Archive for
January, 2012

How Drones Help Break the Monopoly of States

by Peter Spiro

This op-ed from today’s NYT reinforces a new orientation towards Mass Atrocity Response Operations (the name of a project founded by Sarah Sewall out of the Kennedy School that is enjoying some traction with the Obama Administration).  Drones can be deployed in reconnaissance efforts to detect and document human rights violations.

The twist here: it doesn’t have to be governments doing the reconnoitering.

Drones are increasingly small, affordable and available to nonmilitary buyers. For hundreds of thousands of dollars — no longer many millions — a surveillance drone could be flying over protests and clashes in Syria.

An environmental group, the Sea Shepherd Conservation Society, has reported that it is using drones to monitor illegal Japanese whaling in the waters of the Southern Hemisphere. In the past few years, human-rights groups and the actor and activist George Clooney, among others, have purchased satellite imagery of conflict zones. Drones can see even more clearly, and broadcast in real time.

So that’s a capacity enhancement for NGOs, another way in which information-gathering powers, non-state relative to state, are diminishing.  But why stop there?  Non-state actors could up the ante by weaponizing their drones.  Not far-fetched to imagine Sea Shepherd dropping bombs on whaling boats (and not so easy to stop them).

What if Nuclear Proliferation Reduces the Incidence of War?

by Peggy McGuinness

Political scientist James Fearon has posted (complete with graphs) the results of his own study of whether nuclear states are more or less likely to engage in war in the years following their acquisition of  nuclear weapons.  Here’s his bottom line:

[F]or each of the nine states that acquired nuclear capability at some time between 1945 and 2001, their yearly rate of militarized disputes in years when they didn’t have nukes, and the rate for years when they did. Note that for the US we have no data on dispute rate without nukes in this period since we got them in 1945; the rate for non-nuclear years for Russia/USSR is only for 1945-1948; the rate for South Africa (SAF) is for 1982-90; and the dispute data only goes to 2001.

China, France, India, Israel, Pakistan, and the UK all saw declines in their total militarized dispute involvement in the years after they got nuclear weapons. A number of these are big declines. USSR/Russia and South Africa have higher rates in their nuclear versus non-nuclear periods, though it should be kept in mind that for the USSR we only have four years in the sample with no nukes, just as the Cold War is starting.

Now it could be that getting nukes means that other states become more likely to initiate a dispute with you, rather than you becoming more aggressive.

* * *

What happens if you control for other stuff, like aggregate GDP (a proxy for total military capability) or secular change over time for all states, in a statistical model? I’ve done some of this, with a panel data approach using country and year fixed effects and clustering the errors by country. I get that states see on average about one half fewer disputes per year when they have nuclear weapons, an amount that is close to “statistically significant” at p = .10. For various reasons I wouldn’t put a lot of weight on this but it does suggest that the patterns seen above don’t go away, and in fact might be somewhat strengthened, when you control for aggregate capabilities and time trends.

Obviously the fact that the other members of the nuclear club generally didn’t get much more aggressive in their foreign policy behavior after they tested doesn’t mean that Iran won’t.

Interesting results, which tend to support what some IR scholars have been arguing for decades:  the presence of more deadly weapons raises the stakes of war, lowering the likelihood states will risk initiating conflict.  Others, of course, argue the destabilizing effects of proliferation. So what to do? Fearon hedges his bets a bit on the implications for the debate over preventive war against Iran:

To be clear, I’d strongly prefer that the Iranian regime not get the bomb, mainly because of the risks of further proliferation in the region and attendant risks of preventive war and loss of control of weapons. But attacking Iran seems likely to guarantee pursuit till acquisition, to more effectively license future attacks on Israel, and to greatly increase popular support for the current Iranian regime and a course of nuclear self-defense. (Netanyahu is reported in this NYT article to believe that an attack might actually “be welcomed by Iranian citizens.” If that’s his true view and not purely strategic talk, then sheesh, it looks delusional in light of the historical record on that one.) On the other side of the ledger are vague, weak, or barely developed arguments and claims about terrible things Iran would do if it got nukes.

We’ve heard these same concerns before, regarding Stalin’s USSR, Mao’s China, Kim Jong-il’s North Korea, and about the mortal mutual enemies of India and Pakistan. All these cases have been very scary, and it’s understandable that the prospect of a nuclear Iran is incredibly scary for Israelis. But so far, in none of these prior cases do the more extreme fears look historically justified.

My own question is what does or should this mean for lawyers? Do quantitative studies of this sort — backward-looking, somewhat limited by their own size, with heavy caveats and resulting in some incidents (outliers?) proving the hypothesis– justify shifts in efforts to penalize proliferation? Or are we headed for the same unresolvable arguments about international nuclear proliferation that we hear in U.S. domestic debates over gun control?

Julian Arato on the Eurozone Crisis and the German Federal Constitutional Court

by Kenneth Anderson

Continuing our series of posts related to Eurozone governance issues, I have invited Julian Arato to offer the following two part comment on the role of the German Federal Constitutional Court (FCC) in the EZ crisis and its resolution.  The first part of his comment lays out some background to the role of the FCC; the second part specifically addresses the FCC’s 2009 Lisbon decision.  Julian Arato is an LLM candidate at NYU Law School, where he is also an Institute of International Law and Justice scholar.  OJ’s thanks to him for these contributions.

Thanks so much to Ken Anderson and OJ for the chance to weigh in on the European implications of the German Federal Constitutional Court’s (FCC) emerging stance on political (and financial) integration.   As both Ken and Peter Lindseth have recently noted—here and at eutopia law blog, respectively—the FCC appears poised to assert a strong role in European governance with regard to the ongoing financial crisis within the Eurozone (not to mention everywhere else).  Indeed, as a matter of law, the Court has long proclaimed its critical role in European governance, as a gate-keeper charged with determining the extent of Germany’s integration into the wider European polity, as well as identifying and vindicating the limits to any such integration under the German constitution (the Basic Law).  What has changed is the political context: until recently the Court’s most important opinions on integration have concerned law-making at the European level in relatively normal times—either through legislation by the constituted European bodies (Solange) or more recently through painstakingly and publicly negotiated efforts at further treaty-making (Maastricht and Lisbon).  By contrast, the FCC’s recent assertiveness comes in an exceptional moment of fiscal crisis—a moment at which, moreover, Germany appears to hold the future of the Eurozone within its purse.  While the Court’s legal stance on integration is nothing new, its political clout seems to have grown exponentially.

I agree with much of what has already been said.  It is especially important to recognize that the Court is not opposed in principle to further fiscal integration as a means of mitigating the deepening crisis (even at potentially high monetary cost to Germany)—as Lindseth forcefully notes in his commentary on a recent interview with outgoing FCC judge Udo Di Fabio in Der Spiegel.  The Basic Law is explicitly open to European integration, and indeed encourages the process.  At the same time, everyone understands that there are some constitutional limits to integration.  The Court has repeatedly made clear since Solange I that the openness of the Basic Law to integration is limited in light of other provisions of the Basic Law: integration may not be accomplished by ordinary legislation, but only by constitutional amendment pursuant to Article 79; as such all movement toward integration is subject to the conditions of the amendment rule, particularly the eternity clause of 79(3) (entrenching human rights and Germany’s democratic “identity” as unamendable features of the Constitution) (Solange I, ¶22).   What is not always sufficiently appreciated, and remains especially obscure in the present context of the economic crisis, is the full extent and nature of these constitutional limitations on integration in the Court’s jurisprudence.

That’s by way of background to the controversy.  In a second installment, I propose to add a little context, by emphasizing the Court’s strongest statement of principle on the possibilities and limits of integration under the Basic Law—expressed in the Lisbon case of 2009 (a decision which I’ve discussed more extensively in a longish post over at EJILTalk!).  Properly understood, the decision in Lisbon looms like a specter over the Eurozone crisis. But how it does so, I’ll hold for a second post.

Chevron Ecuador Dispute Heats Up

by Roger Alford

This week was a blockbuster one in the ongoing battle between Chevron and Ecuador. On Wednesday, the arbitral tribunal adjudicating Chevron’s BIT claim issued an Interim Award ordering Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within or without Ecuador of any judgment against [Chevron] in the Lago Agrio Case.”

The tribunal was at pains to emphasize the interim award was final and binding under Article 32 of the UNCITRAL Rules, which means that Chevron could pursue recognition and enforcement of the award in jurisdictions around the world. It could do so offensively by seeking declaratory relief in Ecuador (or elsewhere), or defensively in response to an attempt by the Ecuador plaintiffs to seek enforcement of the Ecuador judgment. Of course, the Interim Award is only binding on Ecuador and Chevron, so it is not clear what a domestic court outside Ecuador would do with an award imposing injunctive relief on Ecuador.

Meanwhile, yesterday the Second Circuit issued its long-awaited opinion in Chevron v. Naranjo. The Second Circuit’s crucial holding was that New York’s Uniform Foreign Money-Judgments Recognition Act precludes declaratory injunctive relief by a foreign judgment debtor. “There is … no legal basis for the injunction that Chevron seeks, and, on these facts, there will be no such basis until judgment-creditors affirmatively seek to enforce their judgment in a court governed by New York or similar law.”

The Second Circuit had little sympathy for Chevron’s attempt to pursue an antienforcement injunction, particularly given the comity concerns at stake.

“[W]hen a court in one country attempts to preclude the courts of every other nation from ever considering the effect of that foreign judgment, the comity concerns become far greater. In such an instance, the court risks disrespecting the legal system not only of the country in which the judgment was issued, but also those of other countries, who are inherently assumed insufficiently trustworthy to recognize what is asserted to be the extreme incapacity of the legal system from which it emanates. The court presuming to issue such an injunction sets itself up as the definitive international arbiter of the fairness and integrity of the world’s legal systems.”

But at the same time, the Second Circuit emphasized that it expressed “no views on the merits of the parties’ various charges and counter-charges regarding the Ecuadorian legal system and their adversaries’ conduct of this litigation, which may be addressed as relevant in other litigation before the district court or elsewhere.” It also avoided any decision with respect to the underlying RICO claims that Chevron has filed against the Ecuador plaintiffs and their lawyers, focusing simply on the improper procedural device that Chevron sought to employ to enjoin enforcement of the Lago Agrio judgment abroad.

Where does the case go from here? In Ecuador, Chevron has appealed to Ecuador’s highest court to review the case. No word yet as to whether Chevron will seek to have the arbitral tribunal’s Interim Award recognized and enforced in Ecuador. The arbitral tribunal is scheduled to hold hearings on February 11-12 to determine what steps Ecuador is taking to prevent enforcement of the Lago Agrio judgment.

As for the Ecuador plaintiffs’ efforts to enforce the judgment, there is no indication that Chevron will post an appeal bond, which means that the Ecuador plaintiffs are free to pursue enforcement anywhere in the world where Chevron has assets.

It appears that the Ecuador plaintiffs will not seek to have the judgment enforced within the United States. Ecuador Plaintiffs’ lawyer James Tyrrell stated yesterday that “The Ecuadorean plaintiffs are not coming to New York to enforce this judgment.” Given the locus of Chevron’s assets, it is not obvious why the plaintiffs have adopted this strategy, unless they have reason to believe that there is a high probability that the judgment would not be enforced.

There is, of course, the option of pursuing enforcement abroad. If the Invictus Memo is reliable, the Ecuador plaintiffs have identified twenty-seven nations where Chevron has substantial activities, including countries that are friendly with Ecuador, such as Colombia and Venezuela. That memo candidly states the ultimate end game strategy for the Ecuador plaintiffs:

“After approximately seventeen total years of litigation in the United States and Ecuador, the case against Chevron now enters its most critical, multi-faceted, and labor intensive…. With the ultimate goal of effecting and swift and favorable settlement, the strategy of the Plaintiffs’ Team will incorporate the following components: … managing the public relations impact of Chevron’s manipulation of the Cabrera narrative … [and] identifying jurisdictions globally that are most hospitable to an enforcement action.”

Mark Wu Responds to Scott Kennedy

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

I want to thank Scott Kennedy for his insightful comments. Kennedy’s work has been instrumental in increasing our understanding of the forces driving the rising use of trade remedies in China and other emerging powers. He is certainly correct to point out that many questions remain unanswered. My hope is that this article will spark others to join in examining this phenomenon and debating the consequences of maintaining the global antidumping regime in its current form.

I agree with Kennedy that the methodology for the retaliation analysis is not as robust as one might hope. As I myself note in the discussion of the methodology in the article, my approach presents a real risk of Type I errors. I did try to limit the possibility of Type II errors by examining whether an action may be in response to another protectionist tool besides antidumping sanctions and found little change in my results. But the possibility exists that my approach may be both over- and under-inclusive in what it considers to be retaliation.

Proximity in timing is but an indicator of a retaliatory motive, and I agree with Kennedy that further confirmation through case studies would help buttress my retaliation argument. Unfortunately, I found that policymakers involved in deciding antidumping petitions were willing to only go as far as to discuss overall trends, but not specific cases, even when promised anonymity. This reticence limited my ability to rely upon case studies in my methodology. Here’s to hoping that others will find greater success in getting government officials to open up further about specific cases in future studies. Continue Reading…

A Response to Mark Wu by Scott Kennedy

by Harvard International Law Journal

[Scott Kennedy, associate professor of Political Science and East Asian Languages & Cultures and director of the Research Center for Chinese Politics & Business at Indiana University, responds to Mark Wu, Antidumping in Asia’s Emerging Giants. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Antidumping: Less Change than Meets the Eye

Mark Wu’s article, “Antidumping in Asia’s Emerging Giants,” is an impressive piece of scholarship and deserves widespread attention. He analyzes how an already controversial element of the trading system, the antidumping regime, has become more problematic because of the growing use this tool by India and China. And he does so by assembling a comprehensive data set of antidumping cases at the national, industry, and product level for both countries.

Wu is clearly a strong critic of antidumping no matter who uses it. He shows how the standards for initiating and proving antidumping have declined over time, and that rather than ensuring fair trade, antidumping is essentially an illegitimate protectionist tool of those who want to avoid foreign competition. Wu argues that the antidumping regime is becoming a more widely abused tool because India and China have joined traditional users in wielding this weapon. If antidumping reforms are not enacted, the likely consequence will be an explosion of cases by India and China, further distorting international trade patterns and leading to welfare losses. Hence, he encourages the United States and European Union to alter their stance in the Doha Round and embrace reforms before the system they created turns decisively against them. Continue Reading…

Antidumping in Asia’s Emerging Giants by Mark Wu

by Harvard International Law Journal

[Mark Wu, Assistant Professor of Law at Harvard Law School, describes his recently published article, Antidumping in Asia’s Emerging Giants. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Over the past decade, China and India have rapidly increased their use of antidumping laws, the world’s most dominant form of trade protectionism, against their trading partners. Yet, this behavior has triggered little concern in the United States and Europe. Why? Two leading theories suggest that the recent spike in Indian and Chinese antidumping measures is temporary. Moreover, the balance of benefits under existing international legal rules continues to favor American and European producers. As a result, the United States and European Union have viewed attempts to reform global antidumping laws as against their interests.

This Article challenges this conventional wisdom. It argues that India and China’s antidumping regimes pose a larger long-term threat to the global trade regime than is commonly believed. Through novel empirical tests of the two leading theories, I demonstrate why China and India’s recent increase in antidumping protectionism is not temporary and not destined to level off. Instead, as more industries discover the benefits of antidumping laws and as China takes a more aggressive retaliatory stance against its trading partners, both countries’ use of antidumping sanctions will likely continue to increase. To guard against this increased protectionism, this Article argues that World Trade Organization members should reverse their opposition to reforming global antidumping rules and instead enact proposals that place greater restrictions on antidumping laws. It highlights why the present moment is an opportune time for reform, but notes that the window for reform is likely to close as China and India acquire increased economic strength.

David Sloss Responds to Carlos Vázquez

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

I appreciate Professor Vázquez’s thoughtful response to my article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. Professor Vázquez is a brilliant scholar whose many writings on self-executing treaties have made a valuable and enduring contribution to the literature. As he acknowledges, he and I agree on many issues related to the self-execution debate. In this brief reply, I will focus on one area of disagreement: the correct interpretation of Chief Justice Marshall’s opinion in Foster v. Neilson, decided in 1829.

Marshall stated clearly in Foster that Article 8 of the 1819 treaty with Spain (the “Florida treaty”) required legislative implementation. What was the rationale supporting that conclusion? Professor Vázquez contends that Marshall applied the “intent-based approach” in Foster. Under that approach, the distinction between self-executing and non-self-executing treaties turns entirely on a treaty interpretation analysis. In contrast, I contend that Marshall applied the “two-step approach” in Foster. Marshall’s conclusion rested partly on a treaty interpretation analysis (step one), and partly on an unarticulated assumption about the constitutional allocation of authority to dispose of property belonging to the United States (step two). Continue Reading…

A Response to David Sloss by Carlos Vázquez

by Harvard International Law Journal

[Carlos Vázquez, Professor of Law, Georgetown Law Center responds to David Sloss, Executing Foster v. Neilson:The Two-Step Approach to Analyzing Self-Executing Treaties. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. I agree with much of it, as I agree with much of Professor Sloss’ other writing on treaties. In particular, I agree that the two-step approach to treaty enforcement that he proposes is generally the right approach, and I agree that the “intent-based” approach to the self-execution issue that he criticizes is highly problematic. But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson. Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster. I shall address our differences on this point below. First, however, I shall explain my general agreement with the two-step approach to treaty enforcement that Professor Sloss defends.

The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation. Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do. This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation. This, Professor Sloss argues, is entirely a matter of U.S domestic law, not a matter of treaty interpretation. Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent. Professor Sloss notes that treaties seldom address the question of which domestic officials – legislative, executive, or judicial – are responsible for enforcing the treaty. Instead, treaty parties almost always leave that question to the domestic law of the states-parties. Continue Reading…

Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties by David Sloss

by Harvard International Law Journal

[ David Sloss, Professor of Law and Director of the Center for Global Law and Policy, Santa Clara University School of Law, describes his recently published article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.

Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create. Continue Reading…

Kevin Jon Heller Responds to Professors Darryl Robinson and Carsten Stahn

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

My thanks to Darryl Robinson and Carsten Stahn for their kind words about my Article. They are leading scholars in the area of complementarity, so I appreciate them taking the time to respond. Both have written longer, more formal responses to the Article for the Harvard International Law Journal, which interested readers should check out when they become available. In this post, I will limit myself to responding to their comments for Opinio Juris. Continue Reading…

A Response to Kevin Jon Heller by Carsten Stahn

by Harvard International Law Journal

[Carsten Stahn responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is inter alia editor of ‘The International Criminal Court and Complementarity: From Theory to Practice’, Cambridge University Press, 2011. ]

One Step Forward, Two Steps Back? – Second thoughts on a ‘sentence-based’ theory of complementarity

I am delighted to comment on Kevin Heller’s thought-provoking essay. I have been following his scholarship for a number of years. It is a great honor to engage with this challenging topic on ‘Opinio Juris’. His scholarship stands out for his obvious originality and critical engagement with policy dilemmas of ICC practice. This piece is no exception. I have no doubt that it will give rise to significant debate and might even divide scholars and practitioners engaged in the complementarity debate. I share certain hesitations regarding the central claim of the article. In my view, the argument that the ICC should focus ‘exclusively on sentencing’ when determining whether ‘ordinary’ crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability. Continue Reading…

A Comment on Kevin Jon Heller’s Piece by Darryl Robinson

by Harvard International Law Journal

[Darryl Robinson, Assistant Professor, Faculty of Law, Queen’s University, responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

In Defence of the “Same Conduct” Test for Admissibility

Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion on complementarity (regarding when the ICC should defer to national proceedings over a case). The article has two main features. The first is a convincing critique of approaches to admissibility that would focus on the charges brought at the national level (for example, whether the state charged using international definitions or ‘ordinary’ offences). The second is a proposal to replace such approaches with one focused on the sentence.

I examine Kevin’s main arguments in more detail elsewhere (Three Theories of Complementarity). I agree with Kevin’s critiques of approaches to admissibility that focus only on the charges. However, I argue that that an exclusively sentence-based approach also raises some quite serious difficulties, including inter alia that comparing a particular sentence to international ‘averages’ is not sufficiently subtle to evaluate national proceedings. I therefore suggest a third option, a process-based approach. A process-based approach can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process. I think that Kevin’s work offers some very important insights about the limited role of charges and the potentially significant role of sentences, which should be incorporated into any theory of complementarity.

In this posting, I want to focus on one narrow issue raised in A Sentence-Based Theory and in other recent thoughtful scholarship. Kevin and others have raised important concerns about the “same conduct” test, which is the test employed by ICC chambers to determine if a state is proceeding with the same “case”. Because this question is very current in scholarship and in the blogosphere, it is timely and valuable to examine it here. While I partially agree with the concern, I will try to demonstrate that the problem is actually much narrower than it is widely perceived. Continue Reading…

A Sentence-Based Theory of Complementarity by Kevin Jon Heller

by Harvard International Law Journal

[ Kevin Jon Heller, Senior Lecturer, Melbourne Law School, describes his recently published article, A Sentence-Based Theory of Complementarity. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Article 17 of the Rome Statute prohibits the International Criminal Court (“ICC”) from pre-empting a national prosecution of an act that qualifies as a war crime, crime against humanity, or act of genocide unless the State is “unwilling or unable genuinely to carry out” that prosecution itself. Scholars have long debated to what extent Article 17 permits states to prosecute international crimes as ordinary crimes. Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions guard against unwillingness determinations and better promote the Rome system of justice.

This Article challenges both theses, demonstrating that the best reading of the Rome Statute is that states are permitted to prosecute international crimes as ordinary crimes and that discouraging states from prosecuting international crimes as ordinary crimes is counterproductive, because national prosecutions of ordinary crimes are far more likely to succeed than national prosecutions of international crimes. This Article then defends an alternative theory of complementarity that focuses exclusively on sentence. It addresses how the Court should distinguish between acceptable and unacceptable national prosecutions of ordinary crimes. It argues that the traditional complementary heuristic, which limits states to prosecuting “serious” ordinary crimes that are based on the same conduct the ICC is investigating, is inadequate and should be replaced by a heuristic in which any national prosecution of an ordinary crime satisfies the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC. This Article also addresses the most serious objection to a sentence-based complementarity heuristic: namely, that prosecutions for ordinary crimes fail to capture the greater expressive value of international crimes. The Article concludes by discussing less radical alternatives to the sentence-based complementarity heuristic and expresses the hope that, because of increased national capacity to prosecute international crimes as international crimes, such a heuristic may eventually be unnecessary.

A Response to David Landau by Mark Tushnet

by Harvard International Law Journal

[Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, responds to David Landau, The Reality of Social Rights Enforcement. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

David Landau’s article is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable. (As does Landau, I put aside the U.S. case in this comment.) Not “whether,” but “how” is the question now on the table among serious scholars and judges.

Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms – individual actions primarily seeking individual-level affirmative relief, negative injunctions, weak-form review, and structural injunctions – and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure. Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity.

As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles. Many of the world’s poorest nations have severely limited internal economic resources. Political obstacles are substantial even when resources are available, or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small. One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights. Continue Reading…

The Reality of Social Rights Enforcement by David Landau

by Harvard International Law Journal

[ David Landau, Assistant Professor of Law, Florida State University College of Law, describes his recently published article, The Reality of Social Rights Enforcement. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights but should do so in a weak-form or dialogical manner, whereby they point out violations of rights but leave the remedies to the political branches. These scholars argue that by behaving this way, courts can avoid severe strains on their democratic legitimacy and capacity. Based on an in-depth case study of Colombia, which draws on my extensive fieldwork within that country, and on evidence from other countries including Brazil, Argentina, Hungary, South Africa, and India, I argue that both the assumption and the consensus recommendation are wrong. In fact, most social rights enforcement has benefited middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.

Padilla and Kiriakou

by Kevin Jon Heller

I don’t want to step on the Harvard symposium — I’ve moved it back to the top — but it’s worth noting that, on the same day, (1) the Fourth Circuit threw out Jose Padilla’s lawsuit seeking damages for his mistreatment while being detained and (2) the U.S. government arrested John Kiriakou, a former CIA officer, for revealing critical aspects of the systematic torture regime created by the Bush administration and swept under the table by the Obama administration, the latter of the wonderfully selective “look forward, not backward” philosophy. (Though it’s worth noting that Kiriakou isn’t anti-torture himself.)

So, to sum up: torturing people fine, revealing torture criminal.

Welcome to the shining city upon a hill, circa 2012.

Did International Law Motivate the “Capture-if-Feasible” Element of the Al-Awlaki/Aulaqi Legal Opinion?

by John C. Dehn

Well…maybe not international law directly…but I thought that headline potentially captivating and not misleading. I apologize for a guest post during this excellent Harvard symposium, but Newsweek reports that the Obama administration is finally going to reveal a bit more about its legal authority to target and kill US. citizens (in armed conflict or national self-defense) without a prior judicial adjudication. After a prolonged internal debate, reportedly pitting the State and Defense Departments’ head lawyers against others on the President’s national security team, the Attorney General may soon provide details in a public statement. The time and place of that statement is still unclear or undetermined. It also seems unlikely that the AG will address any specific operations or cases.

To this point, the only clues we have about the legal opinion supporting the targeting of U.S. citizens were leaked to the New York Times by someone who had allegedly read the supporting opinion of the Office of Legal Counsel. The reported details of that OLC opinion largely tracked my analysis in a debate with Kevin solicited and published by PENNumbra, Penn. Law Review’s online journal. They need not be repeated in detail here.

The difference between my analysis and the opinion, as reported, were the opinion’s requirements that a U.S. citizen being targeted must present an ongoing imminent threat and be captured, not killed, if feasible…

Live from “L” Event, Thursday, Feb. 23: U.S. Legal Advisers to Discuss The Arab Spring

by Peggy McGuinness

The ABA Section on International Law is co-sponsoring with ASIL and GW Law School the second “Live from ‘L'” event. “L,” for the uninitiated, is the U.S. State Department Office of the Legal Adviser. State Department Legal Adviser Harold Koh, along with several other lawyers from L, will be leading the discussion at GW Law School on “The Arab Spring and International Law.” GW Professor Sean Murphy will be moderating. You can attend in person or catch the discussion on a live webcast.  Students can register for the webcast free of charge.

Full information here.

Harvard International Law Journal/Opinio Juris Symposium for Volume 53(1)

by Harvard International Law Journal

The Harvard International Law Journal is pleased to announce its third online symposium with Opinio Juris. The symposium will begin tomorrow, Monday, January 23 and will run until Thursday, January 26. It features the following line-up:

On Monday, Mark Tushnet will respond to David Landau‘s article, The Reality of Social Rights Enforcement.

On Tuesday, Darryl Robinson and Carsten Stahn will respond to Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity.

On Wednesday, Carlos Vazquez will respond to David L. Sloss‘ article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties.

On Thursday, Scott Kennedy will respond to Mark Wu‘s article, Antidumping in Asia’s Emerging Giants.

Each of the authors will offer introductory comments on his work and many will provide direct responses to the questions and comments of the contributors. We are looking forward to the conversations that result and would like to thank each of the authors and responders for participating in this symposium!

Confirmation of Charges in the Kenya Case

by Kevin Jon Heller

The Pre-Trial Chamber II (PTC) has confirmed the charges against 4 of the 6 defendants in the Kenya cases.  The following is from the PTC’s oral summary of their decision:

Summary of Decision in Case 1

I will now turn to the merits of Case 1, the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang…. As mentioned at the start, the Prosecutor charged Mr. Ruto, Mr. Kosgey and Mr. Sang, for crimes against humanity of murder, deportation or forcible transfer and persecution.


As to the criminal responsibility of Mr. Ruto and Mr. Sang, the Chamber found, on the basis of the evidence presented, that they are responsible for the charges levied against them.


However, in relation to Mr. Kosgey, the Chamber found that the Prosecutor’s evidence failed to satisfy the evidentiary threshold required. The Chamber was not persuaded by the evidence presented by the Prosecutor of Mr. Kosgey’s alleged role within the organization.

In particular, the Prosecutor relied on one anonymous and insufficiently corroborated witness. Moreover, the Chamber determined that Mr. Kosgey suffered prejudice due to the redaction of certain dates related to a number of meetings that he allegedly attended, which proved to be essential for his defence and for the finding on his criminal responsibility.

In light of these facts and the entire body of evidence relating to Mr. Kosgey’s criminal responsibility, the Chamber declined to confirm the charges against Mr. Kosgey.

Summary of Decision in Case 2

Turning now to Case 2, the Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali.

As mentioned earlier, the Prosecutor charged Mr. Muthaura, Mr. Kenyatta and Mr. Ali with crimes against humanity of murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts and persecution.


[T]he evidence established substantial grounds to believe that the crimes of murder, deportation or forcible transfer, rape, other inhumane acts and persecution were committed.

With respect to the criminal responsibility of Mr. Muthaura and Mr. Kenyatta, the Chamber was satisfied that the evidence also established substantial grounds to believe that they are criminally responsible for the alleged crimes, as indirect co-perpetrators, pursuant to article 25(3)(a) of the Rome Statute, having gained control over the Mungiki and directed them to commit the crimes.

However, in relation to Mr. Ali, the Chamber found that the evidence presented does not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha. Since Mr. Ali was charged with contributing to the crimes through the Kenya Police, the Chamber declined to confirm the charges against him.

I’m guessing that the decision comes as a significant relief to the OTP.  Many observers — some inside the Court — were afraid that the PTC would refuse to confirm the charges against any of the defendants.  I was not so skeptical, but I’m also not surprised that Kosgey and Ali have gone free.  I was never quite sure why they were included in the two cases in the first place; they seemed like minor players against whom the evidence was very thin — particularly Kosgey.

The decision, it is worth noting, was 2-1; Judge Kaul dissented, reiterating his belief that the prosecution had failed to establish, as required by Article 7(2)(a) of the Rome Statute, that the attack on the civilian population was committed “pursuant to or in furtherance of a State or organizational policy to commit such attack.”  We’ll see if the OTP can prove the existence of such a policy at trial.

I imagine I’ll have more to say when the decision is released.

WCL Lunch Meeting to Release “Indefensible” Report

by Kenneth Anderson

Rick Wilson, who heads the human rights clinic at my school, Washington College of Law, asks me to pass along the following invitation to anyone interested in the DC area on Friday:

Please join Human Rights USA and American University Washington College of Law for the release of Indefensible: A Reference for Proescuting Torture and Other Felonies Committed by U.S. Officials Following September 11th.

Friday, January 27, 2012, 12 pm, Room 603, Lunch will be served.  WCL-American University.  Speakers: Benjamin Davis, David Crane, John Sifton, Richard Wilson; moderated by Allison Lefrak.  RSVP by Tuesday, January 24 to Gineen Cargo, cargo [at] wcl [dot] american [dot] edu.

Israel: Iran Hasn’t Decided to Build a Bomb

by Kevin Jon Heller

It’s difficult to accuse these guys of being soft on Tehran, so it’s hard to quibble with their conclusion:

The intelligence assessment Israeli officials will present later this week to Dempsey indicates that Iran has not yet decided whether to make a nuclear bomb.

The Israeli view is that while Iran continues to improve its nuclear capabilities, it has not yet decided whether to translate these capabilities into a nuclear weapon – or, more specifically, a nuclear warhead mounted atop a missile. Nor is it clear when Iran might make such a decision.

This statement simply reinforces my argument that killing the Iranian nuclear scientists was an act of terrorism under the Terrorist Bombing Convention.  Although I think killing the scientists would have been illegal under IHRL even if they had been helping to build a nuclear weapon, given that by all accounts it still would have taken Iran years to complete it, the counterargument wouldn’t be completely unreasonable. But If Iran is not even trying to build a weapon at this point, as Israel has apparently concluded, it is simply impossible to argue that killing the scientists was lawful targeted killing under IHRL.

Morison on the Relationship Between the ATS and MCA

by Kevin Jon Heller

Samuel Morison, Appellate Defense Counsel with the Office of the Chief Defense Counsel, Department of Defense, has posted a superb new esssay on SSRN entitled “Accepting Sosa‘s Invitation: Did Congress Expand the Subject Matter Jurisdiction of the ATS in the Military Commissions Act?”  Here is the abstract:

The Alien Tort Statute (ATS) provides a federal forum for aliens to seek tort damages for certain violations of customary international law, including war crimes. In Sosa, the Supreme Court admonished the lower courts to exercise caution when creating new causes of action under the ATS, but this is entirely a matter of respecting the separation of powers. If Congress enacts a statute that “occupies the field,” the Court observed, then a judge’s task is to faithfully enforce the norms delineated in the statute. To date, the Military Commissions Act (MCA) has been almost completely ignored in human rights litigation under the ATS, perhaps because it does not, in terms, provide for civil remedies. But this overlooks the fact that the MCA is not an ordinary domestic criminal statute with a long-arm provision. Instead, it purports to “occupy the field” of war crimes, at least for U.S. domestic purposes. Perhaps most importantly, the MCA penalizes terrorism, broadly construed, providing material support for terrorism and conspiracy as war crimes, when committed by private, non-state actors in the context of and associated with an armed conflict. If this is a valid exercise of Congress’s prescriptive authority to define and punish violations against the law of nations, it follows that such norms should be actionable in ATS litigation. Accordingly, if the constitutionality of the MCA is ultimately affirmed by the Supreme Court, the decision will come with a previously unacknowledged systemic cost, namely a sharp increase in the scope of ATS liability.

The essay contains, to my mind, the most sophisticated historical analysis to date of Congress’s ability to “define and punish” violations of the law of nations.  I predict it will have a substantial impact on the field.

I don’t think Sam has sent the essay out to law reviews yet.  An enterprising editor at one of our partner journals may want to drop him a line…

Another Round on IHL and IHRL

by Kevin Jon Heller

Gabor Rona posted a response to Jens Ohlin yesterday.  Jens responded at LieberCode — and now Gabor has responded to Jens’s response (and John Dehn’s comment on his OJ post).  Here is what Jens wrote (reposted with permission):

Many thanks to Gabor Rona for taking the time to continue this conversation.  There’s a lot in Rona’s post, but I want to cut to the heart of the conceptual issue here regarding the inter-operation of these bodies of law.

In terms of the relationship between IHL and IHRL, and the notion that IHL is a lex specialis, Rona ascribes to me a view that he describes as framework exclusion, as opposed to the more reasonable rule exclusion.  Actually, though, I think I would be willing to subscribe to rule exclusion myself, so we should be on the same page.

Rule exclusion, I take it, means that if there is an applicable rule of IHL on a given point, then IHL applies and IHRL does not apply.  Again, I’m happy with that point of view, but I’m not sure that everyone else is.

For example, in the Israeli Targeted Killings decision, the court applied the IHL rule that allows the targeting of civilians who are directly participating in hostilities (DPH).  As everyone knows, IHL permits the intentional targeting of civilians who DPH because they perform the function of combatancy.  However, the Israeli TK decision went further.  It concluded, in para. 40, that “a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed.”  The court then went on to discuss proportionality and the need to attempt capture (if feasible), rather than kill, based on the notion of proportionality.

This is a curious result.  The DPH standard is clearly an IHL rule.  However, the need to attempt capture (if feasible) of an individual engaged in combatancy is not a core IHL concept.  Rather, it allegedly stems from IHRL.  That’s why many people have interpreted the TK decision as reading IHRL norms into the applicable IHL norm in that case.

So what’s at issue here is the co-applicability of IHRL and IHL with regard to the same rule.  It’s precisely that kind of co-applicability that I find curious.  Even under the “rule exclusion” notion of lex specialis, it is hard to countenance. How do both bodies of law apply at the same time with regard to the same norm?  That’s one of the reasons why the development of the ICRC Interpretative Guidance on Directly Participating in Hostilities became so contentious.  The Interpretative Guidance document followed the methodology of the Israeli TK decision, to the apparent dismay of some of the participants in the project.

I don’t have a strong view about detention, although one can see the current debate about detention through this lens.  I understand Kevin’s point to be that IHRL applies to detention in NIAC because there is no IHL rule regarding detention (until the end of hostilities) in NIAC.  I am inclined to disagree (though my mind remains open), but only because I think there is, in fact, an IHL rule regarding detention in NIAC.  First, there’s CA3 and APII, both of which demand certain treatment regarding detainees.  Second, I suspect that customary international law both permits detention until the end of hostilities in an NIAC and demands humane treatment of those detainees (though again my mind is open).  Marty and Steve’s post suggests that the detention rules of IAC apply by virtue of analogy in NIAC, but I think the better formulation is to suggest that some of those detention rules apply by virtue of custom.  That being said, I don’t have a particular view on the specifics of which detention rules apply by custom, and I wouldn’t want to be put in the position of defending the current Administration’s view or practice on this.  Rather, I want to emphasize the underlying structure of this debate, which is the existence or non-existence of an IHL norm regarding detention that applies in any given factual circumstance.

At a certain point, the applicable rules of IHL, (including the customary ones applicable in NIAC), become so comprehensive that one might describe them as a framework, though I don’t think much hinges on this language.  The framework of IHL is essentially the core concepts of combatants/civilians/DPH-CCF, and much of it is now jus cogens.

It strikes me as curious that human rights activists are so quick to cabin CIL application of the IHL rules of IAC to NIAC.  To my ear, it is one of the great advancements of the last few decades: that the rules of warfare must be respected and that no nation can ignore them simply because the armed conflict is internal. (Incidentally, this was also the great fault of the early Bush Administration: to audaciously proclaim that the armed conflict with al-Qaeda was unconstrained by IHL and LOW principles.)  It also strikes me that it is one of the great advancements that ICL case law has given us. Why do some human rights activists resist this laudable move? I suppose they want to fight the expansion of IHL norms because, in their absence, IHRL norms can swoop in to fill the gap, and in the process better protect the rights of the vulnerable. I’m not sure I share this strategic vision, though my skepticism does not make their view wrong.  (Ultimately, I have more faith that IHL, as a body of law, will make the situation on the ground better.)  The legal fight, though, is about the existence of the underlying IHL norm.

One final quick point.  Rona says a few things about the relationship between IHL and domestic criminal law that I obviously agree with, but also a couple of points that I disagree with.  First, the agreement: of course there is room for domestic criminal law during armed conflict.  The privilege of combatancy changes the underlying norm regarding killing (which is what I was talking about in my original post), but if an unprivileged combatant kills someone then he has absolutely violated domestic criminal law — absent self-defense of course.  This then raises the further question of whether the killing also violates the LOW (killing in violation of the laws of war) and could be prosecutable by a military commission.  Kevin and a number of others have written extensively about this theory and I share their concerns about it.  Undeniably, though, this hypothetical killing represents a violation of domestic criminal law.

Now the disagreement.  Rona goes on to say, regarding privileged combatants, “should they engage in rape, the use of biological weapons, torture of detainees or dozens of other violations of the laws of war, domestic criminal law – namely war crimes law – is the place to go for accountability.”  That doesn’t really make sense to me.  The place to go for accountability in such a situation is ICL because war crimes are one of the three core crimes of ICL.  Now, it is true that the conduct might also violate domestic criminal law if there is an applicable criminal law norm in question.  So a rape could potentially be prosecuted as a war crime under ICL or it could be prosecuted under the criminal law of one of the interested states (either based on territorial jurisdiction or active personality).  Both bodies of law prohibit the conduct because their respective norms are basically co-extensive.

But that’s not really an example of co-application in the sense that interests me.  In the war crime case, two or more bodies of criminal law (one international, the others domestic) prohibit the same conduct.  Co-application of IHRL and IHL involves the importation of principles of IHRL to inform one’s understanding of rules that are governed by IHL.  In the Israeli TK decision, this took the form of severely restricting the principle as it existed under IHL, which is what generated so much controversy at the ICRC.

Here’s a better, and more extreme, example.  Suppose the domestic penal law of country A prohibited the possession and use, not of biological weapons, but of automatic weapons (machine guns). Could an entire army be prosecuted for violating this domestic criminal law?  In that case, the domestic law would severely restrict – in fact eviscerate — the IHL norm (privileged combatancy), and there would be something specious about permitting co-application of the norms in this context.

And here is Gabor’s new response:

Many thanks to Jens Ohlin and John Dehn for your thoughtful, detailed remarks.

Jens is absolutely correct that the Israeli Supreme Court takes neither a framework exclusion nor a rule exclusion view of lex specialis doctrine when it adds a human rights caveat (arrest if possible) to an IHL rule (“combatants” may be targeted).  But I’m not sure what this adds to (or detracts from) our general discussion about complementarity between IHL and IHRL. But there is nothing about adding an extra layer of protection against targeting as a matter of domestic law or policy that undermines the theory of IHL/IHRL complementarity. When the US accorded PoW status to detainees who did not meet the criteria outlined for such status in GC III, no one screamed “violation of IHL!” I think this is analogous.

Jens also disagrees with the notion that IHL does not cover NIAC detention powers (leaving space for the necessary application of IHRL, say I). He cites the references to detention in CA 3 and AP II in support of his position. But the point is that neither CA 3 nor AP II states grounds and procedures (compare GCs III and IV and AP I, applicable in IAC, where grounds and procedures must be articulated because privileged belligerents cannot be detained pursuant to criminal law). As I’ve previously noted, this is natural. The drafters understandably assumed the continued application of domestic law in NIAC, where there are no non-state privileged belligerents.  And where domestic law goes, so goes IHRL. In fact, AP II makes explicit reference to the continued application of IHRL, while CA 3 implies it in its reference to indispensible judicial guarantees and tons of international jurisprudence says the same.

I also understand Jens to suggest that the co-application of criminal law and IHL does not support the claimed co-application of IHRL and IHL. I agree. The reason I went into detail about domestic criminal law is because I understood Jens to suggest, as evidence of what I consider to be a misguided “framework exclusion” view of lex specialis, that criminal law doesn’t apply in armed conflict. (He said this in his first post:  “IHL is a lex specialis, in the sense that it displaces other bodies of law, including domestic criminal law, with a set of radically different norms based on reciprocity, namely that combatants can kill each other with impunity but must protect civilians and others hors de combat.”)

I now understand Jens to have meant that IHL does not displace domestic criminal law in all circumstances, but does displace it in the case of privileged belligerents who engage in conduct that is permitted under IHL.

I also agree with Jens that criminal liability in armed conflict can be pursuant to applicable international criminal law. But the US War crimes statute, while surely reflecting aspects of criminal law applicable in armed conflict, is just as surely domestic law. The point is that if both IHL and criminal law (whether domestic or international) apply, then IHL is not the exclusive body of law applicable in armed conflict. In fact, the US Constitution’s “define and punish” clause suggests that States can make up their own war crimes. Take for example the US MCA which invented the war crimes of conspiracy and “murder by an unprivileged belligerent in violation of the laws of war,” which is interpreted by the US as equating unprivileged belligerency with criminality, even though IHL says no such thing. In other words, here is domestic law creating crimes that are unknown to IHL and applying them to situations otherwise governed by IHL.

But Jens’ most important point is another one where we agree: that it is wrong to apply IAC grounds and procedures for detention to NIAC “by analogy.” I’ve already detailed why IAC and NIAC are, and should be, treated differently and won’t repeat that here.

On to a couple of points made by John Dehn. John says that I “cite ICJ advisory opinions and other special tribunals rather than actual sources of international law for the proposition of perfect IHL/IHRL complementarity.” First, John omits that I also cited the text of AP II and CA 3. But that aside, the reasons for his objection to the assertion of jurisprudence of “special tribunals” is unclear to me. On what basis do we simply wave off the considered and unanimous opinions of the ICJ, ICTY, and ICTR that IHRL and IHL are complementary? As for the ECtHR, John distinguishes their similar jurisprudence on the basis that the European Convention has a different scope of application provision than does the ICCPR. This is a reference to the old saw, also dismissed by the HR Committee, that the ICCPR has no extraterritorial application. But note that even if that were true, it would not be cause to deny complementarity between IHRL and IHL; it would only be cause to deny that a State has IHRL obligations when it, say, tortures people in wars on foreign lands, a position that, by the way, is explicitly rejected by the Convention against Torture.

John also suggests that the appearance of IHL treaty provisions that mirror IHRL provisions is evidence that IHRL doesn’t apply in armed conflict. But doesn’t that argument go up in smoke with one look at the explicit reference in AP II to continued application of “human rights instruments” and in CA 3 to “indispensable judicial guarantees?”

Finally, I fully agree with John’s observation that “there is a fair argument that lacunae exist in the relative scope of IHL and IHRL application that have not yet been filled by actual customary or conventional international law.” But this is an argument for filling in the potholes, not for throwing away the machinery that does so.

My thanks once again to Jens, Gabor, and John for such an informed and thoughtful discussion!

Thanks, Republicans!

by Kevin Jon Heller

The Obama administration announced the demise today of the Keystone XL pipeline, which would have done nothing to promote America’s energy independence but everything to promote climate change:

President Barack Obama on Wednesday rejected a Canadian company’s plan to build a U.S.-spanning, 1,700-mile (2,700 kilometer) pipeline to carry oil across six U.S. states to Texas refineries, raising the stakes on a bitter election year fight with Republicans.


Obama laid the responsibility for the rejection of the pipeline on political gamesmanship by Republicans.

“As the State Department made clear last month, the rushed and arbitrary deadline insisted on by Congressional Republicans prevented a full assessment of the pipeline’s impact, especially the health and safety of the American people, as well as our environment.” Obama said. “As a result, the Secretary of State has recommended that the application be denied.  And after reviewing the State Department’s report, I agree.”

TransCanada Corp. shares slid more than 3 percent after reports early Wednesday that rejection was imminent.

Rejection of the pipeline had been expected in Washington after Obama tried to delay the decision until 2013 but Congress forced his hand as part of a popular tax cut measure.

No pipeline and a payroll tax cut — the best of both worlds!  Who needs friends when you have enemies like today’s GOP?

What Governance Role Is the German Constitutional Court Playing?

by Kenneth Anderson

English-language OJ readers are fortunate to have University of Connecticut’s Peter Lindseth spending the semester in Berlin as the Daimler Fellow at the American Academy, where among other things he is posting to the Eutopia law blog on various governance issues in Europe.  (As I indicated in my earlier post, I plan to concentrate on international economic law, governance issues, and international and comparative law issues – including ones like this one, EU governance, in which as a non-specialist, I plan to act as facilitator, raising questions.)  In a recent Eutopia post, Lindseth pointed to an interview in Der Spiegel with Udo di Fabio, outgoing member of the German Federal Constitutional Court (FCC).  The interview is fascinating, particularly as glossed in Lindseth’s post:

As readers of [Eutopia blog] know well, the FCC has played, and will continue to play, a critical role in defining the constitutional parameters of Germany’s role in the ongoing struggle to resolve the Eurozone crisis. The Court’s jurisprudence will necessarily loom large as long as Germany serves as the Eurozone’s paymaster, and as long as the Court insists, as a matter of domestic constitutional law, on two conditions related to that function: first, that Germany’s financial participation in any bailouts must be determinate and not open-ended (i.e., no Eurobonds or other instruments amounting to joint and several liability); and second, that the national legislature must, consistent with historically grounded yet evolving conceptions of parliamentary democracy, be given an effective voice in approving the extent of Germany’s financial participation. The FCC views these two conditions as essential to preserving Germany’s democratic sovereignty in the face of the evident functional demands of the crisis, even as the Court otherwise permits, indeed even encourages, further European integration. In the current environment, these parameters will be critical because the resolution of the crisis will almost certainly demand some very costly sacrifices by the German taxpayer.

A second post from Lindseth, following the French credit downgrade, asks two key questions about German governance institutions: Continue Reading…

It’s Not The Onion, It’s Fox Nation. (Not That There’s Much of a Difference.)

by Kevin Jon Heller

Here’s an actual headline from Fox Nation, part of that fair and balanced news organization we all know and love:

Sovereignty’s a bitch, isn’t it?

Ohlin Response to Rona

by Kevin Jon Heller

Jens Ohlin has continued the conversation about IHL and IHRL at LieberCode.  Here is a snippet, self-servingly chosen because I want to comment on it:

It strikes me as curious that human rights activists are so quick to cabin CIL application of the IHL rules of IAC to NIAC.  To my ear, it is one of the great advancements of the last few decades: that the rules of warfare must be respected and that no nation can ignore them simply because the armed conflict is internal. (Incidentally, this was also the great fault of the early Bush Administration: to audaciously proclaim that the armed conflict with al-Qaeda was unconstrained by IHL and LOW principles.)  It also strikes me that it is one of the great advancements that ICL case law has given us. Why do some human rights activists resist this laudable move? I suppose they want to fight the expansion of IHL norms because, in their absence, IHRL norms can swoop in to fill the gap, and in the process better protect the rights of the vulnerable. I’m not sure I share this strategic vision, though my skepticism does not make their view wrong.  (Ultimately, I have more faith that IHL, as a body of law, will make the situation on the ground better.)  The legal fight, though, is about the existence of the underlying IHL norm.

I don’t want to “cabin” the customary application of IHL rules of IAC to NIAC, although I am less convinced than Jens that there is sufficient state practice to justify doing so.  What I am opposed to is the U.S. practice: applying only those rules of IAC that provide it with authority to detain, while ignoring all of the rules that limit its authority to treat the detained however it likes.  It wants to analogize non-state actors to the regular armed forces in IAC (such as through the notion of co-belligerency) — but it has no intention of treating anyone thereby detained in a NIAC as a POW.  It wants to detain civilians who are security risks by analogy to the Fourth Geneva Convention — but it has no intention of treating those civilians in accordance with GC IV.  For the U.S., IHL is always heads it wins, tails the detainee loses.  I don’t accept that.

My thanks to Gabor and Jens for the stimulating discussion!

A Response to Ohlin about IHL and IHRL

by Gabor Rona

The following is a guest-post by Gabor Rona, the International Legal Director of Human Rights First.  It is a response to a post at LieberCode by Jens Ohlin, a Professor at Cornell Law School, that argues international human rights law (IHRL) does not apply in armed conflict, because it is displaced by international humanitarian law (IHL).

Prof. Ohlin’s conclusion that IHRL doesn’t (and shouldn’t) apply in armed conflict cannot survive a more than superficial look at the lay of the legal and practical landscape. Essentially, his horse left the barn long ago.

International jurisprudence accepts the logic and necessity of applying IHRL in war. The explicit terms of both IHRL and IHL instruments are in accord. The complementary application of these two legal regimes is especially obvious in non-international armed conflict detention, where IHL is not only silent, but by its own terms, presumes the continued application of domestic, and therefore applicable, human rights law. Even the last significant outlier, the United States, is softening its position. See the very recent U.S. submission to the HR Committee: “506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or ‘IHL’), the United States has not taken the position that the Covenant does not apply ‘in time of war.’ Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.”

Let’s start with Prof. Ohlin’s overly-simplified view of lex specialis doctrine. He asserts that the doctrine causes the displacement of legal frameworks other than IHL, including domestic criminal law, in armed conflict.

Actually, the relationship between domestic criminal law and IHL provides a good example of how lex specialis doctrine actually works to complement, rather than replace, other legal frameworks. Prof. Ohlin might be thinking about the privilege of belligerency enjoyed by combatants, meaning that they are exempt from the operation of domestic criminal liability for their acts of violence in armed conflict that do not violate the laws of war. But should they engage in rape, the use of biological weapons, torture of detainees or dozens of other violations of the laws of war, domestic criminal law – namely war crimes law – is the place to go for accountability. Indeed, that’s what the “grave breach” provisions of the Geneva Conventions and similar requirements in the Convention against Torture require (rather than merely permit).

Criminal law, far from disappearing in armed conflict, merely takes a second seat only where provisions of applicable IHL would cause a different result, for example, in application of the privilege of belligerency. Otherwise, criminal law remains in force.

But this is about IHRL, not criminal law…

Is Killing Iranian Nuclear Scientists Terrorism?

by Kevin Jon Heller

There has been much debate the past couple of days about whether the bomb attacks that have killed at least three Iranian nuclear scientists since 2010 qualify as terrorism.  Glenn Greenwald and Kevin Drum on the left and Andrew Sullivan on the right say “yes”; many of their readers (see Greenwald here) and the editor of Technology Review say “no.”  Those in the “no” camp insist that the attacks were legitimate targeted killings and thus cannot qualify as terrorism.

I have no definitive position on who is responsible for the killings, although the available evidence seems to point to Israel and not, as widely suspected, to the United States.  This Der Spiegel article, for example, says that Israeli intelligence sources have confirmed that the Mossad were responsible for the killing of Darioush Rezaei.  Moreover, Mark Perry published a blockbuster article in Foreign Policy yesterday that claims, based on a series of classified CIA memos, that Mossad agents posed as CIA officers in order to recruit members of the Iranian terrorist group Jundallah, whom Israel believed would be useful in its covert war against the Iranian government.

Let’s assume for sake of argument — and only for the sake of argument — that the killings were carried out solely by the Mossad.  Do those killings qualify as terrorism?

The first thing that needs to be said is that it is impossible to answer that question in the abstract.  Despite decades of efforts — and contrary to the rightly-maligned recent decision by the Appeals Chamber of the Special Tribunal for Lebanon — the international community has yet to agree on a general definition of terrorism.  The best we can do, then, is determine whether the killings qualify as terrorism under one or more of the specific anti-terrorism conventions that states have negotiated.  The most relevant one is obvious: the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which currently has 164 States Parties, including both Israel and the United States.  Here is how Article 2 of the Terrorist Bombing Convention defines an act of terrorism:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

There is little question that the killing of the Iranian nuclear scientists satisfies this definition of terrorism…

ASIL Event: A Conversation with Meg Kinnear, Secretary General of ICSID

by Chris Borgen

Tomorrow, as part of its Leading Figures in International Dispute Resolution Series, the ASIL’s International Courts and Tribunals Interest Group (ICTIG) will host a talk by Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) to discuss the ICSID system for settling investor-state disputes.

The event details are as follows:

ASIL Headquarters, Tillar House
2223 Massachusetts Avenue, NW
Washington DC 20008
January 17, 2012
6:00 PM – 7:30 PM (Reception immediately following)

 You can register for the event via this page. Registration is free for ASIL Members and $20.00 for non-members.

Treaties as Art

by Roger Alford

I had the good fortune yesterday to spend the afternoon at the Museum of Modern Art in New York. To my great surprise, I experienced my first encounter with treaties as art. A special exhibit on display through March 26, 2012 of the work of Sanja Iveković entitled Sweet Violence focuses on the plight of women in post-Communist political systems of Eastern Europe. As a feminist artist, most of Iveković’s work challenges the status quo, and that includes countries that refuse to adopt the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Among the installations was an arresting display of bright red leaflets thrown on the ground throughout the museum reprinting Amnesty International’s campaign to promote U.S. ratification of CEDAW.

Here’s a description of Iveković’s Report on CEDAW installation:

“The artist printed the document on red paper, mounted its cover page for wall display, and crumpled the remaining sheets into irregular balls and then scattered them around the perimeter of the gallery space. Visitors to MOMA are invited to pick up a sheet, discarded as such leaflets often are, and learn about the infringement of women’s rights.”

The leaflets strewn on the museum floor—combined with her other work on display such as Double Life and Lady Rosa of Luxembourg—are surprisingly effective at evoking a subtle disregard for women’s rights.

If you pick up one of the leaflets, you can read details on “myth vs. fact” about CEDAW.

As of April 2011, 186 countries had ratified CEDAW. The United States is one of only seven countries that have yet to ratify CEDAW, including Iran and Sudan. The United States has the dubious distinction of being the only country in the Western Hemisphere and the only industrialized democracy that has not ratified this treaty.


MYTH #1: U.S. ratification of CEDAW would give too much power to the international community with the provisions of the Convention superseding U.S. federal and state law.

FACT: Treaties adopted in the United States are not “self-executing.” This means that legislation to implement any treaty provision would come before the House and Senate in the same way any other bill does. As with many international agreements, countries can express “reservations, understandings and declarations” in cases where there are discrepancies between the international convention or treaty and domestic law. U.S. law generally complies with the requirements of CEDAW and the Treaty is compatible with the principles of the U.S. Constitution. Where any differences do exist, the Treaty calls on states to take appropriate measures to progressively promote the principle of nondiscrimination. Such language upholds US sovereignty and grants no enforcement authority to the United Nations….

Wow! CEDAW at the MOMA. International law terms of art have become, well, art. A human rights campaign is on display at one of the great modern art museums in the world.

If you are in New York in the next two months, I recommend you visit MOMA and check out Sanja Iveković.

Yes, Pamela, Some People Do Care — Including the U.S. Military

by Kevin Jon Heller

The media has been abuzz the past couple of days about a video that shows four U.S. Marines urinating on dead Taliban soldiers.  The military’s response to the blossoming controversy has been admirable.  In addition to the Pentagon quickly confirming its authenticity, the Navy has stated that it is “deeply troubled by the video. Whoever it is, and whatever the circumstances—which we know is under investigation—it is egregious behaviour and unacceptable for a member of the military.”  Similarly, the Marines said that “[t]he actions portrayed are not consistent with our core values and are not indicative of the character of the Marines in our Corps. This matter will be fully investigated.”

There is, however, at least one person who doesn’t understand what the fuss is all about: Pamela Geller, the racist right-wing blogger who runs the hate site Atlas Shrugs.  Here is what she had to say in response to a CAIR press release criticizing the desecration (I won’t link to Geller’s blog, because she does not deserve the extra traffic):

CAIR has whipped itself up into an Islamic frenzy because  a video surfaced that appears to show US Marines combat gear urinating on several dead jihadis.

Here’s the thing. Hamas liars, CAIR, say jihad and pure Islam is “fringe,” “extremist.” So why do they CAIR about disrespecting the Taliban? According to CAIR lies, Taliban and jihadists do not represent Islam, they have “hijacked Islam”; so why would CAIR care about “respect”? CAIR calls these Marines immoral, but considers honor killings, clitorectomies, forced marriage, child marriage, polygamy, subjugation of women, slaughter of non-Muslims, Jew hatred moral?

Would anyone have CAIRed if Marines urinated on dead Nazi soldiers during WWII? (Anyone besides CAIR and nazis, that is).

I love these Marines. Perhaps this is the infidel interpretation of the Islamic ritual of washing and preparing the body for burial.

I don’t know about the Nazis, but I do know how the military responded during World War II to the desecration of dead Japanese soldiers — the subject of a 1992 essay in the Pacific Historical Review by the excellent historian James Weingartner.  Here are some snippets…

Laurie Blank on the Rationales for Targeted Killing

by Kevin Jon Heller

I want to call readers’ attention to a very useful new essay written by Emory’s Laurie Blank, which is forthcoming in the William Mitchell Law Review.  Here is the abstract:

Targeted strikes – predominantly using drones – have become the operational counterterrorism tool of choice for the United States over the past few years. Targeted killing can be used both within armed conflict and in the absence of armed conflict, as a means of self-defense, usually as operational counterterrorism. Indeed, this duality lies at the heart of the United States justifications for drone strikes from Afghanistan to Somalia. Within armed conflict, parties to the conflict have the right to use lethal force in the first resort against enemy forces, which includes, as detailed below, members of the regular armed forces, members of organized armed groups or civilians directly participating in hostilities. International law also recognizes the right of states to use force in self-defense in certain circumscribed circumstances.

For the past several years, the United States has relied on both armed conflict and self-defense as legal justifications for targeted strikes outside of the zone of active combat in Afghanistan. Challenging questions arise from the use of both justifications at the same time, without careful distinction delimiting the boundaries between when one applies and when the other applies. This article will focus on the consequences of the United States consistently blurring the lines between the armed conflict paradigm and the self-defense paradigm as justifications for the use of force against designated individuals. In particular, there are four primary categories in which the use of both paradigms without differentiation blurs critical legal rules and principles: geographical issues surrounding the use of force; the obligation to capture rather than kill; proportionality; and the identification of individual targets, namely the conflation of direct participation in hostilities and imminence. On a broader level, there are three areas in which this blurring of legal justifications and paradigms has significant contemporary and future consequences for the application of international law in situations involving the use of force. In particular, this blurring undermines efforts to fulfill the core purposes of the law, whether the law of armed conflict or the law governing the resort to force, hinders the development and implementation of the law going forward, and risks complicating or even weakening enforcement of the law.

To the best of my knowledge, this is the first essay by an American scholar that carefully distinguishes between the two potential violations of international law involved in an extraterritorial targeted killing: (1) a violation of the attacked state’s sovereignty; and (2) a violation of the attacked individual’s right to life.  As Blank shows, “self-defense” is relevant only to the first violation; contrary to the assertions of the U.S. government and scholars like Ken Anderson — whom Blank cites as an example of the position she is criticizing — whether an extraterritorial use of force is legitimate under the jus ad bellum says nothing about whether the targeted killing legitimately deprives the target of his or her right to life.  The latter question must be determined with reference to the jus in bello (if the targeted killing takes place in armed conflict) or international human rights law (if it does not) — a position recognized more than a decade ago by the International Law Commission, which noted in its commentary to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts that, “[a]s to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct.”

I do, however, have one problem with Blank’s essay: her uncritical acceptance of the idea that self-defence permits the use of extraterritorial force if the attacked state is “unwilling or unable” to prevent a terrorist group from using its territory to launch armed attacks.  In her words, the attacking state must “either act with the consent of the territorial state or on the grounds that the territorial state is unwilling or unable to take action to remove the threat posed by the non-state actor and repel future attacks.”  Blank offers precisely one citation for the “unwilling or unable” test, and that citation will not surprise you: Ashley Deeks’ forthcoming article in the Virginia Journal of International Law.  As I have pointed out before, Deeks not only fails to establish that the “unwilling or unable” test reflects customary international law, she even admits that she found “no cases in which states clearly assert that they follow the test out of a sense of legal obligation.”  It is thus regrettable that Blank offers no other evidence in support of the “unwilling or unable” test.  This is, of course, how mistaken ideas get traction in the academy: one scholar makes an unsubstantiated claim; other scholars cite the first scholar for the unsubstantiated claim, without assessing whether it is correct; and eventually it’s just “common knowledge” that the unsubstantiated claim is, in fact, substantiated.

That quibble aside, Blank’s essay is excellent and well worth a read.  So go read it.

European Governance: Professor Kenneth Armstrong on Framing Issues

by Kenneth Anderson

(Professor Kenneth A. Armstrong is  professor of European Law at Queen Mary University, London; this comment was posted in response to KA’s framing questions on European governance, and we are delighted to bring it up to the main page.  We welcome short or long comments on this topic; I’ll choose to bring some to general attention in a separate post; comments can also be emailed to Ken Anderson or, if you post in response on another blog, let me know and I’ll cross link.  Thanks to Professor Armstrong.)

At the risk of creating identity confusion between two Kenneths I thought I might offer some reflections on why the Eurozone crisis deserves to be analyzed as a governance issue and particularly from the perspective of public law.

Why is this a ‘governance’ issue?

A useful starting point is to think about the discourse which has surrounded reforms to EU economic governance in the wake of the crisis. There has been a lot of talk about the need for the ‘Community Method’ to makes its presence felt in this area. Analysts of EU governance have tended to view the last decade as a period of experimentation with modes and styles of governance beyond the traditional model of judicial and legislative governance. Indeed, economic policy coordination – as emulated in the employment and social spheres through the open method of coordination – has largely been understood as a more intergovernmental/transgovernmental form of governance. The mechanisms of monitoring and surveillance associated with economic policy coordination have typically been described as ‘soft’ while the ‘harder’ mechanisms for fiscal surveillance have been viewed as difficult to put in practice.

The emerging new economic governance architecture appears to ascribe a much more central role to supranational institutions like the European Commission and the European Court of Justice in monitoring and enforcing fiscal discipline. The adoption of the ‘six pack’ of legislative measures plays with the metaphor of a more muscular response at EU level in ways that places emphasis not only on the role of the Commission as the initiator of legislative responses but also the alliance between the Commission and the European Parliament in toughening up the legislative bargain.
Yet despite the apparent manifestations of the Community Method as a process for adopting a legislative response, the new economic governance architecture has not abandoned policy coordination as a technique of governance. Indeed, we can see both the diffusion of policy coordination – its use to control macroeconomic imbalances – and increased coordination of coordination – the ‘European Semester’ as a framework for streamlining fiscal and economic policy coordination.

All of which raises important questions as to the extent of the delegation of powers to supranational institutions as envisaged by a model of governance through the Community Method and its relationship to a variety of forms of executive governance given institutional expression in a range of intergovernmental forums – the European Council, the Euro Group, Euro Summits, the Council of Ministers – and infranational structures like the Economic Policy Committee. Not only is the crisis an issue of governance it is about the institutional design of the governance architecture.

What’s Law Got to Do With It?

There are good reasons for public lawyers to analyze EU economic governance.  In the work of public lawyers like Terence Daintith and Tony Prosser there is a rich public law tradition that sought to consider the constitutional position of the executive in domestic economic policy-making. The delegation of powers of budgetary surveillance to the Commission and the sorts of domestic changes being demanded in return for EU and IMF support to countries like Greece, Ireland and Portugal highlights the extent of external influence on what used to be a key sovereign domain of the national executive.

The domestic constitutional level is also a specific site for EU influence with the fiscal compact suggesting that Member States incorporate the kind of constitutional debt brake applied in Germany to other European states.

The domestic constitutional level is also a context shaping the modalities of the European response. The need to reform the treaties to make provision for a permanent European Stability Mechanism was driven by anxieties as to compliance of the temporary mechanism with the conditions laid down by the German Constitutional Court as to the constitutionality of the Lisbon Treaty ratification. The German Constitutional Court has also demanded domestic parliamentary safeguards to control the bailout funds. The European Union Act 2011 creates new requirements for a referendum in the UK on treaty change in a way that casts a shadow over future treaty negotiations.

The issues surrounding the adoption of a new treaty for the EU 27 or EU26 have highlighted the very important role to be played by EU lawyers in looking for potential solutions and raising potential problems with this form of enhanced cooperation between groups of states.

At a more conceptual level, legal scholars interested in new forms of governance or experimental governance have often suggested that there is a transformation in law underway driven by the limits of traditional constitutionalism and instrumental legislative intervention. The emerging economic governance architecture is an important testing ground for these sorts of claims.

The Relationship Between Economic and Social Governance

While there is an apparent intensification of economic governance in the EU, social policy coordination has been left in a state of flux. In the previous decade the EU experimented with the use of the open method of coordination as a means of Europeanizing domestic policies on social protection and social exclusion. The austerity measures adopted by states in the wake of the banking and debt crisis has real social consequences. And yet the EU has no clear vision as to whether there is a need for continuing social policy coordination. The mechanisms for fiscal policy coordination do not appear to be oriented towards any analysis of the social consequences of fiscal contraction. It is perhaps not too dramatic to argue that there is a crisis in EU social governance that is not just at the instrumental level of the future of the social OMC but at a deeper justificatory level – what role can and should the EU play in the social domain and how has its traditional justifications for intervention been affected by the economic crisis?

These are some initial thoughts and reactions to the questions you have posed. I look forward to seeing the discussion develop.

John Yoo Reviews David Scheffer’s Memoir in WSJ

by Chris Borgen

The choice of book reviewer might be surprising but the result, unfortunately, is not.  Yoo reviews two books: David Scheffer’s memoir All the Missing Souls  and William Shawcross’ Justice and the Enemy. Scheffer’s book details his time working on war crimes issues, ultimately as the Ambassador at Large on War Crimes, in President Clinton’s State Department. (Disclosure: we hope to have Scheffer guest blog with us sometimes in the next couple of months about his book.) Shawcross’s book, as Yoo describes it, “asks whether diplomats and specialists in international affairs, among whose number Mr. Scheffer must be counted, have any realistic alternative to the Bush administration’s strategy of using the military to detain, try or kill terrorists.”

OK, that’s a pretty provocative opening.  Yoo is an interesting choice to review a book on war crimes tribunals since his professional career has been about skepticism towards such tribunals. Hhe’s also an interesting choice to review a book about the Bush era policies that he played a part in defining. So, I thought’ I’d review his review, so to speak.

Aftert the shot-across-the-bow opening, Yoo has some eloquent passages (invoking Lincoln) and interesting observations about how interstate wars are decreasing but intrastate conflicts are becoming all the bloodier. As he starts in on Scheffer’s book, though, the critique is what you’d expect: an argument against the efficacy of international criminal tribunals.  Fair enough (although keep in mind  the book is billed as “a personal history” ). But then the review transforms and seems to be less and less about the books and more and more about the Bush administration (which Yoo was a part of).  And especially about how it was misunderstood. Yoo uses Shawcross’ arguments to criticize Scheffer and, implicitly, rehabilitate his own image. After indicting Scheffer for not doing enough to stop genocide in Rwanda, he goes on to write:

Mr. Scheffer tries to spice up this combination of diplomatic detail and depressing passivity with a stray attack on the Bush administration’s approach to world affairs after 9/11—the war on terror, as it was once known. With precious little analysis, he claims that the Bush administration destroyed America’s leading human-rights position, though naturally he fails to mention the Obama administration’s decision to continue, and even expand, many of the U.S. policies adopted in the wake of the attacks.

We get the sense that this review is most interested in going once more around the track on the Bush Administration’s record. By contrast to Scheffer,

Mr. Shawcross describes how left-wing groups, with the cooperation of gullible journalists, spread outright lies about conditions at Guantanamo Bay, about American detention and interrogation policy, and about the trials of terrorist leaders…

America’s response to 9/11 caused outrage among intellectuals precisely because it proved so successful: preventing further attacks on the United States, eliminating Osama bin Laden and the al Qaedaleadership, and beginning the overthrow of vicious authoritarian regimes in the Middle East. The Bush administration rejected the ineffectual internationalnetwork of activists, rights groups and courts in favor of a robust unilateral response that drew upon the traditional sources of state power, including diplomacy, economic sanctions and military force.

Funny thing is, I don’t know who supposedly argued that the U.S. must never act unilaterally or that force and sanctions are not key tools in statecraft. (I haven’t heard anyone make those claims.) That was not what the major Bush-era arguments were about. They were about torture and legal black holes and unilateralism for its own sake. They were also about recognizing the possibility that engaging (rather than running from) international institutions can actually broaden America’s options.  Addressing these actual issues might have made for an interesting essay.

Picking John Yoo to review a book about war crimes tribunals is a provocative choice. I wonder why the editors at the WSJ did it.  But the result was not so much thought-provoking as almost exactly what one would have expected. And that, as far as editorial decision-making goes, is an opportunity lost.

Congratulations to Professor Chris Jenks!

by Kevin Jon Heller

I am delighted to announce that Lt. Col. Chris Jenks — currently the head of the International Law Branch at the U.S. Army JAG, an occasional contributor to Opinio Juris, and my very first PhD student (my colleague Gerry Simpson is his other supervisor) — has accepted a tenure-track assistant professor position at SMU’s Dedman School of Law.  Chris will be a great addition to SMU’s faculty, which already has a number of excellent young scholars who write about international law, including Jenia Iontcheva Turner, Anthony Colangelo, and Jeffrey Kahn.

Congratulations, my friend!

FATCA Fallout: Mass Renunciations?

by Peter Spiro

The Foreign Accounts Tax Compliance Act (FATCA) continues to prompt intense opposition from Americans overseas.  In my post below, I suggested that some would simply take their citizenship underground, on the expectation of imperfect enforcement and the continuing value of holding a US passport — becoming, in effect, secret Americans.

Others are predicting that large numbers of Americans abroad will shed their citizenship. This isn’t entirely implausible. Many hold dual citizenship with their state of residence, so they wouldn’t go stateless. Their state of alternative nationality is often a quality citizenship (EU, Canada, AUS, NZ), in the sense of allowing visa-free travel through much of the globe (including to the United States).  If you have permanently relocated to, say, France, US citizenship doesn’t do you much good.  In the past, it didn’t do you much harm, either, but now it poses some significant costs.  There may be sentiment involved, but what is sentiment against thousands of dollars in annual accounting fees by way of FBAR and FATCA compliance?

So rational Americans abroad might just ditch the citizenship, through formal renunciation (official instructions here).  There’s a suggestion here that demand might require mass renunciation proceedings, a sort of anti-matter version of July 4 naturalization ceremonies.

I doubt it’ll come to that, but if renunciations happen in large enough numbers for the MSM to notice, what would the reaction stateside be?  One could imagine a “good riddance” response, as in, these people don’t live here any more, don’t have much continuing connection, and aren’t even willing to pay their taxes. See you later.  It might be a back door way to police dual citizenship, still unpopular with some folks.  It takes care of happenstance Americans — those born here but who left at a young age, for whom there won’t even be sentimental values in the balance.

On the other hand, the symbolism of nontrivial numbers renouncing their US citizenship would be pretty bad.  A lot of these people would look like real Americans (many of them native born), in the sense of socio-cultural identity.  It would drive home a point that US citizenship isn’t really that special any more — not worth the trouble of dealing with a lot of paperwork, much less actual additional tax liabilities.

It might also conceivably result in economic loss.  The tax revenue, for starters, enough to balance out any gains from FATCA enforcement.  An important reason that other countries have moved to accept dual citizenship (and not to tax their diasporas) is to cement economic connections to the homeland.  This may be less of a concern in the US context, but it can’t be a good thing to alienate (literally) your natural economic agents in the global economy.

Governance and the Eurozone: Framing Questions

by Kenneth Anderson

Last fall, I posted about possible governance effects of eurozone crisis on the EZ and, more broadly, the EU.  I raised questions not as an expert on European institutions, law, or governance, but as someone with a long interest in governance and legitimacy questions for the international system.  They elicited some very interesting responses, particularly from University of Connecticut’s Peter Lindseth (who blogs on these topics at Eutopia).  I also collected a number of noteworthy responses by email from other EU law scholars.

During the last few months, the sense of crisis has been so overwhelming, and the serial responses so rapid-fire, outside international economic law observers like me haven’t been able to to do much more than, well, monitor the Twitter feed.  Without wanting to say that the crisis has passed – it hasn’t – the pace of market events has eased somewhat for the moment, and perhaps now is a better moment to ask questions about the implications and meaning, if any, of the EZ crisis for governance of the EU.  Over the next few months, I propose to do that, and hope to persuade both fellow OJers with an interest in economic law and governance issues to weigh in – as well interested outside experts in law, economics and economic law, and governance both generally and the EU specifically.  I have general views on governance, to be sure, but in this question of the EU, I do not hold myself out as expert and see my role more as facilitator trying to frame questions for discussion.

I’d like to spark more discussion of international economic law, governance, international organization, and other such topics here at OJ.  I plan to blog much less here about national security and related questions during this upcoming year, and much more about these topics.  Feel free to raise issues in the comments, email me directly, or to offer responses at other blogs and forums to which I can link.  Meanwhile, what kinds of categories/questions might need exploring?  A few possibilities, no special order:

  • Why is a crisis in the EZ a question of governance of the EZ at all – much less the EU?  Isn’t the euro just an economic and business tool, hugely useful in promoting efficiencies across the EZ, but not more than that?  The only relevant governance questions are those related to the economic, financial, and banking governance of specific EZ institutions, so why try to make it out as broader than that?  In any case, the “governance” issues involved are all essentially technical ones belonging to economists and finance specialists.
  • What is the role of lawyers or legal academic in addressing the EZ crisis?  One possible answer is that it is surely very limited.  The role of lawyers is no more than that of “scribe,” putting into words policies that are necessarily established by other kinds of experts or by political actors.  Governance of the EZ lies in the hands of technocrats in economics and finance, or else in the hands of political leadership doing purely political things.  Lawyers simple give expression to arrangements established elsewhere.  What independent analytic role do lawyers or legal academics have?
  • If lawyers have anything to offer beyond services as scribes, it is in a role “external” to the formation of the “best” policy, yes? No?  Lawyers can read the words of treaties, agreements, court cases, etc., that refer to the governance structures that are in place at this moment.  They might find limiting language (e.g., no bailouts of governments) or come up with enabling language or interpretations of governance documents.  But this role is “external” to the formation of best policy, either preventing or permitting on the basis of current governance arrangements.  It does not help analytically to determine the optimal policy.
  • What is the role of legitimacy, trust, and shared expectations in channeling the crisis, responding to it, and in the landscape that succeeds it?  And is this not an area of peculiar analytic expertise of lawyers and legal academics, given that law shapes institutional structures that markets and market participants either trust or not?  Those institutional structures shape, constrain, or enable the legitimacy of the polices dreamed up by other kinds of experts – but without which, the policies cannot succeed, either with the markets or with the European populations that must live with them.
  • In what ways, if any, does a Europe much more divided by its economic possibilities, much more visibly unequal across national borders, discover that its governance structures are altered, both at the national and EU level?  Will movement of goods, capital, and people remain as mobile as before?  Capital controls by countries facing the outflow of banking deposits, from Greece to Germany?  What about people?  Are there circumstances in which comparatively destitute southern Europeans move to richer countries – what about competition for jobs, but also what about welfare benefits?
  • Is economic governance of the EZ truly divorced from non-economic governance of the EU?  If an argument for the euro was that it was an essential part of the glue of the European project, in good historical materialist fashion laying the economic base for superstructural institutions, doesn’t that imply the opposite if the glue dissolves?   What might this mean, if anything, for such institutions as the ECJ or the ECtHR and their role in “values” governance of the EU?
  • Does the EZ crisis portend changes in the role of the EU as such in the wider world?  Reduced funding for foreign assistance by the EU and national governments and ever-more straitened national defense budgets? How might it affect the EU and its national governments’ relations with China (and Asia more broadly)?

There are other categories of questions, I’m sure, and I would be most interested in hearing them and adding them to the list for discussion.  But these are some that occur to me as someone who studies governance in the international community generally.  I hope we can explore them over the next few months.

Lago Agrio Ecuador Appeals Court Judgment

by Roger Alford

A certified English translation of the Lago Agrio Ecuador Appeals Court judgment, together with the original Spanish, was filed with the Second Circuit today and is available here.

Opinio Juris Seeks Assistant Editor

by Peggy McGuinness

Opinio Juris seeks candidates for the position of Assistant Editor. Responsibilities include monitoring international law developments, liaising with permanent contributors to organize special events, working with guest bloggers and partner publications on submission of posts and commentary, and other administrative duties. It is anticipated that the assistant editor will work ten to twenty hours a week. The ideal candidate will have a J.D. (or equivalent) with an international law background and be comfortable with blog and other social media technology. Opinio Juris will pay competitive market rates. The assistant editor also will have the opportunity for his/her own byline on posts that regularly update our readers on international law news developments. Please submit your inquiries to Peggy McGuinness (mcguinnm – at – stjohns – dot – edu) and Roger Alford (ralford – at – nd – dot – edu). Please include a CV and a paragraph describing why you are interested in the position. The deadline for submitting applications is January 31, 2012.

A Question for Readers

by Kevin Jon Heller

I think there is little doubt where I stand on the merits of the Chevron litigation, so I am not going to get into the substance of the dispute here.  But I have an honest question that I am hoping someone will answer.  Let’s assume, for sake of argument, that Chevron is correct to argue that the $18 billion judgment was procured by fraud and corruption.  Let’s also assume that the appellate decision is affirmed by the highest court in Ecuador.  Under what legal theory does the Second Circuit have the authority to “stay enforcement” of the judgment outside of the United States?  (It obviously could prevent the plaintiffs from recovering from Chevron inside the U.S.)  The Second Circuit was skeptical that any such theory existed, as reported by

Judge Lynch in particular questioned again and again the power of a defendant to use New York’s Uniform Foreign Country Money-Judgments Recognition Act offensively as the basis for enjoining other enforcement actions around the world—rather than waiting to seek the anti-suit injunction as a defense to an actual recognition action brought by the plaintiffs in New York. How would New York courts react, queried Lynch, if a Venezuelan court used Venezuelan law to enjoin a Russian judgment holder from going to New York to enforce it? Should or would New York courts respect it?

Mastro conceded that he knew of no precedent for a defendant to proactively get a foreign anti-suit injunction under New York’s Recognition Act, as Chevron seeks to do. However, Mastro argued that there is mountainous evidence that the Ecuadorian judgment was procured by fraud, and the act aims to prevent vexatious litigation. He also argued that the Ecuadorian case is unique because, when the Second Circuit dismissed Chevron’s predecessor Texaco from an earlier filing under forum non conveniens, the company expressly reserved its defenses under New York’s Recognition Act.

This is not my area of law by any stretch, so readers’ thoughts would be most appreciated.

Chevron Files Second Circuit Motion for Emergency Relief

by Roger Alford

As Kevin noted yesterday, on January 3, 2012 an Ecuador Appeals Court affirmed the $18 billion judgment against Chevron in the long-running battle over environmental damage. (Available in English and the original Spanish here). According to an unofficial English translation of the sixteen page opinion, the Court dismissed all of Chevron’s arguments, including the allegations of fraud. Here is a taste:

As for the invalidity of the trial “for procedural fraud and violation of the guarantees of due process” it must be said that the record of the trial court reflects that the Defendants have exercised a vigorous and ample defense in the trial—the thousands of pages that bloat the trial have already been mentioned, in addition to this appeal and litigation; insinuating expert witnesses; requestioning and reexamining these same judicial auxiliaries, and to witnesses, visiting each and each one of the formalities given in the first trial. As such, the trial has been public and, from what can be seen, also transparent, with a horrifyingly uncommon temporal duration, and without a doubt, affecting the interests of those that drive the case, as since the action, more than eight years have passed in Ecuador alone; definitely putting into process the proof and the performances—all of them—requested by the parties in the investigative procedures….

Fraud and corruption were also mentioned, of officials, attorneys, and representatives, the issue of which this Court should not make any reference, only to leave emphasized that the same accusations can be found pending before authorities of the United States in the denouncement that has been presented the same here by the Defendant Chevron, under the RICO act, and the Court does not have competence to resolve the conduct of attorneys, expert witnesses, or other government employees or administrators and judicial auxiliaries, if that is the case….

The logical anticipated consequence, in the case of carrying out the request, was that it was impossible to rely on any expert, and resulted in not being able to have expert proof which paralyzed the trial; thus Chevron has acted up until the outer limits of its defense and the Court considers the particularly precarious situation which could doom the administration of justice should it be allowed during the controlling procedural moments and stages of the suit, making it depend on its decision in the advancing of the cases. The deeds made public considered in the judge’s decision at the first instance, and Chevron was condemned to pay trial costs for manifest bad faith, notorious and obvious; so much so that now suffice it to say that the procedural conduct of the defendant, few times seen in the annals of the administrator of Justice in Ecuador, were abusive to the point that, in terms of attitude, that the Court will not even dedicate any more writings to this portion of the decision, it would be an example of disastrous precedent for other litigants.

Following the judgment, plaintiffs’ attorney Pablo Fajardo indicated that Chevron is authorized to request clarifications of the appellate court decision within the next month or so. According to my conversation with plaintiffs’ representative Karen Hinton yesterday, if Chevron wishes to appeal to the Ecuador National Court in Quito, Chevron must post an appeal bond of approximately 10%, or $1.8 billion. Chevron itself contends that the appeal bond could be 100% of the judgment, forcing it “to deposit, with no likelihood of recoupment, billions into the very court system whose corruption and bias … render the Lago Agrio judgment unenforceable.“

Meanwhile Chevron has filed a motion with the Second Circuit this morning asking the Second Circuit to lift the temporary stay on the district court’s antisuit injunction. The Second Circuit’s principal concern that an antisuit injunction was not ripe has been obviated by the Ecuador Appeals Court judgment. “Without such relief, the [plaintiffs] will be able immediately to commence their extortionate plan to harass Chevron through multiplicative, vexatious enforcement proceedings expressly intended to disrupt the operations of Chevron’s affiliates in foreign countries.”

In its motion, Chevron argues that “The Ecuadorian appellate decision … does not purport to explain or even mention the extensive evidence that the Lago Agrio Judgment was ghostwritten by parties other than Judge Zambrano, who had secret access to the LAP’s internal, unfiled work product.” Among other things, Chevron argues that the Ecuadorian appellate judgment ignores (1) the extensive verbatim overlap between the judgment and the LAP’s unfiled “Fusion memo”; (2) the overlap between the judgment and the LAP’s unfiled record summary; (3) the LAP’s internal emails evidencing their plan to draft the judgment; and (4) expert linguistic testimony that the judgment was not written by Judge Zambrano.

Yesterday Chevron has also filed a motion with the UNCITRAL arbitration tribunal in The Hague requesting that panel to order Ecuador to inform the tribunal of the steps it intends to take to comply with the tribunal’s February 2011 order requiring Ecuador to prevent the Lago Agrio judgment from being enforced.

After almost two decades of litigation, the Chevron Ecuador judgment has reached the critical enforcement stage. The $18 billion question is whether the Second Circuit will stay enforcement of the Ecuador judgment, and if not, whether foreign courts will recognize and enforce the Ecuador judgment. Overshadowing it all is an investment arbitration that may require Ecuador to pay Chevron for any damages it has incurred from the enforcement of a judgment in violation of the Ecuador-United States bilateral investment treaty.

US Tax Overreach: Enforcing Against Expats

by Peter Spiro

The US is one of the few countries in the world to tax nonresident citizens. But enforcement overseas has never been easy, or much of a priority.  That is, until the authorities uncovered some big-time asset offshoring by resident citizens (yes, in Swiss bank accounts) for purposes of tax evasion.

That resulted in legislation directed at foreign holdings of all US citizens, resident and non, in the form of the Foreign Account Tax Compliance Act, FATCA.  A core purpose is to systematize data collection on the earnings and assets of Americans abroad – the estimated 4-6 million of them.

For those of you not studying your NY Times on the day after Christmas, you can find a good description here.  FATCA will pose a huge burden on any foreign financial institution that have US citizen depositors.  For big institutions that will inevitably have US customers, the law represents a big administrative expense.  Smaller ones will just start turning away US customers.  For nonresident citizens, it means lots of extra paperwork (James Fallows collects some vignettes here and here).  It’s also meant to send a clear signal that the IRS is going to get serious about collecting on Amcits abroad (though it apparently will forgive those who have failed to file in the past).

I see two possible endpoints to the FATCA gambit:

1) The US will have to back down.  Read the comments to this WSJ article on FATCA – some very unhappy folks out there, with strong arguments hinging on American competitiveness.  See also this round-up of diaspora efforts to fight back. US citizens overseas are allowed to make campaign contributions, and you can bet this is the kind of issue they care about.  (Presidential candidates now swing through London to do fundraisers.)  Other governments can’t be happy about it, either, as they feel the heat from financial sector constituencies.

2) If the US can make FATCA stick, some nonresident citizens will renounce, especially those with large tax exposures.  But the law will also spawn a new class of secret Americans.  Unwilling to go through the hassle of filing annual tax returns and switching their checking accounts to compliant institutions, they will keep mum about their US citizenship status (at the same time that they hold citizenship in their country of residence).  These individuals won’t go through with formally renunciation, which may be tricky if they haven’t been tax compliant in the past.  These secret Americans will have the passport in a drawer, good for a rainy day and their children’s right to claim the status (on the expectation that FATCA won’t be forever), but they otherwise won’t identify themselves as such.  The IRS doesn’t have a master list of US citizens.  It will collect from some but drive others underground.

This will be interesting to watch but looks like a bad move.  Any extra revenue will be outweighed by all the bad blood.  Another reason not to wave the flag.

Chevron Loses Another Round in Ecuador (Updated)

by Kevin Jon Heller

Great news — an appeals court in Ecuador has upheld the $18 billion damages award imposed on Chevron for the damage caused by its deliberate dumping of more than 18 billion gallons of toxic waste-water in the country, known as the “Rainforest Chernobyl”:

The lawsuit deals with pollution of the rainforest by energy company Texaco, which Chevron bought in 2001.

Chevron denounced the appeals court’s decision and said it would continue to seek recourse in other courts outside Ecuador.

“Today’s decision is another clear example of the politicisation and corruption of the justice system in Ecuador,” Chevron said in an emailed statement.

The San Ramon, California-based company has previously alleged fraud in the case. The plaintiffs have also accused Chevron of defrauding the Ecuadorean court to hide the scale of the oil contamination.

By the time of last year’s judgment the case had been winding its way through US and Ecuadorean courts for more than 17 years.

The suit was originally filed in a New York federal court in 1993 against Texaco and dismissed three years later after the oil company argued that Ecuador was the proper venue to hear the case. It was refiled in Ecuador in 2003.

Though it had only 47 named plaintiffs, the lawsuit sought damages on behalf of 30,000 people for environmental contamination and illnesses that allegedly resulted from Texaco’s operation of an oil consortium from 1972 to 1990 in the rainforest.

Notice the bolded text — it was Texaco/Chevron that wanted the case heard in Ecuador, not the plaintiffs.  Of course, the company wanted the case heard in Ecuador on one condition: that it win.  Now that it is losing in Ecuadorian courts, the system is corrupt and other courts should hear the case.  Because any court that rules against Chevron is by definition corrupt.  After all, everyone knows that Chevron always litigates in good faith, as The Guardian explained last year

While You Were Away…

by Kevin Jon Heller

We hope you never left, but in case you have not been keeping up with Opinio Juris over the holiday season, here is what you missed:

1. Two excellent blog posts setting the record straight about the NDAA, graciously provided to us by two experts on the subject, Marty Lederman and Steve Vladeck.  You can find Part I here and Part II here.

2. A friendly response to Part II by me that discusses the limits of analogizing detention in non-international armed conflict to the rules of international armed conflict.  You can find it here.

3. A fascinating post by Ruti Teitel discussing the need to avoid victor’s justice in Libya.  You can find it here.


Four Quick Thoughts on Justice in Libya

by Kevin Jon Heller

This post will seem like an extended plug for my own work, so apologies.  But I wanted to offer a few thoughts on the legal issues raised by Ruti’s excellent post, the politics of which — with one exception, noted below — I completely share.

First, Ruti asks whether Libya should be able to claim the right to try to Saif domestically, given that it has not ratified the Rome Statute.  Here I think the answer has to be “yes.”  Article 17(1)(a) of the Rome Statute provides that the Court must deem a case inadmissible (thus permitting a national prosecution) if “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”  That provision does not limit admissibility challenges to States Parties; it extends to any state that has jurisdiction over the crimes in question.  And Libya certainly has jurisdiction over Saif’s crimes.  Had the drafters of the Rome Statute wanted to condition admissibility challenges to states that had ratified the Rome Statute, they would have said so; after all, in Article 14, they specifically limited the right to refer situations to States Parties.  The absence of similar language in Article 17 thus speaks volumes.

(As an aside, there is a related question as to whether Article 17 even applies to Security Council referrals.  I think the answer has to be yes here, as well, given that nothing in the “admissibility” section of the Rome Statute indicates otherwise.  Most scholars seem to agree.)

Second, Ruti suggests that Libya’s admissibility challenge is difficult to square with its duty to cooperate with the Court imposed by the Security Council referral.  I’m not sure that’s the case.  The Rome Statute embraces the principle of complementarity because there is no practical alternative: given the Court’s limited resources, the struggle against impunity requires states to assume primary responsibility for prosecuting international crimes.  As long as Libya genuinely wants to bring Saif to justice, therefore, I think it is fulfilling its duty to cooperate with the Court, not undermining it.

Third, Ruti argues that, to satisfy the principle of complementarity, Libya must give Saif a fair trial.  In her words, “when the Statute refers to whether a state is able or willing to prosecute, that should include all that holding trials imply—that is, able and willing to respect the human rights of the criminal defendant.”  Normatively, I unequivocally agree.  Legally, though, Moreno-Ocampo was absolutely right when he told reporters that the ICC was “not a system to monitor fair trials.  We are a system to ensure no impunity.”  As I have explained elsewhere, the drafters of the Rome Statute did not believe that the Court should be able to admit a case because the defendant would receive an unfair trial in a national proceeding.  Indeed, they specifically rejected the following version of Article 17(2), governing “unwillingness,” which had been proposed by Italy (emphasis mine):

In deciding on issues of admissibility under this article, the Court shall consider whether… (ii) the said investigations or proceedings have been or are impartial or independent, or were or are designed to shield the accused from international criminal responsibility, or were or are conducted with full respect for the fundamental rights of the accused.

Fourth, and finally, Ruti argues that it would be inappropriate for Libya to try Saif for “ordinary” domestic crimes, as opposed to crimes against humanity.  As she says, “one needs to take into account the nature of the offense for which Saif was wanted.  The warrant for Saif lists crimes against humanity—not ordinary offenses—and these are the misdeeds that motivated Security Council action on Libya in the first place… Will Libya bringing case against Saif under ordinary criminal law succeed in sending a similar message?”  I agree with Ruti that there is greater expressive value in a conviction for an international crime than for an “ordinary” crime.  From a pragmatic perspective, however, I think that it would be counterproductive to insist that Libya prosecute Saif for crimes against humanity.  For all the reasons that I explore in my forthcoming article in the Harvard International Law Journal, it is extremely unlikely that Libya will have the capacity to effectively prosecute crimes against humanity, a particularly legally complicated kind of crime, in the near future.  Indeed, it is an open question whether Libya will even be able to effectively prosecute Saif for ordinary crimes.  As a result, if the Court does permit Libya to try Saif itself — and I’m skeptical — it seems to me that the international community should avoid insisting that the prosecution include crimes against humanity.  Doing so, it seems to me, would be a recipe for an acquittal.  And then the prosecution would have no expressive value at all.

On Comment-Free Blogging (Updated)

by Kevin Jon Heller

In the comments to my previous post, I described refusing to allow comments on a blog as an “act of cowardice.”  Ben Wittes, one of the contributors to Lawfare, a blog that does not allow comments as a matter of policy, doesn’t appreciate the description:

Anyone who wants to understand why Lawfare does not take comments need only take a brief look at this comment thread over at Opinio Juris blasting Lawfare–and others–for not taking comments. As the old saying goes, the thing speaks for itself.

I’ll leave it to readers to decide whether our comments policy is, as Kevin Jon Heller puts it, “an act of cowardice” or whether it is, as I like to think of it, what we used to call in the news business editorial judgment. But it certainly is, as Benjamin G. Davis puts it, “a control mechanism,” an effort at “total control of whom [sic] can post.” We run this blog to provide useful information and to express our views, not to operate a free-for-all for anyone who fashions himself as having something to say. Anyone who wants to comment should feel free to send an email, which we often post, or to post to our Facebook page. Or, in the alternative, it seems that you can post comments about Lawfare on Opinio Juris. Or, if you really feel strongly about it, you can start your own blog.

The offending comment thread to which Ben refers consists of precisely three comments addressing the issue at hand.  The first criticized closing comments on an Opinio Juris post, not a Lawfare post.  The second was mine, making the aforementioned claim.  And the third was an extremely reasoned critique of blogs that do not allow comments — and of the exclusionary nature of the national-security-law world in general.  That’s it.

I continue to believe that refusing to allow comments on a blog is indefensible — just as I believe that it is indefensible to comment on a blog anonymously (except in situations where one’s job could be threatened).  Ben describes Lawfare’s no-comment policy as “editorial judgment.”  It seems to me that the only editorial judgment involved is that no one other than the contributors to Lawfare — and those whose emails Lawfare deigns to post — have anything of value to say.  Indeed, the elitism drips from Ben’s post; just consider his claim that to allow comments on Lawfare would be “to operate a free-for-all for anyone who fashions himself as having something to say.”  How dare readers have the temerity to think they’re good enough to respond to Ben — on Lawfare, no less!

As a blogger who is prone to strong opinions, I am the first to admit that reading comments can be a painful experience.  I have been accused of being anti-Semitic; of being a self-hating Jew; of not believing that Israel has a right to exist; of being anti-American; of being a communist; and so on.  I’ve also had my mistakes pointed out to me more than once.  But that is simply the price I pay for being something of a public intellectual.  Blogs are not, as Ben assumes, simply fora for “experts” to make themselves heard — the online equivalent of the New York Times editorial page (which Ben never tires of attacking).  They are places for discussion and debate, where some voices may be more important than others but no voice is excluded.  Are bloggers obligated to allow comments?  Of course not.  But let’s not pretend that refusing to allow them is some kind of noble act designed to ensure the integrity of academic debate.

UPDATE: In light of Marko’s comment below (!), I have changed my mind about whether a no-comment policy is cowardly.  It certainly can be, and I suspect that most bloggers who refuse comments are simply afraid of criticism.  But it is not necessarily cowardly; it may simply reflect the blogger’s belief, so well expressed in Ben’s post, that the unwashed masses have nothing useful to contribute to discussion of complicated legal issues.  Frankly, I think that kind of elitism is worse than cowardice.

UPDATE 2: Ben responds — sort of — at Lawfare.  There isn’t much more that needs to be said on the issue; Ben is absolutely right that he and his colleagues are in no way “under some obligation to design this forum to Heller’s specifications.”  They are well within their rights to run a blog without comments, just as I am within my rights to criticize them for doing so.  (And in my humble opinion, describing a blog that doesn’t take comments as a “forum” seems like a stretch.)

For the record, I am delighted that my friend Steve Vladeck has joined Lawfare as a permanent contributor.  Though no substitute for genuine openness, the ideological diversity that Steve brings to the blog is welcome, and the invitation to him to join speaks well of Ben and the others.

The ICC and Saif: After International Intervention, Avoiding Victor’s Justice

by Ruti Teitel

Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School and Visiting Professor at London School of Economics. She is the author of Transitional Justice (2000) and Humanity’s Law, which was published this fall by Oxford University Press.

When the United Nations Security Council authorized the use of force to protect civilians in Libya, the Council also referred the situation there to the International Criminal Court (ICC) in the Hague, and placed Libya under a legal obligation to cooperate fully with the ICC.  Now, after the capture of Saif Ghadaffi, the meaning of this obligation is being put to the test.  Saif is wanted by the ICC for war crimes; but the Libyan authorities want to prosecute him in the country’s own courts. The ICC prosecutor, Luis Moreno Ocampo, takes the view that Libya has a right handle on Saif’s trial, provided its courts are up to the task.

Ocampo is relying on a principle of the ICC’s Statute, known as “complementarity”—the principle which allows for a challenge to ICC jurisdiction on the grounds that the state in question is able and willing to try the accused in its own courts.  But Libya is not a signatory to the ICC’s Statute and so the question arises if it should be able to rely on complementarity. Where the ICC’s mandate is based on an order of the Security Council and not on Libya’s consent to ICC jurisdiction.  Libya’s duty to cooperate fully with the Court under the Security Council resolution is hard to square with the right to challenge its jurisdiction over the matter.

But let’s assume that complementarity does apply to Saif’s case.  When Ocampo decides whether Libya’s justice system passes muster for these purposes, he has said he won’t be asking whether Saif can get due process and the appropriate protections for a criminal accused. Ocampo recently said that while he hopes Saif’s trial is fair, “we [the ICC] are not a system to monitor fair trials. We are a system to ensure no impunity.”. . .