In association with the International Commission of Jurists

March 2012

29 Mar

Our friends at ASIL Cables have posted Joanne Mariner's summary of the yesterday's 2012 Grotius Lecture at the ASIL's 106th Annual Meeting:
Jakob Kellenberger, the President of the International Committee of the Red Cross (ICRC), kicked off ASIL’s 106th Annual Meeting with a stirring reaffirmation of the value of international law.  Delivering the Grotius Lecture on the meeting’s opening day, Kellenberger spoke of the role of international humanitarian law—the law of war—in reducing the harms caused by armed conflict. While acknowledging that international humanitarian law cannot by itself end wartime suffering, he insisted that its observance in armed conflict can go far to preserve human dignity, protect the vulnerable, and limit the horrors associated with war. As a prelude to Kellenberger’s speech, ASIL Executive Council member William H. Taft IV awarded Kellenberger ASIL’s Honorary Member Award, an annual award given to non-U.S. citizens who have made distinguished contributions in the field of international law. Taft’s introductory remarks set the stage, perhaps inadvertently, for the most memorable and emphatically-stated passage in Kellenberger’s speech.  Having served as State Department Legal Adviser during President George W. Bush’s first term, Taft commended Kellenberger for his insistence that the Geneva Conventions be respected “in the conflict with Al Qaeda and other terrorist groups.”  (Taft himself had been on the losing end of a struggle within the administration over whether Geneva Convention protections applied to Taliban and Al Qaeda members captured in Afghanistan.) Taft’s references to the “conflict with Al Qaeda”—a phrase he used twice—reflect the view, which the present U.S. administration shares, that the United States is engaged in an armed conflict with Al Qaeda that is not limited to the current fighting in Afghanistan. It is this posited armed conflict that the United States relies upon in justifying drone strikes in Yemen, indefinite detention at Guantanamo, and the use of military tribunals to try suspected terrorists like Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri.
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29 Mar

North Korea has reportedly started fuelling a rocket for launch next month In a surprise move, Myanmar has invited foreign observers to monitor Sunday's elections For the first time since 2010, Japan has executed three multiple murderers. The Guardian has live updates of the Arab-League Summit in Baghdad. Syrian President Assad has rejected any Arab-League initiatives to come out of the summit and the...

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28 Mar

With all of the attention we are devoting on Opinio Juris to Chevron's "rainforest Chernobyl" in Ecuador, it's important not to forget that Chevron's human and environmental destruction extends far beyond Ecuador's borders.  Here are few of its other activities over the past month or so: 1. Five Chevron executives have been forbidden to leave Indonesia because of a remediation project...

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28 Mar

Our readers may find the following event, featuring Opinio Juris' Deborah Pearlstein, of interest: The New York Lawyer Chapter and Benjamin N. Cardozo School of Law Student Chapter of the American Constitution Society, and Floersheimer Center for Constitutional Democracy present: The ACLU in American Life Featuring: Adam Liptak, Supreme Court Correspondent, The New York Times Heather Mac Donald, John M. Olin Fellow, Manhattan Institute for Policy...

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28 Mar

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.] The Alien Tort Statute (ATS), 28 U.S. C. §1350, says that an alien may sue in federal district court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Supreme Court recently asked for briefing on the question “whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Implicit in the question is a seeming concession: an alien tort occurring within foreign sovereign territory is still cognizable under the ATS if the alien plaintiff alleges violation of a U.S. treaty, such as the United Nations Convention Against Torture (CAT). For instance, if an alien alleges torture against another alien in a foreign country, then presumably the claim would be actionable under the ATS, despite the fact that both plaintiff and tortfeasor are aliens and the tort occurred in the territory of a foreign sovereign. In this limited sense (where a ratified treaty may be pled), even the Supreme Court seems to acknowledge a “universal jurisdiction” angle to the ATS. In an article I published in 2006 in the Columbia Law Review, I stated the view that the Alien Tort Statute had nothing to do with universal jurisdiction; it was, I argued, a pragmatic measure enacted by the First Congress in September 1789 to let aliens sue in the federal district courts for money damages in the event of harm to their persons or property when the United States had expressly or implicitly promised the aliens that no such harm would come to them. The ATS both provides a right of action and original jurisdiction in federal district court to aliens injured under circumstances implicating U.S. sovereign responsibility; it is therefore a federal law for purposes of Article III arising-under jurisdiction. Translated to a modern context, the ATS would plausibly be available to "extraterritorial" tort actions by alien detainees at Guantanamo Bay, and non-combatant aliens harmed in Afghanistan, Pakistan, or Yemen in the current war on terror. Such actions would be subject to immunities under the Federal Tort Claims Act, an after-enacted statute, with respect to most U.S. official defendants. And so the answer to the Supreme Court’s question about the extraterritorial application of the ATS is “whenever there is a tort occurring in the territory of a foreign sovereign the commission of which was the result of U.S. sovereign action or inaction when the United States had a duty under international law to prevent the injury to the alien plaintiff.”
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28 Mar

If you are already in DC for the ASIL meetings and have some free time today (Wednesday), you might consider coming out to the edges of DC - to Washington College of Law, American University - for a conference sponsored by the ICRC, ASIL's Lieber Society (the laws of armed conflict interest section), and the Center for Human Rights and...

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28 Mar

Syrian President Bashar al-Assad has reportedly accepted Kofi Annan's six points peace plan, but the US Ambassador to Syria expressed skepticism that Assad's words would translate into deeds. Navi Pillay has told the BBC that the Syrian forces are targeting children. UN estimates put the civilian death toll in Syria at over 9000. Iran announces that it will hold nuclear talks with the...

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28 Mar

I am not going to respond in depth to Professor Cassel's recent post on Chevron's responsibility for the "rainforest Chernobyl" caused by its predecessor's dumping of million gallons of crude oil and billion gallons of toxic waste into the Ecuadorian rainforest.  The plaintiffs' attorneys have prepared a lengthy and thoroughly footnoted reply to his open letter; interested readers can find...

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27 Mar

John Yoo and I will be discussing our new book, Taming Globalization, tomorrow night, Wednesday, March 28, 2012 from 6-8 p.m., at the The New York Athletic Club, 180 Central Park South New York, New York in an event hosted by the Federalist Society.  Anyone who is interested is welcome to attend! For those of you on Long Island (and I know there...

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27 Mar

[Doug Cassel is Professor of Law at Notre Dame Law School] Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.). I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility. I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter. Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them:
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