Archive for
October, 2011

Kevin Jon Heller and the Historical Legacy of the U.S. Nuremberg Military Tribunals (NMT)

by David Glazier

Although the twelve U.S. Nuremberg trials judged seven times as many defendants as the International Military Tribunal (IMT) and addressed a broader spectrum of international criminal law issues, including the first genocide prosecutions and the establishment of important principles of medical ethics, they have wallowed in comparative historical obscurity. The absence of meaningful coverage is ironic given, as Kevin notes in his important new book, that chief prosecutor Telford Taylor predicted that many volumes would be written on them and that the government deliberately employed experienced civilian judges, rather than military officers, to ensure they would produce substantive written judgments. But until now, lawyers and scholars interested in these trials had very limited options. One could attempt to wade through the fifteen volume, 15,000+ page, “Green Series” providing “the official abridged records” of the trials. One could consult the summary reports of nine of the twelve trials available in the United Nations War Crime Commissions’ fifteen volume series “Law Reports of Trials of War Criminals” (which omit the Medical, Pohl, and Einsatzgruppen cases from formal coverage). Or one could refer to one of a very small number of books dealing wholly or in part with several individual trials as well as Telford Taylor’s parochial memoirs.

The major achievement of Kevin’s book is to provide what none of the other sources can — an overall discussion and scholarly analysis of the entire NMT process in a single reasonably well indexed volume. Among the book’s many valuable contributions are:

(1) Identifying the unique legal standing of the NMT, which were neither truly international courts, like the IMT, nor national tribunals. Instead, Kevin concludes, these were “inter-allied special tribunals” relying on the Allied Control Council’s sovereign legislative authority in the wake of the disintegration of the central German government, based on the concept of debellatio.

(2) Providing a concise history of the NMT process, including the development and evolution of the overall World War II war crimes trial program from the initial Allied decisions to conduct trials to the IMT and subsequent devolution of authority to national tribunals. Although I had a general familiarity with this subject, I still found much to be learned from this history, including particularly details about how both deliberate policy decisions and practical realities determined which cases and defendants were actually tried before these tribunals. Kevin provides useful details about the overall organization of the prosecution and tribunals, staffing, and budget issues.

(3) Describing the factual background of each case, including who the defendants and judges were, what offenses were charged, and the outcome including a helpful appendix identifying the charges and verdict/sentence for each individual accused.

(4) Critically assessing theNMT’s jurisprudence through close analysis of the written opinions produced in each of the cases. It is in this area that Kevin undoubtedly makes his greatest contribution. While some parts of the book could have been written by a competent historian, the sophisticated legal analysis constituting the heart of the book could only have been produced by a real expert on international criminal law.

(5) Documenting how the evolving geopolitical realities of the emerging Cold War resulted in both scaling down the overall scope of the trials and ultimately, to the early release of most defendants sentenced to long terms of imprisonment. Anyone who has seen the classic motion picture, Judgement at Nuremberg, a fictionalized account based loosely on the “Justice Trial,” is aware that these pressures existed, but Kevin documents exactly how they came to bear both directly and indirectly, including through the personal prejudices and fears of several individual judges rather than just via “outside” interventions as portrayed in the film.

(6) Assessing the overall legacy of the NMT, including specifically the influence that the judgments have had on modern international criminal law through critical analysis of citations to these trials by contemporary courts, including a specific (and highly critical) focus on the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY).

Aside from the final chapter on “Legacy,” it is clearly (and quite reasonably) beyond the scope of the book to attempt to identify most of the possible relevance of the NMT’s jurisprudence to current events. But lest anyone conclude that this book’s primary value is as a work of history (although it would be worth reading from that perspective alone), I was struck by a number of applications in areas of my own work…

Healthier and Wealthier: Seven Billion and Counting

by Roger Alford

Today is an historic day in world population statistics, marking the day that planet reaches seven billion inhabitants. What is amazing is, despite the phenomenal growth in population, the citizens of the world are becoming healthier and wealthier every year. Gapminder has an incredibly interesting timeline that shows the progression of life expectancy (y axis) and income per person (x axis) from 1800 to the present. Push the play button and watch the world’s inhabitants grow healthier and wealthier than ever before in the history of the world.

The Nuremberg Military Tribunals and the Origins of International Criminal Law

by Kevin Jon Heller

I am deeply grateful to both my co-bloggers at Opinio Juris and the editors of EJIL: Talk! – particularly my friends Marko Milanovic and Dapo Akande – for this remarkable opportunity to discuss my new book.  I look forward to hearing what the impressive, and frankly intimidating, group of commenters have to say about it.

I wrote this book for one simple reason: I wanted to read it.  I first became interested in the Nuremberg Military Tribunals (NMTs) in the context of aggression.  Roger Clark, who was at that time deeply involved in the ICC’s Special Working Group on the Crime of Aggression (SWG), asked me to prepare a report on the Nuremberg-era approach to the crime’s leadership requirement, which was then being debated by the SWG.  (The report eventually became this article in the European Journal of International Law.)  My research led me to the NMTs – and I was surprised, even shocked, to discover that apart from a couple of book chapters and articles, many written by the participants themselves, there was almost no serious legal scholarship about the trials.  It didn’t take long for me to decide that I would try to fill that rather gaping lacuna in international criminal law.

I’m often asked to summarize the thesis of my book.  That’s a difficult task.  It’s easier to describe what I hoped to accomplish by writing it, which involves a constellation of three interrelated goals.  First, I wanted to provide a comprehensive and synthetic analysis of the jurisprudence produced by the 12 trials – an analysis that scholars, attorneys, and judges who work in ICL will find useful in their work.  I hope that I have accomplished that goal: the book contains individual chapters on evidence, procedure, crimes against peace, war crimes, crimes against humanity, modes of participation (including a separate chapter on conspiracy, enterprise liability, and criminal membership), defenses, and sentencing.  Each chapter attempts to identify not only the points of agreement between the tribunals, but also – and perhaps more importantly – where the tribunals disagreed with each other, sometimes passionately.

My second goal was to provide a (relatively) complete historical account of the twelve trials.  I spent a number of months mired in archives, most usefully Telford Taylor’s papers at Columbia Law School.  That was a wonderful, if grueling, part of my research – and it only increased my respect for professional historians, whose ranks I sincerely doubt I’ll ever be skilled enough to join.  I managed to find literally hundreds of documents about the NMTs that had never been discussed in ICL scholarship and that concerned critical issues in the trials – records of defendants Telford Taylor decided not to prosecute and trials he abandoned; letters that indicate the Americans made a conscious decision to try to establish genocide as a crime against humanity in the later trials; conversations that make clear the drafters of Control Council Law No. 10 intended the NMTs to prosecute pre-war crimes against humanity that had no connection to the war (the so-called “nexus” requirement); and many more.  That research forms the heart of the historical chapters in the book, which trace the Allied decision to hold zonal trials instead of a second IMT, the evolution of the NMTs trial program, and the shameful collapse of the war-crimes program after the NMTs closed down.

My third and final goal was to situate the trials in their political context.  The history of the trials, it is fair to say, is the history of the then-nascent Cold War.  While the trials were being planned, Churchill gave his “Iron Curtain” speech, the United States conducted atomic tests Able and Baker, and the French landed in Indochina.  The trials themselves witnessed Truman’s announcement of his famous doctrine, Czechoslovakia’s fall to the Soviets, and the beginning of the Berlin Blockade. After the trials were over, the fate of the convicted defendants was determined alongside the emergence of the Soviet Union as the world’s second atomic power, the rise of McCarthyism, the beginning of the Korean War, and the formation of the Warsaw Pact.  Throughout the book, therefore, I try to identify and explain the myriad ways in which Cold War pressures affected – and often distorted – the jurisprudence the NMTs produced.

I dedicate my book, as all first-time authors should, to my parents.  Intellectually, though, the book is profoundly indebted to Telford Taylor, without whom the trials would not have achieved the success that I believe they did.  Taylor always intended to write a book about the NMTs, a sequel to his seminal work The Anatomy of the Nuremberg Trials.  Unfortunately, at the time of his death, Taylor had completed only three chapters.  I regret that he was never able to finish his book; I’m sure it would have been superb.  It is my profound hope that he would have been happy with mine.

Opinio Juris-EJIL Talk! Joint Book Discussion of Kevin Jon Heller’s “The Nuremberg Military Tribunals and The Origins of International Criminal Law”

by Peggy McGuinness and Dapo Akande

Opinio Juris and EJIL: Talk! are happy to announce that we will be hosting two joint book discussions. The first book is OJ’s own Kevin Heller’s The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford UP). That discussion starts today. We have a fantastic lineup of discussants, to whom we are most grateful for their time and insight. On EJIL: Talk! it’ll be Michael Marrus (Toronto), Alexa Stiller (Bern), and Rob Cryer (Birmingham), and on Opinio Juris, David Glazier (Loyola, LA), Detlev Vagts (Harvard), Roger Clark (Rutgers-Camden), Devin Pendas (Boston College) and Lawrence Douglas (Amherst). The discussion will start with a cross-posted introduction by Kevin today, and end with his reply to the discussants on Friday. Both the discussants and our readers are of course welcome to join in in the comments.

Following discussion of Kevin’s book, Opinio Juris and EJIL:Talk! will host a joint discussion of Marko Milanovic’s book, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford UP).

Cross-posted at EJIL: Talk!

IHL Training in Kenya

by Kevin Jon Heller

I have just returned from teaching international humanitarian law in Nairobi.  Two al-Shabaab grenade attacks not far from my hotel notwithstanding, it was one of the greatest professional experiences of my life.  The training was organized by the Brussels-based International Association of Professionals in Humanitarian Assistance and Protection (PHAP), in conjunction with the Harvard Program on Humanitarian Policy and Conflict Research (HPCR)  PHAP conducts IHL trainings all over the world; each training lasts a week and is divided into two parts: a three-day “core training,” and a two-day thematic workshop.  Here is a description of the core training, which I’ve taken from the Nairobi materials:

The Core Professional Training on Humanitarian Law and Policy begins with a framing of international humanitarian law, contextualizing it within a larger historical, legal and political narrative. The Training situates this legal framework both against the broader background of public international law, on the one hand, and in terms of its interrelationship with human rights law, on the other. The agenda progresses to address actors, modes and methods of implementing IHL, as well as the policy and practical dilemmas associated with these activities. Next the regulation of hostilities, inherent in which is the balancing of military necessity and humanitarian consideration, is addressed. Finally, selected additional topics of particular interest to the professional community (such as private military companies) are presented.

I taught three subjects in the core training: qualification of conflicts (IAC vs. NIAC; internationalized NIACs; dual-status armed conflicts, etc.), targeting of individuals, and the relationship between IHL and international criminal law.  The thematic workshop was then devoted to the problem of children, violence, and armed conflict; I taught a seminar that examined how the recruitment of child soldiers has been prosecuted by international tribunals and domestic courts.

As I said, my week in Nairobi was simply amazing.  My fellow instructors were superb, particularly Naz Modirzadeh, the Associate Director of HPCR; Major Phillip Drew of the Canadian Forces Military Law Centre; and Jamie Williamson, formerly of the ICRC and now a visiting professor at New England Law School.  I also can’t say enough good things about Angharad Laing, the Executive Director of PHAP, and Caterina Luciani, PHAP’s Events and Communication Associate, who organized the training and kept it humming along in Nairobi — no mean feat.

The “students” in the training, though, were what made the week so special.  I put “students” in quotes because, almost without exception, they had vastly more experience (especially in the field) than I.  It’s a cliche that a teacher learns more from her students than the students learn from their teacher — but cliches are often true.  It was an intimidating group: child protection and humanitarian officers with UNAMID in Darfur, MONUSCO in the DRC, and UNAMI in Iraq; humanitarian-affairs analysts and policy advisers working with the United Nations Office for the Coordination of Humanitarian Affairs (UN OCHA) in Somalia and South Sudan; UNICEF officers based in Somalia and Thailand; a UNHCR policy adviser based in Kenya; and many more.  They all seemed to get a great deal out of the training — and their willingness to share their own experiences with us was priceless.

I’ll be in Geneva in December for the next PHAP training (the core agenda is here; the thematic agenda is here) — and I hope to participate in many more trainings in the future.  Needless to say, if you are in the market for an accessible yet sophisticated training course in IHL, you could not do better than one organized by PHAP and HPCR.

Ruti Teitel’s Humanity’s Law

by Joanne Mariner

Ruti Teitel’s new book, Humanity’s Law, is an ambitious effort to make sense of the international legal landscape of our post-Cold War, post-9/11 world. Rejecting formalist distinctions between legal paradigms, she sketches out a bold synthesis of recent legal trends away from a state-centered understanding of international law and toward an international legal order in which individuals are the key actors.

What Teitel is proposing—indeed, what she believes is already taking place—is a conceptual merger of human rights law, the law of war, and international criminal law, into the broader framework of “humanity law.”  She takes human rights law’s person-centered approach, its primary concern for individual rights and its willingness to override or compromise state sovereignty, and uses it as an interpretative lens by which to view more clearly a broad array of legal and political developments.

Her book owes an intellectual debt to several sources, including the ground-breaking work of the Inter-American Commission on Human Rights and Human Rights Watch, and of legal scholar and ICTY judge Theodore Meron.  (Both HRW and the Commission brought international humanitarian law into the human rights fold, in a sense, and Meron did pioneering work in exploring the “humanization” of international humanitarian law.)  But Teitel is more forthright and audacious in her determination to weave the disparate threads of these legal traditions into a coherent whole.

Previous theorists, opposed to such a merger, have underscored the deep historical and conceptual differences between regimes, particularly the disconnect between human rights law’s overriding concern with human dignity and the more instrumental, reciprocity-based motivations for IHL.  But as Teitel points out, events on the ground undermine any rigid distinctions between legal paradigms.  We live in a world in which many situations “cannot easily be classified as a state of war in the classic sense or a state of peace.”  What legal framework applies to U.S. killings of members of al-Qaeda?  To Israeli drone strikes in Gaza?  To Turkish military incursions into northern Iraq in pursuit of Kurdish militants?  Debates over the applicability of IHL and human rights law to such hybrid situations continue, but, as the years go by, they seem increasingly sterile.  Since reality doesn’t draw a clear line between war and peace, why should the law assume that some distinct threshold exists, beyond which IHL rules replace or supersede those of human rights?

One of the delights of Teitel’s book is its broad and interdisciplinary scope.  In less than 300 pages, Humanity’s Law ranges from Grotius to Habermas, from Guantanamo to Darfur, from terrorism to humanitarian intervention.  It demonstrates Teitel’s encyclopedic knowledge of both domestic and international jurisprudence and her ecumenical willingness to look beyond the legal academy for intellectual guidance.  It is a challenging and ambitious work, one that merits close attention.

German Constitutional Court Issues Temporary Injunction on Bailout

by Kenneth Anderson

Der Spiegel Online reports that in the wake of the eurozone debt deal reached by European leaders last week, the German Constitutional Court has issued a temporary injunction against the Merkel government implementing its obligations until the court has ruled on whether the nature of the parliamentary action is lawful:

Germany’s Federal Constitutional Court on Friday expressed doubts about the legality of a new panel of lawmakers set up by the German parliament to reach quick decisions on the release of funds from the euro bailout mechanism, the European Financial Stability Facility (EFSF). The court issued a temporary injunction banning the nine-person committee in the Bundestag from taking any decisions on the EFSF’s deployment of German taxpayer money.

The special committee was recently created in order to be able to provide a quick green light for EFSF aid in especially urgent situations in which it wouldn’t be feasible to put the issue up for a vote before the full parliament. The decision from the court, located in Karlsruhe, could also slow down Bundestag approval of the further application of German credit guarantees within the scope of the euro backstop fund.

Peter Danckert and Swen Schulz, two members of parliament with the center-left Social Democratic Party (SPD), submitted their complaint on Thursday, expressing their concern that the nine-member panel might violate their rights as members of the legislative chamber.

There are multiple ways to interpret the role of the German Constitutional Court in the eurozone crisis:

  • One is to see it as the vehicle of German revanchism; the moment when the Germans selfishly go back to their nationalistic, and worse, ways – not too far off to say this is how the Greeks see it.
  • A second is to see it as the vehicle of German democratic sovereignty, not atavistic nationalism, an expression of German institutional commitment to the terms of its own democratic compact – this would be more or less how the Americans would see it, were anyone paying much attention, through the lens of American constitutionalism.
  • A third, and perhaps the most intriguing from the point of view of EU governance theory, is to see the German court as acting (in its several holdings, not just this one) for the long-term interest of the EU and the eurozone itself.  Forcing the European system to adhere to its most basic rules, rather than relying on ad hoc kick-the-can-down-the-road discretionary deals.  The court, on this view, is acting in the interests of the whole of Europe as a long term enterprise, on the theory that governance cannot be simply whatever discretionary deal is worked out for that moment. Constitutional rule cannot be as discretionary as that.

There are probably others.  Martin Holterman made an interesting comment on an earlier post of mine about European governance in light of the eurozone crisis, suggesting that there wasn’t really anything to see from a governance aspect.  Meaning that although this was a financial crisis, from a governance standpoint, its resolution was proceeding as the treaties contemplated – including deals struck by the principal political leaders of states.  I leave it to Martin and others more knowledgeable of inside-the-EU governance to say for the EU, but as an abstract proposition of governance, I’m not sure that’s sustainable over the long run.  I don’t think it works to say that radical discretion is not radical because it’s built into the system of governance.  (Readers of a certain formation will understand that it sounds a bit like Calvin-ball.)

I don’t want to misinterpret Martin, so I don’t suggest this is actually his view (MH: feel free to give us your view in the comments).  But something like what I’ve said about institutionalized, yet extremely wide, discretion has been argued by commentators as a virtuous feature of European governance.  I would have called it a bug, not a feature.  Whether I’m right about that or not, I suspect the German constitutional court would agree with me.  But I’m prepared to be corrected by folks who understand the governance issues in Europe far better than I.

Update:  Martin is kind enough to respond (sorry, it was buried deep in the spam filter!):

Amending the EU Treaties is even more difficult than amending the US constitution, since it requires unanimous consent and, depending on the magnitude of the amendment, referendums in a number of countries. However, when it comes to a crisis like this, the “advantage” is that the negotiating is done by the political leaders of these countries, rather than by senators elected in parallel. For this reason, if something drastic needs to be done, they can sign on on behalf of their Member State, although the whole thing will still have to be ratified back home.

(Maybe the better way to characterise the difference between the EU and US constitutions is to say that the former is still very much viewed as a work in progress, rather than as gospel written in stone.)

As for the BVerfG, I think they themselves think mostly in terms of your second option. To clarify the legal background: The German Basic Law explicitly authorises the state to participate in the EU, whatever form it may take. (Although ratification is of course still necessary.) However, under art. 79(3), there are certain things that may never be amended out of the Basic Law:

“Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”

Since art. 20 contains the basic principles of German democracy, the BVerfG is called upon to decide how much power can be transferred to Brussels without violating the “eternity clause”, just like, in the 1970s and 80s, they had to claim the right to second-guess the ECJ on matters of human rights. (The “Solange” case law.)

Update 2:  EU law scholar Peter Lindseth is also kind enough to respond (and I commend the new blog eutopialaw.com, where he blogs regularly, link below):

A note of clarification.  The Court actually enjoined the future use of the new parliamentary approval mechanism but Germany’s existing obligations are not imperiled (on the most recent vote on the EFSF, Merkel was forced by members in her own party to seek approval from the full Bundestag, thus avoiding the use of the nine-member body that the Court has now enjoined).  The recent German decisions have been subject to some interesting discussion recently on eutopialaw.com, a new EU-focused blog based in London, including an exchange between me and Gunnar Beck at SOAS (here), as well as an earlier one between me and Oliver Gerstenberg at Leeds (here).  Check them out.  all best, -Peter

A Cybersecurity Treaty? Adam Segal and Matthew Waxman Think Not

by Kenneth Anderson

Adam Segal and Matthew Waxman (among other things, both fellows at the Council on Foreign Relations) write at CNN.com on why the global cybersecurity threat leads many to believe that the only way to address this transnational issue is through a treaty — and why such a treaty is a pipedream.

The hacker – a government, a lone individual, a non-state group – stealing valuable intellectual property or exploring infrastructure control systems could be sitting in Romania, China, or Nigeria, and the assault could transit networks across several continents. Calls are therefore growing for a global treaty to help protect against cyber threats.

As a step in that direction, the British government is convening next week the London Conference on Cyberspace to promote new norms of cybersecurity and the free flow of information via digital networks. International diplomacy like this among states and private stakeholders is important and will bring needed attention to these issues. But the London summit is also likely to expose major fault lines, not consensus, on the hardest and most significant problems. The idea of ultimately negotiating a worldwide, comprehensive cybersecurity treaty is a pipe dream.

Different interests among powerful states – stemming from different strategic priorities, internal politics, public-private relationships and vulnerabilities – will continue to pull them apart on how cyberspace should be used, regulated, and secured. With the United States and European democracies at one end and China and Russia at another, states disagree sharply over such issues as whether international laws of war and self-defense should apply to cyber attacks, the right to block information from citizens, and the roles that private or quasi-private actors should play in Internet governance. Many emerging Internet powers and developing states lie between these poles, while others are choosing sides.

Segal and Waxman point out not only ways in which a treaty regime is likely an instance of overreaching that, were anyone actually to rely on it, is likely to fail.  They go on to present a positive agenda of steps that states can take in order to develop what amount to state practices aimed at consolidating looser norms of state behavior and best practices of states, without reaching to a treaty regime. Continue Reading…

Richard Fallon on Law Professor Amicus Briefs

by Kenneth Anderson

Harvard Law School’s Richard Fallon has a new short, reflective essay expressing important concerns about the many amicus briefs that we law professors author, submit, and sign.  “Scholars Briefs and the Vocation of a Law Professor.” (Via Volokh Conspiracy, and via Prawfs; the comment threads have some interesting points.) From the introduction:

With scholars’ briefs having the potential to influence the outcome of sometimes high-stakes litigation, requests to prepare them often come either from a party or from a firm or organization whose interests align with those of a party. Many law professors seem to like to draft, or at least collaborate with law firms in drafting, scholars’ briefs.

For the professors who are asked merely to sign a scholars’ brief, participation may be even harder to resist. Dangled before them, with little or no work required, is the possibility of having an impact on the development of the law. As long as the brief supports the right side, it is hard for a professor who wants to influence the law’s trajectory-as nearly all of us do-to say no.

But law professors often should say no, or at least we should say no much more frequently than many of us now do. And when we say yes-as we should sometimes-we should insist that scholars’ briefs reflect higher norms of scholarly integrity than many such briefs now satisfy. Or so I shall argue in this essay.

In so arguing, I hope to spur an overdue discussion. Continue Reading…

Ruti Teitel’s ‘Humanity’s Law’

by Ralph Wilde

This excellent book is remarkable for its wide and deep use of work from international relations literature, bridging the disciplines of international law and international relations as few have done previously.  There is a significant body of writing in international law where the ideas from particular theoretical traditions in broader scholarship, sometimes the ideas of individual scholars, are brought to bear on international law generally or, more usually, one particular area of law.  What remains unusual is the relatively ambitious, full-spectrum approach offered here, which references ideas across a diverse range of thinkers in the context of the ‘international’, effectively engaging in debate within the field of international relations scholarship generally—rather than simply cherry-picking certain ideas from it, and leaving the field as such as it was—and doing so with a deftness and clear authority.

Teitel’s book comes at a significant stage in the history of ideas about the role of the individual in international law.  There has been, of course, a long tradition in international legal scholarship of making a case for the centrality of the individual as the normative core of the international legal system.  For many years, with a system concerned predominantly (if not exclusively) with the rights and duties of states, such an argument had to be made largely on the basis of liberal notions (whether or not acknowledged as such) of the state’s legitimacy being rooted in its
protection of individuals.   As international law became directly applicable to individuals, with the advent of international human rights law, international criminal law, and those areas of the law of armed conflict/international humanitarian law also concerned partly with the rights and duties of individuals, there was no longer any doubt about the important place that the individual occupied in the international legal system.  At the same time, as the substantive content of international law increased, in terms of both the range of subject-matter the law purports to regulate, and the specificity and complexity of the regulatory framework deployed in each case, work emerged seeking to understand how international law might ‘fragment’, what might bring ‘unity’, and what underlying principles might guide attempts to mediate the interplay between mutually contradictory, overlapping normative systems.  Considerations of normative ideas concerned with the individual usually figured prominently in such work, whether as examples of fragmentation—human rights law is sometimes represented as the paradigmatic case-study of a ‘siloed’ area of international law—or as examples of meta-norms that might unify and/or ‘trump’ in areas of conflict.

So far, so familiar.   What marks out Teitel’s work in this context is her successful effort to engage in a comparative treatment of the key areas of international law directly applicable to individuals, of an unrivalled theoretical and empirical depth.  That such a study has the potential to offer insights as rich as those presented here is possible, in part, because of the moment at which it has been produced.  International human rights law is now a dense field that has been subject to significant contested treatment across a wide range of interpretative fora, from national, regional and international courts and tribunals to the work of international organizations, NGO activism and scholarship.  In the period since the end of the cold war, international criminal law and the other obligations of and protections for individuals in the law of armed conflict have moved beyond the Nuremberg and Tokyo legacy and ‘grave breaches’ provisions to the range of international and ‘hybrid’ criminal tribunals and developments in the use of universal jurisdiction nationally.  Certainly, students of the international system, in international relations and international law, need an account of these developments if they are to understand a key component of the present system, and Teitel offers the best account currently available, in terms of authority, breadth and comprehensiveness.

But the book is much more important than that, because Teitel draws on her survey of the key areas of international law concerned with individuals to theorize about the nature of the international legal system more generally.  Here, the work is significant because it is able to draw on an acutely insightful, detailed, authoritative and up to date treatment of the workings of key areas of law—an ability that is increasingly rare in much theoretical work written about the law by both international lawyers and international relations scholars—when theorizing about the law.  In this sense, a focus on a sub-set of international law renders the project manageable: a treatment of the nature of the international legal system rooted in as detailed and comprehensive treatment of the substantive law as is offered here would have been impossible (does that mean the end of international legal theory as it was once written, when the quantum of international law was of a size that rendered
it cognizable in its entirety?).  But Teitel’s observations about the structural features of international law discerned from her study of a sub-set of the substantive law may well be transferable.  In consequence, this book deserves to be read by those who work in other fields of international law, since for them it offers not only an important refresher in areas of law they may well feel they should stay on top of, but also significant and valuable insights into the nature of the legal system which have the potential to inform understandings of the dynamics in their areas of law.

Revised Version of Complementarity Essay on SSRN

by Kevin Jon Heller

I have posted a substantially revised version of my essay “A Sentence-Based Theory of Complementarity” on SSRN.  The essay is appearing in two different forms.  The long version (23,000 words) — the one I’ve posted — is forthcoming in Volume 53 of the Harvard International Law Journal.  The short version (7,000 words), which focuses on the new theory of complementarity I defend, will appear as a chapter of the Ashgate Research Companion to International Criminal Law: Critical Perspectives, which is being edited by Bill Schabas, Niamh Hayes, Maria Varaki, and Yvonne McDermott.  Here is the abstract:

Scholars have long debated to what extent the Rome Statute’s principle of complementarity permits states to prosecute war crimes, crimes against humanity, and acts of genocide as ordinary crimes such as rape and murder instead of as international crimes. Two positions dominate the discourse, what I call the “hard mirror thesis” and the “soft mirror thesis.” Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I argue that any national prosecution of an ordinary crime should satisfy the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC.

As always, comments and criticisms most welcome.

Sarei v. Rio Tinto: The Ninth Circuit Tackles the Alien Tort Statute (Again)

by Chimene Keitner

In the wake of U.S. Supreme Court’s cert grant in Kiobel v. Royal Dutch Petroleum, the Ninth Circuit has issued its second en banc opinion in Sarei v. Rio Tinto, which it had earlier tried to avoid by referring the case to mediation. No wonder: yesterday’s opinion, which addressed multiple issues raised by the parties and at least one issue that the parties did not raise, reads like a virtual catalog of contested questions surrounding the interpretation and application of this 1789 provision from the First Judiciary Act. All this in the context of a lawsuit originally filed in the year 2000 against the Rio Tinto mining company for its alleged role in genocide, war crimes, crimes against humanity, and racial discrimination against residents of the island of Bougainville in Papua New Guinea.

I previously blogged on IntLawGrrls about an “emerging circuit split” in corporate ATS cases. This split is now manifest, which no doubt accounts at least in part for the Supreme Court’s decision to tackle the threshold question of corporate liability under the ATS in Kiobel (and the distinct question of whether liability under the Torture Victim Protection Act is limited to natural persons, presented by Mohamad v. Rajoub). The Ninth Circuit’s opinion is much more wide-ranging. On the question of whether corporations can ever be held liable under the ATS, seven out of eleven judges sided with Judge Leval’s concurrence in Kiobel, which answered this question in the affirmative (slip op. at 19339-41). The Ninth Circuit therefore joins the D.C. Circuit in Doe v. ExxonMobil, the Seventh Circuit in Flomo v. Firestone, and the Eleventh Circuit in Romero v. Drummond, in holding that corporations may be found liable under the ATS in appropriate circumstances. Although these circuit courts have reached the same result through different reasoning, I have argued here and more recently here that “the attribution of individual conduct to a corporate entity for the purpose of ascribing legal liability” under the ATS is properly governed by domestic law, meaning that it is somewhat beside the point in this context to ask whether “corporations” as such can or cannot violate international law.

As Trey Childress has indicated, the same Ninth Circuit majority also held in Sarei that the adjudication of transitory torts under the Alien Tort Statute does not violate a statutory presumption against extraterritoriality (slip op. at 19334-39) (or, I might add, international law constraints on the extraterritorial application of U.S. law, since the conduct-regulating norms being applied under the ATS come from international law). In addition, in response to an argument raised by the dissent, the majority found that claims relating to violations of international norms that meet the test of universal acceptance set forth in Sosa v. Alvarez-Machain “arise under” federal law for Article III purposes (slip op. at 19342-51). Finally, although the majority left open the question of whether knowingly as opposed to purposefully aiding and abetting an international law violation would give rise to liability under the ATS (slip op. at 19373), it held that at least purposeful aiding and abetting is actionable; Judges Pregerson and Rawlinson wrote separately in support of a knowledge standard (slip op. at 19384-89) and are (in my view) correct in pointing out that, even if one adopts the Rome Statute for the International Criminal Court as a guide to aiding and abetting liability under international law (which is questionable), the Rome Statute does not support a higher purpose standard in the context of aiding and abetting crimes committed by groups.

All in all, it promises to be an eventful Supreme Court term for those interested in international law in U.S. courts. In the meantime, upcoming events touching on these issues include a panel on emerging issues in ATS litigation at the ASIL mid-year meeting at UCLA on November 4; a discussion of transnational tort liability for multinational corporations in which Julian Ku and I will comment on a paper by Al Sykes at the Georgetown Law Journal’s Centennial Symposium on November 17; and the ASIL International Law in Domestic Courts Annual Interest Group Meeting at BYU Law School on December 16 (details to be posted online soon).

(Cross-posted at IntlawGrrls)

Book Roundtable: Ruti Teitel’s Humanity’s Law

by William Burke-White

I’m delighted to have been asked to participate in this discussion of Ruti Teitel’s Humanity’s Law. Let me start by simply saying what a great read this book is. Congratulations to Ruti on a book that really does shift our thinking about the base lines of international law, challenge conventional notions of a state-centric international legal system, and help make sense of the changes across a range of sub-fields in international law that all do more to privilege the individual.

Ruti’s central claim is that there has been a move “away from the single-minded conceptualization of interstate relations premised on state interests and toward, instead, the legalist discourse of humanity rights pertaining to persons and peoples…” (63). Ruti pulls together these diverse changes in fiends including human rights, humanitarian law, and international criminal law and suggests that collectively they give rise to what she terms “humanity’s law.” The argument is compelling and convincing. It is based on careful analysis of both global changes in politics and rhetoric as well as the jurisprudence of international and domestic tribunals.

Ruti titles the book Humanity’s Law and goes far to show that these changes amount to a new legal framework – that humanity’s law is law. To positivist international lawyers who look to acts of state consent as a prerequisite for legal shifts, Ruti’s claim may go too far. The role of the individual in international law has clearly shifted both in times of war and in times of peace, in rights and responsibilities, in privileges and accountability.  Should those shifts in fact be seen as a new body of law –humanity’s law? Perhaps. But far more significant than whether humanity’s law is law and should be seen as such, is the collective impact that these myriad changes to the role of the individual have on state behavior and rhetoric, even outside formal legal structures.

Ruti makes a variant of this point clearly in the conclusion: “Law has become central and foundational to the normative discourse of international affairs… The pivotal role of law in the discourse of diplomacy has become clear since the end of the Cold War; humanity-centered claims permeate much of foreign affairs discourse” (217). True enough, humanity-based claims are today at the forefront of foreign policy-making and diplomacy. It is not, however, clear to me that it is the status of such claims as law that matters as much as that such claims are grounded in a humanity-based morality that has come, through the processes (both legal and political) that Ruti documents, to serve as trumps in both legal argument and policy debate.

To me, the central claim is as much a normative one of human protection as a legal one of civilian inviolability. What Ruti has shown is a fundamental shift in the mortal rhetoric that can (and usually will) prevail in both courts and diplomatic negotiations. It is a shift from sovereignty to humanity.

My suggestion that this normative shift is in fact more powerful than the underlying legal changes complicates the matter, however, because the very same legal norms that are now used to advance human protection are often subject to multiple interpretations many of which can be bathed in the moral rhetoric of humanity’s law. As Ian Hurd has recently argued in a piece in Ethics and International Affairs, the law of humanitarian intervention is largely indeterminate, and both action and inaction can be seen as legal and both can, in fact, be argued to be in humanity’s interests. The nature of legal and political argument has certainly changed. So too has the moral rhetoric most likely to prevail. Less certain however is the clarity of the legal rule that emerges or the ultimate outcome of diplomatic process informed by a rhetoric of human interest.  In short, humanity’s law itself may still have to catch up to what might be called humanity-discourse.

Ruti has shown conclusively and compellingly that there exists a new legal and political space governed by “humanity’s law.” And her book itself is a critical step in the broader process through which these changes to the status of the individual will become a legal regime that guides both judicial reasoning and political debate.

Banning Statements by the Rating Agencies as a Form of ‘Seditious Libel’

by Kenneth Anderson

Eugene Volokh comments on reports that the EU is considering legal bans on statements by rating agencies in some circumstances of countries engaged in re-negotiation of their sovereign debt.  He quotes Spiegel Online regarding comments and a draft law report by the EU internal market commissioner:

In an internal draft of a reform to an EU law applying to ratings agencies obtained by the paper, Barnier proposes providing the new EU securities authority, the European Securities and Markets Authority (ESMA), with the right to “temporarily prohibit” the publication of forecasts of a country’s liquidity.

The European Commission is particularly concerned about countries that are negotiating financial aid — for example from the euro rescue backstop fund, the European Financial Stability Facility (EFSF), or the International Monetary Fund (IMF). A ban could prevent a rating from coming at an “inopportune moment” and having “negative consequences for the financial stability of a country and a possible destabilizing effect on the global economy,” the draft states….

Now, for many reasons, I think this would be a very bad policy and legal move, but I’ll discuss that another time.  I wanted to flag Eugene’s comment on the nature of the legal ban involved (and also see Martin Holterman’s comments in the thread):

The analogy to seditious libel, I think, is quite close. Traditional seditious libel barred, among other things, statements that diminish the reputation of the government, whether the statements were opinion, true factual assertions, or false factual assertions; likewise here. The rule that is apparently being proposed would essentially be a seditious libel law focused on a particular set of statements about a government’s finances.

Martin offers the following quick assessment under EU human rights law (moved up from comments), with my thanks:

@Kenneth: European Human Rights law is not my area of expertise (within law, I’m more of an EU law guy), but I spent an hour looking into various more or less blanket bans on speech. What I wanted to know is whether it is ever a problem to find a fitting justification from among the permissible set:

“national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

What I found is that the ECtHR is quite flexible with these, and that “the protection of the rights of others” will cover just about everything, i.e. not just the rights listed in the Convention but much more broadly than that, like the right not to have one’s government and/or banking system bankrupted.

This means that the whole thing will turn on whether this intrusion is “necessary in a democratic society”, i.e. proportionate. On that count, I can’t imagine the ECtHR contradicting the EU and/or the Member States if they say this is necessary to protect the financial sanity of the system. I don’t think they have that much confidence, and I think they would regard this as an issue of commercial speech, far removed from the politics that is at the core of art. 10 protection. Add to that the difficulty the judges might have in understanding the exact nature of the problem, and I don’t see them contradicting the lawmaker on proportionality.

I put some links to case law on my blog here:http://martinned.blogspot.com/2011/10/ratings-agencies-speaking-ban.html

P.S. Note that the EU has not yet joined the ECHR, so that the procedural posture of this case would be a bit more tricky in actual fact than assumed above. As it is, the case would either arise in national court or, if that is not enough to get rid of this monstrosity, it would come before the ECtHR with one or more of the EU’s Member States as a defendant, like in the Bosphorus case.

Judge Pregerson Gets the Rome Statute Right on Aiding and Abetting

by Kevin Jon Heller

As Roger has pointed out, the Ninth Circuit has just released a blockbuster ATS decision in the Rio Tinto case.  There is a great deal to like in the decision, particularly concerning the liability of corporations under the ATS, but it’s regrettable that the majority refused to address the knowledge/intent “debate” concerning the mens rea of aid and abetting under customary international law, choosing instead to hold that, at a minimum, purposeful assistance qualifies.

That said, Judge Pregerson’s partial dissent — joined by Judge Rawlinson — gets the issue absolutely right.  The entire discussion is well worth a read; Judge Pregerson’s analysis of the WW II-era jurisprudence and the jurisprudence of the ICTY is outstanding.  (Unlike the amicus brief I criticized a couple of weeks ago, Judge Pregerson reads Vasiljevic in the same way that the Appeals Chamber itself reads it — as endorsing the mens rea of knowledge.)  The best part of the partial dissent, though, is that it recognizes that, properly understood, the Rome Statute does not support the idea that the customary mens rea of aiding and abetting is purpose.  The opinion is worth quoting at length (my emphasis; citations omitted):

Despite the foregoing multitude of international sources uniformly concluding that knowledge is the applicable mens rea, the majority principally relies on the Rome Statute of the International Criminal Court (the “Rome Statute”) as the basis for a purpose mens rea standard. But not every provision of the Rome Statute was intended to reflect customary international law. Moreover, the Rome Statute was never intended to supersede, constrain or limit existing customary international law, including the universal knowledge mens rea standard—any deviations from customary international law should be viewed as specific only to cases heard under the jurisdiction of the International Criminal Court (“ICC”).

After apparently assuming that the entirety of the Rome Statute necessarily reflects customary international law, the majority then erroneously interprets Article 25(3)(c) as establishing a purpose mens rea standard for all allegations of aiding and abetting liability under the Rome Statute. In so holding, the majority overlooks other Rome Statute provisions delineating a knowledge mens rea standard for aiding and abetting liability. Article 30 establishes that the default mens rea standard for crimes under the Rome Statute is knowledge that a circumstance exists or a consequence will occur in the ordinary course of events. Consistent therewith, Article 25(3)(d) requires only a mens rea of knowledge when an actor aids or abets a crime committed by a group with a common purpose. Consequently, even if the Rome Statute were an appropriate source for determining the mens rea standard, Article 25(3)(d)’s knowledge standard would apply, where, as here, Plaintiffs allege international crimes carried out by a group with a common purpose.

I have nothing to add to this, except to say that Judge Pregerson is spot on, especially concerning the relevance of Article 25(3)(d).  The most baffling part of Mike Ramsey’s defense of the amicus brief’s reliance on Article 25(3)(c) is his claim that “Article 25(3)(d) seems to apply only to ‘a group of persons acting with a common purpose’, which, whatever it means, isn’t usually the case in corporate aiding-and-abetting cases.”  As Judge Pregerson  notes, Article 25(3)(d) is precisely suited to most, if not all ATS cases, in which the international crimes at issue are committed by groups, not by lone individuals.

Kudos, Judge Pregerson.  I hope the Supreme Court pays attention to you when it deals with the aiding and abetting issue.

Where is the International Law Criticism of the Libya Intervention?

by Julian Ku

Eric Posner points out the NATO intervention into Libya appeared to violate numerous norms of international law (and maybe domestic U.S law as well).  He suggests that it is further evidence that legal norms don’t really matter much for international military actions.

But if the Libya intervention turns out to be a political and moral victory, it also illustrates once again the motto, inter arma silent leges — in times of war, the law falls mute. Both international and U.S. law took a drubbing alongside Qaddafi’s ragtag army, casting further doubt upon the already tenuous notion that international military actions can be conducted on a legal basis.

Posner makes a number of great points that I had been wondering about myself.  For instance, I am struck by the utter silence from the leading U.S. international law commentators on the legality of the Libya intervention under the U.N. Charter.  After all the grousing about the U.S. interpretation of its authority under prior U.N. Security Council Resolutions to invade Iraq (see this exchange Chris and I had back in 2005 about Iraq), there is nary a peep in the U.S. international law academy about NATO’s rather creative interpretation of its Security Council mandate.

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

Uh…did NATO really stick to this mandate? There are reports that a U.S. drone strike was made on Qaddafi’s convoy shortly before his eventual capture and killing. Why exactly was his death necessary to “protect civilians and civilian populated areas under threat of attack.”?  It is hard to see how this mandate was obeyed, without the type of interpretive stretching that most international law scholars typically condemn.  I would be interested to hear from any folks who have offered a legal defense of the NATO campaign in Libya under the U.N. Charter.

Ninth Circuit En Banc Decides Sarei v. Rio Tinto

by Roger Alford

Donald “Trey” Childress has the scoop:

Today, the United States Court of Appeals for the Ninth Circuit issued a mammoth en banc opinion in the case of Sarei v. Rio Tinto. All 166 pages of the court’s splintered analysis deserves careful consideration. Here is a short review of the court’s conclusions.

First, the Ninth Circuit holds that the Alien Tort Statute may be applied extraterritorially notwithstanding recent Supreme Court caselaw requiring a clear statement of extratteritorial intent. Slip op. at 19337-19339.

Second, the Ninth Circuit holds that there can be corporate liability under the ATS. Slip op. at 19341.

Third, the Ninth Circuit holds that there may be aiding and abetting liability under the ATS. Slip op. at 19342.

Fourth, the Ninth Circuit holds that there is arising under jurisdiction in ATS cases and that courts may develop federal common law in such cases. Slip op. at 19343; id. 19347.

Fifth, the Ninth Circuit holds that prudential exhaustion may be required in ATS cases and that the district court did not abuse its dicretion in refusing to dismiss the case for lack of exhaustion. Slip op. at 19353.

Sixth, the Ninth Circuit holds on the facts of the case that the political question doctrine, international comity, and the act of state doctrine do not require dismissal. Slip op. at 19358.

Seventh, the Ninth Circuit holds that a claim for genocide and war crimes may be pled under the ATS against a corporation when there is purposeful conduct alleged. Slip op. at 19375. The court reserves judgment on whether a lesser standard is applicable given the purposeful allegations in this case. Id.

Eighth, the Ninth Circuit holds that a claim of racial discrimination is not cognizable under the ATS, although a claim of apartheid is cognizable by assumption. Slip op. at 19380.

Read the whole post here.

Humanity’s Law: A Few Opening Thoughts

by Ruti Teitel

So thanks for the opportunity to exchange on my new book Humanity’s Law.  I have been following the relationship of law to post conflict and political transition for many years now.  The puzzle that occasioned this book was the apparently expanding role of law in periods of conflict, and the way the law at issue departed from traditional international law and its traditional distinctions between war and peace, international and domestic law, and focus on state security, to a shift in focus and  new emphasis on the  protection of human  security.

In this book, I trace this development historically and through illustrations involving conflicts in diverse regions, showing that the overarching legal framework which governs this new normativity draws from international human rights law, the law of war (its two strands) and international criminal law.

I argue that just as the human has become the subject of protection, so too it is the subject of enforcement, although this understanding can also result in greater duties for the state regarding as we have seen in recent legal judgments in number of areas, from awards of reparations for abuses committed in and out of conflict and often after the passage of time to identifying responsibility in the counter terror campaign.

A host of controversies ensue  from the normative, what principles ought guide the new responsibility to protect?  To the question of how largely our state based institutions can operationalize  global engagement? The emergence of humanity law and its domination in many contexts of conflict lead to a number of hard questions that need to be tackled directly.  For example:  Have criminal trials far from the scene of conflict made it more not less difficult to heal old grievances, for example in the Balkans? How about the intervention in Libya?  Did the international legal community jump the gun in threatening Ghadaffi and his family with criminal indictments, taking off the table options such as amnesties or exile that might have led to an earlier and less bloody regime change in Libya?   Have the competing allegations of war crimes and humanitarian violations made in harder rather than easier to have meaningful peace talks between Israel and Palestine, distracting from the underlying political claims at issue?  I look forward to hearing your views.

Book Roundtable: Ruti Teitel’s Humanity’s Law

by Peter Spiro

We’re pleased this week to host a discussion of Ruti Teitel’s new book, Humanity’s Law, just out from Oxford University Press.  Ruti is Ernst C. Stiefel Professor of Comparative Law at New York Law School, where she directs the Institute for Global Law, Justice, & Policy.  She is also Visiting Professor, London School of Economics.

The book is a major contribution to understanding the transformed baselines of international law, an integrated account of how international law has reoriented to humanity.  The book describes

the central transformations of the post-Cold War era: the profound normative shift in the international legal order from prioritizing state security to protecting human security. Courts, tribunals, and other international bodies now rely on a humanity-based framework to assess the rights and wrongs of conflict; to determine whether and how to intervene; and to impose accountability and responsibility. Cumulatively, the norms represent a new law of humanity that spans the law of war, international human rights, and international criminal justice. Teitel explains how this framework is reshaping the discourse of international politics with a new approach to the management of violent conflict.

We’ll be joined for the roundtable by Bill Burke-White (Penn Law), Joanne Mariner (Hunter College), and Ralph Wilde (University College London) .  We’ll look forward to a stimulating discussion of Ruti’s important new book.

Law, Governance, and the Eurozone

by Kenneth Anderson

The eurozone is on the verge of meltdown, taking whole economies and banking systems with it, and spreading to the US through the systemic interwiring of the international financial system.  Or not.  European meetings to avert disaster are coming unglued and the moment when the markets simply stop turning over debt and re-lending is finally at hand, with a tipping point reached against one or another of the economies beyond Greece.  Or not.

I’m reasonably sophisticated in international economic law, and pay close attention to these things.  I require my students to follow the European debt crisis closely, and I make a point of engaging in discussions with colleagues and friends in the economics, business and finance worlds to try and understand what’s going on.  But if you are like me, as a business law professor you are never quite sure what to make of the reports that come from political economy on what is happening.  And even more, you are not quite sure where to locate the role of lawyers and law in this discussion.  I don’t mean the role of lawyers in the sense of sophisticated finance people who start in law but gradually take on interdisciplinary expertise; that describes a lot of the players in this world, including lots of law professors.

I mean the role of lawyer and law in the questions of governance, structures of governance, the constitutional arrangements of the the EU, the eurozone, the law of the central banks, and down from the supranational to the national.  The economists and most of the political types I speak with do not believe that law is decisive in decisionmaking in this kind of urgent situation; it is epiphenomenal on what the politicians and markets do, and law will be rewritten, reinterpreted, reconfigured either in the event or afterwards to express the new political reality.  At most, there are hiccups – such as the German Constitutional Court decision in September that, if I understood it correctly, both grudgingly blessed the bailouts already taken but put serious new national law-based constraints on future ones.  But, say my political economist friends, that’s just the occasional roadbump.  The hurdles are not legal ones in the EU, however much it appears to be a creature of treaty, law, and regulation.  It is a discretionary regime in its most important economic crises – as perhaps are all large democratic economies and common markets, including the US (Cf. Hank Paulson’s handful-of-paragraphs trillion dollars in 2008).  (The questions of sovereign debt covenant interpretation, or the triggering events in credit default swaps, or other private contract issues have always been understood to be about law and lawyers.)

I keep wondering whether law is quite so beside the point, even in what some would call a Schmittian moment of crisis.  (That would be a mistaken characterization, in my view, but a tempting one, and I don’t mean necessarily mean Posner and Vermeule, but Schmitt’s direct intellectual heirs and students in Europe.)  Even without reaching to Schmitt, however, from a governance and constitutional standpoint, one could argue that the discretionary elements of the system turned out not to establish the best of all possible worlds – apparently rule-governed, but actually highly discretionary – but instead the worst.  (This is, by the way, a distinctly legal issue, by contrast to the best-v-worst observations made about the economics of optimal and unoptimal currency zones.)

It’s not so much that I want to stake out a claim, but to raise once again the question of what the implications of this are for the constitutional theory of the EU, and for the economic governance of the eurozone, where governance means something that has to be written down in the law and regulation of the European Central Bank and other institutions.  Germany and others are saying that the rules have to mean what they say; others say not so much that the rules aren’t clear as that, or that they are revisable in a crisis.

This looks as much to be a governance and constitutional crisis as an economic one, in other words, and a crisis in which law will play a part before and after.  The rules, at least to an outsider, on such things as fiscal transfers, the legal mandate of the ECB, seem pretty clear.  Maybe there is a jurisprudence that paves a plausible path to what the politicians contemplate, but it doesn’t seem so easy, at least to important constituencies in the eurozone.  When the newspapers report that, well, the proposal was to leverage the bailout fund in various ways – but that the lawyers advised that this violated various EU laws, that seems to be law playing a pretty independent  precipitating role.  And what about the aftermath, if the discretionary revisions prevail to rules that important players assumed were not subject to revision?  What is the constitutional rule that obtains here, and is it a rule on which markets and national leaders can use to make stable predictions?

I realize the moment of crisis is not the right moment to rewrite constitutional theory, but surely there is more discussion going on somewhere, not just of the specific laws at issue, but of the underlying principles of constitutional decision and action at issue here.  It doesn’t seem sufficient to merely read a note in the Financial Times or the German newspapers that political leadership had been advised by lawyers that the bailout fund can’t be leveraged, or that common issuance of eurozone debt is harder as a legal matter than it looks.  But I’m not a European Union lawyer, and I’d welcome comments from knowledgeable readers, or links to articles, blogs, or other discussion points that seek to undertake the legal and governance issues.

Update: Here’s an example of what I mean by the sense that in the eurozone crisis, law is a follower, not a leader, and at most a negotiable hold-up. This is drawn from one of my favorite economists, the Very Great Tyler Cowen, on how to exit the eurozone.  From the end of his post (emphasis added):

Let’s sum up which problems have been addressed and which not.  The domestic banking system is saved, at least provided the new conversion rate is credible enough that no one expects a repeat of the depreciation.  It’s key to make that first announcement a real surprise, good luck!  A negative wealth shock will come anyway and my plan has accelerated the arrival of that shock; the best one can do is to combine it with monetary expansion and the positive export shock from devaluation.  To fix the external banks, the wealthier countries will need to exercise and perhaps improve their LOLR [Lender of Last Resort] powers, but that is the case under any plan, not just this one.

Admittedly this plan makes the wealth loss in Ruritania quite transparent, which may be politically unpopular, but that transparency eases the economics of the transition.

Voila!  Rinse and repeat as necessary.  A lot of this would be eased by high inflation from the eurozone itself but a) that would involve collateral costs on the healthier economies, and b) in any case it doesn’t look like it will happen.  I’m sticking with what a small country can do on its own.

No need to write in the comments section that this is “illegal.”  Breaking the three percent deficit rule, as France and Germany did, was illegal too.  Ruritania will not be hauled before a court of law and I also predict Ruritania will not be ejected from EU per se. Maybe their agricultural subsidies will be cut, let them eat floating exchange rates I say.

This is drafted, from my international contracts lawyer point of view, the way that a business person would draft a term sheet – a roadmap through the practicalities of business, finance, and some political considerations.  But the legal and regulatory issues are essentially treated as revisable or else some form of negotiable hold-up.  They act as constraints on this account – but not truly “constitutional” ones.

I mean by that, constraints in law that are more than just “hard” to change, but which are hard to change because they are part of a constitutional order, in which the constraints carry important legitimacy all their own that arise because they are, well, constitutive.  Built into the structure in a way that is hard to change because people wanted it that way, to tie their hands into the future in a mutual undertaking in which people came together to tie not just each other’s hands but their genuinely collective hands, people together – and to tie the hands of the people who would come after.  This idea of the independent power of legitimacy, and the function of constitutionalism as more than just a “really big holdup” is, in my experience, very hard to convey to economists, mostly because their world-view doesn’t make room for the underlying concept.  At most, there’s some handwaving in the direction of “Oh, you mean institutional economics.”  Actually, I mean more than that.  I mean “constitutional law.”

But then Tyler Cowen points to a rather serious problem for my argument above.  For years, we have been told in endless academic papers, books, symposia – mostly funded, however, by the EU in its one-way ratchet of ideological integration – that the EU is indeed a constitutional order, but of a special kind, a new phenomenon in the world, one that has the best of all possible worlds – polis creating its own demos, simultaneously a supranational order but also a merely multilateral collection of sovereignties, etc., etc.  My reaction as an academic was, well, maybe, let’s wait and see; I understand that political leaders can’t wait on academic history but must make their choices and act.  But when push comes to shove, the constitutive rules didn’t prove to bind even the leading principals, as Cowen points out, and discretionary political leadership prevailed instead.  And apparently it prevails now.

So this is a problem for my argument that constitutional hurdles in the EU are more than just hard-to-negotiate-away rules, but instead have the legitimacy of constitutive rules.  Maybe in the EU they don’t.  They are hard to get around, but they can be got around with enough political finesse and cover.  In that case, however, a core “strategic ambiguity” at the heart of the EU project – no bailouts, revisable rule or constitutive constitutional norm? – is suddenly forced to a choice.  I suppose one can say these are just “growing pains” for a new constitutional order, which will take decades and decades to consolidate around genuinely constitutive rules; I have my doubts that this is how it works, in the absence of a genuine demos, but I’m an American and have a different view of sovereignty (Lincoln: “a political community, without a political superior.”)  But still, if on a matter of crucial economic relations, the “rules” are revisable from moment to moment – is there still a “constitution” at the heart of Europe?

Judge Antonio Cassese, Ave Atque Vale

by Kenneth Anderson

Opinio Juris learns with sadness of the passing of Judge Antonio Cassese, one of the pioneers of international criminal justice, following a long battle with cancer.  If you like, leave any remembrances or tributes in the comments.  For my part, I remember Judge Cassese most from the 1980s, at various international humanitarian law meetings, and then particularly around the time of the formation of the Yugoslavia tribunal, when he would sometimes visit the offices of Human Rights Watch or the Open Society Institute.  I remember him best as a intellectual with great passion – and a great sense of humor.

Assessing the Relationship of Information and Computer Tech to Human Rights

by Chris Borgen

On Thursday evening I was on a panel at International Law Weekend on the evolving nature of sovereignty. Sean Murphy gave a presentation on how social networking technology may affect sovereignty, but also how “Twitter revolution” claims have been overblown. As it turns out, we are a few days away from a whole conference on this question, sponsored by (among others) the Ford FoundGoogle, Facebook,

Cory Doctorow writes over at boingboing that:

Next week marks the inaugural Silicon Valley Human Rights Conference (AKA Rightscon) in San Francisco. This event will explore the role that technology plays in the expansion — or elimination — of human rights and the ways that technologists and high-tech firms can either help or harm humanity. In an age when American companies supply “deep packet inspection” technology to the Iranian government so that Iran’s secret police can figure out whom to brutally murder (to cite just one example among many), this is an important question.

At the Rightscon site, the organizers explain:

We’ve seen the exciting role communication technologies companies and social media platforms played in enabling people to challenge and topple authoritarian regimes in the Middle East and North Africa. We’ve also seen the explosion of online activity and social networking here in the US and in markets across Europe, Asia and Africa. It’s time to celebrate the power of technology as a force for good!

Yet while the communication technologies have undoubtedly had a net positive impact on our global community, it has also, for example, enabled certain governments in their efforts to quash personal freedoms and disrupt social movements striving for reform. It is not the first time that technology has been used effectively and simultaneously for participation and exclusion, for revolution and repression, but the dramatic events unfolding in the Middle East and beyond have raised many questions about the rights and responsibilities of the technology sector globally and the relationship between corporations, governments and end-users – both here and abroad.

The goal of the conference is

to explore the following issues, which we hope will advance our collective understanding and ensure that we are prepared for the future:

  • Identifying and complying with human rights
  • Navigating issues of legal jurisdiction in a borderless virtual world
  • Emerging threats from the perspective of civil society
  • Government relations: how to front load a sustainable user and human rights agenda
  • Internet security, encryption, anonymity, and privacy by design.
  • There are fifteen (!) workshops, as well as other roundtables, with topics including: Forging New territory: Implementing the UN Guiding Principles on Human Rights and Business in the Technology Sector; Frontline lessons from other sectors: Learning what works in human rights (What are some of the lessons from apparel, computer hardware, and other industries that can be applied to the technology sector?); and Understanding government relations and navigating legal jurisdiction in a borderless world. The full agenda is here.

    If any Opinio Juris readers attend, please let us know what you think of the conference!

    Gadaffi’s Death May Obscure Truth about Pan Am 103 Bombing

    by Michael Scharf

    As yesterday’s killing of Libyan dictator Muammar Gaddafi is celebrated in Libya and around the world, we should take a moment to ponder what it means for the long quest to discover the truth about the bombing of Pan Am Flight 103. I write this from the perspective of a former State Department lawyer who had been assigned to the Pan Am 103 case (1989-1993) and as an academician who later observed and published critiques of the Pan Am 103 trial in The Netherlands in 2000.

    As most Opinio Juris readers are well aware, on December 21, 1988, Pan American Airways Flight 103 exploded over Lockerbie, Scotland, killing 259 passengers and crew members (including two-dozen Syracuse University students) as well as eleven residents of the small Scottish town. With the exception of the attacks of September 11, 2001, this was the worst case of air terrorism ever committed on Western soil and the Scottish and American authorities responded by launching the largest international criminal investigation ever undertaken.

    At first the U.S. government thought Iran was behind the bombing, then Syria, and then a Palestinian Terrorist Group. It took three years for the investigators to piece together what happened and who they ultimately concluded to be responsible. In 1991, the United States and United Kingdom each issued indictments against two Libyan agents for the Lockerbie bombing, which had allegedly been undertaken in revenge for the U.S. bombing of Tripoli in 1986. It required the imposition of UN Security Council sanctions and eight years of shuttle diplomacy to work out a deal between the United Nations, the United States, the United Kingdom, and Libya to bring the accused perpetrators to trial before a novel Scottish court sitting at a retired U.S. air force base known as Camp Zeist in The Netherlands.

    On January 31, 2001, after a nine-month exceptionally messy trial, the Pan Am 103 Tribunal rendered its verdict. The court found one of the two Libyan defendants, Al Amin Fhima, not guilty and he was immediately returned to Libya where he received a hero’s welcome. It found the other defendant, Abdelbaset al-Megrahi, guilty of murder and sentenced him to a minimum of 20 years incarceration in Berlinie prison in Scotland.  Al-Megrahi was, however, released eight years into his sentence in August 2009 on “compassionate grounds” due to medical evaluations indicating that he was likely to die within months of prostate cancer.  Subsequent press reports suggested that in reality al-Megrahi had been released in a trade deal between the UK and Libya, and al-Megrahi is still alive today.

    The purpose of an international criminal trial is, in the words of Nuremberg Prosecutor Robert Jackson, “to establish incredible events with credible evidence.”  Unfortunately, that wasn’t the case here, as  the verdict of the Pan Am 103 Tribunal did not implicate those higher up in the Libyan government, nor did it rule out the possible involvement of Iran in the bombing. Moreover, although the decision to convict Al-Megrahi was unanimous, the judgment indicates that it had been a close call, with the three judges acknowledging that the prosecution’s case had “uncertainties and qualifications” and that key witnesses had repeatedly lied. Indeed, portions of the judgment read as though the text had been drafted for a “not proven” verdict, which is used under Scottish law when the court is convinced of guilt but the evidence does not rise to the level of “beyond reasonable doubt.”  According to recent press reports, Al-Magrahi continues to assert his innocence. For a detailed analysis of the evidence of the Pan Am 103 trial, see Michael P. Scharf, The Lockerbie Model, in International Criminal Law (3rd ed. 2007).

    Now that Gaddafi has died, will we ever learn the full truth behind the Pan Am 103 bombing?  There was no indication that the documents recently found in the office of Musa Kusa, Gaddafi’s former intelligence chief, contained anything about the Pan Am 103 case.  After he switched sides in February 2011, Gaddafi’s former Minister of Justice, Mohamed Abud Al Jeleil, did state that Gaddafi ordered the Pan Am bombing, but that could have just been an effort to enlist international support for anti-Gaddafi forces.  Had Gaddafi lived and been brought to trial, it is unlikely that the charges would have included his involvement in the Pan Am 103 bombing.  The ICC indictment only concerned crimes against humanity since February 2011, and the Libyan transitional authorities were focused only on prosecuting him for crimes against the people of Libya. 

    There is still a possibility that as-of-yet discovered documents about the Pan Am 103 case will surface in Libya, but with Gaddafi’s death it is more likely that the full truth will have died with him.

    The Implications of Chevron v. Ecuador for Investor-State Arbitration

    by Roger Alford

    On Monday, October 24, I’ll be participating in a panel discussion at NYU on the The Implications of Chevron v. Ecuador for Investor-State Arbitration. The event will be held at 6 p.m. at Furman Hall 900, 245 Sullivan Street, New York. The event is sponsored by NYU Law School’s Institute for International Law and Justice.

    Topics will include: Do arbitrators have the power to give Chevron what it wants? Are there any limits left on U.S. discovery in aid of arbitration? What will the endgame look like, and will it advance human rights?

    Moderators:
    Michael D. Goldhaber, The American Lawyer
    Professor Robert Howse, NYU Law School
    Commentators:
    Professor Roger Alford, Pepperdine Law School & Notre Dame Law School (Jan. 2012)
    Stuart Newberger, partner Crowell & Moring
    Oliver Armas, partner Chadbourne & Parke
    Catherine Amirfar, partner Debevoise & Plimpton
    Eric Bloom, partner Winston & Strawn (counsel to Ecuador)
    Steven Donziger (counsel to the Ecuadorian Plaintiffs)

    Should be very interesting for anyone following one of the most fascinating and controversial transnational cases in the world.

    French Case Filed Against Corporation for Complicity in Torture in Libya

    by Julian Ku

    Interesting:

    Today FIDH and LDH filed a criminal complaint, together with an application to join the proceedings as a civil party against persons unknown before the Court in Paris concerning the responsibility of the company Amesys, a subsidiary of Bull, in relation to acts of torture perpetrated in Libya. This complaint concerns the provision, since 2007, of communication surveillance equipment to Gaddafi’s regime, intended to keep the Libyan population under surveillance.

    Up until now, there has been very little activity in foreign courts seeking to sue or hold companies legally liable for violations of international law. I actually can’t tell from this report what the basis of the allegation is though, since it sounds like it is a claim that the company has violated French law criminalizing torture, and not a direct assertion of a violation of international law. Still, if anyone has access to the complaint, please post it in the comments or email it to me so I can post it (it should give me a chance to practice my French!)

    Why the CIA and Drones?

    by Kenneth Anderson

    A quick follow-up to Chris’ post below – this started as a comment, but got too long, so I’m putting here as a general comment.  The question is one that many of us have asked from the outside, why the CIA in the conduct of drone operations?  And the implied broader questions, is it legal and anyway why is it a good policy idea, even if it is legal, for the CIA to be engaged directly in use of force operations?  The comment that follows is not attempting to defend a position; I’m just repeating in summary form what I’ve been told over the last few years by people here in Washington when I’ve asked these questions.  Take them for what they are worth; I’m not an insider to government and have no access to anything secret of any kind.  (Also, I would love to know Bobby Chesney’s answers to the same questions, as an side inquiry to his project examining the legal issues in the merger of Title 10 and Title 50 operations – even just an informal comment on this would be useful.)  It goes on for a while, so I’ll put it below the fold. Continue Reading…

    The Drone Wars

    by Chris Borgen

    David Cortright, the policy director of the Kroc Institute for International PeaceStudies at Notre Dame has posted an article to CNN.com looking at the prospect of the wide-spread proliferation of drone warfare. He begins:

    Drone technology is spreading rapidly. As many as 50 countries are developing or purchasing these systems, including China, Russia, India, Pakistan, and Iran.

    Even non-state actors are involved. Hezbollah reportedly has deployed an Iranian-designed drone. Iran is developing a new drone aircraft with a range of more than 600 miles. These systems are used mostly for surveillance, but it is not difficult to equip the aircraft with missiles and bombs…

    After discussing the risks of proliferation and the problem of mistaking a startegy of drone strikes for counterterrorism policy, he turns to the legal issues:

    Many important legal questions have been raised about drone strikes. The U.S. government arguably has legal authority to conduct military operations in Afghanistan, based on the original congressional authorization adopted after 9/11. It is questionable, however, whether this authority extends to Pakistan, a country that is supposedly an ally of the United States. Nor do we have legal authority to launch military strikes in Yemen, Somalia and other countries where the United States is not officially engaged in armed hostilities.

    Force may be used by soldiers against combatants in legally authorized armed conflicts, but this right does not extend to civilians. The U.S. covert counterterrorism drone campaign is managed and operated by the CIA, an agency notorious for its past policy failures and violations of the law. Those who are conducting these raids operate in secret beyond the restraints of military discipline and are not subject to the Uniform Code of Military Justice.

    Well, there are lost of issues that get blended in here. Most interesting, I think, is the CIA’s management of drone strikes. In just about anything the Agency does, the question of adequate legal oversight persists. Why use the CIA as opposed to one of the armed forces?  While I am more willing than Cortright to include drones as part of our counterterrorism/ warfighting tactics, that does not mean that the CIA should be be in charge as opposed to one of the armed services. Or am I missing something?

    Do Cyberattacks Fall Under the War Powers Act?

    by Julian Ku

    Just a quick note on the news reports about the internal Obama Administration legal debate over the use of cyberattacks in the Libya conflict. These reports seem to confirm Stewart Baker’s complaint that cyberwar capabilities are being shaped by legal concerns as much as, if not more than, policy goals.  Two small observations:

    1) Following David Fidler’s point here, how is the legality of cyberwar attacks a difficult issue in Libya, given that the Administration concluded that drone attacks are not “hostilities” within the meaning of the War Powers Act?  I find it far more likely that the debate internally was not over law, but policy. Is it wise to unveil US cyber attack capabilities in Libya? Would they even work?  At least, I hope this is what the real debate was about.

    2) More broadly, what is the deal with all this leaking of legal policy debates? I am curious who is doing the leaking, and whether this is part of a broader strategy of rolling out the Administration’s legal views on difficult issues via leaks?  Can we just have the full memos please?

    United States v. One White Crystal-Covered “Bad Tour” Glove

    by Roger Alford

    The United States has finally decided to seize Michael Jackson’s glove. Not that it has anything against Michael Jackson. The owner of the glove, however, is another matter. Teodorin Nguema Obiang, the son of Equatorial Guinea’s dictator, has a thing for Michael Jackson memorabilia. He also has a taste for other luxury items, such as Bentlys, Bugattis, Lamborghinis, Rolls Royces, and Ferraris, not to mention his $38 million Gulfstream Jet or his $30 million Malibu home overlooking famous Surfrider Beach. I drove by his house yesterday, and it’s not too shabby as far as Malibu homes go. (Check out a photo here).

    All of that is now in jeopardy because the United States government has set its sights on Obiang. It seems that after four years of investigation, the government filed a lis pendens action against Obiang’s property, giving notice that the forfeiture of such property is now at risk because of legal action against Obiang. The action is filed as “United States v. One White Crystal-Covered ‘Bad Tour’ Glove.”

    As Ken Silverstein reports,

    The U.S. Justice Department and the Immigration and Customs Enforcement (ICE) agency have been investigating Teodorin — Equatorial Guinea’s minister of agriculture and forestry and his father’s handpicked successor — on suspicion of laundering funds into the United States and alleged “extortion, theft of public funds, or other corrupt conduct” back at home, according to documents from the government’s probe.

    Obiang enjoys such luxuries because his family is squandering the natural resources of one of the richest countries in sub-Saharan Africa. As reported here, “With a nominal per capita GDP of $36,600, according to U.S. government data, Equatorial Guinea’s 650,000 people could be enjoying living standards comparable to people in France (per capita GDP of $33,100) or Germany ($35,700). Instead, many Equatoguineans lack access to clean water or modern sanitation.” The country is ranked well below the median on the Human Development Index, 118 out of 182 countries. It also is ranked extremely low on the poverty index, the gender disparity index, the life mortality index, among many other issues.

    When oil was discovered off the coast of Equatorial Guinea in 1992, there were high hopes that the country would become the Kuwait of Africa. Instead it has come to look like many other African kleptocracies.

    With the United States and several European countries tightening the noose around Obiang’s neck, he may personally be experiencing something akin to these Michael Jackson lyrics:

    The foulest stench is in the air; The funk of forty thousand years; And grizzly ghouls from every tomb; Are closing in to seal your doom. And though you fight to stay alive; Your body starts to shiver; For no mere mortal can resist; The evil of the thriller.

    Eyes on Spies

    by Kenneth Anderson

    Over the weekend, I read Amy B. Zegart’s new short book, Eyes on Spies, which deals with the persistent failures of Congress to engage in effective intelligence oversight.  (The book is in a Hoover Institution Press series that features short books — brisk and brief, readable in a single plane flight — focused on a single topic.)  I think the book is excellent and here is my review. A short bit: Continue Reading…

    Supreme Court Grants Cert. in Kiobel and Mohamad

    by Roger Alford

    Last week I wrote that the Supreme Court’s docket of international law cases was thin, thin, thin. Today the Court granted certiorari in two blockbuster cases, Kiobel v. Royal Dutch Petroleum/Shell and Mohamad v. Rajoub.

    The Question Presented in Kiobel is:

    “(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and
    (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide or may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.”

    The Question Presented in Mohamad is:

    “whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons.”

    The Court announced that the two cases are to be argued in tandem.

    John Bellinger and Donald “Trey” Childress have more on the grant of cert. in Kiobel and Mohamad here and here.

    A Reply to Ramsey III — The Rome Statute

    by Kevin Jon Heller

    In my previous post, I responded to Mike’s attempt to explain the amicus brief’s distortion of ICTY jurisprudence.  In this post, I want to respond to his similar attempt to explain the amicus brief’s distortion of the Rome Statute.  There are two basic issues: Article 10 of the Rome Statute’s relationship to customary international law, and the importance of Article 25(3)(d).

    Mike’s defense of the brief’s decision to simply ignore Article 10 is premised on the same mistaken understanding of Sosa that I criticized in my first post.  Once again Mike wrongly assumes that, in the ATS context, federal courts can only apply rules of customary international law that are universally accepted; as he says with regard to the purpose mens rea in Article 25(3)(c), “[t]he drafters’ failure to agree on a broader liability regime is extremely suggestive that the underlying customary principles are in fact not universally accepted, as Sosa requires.”  As I pointed out earlier, that standard is an invention of the amicus brief.  Sosa does not require a customary principle to be “universally accepted”; it simply requires a new principle to be no less clearly customary than the principles accepted as custom when the ATS statute was enacted.  And again, it is international law 101 that a principle must only have “widespread acceptance” to qualify as custom.

    Contrary to Mike’s claim, then, Article 10 is critically important to whether Article 25(3)(c)’s purpose mens rea calls into question the idea that knowledge is the customary mens rea of aiding and abetting — the position that has been uniformly adopted by the modern international tribunals, reflects the overwhelming majority of WW II-era cases (as traced by the ICTY in Furundzija), and enjoys near-universal scholarly acceptance.  The answer, contrary to what Mike argues, is no.  Article 10 means what it says: “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”  There is nothing ambiguous about that language — the drafters of the Rome Statute, recognizing the difficulty in achieving agreement on a complicated treaty in a limited period of time, wanted to ensure that provisions in the Statute narrower than custom would not be interpreted as evidence of the state of custom.  Yet that is precisely how Mike and the amicus brief interpret Article 25(3)(c).  No wonder, then, that the amicus brief is silent on Article 10!

    Mike’s defense of the amicus brief’s failure to even acknowledge the existence of Article 25(3)(d) is similarly problematic.  First, he argues that “two comprehensive expert commentaries on the Statute, by Kai Ambos and by Albin Esser [sic], expressly read Article 25(3)(c) to establish a ‘purpose’ mental state for aiding and abetting.”  Actually, all scholars read the Article that way.  But so what?  The issue is Article 25(3)(d).

    Second, Mike argues that “Article 25(3)(d) expressly does not apply to aiding-and-abetting claims, since aiding-and-abetting claims are covered by Article 25(3)(c), and Article 25(3)(d) applies for acts that ‘[i]n any other way’ contribute to the crime (that is, in ways other than those described in Article 25(3)(c)).”  This is the worst kind of formalism — as Jens Ohlin, no less an authority on modes of participation in ICL than Ambos and Eser, pointed out in the comments to Mike’s post, “if Article 25(3)(d)’s phrase ‘in any other way contributes’ (to the crime) does not cover aiding and abetting, then what does it cover?”  Perhaps Mike has an argument as to why a mode of participation that is functionally equivalent to aiding and abetting under customary international law should nevertheless  not be read as supporting the customary standard.  But he doesn’t offer any such argument in his response — and, again, the amicus brief simply pretends that Article 25(3)(d) doesn’t exist.

    Third, Mike argues that “Article 25(3)(c) seems to apply only to ‘a group of persons acting with a common purpose’, which, whatever it means, isn’t usually the case in corporate aiding-and-abetting cases.”  Really?  Is there even one ATS aiding-and-abetting case in which the defendants are accused of helping a lone individual commit an international crime?  More importantly, Nestle and its co-defendants are specifically accused of aiding “a group of persons acting with a common purpose”: namely, the numerous cocoa plantations in Cote d’Ivoire that use child slaves to grow and harvest their cocoa.  Here is paragraph 37 of the Complaint:

    Despite the well-documented use of child labor on cocoa farms in Cote d’Ivoire, Defendants not only purchased cocoa from farms and/or farmer cooperatives which they knew or should have known relied on forced child labor in the cultivating and harvesting of cocoa beans, but Defendants provided such farms with the logistical support to do so with little or no restrictions from the government of Cote d’Ivoire.

    Fourth, and finally, Mike argues that “the most Kevin can say is that ‘[t]he precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars’.  That hardly suggests an undisputed rule of the sort required by Sosa.”  As discussed above, that argument is based on a misinterpretation of Sosa.  Regardless, my point was not that Article 25(3)(d) supported the idea that knowledge is the customary mens rea of aiding and abetting.  I was simply pointing out that — Article 10 aside — Article 25(3)(c) does not undermine the knowledge standard, because Article 25(3)(d) adopts the same mens rea for aiding and abetting in the specific context of group crimes.

    At the end of his post, Mike claims that the Article 25(3)(d) argument was simply “too flimsy to mention” in the brief.  As we have seen, the only basis for that claim is that Article 25(3)(d) doesn’t use the expression “aiding and abetting.”  Which argument is the flimsy one?

    “Primeval Anarchy” … I Didn’t Write This

    by Kenneth Anderson

    Via The Multilateralist, a speech by Shiv Shankar Menon, a former Indian foreign minister and senior security official:

    “[W]hile domestic societies have evolved or are evolving towards rule of law, international society is still much closer to primeval anarchy…

    …[W]e seem to be entering a phase of increasing militarization of international relations. Look at recent developments in the Middle East, where conventional air power, covert and Special Forces, and internet social media have been used in new tactical combinations with old fashioned propaganda and international institutions to change regimes and create political outcomes…

    …We live in a time where international law remains underdeveloped, international governance is non-existent or weak, and international society is fundamentally anarchic. As a result the role of force in international relations has been magnified. But the age of weapons of mass destruction and newer technologies make it essential that we consider new ways of regulating the use of force in international relations.

    As David Bosco notes:

    The speech raises the question of how the major emerging powers perceive the existing global governance system. Menon, a former foreign minister, appears to view the current system as almost entirely ineffective, at least in terms of its core purpose of restraining violence. I don’t think many Western foreign-policy thinkers or senior government officials would share that grim view, although they would undoubtedly concede all sorts of problems and shortcomings.

    Well, count me among those who look at the rise of the new great powers and multipolarity and see less liberal internationalism, defined as the subordination of international power politics to global institutions and international law, and more nation-state competition.  It’s an exaggeration, but in the new-new world order, liberal internationalism is “stranded capital,” an explanation that continues a discourse within its own circles but explains the world of international security less and less. I don’t understand it, frankly; to my mind, there’s a weird complacency in international law scholarship about the inevitable path forward of global governance; of course I could just be wrong and it’s not weird because it’s true, but I would have thought that there was a need to grapple more directly with this kind of realism. Because in the most dynamic circles – the rising, jostling new powers – the discussion seems occasionally to take the liberal internationalist turn when strategically useful in conversation with the old powers, but in its actual implementation appears to be firmly rooted in hard realism.

    Bosco offers a couple of hypotheses for why the language of the emerging new powers in Asia is so hard-realist, rather than liberal internationalist. My own view is that liberal internationalism sheltered under American hegemony; as that is perceived in retreat, then self-protective realism reasserts itself.  It doesn’t matter especially in Europe, facing no territorial threats and in any case the final beneficiary of, the residual claimant upon, American hegemony via NATO.  But it matters in Asia, where the possibility of disastrous interstate war can never be discounted, and where the retreat, or even perceived retreat, of American authority and hegemony can have enormous and bad consequences.

    BU Law School’s “Ten Years In” Conference

    by Kenneth Anderson

    Congratulations to Professor Robert Sloane and BU Law School for a fine conference yesterday, “Ten Years In: Appraising the International Law of the ‘Long War’ in Afghanistan and Pakistan.” The conference was co-sponsored by the ASIL Lieber Society and the Naval War College. Update: Peter Margulies contributed a terrific summary of the panel sessions, posted here at Lawfare.

    The first panel addressed the future of COIN, and it included Professor Andrew Bacevich — not a lawyer, of course, and instead speaking as a well-known strategist, and lending an important interdisciplinary voice.  He offered a blistering critique of COIN (and pretty much every other strategic option as well, including counterterrorism via drones, I should add).  I was part of the second panel, on targeted killing and drones.  Michael Schmitt of the Naval War College offered a vigorous defense of drones as being essentially like any other weapon system, and on this occasion, at least, it was interesting to see how much agreement there was between him and Human Rights First’s Gabor Rona. Continue Reading…

    A Response to Ramsey II — The ICTY

    by Kevin Jon Heller

    There are numerous problems with Mike’s response to my posts (here and here) about how the amicus brief distorts the ICTY’s jurisprudence.  Before getting to them, though, it’s important to acknowledge that he and I agree about one thing: decisions of the ICTY are not primary sources of international law.  That, too, is international law 101.  Even here, though, the brief is problematic. The brief could have acknowledged that the ICTY has adopted knowledge as the customary mens rea of aiding and abetting but insisted that the tribunal’s analysis of customary international law was flawed.  I would have disagreed with that conclusion, but it would at least have been a reasonable one, given the difficulty that inheres in distilling customary modes of participation from the mass of (primarily) WW II-era jurisprudence and state practice.  But that is not what the brief did.  Instead, after correctly acknowledging the status of ICTY jurisprudence, it then proceeded to misrepresent the content of that jurisprudence regarding the mens rea of aiding and abetting.

    So, now let’s deal with the most important problems in Mike’s response.

    Kevin first complains that the brief “blatant[ly]” misstates the ICTY’s Vasiljevic decision.  It doesn’t.  The brief only says that Vasiljevic “requires that the aider and abettor’s act be ‘specifically directed to assist … the perpetration of a specific crime.’”  That is in fact exactly what Vasiljevic said (paragraph 102(i) of the tribunal’s opinion).  Vasiljevic did not explain how this requirement for the wrongful act related to the supposed “knowledge” standard for mental state (paragraph 102(ii)).  At least, though, it seems to create some “tension” (which is what the brief said it did).  Kevin thinks the quote from Vasiljevic (which he admits is accurate) isn’t relevant because it comes in the tribunal’s discussion of the required act, not its discussion of the required mental state.  But I don’t see why that matters – the quote seems to be talking about mental state respecting the act, regardless of where it appears, and (as Judge Katzmann said in Khulumani, see 504 F.3d at 278 n.15) it’s hard to reconcile with liability for knowledge.

    The problem with this response should be obvious: the amicus brief conveniently quotes only the sentence in Vasiljevic that, in its view, indicates the mens rea of aiding and abetting is intent. Here, in its entirety, is the paragraph from the amicus brief:

    Moreover, even the ICTY jurisprudence has not settled on a mens rea standard for accessorial liability. Although the Furundzija decision expressly adopts a “knowledge” standard, a subsequent decision, Vasiljevic, requires that the aider and abettor’s act be “specifically directed to assist … the perpetration of a specific crime.” See Khulumani, 504 F.3d at 278 n.15 (Katzmann, J., concurring) (noting this tension).

    Nothing in this paragraph acknowledges, or even implies, that the Appeals Chamber also said in the very next paragraph of its judgment that “[i]n the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal.”  At a minimum, a fair summation of Vasiljevic would have included both quotes — not simply the one that ostensibly supports the amicus brief’s position. A reader of the brief who is not expert in ICL will have no idea whatsoever that the Appeals Chamber specifically held that the mens rea of aiding and abetting was knowledge, not intent.

    Notice also that the “tension” Mike identifies regarding Vasiljevic is not the tension identified by the amicus brief…

    The Carbon Tax: A Victory for Future Generations?

    by Rishi Gulati

    [Rishi Gulati lectures on Public International Law at the University of New South Wales in Australia.]

    At 9.24am on 12 October 2011, surrounded by chants of “democracy is dead”, a suite of 19 bills (the Clean Energy Bills or the Carbon Tax Bills) were passed in the Lower House of the Australian Parliament. It must be borne in mind that those 19 bills won’t become law until and unless the Senate gives them the tick of approval. Given that the Greens hold the balance of power in the Senate, it can be assumed that the Senate will not be an obstacle for those laws to pass. So, unless there is a change in Government, by July 2012, Australia will have a Carbon Tax. The Australian Minister for Climate Change and Energy Efficiency, Greg Combet said that the Carbon Tax represents “one of the most important environmental and economic reforms in this nation’s history.” Following the passage of the Bills, the Prime Minister said “Today this House of Representatives moved from words to deeds. It has moved from what has sometimes been a rancorous debate to action. This House of Representatives today, this parliament today, has seized the future.”

    The central facet of the CTBs involves the introduction of a carbon price to the Australian economy. Pursuant to the scheme, the largest polluters will be required to purchase carbon units for each ton of carbon pollution emitted by them if it falls within the scope of the scheme. Consequently, it is expected that there will exist a potent incentive to cut carbon pollution. Fundamentally, there is a simple rationale as to why the Carbon Tax is likely to lead to a cleaner future. In the words of Prentice MP, who opposed the measures, “taxes affect prices, and prices change behavior”.

    Some climate skeptics effectively say that there is nothing wrong with our behavior as humans have not caused an increase in temperatures. That is most certainly an untenable position. Let’s just be reasonable and listen to people who have comprehensively considered these issues. In 1987, the Brundtland Commission said that due to the manner in which humans have unashamedly, without regard for the interests of future generations exploited the environment, the relationship between the human world and the planet that sustains it has undergone a profound transformation. It was said that at the start of the twentieth century, “neither human numbers nor technology had the power radically to alter planetary systems.” However, due to our modern practices, “not only do vastly increased human numbers and their activities have that power, but major, unintended changes are occurring in the atmosphere, in soils, in waters, among plants and animals, and in the relationships among all of these”. Undoubtedly, we have poisoned the Earth. Unless we dramatically change our patterns of behaviour, future generations will bear the brunt of our present day actions.

    It is our undeniable moral duty to safe-guard the interests of children and future generations. They cannot speak for themselves, and thus the present generations act as agents as well as trustees for them. We therefore have an equitable duty to preserve the resources of the Planet for the generations that are yet to follow. According to the OECD, the concept of “Intergenerational equity refers to fairness in the intertemporal distribution of the endowment with natural assets or of the rights to their exploitation.” The concept can be traced back to the Brundtland Commission’s view that the current generation may not consume so many resources and cause such damage to the environment that “the ability of future generations to meet their own needs’ is compromised”. The international instruments where such a duty is imposed are too numerous to mention. However one prominent example is The Rio Declaration on the Environment and Development of 1992 that says that the right to development “must be fulfilled so as to equitably meet development and environmental needs of present and future generations.”

    It is that duty that we owe towards future generations that has given the proponents of the Carbon Tax a potent moral basis to argue for it. Peter Garret said “This policy is not about short-term political point scoring or an election; it is about acting for future generations. If we fail to dare, if we do not try, the next generation will harvest the fruit of our indifference; a world we did not want—a world we did not choose—but a world we could have made better”. In the same vein, the Treasurer, Wayne Swan said: “Are we going to face up to the climate science and do something about carbon pollution? Are we going to face up to the fact that we should not leave for our children and our grandchildren greater costs and the heavy burden of carbon pollution? And are we going to show the Australian people and subsequent generations that we have the guts to face up to the tough economic reforms that will deliver prosperity for future generations?”

    The opponents of the Carbon Tax amongst other things, also refer to the interests of the future generations in making their cases. For example, Mr Truss, the Leader of The Nationals said that “This is a tax that will hurt this country and this day will be a day of infamy in the minds of future generations of Australians.” It was said that “it will only take one month of Australia’s carbon tax to collect more money than the Americans have collected from their carbon taxation since it began several years ago…we are implementing the world’s harshest carbon tax. The Europeans are currently collecting, from their 30- country scheme referred to by the Assistant Treasurer, about $1 per person per year from the people of Europe. Our tax collects $400 per person per year right at the outset. This is a haunting prospect for Australian families…The Gillard government intends to consign future generations of Australians to massive cost hikes in perpetuity.”

    The opponents of the Carbon Tax seem to focus more on the economics as opposed to environmental factors. Without passing any comment on the economic advantages or disadvantages of the Carbon Tax per se, if there is no environment there will be no economy. So, if there ever was a hierarchy of priorities, a cost to us today is worth paying because we must do everything in our power to provide the best possible chances for our children to thrive.

    On another view, not only we possess a duty to act in the best interest of future generations, the future generations actually possess enforceable legal rights. No one can deny that at the least,
    future generations possess a moral claim to live and exist. The claim to exist and live as the most fundamental natural law based claim, and the claims of future generations to inherit an environment fit for human survival can arguably be classified as a legal right that finds its basis in natural law. There is a precise content to that legal right. Scholars such as Anthony D’Amato have argued that future generations have the right to inherit an environment no worse than the one we enjoy. Professor Weiss has said that future generations do have the right to be assured that we will not pollute ground water, extinguish habitats and species or change the world’s climate dramatically unless there are extremely compelling reasons to do so, being reasons that go beyond mere profitability.

    In the large scheme of things, if you were not born yet, you did not have a voice, and you were relying on the living generations to ensure that your legal right to live in dignity when you arrive on Earth is not breached, then would you be happy that the Carbon Tax is about to become law? There is only one answer to that question. And that is Yes. It is common sense that if carbon based material becomes expensive, then there will be more incentive to produce cleaner energy. It is however too early to determine the extent to which the Carbon Tax is going to be a success. But it is a start, and it gives hope, and that hope is based upon a logical interpretation of how taxes can change behaviour, a behaviour that we must change, and change now.

    China’s Security Council Diplomacy

    by Kenneth Anderson

    David Bosco, my American University colleague and author of the always interesting The Multilateralist blog at Foreign Policy, has posted an interview between him and Joel Wuthnow (Princeton’s China and the World Program) on China’s diplomacy at the UN Security Council.  Among many interesting exchanges, this comment on China’s overall role in the world:

    The mainstream thinking in Beijing is that China should avoid the costs of global leadership while focusing on economic development and national consolidation. Those who favor a more affirmative, multilateralist diplomacy appear to be a distinct minority within the PRC.

    On the meaning of the China-Russia veto of the Syria UNSC resolution that dismayed the US and European allies:

    Bosco: The recent Chinese and Russian veto of a draft resolution on Syria has generated anger from Western governments and from the human rights community. It seems to confirm the perception that China is wedded to a vision of national sovereignty very much at odds with that of the West and that may prevent the Security Council from effectively addressing bloody internal conflicts. How do you see the veto in the context of China’s broader performance on the Council?

    Wuthnow: I don’t think China’s veto says much about the importance of sovereignty in Beijing’s decision-making at the UN. I also doubt that China’s approval of sanctions against Libya — and its acquiescence to the use of force — earlier this year is evidence of a shift in favor of interventionism. Both cases follow a similar logic, which is political, not normative. On Libya, China followed broad regional opinion in favor of coercion. On Syria, it followed the backlash against intense intervention in the Middle East that occurred after the NATO campaign against Qaddafi. In neither case did it take the lead. Rather, it gauged the political winds and acted accordingly.

     

    Is Torture Always Wrong?

    by Roger Alford

    Jeremy Waldron continues to do incredibly interesting philosophical work on questions surrounding torture. He recently posted a short, accessible piece on moral absolutes that is a joy to read. What I love about the piece is that he embraces the absolute prohibition against torture, but then is brutally honest about how hard it is to defend that position. “The real difficulty with moral absolutes … is not the difficulty of imagining the commandment. It is the difficulty of making sense of our sticking with the commandment even when so much of value is stacked on the other side.” He offers Jeremy Bentham as the author of the supreme ticking time bomb hypothetical:

    “What Bentham does is wait until the absolutist has given his best and most horrifying characterization of the evil tat he has set himself absolutely against, and then Bentham takes that very description and puts it in the scales on the other side. Torture is forbidden because it is so brutal; but what about instances where it is necessary in order to prevent a hundred cases of exactly such awful brutality? Violation is awful, but what about cases where violation is necessary in order to prevent a large number of exactly such violations?”

    In other words, if torture is so bad, then should we commit one act of torture to prevent a hundred, or a thousand, or a million acts of exactly that same torture? Moral absolutists, Waldron argues, must “explain how those who take seriously the alleged prohibition are to be relieved of the burden of responding to the cases on the other side, cases that seem to involve exactly the same concerns as those that motivate the absolutism.” If we want to get all fanatical about torture, then what should we do when the scales tip so strongly toward torturing to prevent more torture? That is the ultimate challenge for moral absolutists.

    He then presents five possible responses to this ultimate ticking time bomb scenario, all of them tentative and inconclusive at best:

    (i) “You Leave it to God” –We have been commanded not to do this, whatever the consequences and one should let God or whoever the commander is take care of the consequences;

    (ii) “Other people’s responsibility”–Responsibility for the consequences that tempt us away from the moral absolute is properly assigned to those who set up the situation;

    (iii) “Tainted goods”–A violation of the absolute rule against torture means that the goods we secure thereby are objectively tainted on account of the immoral methods used to achieve them;

    (iv) “Rules of the game”–We insulate the rules from goal-based considerations and thereby treat the rules of the game as absolutes;

    (v) “Threshold deontology”–Certain moral rules are near absolute but one may abandon them when the consequences piling up on the other side pass a certain threshold.

    Good stuff. It’s a nice short piece that complements his other work on torture, that is worthy of serious deliberation. He admits there are no easy answers to these questions, but I’m thankful we have folks like Waldron analyzing them.

    A Fair-Minded Non-American Legal Analysis of the Bin Laden Killing

    by Julian Ku

    I want to draw readers attention (if they haven’t already seen it) to this excellent discussion of the international legality of the Bin Laden killing by Alon Margalit over at EJIL Talk!.  It is particularly instructive for Americans to get a better sense of the non-US views on the Bin Laden killing. It notes that the nearly uniform State support for the Bin Laden killing might constitute state practice in favor of its international legality. In any event, read the whole thing.

    Has Amnesty International Jumped the Shark?

    by Julian Ku

    Perhaps.  At least they are getting their waterskis on.  According to Politico, Amnesty International has filed a 1,000 page memorandum demanding that Canadian authorities arrest or extradite former U.S. President George W. Bush.

    “Canada is required by its international obligations to arrest and prosecute former President Bush given his responsibility for crimes under international law including torture,” Susan Lee, Americas Director at Amnesty International, said in a statement.

    Let’s just say that the Canadian government is not likely to act on Amnesty’s advice.

    “I cannot comment on individual cases… that said, Amnesty International cherry picks cases to publicize based on ideology. This kind of stunt helps explain why so many respected human rights advocates have abandoned Amnesty International,” Canadian Minister of Citizenship and Immigration Jason Kenney told POLITICO, noting that Amnesty International had never sought a court order to bar Cuban dictator Fidel Castro or Tongolese dicator Gnassingbé Eyadema from Canada.

    “Perhaps this helps to explain why Salman Rushdie has said that ‘it looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy,’ and why Christopher Hitchens has written about the organization’s ‘degeneration and politicization,’” Kenney added.

    I don’t doubt Amnesty International has sincere views on this question. But let’s be honest. This is 90% a publicity stunt that neither advances the development of international law, or human rights, because there is zero chance that Bush will be detained anywhere (much less in Canada).  In fact, the likely rejection of AI’s view on this by more and more states will undermine AI’s goals in the long run.

    In any event, I somehow doubt that in the spring of 2013, Amnesty will await (hopefully) then-former President Obama with a similar memorandum (following the legal opinions of folks like Mary Ellen O’Connell that Obama has committed violations of the laws of war) over his authorization of drone attacks outside the battlefield.

    Should the U.S. Offer Condolences for Drone Attacks?

    by Julian Ku

    Interesting story out of Charlotte, N.C. about the family of Samir Khan, one of the U.S. citizens killed in the drone attack on Awlaki last week. (h/t Michael Rubin)

    An official from the U.S. State Department has called the Charlotte family of al-Qaida propagandist Samir Khan to offer the government’s condolences on his death in a U.S. drone attack last week in Yemen, according to a family spokesman.

    “They were very apologetic (for not calling the family sooner) and offered condolences,” Jibril Hough said about the Thursday call from the State Department to Khan’s father, Zafar.

    The phone call came a day after the family released a statement through Hough that condemned the “assassination” of their 25-year-old son – a U.S. citizen – and said they were “appalled” that they had not heard from the U.S. government to discuss their son’s remains or answer questions about why Khan was not afforded due process.

    On Friday, State Department spokesman Harry Edwards confirmed to the Observer that the call had been made, but said “privacy issues” kept him from offering details.

    Hough said the Thursday conversation lasted a few minutes.

    “It wasn’t just ‘I’m sorry’ and hang-up,” said Hough, who added that the phone call included no discussion of the status or condition of Khan’s remains.

    Khan was not the intended target, so I suppose his death was simply the collateral damage to the attack. Still, Khan was not exactly friendly toward the U.S. government (he said he was “proud to call himself a traitor”) and was assumed to be involved in Awlaki’s strategizing.  I suppose offering condolences is not apologizing, but it is awkward nonetheless. It suggests a some ambivalence about the whole project.

    A Response to Ramsey I

    by Kevin Jon Heller

    I appreciate Mike taking the time to respond. I’ll address his various criticisms in separate posts; here I want to focus on the amicus brief’s claim (p. 14) that Sosa requires a norm applies in ATS litigation only if it has “undisputed international acceptance,” a standard that is satisfied only if (p. 7) “the defendant’s alleged conduct [is] universally recognized as a violation of international law.”

    Fortunately for ATS litigation, the “undisputed” standard is an invention of the amicus brief.  The word “undisputed” does not appear in Sosa with reference to international law.  Nor does the expression “universal recognition.”  Instead, the Court simply refers (again and again) to “the law of nations” and to “binding customary rules” and “binding customary norms.”  Indeed, the majority opinion ends with the conclusion that “[w]hatever may be said for [Sosa’s] broad principle, it expresses an aspiration exceeding any binding customary rule with the specificity this Court requires.”

    If a norm had to be universally recognized in order to qualify as a “binding customary rule,” the brief’s “undisputed” standard would make sense.  But it is international law 101 that a norm does not have to be universally recognized in order to be considered customary; indeed, according the the ICJ, “widespread acceptance” is all that is required.  More importantly, the Supreme Court did not hold in Sosa that a norm has to be “undisputed” or “universally recognized” in order to qualify as a “binding customary rule,” as the following passage indicates:

    [T]he reasonable inference from history and practice is that the ATS was intended to have practical effect the moment it became law, on the understanding that the common law would provide a cause of action for the modest number of international law violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, and piracy. Sosa’s objections to this view are unpersuasive.

    (b) While it is correct to assume that the First Congress understood that district courts would recognize private causes of action for certain torts in violation of the law of nations and that no development of law in the last two centuries has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering such a new cause of action. In deriving a standard for assessing Alvarez’s particular claim, it suffices to look to the historical antecedents, which persuade this Court that federal courts should not recognize claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the 18th-century paradigms familiar when §1350 was enacted.

    The Court does not claim here that a norm has to be universally recognized in order to qualify as customary international law — and indeed, there was certainly not universal recognition in the 18th century of the idea that “offenses against ambassadors, violation of safe conducts, and piracy” carried “personal liability.”  Instead, the Court is simply arguing that U.S. courts should recognize a new norm as customary international law only if its customary status today is no less clear than the customary status of norms in the 18th century such as piracy.  That is what it means by ruling out the recognition of norms with “less definite… acceptance” than 18th century norms.

    That is also the true meaning of the Court’s comment in Sosa that it could not “seek out and define new and debatable violations of the law of nations.”  The brief seizes on the word “debatable” and transforms it into a test of “the law of nations” that requires the norm in question to be universally recognized by courts.  Properly understood, however, “debatable” refers to the clarity of the idea that a norm represents customary international law; it does not refer to the requirements of customary international law itself.

    That distinction is obviously critical.  My argument, uncontroversial among international criminal law scholars, is that there is no doubt whatsoever that knowledge is the customary mens rea of aiding and abetting.  I am certainly not claiming that each and every international and domestic court in history has adopted the knowledge standard.  (For example, Hechingen Deportation, decided by a German court in the French zone applying Control Council Law No. 10, did indeed adopt the purpose test.)  Under Sosa, however, the former, not the latter, is the critical question for purposes of ATS litigation.

    In the next two posts, I will address Ramsey’s attempts to salvage the amicus brief’s misstatements concerning the Rome Statute and ICTY jurisprudence.

    A Response to Kevin Heller (Part 2)

    by Michael Ramsey

    In a prior post, I responded to some of Kevin Heller’s criticism of the professors’ amicus brief recently filed in the Nestle ATS case.  Specifically, that post addressed issues arising from the Rome Statute of the International Criminal Court.  Here I’ll take up Kevin’s criticism based on rulings of the International Criminal Tribunal for the former Yugoslavia (ICTY).

    To frame the argument, it’s important to emphasize that, as Julian Ku noted earlier, the brief does not see the ICTY as a primary source of customary international law.  Customary international law arises from the practice of states.  The ICTY was created to address specific issues arising from a specific conflict.  It has done its best to apply unclear law to extraordinary facts with little precedent to guide it, and in general it should be commended.  But it was not empowered to create, and should not be understood as creating, a criminal code for the entire world, especially for circumstances far removed from those the tribunal faced.

    Beyond that broad contention, the brief identifies various reasons why the ICTY decisions do not, as to the mental state required for aiding and abetting, establish a universal undisputed international law rule for ATS purposes (that being the standard set by Sosa, as explained in my prior post) — let alone one that can be translated uncritically from the ICTY context to the very different context of claims that engaging in commercial transactions with human rights violators amounts to aiding and abetting the violations.  Kevin objects to a couple of these arguments, but I don’t find his objections well-founded.

    Kevin first complains that the brief “blatant[ly]” misstates the ICTY’s Vasiljevic decision.  It doesn’t.  The brief only says that Vasiljevic “requires that the aider and abettor’s act be ‘specifically directed to assist … the perpetration of a specific crime.’”  That is in fact exactly what Vasiljevic said (paragraph 102(i) of the tribunal’s opinion).  Vasiljevic did not explain how this requirement for the wrongful act related to the supposed “knowledge” standard for mental state (paragraph 102(ii)).  At least, though, it seems to create some “tension” (which is what the brief said it did).  Kevin thinks the quote from Vasiljevic (which he admits is accurate) isn’t relevant because it comes in the tribunal’s discussion of the required act, not its discussion of the required mental state.  But I don’t see why that matters – the quote seems to be talking about mental state respecting the act, regardless of where it appears, and (as Judge Katzmann said in Khulumani, see 504 F.3d at 278 n.15) it’s hard to reconcile with liability for knowledge.

    I frankly have no idea what the Vasiljevic opinion was trying to say with these apparently inconsistent statements.  But that’s precisely the point.  Under Sosa, ATS claims require a showing of undisputed international law.  Even if Vasiljevic is probative generally, I don’t see how to get a clear rule out of it on the question of mental state.  That’s what Judge Katzmann said in Khulumani, and it’s all the brief claims for Vasiljevic.

    Kevin’s second objection is that the brief misstates the ICTY cases in general as not being about aiding and abetting.  Here I think Kevin simply misreads the brief.  The passage to which he objects is this:  “Further, it may be questioned whether the mens rea discussion in these opinions was necessary to their holdings. Liability in those cases likely could have been premised on co-participation in a joint criminal enterprise (such as a rogue paramilitary unit), which is a distinct category of criminal liability as a principal, not simply an accessory.”  Kevin then proceeds to argue that the tribunal decisions describe themselves as rejecting a co-participation theory in favor of applying aiding-and-abetting liability.  He’s right – they do.  But that’s not the brief’s point.  The brief’s point is that, given the facts (the defendants were members of rogue paramilitary groups that committed multiple abuses) and the thinness of prior precedent, the cases could have been decided under some form of joint criminal enterprise liability.  The ICTY opinions at times talk of aiding-and-abetting liability in more general terms, but it’s not clear whether the ICTY was (or should have been) thinking beyond rogue paramilitaries, and even less clear that states universally would accept general application of all of the ICTY’s paramilitary jurisprudence to other contexts.  That’s not an argument about what the ICTY said; it’s an argument (among many) for not applying the ICTY cases to very distinct factual circumstances, including ones where there’s no joint criminal enterprise.

    Again, this isn’t a novel argument – it was made, among other places, very persuasively by Judge Korman in the Khulumani litigation.  And it’s fundamentally not about what the ICTY rule is, but whether one can say that it’s undisputed how the ICTY rule for rogue paramilitaries would apply to very distinct situations such as (in Nestle) attempts to hold a purchaser of a product liable for violations of rights by the product’s producer.

    Thus while I appreciate Kevin’s comments, I think it is important to take a step back and consider what is actually being argued in the brief and how those arguments are shaped by the particular context of the ATS.

    A Response to Kevin Heller on Doe v. Nestle

    by Michael Ramsey

    Thanks to Kevin Heller for his thoughts on the professors’ amicus brief in Doe v. Nestle USA, Inc., and to Opinio Juris for affording me this opportunity to respond.  I should say at the outset that I’m making this response only in my personal capacity, not on behalf of any litigant or amicus. 

    While I appreciate the passion Kevin brings to his analysis, I think he lets it carry him a bit beyond the context in which these arguments are being made.

    To begin, it’s important to appreciate (as I’m not sure Kevin entirely does) that this debate arises in the unique context of the Alien Tort Statute (ATS).  So the question is not purely whether there is, or could be, or might be, a rule of international law.  The question is whether there is a rule of international law that meets the high standards set by the U.S. Supreme Court in Sosa v. Alvarez-Machain.  In that case the Court held that the ATS permits a cause of action only for a very limited class of well-defined and undisputed violations of international law.  So the question here is whether the international law underlying the claim against Nestle is undisputed and not (in Sosa‘s language) “new and debatable.”

    That point is crucial in thinking about the role of the Rome Statute of the International Criminal Court.  It’s true, as Kevin says, that the Rome Statute doesn’t create customary international law, and the brief doesn’t argue otherwise.  But that’s not the question.  The question is whether there is undisputed customary international law on the purported “mere knowledge” mental state for aiding and abetting liability.  Thus it’s highly relevant that when the Rome Statute’s drafters addressed this exact issue, in the context of codifying customary principles, they were unable to reach agreement.  As a result, the Statute adopted a higher “purpose” mental state for aiding and abetting.  The drafters’ failure to agree on a broader liability regime is extremely suggestive that the underlying customary principles are in fact not universally accepted, as Sosa requires.  This is the core point made by the Second and Fourth Circuits in the Talisman and Aziz cases, and in Judge Katzmann’s scholarly concurrence in Khulumani.  I think Kevin’s longstanding objection to this argument may stem from simply not appreciating how it fits into the structure of Sosa and the ATS.

    Kevin further objects that this argument violates Article 10 of the Rome Statute.  It doesn’t.  Article 10 says that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”  The brief’s argument is not that the Rome Statute cuts back on existing international law or that it prevents future development (which is the target of Article 10).  Rather, the argument is that the Rome Statute is evidence that there is no settled international law on the point in question (or, at minimum, that the relevant international law isn’t undisputed).

    Finally, Kevin claims that Article 25(3)(d) of the Rome Statute could be read to impose a “mere knowledge” mental state, even though Article 25(3)(c) seems clearly to require a “purpose” mental state.  Maybe it could.  But first, as the brief points out, two comprehensive expert commentaries on the Statute, by Kai Ambos and by Albin Esser, expressly read Article 25(3)(c) to establish a “purpose” mental state for aiding and abetting.  Second, Article 25(3)(d) expressly does not apply to aiding-and-abetting claims, since aiding-and-abetting claims are covered by Article 25(3)(c), and Article 25(3)(d) applies for acts that “[i]n any other way” contribute to the crime (that is, in ways other than those described in Article 25(3)(c)).  Third, Article 25(3)(c) seems to apply only to “a group of persons acting with a common purpose,” which, whatever it means, isn’t usually the case in corporate aiding-and-abetting cases.  And finally, the most Kevin can say is that “[t]he precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars.”  That hardly suggests an undisputed rule of the sort required by Sosa.

    (As an aside, Kevin seems especially upset that the brief did not address the Article 25(3)(d) argument.  Kevin must realize, of course, that these briefs cover a wide range of complex issues under a very tight word limit.  It simply isn’t feasible to reject every possible counter argument, and the Article 25(3)(d) argument seems just too flimsy to make it worthwhile.  The brief made very clear that weighty commentary endorsed its view of the Statute.)

    This addresses Kevin’s objections to the brief’s treatment of the Rome Statute.  In a subsequent post, I’ll address his ICTY objections.  Again, thanks to Opinio Juris for encouraging this discussion.

    John Yoo Gives Partial Endorsement for Awlaki Memo

    by Julian Ku

    John Yoo, not surprisingly, has some thoughts on the leaked secret memo on Awlaki.(sorry forgot to link his full post earlier).

    Let’s give partial credit where it is due.  Apparently the Obama administration argues that al-Awlaki was a legitimate target because he is a member of an enemy engaged in hostile conduct against the United States.  At least Obama has figured out that the war on terrorism is in fact a war, and that it is not limited just to Afghanistan.  We should be thankful that Obama officials have quietly put aside the arguments they made during the Bush years that any terrorist outside the Afghani battlefield was a criminal suspect who deserved his day in federal court.  By my lights, I would rather the Obama folks be hypocrites in favor of protecting the national security than principled fools (which they are free to be in the faculty lounges both before and after their time in government).

    But the administration’s former worldview of terrorism still infects their decisions, to the country’s detriment.  According to the reports, the Obama administration believes that force could only be used against al-Awlaki because arrest was impractical and al-Awlaki posed an imminent threat of harm to the United States.  This is plainly wrong.  It may make for good policy, especially toward American citizens who make the mistake of joining the enemy, but there is no legal reason why a nation at war must try to apprehend an enemy instead of shooting at him first.  Every member of the enemy armed forces and leadership is a legitimate target in wartime, regardless of whether they can be caught or whether they pose an imminent threat.  In fact, the Obama administration continues to confuse war with crime — the idea that you must try to arrest first and can only use force against an imminent attack is the standard that applies to the police, not the military.

    UCLA Law Forum on the ICC – Prevention Discussion Topic

    by Kenneth Anderson

    UCLA Law School’s Sanela Daniela Jenkins Human Rights Project has a special joint online forum with the ICC office of the prosecutor, which is currently running commentary on the question of prevention, and how the ICC can maximize its crime prevention impact.  It features contributions from a variety of experts from a variety of perspectives – Tomer Broude, Bill Burke-White, Richard Goldstone, David Scheffer, and me.  The initiative is run by UCLA professor Richard Steinberg.

    The forum can be found here. Readers are invited to post comments, and forum contributors are also invited to respond and undertake a discussion.  The contributions on this crucial question are relatively short, readable essays, and should be of interest to the general public, students at the undergraduate and graduate level, journalists, public policy specialists and others.  Congratulations to Professor Steinberg for pulling it together, and I am certainly honored to take part.

    How Lawyers are Ruining US CyberWar Defenses

    by Julian Ku

    Stewart Baker, former assistant secretary of Homeland Security during the Bush Administration, has this very powerful and clear explanation of how legal rules are weakening U.S. defenses against a cyber attack. Note the slam on using international law rules to regulate cyber war. (h/t Vincent Vitowsky).

    Across the federal government, lawyers are tying themselves in knots of legalese. Military lawyers are trying to articulate when a cyberattack can be classed as an armed attack that permits the use of force in response. State Department and National Security Council lawyers are implementing an international cyberwar strategy that relies on international law “norms” to restrict cyberwar. CIA lawyers are invoking the strict laws that govern covert action to prevent the Pentagon from launching cyberattacks.

    Justice Department lawyers are apparently questioning whether the military violates the law of war if it does what every cybercriminal has learned to do — cover its tracks by routing attacks through computers located in other countries. And the Air Force recently surrendered to its own lawyers, allowing them to order that all cyberweapons be reviewed for “legality under [the law of armed conflict], domestic law and international law” before cyberwar capabilities are even acquired.

    The result is predictable, and depressing. Top Defense Department officials recently adopted a cyberwar strategy that simply omitted any plan for conducting offensive operations, even as Marine Gen. James Cartwright, then vice chairman of the Joint Chiefs of Staff, complained publicly that a strategy dominated by defense would fail: “If it’s OK to attack me and I’m not going to do anything other than improve my defenses every time you attack me, it’s very difficult to come up with a deterrent strategy.”

    Revisiting the Peace-Justice Debate in northern Uganda

    by Mark Kersten

    I just want to briefly take the opportunity to thank everyone at Opinio Juris, especially Kevin, for giving me the chance to post here over the past two weeks. It’s been a huge honour to be part of OJ and a joy to read everyone’s comments. Thank you!

    Revisiting the Peace-Justice Debate in northern Uganda

    Perhaps no nation has witnessed so impassioned a debate on the relationship between peace and international criminal justice as Uganda. Northern Uganda, a case many believed the Court could “cut its teeth” on, sparked a fierce discussion, popularly referred to as the “peace versus justice debate”. This debate not only animated domestic politics but also the international discourse grappling with the effects of pursuing international criminal justice on the establishment of peace.

    The debate on the relationship between peace and justice largely remains harshly dichotomous and black-and-white. Either international criminal justice fundamentally disrupts the potential for creating peace or it is an absolute necessity for it. The attempted middle-ground which calls the peace-justice dichotomy “false” rarely offers any explanation as to why it’s false. Northern Uganda may be our best opportunity to move beyond the rigidity of the peace versus justice debate. This post is an attempt to explain why this is the case by making two broad arguments: first, that the effects of the ICC on narratives regarding the dynamics and causes of conflict has profound implications on attitudes towards the relationship between peace and justice; and second, that the effects of the ICC on pre-negotiation dynamics as well as on negotiations themselves are distinct and should be analyzed as such. Continue Reading…

    What Kind of Drones Arms Race Is Coming?

    by Kenneth Anderson

    New York Times national security correspondent Scott Shane has an opinion piece in today’s Sunday Times predicting an “arms race” in military drones. The methodology essentially looks at the US as the leader, followed by Israel — countries that have built, deployed and used drones in both surveillance and as weapons platforms. It then looks at the list of other countries that are following fast in US footsteps to both build and deploy, as well as purchase or sell the technology — noting, correctly, that the list is a long one, starting with China. The predicament is put this way:

    Eventually, the United States will face a military adversary or terrorist group armed with drones, military analysts say. But what the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat.

    “Is this the world we want to live in?” asks Micah Zenko, a fellow at the Council on Foreign Relations. “Because we’re creating it.”

    By asserting that “we’re” creating it, this is a claim that there is an arms race among states over military drones, and that it is a consequence of the US creating the technology and deploying it — and then, beyond the technology, changing the normative legal and moral rules in the international community about using it across borders. In effect, the combination of those two, technological and normative, forces other countries in strategic competition with the US to follow suit.

    It sounds like it must be true. But is it? There are a number of reasons to doubt that moves by other countries are an arms race in the sense that the US “created” it or could have stopped it, or that something different would have happened had the US not pursued the technology or not used it in the ways it has against non-state terrorist actors. Here are a couple of quick reasons why I don’t find this thesis very persuasive, and what I think the real “arms race” surrounding drones will be. Continue Reading…

    “You win. You lose. Let’s have lunch.”

    by Kenneth Anderson

    So concludes Philip Bobbitt, in an email comment to Ben Wittes, responding to his post on the question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane.  Philip is criticizing the policy, as I put it earlier, of conducting “foreign policy-by-leak.”  I won’t quote more of the comment here, but commend the whole thing to you at Lawfare.

    Memo to DOD: State Practice in NATO Conduct of Libya Operations?

    by Kenneth Anderson

    Secretary of Defense Leon Panetta delivered a speech Friday at a NATO air base in Italy in which he praised NATO operations in Libya, reports the Wall Street Journal; Panetta delivered his remarks standing in front of a US surveillance drone.  I myself am relatively agnostic on the Libyan conflict as such.  However, something I should very much like to see is a detailed report on the state practice evinced by NATO forces in the conduct of hostilities in Libya.  My concern is not that there have been war crimes or illegal conduct by NATO; I have not heard credible reports of this.  It is, rather, that some of what appeared to be routine targeting decisions by NATO forces in Libya — what to target, under what circumstances, at what risk of civilian harm, use of precision weaponry, etc. — might have been criticized if carried out by the US in Afghanistan.

    It seems to me useful for NATO, or at least the US, to take the opportunity to set out exactly what NATO forces in Libya regarded as lawful in targeting, in risks of targeting, in decisions regarding proportionality, knowns and unknowns, for the various NATO forces with their varying precision capabilities.  It is not to make claims of illegality. On the contrary, it is to set out the markers of what NATO’s militaries regard as lawful targeting decisions, as demonstrated through state practice.  It seems to me that the US has a great interest in making a public record of the kinds of things that NATO thought lawful to target.

    For that matter, too, it would be useful to make clear the extent to which NATO countries taking part in these hostilities from the air regard the actions by the rebels on the ground — for example, besieging, under aerial attack by NATO forces, the hold-out zones including their trapped civilians — that are made possible by NATO air support, as being the responsibility of NATO forces.  The rebels are NATO’s allied forces; the rebels have been charged by some observers with violations of the laws of war; if those allegations were true, to what extent does NATO regard itself as having responsibilities to control and sanction the acts of its allied ground forces?  And if not, should that not be regarded as state practice in regards to the practicalities of state responsibilities for allied forces’ actions?

    The Doe v. Nestle Amicus Brief’s Most Blatant Misstatement of All

    by Kevin Jon Heller

    The brief says this with regard to the mens rea of aiding and abetting (knowledge) in Furundzija and Vasiljevic (pp. 10-11):

    Further, it may be questioned whether the mens rea discussion in these opinions was necessary to their holdings. Liability in those cases likely could have been premised on co-participation in a joint criminal enterprise (such as a rogue paramilitary unit), which is a distinct category of criminal liability as a principal, not simply an accessory.

    No, it cannot be questioned — the authors of the brief obviously did not bother to read the judgments in question.  Here is the Trial Chamber in Furundzija (affirmed on appeal; emphasis mine):

    274.    On the evidence on record, the Trial Chamber is satisfied that the Prosecution has proved its case against the accused beyond reasonable doubt. In accordance with Article 7(1) and the findings of the Trial Chamber that the actus reus of aiding and abetting consists of assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime and that the mens rea required is the knowledge that these acts assist the commission of the offence, the Trial Chamber holds that the presence of the accused and his continued interrogation aided and abetted the crimes committed by Accused B. He is individually responsible for outrages upon personal dignity including rape, a violation of the laws or customs of war under Article 3 of the Statute.

    And here is the Appeals Chamber in Vasiljevic (emphasis mine):

    147.    The Appeals Chamber finds the Appellant guilty of aiding and abetting the crime of murder as a violation of the laws or customs of war under Article 3 of the Statute (Count 5) and the crime of persecution under Article 5(h) of the Statute by way of murder of the five Muslim men and of inhumane acts against the two other Muslim men (Count 3).

    The amicus brief’s treatment of Vasiljevic is particularly misleading.  Not only did the Appeals Chamber convict the defendant for aiding and abetting various international crimes, it did so on the ground that the Trial Chamber had erroneously concluded the defendant was a co-perpetrator in those crimes because he had participated in a JCE to commit them (emphasis mine):

    131… The Appeals Chamber, therefore, concludes that the Trial Chamber erred by finding that the only reasonable inference from the evidence was that the Appellant shared the intent to kill the seven Muslim men.

    132.    The error made by the Trial Chamber led to a miscarriage of justice since, without the proof the Appellant’s intent, the Appellant would not be responsible as a co-perpetrator in the joint criminal enterprise. The Appeals Chamber will now consider whether the Appellant is, nevertheless, responsible as an aider and abettor.

    In light of these misrepresentations, is there any question — any at all — that the amicus brief cannot be trusted to accurately describe the state of customary international law?

    Secret DOJ Memo on Awlaki Targeting, and NYT Public Editor on Policy-by-Leaks

    by Kenneth Anderson

    I’m traveling and can’t stop to comment, but check out Charlie Savage’s New York Times story describing the secret DOJ memo, reportedly principally authored by David Barron and Marty Lederman, that provided the justification for putting Anwar Al-Awlaki on the targeting list in the first place.  Crucial reading on the targeted killing and drone debate.

    One thought, however. As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked (quite apart from not making available the actual text) is a grave part of the problem here.  If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy.  Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for officially releasing information on their legal justifications.  It’s good that this information is out there; it is bad that it was put out there through leaks.

    Update:  See also this very interesting opinion piece by the New York Times Public Editor, Arthur Brisbane, in the Sunday Times, on the problems of reporting on government policy that proceeds, in essence, by leaks.  As Brisbane says, this puts the Times in the awkward position of appearing to be manipulated to give the government’s statements in order to report the news.  Brisbane was kind enough to quote me:

    Kenneth Anderson, an American University law professor who told me he is a “centrist conservative” on national security issues, said he supports the use of drone technology for counterterrorism but cannot abide how the administration is handling the program publicly.

    “One area in which I have been relentless in criticism of the Obama administration has been their refusal to say anything about it, and at the same time essentially conducting the foreign policy of the U.S. by leaked journalism,” he said. “I just don’t think that is acceptable.”

    The Doe v. Nestle Amicus Brief’s Problematic Reliance on Vasiljevic

    by Kevin Jon Heller

    The brief claims the following (p. 11):

    Moreover, even the ICTY jurisprudence has not settled on a mens rea standard for accessorial liability. Although the Furundzija decision expressly adopts a “knowledge” standard, a subsequent decision, Vasiljevic, requires that the aider and abettor’s act be “specifically directed to assist … the perpetration of a specific crime.” See Khulumani, 504 F.3d at 278 n.15 (Katzmann, J., concurring) (noting this tension).

    This statement is blatantly incorrect.  Here is what Vasiljevic actually says about the mens rea of aiding and abetting (para. 102; emphasis mine):

    In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.

    The quote that the amicus brief uses comes from the paragraph that immediately precedes the one that I have quoted — the paragraph that addresses the actus reus of aiding and abetting, not the mens rea.

    Misstatements don’t get much clearer than that.

    The Doe v. Nestle Amicus Brief’s Problematic Reliance on the Rome Statute

    by Kevin Jon Heller

    I’ve already said pretty much everything I have to say about the mistaken idea that intent is the customary mens rea of aiding and abetting (see here and here), so there is no reason to spend much time addressing the amicus brief Julian mentions.  I simply want to note that the brief’s reliance on the Rome Statute for the intent standard is no less problematic than the Second and Fourth Circuit decisions that precede it. Like the Second and Fourth Circuits, the brief simply ignores Article 10 of the Rome Statute’s insistence that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”  Indeed, it claims (p. 16) that there is “no reason to discount the Rome Statute as evidence of state practice in favor of inconsistent and ambiguous opinions from international criminal tribunals.”  No reason other than the plain language of Article 10!

    Even worse, also like the Second and Fourth Circuits, the amicus brief simply ignores Article 25(3)(d) of the Rome Statute.  For the third time:

    Article 25(3)(d) imposes criminal responsibility on any person who “[i]n any other way contributes to the commission or attempted commission of… a crime by a group of persons acting with a common purpose” when that contribution is either “made with the aim of furthering the criminal activity or criminal purpose or “made in the knowledge of the intention of the group to commit the crime.”  The precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars, but it is clear that the Rome Statute does not unequivocally adopt the purpose standard for all forms of aiding and abetting.  Indeed, the crimes at issue in ATS cases will almost always (always?) be committed by “a group of persons acting with a common purpose,” precisely the kind of criminality that, according to Article 25(3)(d), can be knowingly aided and abetted.

    As Doug Cassel has pointed out, Article 25(3)(d) makes clear that “[t]he ICC Statute thus embraces a ‘knowledge’ test as sufficient to impose criminal responsibility on one who aids and abets a group crime.”

    If the amicus brief believes Article 25(3)(d) is somehow distinguishable or irrelevant, fine.  Make the argument.  To ignore that provision and claim, without qualification, that the Rome Statute adopts an intent standard for aiding and abetting is simply unacceptable.

    The Case Against Corporate Aiding and Abetting Liability Under International and Federal Common Law

    by Julian Ku

    Professors Samuel Estreicher, John McGinnis, Michael Ramsey, Mark Weisburd, Ernest Young and myself, in partnership with the National Association of Manufacturers, filed a brief amicus curiae today in Doe v. Nestle, a Ninth Circuit Alien Tort Statute case. In the wake of the Second Circuit’s decision in Kiobel, but also the DC and Seventh Circuit decisions, the question of whether and how corporations can be liable under the ATS is getting more and more appellate court attention.  Here is our take (short version, DC Circuit and Seventh Circuit were deeply mistaken).

    Plaintiffs in this case seek to hold corporate defendants liable under the Alien Tort Statute (ATS), 28 U.S.C. §1350, for aiding and abetting international law violations respecting forced labor and child labor by unidentified farmers in the Ivory Coast. We believe the District Court was correct in dismissing these claims. First, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), directs that only violations of well-established, specifically defined, and universally agreed-upon international law rules may be recognized under the ATS. In this case, the international legal consensus required by Sosa is absent for at least two essential aspects of the Plaintiffs’ claim. There is no international consensus that aiding and abetting liability may be based on a mens rea of mere knowledge of unlawful activity by others rather than sharing in the purpose of that activity; and there likewise is no consensus that private corporations can be liable for violations of customary international law.

    Moreover, even if Plaintiffs could show the necessary international consensus, recognition of an ATS action for the violations alleged here would be an inappropriate expansion of federal common law. Those violations, involving non-U.S. farmers’ infringement of alleged obligations to their own countrymen, are radically different from the violations that were the focus of the ATS at the time of its enactment — conduct that directly affronted, and thereby jeopardized relations with, other nations. Recognition of an ATS action for the entirely different violations at issue here would exceed the sharply limited authority of federal courts to expand implied rights of action, and the equally sharp limits on judicial interference in foreign affairs.

    There is one issue here that I think should be interesting to our readers, even those who don’t spend much time thinking about the ATS. It surrounds the question of how to consider international law sources. Plaintiffs in this case (and others) rely heavily on  ICTY and ICTR decisions to support their arguments.  Defendants often point to the Rome Statute of the ICC.  We take the view that none of these sources are definitive on these questions, but the Rome Statute is, on the whole, the better and more authoritative evidence of state practice.  And the Rome Statute reflects states’ unwillingness to adopt looser standards for aiding and abetting and to impose liability on corporations.

    U.S. Govt Panel Determines Who is Put on the “Kill List”

    by Julian Ku

    The leaks are already starting about the U.S. government’s process for determining who to target for drone strikes.  Here is the latest.

    (Reuters) – American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

    There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

    This sounds like quite a subcommittee. Interestingly, the article hints that President Obama is informed, but does not necessarily approve who gets put on the “kill list.” But apparently, there is a legal review.

    The process involves “going through the National Security Council, then it eventually goes to the president, but the National Security Council does the investigation, they have lawyers, they review, they look at the situation, you have input from the military, and also, we make sure that we follow international law,” Ruppersberger said.

    This kind of leaking is inevitable, and it is a further argument in favor of the Administration getting out there now with as many details about the program as they can release.  Just leak the whole thing, already!

    Women Activists in Africa and Middle East Share Nobel Peace Prize

    by Roger Alford

    “The Norwegian Nobel Committee has decided that the Nobel Peace Prize for 2011 is to be divided in three equal parts between Ellen Johnson Sirleaf, Leymah Gbowee, and Tawakkul Karman for their non-violent struggle for the safety of women and for women’s rights to full participation in peace-building work. We cannot achieve democracy and lasting peace in the world unless women obtain the same opportunities as men to influence developments at all levels of society.”

    This announcement is most welcome news. It continues a significant trend of awarding more Nobel Peace Prizes to women. Since the end of the Cold War, 28% (8 of 28) of all Peace Laureates have been women. That compares to 14% (5 of 36) during the Cold War and just 5% (2 of 38) prior to World War II. (These numbers exclude institutional laureates, of course).

    Of the fifteen women who have received the Nobel Peace Prize, the early laureates (Bertha von Suttner, Jane Addams, and Emily Greene Balch) were all leaders of the pacifist movement. (Addams was also famous as the mother of the modern social work movement). During the Cold War there were a mix of female recipients, including anti-nuclear activist Alva Myrdal, Northern Ireland peace activists Betty Williams and Mairead Corrigan, and most famously, servant to the poor Mother Teresa. More recently, as a leader of the movement to ban landmines, Jody Williams follows in the tradition of earlier anti-war laureates, especially Myrdal. We also now have a very different kind of female laureate: the human rights and democracy dissidents who promote the role of women in society. They include Aung San Suu Kyi, Rigoberta Tum, Shirin Ebadi, Wangari Maathai, and two of today’s three laureates, Leymah Gbowee, and Tawakkul Karman. Ellen Johnson Sirleaf falls into a category by herself: the first major female political figure to ever win the Nobel Peace Prize. Only Suu Kyi comes close to Sirleaf in this respect, as the people’s choice for Burmese Prime Minister who was denied the opportunity by the Burmese military junta.

    Today’s awards are also notable in terms of race. Gbowee, Sirleaf and Maathi are the only three black female laureates. Because Ebadi is Persian, Karman ranks as the first Arab female laureate.

    As for the biographies of each of these women, their stories are now circulating the globe. From my own perspective, I was hoping that the Nobel Committee would identify an appropriate individual who was linked to the Arab Spring, and the Committee did not disappoint with Tawakkul Karman. She’s one of the leading human rights activists in Yemen, repeatedly jailed and tirelessly fighting for democracy and women’s rights in Yemen. “I give this award for all the youth in the Arab world – in Egypt, in Libya, Syria and Yemen,” Karman said on hearing the news of her selection. “All the youth and women, this is a victory for our demand for citizenship and human rights.” If you watch even a few minutes of this report on Karman you cannot help but be impressed.

    But the Nobel Committee decided to place the Arab Spring in the larger context of women activists. Leymah Gbowee promoted the cause of women in Liberia’s civil war, convincing both Christian and Muslim women to unite against Liberian warlords who were destroying the country. You can read her story here and watch below a trailer of the movie “Pray the Devil Back to Hell” that details her work with the women of Liberia.

    The third laureate, Ellen Johnson Sirleaf, is the best known, serving as the first and currently only female head of state in Africa. You can buy her memoir here. There’s also a great interview of Sirleaf by Time embedded below where she discusses what her presidency means for the women of Africa. When asked whether Africa would be more peaceful if more women were in power her answer: “I have no doubt about that. That can be a short answer. When women have equal qualification, experience, capacities, they bring to their task a certain dimension that may be missing in men, and that’s the sensitivity to humankind. Maybe it comes from being a mother.”

    It’s a great day for the Nobel Peace Prize, for democracy in Africa and the Middle East, and for the fight for women’s equality around the world.

    The Law of Neutrality and the U.S. Conflict with Al-Qaeda

    by Kevin Jon Heller

    As readers know, a few of us on the blog have been debating whether the law of neutrality has any relevance to the United States’ conflict with al-Qaeda.  I’m thus delighted to announce that three essays on that very issue are now available on SSRN as part of a mini-symposium hosted by the Texas International Law Journal.  The lead essay is by Karl Chang, a lawyer with the Department of Defense; the two (long) responses are by yours truly and by Rebecca Ingber, who is on leave from the State Department’s Office of the Legal Adviser and is currently a CFR International Affairs Fellow at Columbia Law School.  Chang argues that the law of neutrality provides the relevant framework for the conflict with al-Qaeda; each in our own way, Ingber and I reject that idea.  Readers who are interested in the recognition of belligerency in non-international armed conflict will find that my response includes a much more academic treatment of that issue than has been possible on Opinio Juris.  Here are the abstracts…

    More on Releasing the Awlaki OLC Opinion

    by Kenneth Anderson

    Jack Goldsmith and Benjamin Wittes have been arguing for several days now at the Lawfare blog that the Obama administration should release either the Justice Department opinion approving the Al-Awlaki attack, suitably redacted, or some statement that puts out in some detail its legal reasoning.  The Washington Post has evidently read those posts closely, as it comes out today with a strong editorial endorsing the same thing.  I broadly agree with these arguments.

    I am equally concerned, however, with something that both Goldsmith and Wittes raised in their posts, viz., the increasing absurdity of a system of “covert” action in which, as the ACLU’s Benjamin Wizner put it in an amusing exchange with the White House counterterrorism adviser John Brennan at Harvard Law School a few weeks ago, they must be not be acknowledged though we can read about them in the newspaper.  The problem is that this eventually goes from amusingly absurd to de-legitimating.  It is amusing so long as the operations are successful — the Awlaki killing, the Bin Laden raid — and the (still illegal) leaks to the press are all about taking credit.

    It turns into something a lot less fun when something goes bad, as something inevitably will in operations of this kind, and these same extra-legal channels of wink-wink-nod-nod are used as parties try to deflect blame, put it on someone else, utilize press leaks to shift responsibility: this is not accountability, finally, it’s a natural but deeply flawed way of avoiding true accountability.  It involves informal mechanisms for taking credit when something good happens, and offloading it on someone else when something bad happens.  It’s a bad, but unfortunately tempting, idea when the news is good and when the news is bad. Continue Reading…

    No Surprise: Why Libya but not Syria

    by Mark Kersten

    Despite high rhetoric being flung across the Security Council yesterday, Russia and China’s vetoing of the European-drafted resolution condemning Syria’s brutal crackdown on civilians should come as no surprise.

    There are a number of political-tuned reasons to explain why this Resolution failed. The first relates to the disappointment and anger expressed by China and Russia at the intervention in Libya. Both have largely been shut out of any post-Gaddafi economic windfall and it is quite clear that they did not want to see a repeat performance. Second, unlike the case of Libya, there is very little regional support for any intervention – legal, military, economic or political – in Syria. In Libya, the Arab League, along with key African states initially stood behind the momentum to stop Gaddafi. Even key Libyan diplomats supported Western intervention. This regional support created an irresistible opportunity to create a new partnership with the Arab League and regional states through a common military and political engagement. This has not been the case in Syria. On the contrary, while Russia’s and China’s vetoing has garnered the most attention, the abstention by Syria’s neighbour, Lebanon (which holds the presidency of the Security Council) was just as illuminating.

    Apart from these key differences in the dynamics of the cases of Syria and Libya, there is another, more nuanced issue to consider. Why is it that anyone would, indeed, expect UN Security Council member states to successfully agree to condemn or sanction Syria? The answer seems to me to be that there is a prevalent belief that because it happened in Libya, it was feasible for it to happen in Syria. This, however, relies on seeing Libya as a moment of fundamental change, rather than as an outlier, in the practice of international politics.

    The extent of upheaval caused by the ‘Arab Spring’ is beyond doubt. But many (myself included) translated the social and political change in Tunisia, Egypt, Libya, Yemen, Bahrain and so on, into change in the behaviour of the world’s most powerful states. This didn’t appear to be a stretch: the citation of the Responsibility to Protect and the unanimously supported referral of Libya to the ICC were remarkable. Surely, this represented a new dawn in international politics and international justice!

    The notion of the international community’s response to Libya representing a watershed moment in global politics, was further propelled by particular actors. The intervening coalition spoke, as would be expected, in their lofty rhetoric of humanitarian intervention. Human rights groups hailed the decision to intervene judicially and militarily as monumental. The ICC, particularly Prosecutor Luis Moreno-Ocampo, has framed the Libya referral as a new norm, something we could come to expect in similar situations. Ironically, Moreno-Ocampo was virtually silent on the case of Syria – surely similar with regards to the mandate of the Court to try those most responsible for crimes against humanity!

    These actors wanted, for better or worse, to create a self-fulfilling prophecy. If enough people advocated that the Libyan intervention in the name of human rights and the duty to protect civilians was the new norm, then people would expect it to be the new norm and it could then become the new norm. This process of advocating an issue into an expectation and eventually into an accepted norm is powerful stuff and can have enormously positive effects. But it can also be dangerous when heightened expectations aren’t met. Propping mountains up on matchsticks is bound to fail.

    Understood in this context, the failure of the Security Council to pass a resolution condemning Syria may be understood as an illustration of continuity in the machinations of international power-politics and not of fundamental change. Who, after all, would have been surprised that China and Russia vetoed such a resolution before February 2011?

    While it is undoubtedly unfortunate and surely hypocritical, the response to the situation in Syria by Russia and China comes as no shock. The intervention in Libya may simply have been extraordinary in the original sense of the term – extra ordinary. What’s surprising about the vetoed Resolution isn’t that it was vetoed but that it came as a surprise to so many people.

    Russia-China Double Veto on Syria Resolution

    by Kenneth Anderson

    Russian and China issue a dramatic double veto of the US-backed measure directed against Syria; nine Council members voted in favor, and India, Brazil, South Africa, and Lebanon abstained.  Welcome to the New Post-Hegemonic World Order?  It’s too soon to tell and our Data Set is insufficiently full.  Still, it does recall David Rieff’s observation that a multipolar world is more competitive, not more cooperative.  I don’t know where this leaves such things as R2P and in particular R2P undertaken without the blessing of the Security Council; I’d be interested in hearing Mark’s views if he wanted to take time to say what he thinks this means, if anything. I do believe that if one focuses narrowly upon international criminal law, tribunals, and the ICC, one will conclude one thing about the direction of the “international community” – but if one pays attention to the Security Council or the General Assembly, one will conclude something else.

    Broadening Horizons: Ecocide, Famine and the “Other” Crimes

    by Mark Kersten

    If you can’t see it, it can’t and doesn’t really matter that much. That seems to be the attitude of many of us to key issues of international concern. Take for example, a core contradiction in many people’s hesitation to support the adoption of a carbon tax to combat climate change: it’s fine to tax the trash we put out on the curb, but it’s not fine to tax the trash we put in the air.

    The state of international criminal law privileges direct forms of violence. This is an extension of the dominant understanding of peace as negative peace, the absence of large-scale, direct forms of violence. The holy trinity of international crimes – war crimes, crimes against humanity and genocide – constitutes physical violence perpetrated against victims.

    While the criminalization of some acts which “shock the conscience of humanity” is surely one of the most important developments in contemporary international politics, it has, perhaps inevitably, come at the expense of more structural or indirect forms of violence. Famine becomes something to support with donations and sympathy but not an issue for which anyone can be held responsible. Neglecting to protect vulnerable populations in the wake of environmental disasters becomes a challenge for humanitarian aid rather than an issue of criminal neglect. The real and potential destruction of peoples’ livelihood through environmental degradation becomes a matter of business, job-creation and green politics and not a matter of justice – even when it risks eviscerating entire nations.

    Indeed, what about the more silent killers which threaten the life and livelihood of millions of people?

    There are those who have begun to challenge the monopoly of international crimes as direct forms of violence. This past week in London, a mock trial was held at the British Supreme Court where top lawyers played out two cases: one concerning the extraction of oil in Canada’s notorious tar sands and one regarding BP’s disastrous oil spill in the Gulf of Mexico. The charge? Ecocide, defined by its most forceful champions, Polly Higgins as:

    “The extensive damage, destruction to or loss of ecosystems of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”

    While the notion of ecocide is an attempt to criminalize large-scale environmental degradation, it is critical to highlight, in this context, how environmental degradation can create human death and suffering. This is not to be anthropocentric. But a much under-examined reality within international justice is the indirect, structural violence that is inflicted when states shirk their responsibilities to protect citizens from the effects of environmental trauma – whether from ecocide or natural disasters. Continue Reading…

    Cuts to USAID Budget

    by Kenneth Anderson

    The one sure answer for any presidential candidate of any party, so it has seemed for several election cycles, when asked what to cut in the budget is … foreign assistance.  The New York Times has a story today on cuts to USAID’s budget in both the Republican–controlled House and Democratic-controlled Senate.  The damage to programs that substantial numbers of very poor people rely upon, such as retrovirals in Africa, over modest amounts of money is real – still, as Bill Easterly observes, the picture of development as run through USAID is always very muddy.  As Easterly tweets, “Tragic Hubris: USAID acted with impunity up to the moment that its budget was butchered.”

    Spending on international affairs, including foreign aid and the State Department’s operating budget, reached $55 billion in the 2010 fiscal year, Mr. Obama’s first full year in office, but declined by the end of the 2011 budget to $49 billion.

    The administration proposed spending $59 billion in the fiscal year that began on Saturday, including $8.7 billion in a newly created contingency account for operations in Iraq, Afghanistan and Pakistan. Those operations will expand significantly when the State Department takes over more tasks as American troops withdraw from Iraq at the end of the year and prepare for a drawdown in Afghanistan beginning next summer.

    While the final budget for the year remains uncertain given the politics surrounding the special Congressional committee charged with finding more than $1 trillion in cuts over all, it is clear that foreign aid will decline for a second year.

    (As a side note, the mention above of the State Department taking “over more tasks” as the US military draws down in Afghanistan and withdraws from Iraq raises big questions about institutional capacity, but that goes beyond simply questions about the foreign aid budget.)

    al-Awlaki and Citizenship

    by Peter Spiro

    How does citizenship fit into the al-Awlaki picture?  It’s obviously important.  Otherwise he’s just another senior-level al Qaeda operative taken out by a drone.  Not insignificant, but not an event that would generate a lot of discussion, especially not on the law.

    On the other hand, imagine if al-Awlaki had been an American not of Middle Eastern descent and not a dual citizen of a country like Yemen.  Think an older, more together version of John Walker Lindh.  Would that shift the debate?  It’s interesting that most of the headlines on the story described al-Awlaki as “US-born”, not as an American citizen.

    The possibility here is that even though (as a formal matter) he held US citizenship until his death, al-Awlaki was not perceived as a citizen in terms of social membership.  He was a happenstance citizen, born here while his father studied in the U.S., but taken back to Yemen when he was seven.  (Yaser Hamdi is another such example. Samir Kahn, killed at al-Awlaki’s side, is more interesting in this respect – the product of Queens and suburban Charlotte, though apparently naturalized, not native-born.)  Al-Awlaki obviously was obviously hostile to the United States; in an older world, in which our adversaries were also states, he would have lost his US citizenship as a member of the armed forces of another state.  But the only way to lose your citizenship today is to walk into a US consulate and formally renounce it, a step al-Awlaki wasn’t in a position to undertake.

    One response would be to adopt a Lieberman-type terrorist expatriation measure.  I don’t think that would do a lot of good, other than generate yet another layer of litigation, this one over whether particular conduct evinced an intent to relinquish citizenship (constitutionally required, as per Afroyim v. Rusk).  So that leaves us with some citizens who don’t really seem like citizens, which means that the citizen/non-citizen differential for rights purposes will get smaller still.

    Domestic and International Legitimacy for Targeted Killing Using Drones

    by Kenneth Anderson

    Jack Goldsmith, writing at Lawfare, urges the Obama administration to release a redacted version of the Justice Department’s memo concluding that the targeting of Al-Awlaki was lawful — if not a redacted version, then some reasonably complete and authoritative statement of its legal reasoning.  I agree.  The nature of these operations abroad is that they will almost certainly remain beyond judicial review and, as a consequence, OLC opinions will serve as the practical mechanism of the rule of law.

    The best argument against disclosure is that it would reveal classified information or, relatedly, acknowledge a covert action.  This concern is often a legitimate bar to publishing secret executive branch legal opinions.  But the administration has (in unattributed statements) acknowledged and touted the U.S. role in the al-Aulaqi killing, and even President Obama said that the killing was in part “a tribute to our intelligence community.”  I understand the reasons the government needs to preserve official deniability for a covert action, but I think that a legal analysis of the U.S. ability to target and kill enemy combatants (including U.S. citizens) outside Afghanistan can be disclosed without revealing means or methods of intelligence-gathering or jeopardizing technical covertness.  The public legal explanation need not say anything about the means of fire (e.g. drones or something else), or particular countries, or which agencies of the U.S. government are involved, or the intelligence basis for the attacks.  (Whether the administration should release more information about the intelligence supporting al-Aulaqi’s operational role is a separate issue that raises separate classified information concerns.)   We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms.  These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s.  So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

    The public accountability and legitimacy of these vital national security operations is strengthened to the extent that the public is informed and, through the political branches, part of the debate on the law of targeted killing.  That cannot be operational discussion, for obvious reasons.  But there is still a good deal that could be said about the underlying legal rationales, without compromising security.   I myself favor revisions, either as internal executive branch policy or, in a better world, as formal legal revisions to Title 50 (CIA, covert action, etc.) and the oversight and reporting processes.  One of those revisions would be to get beyond the not just silly, but in some deeper way, de-legitimizing insistence that these operations cannot be acknowledged even as a program; I would establish a distinct category of “deniable” rather than “covert,” and a category of programs that can be acknowledged as existing even without comment on particular operations.

    John Bellinger, the former State Department Legal Adviser in the last years of the Bush administration, raises concerns in the Washington Post today about the best way to defend the international legitimacy of these operations.  He notes the deep hostility of the international advocacy groups, UN special raporteurs, numbers of foreign governments, and the studied silence of US allies (even as NATO, I’d add, has relied upon drones as an essential element of its Libyan air war).

    [T]he U.S. legal position may not satisfy the rest of the world. No other government has said publicly that it agrees with the U.S. policy or legal rationale for drones. European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported U.S. drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.

    Human rights advocates, on the other hand, while quiet for several years (perhaps to avoid criticizing the new administration), have grown increasingly uncomfortable with drone attacks. Last year, the U.N. rapporteur for summary executions and extrajudicial killings said that drone strikes may violate international humanitarian and human rights law and could constitute war crimes. U.S. human rights groups, which stirred up international opposition to Bush administration counterterrorism policies, have been quick to condemn the Awlaki killing.

    Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

    The problem of international legitimacy is always tricky, as Bellinger knows better than anyone.  I look at it this way.  Tell the international community that we care about legitimacy — which is to say, that we care about their opinion in relation to our practices — and all of sudden we have handed other folks a rhetorical hold-up, to a greater or lesser degree.  Unsurprisingly, the price of their good opinion and their desire to exercise control over our actions goes up.  There is nothing special to this; it’s just standard bargaining theory. Continue Reading…

    International Law Weekend, October 20-22

    by Kenneth Anderson

    Ruth Wedgwood sends this announcement along: International Law Weekend 2011 — the world-famous gathering of the migrating flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21–22, at Fordham Law School, at 140 West 62nd Street, NYC. Continue Reading…

    Two Questions from the al-Awlaki Killing

    by Michael W. Lewis

    There appears to be some agreement that continuous combat functionaries (CCF) that belong to an armed group that is involved in an armed conflict may be targeted “anywhere, anytime”. I agree with this position and even had Kevin cite p. 206 of Gary Solis’ book as affirmation of that position.

    The question is what is the legal justification for “anytime, anywhere” targeting of such individuals? My own answer to that is posted on Lawfare and argued in more detail here is that this should be based upon applying neutrality law principles to transnational armed conflicts. I recognize that such principles currently only apply to IAC’s, but I believe that applying the concepts of the reciprocal obligations between belligerents and neutrals found in traditional IAC’s to transnational armed conflicts makes more sense than applying the Tadic or threshold of violence factors to such conflicts.

    Those that agree with the idea that CCF’s are targetable “anytime, anywhere” are either taking an incredibly expansive view of self-defense, a view in which the “imminence” requirement essentially vanishes, or they are applying something other than the Tadic factors to determine IHL’s scope in NIAC’s. Because applying such threshold of violence factors would most certainly not permit targeting “anytime, anywhere” but rather only in locations where the requisite level of violence has been met, and something that arguably is not currently present in Yemen.

    The two questions then are 1) are CCF’s of an armed group involved in an armed conflict targetable “anytime, anywhere”? 2) What is the legal framework that supports this position?

    Answering 1) in the affirmative does NOT mean that you agree that the al-Awlaki operation was legal. It is still possible to argue that he did not have CCF status or that his group was not involved in an armed conflict. But those are very different from claiming that his location was the basis for finding the operation to be illegal.

    Bilateral Trade Pacts Finally Advancing

    by Kenneth Anderson

    Trade treaties with South Korea, Columbia, and Panama are finally advancing, with President Obama set to send the three deals to Congress for approval this week, reports the WSJ this morning. The agreements had been tied up in acrimonious domestic politics for some five years, but it appears that bipartisan desire to improve the US export picture has moved things forward.  Of the $13 billion in projected export increases due to the pacts, unsurprisingly South Korea accounts for the bulk of it – some $11 billion.  Trade deals produce domestic winners and losers, of course:

    All three deals are expected to benefit U.S. agriculture by lifting or reducing tariffs on exports of U.S. commodities, machinery and chemicals, even as they present new challenges to the U.S. textile, electronics and floral industries. The U.S.-Korea agreement will double U.S. farm exports to Korea, to $3.8 billion annually, through increased sales of grains, fruits and vegetables, pork products and wine, the U.S. International Trade Commission has estimated.

    U.S. financial services, legal and health-care companies stand to benefit by receiving the same legal treatment as Korean firms. Specially negotiated benefits to U.S. auto and electric car producers are expected to offer a marginal advantage to U.S. auto makers, who have difficulty competing against Korean makers.

    Supreme Court’s Thin Diet of International Law Cases

    by Roger Alford

    The Supreme Court has an incredibly thin diet for international law cases this term. No blockbuster cases, no major questions of international law, no issues addressing executive power in the foreign affairs arena. Thin, thin, thin.

    Thus far it appears that there are only two cases that tangentially address questions of interest to this blog, and neither are particularly significant. One addresses a question of interpretation in the immigration context and another the political question in the context of Consular Report of Birth Abroad. The latter case potentially has important diplomatic implications, concerning whether a child born in Jerusalem must be identified as having a birthplace of “Jerusalem, Israel.” But I rather doubt that the Court will require the State Department to answer that question.

    Here’s the ABA’s summary of Judulang v. Holder:

    For more than 25 years, the Board of Immigration Appeals (BIA) held that a legal permanent resident (LPR) who is deportable due to a criminal conviction could seek a discretionary waiver of removal under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. §1182(c), provided that the conviction also would have constituted a waivable basis for exclusion.

    In 2005, the BIA abruptly changed course, adding a requirement that the LPR be deportable under a statutory provision that used “similar language” to an exclusion provision. Deportable LPRs who departed and reentered the United States after their conviction, however, may seek Section 212(c) relief under a longstanding “nunc pro tunc” procedure that does not turn on similar language between deportation and exclusion provisions.

    Thus, under the BIA’s current view, an LPR who pled guilty to an offense that renders him both deportable and excludable, but under provisions that use dissimilar phrasing, will be eligible for Section 212(c) relief from deportation if he departed and reentered the United States after his conviction, but ineligible if he did not depart. The circuits are split three ways on the lawfulness of the BIA’s new interpretation.

    The question presented is:

    Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United Staes between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the INA.

    Here’s Oyez’s summary of M.B.Z. v. Clinton

    Menachem Binyamin Zivotofsky is a United States citizen born on October 17, 2002 in Jerusalem. In December 2002, Zivotofsky’s mother filed an application for a Consular Report of Birth Abroad and a United States passport for petitioner, listing his place of birth as “Jerusalem, Israel.” United States diplomatic officials informed petitioner’s mother that State Department policy required them to record “Jerusalem” as petitioner’s place of birth, which is how petitioner’s place of birth appears in the documents he received.

    On his behalf, Zivotofsky’s parents filed this suit against the Secretary of State seeking an order compelling the State Department to identify petitioner’s place of birth as “Jerusalem, Israel” in the official documents. The United States District Court for the District of Columbia initially dismissed the complaint after concluding that petitioner lacked standing, and that the complaint raised a nonjusticiable political question. United States Court of Appeals for the D.C. Circuit reversed and remanded, concluding that petitioner had standing and that a more complete record was needed on the foreign policy implications of recording “Israel” as Zivotofsky’s place of birth.

    On remand, the State Department explained, among other things, that in the present circumstances if “Israel” were to be recorded as the place of birth of a person born in Jerusalem, such “unilateral action” by the United States on one of the most sensitive issues in the negotiations between Israelis and Palestinians “would critically compromise” the United States’ ability to help further the Middle East peace process. The district court again dismissed on political question grounds. The court of appeals affirmed, holding that Zivotofsky’s claim is foreclosed because it raises a nonjusticiable political question.

    Question

    Does the political question doctrine deprive a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport?

    Handcuffed by Statehood: Justice and Palestine

    by Mark Kersten

    Observers have watched with keen interest as Mahmoud Abbas took the politically risky, some say courageous, move to seek UN recognition of Palestine as a state. At the very center of Abbas’ polarizing decision is the International Criminal Court and the possibility of opening an investigation into alleged crimes in Palestine. To think that the ICC would be so integral a player in the challenge of peace in the Middle East would have been unimaginable just a few short years ago. Just as remarkable is the demonstrated centrality of statehood in the pursuit of global justice, something that surely keeps the dreamers of international criminal justice up at night.

    It really wasn’t supposed to go this way. The ICC was meant to be a shining star in the liberal cosmopolitan trajectory which instructed the peoples of the world that no one could hide behind state sovereignty anymore. What mattered in global politics and ethics wasn’t still supposed to be states over all else. Slowly, but surely, the post-WWII global conscience was intended to wither away the rigidity of statehood as the primary unit of international politics and replace it with “the human”. The most important association was no longer supposed to be a state or a territory or religion. These were to be secondary, displaced by a “consciousness of being a citizen of the world, whatever other affiliations we may have.” Citizenship of state was to become secondary to citizenship of a “worldwide community of human beings” who shared a universal ethical code and which represented and protected all those who counted themselves as human. We were to be universal individuals. Rights were ours as individual people but shared by all. These individual rights were to be protected but we were to care about them everywhere. It is as a result of this liberal cosmopolitan trajectory that we have a human rights regime, a doctrine of Responsibility to Protect and the International Criminal Court. It is in the name of our common, universal citizenship in “humanity” that these institutions and regimes were established.

    The ICC, in particular, is an acknowledgement that “cosmopolitan norms of justice accrue to individuals as moral and legal persons in a worldwide civil society,” and the creation of “protections for individuals as human beings.” “[W]hat advocates of the International Criminal Court aspire to, above all, is the creation of a universal moral and judicial community” to replace power politics. Central to the establishment of the Court was the notion that individuals – and not states – are responsible for violations of international humanitarian and human rights law, reflecting a view “that thinking of human rights violations as perpetrated by monolithic and abstract entities called states, and holding only states responsible…stood in the way of human rights enforcement”. As Kirsten Ainley writes, there is a palpable and “increasing focus on the individual, rather than the state, as the key agent in international politics,” the “result of the rise of cosmopolitan liberalism.”

    To return to the case of Palestine, what is remarkable is the centrality of statehood, and by extension state sovereignty, in the capacity of Palestinians to pursue international justice. Surely, to many readers this will be unsurprising – the ICC’s Rome Statute, after all, was negotiated by states and nations only come under the Court’s jurisdiction if they refer themselves or ratify the Statute. In other words, the Court continues to privilege statehood, at most marking a negotiation between state politics and the liberal cosmopolitan protection of human rights. However, with the case of Palestine the importance of the state-based power-politics has come only more forcefully into light. Continue Reading…

    On-the-Ground Intelligence Operations Backing Drone Strikes

    by Kenneth Anderson

    Eli Lake and John Barry at the Daily Beast sum up the Obama administration’s counterterrorism-on-offense doctrines.  Of particular interest is this paragraph stressing the largely unmentioned role of on-the-ground intelligence gathering and operations in order to make possible targeted strikes:

    And while the drones are the most outward signs of the covert campaigns that rage from the Horn of Africa to Pakistan, it is the nearly invisible troops on the ground—both U.S and allied special forces—who are gathering the intelligence, making eyes-on confirmation, and directing the strikes with remarkable precision.

    This evaluation goes hand-in-hand with Greg Miller’s account in today’s Washington Post on the on-going convergence of the CIA and JSOC.

    [A]fter a decade of often inconclusive efforts against al-Qaeda, the Obama administration has relied on new levels of collaboration between the CIA and JSOC to push the terrorist network closer to collapse. In May, U.S. Navy SEALS who serve under JSOC killed Osama bin Laden during a raid deep into Pakistan that relied on intelligence and covert action authority from the CIA. At the same time, the administration has sought to put new pressure on al-Qaeda affiliates in Yemen and Somalia by surrounding those countries with a constellation of drone bases. These include a new CIA facility in the Arabian peninsula that played a key role in Friday’s operation. U.S. drones also fly from military installations in Djibouti, Ethi­o­pia and the Seychelles.

    Even leadership ranks have begun to blur: Former CIA director Leon E. Panetta is now secretary of defense; David H. Petraeus, previously the military commander in Iraq and Afghanistan, is just weeks into his new assignment as head of the CIA. The attack on Aulaqi blended capabilities from both sides and was carried out under CIA authority that allowed for greater latitude in conducting lethal operations outside conventional war zones. The military aircraft came across the Gulf of Aden from Djibouti, which has been the primary base for JSOC drones patrolling Yemen for much of the past year. U.S. officials said that CIA drones involved in the strike took off from an agency base in the Arabian peninsula so new that it had become operational only in recent weeks.

    The opening of that base was part of a two-pronged strategy by the administration to exploit JSOC’s ability to work closely with Yemen’s counterterrorism units on the ground while pushing the CIA to replicate aspects of its lethally efficient drone campaign in Pakistan.

    “Aspects” of that lethally efficient campaign that include, as I understand it, on-the-ground intelligence activities that allow for highly focused selection of targets.  The merger of functions between the two actors raises many questions about how Title 10 and Title 50 are supposed to interact (Bobby Chesney has been developing a draft article on those legal questions).  Many of those issues are intra-executive, meaning that they run to executive branch internal legal authorities that can be at least partly re-worked within the executive branch itself.  Some of the larger changes that I myself would like to see considered (such as the recognition of a new category of action under Title 50 besides “covert” that I’d call “deniable” rather than truly covert or clandestine) might require more than simply executive branch changes.

    Update: Let’s add Scott Shane and Thom Shanker’s outstanding front page NYT article today on the increasing role of drones in US strategic thinking.  It’s a very good piece – noting importantly that drones sometimes seem like the latest in strategic air power, but in fact are widely recognized as being useful overwhelmingly in counterterrorism and, more generally, intelligence-driven and discrete uses of force – but not conventional interstate war with, for example, China.

    This is a great piece, and one that everyone seeking to understand where the US is trying to go with regards to counterinsurgency versus counterterrorism needs to read.  It’s crucial.  The one thing I’d add to their discussion is that drones are the final kinetic step from the air of what is mostly an intelligence operation that requires extensive assets on the ground, as Lake and Barry point out.

    Shane and Shanker do observe, however, that the image of drones as a global weapon, merely because the operator might be around the world, is profoundly misleading.  They emphasize an often misunderstood aspect of drones – closely related to the local ground-level intelligence point. Drones require bases, refuelling, maintenance, and lots of human care and feeding – all of which makes them much more akin to aircraft flown from an aircraft carrier, not strategic bombers flown from Omaha:

    The apparent simplicity of a drone aloft, with its pilot operating from the United States, can be misleading. Behind each aircraft is a team of 150 or more personnel, repairing and maintaining the plane and the heap of ground technology that keeps it in the air, poring over the hours of videos and radio signals it collects, and gathering the voluminous intelligence necessary to prompt a single strike.

    Finally, perhaps for lawyers the most interesting observation in the New York Times piece, however, is the recognition – very wide recognition in the US across most political lines – that in fact drones are more discriminating and precise:

    [W]hile experts argue over the extent of the deaths of innocents when missiles fall on suspected terrorist compounds, there is broad agreement that the drones cause far fewer unintended deaths and produce far fewer refugees than either ground combat or traditional airstrikes.

    The Folly of Comparing Al-Awlaki to Admiral Yamamoto (Updated)

    by Kevin Jon Heller

    It appears the right-wing has settled on a shiny new historical comparison to justify the targeted killing of Anwar al-Awlaki.  Here is Jack Goldsmith in the New York Times:

    An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbor.

    And here is John Tobin in the American Spectator:

    Anwar al-Awlaki was actively recruiting terrorists to attack the U.S. He was, in effect, a battlefield commander, and the operation to kill him was in that sense well-grounded in the laws of war — little different from Operation Vengeance, in which the US military targeted and killed Admiral Isoroku Yamamoto during World War II. If Yamamoto had been an American-born traitor, Operation Vengeance would have been no less legitimate.

    It genuinely amazes me that anyone could compare Al-Awlaki to Yamamoto with a straight face.  World War II was an international armed conflict (IAC), while the U.S. war on al-Qaeda is at most a non-international armed conflict (NIAC).  (The correct position is that it is not an armed conflict at all.)  That is a critical distinction, because the targeting rules in IAC and NIAC are completely different.  Admiral Yamamoto was the Commander in Chief of Japan’s Combined Fleet, the prototypical combatant who was targetable at any time by the U.S.  Al-Awlaki was a radical cleric whose targetability depended on whether he assumed a “continuous combat function” in AQAP (in which case he was, like Yamamoto, targetable at any time), or whether he was a civilian who directly participated in hostilities on various occasions (in which case he was targetable only for the duration of his direct participation).  Which is it?  I frankly don’t know — but I do know that determining Al-Awlaki’s targetability is vastly more legally and factually complicated than determining whether it was legal to kill an enemy Admiral in a formally-declared war.

    Not so, of course, for Goldsmith and Tobin.  For them, that pesky international-law distinction between international and non-international armed conflict is irrelevant.  (Except, of course, when it comes to things like combatant’s privilege and POW status; the rules of IAC and NIAC are interchangeable only when interchangeability works in the United States’ favor.)  The U.S. once killed a bad guy during World War II, so of course it can kill a bad guy during the war on terror.  What could be more obvious?

    UPDATE: Goldsmith responds to my post here, although he doesn’t bother to address the substance of what I wrote — concerning his elision of the distinction between IAC and NIAC and his failure to grapple with the distinction (critical for purposes of targeting in NIAC) between members of organized armed groups and civilians who directly participate in hostilities.  Instead, he simply cites other Americans who believe the analogy is justified (why that’s relevant he never explains) and claims that I somehow admit that the analogy is justified, because I say that Al-Awlaki could be targeted in much the same way as Yamamoto if he had assumed a continuous combat function in AQAP.  Of course, the entire thrust of the post was to point out that Al-Awlaki might also have been a civilian who directly participated in hostilities, in which case he could not be targeted in the same way as Yamamoto, making the analogy between the two deeply misleading.

    Notice, also, how Goldsmith selectively quotes my post, ending the block quote with “I frankly don’t know.”  The entire sentence reads, of course, “I frankly don’t know — but I do know that determining Al-Awlaki’s targetability is vastly more legally and factually complicated than determining whether it was legal to kill an enemy Admiral in a formally-declared war.”  Goldsmith thus conveniently cuts off the thesis of my post in order to claim that I somehow agree with the Yamamoto analogy.  As is obvious from the omitted clause, I acknowledged my uncertainty concerning Al-Awlaki’s status precisely to make the point that determining targetability in NIAC is far more difficult than determining targetability in IAC — the primary reason why the Yamamoto analogy is so flawed.  Goldsmith ignores that aspect of my post; I guess, for him, the targeting rules in NIAC are so self-evident and straightforward, and the facts of Al-Awlaki’s case so obvious, that the only possible conclusion is that Al-Awlaki is no different than Yamamoto.  I envy his certainty.