine attempts to identify those matters properly left to the discretion of the elected branches. Baker v. Carr, 369 U.S. 186, 217 (1962)(“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers.”)  The Supreme Court has identified six circumstances indicating that a case might involve a political question.  These include: “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id.  Judges have broad discretion to apply these rather malleable categories.

Judge Bates dismissed al-Aulaqi suit on two grounds.   First, he found that the person bringing the lawsuit, al-Aulaqi’s father, lacked standing to advance the claims he made on his son’s behalf.  More problematic, though, was Judge Bates’s determination that the claims involved a non-justiciable political question.  For reasons I explained in an earlier post, the Constitution only arguably vests the decision to resort to war in the elected branches.  Nevertheless, judicial review of the use of specific war measures against individuals or property has been quite common in U.S. history.

The main obstacle to judicial review of an unexecuted, potentially lethal targeting order is not that the president or elected branches have unreviewable discretion to identify and engage threats to the United States.  Because extrajudicial killing of combatants in armed conflict is not presumptively unlawful or unconstitutional, the context in which any such killing occurs determines its legality. Until the order is carried out, there is simply no way to know whether, or the circumstances in which, deadly force will be used.  In other words, the case is likely not “ripe” for judicial review because it is unclear whether or how any public or private right will be improperly invaded.

The circumstances surrounding bin Laden’s death amplify this point.  Osama bin Laden was “wanted dead or alive” for over a decade.  It was impossible to know in advance when or how his death would ultimately occur.  At least one commentator claimed that deadly force was properly employed in defense of government agents conducting a law enforcement-like mission.  Others have argued that it was a permissible act of war (or national self-defense) regardless of whether bin Laden presented an imminent threat of death or grave harm to any specific individual at the time he was killed (provided that he did not clearly manifest an intent to surrender).  Both legal justifications potentially apply depending upon what actually happened in the Abbottabad safe house.

Some might believe that judicial review of an executed targeting order that ultimately results in death is futile.   Irreversible physical and legal harms have already occurred.  But it is an unfortunate reality that lawsuits typically respond to injury to compensate or otherwise redress legal harms already suffered.  But these lawsuits remain important not only because they compensate for harm as best the law can, but also because they clarify the law, thereby potentially preventing or curtailing future harm.  For example, it was not entirely clear whether the Constitution prohibited a state from allowing its law enforcement officers to shoot fleeing felons on sight until the Supreme Court’s decision in Tennessee v. Garner, 417 U.S. 1 (1985).  The decision clarified that the Constitution requires an objectively reasonable belief that a fleeing felon poses a threat of harm to an officer or others before the officer may use lethal force.  States and officials now better understand the legal standard governing their conduct and can adapt their conduct and procedures accordingly.  In this way, after-the-fact judicial review is preferable to no review at all.  Those who demand that the law prevent all harm simply ask too much of it.

But no legal doctrine (political question, state secrets evidentiary privilege, etc.), particularly not one based in the separation of powers, should prevent a citizen or her estate (in a proper case) from questioning whether her government killed, wounded or detained her in a manner consistent with the Constitution.  Although I have argued that judicial review of the use of force against a citizen in the context of armed conflict must necessarily be somewhat deferential, as it is in the domestic law enforcement context, it should still occur.  The powers of the federal government were separated to prevent abuses of power.  Applying the political question doctrine in a way that vests the discretion to use military powers against citizens exclusively in the elected branches essentially recreates the situation the Colonists and Framers sought to remedy.

Does the U.S. Have An Exemption from the ICC’s Jurisdiction for Actions in Libya?

by Julian Ku

Expect to hear more of this in the next few days from the anti-Obama progressive left.

NATO commanders who authorized the Libya bombing campaign should be “held accountable” to international law and hauled before the world court for civilian deaths, Rep. Dennis Kucinich (D-Ohio) said Tuesday.

“NATO’s top commanders may have acted under color of international law, but they are not exempt from international law,” Kucinich said in a statement released by his office. “If members of the Qadhafi regime are to be held accountable, NATO’s top commanders must also be held accountable through the International Criminal Court for all civilian deaths resulting from bombing. Otherwise, we will have witnessed the triumph of a new international gangsterism.”

Kucinich is not to be taken seriously about any matter and I deeply hope he is re-districted into political oblivion soon, but he does raise an interesting legal question.  NATO commanders from Europe and Canada are already subject to the ICC’s jurisdiction.  But what about any U.S. commanders who might have participated?  Well, maybe I missed all of this discussion when I was in China, but I think they have an exemption from the ICC that was built into the UN Sec. Council Resolution 1970.

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

It’s a confusing paragraph, but it sounds like it says any state not party to the Rome Statute, but which has acted pursuant to the Security Council’s authorization in Libya, will have exclusive jurisdiction over its own nationals for acts or omissions in Libya.  Hmm…I wonder what State that is not a party to the ICC was deeply involved (even if from behind) in the Libya intervention?  Very clever, those U.S. State Department lawyers, especially because they were at the same time arguing that the U.S. is not actually engaged in hostilities in Libya.  And nice job laying down a precedent for any future UNSC authorized actions.  President Romney/Perry/Palin/Paul/Generic Republican will be very appreciative, I’m sure.

Does the New Libya Have to Surrender Gaddafi to the ICC?

by Julian Ku

Let’s assume that the Libyan rebels do prevail and that they end up capturing Libyan dictator Muammar Gaddafi.  Does the new Libyan government have a legal obligation to turn him over to the ICC, even if they seek to try him in Libyan courts?

Libya is not a member of the ICC Rome Statute, so its only obligation flows from the U.N. Security Council’s Resolution (UNSC 1970) referring Libya’s case to the ICC.  The relevant paragraph makes clear that Libya must cooperate with the ICC prosecutor.

5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

But does this obligation to cooperate really entail turning over an alleged criminal, especially one whom you plan to try yourself? And if it does, should the UNSC’s “plenary” power under Chapter VII really extend this far?  Alison Cole argues here that the IL is pretty clear, but I’m not so sure. Certainly, the text of the U.N. Charter Article 41 is not crystal clear on this point.

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

I suppose this could be read to include surrendering alleged war criminals (and I’m sure it has been read in this light).  I think that, at least as a textual matter, this is still an open question. Are there other provisions that the UNSC and the ICC Prosecutor would rely on to demand the new Libyan government’s acquiescence?

Can President Romney Put the Lockerbie Bomber on Trial?

by Julian Ku

Reacting to the still-imminent fall of the Gaddafi regime in Libya, U.S. presidential candidate (and likely future president if you believe these polls) Mitt Romney has called for the extradition of the mastermind of Lockerbie bombing, Abdelbaset Mohmed Ali al-Megrahi, to the United States.  The demand raises an interesting dilemma.  Megrahi was tried and convicted in a special Scottish tribunal set up specifically for the Lockerbie case. He was serving time, and then released in the belief he was terminally ill. He miraculously recovered, however.  In any event, is there a double jeopardy problem?

The U.S. can try him separately without concerns about double jeopardy, unless the U.S. somehow officially can be held somehow responsible for the original trial. I don’t think it can, unless there is something about that original trial I am unaware of.  Still, a second trial would at least raise a policy dilemma. He was tried, convicted and sentenced. Would it really be appropriate to try him again, even if we could?

Time on Saif Gaddafi

by Kevin Jon Heller

Time has an interesting article up about Saif’s reappearance in Tripoli.  The whole thing is well worth a read, but I was struck by these paragraphs about the ICC:

The rebels were not the only ones whose credibility was in doubt on Tuesday. So too was that of the International Criminal Court (ICC) in The Hague, which has indicted Saif al-Islam, his father, and Gaddafi’s security chief Abdallah al-Senousi on charges of crimes against humanity for allegedly organizing security forces to fire upon and kill unarmed protesters last February, before the rebels in eastern Libya took up weapons. Under ICC rules, a defendant is brought to trial after an arrest by a foreign government. Yet Libya has never signed the ICC treaty, leaving the transfer of Saif and his father in considerable doubt — many rebels, in fact, would prefer to try the men in Libya.

Despite that, ICC officials had said on Monday that they were discussing with rebel leaders how to transfer Saif to stand trial in The Hague. On Tuesday, that changed: ICC spokesman Fadi el Abdallah told the BBC that despite several attempts, the organization had never received proof that Saif was under arrest. “We were trying to confirm the information,” Abdallah said. “We tried to contact different persons from the NTC and got different information.” In a similar way, information about Libya’s war depends on who one asks.

The first paragraph is just sloppy journalism.  Libya may not have ratified the Rome Statute, but paragraph 5 of SC Res. 1970, which referred the situation in Libya to the ICC, provides that “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.”  Although compliance is always an issue with international organizations, I think it is safe to say that most states would be more likely to ignore the ICC than the Security Council.

The second paragraph, unfortunately, indicates that the ICC is in disarray both internally and externally concerning Saif’s status.  If the ICC had not received proof that Saif was in custody, Moreno-Ocampo had no business confirming that he was.  His rash public statement simply reinforces his image — all too widespread, and all too justified — as an inept prosecutor far more concerned with publicity than the credibility of his office or the legitimacy of the Court.

Samuel Estreicher on “The So-Called Proportionality Principle” in the Law of Armed Conflict

by Julian Ku

Professor Sam Estreicher of NYU has an interesting and provocative new take on the “so-called proportionality principle” in the law of armed conflict that was recently published by the Chicago Journal of International Law.

The focus of this article is on the so-called principle of “proportionality,” which regulates the conduct of warfare in an effort to limit harm to civilians during otherwise legitimate armed conflict. I use the qualifying adjective “so-called” because “proportionality” in this context is a misnomer. The actual obligation, as set forth in Articles 51(5)(b) and 57(2)(b) of AP I, speaks in terms of prohibiting (and deferring) attacks expected to cause incidental civilian losses “which would be excessive in relation to the concrete and direct military advantage anticipated.” Neither the text nor the policy of IHL requires some form of “balancing” or use of a “sliding scale” to ensure that the military objective is “proportionate,” in the sense of being commensurate with the extent of civilian losses? What is required is that the military use no more force than necessary to accomplish concrete, direct military objectives.

The proposed “excessive loss” formulation is not only truer to the text of AP I but provides a sounder, more principled basis for judging violations, for insisting on military commander compliance – than the more elastic, manipulable “proportionality” formulation, which invites commentators and tribunals to second-guess military objectives and compare and weigh essentially non-comparable factors.

This article is the second of three articles (the first can be found here) in which Professor Estreicher considers and critiques the aspects of the contemporary laws of war that he suggests are “privileging asymmetric warfare.”

“Screw the [International] Criminal Court”

by Kevin Jon Heller

So says Saif Gaddafi, who apparently has not been captured by the rebels after all:

Muammar Gaddafi’s once powerful son, Saif al-Islam, made a defiant appearance in Tripoli last night to disprove the revolutionaries’ claim to have arrested him and to proclaim ultimate victory.

Saif al-Islam, 39, arrived in an armoured vehicle waving two fingers in a victory sign at a hotel where foreign journalists are staying in an area of the Libyan capital still under the regime’s control.

“I am here to refute the lies [that he had been arrested],” he said.

As the revolutionaries consolidated their control over most of Tripoli and continued their hunt for Libya‘s dictator, the younger Gaddafi and one time heir apparent said that his father had not fled the city.

The BBC described Saif al-Islam as “confident and full of adrenalin”. He said that the rebels had fallen into “a trap” and would be defeated.

“You have seen how the Libyan people rose up together, men and women, to break the backbone of the rebels, rats and gangs yesterday and today,” he was reported to have said.

He then took reporters on a drive in an armoured convoy through areas of the city still under the regime’s control including the Gaddafi family compound and military barracks where scores of men waited to receive guns to join the fighting.

“We are going to hit the hottest spots in Tripoli,” he said.

The revolutionaries claimed to have arrested three of Gaddafi’s sons as they seized control of Tripoli. Saif al-Islam’s detention was confirmed by the prosecutor of the International Criminal Court, Luis Moreno-Ocampo, who is seeking to have him extradited to stand trial at The Hague for crimes against humanity over the violence unleashed by the regime against the uprising in which hundreds of unarmed people were shot. The ICC alleges that Saif al-Islam drew up and implemented the plan to violently put down the rebellion.

I have no idea why the rebels announced Saif’s capture — and even less idea why Moreno-Ocampo confirmed it before he had concrete evidence to support the rebels’ claim.  I do know, though, that this is a terrible blow to the ICC’s credibility, to say nothing of its prospects for turning the Security Council’s referral into an actual prosecution.

Stay tuned…

To Televise or Not to Televise (the Mubarak Trial)

by Michael Scharf

While the world waits to learn the fate of embattled Libyan leader Muammar Gaddafi, the trial of another former Mid East Leader, President Hosni Mubarak of Egypt, is currently underway.  In terms of international interest, Mubarak may be no Gaddafi.  But since the Mubarak trial concerns the former President of a strategicly important country charged with ordering the killing of unarmed protesters challenging his rule, it has the potential to rank with some of the most important world trials of all time — Goering, Eichmann, Ceausescu, Milosevic, Saddam.

On the eve of the Mubarak trial, I appeared on Public Radio International’s “The World” to discuss the proceedings, drawing from lessons learned from the Saddam Hussein Trial for which I served as a trainer and adviser to the Judges. Listen here . Opinio Juris readers may be surprised to hear that I suggested that the judge not broadcast the proceedings on live television if he wishes to maintain control of his courtroom and the solemnity of the process.

Egypt, like most countries around the world, does not ordinarily televise its criminal trials. Even in the United States, the use of television cameras in the courtroom has been the subject of much debate and controversy. In the 1965 case of Estes v. Texas, the U.S. Supreme Court ruled that the Sixth Amendment right to a public trial does not mean that a trial should be televised.

While U.S. federal courts to this day do not permit the televising of criminal trials, several state courts have experimented with televised trials with mixed results. For example, the presence of broadcast media can inhibit witnesses from testifying, thereby, impairing the ability of the prosecution and defense from obtaining evidence; the presence of broadcast media can encourage some judges, lawyers, and witnesses to play to the cameras, creating a celebrity status for them and thus depriving defendants of effective counsel and fair and impartial decisions by judges; and heightened public clamor resulting from television coverage inevitably results in some level of prejudice. Moreover, the media tend to air only the most dramatic moments of a trial when they use the footage for news broadcasts, so viewers are left with an incomplete and often misleading portrayal of justice in action.

Despite the fact that few countries allow television cameras in their courtrooms, since the first trial before the International Criminal Tribunal for the former Yugoslavia, all of the modern atrocity crimes trials have been televised. The theory behind televising such trials is that it will promote the perception of fairness if ordinary people can watch what is going on in the courtroom, and that it will help deter future atrocities by educating the population about what occurred through the use of testimony and evidence that they can themselves view and assess.

The Iraqi High Tribunal judges felt that they needed to follow the international tribunal approach if the trial of Saddam Hussein and the other regime leaders was to be seen as credible. As I detail in my book, “Enemy of the State” (St. Martin’s Press, 2008), the decision to televise the Saddam trial had disastrous results, as Saddam and the other defendants were able to use the televised proceedings as a means of promoting violence against the new democratically elected government and its supporters. In addition, the defendants’ disruptive antics before the cameras (including coming to court in their pajamas, sitting with their backs to the judges, shouting at witnesses and the judge, and insisting on prayer breaks in the middle of witness testimony), together with the judge’s futile and at times overly aggressive attempts to impose order, turned the proceedings into a veritable circus.

Nor has the televising of international trials gone smoothly. Slobodan Milosevic, Vojislov Seselj, and Radavan Karadzic have each adopted disruptive tactics and played to the cameras throughout their trials at the The Hague.

Like the judges who presided over the Saddam Hussein Trial, Judge Ahmed Refaat, who was selected to preside over the trial of Hosni Mubarak, initially decided to televise the Mubarak proceedings gavel to gavel. Snippets of the broadcast of the first day of the trial, including images of the 83 year-old Mubarak being wheeled into the courtroom on a gurney and placed into the metal cage that constitutes the Egyptian version of the “dock,” can be viewed on YouTube here.
From this footage, viewers around the world were left with an indelible (yet misplaced) perception of injustice. In this context, it should not be so surprising that Judge Refaat reversed himself on the second day of trial, and declared that he was turning the cameras off “to protect the public interest.” New York Times, August 16, 2011.

While I support Judge Refaat’s decision not to continue to broadcast the trial gavel to gavel, I don’t think the best solution was to bar television cameras altogether. Rather, the Egyptian court should film the trial and release periodic televised highlights to the media pool. And at the end of the trial, a documentary should be produced with extensive footage from the trial, so that a video record of the case can be made available to the Egyptian public in an easily accessible form.

This Is Probably a Job for Chris Borgen, Space Lawyer

by Kenneth Anderson

DARPA will be making a grant award this fall to some organization to address interstellar space flight:

In what is perhaps the ultimate startup opportunity, Darpa, the Defense Advanced Research Projects Agency, plans to award some lucky, ambitious and star-struck organization roughly $500,000 in seed money to begin studying what it would take — organizationally, technically, sociologically and ethically — to send humans to another star, a challenge of such magnitude that the study alone could take a hundred years.

The awarding of that grant, on Nov. 11 — 11/11/11 — is planned as the culmination of a yearlong Darpa-NASA effort called the 100-Year Starship Study, which started quietly last winter and will include a three-day public symposium in Orlando, Fla., on Sept. 30 on the whys and wherefores of interstellar travel.

The reason I am calling out OJ’s own space law expert for this assignment is that the article goes on to note that the agenda for the conference “ranges far beyond rocket technology to include such topics as legal, social and economic considerations of interstellar migration.”

So.  Toward the end of Robert Heinlein’s young people’s classic 1950s sci-fi novel, Have Space Suit, Will Travel (a title imposed by his publisher and which forever embarrassed him), the young hero, Kit, meets with the MIT physicist father of his interstellar sidekick, PeeWee – and the UN Secretary-General, who understandably wants to learn about the aliens that, unbeknownst to anyone, nearly destroyed Earth.  Kit expresses a desire to study engineering; the SG tells him he should consider a joint degree in law because, as the SG says, the law and lawyers go anywhere humanity goes.  Good to see that DARPA recognizes that.

Saif Arrested! (And Snarky Thoughts on His Dissertation)

by Kevin Jon Heller

CNN is reporting that Libyan rebels have arrested Saif Gaddafi, Muammar’s second-eldest son long thought to be his most likely successor. Saif is one of the three suspects for whom the ICC has issued arrest warrants; the allegations include persecution and murder as crimes against humanity.  And it appears that the OTP is already in negotiations with the rebels to turn Saif over to the Court:

The International Criminal Court will hold talks Monday with Libyan rebels on transferring Saif al-Islam Gadhafi, one of the two captured sons of embattled Libyan strongman Moammar Gadhafi, to its custody, Chief Prosecutor Luis Moreno-Ocampo told CNN. Moreno-Ocampo said the younger Gadhafi’s arrest was “very important” for the war-crimes court, which issued a warrant for his arrest in June on charges of crimes against humanity. “We’ll discuss tomorrow the transition of authority, how to manage to surrender him,” Moreno-Ocampo said. Both Gadhafis are wanted for crimes against humanity in connection with their attempts to put down the emerging revolt against Gadhafi’s four-decade rule in February. The court, based in The Hague, Netherlands, issued a similar warrant for Abdullah al-Sanussi, the elder Gadhafi’s brother-in-law and Libya’s intelligence chief.

As many readers likely know, Saif completed a PhD in philosophy at the LSE.  His dissertation — which was almost certainly plagiarized — was a passionate defense of the role that civil society and international organizations play in the promotion of democracy and human rights.

P.S. You can find a PDF of Saif’s dissertation, entitled “The Role of Civil Society in the Democratisation of Global Governance Institutions: From Soft Power to Collective Decision Making,” here.

P.P.S. In case you’re wondering, the dissertation does indeed discuss — albeit briefly — the ICC (pp. 383-84):

The campaign to set up the International Criminal Court to prosecute crimes against humanity involved NGOs’ organising international conferences and meetings, supporting Southern CSOs and State participation in the process through funding and information dissemination, and lobbying throughout many countries, including lobbying US Congress and the EU Parliament. The result was the Rome Statute of the International Criminal Court of 17 July 1998, ratified by 120 states and finally coming into force on 1 July 2002. The international system would not have been sufficiently equipped to bring to justice those, such as Slobodan Milosevic, responsible for human atrocities, without this success on the part of NGOs.

I’m guessing those NGOs — he singles out the Coalition for the International Criminal Court elsewhere — are off Saif’s Christmas card list.

Call for Papers: Forces Without Borders

by Kevin Jon Heller

Our friends at the Cornell International Law Journal have asked me to post the following call for papers.  The conference looks great; I’m disappointed that it starts the last day of my summer teaching obligations.

The Cornell International Law Journal is pleased to announce its 2012 symposium, Forces Without Borders: Non-State Actors in a Changing Middle East, February 17th–18th, 2012 at Cornell Law School.  Non-state forces have driven many of the recent historic events in the Middle East and North Africa.  Our symposium will examine the legal status and significance of these forces in the context of the ongoing regional change, as well as pressing questions posed for the future of international law.

Professor Jordan Paust will deliver the keynote address.  He has published extensively on issues including the role of non-state actors in international law, jurisdiction of the International Criminal Court, and war crimes liability for heads of state.  Professor Paust is the Mike and Teresa Baker Law Center Professor at the University of Houston Law Center.

Scholars are invited to submit proposals for presentations, and those selected will be asked to submit rough drafts of papers for circulation among presenters before the conference.  Selected works presented will be published in a symposium issue of the journal.  One page proposals are due October 5th, 2011, and those selected will be notified by October 20th, 2011.

International law is evolving to accommodate increasingly potent non-state actors.  Terrorist organizations are able to project substantial military power, while digital communication facilitates organization among protest groups.  The rising influence of non-state actors has enjoyed much academic attention in recent years, but the events of the Arab Spring focus fresh attention on this ongoing legal evolution.  Possible themes might include:

  • Ways in which technological developments have empowered women’s groups that were previously less influential in certain Middle Eastern cultures.
  • Whether journalists have played a larger role in the Arab Spring than previous large-scale political and cultural movements, and how the law can better protect members of the press.
  • Whether the law provides sufficient accountability for non-state actors such as NATO in situations like the conflict in Libya.
  • The appropriate role of international groups, such as UN entities, in legal transitions within countries in the region.
  • The role of multinational corporations and their duty to respect economic, social, and cultural human rights which may conflict with domestic regulations.
  • A comparative analysis between the influence of non-state actors in the Arab Spring and other, analagous moments of significant regional change.

In order to encourage unique approaches to the topic, scholars are encouraged to define non-state actors creatively, potentially including journalists, rebels, protesters, new media, security alliances, NGOs, or others.

Proposals should be E-mailed to Symposium Editor Annie Eisenberg at ame26 [at] cornell [dot] edu.  We look forward to hearing from you.


Andrew Orr, Editor-in-Chief

Annie Eisenberg, Symposium Editor

International Crises and Institutional Consolidation

by Chris Borgen

David Bosco has an essay at Foreign Policy arguing that the current financial and security crises, rather than weakening international intitutions, are strengthening them.  In short, there are so few options, that leaders are turning to international organizations and relying on them. But there may also be a more fundamental shift that is occurring in international economic policymaking:

…it’s also possible that we have reached the point at which the world is more centripetal than centrifugal. The messy, halting, and fragmented project of global governance may have advanced far enough now that conflict, crisis, and the intense pressure of events lead not to the flying apart or hollowing out of existing institutions but to their consolidation. When crises hit, policymakers are pulled toward more international governance rather than less — sometimes in spite of themselves. The reality of interdependence may finally have insinuated itself into the instincts of policymakers.

This centripetal dynamic, it’s important to acknowledge, does not reflect particularly strong performances by existing institutions…

Bosco argues that the state behavior on issues of international security is also becoming more centripetal than centrifugal. He explains that, John Bolton notwitshatnding, the closing years of the Bush Administration were some of the busiest for the Security Council in terms of managing international conflicts.


The case is even stronger that the 9/11 security shock pushed the NATO alliance toward greater reach and authority… The experience has turned an alliance that had been focused on Europe and its environs into one that thinks globally.

Whether this turn to international institutions will be an effective strategy for addressing these policy dilemmas remains to be seen. Bosco closes with a warning:

And make no mistake: A centripetal world is not necessarily a better or more harmonious one. But it’s one in which policymakers instinctively reach for solutions that involve and rely on international institutions. This is a victory for those who have long argued that institutionalized cooperation is the only path forward. But it’s also a daunting challenge. More reliance and authority for these institutions will mean much more public scrutiny. The days when international organizations could work quietly in the shadows are ending.

The Bear Is Back!

by Kevin Jon Heller

Well, at least it is in Michelle Bachmann’s world:

I would say it’s a unified message. It really is about jobs and the economy. That doesn’t mean people haven’t [sic] forgotten about protecting life and marriage and the sanctity of the family. People are very concerned about that as well. But what people recognize is that there’s a fear that the United States is in an unstoppable decline. They see the rise of China, the rise of India, the rise of the Soviet Union and our loss militarily going forward. And especially with this very bad debt ceiling bill, what we have done is given a favor to President Obama and the first thing he’ll whack is five hundred billion out of the military defense at a time when we’re fighting three wars. People recognize that.

Elect that woman immediately!  We have to find some way to end the blockade of Berlin and keep ICBMs out of the hands of the Cubans.

Dr. Bachmann’s non-existent doctorate was obviously in Soviet Studies.

Prosecuting Piracy

by Michael Scharf

After 200 years of quiescence, Piracy has re-emerged as a major problem for world shipping.  A recent report has documented that Piracy has resulted in more than $12 billion in losses in the past twelve months alone.  According to an August 11, 2011 article in the Guardian, Piracy is also significantly hampering food aid to drought-stricken Somalia, resulting in thousands of deaths.  Somali pirates have recently seized more than fifty vessels and taken over 1,000 crewmembers and passengers hostage. And the problem is getting worse.

The Public International Law & Policy Group (PILPG) has convened a “High Level Piracy Working Group” devoted to addressing the challenges posed by modern maritime piracy. The Working Group had its first meeting on May 19, and met for the second time on August 11 at the PILPG office in DC.

The High Level Piracy Working Group, which Paul Williams and I co-chair, includes Judge Rosemelle Mutoka (Kenya Piracy Court/Visiting Jurist at Case Western Reserve University School of Law), Jennifer Landsidle (Office of the Legal Adviser, U.S. Department of State), Ginny Vander Jagt (Department of Justice), Sandy Hodgkinson (Office of the Deputy Secretary of Defense), Ashley Roach (formerly of Office of the Legal Adviser, U.S. Department of State), Capt. Greg Noone (Navy JAG Reserve), Jerome Teresinski (U.S. Department of Justice and Army JAG Reserve), Tyler Rauert (Office of Senator Mark Kirk), David Crane (former Chief Prosecutor of the Special Court for Sierra Leone), and Brian Casey (head of Baker & McKenzie’s Litigation Practice Group in Toronto), as well as a dozen leading academics and practitioners from several countries.

The High Level Piracy Working Group’s mandate is to provide legal and policy advice to domestic, regional and international counter-piracy mechanisms, with the goal of helping to create effective responses to the growing piracy threat. As part of this project, PILPG is publishing the “Piracy News Update,” a biweekly electronic newsletter that will keep subscribers informed of piracy-related developments around the world. If you would like to receive the Piracy News Update in the future, click here. In addition, the High Level Piracy Working Group has assembled a comprehensive electronic database of piracy-related documents and resources, available here.

The August 11, 2011 Working Group meeting began with a detailed briefing by Jennifer Landsidle (DOS) of recent developments at the United Nations, including relating to the UN Secretary-General’s June 15 Report on “The Modalities for the establishment of Specialized Somalia Anti-Piracy Courts.”  The proposed Specialized Court would be loosely modeled on the Scotish Court that prosecuted the two Libyan Pan Am 103 bombing defendants at Camp Zeist in The Netherlands.  It would apply Somali and International Law, and have its seat at the ICTR Courthouse in Aurusha, Tanzania.

Although Tanzania welcomed the proposed initiative, and Russia and France are in favor of setting up a Specialized Anti-Piracy Court at the ICTR, the government of Somalia is strongly opposed to the idea. So, for the time being, the efforts of the Working Group are focused on creating legal research memos for use by domestic authorities in piracy prosecutions in Kenya, the Seychelles, Somaliland, and elsewhere. To that end, the Working Group has established a law firm and academic consortium — consisting of Baker & McKenzie, Case Western Reserve, Cleveland State (Prof, Milena Sterio), Emory (Prof. Laurie Blank), Georgetown (Prof. Mark Vlasic), Vanderbilt (Prof. Mike Newton), and Vrije Universiteit Amsterdam (Prof. Kenneth Manusama) — which is preparing research memos on such issues as: the definition of piracy, exercise of universal jurisdiction over pirates apprehended by third States, hot pursuit and the apprehension of pirates in the territorial waters of third States, standards of use of force against pirates by State authorities and private contractors, modes of responsibility applicable to piracy (joint criminal enterprise, command responsibility), prosecuting the financing of piracy, international standards of justice applicable to piracy trials, factors guiding the sentencing of convicted pirates, and repatriation and reintegration of pirates after completing jail time.

While the stars are not currently in alignment for the establishment of a Special Anti-Piracy Tribunal, I predict that the idea will gain traction in coming months as it becomes increasingly clear that Somalia is unwilling and unable to prosecute pirates domestically, that Somalia officials and elites may themselves be involved in piracy, and that a major international effort at prosecution as well as suppression is necessary to solve the problem of modern piracy.

An Opportunity for Judicial Review of the Existence of Armed Conflict?

by John C. Dehn

Let me respond to Kevin’s thoughtful post and discuss an opportunity for judicial review of an (implicit or explicit) elected branch assertion of the existence of an armed conflict.  (After all, I promised Raha an example that I have not yet provided.)

In my opinion, Hamdan is not an example of such judicial review.  The Bush administration did not argue that no armed conflict existed between the U.S. and al Qaeda.  It argued that it was an armed conflict unregulated by the Geneva Conventions of 1949 (or other law delimiting the President’s use of war-like powers).  In the language Kevin quotes, the Court rejected that claim.  The dispute wasn’t about whether an armed conflict existed, only about what law governed it.

The review of military commissions proceedings should provide an opportunity for judicial review of the existence of an armed conflict contrary to elected branch claims.  This is because military commissions are part and parcel of the war powers of our government, and the existence of an armed conflict would seem to be essential to their use.  According to In re Yamashita, 321 U.S. 1, 11-12 (1946),

“The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war.  That sanction is without qualification as to the exercise of this authority so long as a state of war exists — from its declaration until peace is proclaimed.” (emphasis added)

Thus, there is a very good argument that military commissions do not have constitutional power to try individuals for any conduct engaged in prior to the existence of an armed conflict.  Such conduct cannot be a law of war violation, nor would its punishment prevent violations of the laws of war or be a “part of the conduct of war.”  This remains true even if one accepts that commissions are now being convened during an armed conflict.  In this way, military commissions are similar to courts-martial, which require that an individual be subject to the Uniform Code of Military Justice at the time of the offense (for subject matter jurisdiction) and at the time of trial (for personal jurisdiction).  Conduct underlying an alleged military commission offense occurring prior to an armed conflict is not within the subject matter jurisdiction of military commissions.  Yet some military commission charges are for conduct, such as the USS Cole attack, which predates September 11, 2001 (9/11).

The issue then becomes whether an armed conflict with al Qaeda existed prior to 9/11.  The Military Commissions Act authorizes prosecution of offenses it defines regardless of whether the underlying conduct occurred “before, on or after September 11, 2001.” 10 U.S.C. 948d.  This might be interpreted as a legislative assertion that an armed conflict existed prior to 9/11, or as a delegation to the executive to determine that it did at the time of any offense charged.  Thus, in spite of what the plurality appeared to suggest in Hamdan, merely charging pre-9/11 conduct should at the very least be understood as an implicit assertion of the existence of an armed conflict on the inclusive dates of the offense(s).

In Hamdan, although the issue was raised, the Supreme Court never determined when the armed conflict with al Qaeda began. The basis of the Court’s decision made it unnecessary to resolve the issue, although Hamdan had been charged with conspiratorial conduct dating back to 1996.  In his dissenting opinion, Justice Thomas found “that the duration of that conflict dates back (at least) to Usama bin Laden’s August 1996 Declaration of Jihad Against the Americans.” The plurality disagreed, remarking “even the government does not go so far.”  It noted, “neither in the charging document nor in submissions before this Court has the Government asserted that the President’s war powers were activated prior to September 11, 2001.”


So just when did the armed conflict with al Qaeda begin?

After bin Laden’s declaration of “war,” I believe al Qaeda’s first significant acts of violence were the 1998 bombings of U.S. embassies in Africa. President Clinton unilaterally responded with missile attacks in Sudan and Afghanistan. In a statement to the Nation, he stated that the attacks were part of “a long, ongoing struggle between freedom and fanaticism.” He said that there was “compelling information [al Qaeda members] were planning additional terrorist attacks against our citizens and others with the inevitable collateral casualties and … seeking to acquire chemical weapons and other dangerous weapons.”

Were the embassy bombings “armed attacks,” “acts of hostilities” or merely peacetime crimes of violence?  What about the military response?  Clinton’s remarks and military response could be taken as identifying, engaging and seeking to terminate an armed conflict.  It is has been reported that the Justice Department’s Office of Legal Counsel (OLC) issued an opinion in which it found the U.S. to be in an “armed conflict” with al Qaeda in 1998.  On the other hand, the U.S. has prosecuted alleged participants in the bombings in a federal, not a military court. Given the very indistinct nature of the executive’s response and the lack of any action by Congress, it would be difficult to find these bombings and the U.S. response anything more than limited incidents of hostilities, rather than the start or continuation of an armed conflict that persisted until 9/11.

The next significant act of violence against the U.S. attributed to al Qaeda was the bombing of the USS Cole in a Yemeni port.  I am unaware of any reported U.S. military response to this attack.  Around the same time, a U.S. intelligence official stated, “[w]e have quietly gone after [bin Laden’s] organization, and we’re picking it apart limb by limb.”  The actual nature and scope of any covert operations in response to this incident, or in response to the embassy bombings, is not fully known.  Given the fact that covert actions are not supposed to involve “traditional military activities,” it might be hard to classify them as acts of hostilities forming part of an armed conflict, but they could be.  The FBI investigated and the U.S later issued federal indictments (not military charges) against suspects allegedly associated with al Qaeda.

This history suggests, similar to the facts in Monotoya (cited in my earlier post), that the political branches gave no clear indication that the U.S. was in a general state of armed conflict or actual hostilities with al Qaeda prior to 9/11.  Such a finding would be difficult given the intermittent nature of al Qaeda violence and the somewhat schizophrenic nature of U.S. responses to it.  A court reviewing the jurisdiction of military commissions might reasonably conclude that the embassy bombings and the U.S. military response are incidents of “actual hostilities” or armed conflict given the scale of the attack and the military response.  The OLC memo apparently supports this view, perhaps more.  It is possible the extent of U.S. covert operations against al Qaeda could be considered enough to perpetuate the state of hostilities if the government is willing to reveal them to support its jurisdictional claims.  It is certainly an interesting problem, but one that a court reviewing the jurisdictional limits of military commissions would seem to have an independent say in resolving.

The Judiciary and Armed Conflict: What About Hamdan?

by Kevin Jon Heller

Apologies for the non-existent blogging of late — a few weeks ago a car knocked me off my bike, breaking a small bone in my forearm and badly bruising my ribs.  I didn’t need surgery or even a cast, fortunately, but I haven’t been able to type more than a short email until the past few days.  This is probably the longest I’ve gone without blogging in more than five years!

In any case, I just wanted to add to John’s excellent post about the judiciary and armed conflict. There is, of course, a far more recent precedent for the idea that the judiciary is entitled to review executive determinations regarding the existence or non-existence of armed conflict: Hamdan v. Rumsfeld.  The Bush administration claimed that the Geneva Conventions did not apply to Hamdan because the conflict with al-Qaida did not qualify as either an international armed conflict or a non-international armed conflict:

The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318.  Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party”—i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan


The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “ ‘international in scope,’ ” does not qualify as a “ ‘conflict not of an international character.’ ” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318 (Art. 2, ¶1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-a-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, ¶3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning.

The Supreme Court rejected the Bush administration’s arguments, holding that, at a minimum, Common Article 3 applied to the conflict with al-Qaeda:

[T]here is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories.  Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by … detention.” Id., at 3318. One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Ibid.

It is a basic rule of international humanitarian law that Common Article 3 applies only to hostilities that rise to the level of a non-international armed conflict.  The Supreme Court’s holding in Hamdan thus represents — at least implicitly — a judicial rejection of an executive determination that the U.S. was not engaged in an armed conflict.

Rent Liechtenstein for $70,000 per Night

by Chris Borgen

How could I have missed this? According the Guardian:

The principality of Liechtenstein has decided to make itself available to private clients, from $70,000 (£43,000) a night, complete with customised street signs and temporary currency…

Since then they have woken up to the marketing opportunities of their mountainous landscape. The price tag includes accommodation for 150 people, although the 35,000 inhabitants would remain. Any personal touches, such as an individual logo created out of candle wax or a customised medieval procession, come at an extra, undisclosed cost.

Upon arrival in Liechtenstein, visitors would be presented with the symbolic key to the state, followed by wine tasting at the estate of the head of state, Prince Hans-Adam II. Other options include tobogganing, fireworks and horse-drawn carriage rides through the capital Vaduz.

At first I thought: “My own nation-state for only $70 K a night? I’m in!” (Not that I have the money, but that’s sort of beside the point.) But then I looked again at the list of what you get and it comes down to a spa weekend with a bunch of friends with some monopoly money with your face on it. Where are all the aspects of sovereignty that you hear so much about?  (A carriage ride? Please. How about an airborne assault?)  It’s like being told you can rent a car but are not allowed to take any right turns and you have to drive 15 miles per hour.

In this case, I don’t think you get to do anything seriosuly fun like nationalize industries, mess with currency markets, or get all crazy at the UN. I don’t even think sabre-rattling is allowed. Actually, I don’t think Liechtenstein has any sabres.   Now if you could rent North Korea for a day….

Hat tip: io9

Should the Judiciary Question the Existence of Armed Conflict?

by John C. Dehn

In response to my last post, Raha Wala asked a wonderfully difficult question.  I have argued below, as well as here and here, that judicial review of executive war measures against U.S. citizens in armed conflict is not only permissible but may even be constitutionally compelled (in cases meeting other prerequisites to the exercise of judicial power).  Raha asked whether I believed our courts have a role in reviewing relevant congressional acts, specifically, whether they could review a congressional recognition or affirmation (not necessarily declaration) of the existence of an armed conflict.  Here is an edited and expanded version of my response to him in the comment thread, which I thought might be of general interest.

One could argue that determining the existence of an armed conflict with a foreign state or non-state armed group is a matter constitutionally dedicated to the elected branches.  This is suggested by: the Declare War Clause, the Prize Cases (1863) and cases such as Bas v. Tingy (1800) (looking only to acts of Congress to determine if France was an enemy at the time a certain vessel was captured).  This would make it a classic political question.  (If war theorist Carl von Clausewitz was correct in saying that “war is simply a continuation of political intercourse, with the addition of other means,” this may be the right result.)

The majority opinion in the Prize Cases, 67 U.S. 635, 668 (1863) provides important discussion on this constitutional assignment of powers.  It first says,

“By the Constitution, Congress alone has the power to declare a national or foreign war.  It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution.  The Constitution confers on the President the whole Executive power.  He is bound to take care that the laws be faithfully executed.  He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.  He has no power to initiate or declare a war either against a foreign nation or a domestic State.  But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.” (emphasis added)

After examining a host of other factors, including the reaction of foreign states to the American Civil War, the Court stated,

“Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.”

This language is often used to support arguments that the President is constitutionally entrusted with the power to determine the existence of a state of war.  However, considering the earlier quoted section makes it much more likely that the Court is referring to his being entrusted with that power by the referenced acts of Congress.  Other cases admittedly support a broader independent presidential power to protect citizens and instrumentalities of the U.S. abroad.  See Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860) (“Now, as it respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President.”); see generally Henry Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993).

On the other hand, Ex parte Milligan and at least two cases applying the Indian Depredation Act suggest that the existence of a state of war, particularly domestic conflict, is a factual matter to be determined by the courts in the application of domestic law.  See e.g. Montoya v. United States, 280 U.S. 261, 267 (1901) (“We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch [sic] a military force for their subjugation, is sufficient to constitute a state of war.”)  Of course, the Milligan majority found that Congress may not constitutionally declare the existence of a domestic conflict or threat justifying the abrogation of constitutional rights (in the case, rights unavailable at trial by military commission) unless the domestic courts are closed by conflict.  The concurring opinion in Milligan suggests that Congress may do so, but perhaps only to support congressional indemnification of General Hovey (who ordered Milligan’s military commission) and his subordinates (who conducted it).

Ultimately, there is a good argument that the judiciary may review a determination by one or both elected branches of the existence of armed conflict, at least when they seek to abrogate or derogate the constitutional rights of citizens.  However, there is also a good argument, based on this and other precedent, that it may only do so in matters of domestic governance, or in the absence of a clear determination or statement by the elected branches.

This is separate question from whether the courts should refer to international law as the measure of what constitutes an armed conflict.  The majority in the Prize Cases certainly buttressed its conclusions by reference to commentary on the law of nations.  It is not clear, to me at least, whether this was essential to its decision.   The later Indian Depredation Act cases made no reference to it.  My guess is that the courts would defer to the elected branches on either the substance of international law on this point (on which actual state practice and the bulk of commentary appears conflicted) or its application to facts at hand. In my view, though, compliance with the law of nations regarding blockade and prize was absolutely essential to the Court’s upholding the seizures at issue in the Prize Cases, and has almost always (sans Korematsu and similar WW II precedent where it was not much referenced) been essential to legality of the use of war measures against citizens.

An Exile for Peace Deal for Gadaffi?

by Michael Scharf

It is a great pleasure to be invited to be a guest blogger on Opinio Juris for the next few weeks. Please stay tuned for my upcoming blogs about Somali piracy and the Hosni Mubarak trial later in the week. For my first blog, I want to weigh in on the provocative question of whether the UN Security Council should consider an exile-for peace deal for Libyan leader Muammar Gadaffi.

Mark Kersten recently posted an excellent essay on Opinio Juris on this question.  See:  And in the last few days, the New York Times has published Op Eds by Mark Ellis, Executive Director of the International Bar Association, and Richard Dicker, Director of the International Justice Program at Human Rights Watch, criticizing Britain’s Foreign Secretary, William Hague, for raising the possibility of such a deal in a recent press conference.  See Mark Ellis, Peace for All or Justice for One? New York Times, August 11, 2011, .  Richard Dicker, Handing Qaddafi a Get Out of Jail Free Card, New York Times, August 1, 2011.

The UN Security Council referred the situation of Libya to the International Criminal Court (ICC) on 26 February 2011, and the ICC subsequently confirmed the indictment and issued an arrest warrant for Gadaffi for committing crimes against humanity against civilians in the course of the ongoing civil war in Libya.   Messrs Ellis and Dicker make a strong case that an exile-for-peace deal would seriously set back the cause of international justice and peace in the region.

I have previously published my take on this issue in the context of the African Union’s request that the Security Council order the ICC to defer its case against Sudanese President al-Bashir.  See:

As I explain in that piece, which was published in International Legal Materials, Article 16 of the ICC Statute provides that the Security Council can order the Court to defer proceedings in a case for a year (renewable) in the interests of international peace and security. Most commentators view Article 16 as an all-or-nothing option, but its use can be much more nuanced, with detailed conditions and benchmarks imposed by the Security Council as part of the deferral resolution.

The Security Council has never before adopted an Article 16 deferral resolution, so this is unexplored territory for international criminal law. While I completely agree with the concerns so well articulated by Mark Ellis and Richard Dicker, I could envision a situation where the UN Security Council imposes a number of specific conditions on Gaddafi as part of such a resolution, and that the deferral would be immediately revocable if Gaddafi violated those conditions. The same Security Council resolution could conditionally authorize use of force to apprehend Gadaffi and give NATO the mandate to do so if he does not accept the deal and comply with the conditions within a set number of days.

Like Saddam Hussein, who was offered exile in Bahrain on the eve of the 2003 invasion, Gadaffi is probably psychologically incapable of agreeing to relinquish power. So, the result of such a Security Council Resolution would be greater international pressure on Gadaffi to step down and an expanded mandate for the NATO forces to bring him to justice. If Gadaffi did agree to the deal, most likely, as in the case of Charles Taylor, he would very quickly violate the conditions of his exile and find himself facing international justice.

I point this out not as an advocate of exile for peace deals. In fact, I’ve been characterized as extolling a Kantian “justice though the heavens may fall” approach in my writings. But I haven’t seen any one publicly explaining how an exile for peace deal might be structured and I wanted to make sure Opinio Juris’ readers will have a better grasp of the situation if such a deal is made. As I understand it, the purpose of this Blog is to engender scholarly discussion and debate on the most important international law issues of the day. I hope you will weigh in with your thoughts and comments on this controversial question.

Welcome Guest Blogger Michael Scharf

by Chris Borgen

As well as John Dehn, whom Peggy has previously welcomed, we would like to welcome Michael Scharf to guest blogging with us for the next couple of weeks. Mike is probably well-known to many of our readers, especially those with an interest in international criminal law. He is the John Deaver Drinko-Baker & Hosftetler Professor of Law and director of the Frederick K. Cox International Law Center at Case-Western Reserve School of Law. Mike is also a co-founder and a Managing Director of the Public International Law and Policy Group (PILPG) . He directs PILPG’s War Crimes Prosecution Practice Area. Previously, during the elder Bush and Clinton Administrations, Mike served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations Human Rights Commission. During a sabbatical in 2008, he served as Special Assistant to the Prosecutor of the Cambodia Genocide Tribunal.

Among many other books and articles, Mike is the author of  “The International Criminal Tribunal for Rwanda” which was awarded the American Society of International Law’s Certificate of Merit for outstanding book in 1999, and “Enemy of the State: The Trial and Execution of Saddam Hussein,” which won the International Association of Penal Law’s book of the year award for 2009 . His latest book is “Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser” (Cambridge University Press, 2010).

We look forward to Mike’s contributions to Opinio Juris!

The “Costs” of Accountability in War

by John C. Dehn

I’d like to call attention to comments by Ben Wittes over at Lawfare regarding two recent New York Times editorials.  Both editorials essentially deal with issues of accountability in armed conflict.  One voiced (understandable) skepticism regarding government claims that the CIA’s drone programs have caused no civilian deaths in the past year or so.  The other commented on a Seventh Circuit decision allowing Bivens lawsuits by U.S. citizens (for non-U.S. lawyers, Bivens lawsuits are those seeking damages for alleged constitutional violations) to proceed against former Defense Secretary Rumsfeld and others for alleged mistreatment in Iraq (in this case, torture, arbitrary detention, etc.).  Ben offered earlier comments on this and a similar U.S. District court decision.

Ben says that he is conflicted on these cases, but offers the closing thought that “. . . what will come from extending Bivens to these cases will, in the long-run, not prove salutary either.  Rather, the litigation . . . of these Bush-era cases will create real costs for war-fighting that are hard to envision prospectively but that will prove no less real for that fact.”  This seems to be an assertion that holding government officials accountable, or in these cases merely susceptible to suit and potential accountability for alleged wartime misconduct, imposes “real costs for war-fighting,” and that these costs are necessarily a bad thing.  I disagree that this is so.

The fact of the matter is that accountability is always costly.  Having spent many years in the U.S. Army as both a lawyer and non-lawyer, I am quite familiar with the costs, in manpower, in time and sometimes in individual or unit morale, of accountability.  But there is little doubt in my mind that these very real costs add very real value, to good order and discipline, to attention to detail, and ultimately, to internal and external institutional legitimacy.  This admittedly imperfect commitment to accountability is undoubtedly why polls often show the U.S. military to be one of the most trusted institutions in our society.

Regarding Ben’s concerns, this country’s executive branch officials successfully fought our nation’s wars for over a century before the courts (through judicially created immunity doctrines and ever-expanding applications of the political question doctrine) and Congress (through the Federal Tort Claims, Westfall and similar acts) erected substantial obstacles to such suits.  For example, in Little v. Berreme a naval commander was held personally liable for capturing a foreign vessel contrary to the act of Congress delimiting permissible hostilities even though his actions arguably complied with a presidential order.  In Mitchell v. Harmony, a field commander was held personally liable for destroying the property of an American merchant in spite of his claim that its destruction was necessary to avoid its capture and use by the enemy.  General Hovey and the officers who conducted Lambin Milligan’s military commission (found to be unconstitutional by the Supreme Court in Ex parte Milligan) were held personally liable for convening this unlawful tribunal even though it may have been ratified by both the executive branch and Congress.  See Milligan v. Hovey, 17 F. Cas. 380 (C.C.D. Ind. 1871).  As the court said:

“If an act is prohibited by the constitution, and it is beyond the power of congress to authorize it, then it may be said the wrong done by the act is not subject to complete indemnity by congress, because then the prohibition of the constitution to protect private rights would be without effect.”  Id. at 381.

In other words, as the Supreme Court essentially found in Bivens, the individual accountability and personal liability of government officials for constitutional violations is sometimes necessary to preserving the rights of citizens against their government, and this remains true, perhaps especially so, in war.  There is no question that a condition of war sometimes alters the relationship of a citizen to his government, especially for those citizens who take up arms against their government.  But as I have argued elsewhere regarding targeted killing

“If armed conflict is an exceptional condition that may relax or eliminate specific constitutional protections in certain circumstances, then the courts must, in cases meeting jurisdictional prerequisites, ensure that those exceptional circumstances actually exist and are not being opportunistically asserted by an overzealous executive.”

I am not proposing that we throw open wide the courthouse doors to claims of executive misconduct in war.  However, we must not overestimate the costs, or underestimate the benefits, of opening them.

Looking Forward to the Days Ahead

by John C. Dehn

First and foremost, I express my sincere appreciation to all of the Opinio Juris contributors (as well as special thanks to Peggy for the generous introduction).  Their hard work and keen intellects have made this site one of the preeminent public forums for discussing international legal issues and related matters.  Though I have been an active commenter and occasional guest blogger here in the past, I am very pleased to join my OJ friends and colleagues as a regular contributor, if only temporarily.

Before I begin posting what I hope will be some thought-provoking ruminations of mine, I want to clarify something from Peggy’s introduction.  While I am still an active duty Army judge advocate, I joined West Point’s Center for the Rule of Law as a Senior Fellow in my unofficial/personal capacity.  I did so not only because of my loyalty to the leaders and members of the Department of Law at the United States Military Academy, but also due to my avid devotion to the education of the future U.S. Army officers it serves.  Simply put, the institution responsible for educating the future leaders of what is still the most powerful military in the world must have a profound respect for and commitment to the rule of law.  West Point’s Center for the Rule of Law endeavors to more deeply instill these values by providing a wealth of opportunities for West Point cadets to experience the rule of law outside the classrooms of the Academy.

I suspect that my appointment as a Senior Fellow stems from the fact that much of my current scholarship seeks to more carefully distill the legal framework of war for the United States.  It does so with the goal of more completely articulating its proper influence on the conduct of individual military and other executive branch officials, particularly those faced with orders or authorizations that might result in individual criminal responsibility under domestic, foreign or international law if followed.  Our government leaders at all levels deserve as much clarity and balanced legal analysis in this area as possible.  I hope to provide just that.

In the coming days, I will be sharing some thoughts in these and related areas.  My years of following this blog lead me to believe that its readership is well equipped to provide observations that will improve the quality of my work and conclusions.  I look forward to receiving your insights.

Welcome Guest Blogger John Dehn

by Peggy McGuinness

Opinio Juris is pleased to welcome for an extended guest-blogging stint our friend and frequent contributor, John Dehn.  John holds the rank of Major in the U.S. Army and currently serves as Senior Fellow at the Center for the Rule of Law at the U.S. Military Academy at West Point.  John has taught international law, constitutional law and military law at West Point for several years, and is currently completing his JSD at Columbia Law School.  John brings a wealth of real-life experience to contemporary problems in international humanitarian law, problems which he also tackles in his scholarship.  He has written extensively on presidential war powers and the historical origins of the laws of war.  His SSRN page is here.  We welcome John for the next two weeks and look forward to a great conversation!

Post-Conflict Potter

by Chris Borgen

Read the Harry Potter books and/or seen all the movies?  Concerned about the post-conflict issues after the end of the War with Osama bin Laden Voldemort? The folks at Foreign Policy have got your back, tying together recent articles on post-conflict studies with the Harry Potter universe. (Warning: Spoilers!) Who knew Hogsmeade and Kandahar could have so much in common?

Johns Hopkins SAIS Seeks Visiting Professors in Nanjing, China

by Peggy McGuinness

Friend of Opinio Juris and current President of the American Branch of the International Law Association, Ruth Wedgwood, passes along the following announcement for teaching opportunities at the Nanjing campus of Johns Hopkins SAIS. They are looking for visitors in political science, economics, and international law:

The Johns Hopkins University School of Advanced International Studies (SAIS) invites applications for one-year renewable positions as a Visiting Professor at its international and area studies graduate institute jointly administered with Nanjing University in Nanjing, China with the appointment to begin in September 2012.

Applicants must have a Ph.D. or J.D., strong theoretical and methodological training, significant teaching experience, evidence of scholarly productivity, and a commitment to advancing cross-cultural dialogue and intellectual exchange in this unique, joint Sino-American residential graduate school. Applicants should be prepared to teach two courses each semester and advise masters students on writing theses. International faculty teach in English and primarily teach Chinese M.A. degree-level students preparing for careers in international affairs.

Johns Hopkins offers a competitive salary and benefits package and
is an Affirmative Action/Equal Opportunity Employer.

Applications are due October 15, 2011 and may be downloaded at For further information, contact Carolyn Townsley, Director HNC Washington Support Office,
at 202-663-5802 or ctownsley [at] jhu [dot] edu.

Transatlantic Academy Seeks Fellows for 2012-13

by Peggy McGuinness

The Transatlantic Academy is seeking young legal scholars to submit proposals for its 2012-2013 fellowship program. This looks like a great opportunity to partner with scholars in political science and economics in areas affecting the transatlantic relationship. Note next year’s theme is a broad view of the “Western Liberal Order”:

The Transatlantic Academy is seeking candidates to serve as resident Fellows for nine months for the fellowship year beginning September 2012. A joint project of the German Marshall Fund of the United States, ZEIT-Stiftung Ebelin und Gerd Bucerius, the Robert Bosch Stiftung and the Lynde and Harry Bradley Foundation, the Transatlantic Academy is located at the German Marshall Fund of the United States in Washington DC. The academy brings together scholars from Europe and North America to work on a single set of issues facing the transatlantic community. The academy is an interdisciplinary institution which is open to all social science disciplines, the humanities and the natural sciences. For more information on the Academy please visit our website a  The academy welcomes applications from scholars working on the theme of “The Future of the Western Liberal Order.”

Is the Montevideo Convention Still Good Law?

by Julian Ku

This article by Steven Rosen about the legality of a Palestinian state and a short response by Josh Keating touch on this issue. In short, Rosen argues for some independent legal standard for determining statehood (and Palestine doesn’t meet it), such as the Montevideo Convention, while Keating basically argues that there are no such standards. A good and useful discussion to have. While I think Rosen has a pretty compelling argument on normative grounds, I think Keating’s views are a much better description of how the world actually works.

Dan Joyner on the Nuclear Non-Proliferation Treaty

by Kevin Jon Heller

I want to call readers attention to Dan Joyner’s new book, Interpreting the Nuclear Non-Proliferation Treaty, just out from Oxford.  I haven’t had time to read it yet, but it looks fascinating — and the cover is beautiful.  Here is the summary:

The 1968 Nuclear Non-proliferation Treaty has proven the most complicated and controversial of all arms control treaties, both in principle and in practice.

Statements of nuclear-weapon States from the Cold War to the present, led by the United States, show a disproportionate prioritization of the non-proliferation pillar of the Treaty, and an unwarranted
underprioritization of the civilian energy development and disarmament pillars of the treaty.

This book argues that the way in which nuclear-weapon States have interpreted the Treaty has laid the legal foundation for a number of policies related to trade in civilian nuclear energy technologies and nuclear weapons disarmament. These policies circumscribe the rights of non-nuclear-weapon States under Article IV of the Treaty by imposing conditions on the supply of civilian nuclear technologies. They also provide for the renewal and maintenance, and in some cases further development of the nuclear weapons arsenals of nuclear-weapon States.

The book provides a legal analysis of this trend in treaty interpretation by nuclear-weapon States and the policies for which it has provided legal justification. It argues, through a close and systematic examination of the Treaty by reference to the rules of treaty interpretation found in the 1969 Vienna Convention on the Law of Treaties, that this disproportionate prioritization of the non-proliferation pillar of the Treaty has led to erroneous legal interpretations of the treaty, and policies based thereon which have unlawfully prejudiced the legitimate legal interests of non-nuclear-weapon States.

The blog Arms Control Wonk recently held a discussion about the book.  You can find the discussion here.

Judgment on Trial in Cairo

by Ruti Teitel

Ruti Teitel is Ernst Stiefel Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics.  She is the author of the forthcoming book, Humanity’s Law (Oxford University Press Sept. 2011).

For many Egyptians, Hosni Mubarak’s trial is no mere consequence of Egypt’s revolution but the fulfillment of its promise.  In the Arab Spring, accountability for the abuses of the past has not so much been a by-product of political change but a driver of it.  This is an important development in the relation of transitional justice to politics, which deserves careful study and reflection.  From the very beginning of the protests of the Arab spring, the call for justice lay the basis for the expectations of what the revolution would achieve.

Viewed from a distance, the spectacle of Mubarak prostrate and caged may seem almost pitiful or gratuitous.  But we have to understand the different view of the demonstrators in Tahrir Square With an ongoing presence of the Military Council in the rule of the country, how can anxiety not persist about whether the revolution has been definitely won?  And, what about the assets and connections that the Mubarak family still possesses? Hence, the drumbeat of the ongoing demonstrations and their persistent demands; the regular protests and the equally regular lists of those who “have to go” — i.e., the call for lustration or purges of those police and cabinet members most associated with the wrongdoing of the prior regime.

The key message, which indicates why this trial is intrinsically related to the aspiration to a new political order is this:  that no one in Egypt ought to consider himself above the law. It is an important message after decades of abuses of both political and social /economic rights- a rule by corruption and torture.  But it is also a delicate message that to have any force -itself requires adhering to the rule of law.  Transitional justice is not simply a domestic issue, at least since the establishment of the norm of crimes against humanity at Nuremberg.  International norms were also at play in the post-Cold War trials in the former Czechoslovakia and Hungary, where the offenses including brutal attacks on demonstrators during the 1989 uprisings—and long before in 1956. It is even more true today: for all the demands of the street protestors for vindication, the danger is that this not turn into the hasty trial of Saddam Hussein characterized more by his execution-or the trial in absentia of Ben Ali in nearby Tunisia.

These questions:  of what form the trials should take, of what law ought guide the trials, of what penalty–is not purely a matter for Egypt and its current judiciary but rather also a matter of  adhering to standards of due process now set out as a matter of international law.  For Egypt and other countries in the region are now seeking to join the International Criminal Court.  In so doing they have committed to the proposition that accountability in Egypt follow international standards.

Not just Mubarak stands on trial in Cairo today-but the future of the rule of law in Egypt.

Space Cadets… (International Legal Rhetoric Edition)

by Chris Borgen

A while back, I wrote an article on how states use the rhetoric of international law (specifically self-determination) as part of their broader foreign policy initiatives. Li Hong, the Secretary-General of China’s Arms Control and Disarmament Agency, has an op-ed in today’s China Daily that embeds law-talk (in this case the international law of outer space and multilateralism more generally) in an essay that (I think) is really trying to send a signal about the trend lines of China and the U.S. as space-faring nations.

He starts by invoking international law and multilateralism (in opposition to unilateralism and hegemony):

Since the late 1990s, China, Russia and some other countries have urged the international community to hold multilateral dialogue to prevent weaponization of outer space, and put forward specific proposals for concluding an international treaty to prevent an arms race in outer space.

But the US has been using every reason to refuse negotiating such a treaty for fear that it may restrict it from maintaining and developing its outer space anti-missile system and compromise its space military technology. Some US conservatives are convinced that the US can use its system and resources to maintain its dominance in space and it is unnecessary for it to hold talks with other countries, because they are quite inferior in terms of using space for military purposes. Hence, the US has been emphasizing freedom in the use of outer space. In essence, it wants to establish its hegemony over outer space.

It moves from the law-talk to comparing the current trends in Chinese and American space programs, particularly that

China achieved many a breakthrough in outer space technology such as launching manned space flights, performing [a] spacewalk, establishing the Beidou navigation system [a type of GPS], and conducting anti-satellite and anti-ballistic missile tests. Stung by the financial crisis, the US, however, has been forced to restrict the development of its outer space technology and end its space shuttle program.

And, according to Li, this taints U.S. efforts at cooperation as the

US seeks to cooperate with its allies to integrate and use their resources, which would make up for its lack of investment and help it retain its leadership in space technology. The talks it wants would be focused on its two potential competitors, Russia and China, to regulate and constrain their development and prevent them from challenging US hegemony in space. This is typical Cold War mentality. The US’ eagerness to establish dialogue with China reflects its uncertainty over space security challenges.


As in other instances of using the language of law in the midst of the practice of politics, there’s some careful parsing of language: while China opposes “weaponization” of space, it “has to develop its defense capabilities in space.” Sounds like Ronald Reagan talking about SDI, circa 1984.  And so the essay goes, combining a rhetoric of international legal multilateralism with a sort of space-tech realpolitik, even throwing in some issue linkage along the way (arms sales to Taiwan don’t foster outer space treaties). 

Such use of legal rhetoric in the midst of great power politics can be an attempt to reframe international law or, more modestly, just a try at grabbing the moral high ground. I expect the latter is the case, here. I don’t see any attempts, in this essay at least, to redefine legal concepts. This reads more like an effort to send some signals as to who cares more about international law (China) and who is on a trendline of increasing power (again, China).

One side note:  last year, the Obama administration stated it’s willingness to consider a multilateral space arms control policy. Given that, I look forward to seeing if and how the U.S. responds to Li’s op-ed.

 Hat tip: Spaceports

Bill Dodge is the New Counselor in L

by Duncan Hollis

Last week, we were pleased to host a great discussion of the book International Law in the U.S. Supreme Court.  This week, I’m pleased to announce that one of its editors — Bill Dodge — is taking a leave from his faculty post at Hastings to become the newest Counselor in International Law to the State Department Legal Adviser, Harold Koh.  Bill’s replacing Sarah Cleveland, who returns to Columbia this year.

The Counselor is one of the best positions in the Legal Adviser’s Office (or “L” as it’s widely known).  It grants academics a year or two window into the ways in which international law plays out in practice, while also giving the attorneys in L the (substantial) benefit of working alongside someone who’s spent a great deal of time on international and foreign relations law questions in ways that are, frankly, impossible to replicate within L given the near daily fire-drills that so often drive the workload there.  I think Bill is fantastically suited to the job and wish him all the best in putting out those fires in the coming year.