Archive for
November, 2011

Greg McNeal on Collateral Damage and Targeted Killing

by Roger Alford

My colleague Greg McNeal has just posted on SSRN an article on collateral damage and targeted killing. It is getting rave reviews, with Ben Wittes calling it an “extraordinary article” that “should be required reading for anyone participating in the many debates surrounding targeted killing” and our own Ken Anderson calling it “essential reading … in the law of armed conflict.”

Here is McNeal’s own description of what he is trying to achieve with the empirical piece:

Irrespective of your opinion about the merits of targeted killing, I’m hopeful my paper provides the foundation necessary for scholars and commentators to build upon, and I hope it serves as a helpful corrective to the descriptions of state practice currently circulating in public commentary.

A New Fulbright Fellowship in Foreign Governments (including a Focus on Justice)

by Duncan Hollis

I’m looking forward to our joint symposium on Marko’s impressive book on extraterritorial treaty application. But before that begins, I wanted to flag a new opportunity for those looking to get international experience outside the United States. The Fulbright Program is inaugurating a new ‘Public Policy Fellowship’ for academic year 2012-2013. Here’s how they described it to me:

The Fulbright Public Policy Fellowship will allow fellows to serve in professional placements in foreign government ministries or institutions and gain hands-on public sector experience in participating foreign countries while simultaneously carrying out an academic research/study project. Fulbright Public Policy Fellowships will be offered in the following countries:

  • Bangladesh
  • Cote d’Ivoire
  • Dominican Republic
  • Guatemala
  • Haiti
  • Jamaica
  • Mongolia
  • Nepal
  • Nigeria
  • Thailand
  • Tunisia

U.S. Embassies, Fulbright Commissions (where applicable), and host country governments will coordinate appropriate professional placements for candidates in public policy areas including, but not limited to, public health, education, agriculture, justice, energy, environment, public finance, economic development, information technology, and communications.

Candidates must be in receipt of a master’s or J.D. degree by the beginning of the Fellowship (Summer – Fall 2012) or be currently enrolled in a Ph.D. program.  Applicants must also have at least two years of work experience in public policy-related fields.

The Application for the Fulbright Public Policy Fellowship opened on November 4, 2011.  Applicants must complete and submit the Fulbright U.S. Student Application including the supplemental Fulbright Public Policy Fellowship section by February 1, 2012.  Departure for assignments will begin in Summer – Fall 2012.

To access an application go here.

It Was Twenty Years Ago Today…

by Chris Borgen

Well, not really today, but it was about twenty years ago that what we now call (incorrectly, at times) the “frozen conflicts”– the separatist conflicts in Georgia, Azerbaijan, and Moldova– weren’t  frozen but were actually brushfire wars before settling into stalemates. Long-time readers of this blog may remember my interest in these conflicts, starting with the ongoing conflict in Moldova over the separatist region Transnistria and moving on to include the other conflicts, including the fight over South Ossetia.

This Friday, Columbia University’s Harriman Institute for Russian, Eurasian and East European Studies will host a conference called “Frozen Conflicts Twenty Years After the Fall of the Soviet Union.” Here’s the short description:

Two decades after the collapse of the Soviet Union the conflicts in Abkhazia, Nagorno Karabakh, South Ossetia and Transnistria remain unresolved and their dynamics continue to impact political stability, state-building and great power competition in the former Soviet Union. Over the last years, the international community’s strategy for addressing them has varied significantly. By bringing together leading scholars, policy analysts, and NGO representatives from Europe, the United States and Eurasia to discuss these issues we hope to provide an opportunity to reflect on the last twenty years and to think about possible steps forward.

The conference program is available as a pdf here. I’ll be one of the panelists on the 11:15 panel  and I will be speaking about the uses and abuses of international legal arguments in attempts to resolve separatist conflicts. If any Opinio Juris readers attend, please say hello!

Merely a Transactional Relationship?

by Harlan Cohen

Reading about the disintegrating relationship between the United States and Pakistan, I was struck by former Utah Governor, U.S. Ambassador to China, and Presidential-hopeful Jon Huntsman’s take on the situation. As reported in the New York Times:

Asked on “Fox News Sunday” how he would respond in such a situation, Jon M. Huntsman Jr., President Obama’s former ambassador to China who is now seeking the Republican presidential nomination, said, “I would recognize exactly what the U.S.-Pakistani relationship has become, which is merely a transactional relationship.” He said that American aid to Pakistan should be contingent on keeping the supply lines to Afghanistan open and continuing counterterrorism cooperation.

“And I think our expectations have to be very, very low in terms of what we can get out of the relationship,” he said.

Put in such starkly economic terms, the response immediately brought to mind the now well-known behavioral economics literature suggesting that social norms and economic incentives may sometimes work at cross-purposes and be incompatible. The most famous of the studies recounts an experiment done at an Israeli daycare center, in which the introduction of a fine for picking children up late actually increased the frequency of late-pickups. (Late pickup rates also stayed high after the fine was rescinded.) The lesson, it seems, is that putting a relationship in economic terms can sometimes undermine social norms that might otherwise have governed the relationship. As Dan Ariely explains in Predictably Irrational,

So we live in two worlds: one characterized by social exchanges and the other characterized by market exchanges. And we apply different norms to these two kinds of relationships. Moreover, introducing market norms into social exchanges, as we have seen, violates the social norms and hurts the relationships. Once this type of mistake has been committed, recovering a social relationship is difficult.

Figuring out the relationship between different mechanisms of influence, whether coercion, socialization, or persuasion – when to choose one over another, whether they can be employed together or work at cross-purposes, how they should be sequenced – is one of the hardest questions in compliance theory. In the best of all worlds, the U.S.-Pakistan relationship would be based on a solidarity forged of shared goals and values, and the temptation to keep trying to build such a relationship is easy to understand. But as the relationship between the U.S. and Pakistan spirals increasingly downward, does Huntsman have a point? Is a thinner, more clearly economic relationship, unclouded by appeals to shared concerns, the best that can be hoped for? (Of course, there are reasons why even that may not work, including questions about whether there’s enough governmental control to follow through on an agreed deal.)

The Failed Cluster Bomb Treaty: The Perfect Continues to be the Enemy of the Good

by Julian Ku

So talks on a new cluster bomb treaty have collapsed due to the refusal of countries party to the 2008 Cluster Bomb Convention to sign on to a less restrictive treaty that would have included the U.S, Russia, China, India and other key military powers. 

The draft treaty was vigorously promoted by the United States and had the backing of other major users and producers, including China, India, Israel and Russia. It reflected the increasing stigmatization of a weapon recognized as causing unacceptable harm to civilians and seen as having lasting effects on development for decades after conflicts have ended.

The effort was rejected by a group of 50 countries from Africa, Asia, Europe and Latin America, including many nations that had signed on to the 2008 Oslo Convention. The Oslo agreement imposed a comprehensive ban on the use, production, stockpiling and sale of cluster munitions.

The United States argued that the draft treaty, which would have banned the use of cluster munitions produced before 1980, presented an opportunity to regulate the major users and producers of the weapons that hold an estimated 85 percent of global stockpiles but had not joined the Oslo Convention, including the United States

So we are left with an extremely restrictive cluster bomb treaty that doesn’t reach 85 percent of the world’s cluster bombs, and we reject a less restrictive treaty that would have a wider much more effective reach.  I get the idea that international law has an important expressive value, but surely practical reach has got to considered at some point.

Bensouda vs. Othman for ICC Prosecutor (and Bensouda Should Win)

by Kevin Jon Heller

The ICC has announced that the Assembly of States Parties has eliminated Andrew Cayley and Robert Petit from consideration as Moreno-Ocampo’s replacement:

The Assembly of States Parties of the International Criminal Court (“the Assembly”) will hold its tenth session at the United Nation Headquarters in New York from 12 to 21 December 2011.

The tenth session will be marked by elections, which will significantly change the composition of the Court. The Assembly will elect a new President of the Assembly of States Parties for the tenth to twelfth sessions (2011 – 2013). Ambassador Tiina Intelmann (Estonia), was recommended for the post by the Bureau in July. She will replace Ambassador Christian Wenaweser (Liechtenstein).

The Assembly will further elect the Prosecutor who shall hold office for a term of up to nine years and shall not be eligible for re-election. As mandated by the Rome Statute, every effort shall be made to elect the Prosecutor by consensus. The four shortlisted candidates recommended by the Prosecutor Search Committee are: Ms. Fatou Bensouda (Gambia), Mr. Andrew T. Cayley (United Kingdom), Mr. Mohamed Chande Othman (United Republic of Tanzania), and Mr. Robert Petit (Canada).

After informal consultations among States Parties, it was decided to narrow the list to two candidates: Ms. Fatou Bensouda (Gambia) and Mr. Mohamed Chande Othman (United Republic of Tanzania). At the 1 December informal consultations, to be held in New York, States Parties will see if there is consensus on one candidate.

I am surprised that Cayley was eliminated — I think he would have made an excellent Prosecutor.  But, of course, it was always unlikely that a non-African candidate would be elected, especially when the final list included two Africans who were very well qualified for the position.

That said, I still think Fatou Bensouda is the clear choice for the next Prosecutor.  She offers the best of both worlds: an ICC insider who offers institutional continuity, which will be critical in the coming years, but has a strong, independent voice that has not been tainted by Moreno-Ocampo’s incompetent tenure.  Having spoken to numerous individuals involved in the ICC, from OTP staff to legal officers in Chambers to defense attorneys, it is clear that Bensouda was the primary reason that the OTP didn’t fall completely apart over the past eight years.

I have also had the good fortune to spend time with Bensouda over the past couple of years.  She is, to put it mildly, an incredibly impressive woman: smart, articulate, thoughtful (a welcome change from Moreno-Ocampo), and compassionate.  And her pre-ICC credentials are stellar, including significant posts at both the international level and in her native The Gambia:

Senior Legal Adviser at the International Criminal Tribunal for Rwanda (ICTR); Legal Adviser and Trial Attorney at the ICTR; Attorney General and Minister of Justice of the Republic of The Gambia; Solicitor General and Legal Secretary of the Republic of The Gambia; and Deputy Director of Public Prosecutions of the Republic of the Gambia.

Othman also has excellent credentials — although his role as Prosecutor General of the United Nations Transitional Administration in East Timor (UNTAET) has to count against him somewhat; the Special Panels for Serious Crimes were a fisaco.  But there is only one clear choice for the next Prosecutor, and that is Fatou Bensouda.

Fingers crossed.  We should know in early December.

No Nairobi for You, Omar

by Kevin Jon Heller

The High Court of Kenya has held that the government has an obligation to arrest Bashir if he sets foot on Kenyan territory:

The Kenyan High Court ruling was the result of a case that the International Commission of Jurists (ICJ) brought against Kenya’s attorney general and internal security minster in 2010.

“The courts have said that Kenya has an obligation to arrest Bashir if he is to come to country, if there was doubt as to the legal position, that has been clarified,” says George Kegoro, the executive director of the ICJ.

Al-Bashir visited Kenya last year to attend the ceremony for a new constitution. At the time Kenyan officials said that Kenya was beholden to African Union decisions on arresting the Sudanese president.

According to the ICJ, the court said local laws and international agreements such as the Rome Statue that Kenya has signed supersede African Union policies.

“We are satisfied with the ruling and we hope that it clarifies the legal and political situation in Kenyans relationship with Sudan,” said Kegoro.

This is a welcome ruling, especially with regard to the Court’s repudiation of the AU.  Strike one more country from Bashir’s Christmas-card list.

International Law in the Age of Austerity

by Julian Ku

The imminent collapse of the eurozone (and maybe the global financial markets as well) makes for terrifying reading. It also is one reminder of how the success of regional and international legal institutions has depended on the general health of the global economy  (and of wealthy states in Europe, North America, and East Asia).  Three stories from today, both big and small, remind me of just how powerful economic forces can be.

1) The eurozone is (according to the Economist) a few weeks away from collapsing absent some drastic measure to save it. Yet the EU’s main institutions seem helpless and European Commission leaders are squabbling. The real decision seems to be in the hands of Germany’s leader Angela Merkel. I don’t pretend to know what the right answer is to this crisis, but if the eurozone breaks apart, it is hard to imagine the EU survives in its current form.  Interestingly, the choice appears to be even greater fiscal union and dominance by Brussels, or giving up on the euro project and going their separate ways. It does make me nervous that the UK Foreign Office is preparing for civil unrest in the eurozone as a result of a possible euro collapse in the next month.  It also makes me nervous that the U.S. Federal Reserve may be preparing a “shock and awe” intervention into the European sovereign debt market. In any event, the EU as a gradual project of ever closer union through the forms of international law (e.g. treaties and such) seems unlikely to continue without substantially different institutional mechanisms (referendums anyone?).

2) The Kyoto Protocol is heading toward an ignominious expiration, with key participants like Canada already signaling they will not sign an extension, and may not even stay in the system until the 2012 expiration date. The cost is the protocol is a huge reason why even the EU is demanding big changes.

3) And on a much smaller note, the ICC has been complaining that their host country, the Netherlands, are being a little bit too dutch in refusing to continue paying the rent for the ICC’s temporary quarters in the Hague.  The ICC President mentioned this issue when he visited Hofstra recently.  It sounds like the ICC needs about 40 to 50 million euros (or perhaps some other safer currency) to get it to 2015 when its new building opens.  This amount shouldn’t be a problem but it is a sign of our new age of austerity that the open checkbook for international criminal justice is also coming to an end.

Foreign Relations Federalism: The Promise of Targeted Retaliation, in Alabama

by Peter Spiro

I’ve been arguing for some time (here, here, and here, all pre-SSRN) that the globalized economy enables the world to directly discipline US states in the context of foreign relations and human rights, and that this in turn erases the need for a dormant federal foreign affairs power.

The thumbnail version: in the old world, state-level foreign relations activity involved intolerable externalities to the extent international actors held the nation responsible for state-level misdeeds, along the lines of Hamilton’s “the peace of the Whole ought not be left to the disposal of a Part.”  That’s no longer a problem if international actors hold states discretely responsible, and put their money where there mouths are, through boycotts or redirected foreign direct investment. The situation becomes self-correcting, eliminating the need for judicial intervention and any departure from ordinary federalism baselines.

The institutional logic has always seemed pretty strong to me, and globalization supplies the tools.  The problem has been (loosely speaking) an empirical one.  There aren’t too many examples of targeted retaliation on the ground (for a small handful, the most interesting one involving California’s unitary taxing scheme that ending up being upheld in Barclays Bank, but later repealed, see pp. 1261-70 of this).

Along comes Alabama’s recent immigration law H.B. 56 (immigration law is inherently a foreign relations issue because it implicates citizens of other countries).  From an editorial in today’s NYT, on the “price of intolerance”:

A growing number of Alabamians say the price will be too high, and there is compelling evidence that they are right. Alabama is already at the low end of states in employment and economic vitality. It has long struggled to lure good jobs and shed a history of racial intolerance.

That was turning around and many foreign manufacturers, including Mercedes-Benz, Hyundai and Honda, have set up there. Its business-friendly reputation took a serious blow with the arrest in Tuscaloosa of a visiting Mercedes manager who was caught driving without his license and taken to jail as a potential illegal immigrant.

Sheldon Day, the mayor of Thomasville, has aggressively recruited foreign companies to his town, including a Chinese company — Golden Dragon Precise Copper Tube Group — that plans to build a $100 million plant there, with more than 300 jobs.

Mayor Day is now worried about that project and future prospects. He was quoted by The Press-Register in Mobile as saying business inquiries had dried up since the law was passed. “I know the immigration issue is being used against us.”

Alabama’s competitors certainly won’t waste any time. After the Tuscaloosa incident, the editorial page of The St. Louis Post-Dispatch invited Mercedes to Missouri. “We are the Show-Me State,” it said, “not the ‘Show me your papers’ state.”

A similar story has been unfolding in Arizona with respect to SB 1070.  The equation is pretty simple. Anti-immigration measures look good to state legislators until they lead to lost jobs. Other states see an opportunity to attract foreign business with a more accommodating attitude. Bad state learns a lesson, steps back from offending law.  Competitive federalism at its best.

George Kennan, International Lawyer?

by Harlan Cohen

Many of you have probably seen the reviews of John Lewis Gaddis’ new biography, George F. Kennan: An American Life. John Gaddis was one of my mentors in college and graduate school, and I have really enjoyed seeing what I know to have been a labor of love reviewed so favorably. Congratulations John!

Kennan, the man primarily known as the author of the U.S.’s Cold War “Containment” strategy, is a fascinating figure and he and his work could be the focus of any number of interesting international law conversations. A quick search within Westlaw’s JLR database yields 394 citations to George Kennan, 132 specifically to his book, American Diplomacy (admittedly, at least one of those is mine).

To start with, one could talk about his signature policy. What were the international law implications of a containment policy that divided the word into two separate spheres? In what ways was international law mobilized as an instrument of that policy? To what extent were jurisprudential schools/approaches shaped by realities of containment? In current terms, our containment policies have taken on an increasingly legal cast, whether in the form of UN sanctioned sanctions, no-fly zones, inspection regimes, or interdiction on the high seas or by using conditional membership in regimes and clubs as a carrot and stick. How well have these tactics been working? Perhaps the time has come to reassess Kennan’s signature idea.

We could also talk about Kennan’s complex realism and his well-known critique of “the legalist-moralist approach” in American foreign policy. We could take it on its own terms: How valid was his critique? Looking at the conflicts of the moment, was he right that moralism in international affairs only makes conflicts worse? Or we could probe the critique, asking how well Kennan understood international law and whether his views, when fully understood, may actually suggest more of a role for international law than might be apparent from his rhetoric. Kennan’s realism was complex and conflicted; he had faith that the West’s ideas would triumph eventually and lamented policymakers’ over-reliance on military tools. We could also look at Kennan in his intellectual-historical context, looking at how he reflected and helped steer developing American understandings of international law (a particular interest of mine.)

But in reading the reviews of Gaddis’ book (I admit that I have not yet read the book. Cut me some slack! It came out last week.), the thing that stood out was his personal story, one Henry Kissinger refers to in his New York Times review as “a kind of tragedy.” Kennan was most definitely not an international lawyer, but his difficulties navigating the foreign policy establishment sound familiar. Certainly, Kennan’s ambivalence about the morality of a policy of nuclear deterrence based on the threatened destruction of humanity is recognizable to international lawyers. More broadly though, Kennan’s tragedy was to have always been stuck on the outskirts of foreign policy making. Kennan was the policy architect, trying to create rules for a new chaotic game of diplomacy. And it was his attachment to principle that frustrated his State Department bosses and got him fired from the few key positions he attained. Kennan was too much the intellectual, too much the philosopher, to fully adapt to the hypocrisy of diplomacy, and yet he too struggled to find balance between idealism and its exceptions.

As Fred Kaplan sums up in his New York Times review,

Repeatedly Kennan would retreat to the groves of academe to escape the ulcer-inducing agonies of rejection; yet he would wait by the phone or shamelessly call to offer his services whenever a new president entered office.

Hopefully, we don’t all share Kennan’s ego, but I can’t help wondering if Kennan’s plight is our own, to be right at the outskirts of power – at our best, highly influential as architects or critics, but too constrained by our professional norms and training, our propensity to make things simultaneously too simple and too complicated, to be in the driver seat of policy for long. I’m curious what others think?

Anyway, I for one am looking forward to reading the book.

Dapo Akande on Surrendering Saif — and a Brief Reply

by Kevin Jon Heller

Dapo Akande has a typically excellent discussion of the surrender issue today at EJIL: Talk!, in which he agrees with Jens Ohlin and disagrees with me.  In his view, Libya is entitled to challenge the admissibility of the case against Saif without having to first surrender him to the ICC. I find much of Dapo’s argument convincing, but I am skeptical of the way in which he distinguishes Article 89(2), which he admits is critical to the issue.  Here is what he says (emphasis mine):

One of the strongest arguments against construing Article 95 as permitting the suspension of the obligation to surrender persons in all cases where admissibility is challenged is that it seems to render redundant Article 89(2) which specifically permits suspension of the surrender obligation where there is a ne bis in idem challenge. Why have a specific suspension of the surrender obligation if there is already a general suspension of that obligation under Art. 95?  The answer is that the general suspension under Art. 95 only applies where there is a challenge to admissibility made to the ICC under Articles 18 and 19. However, the situation contemplated in Art. 89(2) is slightly different as it relates to a challenge made in a national court but related to ne bis in idem as provided for in Article 20. In this case Article 95 does not apply on its face as there is no admissibility challenge at the ICC. The matter is complicated because Article 89(2) later speaks of the possibility of a pending admissibility ruling thus suggesting that there has in fact been an admissibility challenge at the ICC. However, this is not necesarily so as the ICC can determine admissibility on its own motion (Art. 19(1)) and Art. 89(2) suggests that even in that case the obligation to surrender is suspended.

Dapo’s argument relies on the distinction between a ne bis in idem challenge brought by a suspect at the ICC (which would fall under Article 19) and a ne bis in idem challenge brought by a suspect at the national level (which would fall under Article 89(2)).  But that distinction seems illusory to me.  To begin with, nothing in the Rome Statute actually allows a suspect to challenge admissibility in a national court on the basis of ne bis in idem.  (Article 20 implies that a suspect could bring a domestic ne bis in idem challenge when he has been previously tried by the ICC and is seeking to avoid a second trial in a national court, but that is not what is contemplated by Article 89(2), where the duty to surrender a suspect to the Court is at issue). The only provision that permits a suspect to challenge admissibility — on any ground — is Article 19(2), which clearly, if not explicitly, concerns admissibility challenges brought at the ICC.  So I fail to see how Article 89(2) is not redundant if Article 95 is not limited to requests for evidence, as its second clause implies, but requires suspension whenever “there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19.”

It is also difficult to understand what a ne bis in idem challenge in a national court would look like.  A national court obviously has no power to hold that the ICC cannot prosecute a suspect again; at most it can instruct the state to challenge admissibility on the suspect’s behalf.  But in that case the suspect’s (successful) ne bis in idem challenge in national court is effectively a state challenge to admissibility.  Dapo’s reading of Article 95 thus still renders Article 89(2) redundant, because Article 95 would suspend the surrender obligation independent of Article 89(2).

Finally, I think it is important to note that there is an important policy consideration that cuts against accepting Dapo’s interpretation of Article 95: it makes it much easier for states to shield their nationals from the ICC for unacceptable reasons.  We do not have to worry about a state that is committed to the ICC: that state will bring a good-faith admissibility challenge and then turn the suspect over if it loses. A state that wants to shield a suspect from justice, however, will simply hold on to that suspect pending an admissibility determination — as Dapo believe Article 95 permits — and then refuse to turn him over if it loses that challenge.  Why would the drafters of the Rome Statute have enabled that kind of bad faith?  It makes more sense to believe that the drafters wanted to require states to turn the suspect over as a condition of bringing an admissibility challenge, thereby avoiding situations in which the Court goes to the time and effort of addressing admissibility when there is little if any hope (see, e.g., Sudan) that the state will comply with a finding that goes against it.  Indeed, viewed in that light, my reading of the interrelationship between Article 89(2) and Article 95 makes perfect sense: the surrender obligation is suspended only in the one situation in which we do not have to worry about a state acting in bad faith, because the state has already genuinely prosecuted the suspect.  (If the state has not genuinely prosecuted him, because it wants to shield him from justice, it will not need a formal ne bis in idem challenge by the suspect to refuse to surrender him to the Court.)

Readers, any thoughts?

Stahn on Libya and the ICC

by Kevin Jon Heller

My friend and PhD supervisor Carsten Stahn has posted a very interesting discussion of Libya and the ICC at the Hague Justice Portal.  Here is a taste:

One possible option to reconcile domestic jurisdiction with accountability before the ICC may be a division of labor based on temporal jurisdiction. In line with the Council referral, the ICC enjoys jurisdiction as of 15 February 2011.  There is no conflict of jurisdiction with respect to crimes committed prior to that date. To frame accountability in light of this distinction may, however, pose significant challenges in practice. If proceedings go ahead first with respect to atrocity crimes before the ICC, and if defendants are sentenced, chances of a subsequent trial in Libya are remote. The ICC will have to enter into an arrangement with respect to the enforcement of a possible sentence in a ‘State designated by the Court’ which indicated its ‘willingness to accept sentenced persons’. An enforcement of sentence in Libya would be unlikely, given its status as non-State Party, its detention regime and its current penalty provisions.This would complicate a second domestic trial for conduct other than that adjudicated by the ICC.

You can read the entire post here.

The Eurozone Crisis Is Also a Governance Crisis – Isn’t It?

by Kenneth Anderson

Over the last few months, as the eurozone crisis has gathered steam, I have wondered what the crisis means for the governance structures of the EU.  One answer is, not much — the political leadership will somehow muddle through as it always does, on the basis of discretionary deals among the national leaders of European states.  Then the institutional arrangements will be adjusted after the fact to reflect whatever happened in the politics of the event.

In that case law, in the sense of legally binding governance arrangements, is epiphenomenal on political contingency which, in this case, is contingent upon relations with the financial markets, which is to say, upon the willingness of lenders to continue to lend and roll over debt.  Even something as apparently legally binding as the ECB’s charter turns out not to be legally binding on any ordinary reading of it.  On this account there’s not a lot to say from the standpoint of governance theory or institutional governance arrangements because the EU’s lawyers will not know how to (re-)arrange the legal furniture until afterwards.   The role for the governance lawyers is the lawyer-as-scribe; the legal rules are post-hoc and revisable according to the contingencies of politics.

This does not seem to me a plausible way of looking at the role of legal rules; if it were, it seems unlikely to me that European states would have been lent this amount of money by investors globally.  Why not?  Because investors don’t like to lend into discretionary legal regimes, for obvious reasons.  But leave that aside.  I have raised these points before, and have been nonplussed by how little commentary there is by European public lawyers on the question of institutional design, exit from the Eurozone, etc.  This, even as it appears from various leaked documents that various important national and EU agencies are indeed privately trying to plan for various contingencies.  Presumably they do so as legal experts inside governments and Brussels bureaucracy who must devise new structures of rules, institutions, and law and, just as crucially, a way from here to there (if that is what happens) – and a way that best preserves institutional legitimacy and minimizes what might be catastrophic economic disruption if institutions break down and fail.

If there is regular commentary by the academics and intellectuals in the EU, I would be grateful to hear about it and find out where to read it.  I read Peter Lindseth closely, and David Bosco at Multilateralist is always good, but I cannot find a lot of constitutional design voices in Europe weighing into this.  I would have thought that the same community of academics that produce much scholarship on constitutionalism in the EU would tell us what the legal and institutional options are.  Martin Holtermann, commenting here on my earlier posts, has done as good a job in a few paragraphs as I’ve read, giving an account of how the discretionary summitry is all okay within governance structures of the EU.  But I would like to read more and in much more depth; if you can tell me where it is, I would be grateful.  I am not an EU lawyer or theorist of the EU; I don’t pretend to know all of this stuff myself.

What worries me is that when I pose this question to some very smart EU scholars I know, there is a shrug as if to say, this isn’t about the stuff of political governance or “real” constitutionalism at all — this is just about money and the institutions that manage money.  Whether Greece is in or out of the euro is not all that important; the euro is not all that important, it’s just a currency.  The real EU is not about money, it’s about values.  The law that matters to EU constitutional theory is not about the ECB, but instead the European Court of Human Rights.  No matter what happens to credit ratings, the Eurozone banking system, Greece or even Italy in the sense of in or out of the eurozone, the ECJ and ECtHR will continue to issue rulings on rights and values issues, and those are what actually matter.  One can have a sanguine attitude toward the economic aspects — and indeed not have any understanding of them — and still regard governance of the EU as same as it ever was, because the things that make the EU the EU are its ideals and values, not mere money.

I caricature my friends, no doubt.  But caricature or not, this strikes me as dubious at best.  As we (residual) marxists like to say, money is never “mere.”  Of course money, banking, credit, etc., are at the heart of the governance project, because they structure the material — and, come to it, the moral and spiritual — conditions of the rest of it.  Are these conditions really unrelated to the legitimacy, weight, impact and force of such institutions as the ECtHR?  Now, I do understand a reluctance to opine, particularly in an academic, as distinguished from immediate policy, way on events that are unfolding now and are quite uncertain at this moment.  Fair enough.  But I don’t even see much policy discussion of what all this stuff is supposed to mean in terms of legal governance, at least in the places I would normally consult.

One is tempted to conclude, at this point, that the political theory of the EU today is being written by financiers and financial analysts in their credit reports.  They are anxious, after all, only secondarily about markets.  They are primarily anxious about governance and structures of governance — because the markets are trying to figure out whether the institutions of the EU and its members are serious about their legal and political commitments, and in what ways and to what extent. The state of the markets depends upon the state of these several institutions. And the state of the institutions — given that the legal rules and their application is apparently deeply in flux, unless one simply assumes that the rule of law is whatever discretionary action European leaders decide upon this week — is a matter of conjuring forward the political theory of these institutions.

So they, the financiers, are conjecturing the possible governance futures of the eurozone and the EU.  They are market analysts reluctantly turned political theorists because it is political theory that suggests one path or another for the application of legal regimes that appear to be much less determinate than once thought.  For George Soros, the move from one to the other is natural and logical; for most credit analysts and hedge fund managers, this is a strange turn indeed.  If you have places to point me for analysis of the governance issues, I would be grateful to find out.

How Not to Defend a Legally Inaccurate Article

by Kevin Jon Heller

I’ve made more than my share of mistakes in my six years of blogging.  It’s painful and embarrassing, but it happens.  All you can do is admit your mistakes and move on.

Unfortunately, that is not the approach taken by the author of the terrible Mother Jones article I discussed yesterday.  Suebsaeng doesn’t believe that he made any mistakes.  On the contrary, he claims in an email to me that “[a]fter reading your objections, I see that they are counterarguments I fully considered and quickly rejected.”  So let’s take a look at that “full consideration” that led to the “quick rejection” of my “counterarguments,” shall we?

I am perfectly aware that “Geneva Conventions” would have been almost as weird for Romney to say during the debate. However, I didn’t go into that because it would be almost trite to include something like, “citing the Geneva Conventions would be weird, but invoking the genocide convention would be even more extreme and give more pause,” which it did for me. Almost, it doesn’t hurt that he stumbled on both terms during the night’s debate.

So, according to Suebsaeng, it is “even more extreme” and “give[s] more pause” for someone to cite the Genocide Convention with regard to an argument about genocide than the Geneva Conventions.  This despite the fact that, you know, the Genocide Convention deals with genocide and the Geneva Conventions do not (and do not even apply to the war of words between Iran and Israel).  Color me corrected!

Carefully read your previous post and the Genocide Accountability Act and then tell me if there’s anything in there that actually contradicts anything Blackney said or I wrote (if you are familiar with it, members of CAP’s “Enough Project” came to the same conclusion as we did, among many others). For starters, you don’t address how difficult it would be to prove in court that Ahmadinejad’s comment actually amounted to incitement or “the specific intent to destroy” a people. Whether they were or were not—and whether they were wholly reprehensible or despicable or not—is almost beside the point here.

I read my post (carefully, even!), and it does indeed contradict both what Blackney and Suebsaeng wrote.  Blackney argued — and Suebsaeng implied — that Romney’s genocide claim, if he pursued it as President, would “fundamentally change American policy toward the ICC and the Genocide Convention.”  In fact, nothing could be further from the truth.  As I pointed out, the US does not need the ICC to prosecute genocide, because it is perfectly capable of prosecuting genocide itself; in fact, because of the Genocide Accountability Act, federal courts have much broader jurisdiction over genocide than the ICC: whereas federal courts have universal jurisdiction, the ICC is limited to territorial and nationality jurisdiction. (Which means that the ICC would need a Security Council referral to prosecute Ahmadinejad, whereas a federal court would just need to get its hands on him.)  And, of course, nothing in Romney’s statement is in any way inconsistent with the Genocide Convention, which specifically prohibits direct and public incitement to genocide.

As for Suebsaeng’s comment about the merits of Romney’s claim — well, as I said in my post, I completely agree that the claim is weak.  But that doesn’t change the fact that the article is based on a fundamental misunderstanding of both the ICC and the Genocide Convention.

Re: your rhetorical question: “Why would we want to wait until after the genocide took place to prosecute those who incited it?” — Of course it is should be expected of our leaders to do everything they can to prevent or preempt mass killing (see: NATO action in Libya… you must’ve been in support of that, right??); my point is that it would be unprecedented to indict a foreign leader on such a serious charge with such a fragile case. You again bring up the “incitement” point, which, as I mentioned earlier and I’m sure you already know, would be staggeringly hard to prove, especially if there isn’t solid evidence of preparations for an coming slaughter/extermination of the Israeli people by the Iranian regime. (Existing, related arguments regarding Iran’s nuclear program and support for organizations like Hezbollah generally do not jump to invoking the genocide convention, and for good reason.)

As I said in the post, such a prosecution would be unprecedented.  But notice that Suebsaeng doesn’t bother to explain why that means such a prosecution could not succeed — which is kind of important, given that direct and public incitement is specifically designed to be an inchoate crime.  (I guess Suebsaeng is against the Affordable Care Act, because the individual mandate is unprecedented, even if it is perfectly constitutional.)  And, of course, Suebsaeng digs his legal hole even deeper by claiming that genocide charges against Ahmadinejad “would be staggeringly hard to prove, especially if there isn’t solid evidence of preparations for an coming slaughter/extermination of the Israeli people by the Iranian regime.”  Suebsaeng is absolutely right that Romney’s claim is weak, but that is not because of the absence of “solid evidence of preparations” for genocide. Sure, such evidence always helps prove genocide’s necessary specific intent (and Suebaseng should really use “specific intent” instead of the sloppy “direct intent and premeditation,” which is not the same thing).  But it’s not legally necessary, as every international criminal law scholar knows.

Suebsaeng concludes his email by stating that “for these reasons and more, I stand by what I wrote, and think that your blog post entirely misses the key points.”  Maybe the additional reasons that Suebsaeng didn’t bother to share with me are compelling.  The reasons he did share are not.  Suebsaeng can stand behind his post all he wants — but that simply means he stands behind a post that exhibits an almost complete lack of understanding of the ICC, the Genocide Convention, the Genocide Accountability Act, and the nature of direct and public incitement to genocide.

Feasting and Saber Rattling at the First Thanksgiving

by Roger Alford

We have certain images in our minds about that first Thanksgiving. It usually involves bountiful harvests, amicable relations with the Indians, and prayerful thanksgiving to Providence for his manifold blessings.

Well, it wasn’t quite that simple. Although there are various versions of the “first Thanksgiving,” one event that has a strong claim to it occurred at Plymouth, Massachusetts in the fall of 1621. Unlike subsequent harvest celebrations (particularly the other “first Thanksgiving” in the summer of 1623), this “first Thanksgiving” had as much to do with a display of force to the Indians as it did grateful hearts to God. Those new immigrants were thankful to God and fearful of neighbor. So what better way to address both concerns than a celebratory display of feasting and saber rattling.

Here is how historian Diana Karter Appelbaum describes it in her book Thanksgiving: An American Holiday, An American History:

Landing at Plymouth in December 1620, the Pilgrims faced winter without an adequate food supply, sheltered from the elements only by such dwellings as they could build quickly. Unseen, dreaded Indians lurked in the woods, their intentions unknown. Faith and prayer sustianed the pious settlers–their first act upon setting foot on dry land was to kneel and pray. Records of the settlement are punctuated by notations of recurrent occasions when “solemne thanks and praise” were offered.

Only 55 of the 102 immigrants lived through that first winter, but when spring came, all 55 committed themselves to life in the New World and resolutely watched the Mayflower sail back to England without passengers. Tisquantum, an Indian of the Wampanoag tribe who had once been carried off by fishermen to England, where he learned to speak the settlers’ tongue, befriended the colonists. They called him Squanto, and under his direction the colonists learned how to plant New World crops of corn and squahs, where to catch fish and how to hunt. Squanto also served as negotiator and interpreter, helping to conclude a treaty that kept the peace for 50 years between the Pilgrims and the Wampanoag sachem, Massasoit.

The first autumn, an ample harvest insured that the colony would have food for the winter months. Governor Bradford, with one eye on the divine Providence, proclaimed a day of thanksgiving to God, and with the other eye on the local political situation, extended an invitation to neighboring Indians to share in the harvest feast. In order to guarantee that the feast served to cement a peaceful relationship, the three-day long meal was punctuated by displays of the power of English muskets for the benefit of suitably impressed Indian guests.

This “first Thanksgiving” was a feast called to suit the needs of the hour, which were to celebrate the harvest, thank the Lord for His goodness, and regale and impress the Indians. We have Edward Winslow’s testimony that the feast was a success:

Our harvest being gotten in, our Governour sent foure men fowling, so that we might after a more special manner rejoyce together, after we had gathered the fruit of our labours; they foure in one day killed as much fowle, as with a little helpe beside, served the Company almost a weeke, at which time among other Recreations we exercised our Armes, many of the Indians coming amongst us, and amongst the rest their greatest King Massasoyt, with some ninetie men, whom for three days we entertained and feasted, and they went out and killed five Deere which they brought to the Plantacion and bestowed on our Governour, and upon the Captaine, and others.

… They worked with the resources at hand, and although they successfully fed the hungry men, the feast bore little resemblance to the modern Thanksgiving dinner. Partridges, ducks, geese, and turkeys could be shot along the shores of Cape Cod Bay in the fall, and it may be that those who went a-fowling brought back some of each to be roasted or stewed. Although there is no proof that turkey was eaten at Plymouth that day, it is certain that there was venison and equally certain that some items were missing. There was no apple cider, no milk, butter or cheese (no cows had been aboard the Mayflower), and no bread–stores of flour from the ship had long since been exhausted and years would pass before significant quantitaties of wheat were successfully cultivated in New England.

What they did have were pumpkins and corn; these grew abundantly, and colonists ate them until they were cordially tired of both. With no flour and no molasses, there was no pumpkin pie, but there was plain, boiled pumpkin to eat. Corn was more versatile. It was boiled as “hasty pudding,” kneaded into ersatz bread and fried in cakes. Cranberries may have been boiled for a honey to sweeten the sour, red berries. Nine little girls and 15 boys were in the company, and they, or some of the hunters, may have gathered other wild fruits or nuts. Oysters, clams and fish rounded out the abundant, but far from epicurean, feast that the celebrators would have been more likely to call a “harvest home” than a “thanksgiving” celebration.

Thanksgivings were holy days of solemn prayer in the Puritan lexicon, days akin to sabbaths and fast days on which “Recreations” and “exercising Armes” would not have been countenanced. Had the governor proclaimed a day of thanksgiving to Almighty God, Edward Winslow, one of the Pilgrim Fathers, would have written about the religious services the settlers held. Thus this feast was more harvest celebration than prayerful day of thanksgiving.

Hope you have a wonderful day of thanksgiving, fowling, and recreation. Presumably you will have no need to exercise arms to suitably impress the neighbors.

(Republished from previous post)

Country of Origin and the International Turkey Trade or “Is that Turkey Kosher?”

by Harlan Cohen

Many of you have probably already seen the fascinating story of how a North American Bird got the name of a European/Asian country. According to at least one explanation, the bird of the genus Meleagris that many of us will eat today first found its way to England, not via New World explorers and colonists but via Turkish traders who had previously acquired the bird from the highly secretive Spanish. “Turkey coq” was how the English came to know to the new poultry.

But the confusion over the bird’s country of origin extended beyond that and had real legal implications. In other parts of the Old World, the new birds were believed to be from India, not Turkey, a misconception that lives on in the Hebrew, Arabic, Russian, and even Turkish words for the bird, which translate roughly as “Indian bird” or “Indian chicken.” This may have been because arriving from Turkish traders they were assumed to come from the East and India was a common shorthand, because of confusion caused by Columbus’ description of his discoveries as the Indies, or because of confusion with other birds also arriving in Europe at the same time, some of which might have actually been from India.

Proper labeling had important legal implications, at least within Jewish law. With all the new foods from Asia, Africa, and the Americas appearing at market, Rabbis needed to quickly figure out which were kosher. The new birds arriving in Europe posed a particular problem because the Bible lists both kosher birds (e.g., Chicken) and non-kosher birds (e.g., Vultures); a bird unknown in ancient times would have been on neither list. Although there are complicated alternative tests (if you really want to know, see here and here), a key, possibly dispositive question in determining the bird’s status is whether there is a tradition within the Jewish community of accepting the bird as kosher. Essentially, the rules include a “safe harbor” for animals already vetted by the authorities (the rabbis) of the place of origin. Here’s where getting the country of origin right matters: If the bird was from North America, there would have been no tradition regarding it. There were, however, longstanding Jewish communities in India, and at least some early legal opinions, confused about the bird’s identity, held the birds to be kosher in reliance on the reported Indian Jewish traditions.

Eventually, the confusion dissipated, and today, the issue is generally settled. By now longstanding tradition, many American Jews will eat Turkey this Thursday night.

Next up in mislabeled fowl and Jewish law, Russo-American Relations and the Muscovy Duck

Come On, Mother Jones, You Can Do Better (Mitt Romney Edition)

by Kevin Jon Heller

Lord knows I can’t stand Mitt Romney.  And I have never bought the idea that Ahmadinejad has committed direct and public incitement of genocide through his inflammatory anti-Israel rhetoric.  But this Mother Jones article is still staggeringly awful:

When asked about Iran and Israel at Tuesday’s CNN national security debate, on-and-off Republican front-runner Mitt Romney replied in his typically tough, unambiguously pro-Israel fashion. After chiding the Obama administration for being “disrespectful to our friends” and playing softball with our foes, Romney said that as president he would take the necessary steps to confront the Iranian regime. One of the hallmarks of his plan: indicting Iranian President Mahmoud Ahmadinejad for “violating the genocide convention.” (During the debate, Romney first said “Geneva Conventions” before backtracking and going with “genocide convention.”)

You could give Romney the benefit of the doubt, and assume that he actually did mean to say the “Geneva Conventions” and that, under the pressure of a nationally televised debate, he merely misspoke. But Romney simply meant what he meant; he has been calling for this indictment since at least the end of 2007.

[snip]

Because Romney has been calling for this indictment since before Iran’s bloody Green Movement protests, it’s safe to assume that he was specifically referring to the Iranian President’s over-the-top, alleged call for Israel to “be wiped off the map.”

And here’s where candidate Romney again steps into the murky waters of international law: The Convention on the Prevention and Punishment of the Crime of Genocide, as adopted by the United Nations General Assembly in the years after World War II, defines genocide as any number of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Experts in the field cite an array of factors that would almost certainly impede Romney’s proposed foreign policy initiative. “There are so many layers to [Romney’s] argument that need to be explored because the implications are very serious,” says Elizabeth Blackney, an anti-genocide activist and communications strategist. Blackney also argues that before any potential Romney administration can determine if Ahmadinejad’s comments or threats would justify US support for an indictment, the former Massachusetts governor needs to elaborate on his plans. “US policy has been to not honor the International Criminal Court; we are not a signatory to the Rome Treaty. So is Romney signaling that he would recommend law enforcement under the [statute]… and fundamentally change American policy toward the ICC and the Genocide Convention? [His comment during the debate] was not very well thought out.”

While there have been other voices arguing in favor of such an indictment, it’s widely interpreted that a statement supposedly egging on genocide is not legally considered a tool of genocide, unless it can be taken into evidence as proving direct intent and premeditation. Furthermore, it would be unprecedented to indict a foreign leader for a genocide that hasn’t even taken place yet.

How many errors are there in these six paragraphs?  Let me just mention the three most glaring.  First, Romney was clearly correct to cite the Genocide Convention; the Geneva Conventions, of course, say nothing about genocide and apply only in armed conflict (which, last time I checked, doesn’t exist between Iran and Israel).  So no, he didn’t misspeak.

Second, nothing in Romney’s statement signals that he intends to “fundamentally change American policy toward the ICC and the Genocide Convention.”  If Ms. Blackney or the author of the article had bothered to do five minutes of research, they would have realized that Congress enacted the “Genocide Accountability Act” in 2007, which gives U.S. courts conditional universal jurisdiction over genocide.  The U.S. could thus prosecute Ahmadinejad for genocide — assuming it could get its hands on him — regardless of its refusal to join the ICC.  So, in fact, it is Ms. Blackney’s and the author’s comments that are “not very well thought out.”

Third, it would indeed be “unprecedented to indict a foreign leader that hasn’t even taken place yet.”  But so what?  Direct and public incitement to genocide — Article III(c) of the Genocide Convention — is an inchoate crime; it does not in any way require the incited genocide to be carried out.  Indeed, the whole point of criminalizing an inchoate form of genocide is to prevent the occurrence of actual genocide.  Why would we want to wait until after the genocide took place to prosecute those who incited it?

I love Mother Jones.  But the magazine needs to not let its (wholly justified) contempt for Mitt Romney to get in the way of basic journalistic accuracy.

Welcome to the Blogosphere, LieberCode!

by Kevin Jon Heller

My friend Jens Ohlin — Associate Professor of Law at Cornell and one of the very best substantive international criminal law scholars writing today — has started a solo blog, LieberCode.  Like his scholarship, the posts are top notch; recent entries address Libya and positive complementarity; the Florence Hartmann saga; targeted killing and citizenship; and the presumption of regularity regarding intelligence reports in Latif.  I hope Jens can continue his productivity; running a solo blog can be a thankless endeavor.

Check the LieberCode out here.  Go now.  I’m waiting…

What if ATS Liability has Nothing to do With “Customary” International Law? Part II

by Harlan Cohen

In my prior post, I suggested that the standards for aiding and abetting liability and corporate liability that emerge (or don’t emerge) out of the jurisprudence of international criminal courts are best understood not as customary international law, but instead, as a form of international criminal common law.  One initial reaction to this argument might be if these rules aren’t customary international law, then they should have no role in interpreting and applying the Alien Tort Statute.  I think this reaction is incorrect.

First, nothing in the ATS references customary international law, and the ATS certainly doesn’t codify the high-modern sources doctrine of Lassa Oppenheim.  What the ATS instead references is the “law of nations.”  The goal should be to ascertain what rules actually form part of that law, whatever form they take.  The ATS itself dates back to 1789, a time long before Art. 38, when the list of international law’s sources was considerably more complex, and where many of the rules could be understood, as Blackstone did, to be a matter of a certain type of common law.  (As a note, the law developed by 18th-century Prize courts, perhaps the highest profile law of nations in 1789, often bears a much closer resemblance to the sort of transnational/international common law described in the prior post, than to a modern customary international law described by Oppenheim.)  If international law has developed to include new forms of law, including area-specific common law, then these forms should be as relevant to the ATS as customary international law would be.

More importantly, recognizing that the jurisprudence of international criminal tribunals represents a certain type of international common law should clarify how we think about these precedents in the ATS context.  For one thing, it moves us away from confusing debates about how many states practice/recognize these rules and equally confusing questions about how we would even figure that out.  More specifically though, to the extent the standards developed in various tribunals are common-law gap-fillers, they must be understood as (1) dependant on the explicit or implicit delegated authority of the tribunals to decide the cases before them, and (2) highly keyed to the specific context in which they’re being applied.  They should not be seen as authoritative answers to broader questions about aiding and abetting liability or corporate liability outside the context of the specific tribunal and its charge, let alone outside of international criminal law.  Instead, much in the way domestic courts borrow common law rules from other areas or other jurisdictions, courts should follow these international criminal law rules when they seem to properly and convincingly expound the principles at issue in the cases before then.  In the context of the ATS, this means being very careful about the translation of these rules from the context of certain international crimes to others and from criminal law to tort.

Recognizing that these rules are a type of international common law developed as gap-filler by courts also dovetails well with the view that issues like these have been and continue to be delegated to different courts to resolve according to their own rules and in accordance with their own legal systems.  And to the extent that these issues under the ATS must be resolved via federal common law, as Ingrid Wuerth proposes, it suggests how and why that federal common law might take account of both the jurisprudence of these tribunals and traditional federal common law principles in crafting rules applicable to these cases.  A federal court applying the ATS might, for example, find Nuremberg era decisions about corporate liability too tied to criminal liability and to the specific politics of that moment, and opt for traditional federal common law principles about corporate liability for torts instead.  Or it might mix the two in some way that seems appropriate to the context.

Does Libya Have to Surrender Saif to the ICC? (Answer: Yes)

by Kevin Jon Heller

Most commentators have assumed — Julian included — that Libya has an obligation under the Rome Statute to surrender Saif Gaddafi to the ICC before it can challenge the admissibility of the case against him.  At The Multilateralist today, David Bosco quotes a UN diplomat who believes that Libya can challenge admissibility without first surrendering Saif:

[Y]esterday, an extremely well informed diplomat at the UN got in touch to point me to a provision in the statute that appears to anticipate the possibility a country holding onto the subject of an arrest warrant while that state argues that it can try the individual. The provision is Article 19(8):

Pending a ruling by the Court, the Prosecutor may seek authority from the Court…(c)  In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.

As the diplomat pointed out, this provision is nonsensical if a state must turn over anyone subject to an arrest warrant immediately. None of this means that the Libyan authorities can ignore the court; the ICC judges should, as a legal matter, still have the last word on where he will be tried. But it does mean that they may be within their rights to hold onto Saif while they convince the judges.

Although the Rome Statute is not the picture of clarity on the issue, I do not believe that the UN diplomat is interpreting Article 19(8)(c) correctly.  In my view, that provision envisions a situation in which a state challenges admissibility on the ground that it is investigating a suspect whom it does not yet have in custody.  We don’t normally talk about a suspect “absconding” from custody; “escape,” maybe, but not abscond.  Indeed, the two primary dictionary definitions of “abscond” are to “[l]eave hurriedly and secretly, typically to avoid detection or arrest,” and to “[f]ail to surrender oneself for custody at the appointed time.”  Moreover, if Article 19(8)(c) is designed to address suspects already in custody, why would it mention “the relevant States,” in the plural?  Doesn’t that envision the need for multilateral cooperation to apprehend a suspect whose whereabouts are unknown?  I think the provision would refer to the “relevant State” if it was worried about a suspect escaping from custody.

This interpretation of Article 19(8)(c), it is worth noting, is supported by what seems to me to be the far more relevant provision in the Rome Statute, Article 89 (emphasis mine):

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

Article 89(1) makes clear that States have an obligation to surrender a suspect for whom an arrest warrant has been issued.  (It refers specifically to States Parties, but there is no reason to believe that Security Council referrals function any differently.)  And Article 89(2) indicates that there is one — and only one — exception to that obligation: where a suspect has already been tried for a particular crime and has been either convicted or acquitted.  Expressio unius est exclusio alterius: if Article 89(2) was designed to permit a State to “postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility” under Article 17(a) or (b) — i.e., prior to conviction or acquittal — it would have said so.

Readers, your thoughts?

UPDATE: It is also worth noting Article 95, which has to be one of the worst written provisions in the Rome Statute:

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

The first part of Article 95 seems to imply that a state does not have to surrender a suspect if it is challenging admissibility.  The second part, however, seems to imply that Article 95 actually applies only to cooperation challenges that deal with the collection of evidence (“collection of such evidence”).  I have no idea how to reconcile those two aspects of Article 95, although I think the narrower reading is better — if Article 95 applies to all admissibility challenges, Article 89(2), which deals specifically with pending ne bis in idem admissibility challenges, is mere surplusage.  That seems unlikely to me.

That said, Article 89(2) literally deals only with ne bis in idem challenges brought by the suspect in national court (whatever that means), so perhaps the drafters intended to distinguish between personal and state challenges — personal challenges being subject to Article 89(2), state challenges being subject to Article 95.  But that doesn’t make much sense.  I don’t see why the two challenges should be treated any differently — and in any case, Article 95 does not apply only to state admissibility challenges.  Personal ne bis in idem challenges are also brought under Article 19.  So the surplusage problem remains.

What if ATS Liability has Nothing to do With “Customary” International Law? Part I

by Harlan Cohen

Much of my work focuses on international sources theory, not exactly the material for a scintillating, timely blogpost, and I initially thought I should probably spare you my thoughts on it.  (As a footnote, an early draft of my entry-level job talk paper was titled, “Taking Opinio Juris Seriously.”  I understand this had some of the OJ members on hiring committees pretty excited – Vindication! – at least until the read the piece…)  But then came the cert. grant in Kiobel, the Ninth Circuit’s decision in Sarei v. Rio Tinto and the debate on this blog about Doe v. Nestle.  Could international law theory suddenly be current and relevant?  Suddenly, there seemed a timely argument for getting international law sources doctrine right.

For me, the most striking thing about the discussion on this blog regarding corporate and aiding and abetting liability under the ATS was the assumption by almost all that, at least at the international (rather than domestic law) level, this was a matter of customary international law.   This appeared to be the case for both those who thought custom supplies standards on these issues and for those who think it has not yet fully developed.  But is this at all obvious?  There seems to be a reflexive assumption in international law that if a rule seems to be treated as law and is not in a treaty, then it must be custom (or perhaps, a general principle).  Why?  Well, because Article 38 of the ICJ Statute gives us no other options.  But in figuring out whether something is custom, it’s not enough to know that the rule is not in a treaty.  We need to actually test it against the concept of customary international law.

As Sasha Greenawalt suggested in a comment and elsewhere, it’s hard to imagine how the standards for corporate or aiding and abetting liability could meet this test.  The basic idea behind customary international law is that law can emerge from the customary practice of states in their relation to one another.  But how could or would states develop a customary practice with regard to these issues?  The issues are unlikely to come up in interstate conflicts and settlements.  Perhaps we’d find some generalized recognition of aiding and abetting liability or liability for corporate entities in the resolution of such disputes, but it is hard to imagine any clear standards emerging through their negotiations.  How would mens rea, for example, even come up?  Nor can we really say that these rules are emerging from the practice of states with regard to international criminal tribunals or trials.  Very few states have been involved in these processes, and where they have been, they’re often acting as official or de facto prosecutors or defendants – states may suggest standards that should apply based on their position in the case, but it is a court that decides whether to accept that position or not.  Given this reality, it should not be surprising that the ICTY, ICTR, and other modern criminal tribunals cite the decisions of other international or pseudo-international courts (particularly of the Nuremberg era) or even domestic courts, rather than the practice of states.  If we really want to talk about custom, “court custom” seems to be a better description, but if that’s the case, we’re no longer really talking about customary international law as traditionally understood.  Courts may say that what they’re developing here is customary international law, but what really seems to be emerging in this area is a form of international common law.  Courts, by necessity, fill the gaps in the law that otherwise wouldn’t or couldn’t be filled.

It’s not that we can’t come up with an argument that the jurisprudence of these courts has become custom – we’re good lawyers of course.  Perhaps we might argue that these decisions have been ratified by custom in states failure to object.  Or perhaps we would argue that recognition of some of these standards in the Rome Statute of International Criminal Court evidences their broad acceptance.  The first argument though stretches the notions of customary practice and consent close to their breaking points.  The second would face the challenge that the Rome Statute was a particular treaty explicitly negotiated for a particular purpose.  Both descriptions of how aiding and abetting or corporate liability standards operate as law are far more attenuated and far less convincing than the possibility they are part of an emerging international criminal common law.

This does not mean that these rules are not international law, nor that if not custom, they’re not cognizable under the ATS.  In fact, in the next post, I’ll argue that understanding these rules as a form of international common law actually helps clarify the ATS analysis and the role international criminal jurisprudence should play.

Lawofnation.blogspot.com Memories

by Harlan Cohen

Let me start by thanking Peggy and the whole OJ crew for inviting me to be a guest here. I very vividly remember the first time I found this blog, back when it had just gotten started (and was still at its previous address). It was among the very first law blogs I had seen, right around the same time many of us were discovering A3G. For a law clerk and then big firm associate craving a connection to international law and the academy, Opinio Juris was intellectual candy. OJ was a way to be a part of a larger international law community, and I devoured everything Peggy, Roger, Chris, Kevin, Duncan, and Julian posted. It is a testament to what they created, and what Peter, Ken, and Deb have added that OJ is in many ways now is THE international law community. It’s an honor to join them for a bit.

Welcome to Guest Blogger Harlan Cohen

by Peggy McGuinness

Professor Harlan Cohen of the Univ. of Georgia Law School will be guest blogging with us for the next few weeks.  Among his other achievements prior to joining the UGA faculty in 2007, Harlan was a Furman Fellow at NYU Law School and on the staff at Foreign Affairs.  He teaches and writes in international law in the U.S, international legal theory and history, and international human rights law.  Harlan is co-chairing the 2012 ASIL Annual Meeting.  We are delighted to have him back at OJ for a longer guest-blogging stint.  Welcome Harlan!

Philip Morris Invokes BIT Against Australia’s Plain Packaging Law

by Julian Ku

I haven’t been following Australia’s new law requiring plain packaging for tobacco products, but I am a bit surprised that Philip Morris has filed a notice of arbitration claiming the law violates Australia’s bilateral investment treaty with Hong Kong.  Here is PM’s argument:

Australia is in breach of the BIT because plain packaging:

  • Amounts to unlawful expropriation of PMA’s investments and valuable intellectual property without compensation (Article 6(1))
  • Fails to provide fair and equitable treatment to PMA’s investments in Australia (Article 2(2))
  • Unreasonably impairs PMA’s investments in Australia (Article 2(2))
  • Fails to provide full protection and security for PMA’s investments in Australia (Article 2(2))
  • Breaches Australia’s international obligations in relation to PMA’s investments (Article 2(2)) by violating The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention for the Protection of Industrial Property and the WTO Agreement on Technical Barriers to Trade (TBT)

My initial (not very informed) take is that the Article 2(2) “fair and equitable treatment” argument is stronger than the Article 6(1) expropriation argument. The expropriation argument will have to overcome the BIT’s exception for acts taken “under due process of law, for a public purpose related to the internal needs of that Party, on a non-discriminatory basis…”  It is worth thinking about the whether the typical protections for investments provided by BITs should incorporate IP protections. It is a plausible argument, but I doubt it will prevail.  But I encourage any commenters with more expertise to jump in!

Yes, Stephen Glass Should Be Allowed to Practice Law

by Kevin Jon Heller

Please forgive the fact that this post has nothing to do with international law, but it’s something very personal and very important to me.  As Jonathan Adler noted today at Volokh Conspiracy, the California Supreme Court will soon decide whether Stephen Glass, the former New Republic journalist who was caught inventing stories, should be permitted to practice law:

Glass was fired by The New Republic and was generally shunned by the journalism world. He earned a law degree from Georgetown University Law Center. But the New York State Bar blocked his attempt to practice law in that state, citing his ethical lapses, said Rachel Grunberg, an attorney with the California State Bar’s Office of General Counsel.

Glass moved to California and passed the bar exam here. But in 2009 the Committee of Bar Examiners declined to certify his moral fitness, noting, like New York, his history of lies. Glass then petitioned the State Bar Court’s hearing department, which disagreed with the committee and found the would-be lawyer had the necessary “good moral character.” The hearing officer declared Glass’ 22 supporting witnesses to be “outstanding” and credible.

The committee took the case to the three-judge review department, which in July, on a 2-1 vote, found that Glass had indeed rehabilitated his moral shortcomings and should be certified for admission to the Bar. Now the Committee of Bar Examiners has successfully asked the state Supreme Court to step in.

“In light of the serious misconduct that occurred, albeit a decade ago, [Glass] did not show in the commission’s eyes significant rehabilitation,” Grunberg said. “He just hasn’t shown that he holds those values that we hold dear.”

I have not seen Stephen in a while, but he and I were close friends for a number of years.  Knowing him as I do, I can only conclude that the Committee of Bar Examiners made up their mind to deny him a license long before they ever looked at the testimonials submitted on his behalf (I was not among the 22) — the testimonials that convinced the hearing department.  It is impossible to spend any amount of time with Stephen and not be convinced — completely and utterly convinced — that he deserves the opportunity to practice law.  I was very skeptical of Stephen when I first met him, but that didn’t last long.  I quickly realized that, in addition to being brilliant and witty and kind and supportive, Stephen was one of the most thoughtful, introspective, and self-aware people that I had ever met.  In the three or so years that he and I were friends, I never once heard him blame anyone but himself for his fall from grace.  I never once heard him make an excuse for what happened — and if you suggested to him that he was young and stupid and simply got in over his head, he would immediately disagree with you.  I never once heard him downplay the significance of his wrongdoing.  I never heard him say that Shattered Glass got his story wrong, as painful as it must have been for him to see his darkest moments splashed across the silver screen.  I never once heard him complain about working as a paralegal for iffy law firms with lawyers who couldn’t hold a candle to him, intellectually or legally.  And I never once heard him insist that he was rehabilitated and should be forgiven for his sins — to me, the most compelling indication that he was, in fact, rehabilitated.

American law practice is full of unethical lawyers.  Stephen Glass will not be one of them.  He does not deserve to have the rest of his life ruined for the terrible mistakes he made more than a decade ago.

Decision Time for Libya and the ICC

by Julian Ku

Reports are a little uncertain, but it sounds like Libya will not comply with the ICC Prosecutors’ arrest warrant and turn over Muammar Qaddafi’s son Seif al-Islam el-Qaddafi.

ZINTAN, Libya (AP) – Libya’s new leaders said Sunday they will try Moammar Gadhafi‘s son at home and not hand him over to the International Criminal Court where he’s charged with crimes against humanity. The government also announced the capture of the toppled regime’s intelligence minister, who is also wanted by the court.

As I suggested in an earlier post, Libya does have an obligation under UNSC Res. 1970 to cooperate with the ICC Prosecutor, and this obligation probably includes the obligation to turn over alleged war criminals.  To be sure, Libya might be able to avoid the obligation to surrender Seif Qaddafi if it tries Seif Qaddafi itself, which it says it is planning to do. But there is a good argument that it has to turn him over first, and then file a challenge to the admissibility of the case on the grounds that it is now willing and able to try Seif Qaddafi himself. This is a procedural point, but an important one. And since Libya apparently has no real court system, there is little chance of them getting him back once they turn him over. So it is not surprising they will hold on to their prisoner, and start the bargaining process with the ICC and the UNSC.

Brief Book Review of Three Books on International Law, Armed Conflict and Counterterrorism

by Kenneth Anderson

Over at Lawfare, I have posted a brief review of three books on international law, war, and counterterrorism, with a particular focus on the changing shape of counterterrorism through drone warfare and targeted killing.  These are all excellent books and I commend them to the scholarly community.

Hathaway and Shapiro Closing Post

by Oona Hathaway and Scott Shapiro

We want to begin our closing post by thanking everyone who has participated in the symposium on our article this week. We also wish to thank our lead editor at the Yale Law Journal, Philip Levitz, who help arrange this symposium (as well as a forthcoming symposium at Yale Law Journal Online) and who has been truly outstanding in every respect.

It has been wonderful to see the different ways in which each of the participants in the symposium has approached our project. Samantha Besson, much of whose work focuses on the intersection of philosophy and international law, honed in on the jurisprudential issues, including the relationship between enforcement of international law and the juridical status of international law as law. Gary Bass, a leading political scientist, calls for process-tracing and empirical tests of our claims to inform longstanding debates in political science about state motives for compliance with international law. Michael Helfand, an expert on religious law, notes that our case study of the canon law is simply the tip of the iceberg—outcasting is used extensively, we are interested to learn, in religious legal systems. James Gathi, who has written extensively about law in the developing world, rightly points out that the theory of outcasting calls on us to identify the community that creates and withdraws benefits and the values that the community pursues in the process. Peter Spiro, a leading critic of sovereigntist legal scholarship, presses us to say more about the relationship between outcasting and state sovereignty. Each of these posts have helped us to think about outcasting from a different perspective. Together, they have begun precisely the conversation we hoped we might provoke with this article. We are grateful to Opinio Juris, and especially to Duncan Hollis, for creating the forum in which this could happen.

We cannot conclude, however, without discussing Miguel Maduro’s post—the last of the responses to our article. Miguel’s post is a wide-ranging and wonderfully thought-provoking reflection on two key themes: first, the importance of enforcement for the legitimacy of international law, and, second, the relationship between international law and sovereignty. As with all of the posts, we cannot begin to do his comments justice, but we will say a few brief words.

Miguel begins by asking whether we could imagine the use of outcasting by domestic authorities to enforce domestic law. He is skeptical that we would find this acceptable because of the asymmetric and unpredictable character of outcasting. In the domestic legal order, what gives law legitimacy, Miguel argues, is its claim of completeness and comprehensiveness. International law, he says, does not have this. We both agree and disagree. Yes, there are some instances in which outcasting is unpredictable—for example, the use of economic sanctions against states accused of human rights violations. But there are instances in which it is quite predictable—for example, the use of trade sanctions for violations of the GATT. It is not outcasting that makes the legal system unpredictable per se; it is the willingness or unwillingness of states to use the available sanctions to enforce the law. That, in turn, depends on a variety of factors—factors that can sometimes be at least partially addressed by better designed outcasting sanctions (in ways we begin to discuss in the article) and sometimes not. Miguel is right, however, that a legal order that relies on states to enforce is then effectively at the mercy of those states—the success or failure of the legal order depends on the willingness of the members to robustly participate in the outcasting regime. This is both a strength and a vulnerability.

Miguel is also absolutely right to point out that the power of outcasting comes from the emerging interdependence between states. We believe that this is precisely because the expansion of international law has generated benefits on which states increasingly rely. Outcasting threatens states with the loss of these benefits, a loss that is less bearable today than it would have been at a time when those benefits were smaller because the interdependence was weaker. We agree that as interdependence grows, outcasting as a tool will only become more powerful—precisely because the benefits states receive from the international legal system have grown and their vulnerability to having them withdrawn is commensurately increased. And Miguel is correct in his closing observation that if we are right that enforcement through outcasting strengthens the case that international law is law—by answering one common objection to its juridical status—then the legitimacy of international law naturally turns on when and how international law uses enforcement through outcasting. If that is correct—and we think it is—this lends greater urgency to the project in the second half of the article, in which we consider how outcasting sanctions may be used to most effectively enforce the international legal rules they are meant to police.

Suzanne Nossel Named Executive Director of Amnesty International USA

by Chris Borgen

Suzanne Nossel, who was until recently a Deputy Assistant Secretary of State for International Organizations and is currently a Visiting Senior Fellow for Global Governance at the Council of Foreign Relations, has been named the new Executive Director of Amnesty International USA. (I should note that Suzanne is an old friend.)  Here’s part of what the Amnesty press release said:

Most recently, Nossel served as Deputy Assistant Secretary of State for International Organizations, where she was responsible for multilateral human rights, humanitarian affairs, women’s issues, public diplomacy, press and Congressional relations. In that capacity, Nossel played a leading role in U.S. engagement at the U.N. Human Rights Council, including the initiation of human rights resolutions on Iran, Syria, Libya, Cote d’Ivoire, freedom of association and freedom of expression. Prior to that, she served as Chief Operating Officer of Human Rights Watch. Nossel previously served as deputy to the Ambassador for U.N. Management and Reform at the U.S. Mission to the United Nations. She has also worked as a vice president at Bertelsmann Media Worldwide and The Wall Street Journal and as a management consultant at McKinsey & Company. She is a graduate of Harvard College and Harvard Law School and has been a fellow and scholar at the Century Foundation, the Center for American Progress and the Council on Foreign Relations.

Besides these accomplishments, Suzanne is also known for popularizing the term “smart power” in a 2004 Foreign Affairs article (see also this). And she was an early entrant in the international relations blogosphere, founding Democracy Arsenal.  As for next steps, the Amnesty International release states that:

Nossel will use her extensive and varied skills and experience to shape Amnesty International’s work in mobilizing the United States on behalf of human rights issues at home and abroad. AIUSA partners with and defends activists in the Middle East and North Africa who are bravely demanding their rights; Amnesty is also at the forefront of advocacy on critical human rights issues in the United States – including immigration, health care, the death penalty, corporate abuses, and respect for civil liberties in the context of national security

An excellent choice for helming Amnesty; I think she will do great things there. Congratulations, Suzanne!

ILO Urges that U.S. Stop Violating International Obligations It Hasn’t Agreed To

by Julian Ku

Here is a nice example of how international organizations and international lawyers can conspire to make international law seem ridiculous.

Bus and subway workers had a right to strike in 2005 and their leader was wrongly jailed, a United Nations agency has found.

The International Labor Organization said the state’s Taylor Law, which makes it illegal for public workers in New York to walk off the job, violates core principals expressed in international law — and a treaty ratified by the U. S. Senate.

Fines imposed on workers and Transport Workers Union Local 100 should be returned, and former Local 100 President Roger Toussaint should be “compensated” for his short jail stint, according to the agency’s decision.

A copy of the report can be found here. I am not an international labor lawyer, but I wonder at the report’s blithe assertion that public transportation workers do not provide “essential services” justifying limitation on their ability to strike. But more to the point, the report does not allege that the U.S. has violated any international obligations that it actually agreed to or that it is bound to comply with under customary international law.  Nor does the complaint here seem to make this argument either, since it ultimately calls on the U.S. to ratify the relevant treaties. I am flattered that the complaint cites my work as evidence that state governments have an independent power to determine how to comply with international law.  I think that is right, I just don’t think that the U.S. or New York has agreed to follow principles of international law that have not been alleged to have achieved the status of customary law.

The ILO knows this, or should know this. It is counterproductive and slightly ridiculous to issue a report chiding the U.S. government for not abiding by obligations that it is not bound to abide by.  The only result here it to lessen, rather than increase, respect for the efficacy and importance of international law.

Congratulations to Sean Murphy, Newly-Elected Member of the International Law Commission

by Chris Borgen

Professor Sean Murphy of GW Law has been elected to the ILC. The press release from GW begins:

Today, Professor Sean Murphy was elected by the United Nations General Assembly to the International Law Commission (ILC). The Commission consists of 34 distinguished legal scholars, practitioners, and government officials from around the world who are elected to serve for five-year terms. Created in 1948, the objective of the ILC is to codify and progressively develop international law through restatements of the law, studies of legal topics, and draft treaties.

“I am thrilled at the opportunity to serve on the ILC,” said Professor Murphy after his election. “It’s a terrific opportunity to contribute an American perspective to the Commission’s work, drawing on my experiences as both an academic and practitioner.”.

Sean is a excellent addition to the ILC. A lawyer’s lawyer with an impressive background as a government attorney, advocate, and scholar. The press release notes:

Before joining the Law School faculty in 1998, Professor Murphy served as the Legal Counselor of the U.S. Embassy in The Hague, arguing several cases before the International Court of Justice and representing the U.S. government in matters before the International Criminal Tribunal for the former Yugoslavia, the Permanent Court of Arbitration, and The Hague Conference on Private International Law. He also served as U.S. Agent to the Iran-U.S. Claims Tribunal, arguing cases on behalf of the U.S. government and providing advice to U.S. nationals appearing before that tribunal. Between 1987 and 1995, he served in the U.S. Department of State Office of the Legal Adviser, primarily advising on matters relating to international environmental law, international claims, and military affairs. Since leaving U.S. State Department, Professor Murphy has continued to represent numerous governments before international courts and tribunals. Professor Murphy has published widely, including a general treatise on Principles of International Law and casebooks on international law and on U.S. foreign relations law.

A great choice. Congratulations!

Comment on Oona Hathaway and Scott Shapiro Outcasting: They have some good news and some bad news

by Miguel Maduro

Being the only non-international lawyer I am the outlier (hopefully not to become the outcasted) among this group of commentators. I suspect I was asked because I am an EU law scholar
and, for some, that is international law. Having approached the subject with some skepticism I asked myself if that was not representative of the nature and importance of the question: maybe I want EU law to be different from international law because international law might not be law but why would that matter? I have, sometimes, wondered if the importance scholars give to these questions is not simple a function of our own disciplinary interests. International law or EU law status matter because it affects the status of our disciplines and, as a consequence, our own status. It was therefore with a good dose of cynicism that I approached the article.

I’m happy to say I am now a different man…Oona Hathaway and Scott Shapiro have written a path-breaking article. It is not simply an article on what is international law. It is an article on what is law. As mentioned, my initial reaction was cynical: ‘Is international law law? Who cares?’ It is what it is and let’s deal with it and discuss it as what it is’. But Hathaway and Shapiro persuaded me of why the question matters. The problem is that their answer to the question is, in fact, so persuasive that it also makes it clear that if international law is law is not really the important question. The important question is what type of law international law is.  I will address this by focusing in two key  conclusions resulting from the article (1) on the importance of enforcement for the legitimacy of international law and the type of questions international scholars need to answer; 2) on the relationship between international law and sovereignty) and one, in my view, new dimension of the enforcement of international law missing from the article.

1 – Even if I am mindful of the problems with thought experiments mentioned by Oona and Scott in their article, I would like to propose one. Let us assume that it would be possible for us to transform
legal enforcement at State level into a system of outcasting similar to that dominating international law.  I believe no one would dare to implement such experiment and we would all be very skeptical
of living in such a state. The reason, in my view, will not be the possible lack of effectiveness of outcasting. Oona’s and Scott arguments on its effectiveness are powerful and convincing. The reason for why we would all be very fearful of living in such a state is the asymmetric character of outcasting. Enforcement would not respect the logic of predictability and universality in the
application of the law that we expect from state legal orders. In my view, the real challenge to international law is not that of not being law. It is that of not being a legal order. When Oona and Scott make the argument that the enforceability of the law is what makes law under the Modern State Conception morally appealing, they seem to forget that it is not only enforcement that matters but how enforcement takes place. I am not extending this argument to the legitimacy of how law is produced. I am talking still at the level of enforcement itself. Even in certain totalitarian regimes where the rule of law is not respected, law must maintain a certain degree of predictability and universality in its application in order to constitute a legal order. What has traditionally provided this is both a claim of completeness and comprehensiveness on the part of a legal order and the existence of an ultimate source of legal authority (most commonly, today, expressed in a constitution representing the will of the people) to which all exercises of normative power (including enforcement) can be traced back. International law does not have this. It may seem strange for someone like me, a constitutional pluralist and EU law scholar, to make such a point. Arguably, EU law also lacks an ultimate source of legal authority. But, even if we accept that that would prevent the characterization of EU law as a legal order, it is a legal system. As I have argued elsewhere we could describe it as a system where law is practiced by actors of different legal orders under a commitment to  accommodate the claims of these different legal orders so as to provide a coherent and integrated construction of the law resulting from those competing claims. International law lacks that. As a consequence, it seems to me that Oona’s and Scott’s article renders clearer that it is now more
important to address the question of the legal order or the legal system (as Samantha also hints at). That is part of the enforcement question itself, particularly when the latter is conceived as legitimating international law. The new questions for international scholars that Oona and Scott identify, and that depart from the identification of outcasting as the natural instrument of
enforcement of international law, also depend on its characterization as a legal order or legal system. What forms of outcasting can be used and where depend on the normative link that is established between different sets of international rules and actors and this depends on the nature of international law as legal order or a legal system.

2 – Contrary to what Oona and Scott refer the enforcement power of outcasting does not really come from the exclusion of the benefits of cooperation generated by international law. It comes from the emerging interdependence between states that requires cooperation. It is mostly because of that interdependence that cooperation is so valuable (the case of cross-countermeasures render this particularly clear). In the absence of such cooperation states are subject to the externalities
generated by such interdependence without a voice in regulating them. As a consequence, I believe that Hathaway and Shapiro are wrong in how they attempt to reconcile international law and sovereignty. Outcasting does not allow a reconciliation of international law and sovereignty. It only renders more visible the limits on sovereignty as classically understood. In fact, outcasting is effective as an enforcement tool precisely because of the limits to sovereignty resulting from interdependence. Paradoxically, this actually reinforces part of Hathaway and Shapiro’s argument. Outcasting is bound to become a stronger mechanism of enforcement as interdependence increases and, therefore, the costs of non-cooperation become higher. In this light, the first limit to external outcasting highlighted by Hathaway and Shapiro will fade. But these may be bad news as well as good news.

3 – While being profoundly innovative in many ways the article seems to assume a traditional vision of state centered international law. The question of international law as law is focused on its enforceability with respect to states. But international law is increasingly directed at and enforced upon individuals. As outcasting will prove to be increasingly effective in securing compliance by states, the mediating role of the states will amount to a simple external enforcement of international law by the states upon individuals. If that is so, the attempt to legitimate such enforceability by reconciling sovereignty with international law via the voluntary character of outcasting by states will not be enough. This will be even more so, where international law may increasingly be perceived as an instrument by some actors within a state to shift the balance of power with respect to other actors (e.g., by empowering the executives). The consequences of this for the model and legitimacy of enforcement in international law are however not fully explored in the article.

To end with a provocation I will say that my doubt is whether the enforcement power of international law so successfully argued by Hathaway and Shapiro should be greeted as a welcomed discovery… For the reasons I mentioned, the convincing argument that outcasting will make international
law increasingly enforceable will also put its legitimacy increasingly under strain. There is a paradox in this story. As Hathaway and Shapiro rightly note the question, whether  international law is
law is relevant because it affects the legitimacy and, as a consequence, the claims to be made of international law. Enforcement through outcasting is therefore instrumental to the legitimacy of international law (its moral appeal in the words of Hathaway and Shapito). But, at the same time, as it stands, the asymmetric nature of outcasting also undermines the legitimacy of international law. It is only when international law will become an international legal order or, at least, an international legal system that we should welcome, without reservations, its enforceability.

The NMT Trial Program and The Emergence of a Jurisprudence of Atrocity

by Lawrence Douglas

[Note from ed.: This is the final commentary on Kevin Heller’s book,The Nuremberg Military Tribunals and the Origins of International Criminal Law. Earlier commentaries can be found under the “related posts” link below and at the companion discussion of the book at EJIL: Talk!]

Jurists, legal scholars and historians – groups that often find much to disagree about – appear unified in viewing the trial of the major Nazi war criminals before the International Military Tribunal (IMT) in Nuremberg as by far the single most important event in the development of international criminal law. Conferences staged several years ago to coincide with the sixtieth anniversary of the trial often had a celebratory, even hagiographic quality.[1] Law students around the globe now dutifully study the so-called “Nuremberg Principles,” the norms of international law, which insist, among other things, that “acts of state” and “superior orders” supply no defense against the charge of perpetrating international crimes.[2]

By contrast, the twelve so-called “subsequent proceedings” staged by American jurists before the Nuremberg Military Tribunal (NMT) have been long considered nothing more as footnotes to the IMT – and unhappy ones at that.[3] No conferences were staged to consider, much less to celebrate, the anniversary of the NMT trial program. The trials often warrant no more than brief mention in textbooks on international criminal law and are seen to have delivered little by way of precedent. Admittedly the Justice case recently experienced a vogue of attention in the United States, particularly among lawyers looking for possible precedents for bringing charges against the authors of the “torture memos” in Bush’s Justice Department.[4] But even this brief renaissance of interest quickly waned as the precedential relevance of the Justice appeared smaller than hoped.[5]

Hell Hath No Fury Like a Tribunal Scorned (Updated)

by Kevin Jon Heller

According to AFP, the ICTY has issued an “arrest warrant” for Florence Hartmann for failing to pay the fine she received for her 2009 contempt conviction:

The UN Yugoslav war crimes court issued an arrest warrant Wednesday against a former spokeswoman for the tribunal’s chief prosecutor for refusing to pay a 7,000-euro ($10,000) fine.

Florence Hartmann, a French national, was found guilty of contempt in 2009 for disclosing confidential details of the trial of the late Serbian strongman Slobodan Milosevic.

“The French Republic is hereby directed and authorised to search for, arrest, detain and surrender promptly to the tribunal, Florence Hartmann,” the Hague-based court said in an order.

Her fine “has been converted to a term of seven days of imprisonment,” it added.

The International Criminal Tribunal for the former Yugoslavia (ICTY) found her guilty of contempt in September 2009 for having “knowingly and wilfully interfered with the administration of justice”.

Hartmann was prosecuted for writing about two confidential appeals chamber decisions in a 2007 book she authored on the ICTY and in a later published article.

I’m not sure what authority the ICTY has to order France to arrest Hartmann.  I’m even less sure what authority it has to summarily “convert” her punishment two years after the fact from a fine to imprisonment.  Then again, the statute also says nothing about punishing contempt or imposing a fine on a convicted defendant, so I imagine the judges believe that the latest order is simply a manifestation of the their inherent power to ensure the integrity of the ICTY’s proceedings.  But it’s still troubling — especially the ex post facto conversion of her punishment.

Legal considerations aside, this is the latest terrible PR move by the ICTY.  Prosecuting Hartmann for revealing information that was already in the public domain was bad enough.  Convicting her was even worse.  Attempting to imprison her for failing to pay her fine is completely over the top.  I’m sure there is some mechanism in French law to force Hartmann to pay; there is no need to try to imprison her.  This is obviously yet another attempt by the ICTY to punish Hartmann for having the temerity to violate her confidentiality agreement.  But all it does is make the tribunal look petty and vindictive.

Hat-Tip: OUP’s John Louth.

UPDATE: Jannek is quite right (in the comments) that r. 77 and r. 77bis of the Rules of Procedure and Evidence permit the fine and the conversion of the fine into imprisonment.  I should have mentioned the rules in the post — but I don’t think they answer the legal question.  A rule permitting a penalty not provided for in the ICTY statute is not a rule of procedure; it is a new substantive rule.  The same is true of permitting the conversion of one penalty into a different penalty.  I would argue, therefore, that both provisions are ultra vires.

Then again, the rule permitting the judges to punish contempt is also clearly substantive, and the Security Council never complained about that!

Hathaway and Shapiro Respond Part II

by Oona Hathaway and Scott Shapiro

We want to thank the participants in the symposium once again for their fantastic comments on our article. We have really enjoyed watching the discussion unfold. Here we offer a few words in response.

In his post, Peter Spiro suggests that we are operating from a “sovereigntist premise.” If what Peter means by this is that we accept that states are sovereign entities, then he’s clearly right. But we want to be clear that we do not accept the implications that are often taken to follow from that premise—particularly those described in Peter’s influential work on the “new sovereigntists.” Peter has written, “This group of academics . . . has developed a coherent blueprint for defending American institutions against the alleged encroachment of international ones. . . . At the center of their thinking stands the edifice of sovereignty. Sovereignty, in this conception, calls for America to resist the incorporation of international norms and drapes the power to do so in the mantle of constitutional legitimacy.”

We draw precisely the opposite conclusion of that which Peter ascribes to the “new sovereigntists.” The paragraph in our article that follows directly on the one quoted by Peter reads:

The recognition that international law most often relies on outcasting rather than physical force turns the sovereigntist critique on its head. If international legal regimes are best understood as arrangements that generate community benefits for member states and impose discipline through outcasting (excluding lawbreakers from the benefits of membership), then international law does not have the power to rob states of their sovereignty. Instead, it only has the power to take away the very benefits that it has itself generated. If that is true, then states that refuse to join international agreements out of a fear that doing so will undermine their sovereignty are simply voluntary outcasts.

In his post, James Gathi offers a thought-provoking set of observations on inclusion and exclusion. We find especially interesting and telling his points about the problematic aspects of outcasting, particularly with regard to treatment of non-western countries in the post-colonial era—and there is much food for thought in what he writes. To be clear, however, we do not mean to argue that all exclusion is outcasting. Outcasting as we use the term is something very specific: it is denying the disobedient the benefits of social cooperation and membership. To put it slightly differently, not all exclusion is outcasting, only exclusion of those who have violated the rules. Can states be excluded for other reasons, including reasons of prejudice, western-centrism, or parochialism? Certainly. But that’s not law enforcement through outcasting.

We also enjoyed Michael Helfand’s observations about the use of outcasting in religious law. We find this a nice exploration and extension of some of the points we made in the piece, particularly our discussion of canon law. We appreciate the effort to think about how outcasting can operate both at the international level and within states. As the title of our article suggests, outcasting can be used to enforce domestic as well as international law—law enforcement through outcasting is found wherever the legal regime generates benefits of social cooperation and membership which then may be withdrawn from those who disobey the rules of that regime.

The Sovereigntist Premise of Hathaway and Shapiro’s Outcasting

by Peter Spiro

Outcasting is an important contribution to international legal theory and an engaging read.  But I wonder if the theory isn’t limited by its assumption that sovereignty continues to be foundational to international law.  The article closes with this:

It is impossible to overemphasize the importance of state sovereignty in international law. The international legal system is both created by and creates sovereign states. A treaty, for example, is “an international agreement concluded between States.” Similarly, customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. At the same time, the very idea of what it is to be a “state” is, in a very real sense, a legal construction—one based on physical facts, to be sure—but nonetheless constructed through shared understandings. Perhaps the most important of these shared understandings is that the quintessential defining characteristic of a “state” is its monopoly over the legitimate use of force within its geographical boundaries. International law thus creates, protects, and reinforces state sovereignty through various legal rules including the obligation not to use aggressive physical force against another sovereign state except in rare circumstances. International law cannot primarily rely on internal physical force against states as a means of law enforcement, because to do so would threaten to collapse the very idea of what it is to be a “state” and thus eliminate the precondition for the existence of international law in the cause of enforcing it.

I think that many international legal theorists would take issue with this premise, one that is perhaps surprisingly conservative in its conception of international law.  The “shared understandings” of statehood are morphing so as to shrink the spaces of sovereign insulation.  To paraphrase Wendt, sovereignty is what states make of it, and states’ identity as such has come to comprehend a downsized version.  There are lots of ways in which international law is degrading sovereignty.  I think it’s possible now to imagine the internal enforcement of international law along the lines of the Modern State Conception — not all advocates of international law “tend to let the conversation drop at this point.” (276).  The construction of sovereignty would hardly stand in the way.

The more pressing challenge to Oona and Scott is how the theory applies to actors other than states and to norm systems other than as generated by states.  Unless the theory hews to a rigidly formalist conception of international law — to include, as the paragraph above implies, only treaties and custom satisfying the traditional doctrinal requirements of wide practice and opinio juris — it will be incomplete if it cannot account for other forms.

How does outcasting apply in the context of soft law, for instance?  With its heavy association with exclusion (reinforced by the Icelandic and canon law analogues, in which outcasting took the form of exile and excommunication respectively), the theory would seem to have a harder time with law occurring outside formal institutions and treaty regimes.  Does the theory work only with isomorphic actors?  The piece characterizes shaming by NGOs in the context of human rights violators (at least state violators) as a kind of outcasting (at 309), but the example doesn’t seem to fit with the rest of the model, all of which relates to formal outcasting mechanisms, mostly from intergovernmental treaties.  The piece addresses how the ICC disciplines state parties — how does outcasting apply to the individuals who are prosecuted by it (and who end up in real prisons, a central feature of the Modern State Conception)?  And what would the theory do with state disaggregation and new channels of international standard-setting (IOSCO, codes of conduct, the UN Global Compact, etc), all of which move beyond the black box of sovereignty.

It’s possible the theory could extend to these other contexts, but it would lose its parsimony and the value added isn’t clear.  Almost all of these regimes will be permissive and nonadjudicated, and sanctions will almost always be informal (as they are in most treaty regimes, as a practical matter, to the extent that institutional expulsion is a rare event).  That may leave us back at the question of whether they qualify as law (I suspect that Scott and Oona would conclude that they are not).  Perhaps outcasting is a sustainable heuristic for exploring the still-important realm of treaty regimes.  Whether it supplies a universal theory of international law might be another question.

Outcasting as Inclusion and Exclusion

by James Gathii

Profs. Hathaway and Shapiro’s article, “Outcasting: Enforcement in Domestic and International Law,” is a very provocative and original piece of scholarship. Outcasting as a central mode international law enforcement has not received such a sustained and systematic study as they have. I am delighted to add a few thoughts to this discussion with thanks to Prof. Hollis for the opportunity.

As Hathaway and Shapiro note, countries that contribute a great deal to a regime are less likely to be outcast. It is no surprise that such countries are also powerful economically, militarily and otherwise. Yet there is more. Outcasting can be conceptualized beyond its immediate functional purpose of exclusion from the enjoyment of the benefits of community membership. Inclusion and exclusion from a community or regime is as much a function of power relations, as it is of cultural relations as well. Thinking about international law norms beyond their functional purpose, makes it possible to see the process of inclusion and exclusion as a way of framing and constructing national and international interests as well as what constitutes a community or a regime.

Thus as Antony Anghie has shown, by defining universality in Eurocentric terms, ancient jurists such as Francisco de Vitoria justified the exclusion of non-European peoples from the benefits of membership in the community of nations. This in turn laid down a justification for their colonization. Cultural differences between Europeans and non-Europeans for these early jurists defined who enjoyed the benefits of the community of nations. Societies without the western form of the State and Law were regarded as backward, as uncivilized and as such excludable.

If we accept Anghie’s thesis that this process of creating community is not simply or narrowly functional, then it is possible to see outcasting’s  intimate connection between our cultural experiences and our norms about who enjoys the benefits of community and who is excluded. Often, the exclusion from community benefits is accompanied by labels of deviance, perversion and outsideness. Thus the designation of outsiders such pirates as hostis humani generis (enemies of all mankind) or stereo-typed terrorists, (a popular example of an archetypical terrorist is a turbaned and robed dark glass wearing Arab), necessarily comes with a charge of moral and cultural indignation. Thus outcasting here provides a ready-made heuristic that readily connects the outcast with moral and cultural degeneracy which in turn justifies exclusion from community benefits.

In this sense, outcasting is more thoroughgoing – it goes beyond exclusion from the benefits of social cooperation. By designating certain individuals or groups as outsiders since they do not conform to, or are not amenable to community  norms has sometimes justified extreme measures. Gerry Simpson’s 2004 book, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order, traced a variety of outlaw States used in a variety of international legal regimes and debates that demonstrate the continued valence of the outcast trope. Simpson traced tropes such as constitutionally illiberal states; States that repudiate rules of the international legal system because of its incompatibility with the core values of such states; and outlaw states, designated as genocidal or gross violators of core security rights. As Simpson demonstrated, exclusion from community membership as well as military intervention are two familiar enforcement techniques to nudge such States to re-enter the international community reformed.

For many generations now, international legal scholars from non-western countries have engaged problematic aspects of the outcasting trope. The best example is that of Taslim Elias Olawale from Nigeria who rose to become President of the International Court of Justice. His 1974 book, Africa and the Development of International Law, is a classic attempt to re-write international legal history to demonstrate, contrary to a Eurocentric telling, Africa’s participation in forging rules of international law.  For Elias, it was not enough that post-colonial African independent states were sovereign equals, it was also important to correct the outcast tropes that had justified colonial rule. His mission like many international law scholars of his generation from non-European countries was to challenge images of non-European inferiority, backwardness and servitude. Elias’ historical account turned Africa’s outcast image on its head. He demonstrated contrary to Eurocentric accounts, Africans had States, Laws, Commerce and contact with Europe and that they had participated in the formation of rules such as those relating to the protection of ambassadors.

In short, outcasting as a form of enforcement enunciates more than a narrow functionalism – it elicits broader questions of who is the community and what are its values and demonstrates that such values are not necessarily homogeneously shared or universal. If we accept this account, then perhaps we can say that Hathaway and Shapiro are correct primarily in a functional sense that international law does not rob states of their sovereignty. However, in the broader sense I have used the term outcast, one can raise doubt that international law does not rob states their sovereignty. That, I think would only be possible if the international regime in question truly reflected universal values. That said, I really enjoyed Hathaway and Shapiro’s important contribution to the discussion of the enforceability of international law.

Social Ostracism and Non-State Governance: A Comment on Hathaway & Shapiro

by Michael Helfand

I read Scott’s and Oona’s article Outcasting with great pleasure.  It is a wonderful contribution to the burgeoning literature on legal pluralism and non-state governance.  In particular, the article contests two propositions that have undermined recognition of various forms of non-state law: first, that law must be enforced by the legal regime itself; and second, that law must be enforced through the threat and exercise of physical force.  By contrast, the article contends that law can exist where members of a social group – legal subjects as opposed to legal authorities – can serve as the externalized enforcement arm of the law by withholding the benefits of social cooperation and membership from those failing to comply with the group’s rules and norms.

In tracing precedents of such forms of non-state governance, Outcasting points to Canon law, which highlights what I take to be an important area of intersection between international law and religious law.  Indeed, critics of non-state law have similarly linked international law and religious law; both have become targets of state legislatures in recent months, with a flurry of proposed bills aimed at prohibiting courts from considering or looking to either international or religious law (for recent updates, see here).

Much of this trend tracks a long-standing (and largely outdated) version of legal positivism – espoused by Thomas Hobbes and J.L. Austin – which refused to recognize to the possibility of law either “above the state” (e.g. international law) or “below the state” (e.g. religious or indigenous law).  Demonstrating that such legal theories fail to account for the wide range of social practices that create legal obligations was one of H.L.A. Hart’s primary objectives in his work The Concept of Law.  While not without ambiguity, Hart emphasized the role of social criticism and social sanction in the creation of legal obligation – experienced from the internal point of view.  (Hart’s role in this transformation was the topic of last week’s American Society of International Law symposium titled Hart’s Legacy on International Law.)

This intuition that social criticism and social sanction – even outside the confines of the nation-state – play prominent roles in the experience of legal obligation stands at the very center of Outcasting.  And while the piece does discuss Canon Law, it is worth noting that Canon law is really just the tip of the iceberg.  In fact, the use of social ostracism is alive and well within the United States among a wide range of religious communities.  Most notably, social ostracism is deployed as a method of enforcing appearance before and adherence to a growing network of religious arbitration courts functioning within the United States.  I’ve tried to explore this parallel form dispute resolution – and its central role in debates over the consequences of legal pluralism – in my recent article Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. Rev. 1231 (2011).

As highlighted in the religious arbitration context, the use of social ostracism – or outcasting – is quite popular in legal systems below the state because it trades on the importance of membership in religious or indigenous groups to individual identity.  To be ostracized is, as frequently described in the multiculturalism literature, to lose a piece of yourself – to experience the anxiety and devastation associated with the deepest forms of misrecognition.  Accordingly, outcasting has proven a useful and powerful tool for religious arbitration courts, where failure to submit a claim for adjudication before a religious tribunal will sometimes result in devastating form of social ostracism and sanction.  And, in the context of religious arbitration, fear of social ostracism sometimes induces parties to sign binding arbitration agreements, thereby latching on to the enforcement arm of the nation-state.

In this context, the use of social ostracism and sanction “below the state” indicates that the success of outcasting in the international context is and will continue to largely be dependent on the existence of solidarity within the international community.  Social ostracism has been successful below the state because individuals care about membership in the group.  Accordingly, the experience of outcasting below the state reinforces the insight that the use of social pressure requires developing a sense of community and solidarity such that membership within the international remains an important and valuable good.  Of course, the value of such membership can be created through moral, ethical, social, economic and cultural mechanisms.  But in this way, the possibility of outcasting both above and below the state requires a re-evaluation of how we build solidarity within the relevant communities to ensure that membership still matters.

Hathaway and Shapiro Respond

by Oona Hathaway and Scott Shapiro

We want to thank Gary and Samantha for offering such interesting insights.  We will not be able to do them justice, but let us at least offer a few brief words in response.

In his latest post, Gary calls on us to say more about when outcasting will be effective at changing state behavior, calling for both process tracing and empirical analysis.  We take a first step in this direction in the article.  We argue that there are many forms of external outcasting and the differences between them are not random. They are instead quite systematic—differences in outcasting regimes can, we argue, be traced to differences in the legal rules to be enforced. We also aim to explain why the use of certain regimes in certain circumstances is to be expected.  From there we work through several challenges and how they are met in the real world—and we describe in some detail eight variations on outcasting and describe the specific international legal regimes that fit them.  Is there more that can be done? Certainly.  But we are not the only ones who could do this. Indeed, we very much hope that others will be inspired to put these ideas to the test in the ways Gary describes.

In his first post, Gary invited us to say a few words about, as he puts it, “the world’s most important rising power,” China. There are two aspects of outcasting that China illustrates well.  First, as we point out toward the end of the article, outcasting favors the powerful.  The more a state contributes to the collective benefits shared by all the members of a particular legal regime, the harder it is for the other member states to discipline that member through outcasting.  China is an excellent example.  It is difficult for any country to outcast China by, for example, putting in place trade sanctions.  China is now the world’s second largest economy.  No country—not even the United States—can close itself off from China without itself suffering severe consequences.  Second, outcasting often relies on cooperation among outcasting countries.  A decision by one country or even a group of countries to deny a law-breaking state the benefits of social cooperation and membership may not be as effective if another country is ready to replace the lost benefits.  As Gary showed in his recent and very powerful article, Human Rights Last, China is often happy to do business when no one else will.  As Gary shows, when the rest of the world sought to isolate and punish the regimes of North Korea, Myanmar/Burma, Sudan, and Zimbabwe, China showed up ready to do business.  This severely undermined the efforts of other countries to outcast the governments that had denied their citizens the most basic human rights.  All of this goes to illustrate a broader point: outcasting, for all its strengths, is not a panacea; like other law enforcement models, it has its limits. Those limits can be understood, explained, and, in some cases (but not all), addressed.

Turning to Samantha’s post, she begins by questioning our philosophical argument as to the relationship between legality and enforcement.  As she rightly notes, we say relatively little about this point.  We do so because engaging the argument of whether enforcement is necessary to law is a philosophical discussion of lengthy pedigree on which we do not wish to focus.  Our view is that it is enough that many do believe that enforcement is necessary to law.  We thus assume arguendo that enforcement is necessary to law.  We then proceed to show that international law is enforced—often through outcasting—and therefore absence of enforcement should not be a reason for concluding that international law is not law.

The second half of Samantha’s response focus on our argument about the enforcement of international law.  In her first objection, she notes that it is difficult to argue that that a single account fits all of international law “in view of the extreme diversity of international legal norms in terms of sources, degree of normativity and scope.”  She is right that we are making the arguably audacious claim that outcasting applies across diverse international legal regimes.  Indeed, we think that claim is important to the success of the article.  That said, we do not mean to claim that every international legal regime is always enforced or that enforcement always takes the form of outcasting.  Indeed, we show that a few international legal regimes are enforced through internal physical force, some though external physical force, and many (indeed, a diverse array of regimes) through outcasting.  Samantha’s second objection focuses on the distinction between external and internal.  By internal enforcement we mean enforcement by the regime itself—that is, through designated international bureaucracies.  To determine what is internal and external, therefore, one must reference the particular regime.  Enforcement of the GATT, therefore, is external—the governments of the states that do the outcasting sit outside the bureaucracy of the WTO.  Third, Samantha points out that more could be said about states and state sovereignty.  We agree and our next project aims to make further progress on this point.  Fourth and finally, Samantha argues that  “the complex nature of states and their relationship to their individual constituents should prevent us from developing explanations of the enforcement of international law by analogy to the way one explains the enforcement of domestic law by individuals.”  Here we have to disagree.  A key aim of this project is to suggest that there is a great deal to learn by thinking about domestic and international law not as entirely different but as sharing important properties.  This is not to suggest there are no differences—there are many.  But the field has for too long focused on these differences.  There is room, we think, for a different approach.

More Gary Bass on Hathaway and Shapiro

by Gary Bass

Oona and Scott’s article is meant to be an opening salvo. But it would be helpful to see more positive empirical evidence. I don’t just mean that I’d like to see more cases of non-traditional enforcement than medieval Iceland and classical canon law, although I would, and I’m sure Oona and Scott would too. (Still, has there ever been a better name for a national assembly that the Allthing?) To guide future empirical research, we need to see the observable implications. Here’s what it will take to convince skeptical social scientists of the importance of outcasting as a real driver of state behavior: a regime changing its policy to avoid being outcasted, or to rejoin the fold of respectability after suffering outcasting. (Oona is well placed to do this kind of work; she has been a leader in the international law field in demanding rigorous empirical tests.) This requires a detailed reconstruction of the decisionmaking process inside a government, which is not so easy; governments work hard to make sure that we in the audience see only the ideal motive, not the real one. We would want to look for (non-biased) archival records or convincing interviewing that shows that, in secret deliberations where actors were not just posturing for the benefit of an outside audience, actors argued for changing a policy because of a fear of being outcast, and these arguments won the day.

This process-tracing could throw interesting light on some enduring debates about state motives for compliance with international law. Are states acting purely on a materialist or instrumental calculation of benefit, or on a more sociological sense of their identity (cf. Katzenstein, Wendt, etc.)? Is their behavior shaped by an internalized sense of normative or legal obligation (something like opinio juris in customary international law)? In their discussion of naming and shaming in human rights, Oona and Scott seem closer to the instrumentalist than the normative explanation.

Much as I liked the article, I’m not convinced by Oona and Scott’s critique of what they call “the Brute Force objection.” I am impressed with their demonstration that there are forms of law that do not rely on force or the threat of force. But international relations is different from domestic politics because, of course, in anarchy, states can always resort to self-help–including, above all, the use of violence. As Hobbes wrote, “in all times, Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; have their weapons pointing, and their eyes fixed on one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours; which is a posture of War.” So it seems appropriate to maintain an insistence on the importance of the use of coercive power. Weber correctly wrote, “The decisive means for politics is violence.” To frame it another way, the “Modern State Conception” of law may not be the only form of law enforcement, but what if it’s a vastly more powerful form of law enforcement? The null hypothesis here would still be that outcasting is less effective than coercion at changing state behavior. (The article does mention this,, pp. 342-44.)

International law is a form of power, and Oona and Scott urge us to take this seriously. Joe Nye famously defined power as “the ability to effect the outcomes you want, and if necessary, to change the behavior of others to make this happen.” So how well does outcasting fare at that? Or, to put it another way, under what circumstances will outcasting be effective at changing state behavior? Let me give one discouraging example. (My point is not the chump game where realists come up with a biased sample of cases showing the futility of international law, and legalists select their own biased sample of cases showing the success of international law; rather, I want to consider the universe of cases.) In 1996, India rejected the Comprehensive Test Ban Treaty (CTBT). The global consensus was clear: the UN General Assembly voted 158-3 in favor of the CTBT. India was one of those three, joined only by neighboring Bhutan and Muammar Qaddafi’s Libya. Indian leaders knew perfectly well that they were risking a deepened international isolation and a serious loss of respectability and credibility. One could plausibly say there were costs to being outcast. But India did it anyway. India’s refusal to allow its burgeoning nuclear capacity to be kneecapped by international law was not just a matter of realpolitik (as a check against China, Pakistan, and America) but also of identity. Playing to domestic resentments, BJP politicians lambasted the CTBT as a symbol of Indian resistance to the Western hypocrisy of “nuclear apartheid” and neocolonial domination. As George Perkovitch writes, for the Hindu-nationalist BJP, a tested nuclear arsenal would “deliver to Hindu India the international status it deserved as a great civilization and nation.” And India has gotten away with it: the Clinton administration couldn’t turn its back on such an important country, and the junior Bush administration has accepted India’s nuclear status. That’s the kind of challenge that outcasting is up against.

Gary Bass Responds to Hathaway and Shapiro on Outcasting

by Gary Bass

Thanks to Duncan and Opinio Juris for the chance to discuss this work, and thanks to Oona and Scott for writing it. This is a wonderful article, provocative and learned, bursting with fresh thinking and rich in empirical observation. It was a pleasure to read. There’s a wealth of stuff to discuss.

I agree, both positively and normatively, with treating international law as law. Oona Hathaway and Scott Shapiro want to vindicate international law as real law, because it matters “in the way that real law must matter.” Oona and Scott complain that critics of international as law are relying on too-narrow a view of law enforcement: that it always be carried out by the regime, and that it is enforced through violence or the threat of violence. (As Weber writes in “Politics As a Vocation,” “Of course, force is certainly not the normal or the only means of the state–nobody says that–but force is a means specific to the state.”) Instead, Oona and Scott claim that regimes can outsource enforcement to another authority (externalized enforcement); and that enforcement can be done through “threat of exclusion,” or what they call outcasting. They want to rescue international law from the objection that it delegates the enforcement of its rule to states. Enforcement doesn’t mean violence; it can mean the denial of the benefits of membership. I would add that this is not just true of international law. Even in international security, there’s a lot of pressure on states that isn’t military or coercive. At any rate, war is a rare event, although it is always lurking as ultima ratio.

Yes, international law is law. Even a Chicago bombs-and-guns realist like Hans Morgenthau agrees, which may gladden hearts in New Haven. In his classic Politics Among Nations, Morgenthau readily grants that, while there are some spectacular violations, “to deny that that international law exists at all as a system of binding legal rules flies in the face of all the evidence.” Although his view of enforcement is more about brute force than Oona and Scott’s, and he sees international law as “primitive,” he does say that “during the four hundred years of its existence international law has in most instances been scrupulously observed”–a sentence that, if you didn’t know who had written it, sounds remarkably like Lou Henkin. More recently, Jack Goldsmith and Eric Posner start their book on the limits of international law by saying that it is in fact law. There’s no need to to rehash here the enduring debates about soft law, or what some anthropologists call an unorganized legal system, or aspirational law. But the view that international law is law still leaves us to wrestle with enduring tough questions about how international law is created (e.g., Bob Keohane’s discussion of hegemony), when it functions (e.g., Oppenheim says it requires a balance of power), why states will obey it at some times and flagrantly violate it at others, whether and when it functions as cheap talk or a pretext for policies chosen for more crass reasons, etc. One of the great strengths of this article is that it does not sidestep these questions. In a powerful section, Oona and Scott note that outcasting depends on the presence of private benefits for member states from cooperation with the legal order–or, I would say, on governments’ own understanding that such benefits exist. In their cogent example, Burma is already so isolated and so sanctioned that there’s not much else that outcasting could do.

The Burma example is well taken. The article doesn’t mention China, but I wonder what Oona and Scott would say about the world’s most important rising power: deeply imbedded in the global economy, with CCP rulers who seem to want to keep it that way, but so powerful that it is not especially subject to outcasting. I’ve written about China’s longstanding support for Robert Mugabe in Zimbabwe, which is an ugly case in point. Outcasting, like coercion–or any form of sanction, for that matter–obviously works less well against strong states than weak ones. (As Oona and Scott gently put it, “This is problematic from a fairness perspective.”) Indeed, some Chinese nationalist readers would think, at some point in the future, it will be the Chinese, not Western hegemonists, who determine who gets outcasted and on what grounds.

That’s a start. More soon.

International Legality – A Response to Hathaway & Shapiro

by Samantha Besson

In their article Outcasting: Enforcement in Domestic and International Law, Oona Hathaway and Scott Shapiro make a seminal contribution to the study of the legality of international law.
Their piece is not only a direct contribution to the burgeoning field of philosophy of international law, but it also participates in and deepens an important conversation within the field of general jurisprudence and the philosophy of law tout court. The authors succeed, on the one hand, in shedding new light on the relationship between legality and legal enforcement that is an old chestnut in legal theory, and in making some interesting methodological claims about the best way to conduct a jurisprudential argument about the concept of law. With respect to the philosophy of international law, on the other, the authors broach the neglected question of the legality of international law, and rightly deem it an important issue and not one that is trumped by others such as the legitimacy of international law in particular.

In this response, I question the authors’ argument with respect, first of all, to their underlying reasoning in general jurisprudence, and more specifically the way they link legality to enforcement (that argument, if defeated, no longer conditions the second part of their argument pertaining to the legality of international law), and, secondly, to their take on the philosophy of international law and in particular their argument regarding external outcasting as a form of enforcement inherent to international legality.

Outcasting: Enforcement in Domestic and International Law

by Oona Hathaway and Scott Shapiro

We are grateful to Duncan and Opinio Juris for the opportunity to discuss our article.  Here we attempt to lay out our central claim and the key implications we believe it has for the organizing questions in the field of international law.

Our article proposes a new way to think about law enforcement.  We argue that law enforcement need not involve the use or threat of physical force wielded by actors internal to the regime (such as police).  Law can instead be enforced through what we call outcasting—denying the disobedient the benefits of social cooperation and membership.

Outcasting is much more than simple shaming or shunning. Consider the World Trade Organization.  The WTO uses external outcasting to enforce its rules. The enforcement regime of the WTO is devoid of any threat or use of physical force. As one commentator aptly put it, “The WTO has no jailhouse, no bail bondsmen, no blue helmets, no truncheons or tear gas.” Instead, enforcement entails denying the violating state the benefits of cooperation (access to the full benefits of the trade-promoting rules of the GATT), in proportion with the harm it has itself done.  Moreover, the rules are not enforced internally—that is, by the officials of the WTO itself.  Yes, the WTO has a compulsory dispute resolution system. But the decisions rendered by that system are enforced through authorized retaliation by the aggrieved state party. It is the states, not the WTO itself, that impose the sanction. Enforcement is thus external to the legal regime. Enforcement is limited to specific, WTO-approved, retaliatory trade measures taken by the aggrieved parties after a process of adjudication. Moreover, the WTO is far from alone—enforcement through outcasting is used by regimes as diverse as the Montreal Protocol, Chapter VII of the U.N. Charter, the Universal Postal Union, customary countermeasures, and the European Convention on Human Rights.

What are the stakes of the claim that outcasting is properly understood as a form of law enforcement?  We believe that it opens up a new way of seeing international law and casts the central organizing questions of the field in a new light.

A central focus of the field of international law today is whether international law is effective. Whether the law is effective is thought to depend in significant part on whether it is enforced.  But if outcasting is enforcement, then international agreements that lack enforcement through physical force do not necessarily lack enforcement.  Enforcement through exclusion from the benefits of social cooperation can be as powerful at motivating states to comply with the law as any physical force—and sometimes even more powerful. Moreover, as we aim to show through developing many different variations on the outcasting model, outcasting is multifaceted. Different forms of outcasting are better suited to addressing different sets of challenges. This opens up a new world of possibilities for international law—and a host of new questions for scholars to answer. Why do some variations exist in some contexts and not in others? Which variations are most effective in which circumstances?  Are there further variations that could be used to respond to challenges not already met by existing forms of outcasting? Are there areas of international law where outcasting could be better tailored to effectively enforce the law? What barriers exist to making those changes and how might they be overcome?

Outcasting also places the longstanding debate over sovereignty in a new light. The recognition that international law often relies on outcasting rather than physical force turns the sovereigntist critique on its head. If international legal regimes are best understood as arrangements that generate community benefits for member states and impose discipline through outcasting (excluding lawbreakers from the benefits of membership), then international law does not have the power to rob states of their sovereignty. Instead, international law only has the power to take away the very benefits that it has itself generated. If that is true, then states that refuse to join international agreements out of a fear that doing so will undermine their sovereignty are simply voluntary outcasts.

What’s with All the WikiParanoia?

by Kevin Jon Heller

Readers know all too well where my sympathies lie regarding WikiLeaks and Julian Assange.  But I have to admit, I’m baffled by the paranoid reaction my fellow WikiSupporters are exhibiting in the wake of Assange’s latest failure to block his extradition to Sweden to face sexual-assault charges.  Exhibit A, from the usually invaluable WL Central:

The possibility of criminal charges against Assange and other WikiLeaks associates became more concrete early this week, when a federal court ruled that the Justice Department could subpoena records of the Twitter accounts used by Assange, Bradley Manning, and other WikiLeaks associates targeted in a criminal investigation. Google and at least one internet service provider have allegedly received similar subpoenas. This spectre of possible U.S. criminal charges looms as a U.K. court has also ruled that Assange may soon face extradition for questioning regarding alleged sex violations in Sweden, where Assange could be held indefinitely without charge and without access to visitors, lawyers, or the media.

[snip]

However, the options of U.S. officials are not limited to extradition. Indeed, a far greater threat to Assange’s safety would be posed by the relatively recent U.S. practice of extraordinary rendition. Generally reserved for suspected terrorists, “extraordinary” or “irregular” rendition involves the extra-legal abduction of a suspect from a non-U.S. host country to another country (such as Egypt, Morocco, or Jordan) known to employ harsh interrogation tactics that may constitute torture. Rendered detainees may be held indefinitely, incommunicado, and without access to attorneys.

A few thoughts.  First, are Assange’s supporters actually worried that Sweden — Sweden! — is going to hold Assange “indefinitely without charge and without access to visitors, lawyers, or the media”?  Have they ever held anyone in such conditions?  When did Sweden morph into the United States?

Second, and relatedly — extraordinary rendition?  Really?  Sweden is going to honor a U.S. request to ship Assange to, say, Syria to be tortured?  I realize the Eurozone is falling apart, but is the European Convention, as well?  (Ironically, the article notes that the ECHR prohibits extradition to states that impose the death penalty, such as the U.S.  I’m pretty sure the ECHR is no softer on rendition to torture.)

Third, and finally, why are Assange’s supporters seemingly so much more worried about Sweden doing something awful to him than Britain?  Isn’t the right-wing Cameron government much more likely to extradite Assange to the U.S., especially given that the UK has similarly onerous espionage laws?

This inquiring mind wants to know.

Opinio Juris/Yale Law Journal Symposium: Hathaway and Shapiro on Outcasting

by Duncan Hollis

Starting this coming Tuesday, Opinio Juris is pleased to host a joint symposium with the Yale Law Journal on a new article by Oona Hathaway and Scott Shapiro, Outcasting: Enforcement in Domestic and International Law. Here’s the abstract:

This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such as police or militia, that employ physical force to maintain order. Instead, outcasting involves denying the disobedient the benefits of social cooperation and membership. Law enforcement through outcasting in domestic law can be found throughout history – from medieval Iceland and classic canon law to modern-day public law. And it is ubiquitous in modern international law, from the World Trade Organization to the Universal Postal Union to the Montreal Protocol. Across radically different subject areas, international legal institutions use others (usually states) to enforce their rules and typically deploy outcasting rather than physical force. Seeing outcasting as a form of law enforcement not only helps us recognize that the traditional critique of international law – that it is not enforced and is therefore both ineffective and not real law – is based on a limited and inaccurate understanding of law enforcement. It also allows us to understand more fully when and how international law matters.

You can download a copy of the article over at SSRN (or check it out at the YLJ site).  We’re also pleased to welcome a group of distinguished commentators for the discussion: Samantha Besson from the University of Fribourg, Gary Bass from the Woodrow Wilson School at Princeton, and Miguel Maduro of EUI (and previously Advocate General for the European Court of Justice). It’s a great line-up and we’re very much looking forward to the conversation beginning on November 15.

David Bernstein’s “Defense” of Israel’s Pending Anti-NGO Laws

by Kevin Jon Heller

As readers may know, Israel’s Knesset is currently considering two laws designed to prevent foreign governments and international organizations from funding progressive Israel human-rights groups: one that drastically limits the amount of funding such groups could receive, and one that imposes a tax of nearly 50% on foreign funds received by human-rights groups that do not receive Israeli funding (i.e., groups that the current Israeli government doesn’t like).  Not surprisingly, those laws have rubbed various governments, particularly the British government and others in the European Union, the wrong way:

Diplomats posted here from three European countries said the two bills are prompting great concern within the EU. One diplomat said the bills are problematic both with regard to potential harm to the countries’ activities in Israel, and with regard to what he said was their anti-democratic character.

A diplomat familiar with the situation said that the EU’s Standley told Amidror that the proposed laws are viewed as an attempt to limit civil society activity in Israel, calling the proposals part of a wider disturbing development.

For his part, Amidror is said to have replied with a defense of the legislation, calling foreign funding of nonprofits interference in Israel’s internal affairs.

A senior Israeli official acknowledged that if the bills pass in their current form, they would cause a severe crisis with the EU. Standley has contacted all of the embassies in Israel that represent EU countries, urging them to register their own concerns regarding the legislation. EU ambassadors here are to meet on Tuesday to discuss the issue. The office of the EU in Israel has also approached the embassies of three non-EU countries – the United States, Canada and Norway – to coordinate the diplomatic response that Israel receives.

The embassies of Britain and the Netherlands, both countries that fund a number of left-wing organizations in Israel, have already begun to take action on the issue.

The British ambassador here, Matthew Gould, is said to have told Akunis that Britain supports the promotion of human rights in a large number of countries in an effort to advance universal values, and that the funding is not directed against the Israeli government.

In a typically hyperbolic post, David Bernstein defends the laws today at Volokh Conspiracy.  There is no point in trying to rebut that defense; Bernstein simply relies on the always-unbiased NGO Monitor to claim that “some” of the affected human-rights groups “deny the very legitimacy of the Israeli government,” while “many” are “organizations with little if any domestic base within Israel and instead represent the views of the international far left with a fig leaf of Israeli leadership drawn from its domestic far left.”  (Why the rest of the human-rights groups should suffer, Bernstein doesn’t bother to tell us.)  I do want to call special attention, however, to Bernstein’s “rebuttal” of the EU minister’s claim that the laws are anti-democratic, because it provides rare insight into the world-view of Israel’s far-right defenders, who view any criticism of Israel — particularly by Israelis who dare organize themselves into a domestic opposition — as akin to treason:

So the idea here, obviously is that a “democratic” country must allow foreign governments, who represent foreign citizens and not Israelis, to interfere in its domestic politics by supporting organizations that range from the fringe left to beyond the fringe left.

Now that is chutzpah! Imagine if Israel was funneling millions of Euros annually to Basque separatists in Spain, Flemish nationalists in Belgium, or to one of numerous neo-fascist fronts in Norway and France. I have a very strong feeling that the EU’s views of what “democratic” countries must tolerate from foreign governments would change rather quickly.

Get that?  According to Bernstein, progressive human-rights groups in Israel are the equivalent of Basque separatists and Norwegian and French neo-fascists.  (I’m not sure why Flemish nationalists are so evil.  The ones I’ve met are quite nice.)  The ridiculousness of the comparison speaks for itself.

Oh, one more thing: Bernstein conveniently neglects to inform his readers that the British government (who knew David Cameron wanted to destroy Israel?) and the other EU governments are not alone in their criticism of the pending laws.  The United States is opposed to them, as well.  What that makes Obama in Bernstein’s eyes, I shudder to contemplate.

P.S.  It is particularly ironic, of course, that Bernstein relies on NGO Monitor for information about foreign funding of Israeli human-rights organizations.  NGO Monitor receives substantial funding from non-Israeli organizations — approximately $520,000 (US) in 2010, more than 73% of its total funding, according to the figures in its latest financial report. I’d ask why that funding does not qualify — to cite Amidror, Israel’s national-security advisor — as “interference in Israel’s internal affairs.”  But you already know the answer to that.  Nope, nothing “anti-democratic” at all about the proposed laws!

“They Rightly Believe That Their Sons Saved the Liberty of the World”

by Roger Alford

Again and again, my fellow citizens, mothers who lost their sons in France have come to me and, taking my hand, have shed tears upon it not only, but they have added, “God bless you, Mr. President!” Why, my fellow citizens, should they pray God to bless me?

I advised the Congress of the United States to create the situation that led to the death of their sons. I ordered their sons overseas. I consented to their sons being put in the most difficult parts of the battle line, where death was certain, as in the impenetrable difficulties of the forest of Argonne.

Why should they weep upon my hand and call down the blessings of God upon me? Because they believe that their boys died for something that vastly transcends any of the immediate and palpable objects of the war. They believe and they rightly believe, that their sons saved the liberty of the world.

They believe that wrapped up with the liberty of the world is the continuous protection of that liberty by the concerted powers of all civilized people. They believe that this sacrifice was made in order that other sons should not be called upon for a similar gift–the gift of life, the gift of all that died.

Woodrow Wilson, Pueblo Speech of September 25, 1919

The High Price of the “Slow-Motion Berlin Airlift”

by Kevin Jon Heller

There are many reasons to demand closing Guantanamo Bay and ending the military commissions, such as the government’s tendency to invent armed conflicts in order to convict defendants of imaginary war crimes.  But even if you don’t care about the integrity of international humanitarian law or the coherence of the American approach to that body of law, you should still care about how ridiculously expensive it is to incarcerate people at Gitmo instead of in a federal prison in the United States:

The Pentagon detention center that started out in January 2002 as a collection of crude open-air cells guarded by Marines in a muddy tent city is today arguably the most expensive prison on earth, costing taxpayers $800,000 annually for each of the 171 captives by Obama administration reckoning.

That’s more than 30 times the cost of keeping a captive on U.S. soil.

It’s still funded as an open-ended battlefield necessity, although the last prisoner arrived in March 2008. But it functions more like a gated community in an American suburb than a forward-operating base in one of Afghanistan’s violent provinces.

Congress, charged now with cutting $1.5 trillion from the budget by Christmas, provided $139 million to operate the center last year, and has made every effort to keep it open — even as a former deputy commander of the detention center calls it “expensive” and “inefficient.”

“It’s a slow-motion Berlin Airlift — that’s been going on for 10 years,” says retired Army Brig. Gen. Greg Zanetti, a West Point graduate who in 2008 was deputy commander at the detention center.

I realize that Gitmo is crawling with evil terrorists who would never miss an opportunity to scream al-Qaeda propaganda from their barren supermax cells in ADX Florence.  And I’m sure that al-Qaeda would immediately combine its many battalions into a massive strike force and invade Colorado. (Love Red Dawn; can’t wait for the remake.)  But I still say it’s a risk worth taking in an economic climate so bad (because of policies pursued by the same people who bleat endlessly about the need to keep Gitmo open forever) that schools are forced to eliminate Fridays.

NYU Law Convenes Experts’ Meeting on the Independence of the ICC Prosecutor

by Chris Borgen

For those in NYC tomorrow, I wanted to note that NYU Law is hosting what promises to be an informative experts’ meeting tomorrow on the International Criminal Court.  Here’s the event description:

How best to assure the independence of the ICC Prosecutor

Friday, Nov. 11th from 6-7:30 p.m.

NYU School of Law,  Lipton Hall, Faculty Club, 108 West 3rd Street, New York, New York

The independence of the Court as a whole and of the Prosecution in particular, is the cornerstone of the system of justice established by the Rome Statute. By establishing the proprio motu powers of the Prosecutor to open an investigation subject to judicial review, the Rome Statute created a new autonomous actor in the international scene. The hope was to ensure that the requirements of justice would prevail over political decisions in accordance with the rule of law.

The Rome drafters sought to make sure that the Court’s intervention, including decisions to indict and prosecute, would be based on legal, not political, criteria. To this end, the Rome Statute authorizes the Prosecutor to identify situations to be investigated in accordance with the legal requisites established by Article 53, subject only to the oversight of the ICC’s judges. In an effort to guarantee prosecutorial independence, Article 42 of the Statute further stipulates that the entire Office of the Prosecutor shall act independently as a separate organ of the Court and that the members of that Office shall not be subject to instruction from external sources.

The Assembly of States Parties (ASP) has recognized the significance of maintaining prosecutorial independence. At its last session, it stressed its respect “for the judicial independence of the Court and its commitment to ensuring respect for and the implementation of its judicial decisions.”

The Office’s independence is an important contributor to the legitimacy of the Court as a whole. Some of the Prosecutor’s and the Court’s decisions have created tensions or confronted certain political agendas, most notably in the case against Sudanese President Al Bashir. However the Prosecutor and Court decisions generally have been supported by States and relevant actors. But challenges to the Office’s independence remain.. It is evident that the Court’s and the Prosecutor’s vaulted independence can be jeopardized indirectly, as through the denial of resources, mismanagement, or even efforts to impose oversight.

In its upcoming session in December 2011, the Assembly of States Parties will select a new Prosecutor and define aspects of the institutional framework of the Court, including oversight mechanisms. NYU is convening an expert meeting to discuss theses issues and their relevance to the independence of the Court and Prosecutor’s Office.

Public Program
Professor José E. Alvarez (NYU School of Law): Moderator
ICC Prosecutor Luis Moreno-Ocampo on the experience of the first Prosecutor
Professor Héctor Olásolo (Utrecht University) on the relations between the ASP, the subsidiary bodies and the Court
Ambassador Christian Wenaweser on the role of the President of the ASP vis-à-vis the ICC Prosecutor

Questions and Answers from the floor, time permitting.

Putting Kleptocrats on Notice

by Robert Williams

[Robert E. Williams, Jr. is an associate professor of political science at Pepperdine University and an expert on corruption in Equatorial Guinea].

The other shoe has dropped in the U.S. Government’s corruption case against Teodoro Nguema Obiang Mangue. Last week, a civil forfeiture complaint was unsealed in the U.S. District Court for the Central District of California as a second complaint was filed in the District of Columbia. The complaints, tantalizingly foreshadowed by the lis pendens filing earlier this month that Roger noted in a previous post, seek the forfeiture of over $70 million in assets owned by the profligate son and heir-apparent of Equatorial Guinea’s dictator, Teodoro Obiang Nguema Mbasogo.

These actions are part of the Justice Department’s Kleptocracy Asset Recovery Initiative that was announced by Attorney General Holder at the African Union Summit on July 25, 2010. (In a move that angered human rights groups, the African Union selected President Obiang Nguema to chair the organization six months later.) Assistant Attorney General Lanny Breuer directs the group within the Criminal Division that is implementing the Initiative. The first complaint filed by Breuer’s group sought the seizure of over $1 million in assets (including a $600,000 home in Maryland) owned by Diepreye Solomon Peter Alamieyeseigha, former governor of the oil-rich Bayelsa State in Nigeria. DSP, as he was known to investigators, was impeached in 2005, but by that time he had laundered millions of dollars gained through oil-related corruption in the U.S., the United Kingdom, and elsewhere.

The assets to be seized in the Equatoguinean case are also the products of oil-related corruption. Like Nigeria, its neighbor to the north, Equatorial Guinea sits over the large oil reserves of the Gulf of Guinea. Unlike Nigeria and the other oil giant of sub-Saharan Africa, Angola, Equatorial Guinea is an oasis of political stability, although its stability is a product of severe repression. Since 2004, Equatoguinean oil production has averaged over 300,000 barrels per day, the vast majority of it produced by ExxonMobil, Hess, and Marathon, three U.S. corporations. As a result of extortion, misappropriation of public funds, and other forms of corruption, President Obiang Nguema, his family, and others in the inner circle have become fabulously wealthy while the nation at large remains among the most impoverished in Africa.

Teodorín, as the president’s oldest son is known, has been especially reckless in flaunting his portion of Equatorial Guinea’s oil wealth. Roger listed some of the property against which the U.S. Government has filed complaints for forfeiture in rem, but there are other countries around the world that could put together similar lists of homes, cars, and collectables. In fact, last month France seized eleven luxury cars belonging to Teodorín from the family’s residence on Avenue Foch near the Arc de Triomphe, while Spain is reportedly preparing to move against properties in Madrid and Las Palmas.

The beauty of what now appears to be a coordinated action by prosecutors in the U.S., France, and Spain against one of the most corrupt governments in the world is that it severely limits the possibilities for retaliation using the oil weapon. Because Equatorial Guinea’s oil is produced offshore in deepwater wells, few companies, whether state-owned or private, can provide the necessary production technology. In fact, China’s principal oil production company, CNOOC, completed its first deepwater production rig—destined for use in the South China Sea—in May of this year. Although China is the destination of 12 percent of Equatorial Guinea’s oil exports, it will not be in a position to displace Western oil companies for years to come.

The seizure of Teodorín’s assets in the United States is unlikely to speed the departure of the man who, since Gaddafi’s demise, is the longest-surviving dictator in Africa, nor is it likely to spur dramatic progress toward democracy and respect for human rights in Equatorial Guinea. It will be, however, a small victory for anti-corruption advocates and, perhaps more importantly, a strong signal to the world’s remaining kleptocrats.

Yawn…Russia’s 18 Year Quest for WTO membership is Almost Over

by Julian Ku

Here is a story that no one (here in the U.S. anyway) is paying attention to:

Russia’s accession to the WTO cleared a major hurdle when the WTO Working Party on its accession approved, ad referendum on 10 November 2011, the package spelling out Russia’s terms of entry to the organization. The Working Party will now send its accession recommendation to the 15 —17 December Ministerial Conference, where Ministers are expected to approve the documents and accept Russia as a WTO Member.

Apparently, a last-minute deal with Georgia sealed the deal, and Russia will become the last of the “BRICs” to join the WTO (assuming the U.S. Congress will play ball, which I assume it will since Russian imports threaten no U.S. industries, and Russia has enjoyed low tariff status in the U.S. since 1992 anyway). 

What is the significance of this? Short term, it is not a very big deal. Russia is not currently one of the world’s most dominant economic players, but it obviously has a very important long-term role in the world economy. And Russia is agreeing to subject itself to WTO rules for trade and investment, which may revive foreign interest in doing business there.  A big moment for the WTO, though, that has received very little attention as other big news (the euro crisis) has overshadowed.

New Naval War College Blue Book on the Changing Nature of War

by Kevin Jon Heller

The Naval War College has published the latest volume in its Blue Book series.  Here is the description and information about how to obtain it (although you can simply get the PDF here):

The Naval War College International Law Department recently published volume 87 of its International Law Studies “Blue Book”  series.  The Blue Book has served as an invaluable resource for scholars and practitioners of international law since 1901.   Volume 87 is entitled “International Law and the Changing Character of War.”  It includes scholarly papers by Professor Robert Chesney, Professor Mike Schmitt, Professor Yoram Dinstein, and Dr. Nicholas Rostow among many other key leaders in the field.   A copy of volume 87 may be downloaded from the Naval War College website (navigate to www.usnwc.edu and then select the “publications” drop-down menu at the top of the page).   Hard copies of recent editions of the Blue Book are also available for sale by the Government Printing Office Bookstore (http://bookstore.gpo.gov/).   Subscribers to Lexis (www.lexis.com) and HeinOnline (www.heinonline.org) can search and retrieve the entire series.   In addition, HeinOnline will print any volume on demand.  Their customer service phone number is (800) 828-7571.  For questions concerning the Blue Book, the Naval War College International Law Department may be reached at ILD [at] usnwc [dot] edu or (401) 841-4949.

I think this volume will be of particular interest to Opinio Juris readers, as it covers a number of topics that we have discussed on the blog.  The essays are divided into the following sections: International Law Challenges in Asymmetrical War; the Use of Force in Cyberspace; Civilianization of Warfighting and the Concept of “Direct Participation in Hostilities”; Unmanned Systems/Unmanned Vehicles; Lawfare in Asymmetrical Conflicts; Rule Set, Investigation, and Enforcement in Asymmetrical Conflicts.

Berkeley Conference: The Internet in Bello: Cyber War Law, Ethics, and Policy

by Duncan Hollis

Next Friday (November 18), Berkeley (along with the ICRC and ASIL’s Lieber Society) is hosting what looks like a fantastic conference on the issue of ‘cyber war’ and the relevant questions of law, ethics and policy. Here’s how they’re describing it:

The seminar will examine legal, ethical and policy issues posed by cyber warfare.  While much attention has been paid to jus ad bellum issues – examining when and under what circumstances a cyber attack constitutes an armed attack for the purposes of self defense – relatively little discussion has focused on how cyber warfare might require new rules, or new interpretations of rules, regarding the conduct of hostilities, or the jus in bello, once armed conflict has begun.

The Internet in Bello seminar will provide an opportunity for scholars and practitioners to explore issues such as intelligence-gathering and other means of ‘preparing the battlefield’; neutrality before and during cyber war, starting with how to interpret in the Internet era the traditional requirement that neutral States not participating in a given armed conflict not allow the movements of troops or weapons across their territories; as well as questions relating to how cyber operations intersect with the established rule that an attack is an act of violence, and the fundamental humanitarian principle of distinction, which holds that civilians should be protected against dangers arising from military operations.

The Deputy Head of US Cyber Command, Lt. Gen. Robert Schmidle, Jr, USMC, is the key note speaker, joined by an impressive array of US and British Legal Scholars, including, among others, Sir Daniel Bethlehem, former legal adviser to the UK foreign office, current ASIL President and Berkeley’s own David Caron as well as Professors Beth van Schaak (Santa Clara), Sean Watts (Creighton), and Eric Talbot Jensen (BYU). You can see the full line-up and the program here.

My one dig with this conference (and ones like that now seem to be popping up with regularity) is that registration is open to those who want to attend physically. It would be nice if these discussions of law and cyberspace could actually take place in cyberspace.  Be that as it may, for those of you lucky enough to be in the area, you can register to attend here.

Inaugural ASIL Research Forum: A New Tradition in International Law

by Peggy McGuinness

Congratulations to Kal Raustiala and Laura Dickinson, the masterminds who conceived and carried out the first Research Forum sponsored by the American Society of International Law.  The forum took place this past weekend in Los Angeles, together with the ASIL Mid-Year Meeting, which ASIL President David Caron has successfully moved out of Washington and out among broader constituencies of international practice here in the U.S.  This year added the inaugural Research Forum as a new tradition for the ASIL Mid-Year Meeting.  The forum included over 50 papers presented at 18 separate panels over two days.  I was fortunate to have the opportunity to present my own paper on congressional human rights mandates as a work-in-progress and was honored to sit on a panel with stellar colleagues and a sharp commentator, as well as to receive  insightful feedback from the participants.  The panels were well attended and packed with some very smart people from the U.S. academy and abroad — including some interdisciplinary mingling by IR scholars and historians.  You can find some of the draft papers and the full schedule here.  (Among the forthcoming books that were discussed that I am looking forward to reading:  Jeff Dunoff and Mark Pollack’s definitive volume on IL/IR scholarship and Ben Coates’ history of international legalism in U.S. diplomacy.)  I was particularly pleased to see fellow bloggers like Fiona de Londras — on this side of the pond! — and to meet new OJ readers.  Having the opportunity to hear keynotes from ICC Prosecutor Luis Moreno-Ocampo (in a candid mood, as Roger notes here) and ICJ Judge Joan Donoghue was icing on the cake.

Congratulations to Kal, Laura, the organizing and host committees, and all the staff at ASIL for a job well done!

M.B.Z. v. Clinton: Getting to the Merits on the Recognition Power

by Robert Reinstein

Robert Reinstein is Clifford Scott Green Professor of Law at Temple University Law School and the author of Executive Power and the Law of Nations in the Washington Administration, which addresses the early history of the recognition power.

M.B.Z. v. Clinton is the first case in which there is an apparent conflict between an act of Congress and the President’s authority to recognize a foreign state or government.

The Petitioner and the Solicitor General each argued that the Court did not have to resolve this conflict on the merits.  According to the Petitioner, this case involves a mere passport law and not represent a conflict over foreign policy.  That view did not appear to impress any of the Justices.  The Solicitor General defended, albeit weakly, the D.C. Circuit’s opinion that this was a political question.  That view also did not appear to gain any traction because it rests on the proposition that the recognition power is textually committed to the President – which, if correct, would represent a decision on the merits.  Finally, Justice Kagan suggested a way to avoid the more momentous issues at stake by asking the Petitioner’s lawyer how the statute was constitutional in the first place.  His answer was not very helpful, relying on the immigration power to support passport regulations.  But Justice Kagan observed that the provision at issue has nothing to do with immigration or ordinary passport regulation – it appears to be a foreign policy decision that  Jerusalem was part of Israel.    The Petitioner could have relied on Congress’ power to regulate foreign commerce, where it frequently makes foreign policy decisions that are binding on the President, but he did not.

Historically, this case is unique.  On the one hand, the Solicitor General is correct that Congress has never recognized a foreign government, nor has it ever directed the President to do so.  However, as Justice Alito observed, the President has never recognized a foreign government over the objection of Congress.  The cases in which the Supreme Court stated that recognition is exclusively an Executive function involved the relationship of the courts to the political branches, not an internal conflict within the political branches.  And there are statements in early Supreme Court opinions (including by Marshall speaking for the Court in 1818) that the recognition power belongs jointly to Congress and the President.

If the Supreme Court applies the framework established in Justice Jackson’s concurring opinion in Youngstown, the President’s power would be at its “lowest ebb” because he is acting contrary to the expressed will of Congress.  This means  that the President can prevail only if the Executive recognition power is exclusive.

The Solicitor General argued that the provision in Art. II, § 3, that the President “shall receive Ambassadors and other Public Ministers” creates such a plenary power. The framers almost certainly considered the Receive Ambassador Clause as merely imposing a ministerial duty on the President as head of state (as I describe in my article). Justice Scalia seemed particularly skeptical that the Receive Ambassador Clause created a plenary recognition power.  Alternatively, the Solicitor General argued that history and functional considerations of efficiency and the need for secrecy had placed a gloss on the Executive power, which led the Chief Justice to comment that this did not appear to be a textual commitment argument.  This portion of the Solicitor General’s argument is fascinating because he appeared to resurrect the theory of inherent plenary executive powers that had been advanced by the previous administration.

The Petitioners’ Reply Brief contains historical material (which the Solicitor General disputed at oral argument) that, at least through the Lincoln administration, no President claimed that he possessed such an exclusive power. In notable cases of recognition, Presidents Washington, Monroe, Jackson, Taylor and Lincoln either relied on duties of international law, acted jointly with Congress or deferred altogether to Congress.

My own view is that history and the President’s role in conducting foreign policy gives him the implied power to recognize foreign states and government, but that power is not plenary. Much as in the case of executive agreements, historical practice confirms an implied executive power that the President can exercise without specific Congressional authorization; but his decisions can be modified or overridden by statute.

The public should understand that this case has implications well beyond the content of passports. This case is at the tip of the iceberg of Middle East policy and politics. Can the President unilaterally recognize a Palestinian state with defined boundaries? Can Congress modify or override such recognition? The answers to these questions (mine are “yes” to each) may be determined by the decision in this case.

“There is a Double Standard at the ICC”

by Roger Alford

That was the candid assessment of outgoing ICC Prosecutor Luis Moreno-Ocampo at the recent ASIL Midyear meeting held at UCLA this past weekend. In a free-flowing and unusually frank discussion of the International Criminal Court to a packed assembly, Moreno-Ocampo admitted that there is “one standard for 119 member states, and another standard for every other country.” He welcomed the enhanced role of the Security Council in referring cases to the ICC, something that he said was unthinkable in 2003. But he openly admitted that the Security Council exercised political discretion in picking and choosing which countries to refer to ICC prosecution. Why did the Security Council refer the situation in Libya to the ICC, but not the situation in Syria? The only distinction, he suggested, was the geopolitical position of the two countries. The ICC is becoming the vehicle for the Security Council to punish countries that are politically unpalatable.

If this is the case, should that impact the way the ICC prosecutor handles the matter? “No,” he said. Once the matter was referred to the ICC, Moreno-Ocampo was quick to disabuse any suggestion that the prosecutor exercised its discretion in a political fashion. When someone in the audience intimated that the pace of the Libyan prosecutions was politically motivated, the prosecutor denied it, saying that “he is criticized if he goes too slow and criticized if he goes too fast.” The only reason that the Libyan investigation and arrest warrants were so expeditious was due to the assistance from numerous sources both inside and outside of Libya.

When asked about the circumstances of Muammar Gaddafi’s death and whether the ICC would investigate crimes perpetrated by rebel forces, Moreno-Ocampo admitted that Gaddafi’s death was not “clean”, but said that, consistent with complementarity, the ICC must let the national court proceedings complete their work before the ICC considers taking any action.

As for the choice of which prosecutions to initiate against ICC member states, Moreno-Ocampo stated in an earlier lunch Q&A that the gravity of the offense was the deciding factor. “We look at how many hundreds were killed or raped, and prioritize investigations on that basis.”

The keynote address by Moreno-Ocampo was the highlight of what otherwise was a stellar performance by panelists at the ASIL midyear meeting. Now in its second year, the midyear meeting is fast becoming an important venue for the presentation of international law scholarship. The notable feature of this meeting as compared to the annual meeting is the heavy focus on the discussion of working papers, a sharp contrast from the traditional short presentation from a group of panelists. Just check out this feast of papers presented.

Discount on Symposia Books

by Kevin Jon Heller

Once I again I want to extend our thanks to all of the discussants of my book on both EJIL: Talk! and Opinio Juris. In addition to my introduction, readers can find at the specified links the contributions of Michael Marrus, Alexa Stiller, and Rob Cryer with my reply on EJIL: Talk!, and those of Dave Glazier, Detlev Vagts, Roger Clark, and Devin Pendas with my response here. I hope our readers enjoyed our first joint book discussion.

As part of our joint Opinio Juris/EJIL: Talk! symposia, Oxford University Press has offered to give readers a 20% discount on each book.  To purchase The Nuremberg Military Tribunals and the Origins of International Criminal law, click here.  When you add the book to your OUP basket, the 20% discount will automatically be deducted.  The discount is good until 31 January 2012. We will post a similar link for Marko’s book when we host that discussion.

The Good Wife Takes on Terrorism (and Kind of Botches It)

by Kevin Jon Heller

Tonight’s episode of The Good Wife featured a Muslim-American man — a former Army translator in Afghanistan — who sues the U.S. government for torture and ends up being accused of supporting al-Qaeda.  It was quite a fascinating episode; it’s not everyday that a mainstream television show is built around Executive Order 13324, which blocks property and prohibits transactions with persons involved in terrorism.  Unfortunately, though obviously well researched, the episode made a significant criminal-law error. After the Lockhart/Gardner lawyers drop their civil claim, prosecutors (state ones, but we can overlook that) charge him with “conspiring to aid and abet terrorism” because he brought medicine to a high-ranking al-Qaeda official whose daughter was dying of an unspecified disease. In one respect, that charge was clever: 18 USC 2339A (“providing material support to terrorists”) specifically exempts the provision of medicine from the statute.  The problem is that, as a matter of criminal-law theory, it is impossible to conspire to aid and abet a crime.  Indeed, the Sixth Circuit specifically held as much in a well-known 1992 case, United States v. Superior Growers Supply, for reasons that are explained in the Justice Department’s Criminal Resource Manual:

The government in United States v. Superior Growers Supply, 982 F.2d 173 (6th Cir. 1992), charged a conspiracy to aid and abet the manufacture of marihuana. 982 F.2d at 177. The problem the court faced was how to logically combine the crime of conspiracy, which does not require proof of the underlying substantive offense, with an aiding and abetting offense, which does not exist without one. If the charge was merely conspiracy to traffic drugs, the government would have to prove only an agreement to traffic drugs. Had the charge been aiding and abetting drug trafficking, the government would not have to prove any agreement existed, but would have to prove that the defendant(s) knew others were trafficking drugs and the defendant(s) intended to assist in the unlawful act. The court noted that in order to conspire or agree to assist others to traffic drugs, one would have to know that the others are trafficking drugs. Otherwise, all that is proved is that there was an aiding and abetting of a possible criminal occurrence, which is not a crime. In other words, without the actual underlying crime, there can be no knowledge or intent to further it. Id. at 178.

British courts have reached the same conclusion, most recently in R. v Kenning [2008] EWCA Crim 1534 (24 June 2008).

Unfortunately, the writers of the episode backed themselves into a corner by having the translator deliver medicine.  That simply isn’t criminal, whether under the awful material-support regime created by 2339A and Holder v. Humanitarian Law Project or under normal principles of criminal responsibility.  The writers should have had him deliver a blanket to the al-Qaeda official for his dying daughter — then he really would have been guilty of material support!

Response to Glazier, Vagts, Clark, and Pendas

by Kevin Jon Heller

My thanks to Dave Glazier, Detlev Vagts, Roger Clark, and Devin Pendas for their insightful comments on my book.  At the risk of sounding like I’ve plagiarized my response at EJIL: Talk!, I find it difficult to respond to those comments, because I almost completely agree with them.  But I’ll give it a shot…

Glazier

My basic response to Dave’s comments is delight – I’m glad he finds the book useful for his own work, which is the highest compliment an author can receive.  He does not offer any substantive criticisms of the book, so I will just expand here upon one of the ideas that he discusses: the rejection of conspiracy as an independent crime.  According to Dave, the book does not establish (pp. 275-80) that the three tribunals that rejected conspiracy – Medical, Justice, and Pohl – did so on the ground that customary international law did not recognize it.  He’s probably right about that; I wrote Chapter 12 before the question of whether conspiracy is a war crime became so important in al-Bahlul.  But I still think that it’s difficult to argue that the tribunals rejected conspiracy simply because it was not included in Law No. 10; as I note in a number of places in the book, the tribunals consistently insisted that customary international law took precedence over the literal text of Law No. 10, regardless of whether custom expanded or contracted the scope of individual criminal responsibility.  The Hostage tribunal, for example, refused to hold that killing hostages was per se criminal, even though Article II(1)(b) specifically deemed the “killing of hostages” a war crime (p. 216) – a reading that narrowed Law No. 10.  Conversely,  the Milch and Farben tribunals were willing to criminalize enslavement as a war crime, even though Article II(1)(b) criminalized only “deportation to slave labor” (pp. 220-21) – a reading that expanded Law No. 10.  Had the tribunals believed that conspiracy was an independent crime under customary international law, therefore, I find it nearly impossible to believe that the tribunals would have rejected that idea conspiracy simply because it was not included in Law No. 10.

Vagts

Detlev Vagts rightly takes me to task for not exploring the impact of the NMTs on the concentration-camp cases held in Germany in the 1960s, on Eichmann, or on Demanjuk.  I particularly regret not discussing Eichmann, which was simply an inexcusable oversight on my part.  (The paperback edition, perhaps?)  The District Court of Jerusalem relied heavily on Law No. 10, Justice, and Einsatzgruppen to hold that crimes against humanity did not require a nexus to war crimes or crimes against peace.  That was a questionable decision, for all of the reasons I discuss in the book.  But at least the District Court was honest enough to acknowledge that Flick and Ministries reached the opposite conclusion – the same cannot be said of the ICTY!

Clark

Roger and I had extensive discussions about the NMTs and the crime of aggression before I wrote the book, which perhaps explains why he does not offer any specific criticisms of the book in his response.  (I’m glad I didn’t make any new mistakes!)  I continue to believe that the ICC made a bad decision by limiting aggression to individuals able to “control or direct” the political or military action of a state that commits an aggressive act, because I still fail to see how a private economic actor – a banker or an industrialist – could ever satisfy that requirement.  As I note in the book, the tribunals did not convict any of the industrialist defendants of crimes against peace, but they uniformly declined to hold that such defendants were excluded from the crime as a matter of law.

As for the possibility of mistake of law, I’m of two minds.  I do indeed think it’s clear that the Ministries tribunal spoke for all of the tribunals when it held that a defendant could not be convicted of a crime against peace unless he knew that the war or invasion violated international law.  But I would not want the current crime of aggression to recognize a mistake of law defense, because leaders rarely believe that their uses of force are illegal.  George Bush, for example, may have genuinely believed that the U.S.’s catastrophic invasion of Iraq was consistent with international law – but I don’t think that belief should have insulated him from criminal responsibility, had the crime of aggression existed in 2003.

Pendas

I don’t have much to add to Devin’s response, other than to admit my relief that he doesn’t think I’m too awful of an historian.  Like the commenter on the response, I am fascinated by the two additional historical contexts for the NMT trials that he provides.  Particularly interesting is his claim that “[t]he Nuremberg trials were not only part of a broader effort by the Americans to reconfigure international society along multilateral, ‘New Deal’ lines; they were an effort to reconstitute civilization, with at least an implicit eye on the threat that European barbarism posed for European imperialism.”  That statement seems to be a compelling deconstruction of the inside/outside distinction that has always structured Western-centric international law; as Devin reminds us, sometimes the barbarians are already within the gates.

In the spirit of reciprocal admiration, I want to call readers’ attention to Devin’s book, The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law (CUP, 2010) – one of the trials that Detlev Vagts correctly faults me for ignoring.  It’s a superb book, a must-read for anyone interested in the judicial response to Nazi criminality.

Again, my thanks to my co-bloggers and to the four professors who were kind enough to respond to my book.  It’s been a wonderful discussion.

Inside Executive Branch Policy Discussions on Drone Strikes

by Kenneth Anderson

Adam Entous, Siobhan Gorman, and Julian Barnes of the Wall Street Journal’s national security reporting team have a front page article today detailing the inside debates and, as the article says, policy changes around drone strikes in Pakistan over the several months.  It is a must-read for everyone who follows drone and targeted killing policy debates, and, I’m told, reflects months of reporting.  It is not a “here-is-the-leaked-document” kind of article, but instead a synthesis of many sources and an attempt to put together an account of months of debate and policy back-and-forth over how, when, who, and with whose permission to launch drone strikes in Pakistan’s territory.   Continue Reading…

International Politics and the Nuremberg Military Trials

by Devin O. Pendas

Kevin Heller’s magisterial survey of the Nuremberg Military Tribunals offers the first comprehensive account of the trials, as well as an insightful analysis of the tribunals’ jurisprudence and legal basis. Heller is an international lawyer of considerable insight and his assessment of the trials is always judicious, frequently thought provoking, and, even if some scholars may quibble with this or that point, never less than rewarding. Commenting on a book as commendable as this one is difficult, since one risks seeming either banal (if too positive) or petty (if overly critical). Fortunately, as a historian and not an international lawyer, I have an easy out, since I can read Heller’s legal analysis from a different angle.

Heller’s interest in the trials in many cases lies in an assessment of whether the court’s got this or that legal issue correct. For instance, he notes of the tribunals’ rejection of the defense argument that they were (or ought to be) applying American, rather than international law, “this position is clearly correct” (121). Or again, with respect to the Flick and Farben tribunals’ ruling that the deprivation of civilians of industrial property did not constitute a crime against humanity, Heller asserts “this was an unpersuasive interpretation” (247). In other words, one of Heller’s most frequent questions in this book is whether the tribunals were right or wrong in their findings on various issues. He is quite evenhanded in his judgments, as these examples show. He is willing to give credit where it is due, but unafraid to condemn erroneous judgments when they arise. Insofar as this is a book aimed primarily at legal academics and international lawyers, Heller’s judgments will be of considerable interest. Such assessments are of course the lifeblood of legal reasoning. What they are not, however, is particularly historical. The historian’s question would not be, ‘were the judges right?’, but rather, ‘why did they think what they did?’ And here Heller’s assessment tends either toward the internal and formalistic or, especially with reference to the all too easy clemency procedures put in place after the trials, to a straightforward Cold War instrumentalism. (continued….)

Salvaging the Charming Betsy in ATS Cases: A Response to Rio Tinto

by John C. Dehn

There is much to be analyzed in the Ninth Circuit’s en banc decision in Sarei v. Rio Tinto. I am exercising a guest blogging privilege to address two aspects: its holding regarding the nature of the cause of action (and implicitly, the remedy) available under the ATS, and, the consequences of that holding to a proper understanding of the extension of that remedy to cases arising in a foreign territory. Having just presented on this topic, I will borrow heavily from those remarks. I apologize in advance for the length of this post. These are theoretically rich issues.

The Ninth Circuit held, correctly in my view, that the ATS effectively authorizes a federal, common law cause of action, and at least implicitly, a federal remedy. For that reason, it found that ATS cases arise under the laws of the United States. There is much scholarship in general agreement with this view, though disagreement remains about the implications of it. In any event, because the case arose in foreign territory between aliens, finding that the case arose under U.S. law was essential to the federal courts having a constitutional basis for exercising jurisdiction over it.

The court then held,

The norms being applied under the ATS are international, not domestic, ones, derived from international law. As a result, the primary considerations underlying the presumption against extraterritoriality—the foreign relations difficulties and intrusions into the sovereignty of other nations likely to arise if we claim the authority to require persons in other countries to obey our laws—do not come into play. This is because, Judge Kleinfeld’s contention notwithstanding, we are not asserting an entitlement to “make law” for the “entire planet.” Kleinfeld op. at 19431. Instead, and especially in light of Sosa, the ATS provides a domestic forum for claims based on conduct that is illegal everywhere, including the place where that conduct took place. It is no infringement on the sovereign authority of other nations, therefore, to adjudicate claims cognizable under the ATS, so long as the requirements for personal jurisdiction are met.
* * * *
We deal with the ATS, not RICO or a securities act. There are strong indications that Congress intended the ATS to provide jurisdiction for certain violations of international law occurring outside the United States, and there are no indications to the contrary. We therefore conclude that the ATS is not limited to conduct occurring within the United States or to conduct committed by United States citizens. The ATS, of course, expressly creates jurisdiction for claims asserted by aliens, so that there can be no dispute that claims may, indeed must, be asserted by entities that are not citizens of the United States.

Here the court is having its cake and eating it, too. The conduct-regulating norms that the court is enforcing are international and universal, but the remedial right is domestic and creates “arising under” jurisdiction. In essence, as both Trey Childress and Chimene Keitner have noted, this is a claim that a violation of the law of nations is the same as any other purely private, transitory, common law claim — one that follows individuals wherever they go and may be adjudicated in any forum with personal jurisdiction (subject to the application of conflict of laws principles). I question this view of the ATS on both historical and theoretical grounds.

The historical challenge to this view was largely made by Anthony Bellia and Brad Clark in the Chicago Law Review earlier this year. Their typically thorough and insightful focus was on the international and domestic legal context in which the First Congress adopted the original ATS….

Hello World to Eutopialaw blog

by Kenneth Anderson

I have been raising various queries about the eurozone crisis and European governance – without making any claim to being an EU law scholar.  University of Connecticut’s Peter Lindseth is just that, however, and points us to a relatively new blog, Eutopialaw.com, where he and a number of other experts post regularly on these topics.  I commend it to everyone, especially in these days of eurozone crisis.

Congress as Foreign Relations Actor (Pathological Strain)

by Peter Spiro

On top of everything else, Congress now threatens to severely restrict official contacts with Iran.  This from Heather Hurlburt at Democracy Arsenal:

If you’re too transfixed by the prospect of the US losing its seat on the IAEA board of governors, losing Japanese funding through UNESCO for police training in Afghanistan, and potentially losing global patent protection, all over the Palestinians’ effort to join the UN and an outdated 1994 law, you’ll miss the fun of a new Iran bill coming through the House that apparently attempts to catch what international cooperation the 1994 law may have missed.

The bill bars US diplomats from even talking to their Iranian counterparts without prior certification by the President and notification to Congress 15 days in advance.  Imagine if JFK had had to tell Congress before he called the Soviets during the Cuban missile crisis.  More to the point, US and Iranian diplomats have been sharing a conference room discussing the political future of Iran’s neighbor Afghanistan this week.  The New York Times reported that the Administration had quietly reached out to Iran to attempt to bring it into a political discussion around Afghanistan’s future stability.  No more of that.

And a report on FP’s The Cable predicts “a massive withdrawal” from international organizations pursuant to the legislative restriction on top of the UNESCO case as Palestine secures membership in others.

The question is, how to rein Congress in?  The courts have been useless (although the Jerusalem passport case has the potential at least to bring them back into the picture), and obviously Congress doesn’t do the president’s bidding on hot-button foreign policy issues (that is the problem).

Perhaps there is some way of externally disciplining Congress when it gets out of hand on these fronts.  Some sort of shaming?  The more international actors come to recognize that Congress is the problem, the more likely a form of directed opprobrium will emerge.

UPDATE:  In the comments, Jennifer points to this very interesting OLC opinion concluding that even funding-framed legislative restrictions on participation in UN activities are unconstitutional. The same reasoning would apply to the proposed Iran bill.  Less likely that it would extend to the UNESCO episode (and Obama isn’t going to take it there in any case).

The Nuremberg Military Tribunals and Contemporary International Criminal Law

by Roger S. Clark

This is a terrific book which ploughs much virgin territory. The dust jacket blurb describes it accurately as providing the “first comprehensive legal analysis of the twelve war crimes trials held in the American zone of occupation between 1946 and 1949, collectively known as the Nuremberg Military tribunals (NMTs).” It is not the only material on the topic but it is the most illuminating. There is much to be gleaned from Telford Taylor’s Final Report to the Secretary of the Amy (1949) and his derivative study, “The Nuremberg Trials,” 27 Int’l Conciliation (also 1949) and, of course, Taylor’s 1992 memoir, The Anatomy of the Nuremberg Trials. (Taylor was my Constitutional Law Professor at Columbia). I also learned a lot about the NMTs in the relevant parts of Peter Maguire’s historian’s account in Law and War: An American Story (2001), although the organization there, a chronological account across the trials, was very frustrating. So, we are all indebted to Kevin for what is a tour de force examination of an enormous amount of material.

Often the greatest value of an historical study is to illuminate contemporary issues. Accordingly, I thought I’d talk about Nuremberg and Crimes against Peace, trying to link some of the significant points that Kevin draws from the NMT material to the 2010 Kampala Amendments to the Rome Statute of the ICC. Those amendments move us in the direction of empowering the Court to “exercise” its jurisdiction over the crime of aggression. Most of what follows is about mistakes of law and then I offer some thoughts on the “leadership” feature of the crime of aggression. (Continue…)

Joe Biden, Cyberspace, and International Law

by Duncan Hollis

Secretary of State Hillary Clinton had to cancel her visit to London today for the much-hyped cybersecurity conference, which was designed to push back against Russian and Chinese proposals for an “International Code of Conduct for Information Security.”  The Russian/Chinese proposal (co-authored with Uzbekistan and Tajikistan) is widely undestood as part of an effort to (1) move Internet governance away from the existing US-dominated public-private partnership to the ITU and (2) develop a global treaty on cybersecurity that will reinforce national sovereignty over all behavior in cyberspace (including speech and communication deemed de-stabilizing as much if not more than the cyberattacks or cyberespionage).

In Clinton’s absence, U.S. Vice President Joe Biden gave a speech via video, which summarized the current U.S. position. Here are a few of the more salient excerpts:

We know that it will take many years and patient and persistent engagement with people around the world to build a consensus around cyberspace, but there are no shortcuts because what citizens do online should not, as some have suggested, be decreed solely by groups of governments making decisions for them somewhere on high.  No citizen of any country should be subject to a repressive global code when they send an email or post a comment to a news article. . . .

Now, there are some who have a different view, as you all know.  They seek an international legal instrument that would lead to exclusive government control over Internet resources, institutions and content and national barriers on the free flow of information online.  But this, in our view, would lead to a fragmented Internet, one that does not connect people but divides them; a stagnant cyberspace, not an innovative one, and ultimately a less secure cyberspace with less trust among nations.

So the United States stands behind the current approach which harnesses the best of governments and private sector and civil society to manage the technical evolution of the Internet in real time.  This public-private collaboration has kept the Internet up and running all over the world. . . .

And this brings me to the second question that I’d like to address today, how to achieve both security and openness in cyberspace.  As we all know, the openness that makes the Internet a force for unprecedented progress can also enable wrongdoing on a vast scale.  Terrorists use the Internet to recruit operatives and plot attacks.  Human traffickers and child pornographers use the Internet to find and exploit victims.  And sensitive information is stolen every day from both governments and businesses by criminal networks, as well as individuals, and even by other nation states.  And we all face the threat that our critical infrastructure will be compromised by a cyberattack. It’s a real threat. . . .

We’re working with other nations to fight transnational crime, including by helping other nations build their law enforcement capacities.  We’ve ratified and we strongly promote the Budapest Cybercrime Convention, which sets out the steps countries must take to reduce cybercrime while still protecting human rights.  And as you might expect, we remain committed to fighting international terrorism and thwarting terrorist attacks that are planned and launched on the Internet.

We can and we must do all of this without resorting to a false solution that rationalizes government takeover of the Internet.  There’s no question in our view that every nation must protect its citizens against crime and attacks online, as well as off.  But we must do it in a manner that’s consistent with our shared values.

And this brings me to the concept that is absolutely fundamental in our view to any conversation about the future of cyberspace:  Existing principles of international law apply online, just as they do offline, in our view.

Yes, the Internet represents and presents new challenges, but to resolve them we don’t need to start from scratch.  International law principles are not suspended in cyberspace.  They apply there with equal force and equal urgency.

Take, for example, the threat of cyberspace conflict between states.  For more than a century, the global communities worked to develop rules that govern conflicts among nations, including concepts of proportionality, and distinction between combatants and civilians.  And we’ve developed diplomatic methods that countries can take together to prevent war, respond to attack and build trust with one another.   So while cyberspace is a new realm, we have many, many years of hard-won understandings to guide us in this new space.

Of course, cyberspace presents challenges that are different from any we’ve faced before, and it raises new questions.  It forces us to come up with new approaches where old ones no longer suffice.  Consider confidence-building measures.  It’s a great deal harder to assess another nation’s cyber-capabilities than to count their tanks, for example.  The technology is dual-use.  Governments don’t have a monopoly on it, and we can’t — you can’t judge the intentions of another country by looking at its force — like by looking at its force posture.  So it’s a challenge to identify effective, confidence-building measures in cyberspace.  We’ve got to find a way.

For example, the United States is working closely with Russia to reach an agreement that would establish links between our computer emergency response teams and our nuclear risk reduction centers to build cooperation and to set up lines of communication in the event of an alarming incident. . . .

The tactic of evoking security as a justification for harsh crackdowns on freedom is not new in the digital age.  But it has new resonance as the Internet has given governments new capacities for tracking and punishing human rights advocates and political dissidents.  In some places, as you all know, bloggers are imprisoned and abused for criticizing the government.  In others, there is widespread censorship of content that government deems politically unacceptable.

Look, folks, again, no surprise, the United States — and I suspect most of you, I hope — stand against these acts and for Internet freedom.  The rights of individuals to express their views and petition their leaders, practice their religion, assemble with their fellow citizens online we believe must be protected.  These rights are universal whether they’re exercised in the town square or on a Twitter stream.  They’re enshrined in the Universal Declaration of Human Rights, which applies to cyberspace just as surely as it does to every corner of every country on Earth.

The Legacy of the Nuremberg Military Tribunals in International Humantarian Law

by Detlev Vagts

In a brief chapter titled “Legacy” Kevin Jon Heller opens up the issue of the influence of the Nuremberg Military tribunals (NMTs) on the later development of the international law of war. This contribution will expand on that chapter. First, it discusses the effect of the trials on the later behavior of nations and individuals. Did it deter potential criminal activities? A second section looks at the influence of the NMTs on the subsequent codification of international humanitarian laws. The third section explores their impact on the work of later tribunals, both national and international.

Criminal law enforcement is supposed, aside from imposing retribution and disabling the convicted, to deter others from committing crimes. Did Nuremberg deter? The answer to this question is blurred by the fact that one can have no idea as to who might have instigated some horrendous mass killing but refrained from doing so out of fear. We do know that there have been episodes of gruesome massacres in recent history. One cannot overlook events in the former Yugoslavia, in Rwanda and other african countries, in Cambodia and Chechnya. Only Yugoslavia is so closely connected with Europe for there to have been any carry forward in individuals’ consciousness of World War II and Nuremberg. Deterrence evidently did not happen.Of course to have been deterred one would have had to believe that an international coalition could be put together. Just possibly the creation of the International Criminal Court will cause somebody to refrain from bloodshed.The Sudan may afford the first test of this. One asks the same question about the crime of waging an aggressive war. A conspicuous, clearcut aggression was Saddam Hussein’s invasion of Kuwait twenty years ago. It was quite universally condemned and there was widespread approval of the U.S.-led coalition’s ouster of his forces. The U.S. incursion into Iraq in 2003 did not garner the same approval.

Re-codification of the law of war began in Geneva just as the NMTs were winding down. The conference here produced four conventions replacing the prisoner of war Convention of 1929 and the 1899 and 1907 regulations. Heller’s “Legacy” stresses two changes in the law: the prohibition on taking civilian hostages and reprisals against civilians. Reluctantly, the NMTs had found that the then customary international law did not ban those practices.Another important response to Nazi practices was the ban on individual or mass transfers or deportations of nationals of the occupied state out of their territory and of transfers into the occupied zone. This is controversies in respect of Israel and the West Bank. Nearly all international lawyers outside of Israel are of the opinion that its settlements in the West Bank are illegal. This has an influence on current endeavors to create a resolution of the Palestine conflict. The same provision created difficulties for a CIA program in 2003 designed to take detainees out of Iraq and bring them to other countries where they could be interrogated more conveniently. The Office of Legal Counsel rendered an opinion that the term “deportation” did not cover persons who were not nationals of Iraq. Outside observers tend to disagree. (Continue….)