Archive for
September, 2012

Upcoming Events: September 30, 2012

by Jessica Dorsey

Upcoming Events

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Weekend Roundup: September 22-28, 2012

by An Hertogen

This week on Opinio Juris, one of us was facing a legal challenge of his own. You can read Kevin Jon Heller’s account of Chevron’s subpoena for 9 years of IP-logs for his gmail-account here.

Ken Anderson is back to blogging, and discussed the leading issues at this week’s opening of the UN General Assembly in a post that also reflected on whether a sitting US President has anything to gain from a meaningful UN speech during an election year. In a different post, Ken reproduced the text of Obama’s speech as prepared for delivery. Further on UN appearances, Kevin wondered whether Benjamin Netanyahu’s “red line” about Iran’s nuclear bomb could still be taken seriously.

Other posts also dealt with Iran. Kevin asked why progressive bloggers were so willing to overlook the MEK’s involvement in the assassination of Iranian scientists when claiming that the organization has not been involved in terrorist attacks for years, and Deborah Pearlstein wrote about new drone technology reportedly developed by Iran.

In a guest post, Chantal Meloni argued why the Palestine-ICC saga is far from over, despite the April 3, 2012 update by the OTP. Another guest post, by Polina Levina and Kaveri Vaid, argued that the allegations of torture in a recent Human Rights Watch report qualify as war crimes under the Rome Statute, and are thus relevant for the OTP’s preliminary investigation into the situation in Afghanistan.

Our journal symposia are also back after the Northern Hemisphere summer break. The Harvard International Law Journal kicked off with a symposium on “The Democratic Coup d’Etat“, an article by Ozan Varol. The article argues that not all military coups are alike from an anti-democracy perspective. Joel Colón-Ríos’s response advanced on a more restricted concept of a democratic coup that focuses not only on the end result but also on the process through which the change came about. David Landau argued how the article illustrates the absence of an accurate vocabulary about military coups and how it raises further questions about the constitutional implications of various models of military entrenchment in post-coup constitutions. William Partlett provided a pragmatist response, and Brad Roth criticized the article’s reduction of democracy to “a narrow set of institutions and procedures”. Ozan Varol’s response to the comments can be found here.

In other announcements, Jessica welcomed Armed Groups and International Law to the blogosphere, and we posted about upcoming events and wrapped up the news. 

Many thanks to all our guest posters and have a nice weekend!

My Encounter with a Chevron Subpoena — and the ACLU’s Assistance (Updated)

by Kevin Jon Heller

Last week, while I was participating in a conference, I received an email from Google with a puzzling subject line: “Subpoena Notice from Google (Internal Ref. No. 257121).”  I opened the email, assuming that it was some kind of sophisticated phishing attempt.  It wasn’t.  It was Google informing me — more than a little cryptically — that Chevron had subpoenaed my account information and that it intended to comply unless I filed a motion to quash.  Here is Google’s email, with only some identifying information redacted:

Hello,

Google has received a subpoena for information related to your Google account in a case entitled Chevron Corp. v. Steven Donziger, et al., United States District Court for the Northern District of California, 11 Civ. 0691 (LAK) (Internal Ref. No. 257121).

To comply with the law, unless you provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at [Google email address] by 5pm Pacific Time on October 7, 2012, Google may provide responsive documents on this date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

[Attorney name]
Gibson, Dunn & Crutcher LLP
200 Park Ave
New York, New York 10166-0193
[Attorney phone number]

Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,
Google Legal Support

My first reaction was shock.  As regular readers know, I have often criticized Chevron’s actions in Ecuador.  But I could not imagine why Chevron was subpoenaing my private information; the sum total of my interaction with Steven Donziger, the Ecuadorian plaintiffs’ lead attorney and the defendant in Chevron’s lawsuit, consisted of two emails, neither of which contained anything substantive.  What did Chevron think I had that would help them?  Or were they simply trying to intimidate me?

My second reaction was anger.  I am — obviously — a blogger.  I am also, as a blogger, a journalist.  I have sources who provide me with confidential information on a wide variety of issues; those sources could lose their jobs if their identities were ever revealed.  It infuriated me that Chevron would try to obtain my account information — and I was equally frustrated that Google apparently had no intention whatsoever of protecting my privacy.

There was never any doubt in my mind that I would resist the subpoena.  But this wasn’t my area of law, so I immediately wrote for advice to my friend and Guardian blogger Glenn Greenwald, who has passionately defended the rights of bloggers and journalists.  Glenn put me in touch with Ben Wizner, the Director of the ACLU’s fantastic Speech, Privacy & Technology Project. To my relief, the ACLU quickly agreed to help me…

Welcome to the Blogosphere Armed Groups and International Law

by Jessica Dorsey

Since June 2012, there has been a new addition to the international legal blogosphere: Armed Groups and International Law. The blog is edited by Katharine Fortin of Utrecht University and Rogier Bartels at the Netherlands Defence Academy and the University of Amsterdam.

The blog’s two main purposes are information sharing and community building between individuals and organizations working on issues related to armed groups. The blog aims to provide updates on news stories and publicize academic journal articles and seminars, talks and conferences on issues related to armed groups and non-international armed conflict more generally.

So far, the blog has published analyses on a broad range of issues, which include the organization requirements in relation to the non-international armed conflict in Syria (see here and here), the M23 rebel group operating in Eastern Congo (see here), the decision in the Lubanga case regarding reparations (see here), Mullah Omar’s message to the Taliban to avoid civilian casualties (see here) and the activities of Geneva Call (see here and here). Every weekday, the blog’s editors prepare a roundup of global news stories relating to armed groups and international law.

Every few months, the blog’s editors will prepare a legal roundup of academic articles, books and blog posts on relevant issues (see the latest legal roundup here). Academic commentary from individuals or organizations on current issues, recent cases or developing issues is welcomed and can be sent to the editors.

Weekday News Wrap: Friday, September 28, 2012

by Jessica Dorsey

How Many Times Has Netanyahu Fear-Mongered About Nukes?

by Kevin Jon Heller

Benjamin Netanyahu is being suitably mocked for the Wily E. Coyote-like picture of a bomb he used at the UN to describe Israel’s “red line” concerning Iran’s purported efforts to build a nuclear weapon.  There’s no need for me to pile on; even right-wingers are horrified, with Jeffrey Goldberg — Jeffrey Goldberg! — tweeting earlier today that “Netanyahu’s bomb cartoon is the Middle East equivalent of Clint Eastwood’s chair” and that “[o]kay, it’s official: #Netanyahu has no idea what he’s doing. He has just turned a serious issue into a joke.”

That said, two points are worth making.  To begin with, as I have blogged about before, Israel first started claiming that Iran was on the brink of developing nuclear weapons in 1984 — and Netanyahu himself has been making the claim since 1992.  So Israel’s latest claim needs to be taken with a pile, not simply a grain, of salt.

It’s also important not to forget Netanyahu’s fear-mongering about the supposed nuclear program of another state — Iraq.  Here is what he wrote — in an editorial revealingly entitled “The Case for Toppling Saddam Hussein” — in the Wall Street Journal in 2002…

Levina and Vaid Guest Post On The Recent HRW Torture In Afghanistan Report: What Does It Mean For The ICC?

by Polina Levina and Kaveri Vaid

[Polina Levina is a masters in international law candidate at the School of Oriental and African Studies and Kaveri Vaid is an Institute for International Law and Justice Scholar at New York University School of Law.]

Overview

Recently, Human Rights Watch released a report detailing systematic practices of capture, torture, and rendition of members of the Libyan opposition by the United States Central Intelligence Agency.  At least five of the alleged victims were tortured by the CIA in “black sites” in Afghanistan in or after 2003.

Torture is clearly prohibited by the Rome Statute, both as a war crime and as a crime against humanity.  The entire situation in Afghanistan during the time period addressed by the report has been under preliminary examination by the International Criminal Court (ICC) since 2007. In a report on this preliminary examination, the ICC Office of the Prosecutor (OTP) cited the lack of concrete and particularized evidence, including about potential victims and witnesses, as a significant reason why the preliminary examination could not move forward.

It might seem at first blush that the HRW report would provide the critical evidence of crimes within the court’s jurisdiction. But this assumption assumes the existence of a critical prerequisite – there must be a nexus between the alleged acts of torture committed by the CIA and the armed conflict in Afghanistan for those acts to qualify as war crimes under article 8(2)(c)(i)-4 (or, as cruel treatment under article 8(2)(c)(i)-3) of the Rome Statute. The nexus requirement is a jurisdictional requirement – the ICC and other international tribunals only have jurisdiction to prosecute acts as war crimes when committed in connection with an armed conflict.

The HRW report undoubtedly alleges acts of torture that occurred during the non-international armed conflict in Afghanistan. However, the ICC has emphasized that this fact alone does not establish a legal nexus between the alleged acts and the armed conflict in The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, thus setting an outer boundary for the nexus requirement.  Instead, the Court requires a more substantial connection between the alleged acts and the armed conflict.

While the issue is complex, we argue that the acts qualify as war crimes based on the Court’s current jurisprudence.  We will first delineate the Court’s test for a nexus—that the armed conflict must be a substantial factor in the commission of the alleged crimes.  We will then demonstrate that the acts alleged in the HRW report are more than merely coincidentally related to the armed conflict in Afghanistan; the conflict was a substantial factor in the commission of the alleged crimes. As such, the allegations detailed in the HRW report are relevant to the OTP’s preliminary examination into the situation in Afghanistan.

How the ICC Defines a Nexus to Armed Conflict

In its decision on the confirmation of charges in the Katanga Case [para. 380], Pre-Trial Chamber I defined crimes having the requisite nexus to armed conflict as…

HILJ Symposium: Ozan Varol Responds

by Ozan Varol

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.]

This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below.

I would like to thank David Landau, William Partlett, Brad Roth, and Joel Colón-Ríos for their kind words and insightful comments about my article, The Democratic Coup d’Etat, 53 Harv. Int’l L.J. 291 (2012). These scholars have been instrumental in enhancing our knowledge of constitutional transitions, and I very much appreciate the time they have taken to share their thoughts on my article. In this reply, I will first provide a brief summary of the article’s central claims and then respond individually to the comments.

The article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy.

This article challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.
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HILJ Symposium: A Commentary on Ozan Varol’s “The Democratic Coup d’Etat”

by Brad Roth

[Brad Roth is Professor of Political Science & Law at Wayne State University.]

This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below.

Ozan Varol’s article, “The Democratic Coup d’Etat,” performs a crucial service in reorienting assessments of extra-constitutional changes in government so as to emphasize substance over form. He refutes the commonplace idea – most recently championed by Richard Albert – that coups are inherently and inevitably undemocratic and illegitimate, “Democratic Revolutions,” forthcoming Denver U. L. Rev. 89:2 (2012), at 20, and demonstrates that under some conditions, seizures of power by military elites may lay the groundwork for the establishment of liberal-democratic participatory processes. He does so without any naïveté about coup-makers’ agendas, fully acknowledging the distortions that even “democratic” putschists introduce into post-coup constitution-making processes in order to entrench prerogatives for the military and/or its favored constituencies. But as he notes, the coup leaders may actually fail at engineering such reserves of power – especially when they attempt it directly and overtly – because, as in the Portuguese case (and, one might hope, in the current Egyptian case), they set in motion democratic dynamics that they cannot contain.

Varol’s account, however, replaces one exaltation of form over substance with another, reducing democracy itself to a narrow set of institutions and procedures that a coup may or may not work to promote. Such ascription is hardly unique to Varol – empirically-oriented political scientists tend to favor reducing democracy to elements that the tools of social science research can operationalize – but it neglects both the normatively loaded nature of the term and the extent to which competing conceptions of democratic ends animate political conflicts. See, e.g., Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, Okla.: Univ. of Oklahoma Press, 1991), 5-13. Relatedly, Varol refers repeatedly to “the regime,” “the military,” and (most problematically) “the people” as unitary actors, whereas competing players frequently act in the name of these entities. (Instructive on the divisions within these groups is a book that Varol himself cites: Giuseppe Di Palma, To Craft Democracies: An Essay on Democratic Transitions (Berkeley: Univ. of Calif. Press, 1990), at 44-75.)
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HILJ Symposium: A Pragmatist’s Response to ‘The Democratic Coup d’Etat’

by William Partlett

[William Partlett is an Associate-in-Law at Columbia Law School and a Nonresident Fellow at the Brookings Institution.]

This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below.

The Democratic Coup d’Etat is an important article. First, and most obviously, this Article carries significant policy implications. The political transformations sweeping the Middle East and North Africa – known as the “Arab Spring” – have presented a wide range of conceptual challenges to policymakers and political scientists. Varol’s counter-intuitive argument that self-interested militaries might facilitate democratic transition in order to preserve their own position within the political system provides an important perspective on Egypt’s transformation. Although it is far too early to tell if the Egyptian military will remain an agent of democracy, Varol’s article puts the military’s actions in sharp focus.

Recent developments have also added additional texture to Varol’s concept of the “democratic coup d’état.” Most relevant is the alliance between the military and judiciary that was on show in June when the Supreme Constitutional Court disbanded Egypt’s Muslim Brotherhood-dominated Parliament. Reporting from this event suggests that the military was not simply using legal institutions to pursue its own interests. Instead, key members of the Supreme Constitutional Court had been in close contact with the Egyptian military from the very beginning of Egypt’s political transformation to address how they will handle the risk that the broad popularity of the Muslim Brotherhood will allow it to unilaterally shape the Egyptian state. Tahani el-Gebal, Egypt’s deputy president of the Supreme Constitutional Court, justified this alliance with the military based on the argument that “[d]emocracy isn’t only about casting votes; it’s about building a democratic infrastructure.” This burgeoning relationship helps us better understand the dynamics behind what Varol calls “institutional entrenchment.” In particular, it might suggest that institutional entrenchment is the product of a shared counter-majoritarian interest in curbing any rising electoral tide of political Islam.
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Weekday News Wrap: Thursday, September 27, 2012

by Jessica Dorsey

HILJ Symposium: A Response to Ozan Varol

by David Landau

[David Landau is an Assistant Professor and Associate Dean for International Programs at Florida State University.]

This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below.

Professor Varol’s article “The Democratic Coup d’Etat” is an important piece of work and a key contribution to the newest wave of literature on democratic transitions. In addition, the piece is nicely crafted and carefully researched — both Professor Varol’s theoretical foundation and his case studies are persuasive. Professor Varol rightly points out that the role of the military during democratic transitions is not uniformly negative, but in fact is complex, and uses a simple assumption, which is that the military will generally try to increase or entrench its own power during transitions, to explain military behavior during transitions. Finally, he presents a series of case studies across both time and place which would otherwise appear to have little in common (Turkey in 1960, Portugal in 1974, and Egypt today) to show that his assumption about military behavior seems to hold broadly. My comments here are not a critique of his central thesis, which I basically share, but rather build off of two of the major points in the piece.

A first key finding is that “coups” are hard events to classify – contrary to conventional usage, they do not always have antidemocratic intent or effects. As Professor Varol shows, sometimes militaries engage in “coups” precisely in order to put in place or restore a democratic order. This raises a broader point: our vocabulary about democratic transitions remains pretty crude. Revolutions, as Richard Albert has argued in recent work, are not uniform events, but often have little in common; the same seems true of events we call “coups.” At the same time, these are loaded terms: to call something a coup is universally to condemn it. The term does not get thrown around in a neutral way, but is used by opponents to classify an event to which they are hostile. Meanwhile, supporters avoid the label like the plague. This is particularly true in regions, like Latin America, with long and largely (but not entirely) negative experiences with military involvement in politics.

A recent example occurred in Honduras, where both sides following the removal of President Zelaya in 2010, as well as international institutions like the OAS, were obsessed with a fight over how to classify the event, even though there was agreement about most of the relevant facts. Supporters of Zelaya argued that the event was a classic coup because the military had taken Zelaya away, flying him to Costa Rica, without any legal authority. The proponents of the removal, in contrast, argued that it was a congressionally ratified action against a dangerous, undemocratic president. The sheer amount of energy put into the label suggests that it is obscuring rather than illuminating important questions. And I am uncertain whether adding the label “democratic coup” to the vocabulary does much to clarify things. Opponents of Zelaya would characterize the removal as a “democratic coup,” if a coup at all, because it had the effect of ousting a president who they argue was on a path to dictatorship and replacing him with another civilian regime that did not have such aims. Supporters of course would argue that it was undemocratic because it removed a democratically-elected president who was governing according to the popular will.
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HILJ Symposium: Can There Be a Democratic Coup d’Etat?

by Joel Colon-Rios

[Joel Colón-Ríos, Senior Lecturer at Victoria University of Wellington, Faculty of Law, responds to Ozan Varol, The Democratic Coup d’Etat.]

This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts from this series can be found in the related posts below.

Ozan Varol has written an important article. In arguing that some military coups may not only have democratic features but that they may also result in the adoption of democratic constitutions, Varol invites us to reconsider two of the most persisting questions in contemporary constitutional theory. First, what makes a legal revolution (understood in Kelsenian terms, that is, as the creation of a new constitution in violation of the rules of change of a previous constitutional order [see Hans Kelsen, General Theory of Law and State 116-118 (1949)]) democratic? Second, what makes a constitution democratic? Even though mostly engaging in a discussion about legal revolutions, about military coups that result in important structural changes (i.e. the transformation of authoritarian or totalitarian regimes into democratic ones), Varol seems to be examining only the latter of these questions. In fact, he suggests that he is not interested in looking at the “process by which the coup takes place” (the legal revolution), but at the democratic character of the “resulting change” (the constitution it produces) (p. 298).

For the purposes of his article, Varol operates under Samuel Huntington’s definition of democracy: “a regime in which political leaders are selected through free and fair elections”. (p. 305). Varol does not engage in an open defence of this (low-intensity) conception of democracy, but uses it to determine whether a military coup can be categorized as democratic. Briefly put, if a military, with the support of the population, topples an authoritarian or totalitarian regime, facilitates free and fair elections within a short span of time, and transfers power to the democratically elected leaders, we have a democratic coup. (p. 300). In this short note, I would like to look at ‘democratic coups’ from a strong conception of democracy. In so doing, my aim is not to put forward a different conception of ‘democratic coups’, but to show that the questions posed above are interrelated in important ways; they are, put shortly, questions about the democratic legitimacy of a constitutional regime. If we look at these two questions together, we still might be able to talk about ‘democratic coups’, but in a much more restricted way that Varol’s approach suggests.
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HILJ Symposium: The Democratic Coup d’Etat

by Ozan Varol

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.]

This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below.

This article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy.

This article, which draws on fieldwork that I conducted in Egypt and Turkey in 2011, challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.

Following a democratic coup, the military temporarily governs the nation as part of an interim government until democratic elections take place. Throughout the democratic-transition process, the military behaves as a self-interested actor and entrenches, or attempts to entrench, its policy preferences into the new constitution drafted during the transition. Constitutional entrenchment may occur in three ways: procedural, substantive, and institutional. The article uses three comparative case studies to illustrate the democratic-coup phenomenon and the constitutional-entrenchment thesis: (1) the 1960 military coup in Turkey; (2) the 1974 military coup in Portugal; and (3) the 2011 military coup in Egypt.

Speaking of Drone Technology

by Deborah Pearlstein

While it’s difficult at best to evaluate the truth of Iran’s claims about its weapons development, this latest story struck me as both plausible and relevant to the ongoing debate about international law rules governing targeted drone strikes.

“Iranian military leaders gave details of a new long-range drone and test fired four anti-ship missiles Tuesday in a prelude to upcoming naval war games planned in an apparent response to U.S.-led warship drills in the Persian Gulf. The show of Iranian military readiness and its latest tool – a domestically made drone capable of reaching Israel and most of the Middle East…. On Tuesday, Hajizadeh described the new drone as a key strategic additional to Iran’s military capabilities with the ability to carry out reconnaissance missions or be armed with “bombs and missiles.” Hajizadeh, who heads the Guard’s aerospace division, said the Shahed-129, or Witness-129, has a range of 2,000 kilometers (1,250 miles). That covers much of the Middle East including Israel and nearly doubles the range of previous drones produced by Iranian technicians, who have often relied on reverse engineering military hardware with the country under Western embargoes.”

Weekday News Wrap: Wednesday, September 26, 2012

by Jessica Dorsey

Text of President Obama’s UN Speech

by Kenneth Anderson

The “prepared for delivery” text of President Obama’s remarks at the UN today is available at the National Journal (released to press last night, it doesn’t seem to have been posted yet to WhiteHouse.gov).  Full text below the fold.

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Palestine and the ICC: Some Notes on Why It Is Not a Closed Chapter

by Chantal Meloni

[Dr. Chantal Meloni works at the University of Milan and is a von Humboldt scholar in Berlin. She is the co-editor of Is there a Court for Gaza?, T.M.C. Asser 2012)]

The question that many scholars are dealing with in the past months, following the 3 April 2012 update by the Office of the Prosecutor (OTP), is whether the Palestine-ICC chapter should be regarded as closed. In this short analysis I intend to delineate why, in my opinion, the Palestine-ICC chapter is far from over.

The issue is of particular relevance in these very days for two reasons: as further explained below, over the next weeks both the UN General Assembly and the ICC Assembly of States Parties will have to deal (much depending on the choices of the Palestinian Authority) with the question of Palestine, which will ultimately have an impact on the possible opening of the investigation before the ICC.

The starting point is that the 3 April 2012 update/memorandum/statement (as it has been variously called) by the OTP on the situation in Palestine is in fact a decision. This means that the preliminary examination on the situation is closed, as are the preliminary examinations of the situations of Iraq and Venezuela, which are indeed listed on the same ICC web page under the link “decision not to proceed” (which, by the way, is not the appropriate expression, since the decision not to proceed only comes at the end of the investigation stage, thus these cases should correctly be defined “decisions not to investigate”).

According to internal OTP sources, the ambiguity contained in the “update”’s two pages and its deceptive title, was apparent to its authors. The final document – which was apparently issued in a rush notwithstanding 39 months of preliminary examination – was the result of diverging and irreconcilable positions inside the OTP, which allegedly led to the deletion of several arguments and the associated reasoning. I will refrain from criticizing again the poor content of these two pages, since other scholars have already well done it: see, among the others, the comments by Michael Kearney, and William Schabas.

Irrespective of its merits, pursuant to article 15(6) of the Rome Statute, relevant actors, such as inter alia the victims’ representatives, who delivered information to the OTP and communicated with the office during the preliminary examination, should have been notified of the decision. The OTP alleges to have done so, and that more than 300 notifications were sent out, but apparently organizations like the PCHR, which represents hundreds of Gaza victims and provided information and documentation to the OTP, have not received any notification.

Apart from these preliminary observations, some more substantial questions arise from the procedure which was adopted by the then Prosecutor – Luis Moreno Ocampo – to deal with the Palestine situation. These are more serious questions that go beyond the case at hand and touch upon the extent of the discretional powers of the Prosecutor and the judicial remedies provided before the ICC. Some of these questions are outlined below.
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Weekday News Wrap: Tuesday, September 25, 2012

by Jessica Dorsey

Why Do Progressives Ignore MEK Attacks on Iranian Scientists?

by Kevin Jon Heller

Two posts today by ostensibly progressive bloggers claim that MEK has not been involved in a terrorist attack in years.  Joshua Keating at FP:

The idea that a group blamed for the killing of six Americans in the 1970s, as well as dozens of deadly terrorist bombings against Iranian targets afte,r that is “the largest peaceful, secular, pro-democratic Iranian dissident group” — as its advertising boasts — doesn’t pass the laugh test. But it’s also true that the group, despite its creepy cultlike behavior, hasn’t carried out a terrorist attack in years.

And Spencer Ackerman at Wired (the source, not coincidentally, of Keating’s claim):

For over a decade, the MEK carried out bombings and hijackings on regime targets inside and outside Iran, including an audacious April 1992 coordinated raid on 13 Iranian diplomatic facilities around the world. The State Department listed them as a Foreign Terrorist Organization in 1997. But it’s been years since the MEK attempted a terrorist attack.

Neither post is even remotely sympathetic to the MEK, which makes their failure to even mention allegations that the MEK has been killing Iranian nuclear scientists particularly baffling.  It’s not like those allegations come solely from Iran; they have been confirmed by US intelligence officials, as NBC reported earlier this year.  Perhaps Keating and Ackerman do not believe the US officials.  Or perhaps they believe them but do not consider killing Iranian nuclear scientists to be acts of terrorism.  (They are, as I’ve explained before.)  If so, they should tell us.

Pretending that the allegations do not exist is unacceptable.

Leading Issues at UN General Assembly Opening This Week

by Kenneth Anderson

With UN meetings underway, here are a couple of links discussing leading issues on the table.  Everyone agrees that Syria leads the list, but pretty much everyone also agrees that it leads the list of things unlikely to be resolved or pushed materially to a resolution.  Neal MacFarquhar, the NYT UN correspondent, puts it this way in today’s Times, quoting SG Ban:

“The deteriorating situation in Syria will be the foremost on our minds,” Ban Ki-moon, the United Nations secretary general, said at a news conference last week outlining the priorities of the main session and some 50 side meetings. “It is really troubling that this situation is continuing without any immediate end to this crisis.”  Attention is one thing, however, and progress something else entirely.

Despite at least three high-level meetings on Syria, and countless other talks, not to mention day after day of speeches from presidents, kings and other potentates, no broad new initiatives are expected. “Everybody will think of Syria, everybody will speak of Syria, especially in the speeches to the General Assembly, but I don’t see anything substantial on Syria coming out of the meetings,” said one veteran Western diplomat, speaking anonymously under his ministry’s rules.

UNDispatch has an article on the “5 Stories to Watch” during the UN meetings [link doesn’t seem to work, but I will try and get it fixed later].  They are:

  • Syria
  • Crisis in the Sahel
  • US Election
  • Iran, Israel, and Nuclear Drama
  • Sustainable Development Goals

A journalist covering the meetings for a Japanese newspaper called to ask me if I thought that what MacFarquhar calls President Obama’s “drive by” trip to address the UN is a diss on the UN.  I told him I thought no one in the world actually took it as a diss (even if they said some dissed-sounding things to the press) but just the reality of what happens in US presidential election years.  There’s little if any upside in it for any sitting president, and really only downside, particularly if there’s anything that might be spun by the opposition in any direction.  It’s hard if not impossible for a US president not to show up, of course, but in electoral terms, there’s only downside in actually saying anything.

(I’d be curious if anyone has a different list; feel free to put yours in the comments.)

Weekday News Wrap: Monday, September 24, 2012

by Jessica Dorsey

US-UN Relations Discussion at the Heritage Foundation

by Kenneth Anderson

After a blogging hiatus over the summer due to some family medical issues – all happily resolved – I am moving back to posting on a regular basis. I’ve missed posting and hanging out with the OJ community online.  I’ve been only fitfully been following posts here, or for that matter most of the global news, and I’ve decided not to try and go back and catch up or join in past discussions, but just go forward from here.  I do plan to start posting more frequently on international economic law issues, including the Eurozone crisis and such things, as well as greater attention to international organization issues, the UN, and global governance issues generally.

Meanwhile – though I would ordinarily leave this to the weekly events announcement –  I wanted to alert readers that the Heritage Foundation has been kind enough to invite me to talk about my book, released back in May, on US-UN relations – Living with the UN: American Responsibilities and International Order.  For complicated scheduling reasons, along with a desire to do this event during the annual September opening of the UN General Assembly session, the discussion will be held this upcoming Wednesday, September 26, 12 noon, at the Heritage Foundation in downtown DC.  Here’s a link to the event; open to the public; requires RSVP either online or by phone.

It is Yom Kippur that day, so I realize with apologies that some of the folks most vital to this topic will be missing, but there will be video posted at Heritage at some point soon after the event.  Good news is that the Hoover Institution, which published the book, is co-hosting, and is making complimentary copies of the book available at the event, which I’ll be happy to sign.  And finally my thanks to Heritage Foundation senior fellow Brett Schaefer, who will host and moderate the event.

Upcoming Events: September 23, 2012

by An Hertogen

Upcoming Events

  • Fordham will organize a debate entitled Executive Power and Civil Liberties: Debating Obama’s Targeted Killing Program on September 24, 2012 at 6pm, between Martin S. Flaherty and Jack Goldsmith, and moderated by William M. Treanor. Registration is requested.
  • The Florida Children and Youth Cabinet Human Trafficking Summit will be hosted in Tallahassee, Florida on September 24, 2012. The summit is bringing together law enforcement and professionals from a number of practice areas. The summit will be live broadcast for those who cannot attend, and there will be simultaneous Twitter and Facebook feeds so that viewers can live stream questions to our panelists and have them answered in real time.
  • The University of Luxembourg in collaboration with the European Investment Bank kindly invite you to the symposium on IAMs and Public Sector Accountability, on September 25, 2012 at the University of Luxembourg – Campus Kirchberg. Registration is free and is by e-mail at fdef-colloques [at] uni [dot] lu.
  • The Grotius Centre for International Legal Studies with the support of the Open Society Justice Initiative and the MacArthur Foundation is organizing a conference on September 26-27, 2012 on the topic of “The Law and Practice of the International Criminal Court: Achievements, Impact and Challenges”. The conference will take place at the Peace Palace, The Hague, The Netherlands. More information and registration can be found here.
  • The British Institute of International and Comparative Law (BIICL) and the Law Society of Northern Ireland will commemorate the 30th anniversary of the opening for signature of the United Nations Convention on the Law of the Sea (“UNCLOS”) with a conference in Belfast, Ireland on November 22-23, 2012. More information and registration is here.

Calls for Papers

  • The Melbourne Journal of International Law is inviting submissions for its 14th volume. The deadline for the first issue, to be published in June 2013, is January 31, 2013.
  • The Universidad Nacional Autónoma de México has launched the Latin American Journal of International Trade Law, and is calling for submissions for its first issue, to be published in early February 2013. As it will be a bilingual journal, final manuscripts would need to be submitted by mid-November to allow time for the translation process. Further information, including on style, length and areas covered by the Journal can be found here.
  • The European Society of International Law is calling for papers for its 5th Research Forum on the topic of “International Law as a Profession“. The forum will take place in Amsterdam on May 23-25, 2013. The deadline for the submission of abstracts or panel proposals is November 15, 2012.
  • The Refugee Law Initiative (RLI) of the Human Rights Consortium at the School of Advanced Studies of the University of London invites submissions to its Working Paper Series. Submissions are accepted on a rolling basis. For more information, please contact ruvi [dot] ziegler [at] law [dot] ox [dot] ac [dot] uk.
  • The Graduate School of Government and European Studies will host a three-day conference from January 17-19, 2013, in Bled, Slovenia entitled the GLOTHRO Workshop on the Direct Human Rights Obligations of Corporations in International Law. The call for papers can be found here. Interested applicants should send a 200 word abstract and a CV in narrative form by October 30, 2012 to jernej [dot] letnar [at] fds [dot] si. Authors will be notified of acceptance by November 10, 2012. With questions, email jernej [dot] letnar [at] fds [dot] si.

If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Weekend Roundup: September 15-21, 2012

by An Hertogen

This week on Opinio Juris, we posted Harold Koh’s speech on international law in cyberspace, delivered earlier this week, as part of our efforts to make important international law speeches more readily available.

The decision by the Obama administration to requalify the tragic events in Libya on September 11 as a terrorist attack rather than a spontaneous reaction provides a further basis, according to Julian Ku, for the legality of any US retaliation using armed force, including on the basis of the UAMF.

Julian also followed up on last week’s post on articles 22 and 29 of the Vienna Convention of Diplomatic Relations, which confirms the inviolability of embassy premisses and of the person of the diplomatic agent. This time the issue arose in China where protesters attacked the car of US ambassador Gary Locke and “egged” the Japanese embassy. In further posts, Julian addressed the controversy over the Senkaku/Diaoyu islands that triggered the egging incident. He speculated that Japan is probably not interested in bringing the sovereignty dispute before the ICJ because it already possesses the disputed islands. He pointed out how the US, despite its official stance of neutrality, may still be dragged into the dispute based on article V of the US-Japan Treaty of Mutual Cooperation and Security which applies to any territory under the administration of Japan.

Kevin Jon Heller reported on the trial of Buzeid Dorda, a senior intelligence officer in the Gaddhafi regime, which has been suspended multiple times now after constitutionality challenges by the defence based on due process violations by the prosecution. Kevin argued that this could give support for the ICC Pre-Trial Chamber to reject Libya’s admissibility challenge against Saif, because his domestic case has seen more systematic due process violations.

Kevin was critical of the Obama administration’s decision to no longer list the MEK, aka the People’s Mujahideen Organization of Iran, as a terrorist organisation, noting that the group was found to be involved in plots to assassinate Iranian nuclear scientists only recently.

Peter Spiro pointed to the ground-breaking creation of three privatized cities in Honduras, and Robyn Curnow contributed a guest post on the Pussy Riot sentencing, in which she shone a light on how the charge of hooliganism may have increased the appeal of the case in the West due to the different connotations of this term in different jurisdictions.

Finally, as every week, we posted a listing of upcoming events and our weekday news wrap.

Have a nice weekend!

A Common Prayer: Religious Sensibilities and the Sentencing of Pussy Riot

by Robyn Curnow

[Robyn Curnow is a graduate of the University of Melbourne and the University of Queensland. She works as a lawyer in Melbourne.]

Reactions to the prosecution and sentencing of three members of Pussy Riot in August this year have revealed sharp disparities in the ways different countries’ legal systems protect peoples’ religious sensibilities. What they have also exposed is a spectrum of tolerance across national jurisdictions for criminal laws designed to preserve public order.

Granted, the level of unrest triggered by Pussy Riot has been relatively contained to date: vandalism of various sites in Moscow and a wave of civil litigation against Pussy Riot, including a claim by a Novosibirsk woman seeking damages for “deep moral suffering” after viewing footage of the performance by the group in the Christ the Saviour Cathedral (several thousand kilometres away in Moscow). And it is certainly worth questioning whether the performance itself would have gained as much exposure as it did in Western media had the official reaction been a fine or warning instead of a criminal prosecution. Pyotr Verzilov, the husband of one of the defendants, provided a partial answer to this question when he told RIA Novosti on 22 August: “…the Pussy Riot story and the court case is very easy to understand for the West. Pussy Riot is basically a machine placed inside the media.”

Indeed, while many commentators have questioned the severity of the sentence imposed by the Khamovniki District Court on 17 August, few have grappled with the offence as it was characterised by the prosecution or analysed the evidence presented to support it. The reason for this is understandable: not only is the footage of the offending conduct barely comprehensible, but the particulars of the charge are not accessible to the mainstream English speaking media. So, because (or perhaps in spite) of the fact that few legal commentators know how the prosecution case was put, the most interesting questions have not yet been asked.

One person started asking before the sentence was passed. In her article “The Pussy Riot Act” (The St Petersburg Times on 8 August 2012), Michele A. Berdy provided a translation of the indictment for non-Russian speakers, as well as some useful observations about the act of “desecration”: “…it was the worst of the pre-revolutionary Russian religious crimes and carried the death penalty for centuries.” Berdy also translated the particulars: “hooliganism, that is, a gross violation of public order expressing a clear disrespect for society, committed on the grounds of religious hatred or enmity or hate against a particular social group by a group of persons by prior agreement.”

This means that the charge was framed contrary to article 213.2 of the Criminal Code of the Russian Federation. The offence provision, which appears in Section IX, entitled ‘Crimes Against Public Security and Public Order’, may be translated as follows:

  • a gross violation of the public order expressing a clear disrespect for society
  • with the use of weapons or articles used as weapons
  • motivated by political, ideological, racial, national or religious hatred or enmity, or for motives of hatred or enmity in relation to a particular social group.

Prior to its amendment in 2003, the offence provision required the conduct to be “accompanied by violence against citizens or the threat thereof, or the destruction or threat of destruction of property of another” (Law and Legal System of the Russian Federation, 2009, p 586). The current version of the law, however, appears to characterise the second and third elements as alternatives.

Nevertheless, the absence of weapons, or articles used as weapons, by the defendants in this case appears to bring their conduct within the category of “petty hooliganism” or “Disorderly Conduct” under Article 20.1 of the Code of Administrative Offences of the Russian Federation. This alternative was canvassed by Vladimir Lukin, Russia’s Human Rights Commissioner (RIA Novosti, 23 August 2012) when he described the actions of the defendants as a “serious misdemeanour”, rather than a crime. Article 20.1 provides for the imposition of a fine or an administrative arrest for a period up to 15 days for “violation of public order in the form of open disrespect of the public accompanied by foul language in public places, abusive pestering of people or destruction or damage caused to other people’s property.”

It is possible that the “serious misdemeanour” alternative was considered by the parties in this case, but ultimately the indictment alleged an aggravated form of hooliganism, contrary to article 213.2 of the Criminal Code because – according to the translation of the indictment by Berdy – it was “committed by a group of persons in by prior agreement.” This increased the maximum penalty to 7 years imprisonment. To date, the most notorious breach of a similar provision was the illegal landing, in 1987, of a Cessna 172 in Red Square by 19 year old German national Mathias Rust, for which he was sentenced to four years’ imprisonment.

Berdy has also reviewed documents, described as witness testimony, which tell how the conduct was “unbefitting, and in fact violated all imaginable and unimaginable, commonly accepted rules of behaviour in a church. They put on clothing that clearly and obviously contradicted church rules. Then they started to satanically jerk around, jump, run, kick their legs up, twirl their heads while they shouted very insulting, blasphemous words.” According to Berdy’s translation, this led to a “violation of the feelings and faith of many Orthodox Christians and a defilement of the spiritual basis of the state.”

The statements by the Pussy Riot members in their defence focussed on two points: first, their lack of intention to cause harm, in the form of subjective feelings of hurt and insult among the worshippers present in the cathedral, and second that their motivations were political rather than religious. According to one of the statements read out by the defendants’ lawyers during the proceedings, the object of the protest was the support of the Orthodox Church’s Patriarch Kirill for President Putin (as opposed to the church itself).

In other words, the defendants were not motivated by religious hatred, but rather “a desire to persuade church leaders not to meddle in politics.” With this statement, the defendants blended the religious and political so thoroughly that the distinction between them all but disappeared – which seems to be exactly the point they say they were trying to make.

By contrast, the prosecution stressed the religious significance of the performance: “They set themselves off against the Orthodox world and sought to…

U.S. to Delist “Good” Terrorist Group

by Kevin Jon Heller

Just in case you are not yet convinced that the Obama administration’s counterterrorism policies are actually worse than the Bush administration’s:

The officials said U.S. Secretary of State Hillary Clinton had made the decision to remove MEK from the list, and that it was expected to be formally announced in coming days.

The State Department said that Clinton sent a classified communication to Congress on Friday regarding the future status of the MEK, part of the formal notification process that would accompany removal from the terrorism list.

[snip]

The U.S. decision comes after years of intense lobbying by the MEK, which had seen many of its members stranded in Iraq even as the group fell out of Baghdad’s favour after Saddam’s downfall.

The group marshalled the support of dozens of members of Congress as well as notable political, government and media figures.

[snip]

The group, also known as the People’s Mujahideen Organization of Iran, calls for the overthrow of Iran’s clerical leaders and fought alongside Saddam’s forces in the Iran-Iraq war in the 1980s. It also led a guerrilla campaign against the U.S.-backed Shah of Iran during the 1970s, including attacks on American targets.

Critics of the group have accused it of maintaining cult-like discipline and demanding absolute loyalty to its Paris-based top leadership.

The United States added the MEK to its list of foreign terrorist organizations in 1997. But the group has since said it renounced violence and mounted a vigorous legal and public relations campaign to have the designation dropped.

Public figures who have endorsed the MEK’s campaign included former CIA directors R. James Woolsey and Porter Goss, former Homeland Security Secretary Tom Ridge, former FBI Director Louis Freeh, and Mitchell Reiss, a former State Department official who is a top foreign policy adviser to Republican presidential candidate Mitt Romney.

Prominent Democratic Party figures who have supported the MEK have included former Pennsylvania and Vermont Governors Ed Rendell and Howard Dean. People familiar with its activities said that the MEK had paid generous fees to some of the notables who made speeches in support of its de-listing.

The MEK might have said it has renounced violence, but just this year the U.S. government claimed that the group was working with Israel to assassinate Iranian nuclear scientists.  I guess, as Glenn Greenwald has so often pointed out, the use of violence to spread terror among civilians in order to influence a government qualifies as terrorism only when the U.S. likes the government in question.  Terrorizing civilians in order to overthrow a government that the U.S. doesn’t like is simply good old-fashioned diplomacy.

A couple of other notes…

Weekday News Wrap: Friday, September 21, 2012

by Jessica Dorsey

Is the U.S. Obligated to Defend Japan’s Senkaku Islands Against China? Probably

by Julian Ku

As things continue to get ugly between China and Japan over the Senkaku/Diaoyu Islands, the U.S. has tried to stay out of the way.  Still, although the U.S. has tried to stay neutral on the territorial dispute, it appears the U.S. is obligated by treaty to defend any incursion by China into the Senkaku/Diaoyu. From Article V of the U.S.-Japan Treaty of Mutual Cooperation and Security:

Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.

The Senkaku/Diaoyu Islands are plainly under the administration of Japan, even if Japan does not have sovereignty over the islands.  I don’t know exactly why this “administration of Japan” language is used, nor why it is one-sided (Japan has no obligation to assist the U.S. if U.S. territory is attacked). In the U.S. -Philippines Defense treaty, the area covered by the treaty is “the metropolitan territory of either of the Parties.”  The Korea Treaty does have similar language “administrative control” language, although I am assuming it does so in order to exclude North Korea.

So the U.S. is basically on the hook for a defense of the Senkaku/Diaoyu. And what’s worse, Japan doesn’t have to help the U.S. at all in defending its own territory.  Looks like the Japanese got themselves a nice little deal here.

Why Won’t Japan Send the Senkaku/Diaoyu Islands Dispute to the ICJ?

by Julian Ku

The former owners of the Senkaku/Diaoyu Islands, whose sale to the Japanese government has unleashed hundreds of violent anti-Japan protests across China, are calling for Japan to send the dispute to the International Court of Justice.

China is very outspoken about its position over the Senkaku Islands, but Japan has its own position as well, and it needs to get that message out to the global community — and I think the best way is to turn to the ICJ,” Kurihara told The Japan Times. “Once both sides start stating their positions and listing their evidence of sovereignty, there is no end. . . . An objective decision should be made under international law, not by the people of both countries.

Nicholas Kristof has a post with a similar call for the ICJ, and with a sympathetic take on the strength of China’s legal claim to the Senkaku/Diaoyu. Thus far, I am not aware of any reports that Japan has welcomed the possibility of ICJ arbitration here, although I’ve heard that they have done so in the past.

It is curious that Japan has not called for the ICJ to settle this dispute, given it has done just that in its ongoing dispute with South Korea over the Dokdo Islands.  While it is true that Japan could not force China to agree to ICJ arbitration, a call for arbitration would put China on the defensive in the same way it has (sort of) put Korea on the defensive over the Dokdo.

The cynical explanation is probably the best one. Japan is more than happy to call for the ICJ when the other country is in possession of the disputed territory (e.g. Korea) but when they possess the territory, they have a different view on the merits of international adjudication. Hypocritical? Yes. Surprising? No.

“Unleash the Dogs of War” or at least Unleash the AUMF in Libya

by Julian Ku

The Obama Administration appears to have shifted its views on the nature of the September 11, 2012 attack on the U.S. consulate in Libya that resulted in the death of four Americans, including U.S. Ambassador Christopher Stevens.  Rather than blaming the attack on a “spontaneous” reaction to the offensive US film (which U.S. Ambassador to the U.N. Susan Rice seemed to argue on Sunday), the U.S. government is now calling this a “terrorist attack“.  Other news reports suggest the U.S. had intelligence warnings of an attack and the Libyan government is blaming Al Qaeda-affiliated groups.

If the U.S. government has credible intelligence that the attacks was carried out by Al Qaeda affiliated groups, President Obama can draw upon the September 11 Authorization for the Use of Military Force to respond to the attack with military force.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

I had earlier suggested that the President could do so anyway, as a retaliation for an attack on American soil and on U.S. diplomats. Others have pointed out that such a response might be further bolstered under the international law of self defence (UN Charter Article 51).  Given the widespread attacks on U.S. missions and embassies throughout the Middle East, it is worth keeping this authority in mind.  But if that authority was insufficient, an Al Qaeda link should (if established) offer an additional source of legal authority for U.S. military force in Libya.

To be sure, it might be unwise to use military force in this case, since Libya is (sort of) an ally of the U.S. in this case.  But it is worth noting that there seems to be ample constitutional legal authority for U.S. military retaliation for the Libya attack.

Weekday News Wrap: Thursday, September 20, 2012

by Jessica Dorsey

Another Example of Why We Need VCDR Article 22

by Julian Ku

Courtesy of Shanghaiist, a video of Chinese protesters (about the 1 minute mark) surrounding U.S. Ambassador Gary Locke’s car in Beijing. The protesters throw bottles, try to grab the car, and shout: “Down With American Imperialists!”  Boy, so much fun to be a U.S. diplomat these days.

Harold Koh on International Law in Cyberspace

by Chris Borgen

Yesterday, Harold Koh, the Legal Adviser of the U.S. State Department, spoke at the U.S. Cyber Command Inter-Agency Legal Conference on the applicability of international law to cyberspace and, particularly, cyberwar/ cyberconflict. For a couple of takes on the speech, see the Washington Post here and Defense News, here.

In our ongoing efforts to make full-text presentations of international legal relevance more easily accessible, we attach the text of Koh’s speech, as prepared for delivery.

INTERNATIONAL LAW IN CYBERSPACE

USCYBERCOM Inter-Agency Legal Conference
Ft. Meade, MD
September 18, 2012

Harold Hongju Koh [Legal Adviser, U.S. Department of State]

Thank you, Colonel Brown, for your kind invitation to speak here today at this very important conference on “the roles of cyber in national defense.” I have been an international lawyer for more than thirty years, a government lawyer practicing international law for more than a decade, and the State Department’s Legal Adviser for nearly 3 ½ years. While my daily workload covers many of the bread and butter issues of international law—diplomatic immunity, the law of the sea, international humanitarian law, treaty interpretation—like many of you, I find more and more of my time is spent grappling with the question of how international law applies in cyberspace.

Everyone here knows that cyberspace presents new opportunities and new challenges for the United States in every foreign policy realm, including national defense. But for international lawyers, it also presents cutting-edge issues of international law, which go to a very fundamental question: how do we apply old laws of war to new cyber-circumstances, staying faithful to enduring principles, while accounting for changing times and technologies?

Many, many international lawyers here in the U.S. Government and around the world have struggled with this question, so today I’d like to present an overview of how we in the U.S. Government have gone about meeting this challenge….

Weekday News Wrap: Wednesday, September 19, 2012

by Jessica Dorsey

Weekday News Wrap: Tuesday, September 18, 2012

by Jessica Dorsey

Libya’s Dorda Prosecution — and My Modified Due Process Thesis

by Kevin Jon Heller

A few weeks ago, I wrote a long post explaining the one way in which the absence of due process in a national prosecution could make a case admissible before the ICC.  The post drew a distinction between two different kinds of national prosecutions: (1) one that fails to satisfy international standards of due process; and (2) one that fails to satisfy national standards of due process.  I argued that the first kind of prosecution is never admissible before the ICC, because the failure to satisfy international due process makes the defendant easier to convict, which does not satisfy the “unwillingness” prong of Art. 17(2) of the Rome Statute.  But I pointed out that the second kind of prosecution could be admissible, because the government’s failure to comply with the state’s own legal requirements could lead the judiciary to suspend or terminate the prosecution — thereby making the defendant more difficult, not easier, to convict.

I offered that argument in the context of the OPCD’s report on Saif Gaddhafi, which catalogs numerous ways in which the new Libyan government’s treatment of Saif violates the state’s domestic criminal law.  In my view, that treatment renders Saif’s case admissible before the ICC, because it significantly increases the likelihood that a Libyan court will suspend or terminate Saif’s prosecution on due process grounds.  I received a number of critical comments on that claim, most of which argued that no Libyan court would ever have the temerity to enforce Libyan criminal procedure against the government if it meant “helping” Saif avoid conviction.  That may well be true — but consider what has happened in the prosecution of Buzeid Dorda, a senior intelligence official in the Gaddhafi government:

A Libyan judge suspended the trial of a senior Gaddafi-era intelligence official on Tuesday after his defense lawyer said the proceedings were unconstitutional.

Charges against Buzeid Dorda, arrested last September in Tripoli, include killing civilians, providing weapons to kill civilians, and conspiring to provoke civil war.

“The trial has been suspended until the Supreme Court looks at an appeal I raised that could deem the trial unconstitutional,” defense lawyer Dhao Al-Mansouri Awon said.

Pre-revolution laws governing emergency courts, called the People’s Court, were still in use despite being banned after the uprising which toppled Muammar Gaddafi last year, Awon said.

Under People’s Court laws, which the Gaddafi administration used to try opposition members and political prisoners, one or more people with no legal training could pass judgments without the need for a judge, jury or lawyers to be present in court.

“Even though the court itself was cancelled, the law governing it is still functioning and that would make the trials invalid,” Awon told Reuters.

Dorda had said in July he had been denied the right to meet privately with a lawyer and had been subjected to illegal interrogations during his 10 months in detention.

His trial, which began on June 5, has been adjourned several times for procedural reasons.

[snip]

On Sunday, Justice Minister Mohammed Al-Alagy told reporters that the trials of Gaddafi-era officials were “invalid” because the prosecutor general’s office was not following the necessary legal procedure and was also using People’s Court laws.

Under Libyan law, an Indictment Chamber reviews cases and then refers them to the appropriate court. But Alagy said prosecutors were bypassing this body and demanded they review their procedures and the legal rights of those held in custody.

This is the fifth time that Dorda’s trial has been suspended on the ground that prosecutors failed to comply with Libyan criminal procedure.  If Dorda was wanted by the ICC, I think the Pre-Trial Chamber would be well within its rights to hold, in light of the prosecutors’ actions, either that “[t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice” or that the proceedings “are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”  And if that is true, it seems clear that the Pre-Trial Chamber would also be within its rights to reject Libya’s admissibility challenge involving Saif on similar grounds —  prosecutors have far more systematically ignored Libyan criminal procedure in his case than in Dorda’s.

The Pre-Trial Chamber is set to hear argument on Libya’s admissibility challenge on October 8.  We will see what happens.

In Free Trade Move, Honduras Privatizes Three Cities, Extremely (A New Kind of Company Town?)

by Peter Spiro

Story here:

Investors can begin construction in six months on three privately run cities in Honduras that will have their own police, laws, government and tax systems now that the government has signed a memorandum of agreement approving the project. . . .

The “model cities” will have their own judiciary, laws, governments and police forces. They also will be empowered to sign international agreements on trade and investment and set their own immigration policy.

To make it even weirder, appeals from courts in the cities would be to Mauritius and then to the UK Privy Council (according to this earlier report).

This strikes me as the leading edge of a potentially huge development, in which private actors more formally get their own pieces of turf and the lines between sovereign entities further blur. This is by no means to necessarily to celebrate the development (science fiction suggests this dystopian destination). But it does deepen the challenge to received doctrine, and it will require legal innovation to situate the new, private city-state in the world of international law.

Weekday News Wrap: Monday, September 17, 2012

by Jessica Dorsey

Upcoming Events: September 16, 2012

by Jessica Dorsey

Upcoming Events

Calls for Papers

  • The deadline for the Society of International Economic Law (SIEL)/Cambridge University Press’ 2012 International Economic Law Essay competition is September 30, 2012. The SIEL and CUP award a prize for the best essay submitted on any topic in any field of international economic law. For clarification, essays with a focus on international commercial arbitration or EU law will not be considered for this Prize.
  • The Graduate School of Government and European Studies will host a three-day conference from January 17-19, 2013, in Bled, Slovenia entitled the GLOTHRO Workshop on the Direct Human Rights Obligations of Corporations in International Law. The call for papers can be found here. Interested applicants should send a 200 word abstract and a CV in narrative form by October 30, 2012 to jernej [dot] letnar [at] fds [dot] si. Authors will be notified of acceptance by November 10, 2012. With questions, email jernej [dot] letnar [at] fds [dot] si.
  • Transnational Legal Theory, a quarterly journal published by Hart Publishing, is now receiving submissions that engage with topics in transnational law, international law, transnational jurisprudence, conflict of laws, comparative legal studies, global governance and constitutionalism, and global administrative law. The Journal welcomes thoughtful and innovative scholarship, also from non-lawyers (as long as the submissions address and engage with themes of transnational legal theory) as well as book reviews and suggestions for review. Submissions should be made to tlteditorial [at] hartpub [dot] co [dot] uk. All submissions undergo anonymous peer review.

Does “Egging” an Embassy Violate VCDR Article 22?

by Julian Ku

While U.S. embassies around the Middle East continue to face angry mobs, the Japanese Embassy in Beijing also faced its own angry (but less violent) mob today.  As China blogger Sinostand reports, hundreds of Chinese citizens threw eggs and rocks at the Japanese Embassy in protest at Japan’s actions to nationalize the disputed Diaoyu/Senkaku Islands in the East China Sea.  As you can see below, the Japanese Embassy will have some egg stains to clean up, but it looks like that (unlike, say, the Egyptian government), the Chinese government is at least trying to protect the mission.  I’m sure the Chinese government is benefiting from the surge in anti-Japanese nationalism, but they are at least still trying to control it.

cheap Zelnorm

Weekend Roundup: September 8 – 14, 2012

by An Hertogen

The attacks on US embassies in the Arab world did not escape our bloggers’ attention this week. Duncan Hollis posted about host states’ duties to protect diplomatic and consular premises, and questioned whether Libya and Egypt could be held responsible for the attacks. Julian Ku asked which responses to the death of ambassador Christopher Stevens would be legal under US constitutional and international law.  In another post, Julian referred to news reports that the US sent two navy destroyers, marines, investigators and intelligence personnel to Libya to find those responsible for the attack.

The anti-Muslim video that stoked the unrest prompted Peter Spiro to explore the boundaries of free speech. In a post that attracted many comments, he argued that the killing bolsters the case for banning hate speech. He also asked whether those opposed to banning hate speech are equally opposed to Google’s decision to block access to the offensive video in Libya and Egypt.

In other posts, Chris Borgen wrote about the case of Ramil Safarov, described in more detail in this post by his St John’s colleague Mark Movsesian. Chris also posted about the decision of the NYU Journal of International Law and Policy – one of Opinio Juris’ journal symposia partners – to become a peer-reviewed journal, with José E. Alvarez as managing editor.

Kevin Jon Heller referred us to Mark Kersten’s scoop that Libya obtained custody of Al-Senussi by allegedly paying Mauretania $200 million, more than the ICC’s yearly operating budget. Following news that Adnan Farhan Abdul Latif, the Guantanamo detainee who was passed away last week, had been cleared for release three years ago, Kevin predicted that “fifty years from now, Gitmo will be a the top of the list of things the Texas Board of Education wants banned from students’ history books”.

Duncan Hollis posted an abstract of the first chapter of his new book The Oxford Guide to Treaties. The entire chapter can now be downloaded from SSRN.

Finally, Mel O’Brien contributed a guest post about trafficking in women and girls discussed during the 52nd session of the Committee on the Elimination of the Discrimination Against Women.

As always, we also provided you with a listing of upcoming events and our daily compilations of international law news.

Have a nice weekend!

Libya Killings and Speech Labels: The First Amendment According to Google

by Peter Spiro

At risk of dipping back into this touchy subject, there’s this interesting development as reported in today’s NY Times: Google has blocked the film that has provoked embassy (and now KFC) attacks from youTube sites in Libya and Egypt:

Google said it decided to block the video in response to violence that killed four American diplomatic personnel in Libya. The company said its decision was unusual, made because of the exceptional circumstances. Its policy is to remove content only if it is hate speech, violating its terms of service, or if it is responding to valid court orders or government requests. And it said it had determined that under its own guidelines, the video was not hate speech.

Maybe the hate speech/offensive speech distinction can be elided by the smart folks in Google’s foreign ministry. If material is literally setting off global firestorms through its dissemination online, Google will strategically pull the plug. (You can bet, of course, that Google is consulting with official foreign ministries on this, in the way that diplomats do.)

Do people who have a problem with the hate speech ban have a problem with Google’s action here? Seems to me hard to argue with, at least as deployed in this targeted way, if it stops a lot of senseless violence and dangerous instability. Private actors, of course, aren’t subject to the First Amendment (or parallel international law constraints). Of course there is another side of the coin, as when internet companies more clearly do the bidding of anti-democratic authorities.

Weekday News Wrap: Friday, September 14, 2012

by Jessica Dorsey

Weekday News Wrap: Thursday, September 13, 2012

by Jessica Dorsey

  • Egyptian President Mohamed Mursi has begun his first European tour as president and will visit Brussels to discuss economic support, agriculture, job creation and investment in the Egyptian private sector, among other topics.
  • Despite President Mursi’s call for calm, dozens are still protesting the film “Innocence of Muslims” outside the US Embassy in Cairo. Turmoil has reportedly spread to the US Embassy in Yemen and the Swiss Embassy in Tehran, which represents US interests in Iran.
  • President Obama has vowed to “bring to justice” those responsible for the attacks on the US mission in Benghazi that killed an ambassador and three other Americans. Julian Ku blogged about the dispatching of US military forces to “hunt down” those responsible.
  • The United Nations General Assembly has adopted a resolution on human security, which was welcomed by Secretary General Ban Ki-Moon.
  • China claims that the rising tensions with Japan over disputed islands are likely to hurt trade between the two countries.
  • Foreign Policy offers an analysis of why Israeli President Benjamin Netanyahu and US President Barack Obama just cannot get along.
  • EU Commissioner for Climate Change, Connie Hedegaard, and various Member States’ officials have denied news reports that the EU is considering suspending its controversial extension of its Emissions Trading Scheme to international aviation to or from the EU.

U.S. Dispatches Military to “Hunt” Militants in Libya

by Julian Ku

Here it comes: President Obama is exercising his Commander-in-Chief powers, a la Durand v. Hollins:

The U.S. responded to the assault by dispatching two Navy destroyers, dozens of Marines, federal investigators and intelligence assets to Libya to protect Americans and hunt the suspected religious extremists who carried out the attack late Tuesday. U.S. officials described the attack that killed Ambassador Christopher Stevens as complex and possibly premeditated.

The assault, along with a protest at the American embassy in Cairo, created a crisis atmosphere in Washington just as the presidential campaign is hitting its stretch run and fueled a harsh exchange between President Barack Obama and Republican Mitt Romney.

Mr. Obama said the U.S. will work with the Libyan government to bring attackers to justice, but he and other officials didn’t rule out a unilateral U.S. strike. “Make no mistake, justice will be done,” the president said.

Emphasis added.

Without knowing the facts on the ground, it is hard to say whether it would be appropriate or legal for the U.S. military to launch a unilateral military strike.  But President Obama seems to ready to launch such an attack.

US Envoy Killing Bolsters Case for Hate Speech Ban

by Peter Spiro

The deplorable killing of Chris Stevens in Libya suggests a foreign relations law rationale for banning hate speech.

Remember, the Benghazi protests were prompted by this film depicting the prophet Mohammed in not very flattering terms. The equation from the protesters at the US consulate in Benghazi: this film was produced by an American; we will hold America responsible for it.

The result: national foreign relations are seriously compromised by the irresponsible act of an individual. For structural and functional reasons, that doesn’t make a lot of sense. It’s the rationale behind the Neutrality and Logan Acts. A similar rationale undergirds the ouster of states from foreign relations – along the lines of Hamilton’s dictum in Federalist No. 80 that “the peace of the Whole should not be left to the disposal of the Part.”

And the First Amendment? Call me a relativist. We have some pretty good empirical data from the scores of other countries that ban hate speech (in part through signing on to article 20 of the International Covenant on Civil and Political Rights) that a permissive approach to hate speech is not a prerequisite to functioning democracy. On the contrary, our European friends would argue that democracy is better served by banning such material. Either way, our exceptionalism on this score doesn’t serve us very well.

This isn’t any sort of apology for the killing (especially ugly given Stevens’ dedication to the rebel effort against the Gaddafi regime). In the first instance, it’s a recognition of international realities: do we want to take hits like this so that films like that can be made? In the second, it’s a recognition of where international law is going on the issue: in a different direction than we are.

UPDATE: I appreciate the comments below as well as this thoughtful post by Mark Movsesian, and I’m persuaded by the drift. As Mark points out, the film is offensive speech, not hate speech, so the episode doesn’t supply an example in which US submission to article 20 would make a difference. In other words, this isn’t a case in which the US has deviated from IL. The episode does resonate, nonetheless, in the tradition of foreign relations law exceptionalism – in which we abandon our ordinary constitutional optic in the face of international imperatives (doctrinal manifestations of which are many).

I do stand by the Stanford Law Review article in which I argue that the Constitution should bend (and has bent) to international law, which Eugene Volokh takes a shot at here, even when it implicates the constriction of rights. The logic has changed, though. It’s not so much that it serves the national interest (as in the foreign relation law logic above). It’s more that international law is demonstrating resiliency in protecting rights, in something approaching a constitutional system. If we don’t like something about international law, we can work to change it (just as we work to change domestic legal systems). As we become more enmeshed in international law, the less capacity there is simply to opt out.

U.S. Ambassador to Libya is Killed; What Responses are Legal?

by Julian Ku

[I posted this originally at the same time as Duncan, so it is a bit repetitive, but I’ll leave its content basically as is].

Sad and startling news:  U.S. Ambassador to Libya Christopher Stevens was killed yesterday in a rocket attack on the U.S. Consulate in Benghazi.  This is an addition to another violent attack on the U.S. Embassy in Cairo.

Violent attacks on diplomatic compounds and officials, needless to say, are not only terrible but also plainly illegal under international customary and treaty law.  From the Vienna Convention on Diplomatic Relations:

Article 22
1. The premises of the mission shall be inviolable. The agents
of the receiving State may not enter them, except with the consent of
the head of the mission.
2. The receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.

Article 29
The person of a diplomatic agent shall be inviolable. He shall not
be liable to any form of arrest or detention. The receiving State shall
treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.

Plainly, both Egypt and Libya have massively failed to live up to their duties on these and other relevant provisions.  The question is: what legal responses could the U.S. take?

Under U.S. constitutional law, the President has long been understood to possess the authority to respond to attacks on U.S. citizens and government missions with the use of military force.  He can do this without first seeking the consent of Congress.  See Durand v. Hollins, 8 F. Cas. 111 (CCSDNY 1860).  In that case, a bottle was thrown at a U.S. diplomat in Nicaragua, and the court endorsed the legality of a “calculated retaliation after the fact” arguing that the nature of the response to such an attack rested with the discretion of the President.  (The U.S. Navy bombarded the town in retaliation).

Of course, the legality under international law today  of such a “calculated retaliation” is less clear.  Indeed, my guess is that the typical response would be for the U.S. to demand punishment of the perpetrators, reparations to the U.S. and perhaps to the families of those injured, and an assurance of non-repetition.  Failing such a response by Libya and/or Egypt, the U.S. could in theory try to bring the parties to the ICJ (but that didn’t accomplish a whole lot back in 1979 against Iran).  And of course it could threaten to retaliate against the Egyptian and Libyan governments.  It seems the best case for military force would be if the U.S. believed it was necessary to protect the safety of U.S. citizens and diplomats.

I doubt that there are any plans to use military force here, but I do think it is worth considering whether and how such a response would be appropriate and legal.

The Duty to Protect Diplomatic and Consular Premises

by Duncan Hollis

Amidst the memorials to 9/11 yesterday came more tragic news with mob attacks on the U.S. embassy in Cairo and the consulate in Benghazi, including the deaths of U.S. Ambassador J. Christopher Stevens and three other Americans.  My condolences go out to the victims’ families and the U.S. Foreign Service community, the Marines who guard them, as well as the local security and staff who accept the risk of working in places that are clear targets for violence.  Stevens was the first U.S. Ambassador killed on assignment since 1979, but it seems all too frequently we get stories of attacks on diplomatic or IO premises, from those in Syria last year, to the 2003 attacks on the UN Assistance Mission in Iraq to the 1998 bombings of the U.S. embassies in Nairobi and Dar es Salamm.  For my part, I will never forget walking the grounds of the U.S. Embassy in Nairobi several weeks after the bombing (before it was torn down), and witnessing first hand the horror perpetuated there.

For centuries, the international legal order has existed to regulate relations among States (and that remains true whatever one makes of its evolution to accommodate the regulation of non-State actors as well).  To allow “relations” among States, however, requires means and methods of inter-State communication, of which embassies and consulates are the most visible symbols.  As the ICJ put it in the case of US Diplomatic and Consular Staff in Tehran (paras 38-40):

[t]here is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies . . . [T]he institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means . . . [and] the inviolability of consular premises and archives, are similarly principles deep-rooted in international law…

Thus, violations of the diplomatic or consular mission premises like those that occurred yesterday are clearly unlawful under international law.  The more challenging question is whether Egypt or Libya can be held responsible for these attacks.  There are at least two ways this could occur:  (a) via the law of state responsiblity; or (b) via their treaty obligations.

NYU Journal of International Law and Politics Becomes a Peer-Reviewed Journal

by Chris Borgen

NYU’s Journal of International Law and Politics (JILP) has recently announced that it “is transforming from a purely student edited journal into a peer reviewed journal in which all leading articles will henceforth be selected with the assistance of leading academics in the field.” See the announcement here.

Why the change? The announcement explains:

Authors publishing in the new JILP will benefit from additional editorial input and our readers can expect high-quality scholarship in all areas of international law and politics.

This transformation was student-initiated. The JILP will continue to involve students in all respects but will involve legal scholars who are affiliated with NYU (either as members of the permanent faculty or in other capacities) in the selection and substantive editing of articles in their area of expertise. The new JILP will continue to publish student notes and book annotations. It will maintain its broad focus on all aspects of international law and seek the finest scholarship from both established authors as well as younger scholars.

The inaugural issue will have as its managing editor José E. Alvarez

While JILP will now use peer-review for all articles, it is clear that students will still be involved throughout the process (and as a former JILP Symposium Editor, I’m happy to hear this). The new submissions process will include both student and faculty involvement:

All manuscripts received will be evaluated by our Editor in Chief and the Faculty Managing Editor for that particular issue, by several senior articles and managing editors from its Editorial Board, and by one or two referees from the panel of peer reviewers listed on its mast head consisting of NYU faculty members and other affiliated faculty.

Student-run law journals in the U.S. often turn their law school’s faculty for guidance on whether or not to accept certain articles. What JILP is doing, though, is regularizing and institutionalizing this relationship, as well as placing the faculty in the role of substantive editors and putting a faculty member in charge of the whole process. Whether this is a harbinger of similar shifts by other journals remains to be seen…

Weekday News Wrap: Wednesday, September 12, 2012

by Jessica Dorsey

Dead Gitmo Detainee Cleared for Release Three Years Ago

by Kevin Jon Heller

Just another day in America’s own gulag:

A special Obama administration task force review found in 2009 that Latif, who had been held at Gitmo since early 2002 and had waged a long legal battle for his freedom, could be released, a conclusion that could only be reached by a unanimous vote of all U.S. intelligence agencies.

That finding was buttressed a year later when U.S. Judge Henry Kennedy ruled that the U.S. government’s initial evidence that Latif had links to al-Qaida and the Taliban was “unconvincing.”  Despite both findings, the Obama administration appealed the ruling —  because it did not want to return him to Yemen, a country it viewed as too unstable.

[snip]

Latif’s death is the ninth at Gitmo since the U.S. prison for terrorists opened in January 2002 and the third since last year. The case is now the subject of an investigation by the Naval Criminal Investigative Service. Military officials say that Latif, who had no serious medical problems, was found unconscious and unresponsive in his cell at Camp 5 on Saturday afternoon. After efforts to revive him failed, he was rushed to a hospital at the base and pronounced dead. An autopsy was conducted on Sunday, but the results have not yet been released.

David Remes, Latif’s attorney, has the money quote: “The only detainees who have been released from Gitmo in the last two years have been in caskets.”

Mark my words, fifty years from now, Gitmo will be a the top of the list of things the Texas Board of Education wants banned from students’ history books.

An Introduction to the Oxford Guide to Treaties

by Duncan Hollis

Here’s a quick follow-up to my book announcement last week.  With OUP’s kind permission, I’ve posted the Introduction to the Oxford Guide to Treaties on SSRN.  So, for those looking for a more detailed explanation of the book, its goals, and its methodology, feel free to download it there. Here’s the abstract:

From trade relations to greenhouse gasses, from shipwrecks to cybercrime, treaties structure the rights and obligations of states, international organizations, and individuals. For centuries, treaties have regulated relations among nation states. Today, they are the dominant source of international law. Thus, being adept with treaties and international agreements is an indispensable skill for anyone engaged in international relations, including international lawyers, diplomats, international organization officials, and representatives of non-governmental organizations.

This Introduction introduces readers to the Oxford Guide to Treaties, a volume that seeks to provide a comprehensive review of the rules and practices surrounding the making, interpretation, and operation of these instruments. Leading experts provide essays designed to introduce the law of treaties and offer practical insights into how treaties actually work. Foundational issues are covered, including what treaties are and when they should be used, alongside detailed analyses of treaty formation, application, interpretation, and exit. Special issues associated with treaties involving the European Union and other international organizations are also addressed. These scholarly treatments are complimented by a set of model treaty clauses. Real examples illustrate the approaches treaty-makers can take on topics such as entry into force, languages, reservations, and amendments. The Oxford Guide to Treaties thus provides an authoritative reference point for anyone involved in the creation or interpretation of treaties or other forms of international agreement.

Weekday News Wrap: Tuesday, September 11, 2012

by Jessica Dorsey

Libya Got Al-Senussi the Old-Fashioned Way: It Bought Him

by Kevin Jon Heller

Mark Kersten has the scoop at Justice in Conflict:

So why, then, did Mauritania do it or, perhaps more accurately, how did Libya convince Mauritania to change its tune?

Having reached out to various contacts to see whether anyone knew what had changed Mauritania’s mind, a number of individuals quickly responded that there was only one possible motivation: money. While certainly not far-fetched, I thought there must be something else to the story – economic cooperation, perhaps some oil concessions, or the development of stronger geopolitical ties. Turns out I was wrong and it had everything to do with money.

According to numerous sources, including Der Spiegel and the Libyan Herald, Libya paid 200 million US dollars in order to guarantee Senussi’s transfer. While some Libyan officials have denied that there was any direct transfer of cash, rumours persist that the money was transfered to Mauritania via an off-shore account.

Importantly, the buying the custody of a former Gaddafi regime official would be in line with recent practice. The extradition of former Libyan Prime Minister, Baghdadi Al-Mahmoudi, in June was guaranteed by a payment of “a sum of $100m and another $100m as an interest-free loan” to Tunisia. Interestingly, Libya’s Finance Minister, Hassan Zaglam, was on the plane that brought Senussi back to Libya. This fact has only fueled speculation that Libya paid Mauritania off. After all, it is certainly uncommon for Finance Ministers to be involved in extradition negotiations.

Great work by Mark.  What a bizarre and wasteful move by the Libyan government — as Mark notes, $200m is more than the ICC’s entire yearly operating budget.

Weekday News Wrap: Monday, September 10, 2012

by Jessica Dorsey

CEDAW Emphasises Its Concern over Trafficking in Women and Girls

by Melanie O'Brien

[Dr Melanie O’Brien is a Research Fellow at the ARC Centre of Excellence in Policing and Security, Griffith University, Brisbane, Australia. She attended the CEDAW session as a delegate of the American Society of International Law.]

The 52nd session of the Committee on the Elimination of the Discrimination Against Women (CEDAW) celebrated 30 years of the Convention on the Elimination of all forms of Discrimination Against Women (the Convention). During the session, CEDAW considered the state reports of the Bahamas, Bulgaria, Guyana, Indonesia, Jamaica, New Zealand, Mexico, and Samoa. The Committee addressed many issues including access to healthcare, access to justice, abortion, education, LGBT concerns, marital and divorce rights, migrant and domestic workers, minority groups (e.g. Roma; rural women), prostitution, and violence against women. However, two issues in particular were emphasised: participation of women in politics, and trafficking of women and girls. The former was the focus of the introductory event commemorating the 30th anniversary of the Convention, as well as considered in the state reporting. Trafficking in women and girls received attention through the state reporting, but was also the topic of a special event held on the final day of the public part of the session.

Trafficking is of serious concern to CEDAW, as nearly 80% of trafficking victims are women and girls. The majority of perpetrators are male. Sexual exploitation (79%) is by far the most commonly identified form of trafficking in persons, followed by forced labor (18%). [All statistics from the UNODC 2009 Global Report on Trafficking in Persons.] Due to the bias against women as victims, CEDAW identifies trafficking in persons (TIP) as a form of gender-based violence. TIP also amounts to organised crime and is a violation of human rights. CEDAW is at the forefront of combating TIP through Article 6 of the Convention, which requires States Parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women”. Through this, the Committee is keen to inform states and the UN on national law, implementation of national activities and plan, the existence of shelters for victims, measures to address root causes of TIP, numbers of prosecutions, and training/awareness raising of law enforcement personnel and the judiciary. CEDAW also interacts with civil society, through non-governmental and other organisations, to explore ways and means of helping states address TIP concerns. Continue Reading…

Movsesian on “Ax Murderers, Values, and International Law”

by Chris Borgen

My colleague Mark Movsesian has a post at the St. John’s Center for Law and Religion Forum concerning the case of Ramil Safarov. He begins:

At a NATO conference in Hungary in 2004, an Azeri officer, Ramil Safarov, murdered one of the other participants, an Armenian officer named Gurgen Margaryan. Actually, that doesn’t quite capture it. Safarov broke into Margaryan’s room, stabbed him while he was sleeping, then severed his neck with an ax. Safarov confessed to the crime; Hungary convicted him of murder and sentenced him to life imprisonment. Two weeks ago, Hungary extradited Safarov to Azerbaijan, which promptly pardoned him, promoted him, restored his back pay for his years in the Hungarian prison, and generally gave him a hero’s welcome.

He then asks “How can one begin to make sense of this incredible episode?” His answer touches on the tensions over Nagorno-Karabakh, conflicting  interpretations of the Council of Europe’s Convention on the Transfer of Sentenced Persons, and Hungary’s foreign policy.

I had not known about this surprising incident before hearing about it from Mark. His post is well worth the read.

Upcoming Events: September 9, 2012

by An Hertogen

Upcoming Events

  • The SHARES Research Project on Shared Responsibility in International Law at the Faculty of Law of the University of Amsterdam has launched its SHARES Lecture Series on topics related to shared responsibility. The complete schedule of the lectures for 2012-2013 is available here.
  • Fordham will organize a debate entitled Executive Power and Civil Liberties: Debating Obama’s Targeted Killing Program on September 24, 2012 at 6pm, between Martin S. Flaherty and Jack Goldschmidt, and moderated by William M. Treanor. Registration is requested.
  • The Institute for National Security and Counterterrorism at Syracuse University is organizing its 3rd Annual Seminar on Teaching Law and National Security on September 14-15, 2012. Harold Koh and James Steinberg will be keynote speakers. More information can be found here.
  • The International Law Committee of the New York City Bar is organizing a debate on September 12, 2012 from 6.30-9pm on The Next Four Years: The Impact of the 2012 Presidential Election on International Law, featuring John B. Bellinger III, William W. Burke-White, Andrew Kent and Opinio Juris‘ own Deborah Pearlstein. Click here to register.

Calls for Papers

  • Hidayatullah National Law University is convening a Round Table Conference on the Refugee Convention on October 6-7, 2012. Abstracts for papers need to be submitted by September 15, 2012. More information can be found here.
  • The Max Planck Institute for Comparative Public Law and International Law has issued a call for papers for a workshop on November 29, 2012, on Debt and Financial Regulation in Reaction to the Crisis: Legal Perspectives on Recent Transformations of Public Authority. Abstracts not exceeding 500 words should be sent via e-mail to Matthias Goldmann and Carlino Antpöhler at regulation [at] mpil [dot] de by 15 September 2012. Successful applicants will be informed by 30 September 2012. Travel and accommodations costs will be reimbursed for participants.
  • The Socio-Legal Review is calling for submissions for its ninth volume to be published in 2013. More information can be found here.

Job Opportunities

  • The Graduate School of Arts and Social Sciences of Maastricht University offers three PhD positions within the NWO VIDI project “No carrots, no sticks: How do peer reviews among states acquire authority in global governance?”. Applications are due by September 17, 2012, and more information can be found here.
  • The American Society of International Law (ASIL) invites its Academic and Law Firm Partners to refer applicants for three International Law Fellow positions at the ASIL headquarters in Washington, D.C. The Fellows will be responsible for implementing a number of the Society’s research, education, and outreach programs. More information can be found here.

Weekend Roundup: August 25 – September 7, 2012

by An Hertogen

At the start of the US academic year, Peggy welcomed Stephen Walt’s recommendation, though not his reasons, that wannabe foreign policy wonks study international law, and Roger Alford posted about James Phillips and John Yoo’s analysis of international and comparative law all-stars at the top 16 US law schools.

The Republican and Democratic conventions also caught our bloggers’ attention. Julian Ku posted about the strong language in the draft republican platform on protecting American sovereignty and opposing agreements such as UNCLOS, and Peter Spiro doubted whether the idea of citizenship, pressed in Obama’s speech, would stick given the hollow meaning of the rights and responsibilities of citizenship nowadays.

Congratulations are in order for Duncan Hollis, whose edited volume The Oxford Guide to Treaties is now available in Europe and can be ordered in the US.

Roger Alford posted on the legislative fixes to the problem of executing damages claims against Iran, and provided background to the case that prompted the fix.

Following the revelations in “No Easy Day“, Kevin Jon Heller felt compelled to revise his earlier position that Osama Bin Laden’s killing was legal, and, in a follow-up post, discussed what it means for a combatant to be hors de combat.

In ICL news, Kevin posted about Mauritania’s surprise decision to extradite al-Senussi to Libya, increasing the chances of Libya’s admissibility challenge at the ICC succeeding. Kevin was also baffled by Justice Sow’s agreement to testify in the appeal brought by Charles Taylor’s defense team against his conviction by the Special Court for Sierra Leone, in support of his allegations when the original judgment was read that there had been no deliberations.

If you want to follow Kevin more, he is now on Twitter, as are a few of his co-bloggers, and Opinio Juris itself.

Finally, we also posted some upcoming events and provided you with our weekday compilations of international news.

Have a nice weekend!

New Study Analyzes the Best Law Schools and Top Faculty for Comparative and International Law

by Roger Alford

James Phillips and John Yoo have just published a thoughtful analysis critiquing Brian Leiter’s approach to ranking faculty relevance. They suggest that what we should be looking at is all-stars, not superstars. If you measure a school based on their all-star line-up rather than their superstars, the results are dramatically different. Here’s how they put it:

Faculty can be thought of in two ways—all-stars and super-stars. All-stars are one of the best in their area, and a well-rounded faculty, like a well-rounded baseball team, has as many all-stars in as many positions as possible. Just like baseball all-stars, professors need to be evaluated against their peers in their area (or position), and not against professors in other areas (to compare the homerun totals of a second baseman with a first baseman would not be fair as the latter are expected to hit more homeruns while the former are expected to have a higher batting average and steal more bases). Super-stars are the elite, beyond just all-star status, a Roy Halladay for the Philadelphia Phillies or Tom Brady for the New England Patriots. Like a baseball team, they may be bunched in just one or two positions—often the hottest or most attractive, such as constitutional law or law and economics. There is probably a higher degree of correlation between winning and the number of all-stars than the number of super-stars, though both are nice to have…. This study argues that the all-star rankings is a more solid method of ranking faculties than the super-star method, average citations counts (either Leiter or this paper’s version), or the U.S. News’s academic ranking based on peer perception because it measures faculties more broadly, has less bias regarding attributes such as faculty age or size (Leiter method), takes into account peer-reviewed scholarship, and is objective rather than subjective (U.S News).

Analyzing the top sixteen law schools, Phillips and Yoo have devised a new and interesting approach that differs from the Leiter methodology in two important respects. First, they use a simple citations per professor per year average calculated by adding up all of the citations for the faculty and dividing by the number of years of experience for the faculty. This approach, they argue, “diminishes bias in favor of longevity and prolificacy, bias against immediacy, the disregarding of citation rate half-lifes, and ignoring interdisciplinary impacts.”

Second, they include citation counts from non-law journals using the Web of Science, which includes the Science Citation Index Expanded, the Social Sciences Citation Index, and the Arts & Humanities Citation Index. They argue that “as the legal academy has been evolving for some time regarding the educational pedigree of professors (more JD/PhDs) and the focus of its scholarship (more interdisciplinary work), and citation studies need to be modernized to reflect this trend.”

So what are the results based on their new methodology? Based on the Phillips and Yoo survey, here are the results for the best law schools for international law and comparative law:

Here are the international law and comparative law all-star faculty members from the top sixteen law schools:


UPDATE: Brian Leiter responds to Phillips and Yoo here. Here’s the crux of his response:

The two most interesting things they do are consult citations in the “Web of Science” database (to pick up citations for interdisciplinary scholars–this database includes social science and humanities journals) and calculate a citations-per-year score for individual faculty. A couple of caveats: (1) they look at only the top 16 schools according to the U.S. News reputation data, so not all law schools, and not even a few dozen law schools; and (2) they make some contentious–bordering in some cases on absurd–choices about what “area” to count a faculty member for. (This is a dilemma, of course, for those who work in multiple areas, but my solution in the past was to try to gauge whether three-quarters of the citations to the faculty member’s work were in the primary area in question, and then to also include a list of highly cited scholars who did not work exclusively in that area.) Many of those decisions affect the ranking of schools by “area.” The limitation to the top 16 schools by reputation in U.S. News also would affect almost all these lists. See also the comments here.

I liked their discussion of “all stars” versus “super stars,” but it was a clear error to treat the top fifty faculty by citations per year as “super stars”–some are, most aren’t. Citations measures are skewed, first off, to certain areas, like constitutional law. More importantly, “super stars” should be easily appointable at any top law school, and maybe a third of the folks on the top fifty list are. Some aren’t appointable at any peer school. And the citations per year measure has the bizarre consequences that, e.g., a Business School professor at Duke comes in at #7 (Wesley Cohen, whom I suspect most law professors have never heard of), and very junior faculty who have co-authored with actual “super stars” show up in the top 50.

(…)

A couple of readers asked whether I thought, per the title of the Phillips & Yoo piece, that their citation study method was “better.” I guess I think it’s neither better nor worse, just different, but having different metrics is good, as long as they’re basically sensible, and this one certainly is. On the plus side, it’s interesting to see how adding the Web of Science database affects things, and also how citations per year affects results. On the negative side, a lot of “impact” that will be picked up in the Web of Science database may be of dubious relevance to the impact on law and legal scholarship. And the citations-per-year measure has the odd result of elevating very junior faculty with just a year or two in teaching into elevated positions just because they may have co-authored a piece with a senior scholar which then got a few dozen citations. No metric is perfect (what would that even mean?), but this one certainly adds interesting information to the mix.

Weekday News Wrap: Friday, September 7, 2012

by Jessica Dorsey

Obama Presses Citizenship (Can It Be Revived?)

by Peter Spiro

President’s Obama’s speech this evening to the Democratic Convention spun citizenship as a central theme:

We believe in something called citizenship – a word at the very heart of our founding, at the very essence of our democracy; the idea that this country only works when we accept certain obligations to one another, and to future generations. . . .

Because we understand that this democracy is ours.

We, the People, recognize that we have responsibilities as well as rights; that our destinies are bound together; that a freedom which only asks what’s in it for me, a freedom without a commitment to others, a freedom without love or charity or duty or patriotism, is unworthy of our founding ideals, and those who died in their defense.

As citizens, we understand that America is not about what can be done for us. It’s about what can be done by us, together, through the hard and frustrating but necessary work of self-government.

So you see, the election four years ago wasn’t about me. It was about you. My fellow citizens – you were the change.

As Timesman Jonathan Weisman tweeted, “Certain shock of recognition with the word ‘citizenship.’ You just don’t hear it very often anymore.”  Very true. The last major presidential address that played up citizenship was George W. Bush’s first inaugural speech (another point of continuity!).

It plays nicely as a rhetorical matter, but I don’t think it computes. It’s easy but empty to speak of the rights and responsibilities of citizenship. They don’t really exist any more. The only distinctive responsibility of citizenship is jury duty. Rights . . . well, just ask Anwar al-Awlaki.

I get the message about thinking beyond oneself, about mutual obligation, an obviously worthy orientation. But that’s about “good citizenship” in some moral, universalist sense, not about membership in the state.

Legislative Fixes to the Problem of Executing Terrorist Judgments Against Iran

by Roger Alford

Having followed the terrorism litigation against Iran for years, I was fascinated to read of the recent legislation—Section 502 of the Iran Threat Reduction and Syria Human Rights–that creates a legislative fix for victims of one particular group of terrorist victims but not thousands of others.

The law in question grants plaintiffs/judgment creditors in one and only one case—Peterson v. Iran—the right to attach Iranian assets held in the United States, notwithstanding any other provision of law, including sovereignty immunity laws and laws recognizing the separate corporate identities of Iranian government entities.

As reported by Basil Katz of Reuters here, the case involves a $2.65 billion damage award obtained by the victims of Beirut Marine Corps barracks in 1983. The U.S. Treasury discovered $1.75 billion in a Citibank account that was deposited by Clearstream, an entity that holds Iranian funds in Luxembourg potentially subject to attachment.

There are several interesting wrinkles to this case.

First, it certainly is not clear that the $1.75 billion held at Citibank are Iranian assets held in the United States. Clearstream is arguing precisely that. The statute gets around this problem by broadly defining what constitutes an Iranian asset held in the United States. According to the statute, such an asset is one that is:

“(A) held in the United States for a foreign securities intermediary doing business in the United States, (B) a blocked asset [defined as those involving Peterson v. Iran] … and (C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran or any agency or instrumentality of that Government, that such foreign securities intermediary or a related intermediary holds abroad.”

In other words, if a third party financial institution holds Iranian assets abroad, and also holds the equivalent amount in the United States, that money is a financial asset subject to attachment by the Peterson claimants.

Second, the statute supersedes “any other provision of law, including any provision of law relating to sovereign immunity, and preempting any inconsistent provision of State law.” Thus, the normal rules under the FSIA regarding immunity from jurisdiction or enforcement simply do not apply to the Peterson claims against Iran. The same goes for the Algiers Accords, which obligate the United States to transfer all Iranian assets held in the United States.

Nor do the normal rules apply with respect to the separate corporate identities of Iranian government entities. Clearstream’s financial assets held in Luxembourg belong to Bank Markazi (a.k.a. the Central Bank of Iran). But the statute defines “Iran” as “the Government of Iran, including the central bank or monetary authority of that Government and any agency or instrumentality of that Government.”

Third, the statute appears to privilege one group of victims to the exclusion of others. As most of our readers know, U.S. courts have awarded billions of dollars in judgments to thousands of victims of Iranian terrorism. Of all the acts of Iranian terrorism—the bus bombings in Jerusalem and suicide bombings at shopping malls in Tel Aviv, the targeted assassinations of Iranian dissidents in Paris, the victims of the Khobar Towers bombings in Saudi Arabia—why does this one group of victims deserve special statutory protection while the other victims do not?

The pragmatic answer, of course, is that counsel for the Peterson family was able to secure a legislative fix that other victims could not. That hardly appears satisfactory given the stakes involved. Frankly, there is something unseemly about a statute that so clearly privileges one set of terrorist victims at the expense of others.

The Reuters report suggests that there is an agreement between the Peterson victims and the other victims to share any judgments recovered, but it provides no details. Such a contractual solution is somewhat encouraging, but I seriously doubt that the other terrorist victims/judgment creditors will stand on an equal footing as the Peterson family based on this agreement. They, after all, have no leverage other than moral suasion.

Section 502 does state that a court must determine that “no other person possesses a constitutionally protected interest in the assets described in subsection (b) under the Fifth Amendment to the Constitution of the United States.” It’s not clear whether this refers to the Takings Clause—which seems likely—or to other clauses, such as the Due Process Clause prohibiting deprivations of life, liberty or property without due process of law. Regardless, I fail to see how the other victims of Iranian terrorism could fall within that exception.

Who knows where all this is headed. Litigation of this $1.75 billion dollar question is pending in New York. I will keep you posted.

Judge Sow to Testify for Charles Taylor? (Updated)

by Kevin Jon Heller

Just when you thought you’ve seen everything — you haven’t:

According to a statement posted on the website of the Special Court for Sierra Leone, Judge El Hadji Malik Sow, a Senegalese jurist who served as alternate judge for Trial Chamber II, has agreed to testify in the wake of the defense appeal.

A guilty verdict was handed down against Taylor last May for his role in the Sierra Leonean conflict.

It can be recalled that following the end of Presiding Judge Richard Lussick’s reading of the final verdict in Taylor’s trial in May, Judge Sow started to speak and people seated in the public gallery heard a few words before the microphones went off.

[snip]

In their appeal document dated August 17, 2012, Taylor’s defense council said that there was a need to proffer other evidence in their appeal motion.

“The defense intends to call as witness on appeal, former Special Court Justice El Hadji Malik Sow. He is expected to testify on his statement that there were “no deliberations” as is alleged in Ground of Appeal 36 of the notice of Appeal, including his presence (or lack thereof) at any purported deliberations amongst the justices of Trial Chamber II.

“The defense inquiry through justice Sow will be limited to establishing the fact of their being no deliberations as alleged in Ground of Appeal, and will not extend to the substance or any discussion between Justices which might arguably be viewed as part of a purported deliberative process,” the appeal document revealed.

In furtherance, Justice Sow will also testify and expand upon his statement, in respect of Ground of Appeal 37, “that the whole system is not consistent with all the values of international criminal justice,” according to the appeal.

If Judge Sow testifies, it would almost certainly be unprecedented.  To the best of my knowledge, no international judge has ever testified on behalf of a defendant — or has testified at all, for that matter.  (Feel free to correct me, readers.)  But I cannot imagine that the Appeals Chamber will actually allow Judge Sow to testify.  Rule 29 of the SCSL’s Rules of Procedure and Evidence specifically provides that “[t]he deliberations of the Chambers shall take place in private and remain secret.”  Taylor’s attorneys are clearly trying to get around Rule 29 by claiming that Judge Sow will testify only to the absence of deliberations, but the distinction is illusory: the purpose of the rule is to ensure that what happens in chambers remains private, and that purpose would be no less defeated by Judge Sow testifying that there were no deliberations than by him testifying that the deliberations were flawed.  Moreover, nothing in the SCSL statute explicitly requires deliberation between the judges; Article 18 simply requires the Trial Chamber to produce “a reasoned opinion in writing” in support of its judgment.  If a majority of the judges can produce a reasoned opinion without sitting down together to deliberate, Article 18 is satisfied.

It is also difficult to see why the Appeals chamber would allow Judge Sow to testify concerning his belief that the “whole system” of the SCSL “is not consistent with all the values of international criminal justice.”  If his proposed testimony is based on the Trial Chamber’s deliberations (or lack thereof), it would be barred by Rule 29.  And if it is based on Judge Sow’s personal view of the trial or the SCSL system in general, I don’t think it would be relevant.  International tribunals notoriously admit any evidence that has probative value, but I don’t see how the reactions of an alternate judge to what takes place in open court could have any probative value whatsoever.  The Appeals judges are perfectly capable of examining the record for themselves to determine whether Taylor received a fair trial.

UPDATE: Annex A to the defence’s motion to disqualify a number of Appeals judges contains a screenshot of how the SCSL’s live transcription system recorded Judge Sow’s statement.  That screenshot has Judge Sow saying “[t]he only moment where a Judge can express his opinion, is during the deliberations or in the courtroom, and pursuant to the Rules, where there is no ^ deliberations, the only place left for me in the courtroom.”  I have no idea what the symbol means; it may be that Judge Sow said a word but the system did not pick it up.  In any case, my speculations about the presence of the symbol in an earlier version of this post were obviously unjustified, so I have amended the post accordingly.

Weekday News Wrap: Thursday, September 6, 2012

by Jessica Dorsey

The Oxford Guide to Treaties

by Duncan Hollis

I had a good day yesterday. I received a package in the mail from Oxford containing copies of my book — The Oxford Guide to Treaties. It represents the culmination of a three year effort on my part to compile a comprehensive and current guide to treaty law and practice.  To do this, I started with a fairly simple pThe OGTremise — in this age of specialization, why not ask the world’s leading experts on various issues of treaty law and practice to write about their particular areas of expertise and edit those contributions together in a way that covers the entire field.  With these academic explanations as a starting point, I then sought to build a set of sample treaty clauses — examples of how existing treaty texts have addressed the manifold issues associated with constructing what has now become the dominant form of international cooperation.  I’ll admit the effort proved quite a bit more daunting and rigorous that I had imagined at the outset.  But, looking at it last night, I’m feeling truly thrilled with the results.

The truth is, moreover, I couldn’t have done this book without a lot of help — the OUP staff was phenomenal (not to mention patient) with my sundry questions and suggestions.  And, of course, this project wouldn’t exist without all my fellow contributors.  They were universally thoughtful and committed to the idea of laying out the state of play in their respective areas, including existing doctrines, disagreements, and areas where progressive development may be warranted.  I could fill a whole blog post (and may yet still) acknowledging what each of the twenty-seven contributors brought to the table and how grateful I am to each of them.  For now though let me single out David Bederman who authored his chapter in what he knew to be the final months of his life.  That sort of effort leaves me speechless.

I hope to blog more about the book in the coming months. But, for those readers interested in purchasing it —  you can do so today in Europe. U.S. readers can order it now as well, although I understand U.S. copies won’t be published till mid-October. In the meantime, for those interested in knowing more about the book, the final table of contents follows after the jump.

[UPDATE:  OUP tells me that the book will be out next week in the US for American readers interested in getting a copy, not mid-October as I originally suggested].

Stephen Walt’s Advice to Would-be Foreign Policy Wonks: Study International Law!

by Peggy McGuinness

With new students entering college and grad school, Stephen Walt posts here very sound advice on the “top ten things would-be foreign policy wonks should study.”   At number five he lists international law, but not for any reason that is likely to warm the heart of an international lawyer:

5. International Law. You might think that a realist like me would dismiss international law completely, but I took a course in the subject as an undergraduate and have always been grateful that I did. Among other things, it reaffirmed my suspicion that international law is a pretty weak instrument, especially when dealing with great powers. Nonetheless, states and other international actors use international law all of the time, and they certainly invoke it to try advance their own particular interests. So it’s good to have some idea what international law is, how it works, and what it can and cannot do.

One of the challenges for IR students is that not all political science departments offer international law on a regular basis.  Crossing campus to take international law at the law school is a good alternative, but beware that we law professors teach (and evaluate) our students as law students, not theorists.  The grad students who have taken my classes have often struggled with case reading — a skill that is old hat to 2 and 3Ls.  But once you get over that, you might learn some things about the law that will help you critique even a hardened realists like Walt!

Mauritania Extradites Al-Senussi to Libya

by Kevin Jon Heller

What I said last month, about Mauritania refusing to extradite al-Senussi to Libya?  Never mind:

The man accused of having helped orchestrate some of the worst crimes committed by the regime of ex-Libyan leader Moammar Gadhafi has been extradited back to Libya, according to a Mauritanian government statement.

The communique carried by national radio and on Mauritania’s official news agency said Abdullah al-Senoussi, who ran Gadhafi’s feared intelligence service, was sent back to Libya, giving no further details. An official in the ministry of foreign affairs, who requested anonymity because he was not authorized to speak on the matter, said that al-Senoussi boarded a special flight at 9 a.m. local time (0900 GMT) and was headed to Tripoli.

This development makes it far more likely that Libya’s admissibility challenge to the ICC’s case against al-Senussi will succeed.  Libya is obviously no longer “unable to obtain the accused” for purposes of Article 17(3) of the Rome Statute.

Libya’s ridiculous stall tactics regarding its admissibility challenge appear to have paid off.  The big losers are France, which also wanted to prosecute al-Senussi, and al-Senussi himself, who will no doubt receive an unfair trial in Libya.

Weekday News Wrap: Wednesday, September 5, 2012

by Jessica Dorsey

Joining the Twitterverse

by Kevin Jon Heller

Thanks to a couple of kind retweets by Peter, our twitter guru, some readers might have noticed that I have joined the twitterverse — @kevinjonheller.  I don’t know how often I will be tweeting; I much prefer blogging as a medium of communication.  But feel free to follow me, if you are so inclined.

That said, two caveats.  First, I don’t plan on limiting my tweeting to issues of international law and international relations.  Indeed, insofar as I use Opinio Juris to provide my thoughts in those areas, I will likely tweet primarily on other issues.  Second, I want to make clear that this is my private account; nothing I say on twitter reflects the position of the blog (which doesn’t really have a position, but you know what I mean) or of my fellow bloggers.  So if you see rhetoric that you consider particularly incendiary, blame me and not them.

Weekday News Wrap: Tuesday, September 4, 2012

by Jessica Dorsey

Weekday News Wrap: Monday, September 3, 2012

by Jessica Dorsey

Upcoming Events: September 2, 2012

by Jessica Dorsey

Calls for Papers

  • The Southern Illinois University Law Journal is seeking scholarly legal articles from newer legal scholars for possible inclusion in a special Symposium issue, Guantanamo Bay: What Next?, on legal issues arising from the continued detention and trial of detainees at Guantanamo Bay. Full submissions (in Microsoft Word) should be in by November 19, 2012.
  • The International Organizations Interest Group of the American Society of International Law has issued a call for papers for a works-in-progress workshop, to be held on December 1, 2012, in Washington, DC. Abstracts are due no later than September 21, 2012 and selected full papers no later than  November 17, 2012. More information can be found here.
  • The Law Research Unit of the Athens Institute for Education and Research (ATINER) will hold its 10th Annual International Conference on Law, July 15-18, 2013, in Athens, Greece. For details, please go to the conference website. Abstracts for the call for papers are due by December 17, 2012.

Upcoming Events

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.