Archive for
December, 2012

Legality Is Not Morality

by Kevin Jon Heller

The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war — that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered intentional.  Peter Stockburger and Ian Henderson offered versions of that point in the comments to my post, and the point also featured prominently an eloquent post that Ben Wittes wrote in response.  Here are Ben’s key paragraphs:

I mean merely to highlight here how one’s views of this subject will inflect one’s views of the moral dimensions of the accidental killing of children. If, like me, one is inclined to see drone strikes as an instrument of legitimate warfare—warfare authorized domestically by Congress and lawful under international law—one will tend to see the deaths of children they sometimes cause as accidental deaths in the course of legal and appropriate military action. Such deaths are tragic always. But we have centuries of moral vocabulary for such things. War is a terrible business, and one of the reasons for that it is that civilians who have done nothing wrong get killed; indeed, warfare by its nature turns what would otherwise be murder into a legal and protected act. And while the modern laws of war do require all sorts of efforts to protect civilians from harm, they also accept that these efforts will not always succeed. That rather moots all of Kevin’s fine-grained gradations of intentionality. The relevant question becomes whether one took adequate steps to distinguish civilians and to minimize civilian casualties–not ultimately whether those steps worked.

By contrast, if—with Greenwald and, in a more complicated way, Kevin—one is inclined to reject the legal paradigm of warfare for some or all overseas counterterrorism operations, the entire moral (and legal) calculus shifts dramatically. Then the deaths of children in drone strikes become the collateral consequences of illegal and immoral acts that are themselves extrajudicial killings. In such a framework, the underlying act, a strike on a presumably-terrorist target, is no longer exempt from the normal legal or moral strictures against killing; it is a murder of its own. And it’s hardly a defense (legally or morally) to the accusation of killing a child that his death was an accident in the course of murdering the adult next door.

There is much that I agree with in these paragraphs. I certainly agree with the idea that we cannot simply compare killing in war and killing during peace.  I also obviously invited Ben’s focus on the legality of collateral killing during war by relying on criminal law to make the point that many national criminal-justice systems would consider the death of innocents in drone strikes to be intentional.  Finally, Ben is absolutely correct to point out that how one views such collateral deaths is necessarily affected by one’s assessment of the legality of the drone program.

All that acknowledged, I still want to resist an idea that seems to underly all of the responses to my post: namely, that we cannot (or at least should not) consider collateral deaths caused by drone strikes to be immoral as long as those strikes were legal.  I strongly disagree with that idea; I think it is possible — indeed important — to insist that the drone program is profoundly immoral even if no individual drone strike ever violates the laws of war.  There is a vast philosophic literature on the difference between legality and morality, which I do not have time to discuss here.  (Where is Patrick O’Donnell, aka The Man Who Has Read and Understood Everything, when you need him?) Suffice it to say that very few people are such thoroughgoing positivists that they believe legality and morality are coterminous, even if they disagree dramatically with each other concerning the particulars of the difference. Two obvious examples: “pro-lifers” don’t consider abortion to be moral even though it is legal, while the pro-euthanasia crowd doesn’t consider assisted suicide to be immoral simply because it is almost always illegal.  Both groups simply reject the morality of the laws in question.

In one sense, that is my perspective on the collateral deaths caused by drone strikes. Although I do not believe that all drone strikes comply with the laws of war, for the reasons I discuss in my forthcoming article, I am certainly more legally sympathetic to the drone program than most of my fellow lefties/progressives.  In particular, I am extremely skeptical of the oft-heard claim that drone strikes violate IHL’s principle of proportionality.  As I have explained elsewhere, the principle of proportionality — to say nothing of the war crime that is based on it — is so amorphous and commander-friendly that it is essentially useless. Yet I still think that many, if not most, of the legally-proportionate collateral deaths caused by drone strikes are profoundly immoral.

My position would not change, though, even if I was more comfortable with the legal definition of proportionality.  Accepting the morality of a particular law does not commit one to accepting the morality of any and all actions that comply with that law.  Someone who is pro-choice can still morally condemn the wealthy family who uses abortion as a form of birth control.  Similarly, someone who supports euthanasia can still morally condemn a person who talks an ill elderly relative into it because he wants his inheritance sooner rather than later.

That, essentially, is how I feel about drone strikes.  I do think that the principle of proportionality is too accepting of military force.  But my basic objection to the collateral deaths caused by drone strikes is that those deaths are nearly always unnecessary, because the drone program itself lacks any persuasive strategic justification.  In my view, the military benefits of drone strikes pale in comparison to their long-term costs — ranging from radicalizing the affected populations to encouraging the US to rely on military force instead of other methods for dealing with terrorism.  I thus believe that the drone program should be dramatically narrowed, if not eliminated completely.  As a result, I think it is nearly always morally indefensible for the US to continue to use drone strikes even though it knows that it is virtually certain innocent men, women, and children will die as a result.

It is in that spirit that I offered my previous post.  Collateral deaths in drone strikes are not accidents, even if they are not specifically desired.  They are simply accepted as the necessary if regrettable cost of fighting the war on terror.  That is intentional action as many countries understand the concept of intent.  And it is immoral action in my view, regardless of the legality of strikes under the laws of war, because the drone program itself is immoral.

Weekday News Wrap: Monday, December 31, 2012

by Jessica Dorsey

Events and Announcements: December 30, 2012

by An Hertogen

Upcoming Events

  • The next session of the Joint International Humanitarian Law Forum takes place on January 7, 2013 at the IDC Radzyner School of Law. Adv. Sigall Horovitz will give a talk entitled “Think Different – Why Israel Should Join the ICC Rome Statute” – a discussion following the UN General Assembly resolution to recognize Palestine as a non-member State observer, and Adv. Ido Rosenzweig will talk on “Pillar of Defense & IHL – targeted killings, military objectives, proportionality etc.” – a discussion about the questions related to the Israeli and Palestinian conducts during the recent November conflict. More information can be found here.

Calls for Papers

  • Submissions are requested for the 2013 International Humanitarian Law (IHL) Student Writing Competition, co-organized by the American University Washington College of Law Center for Human Rights and Humanitarian Law and the American Society of International Law’s Lieber Society. Submissions are due by January 31, 2013. More information is available here.

Job Announcement

  • Columbia Law School invites applications for a position at the Professor or Associate Professor Level. The individual will also serve as Director of the Human Rights Clinic and Faculty Co-Director of the Human Rights Institute, beginning on July 1, 2013. The incumbent will be responsible for teaching the Human Rights Clinic as well as serving as its Director. This will include developing clinical projects for experiential learning both in and outside of the classroom. As Faculty Co-Director of the Human Rights Institute, the individual will also be responsible for collaborating in developing the Institute’s programmatic work and strategic agenda, helping to supervise the Institute’s post-graduate human rights fellows on projects relating to the Institute and Clinic, and assisting with fundraising for projects being pursued by the Institute and Clinic. More information, and an online only application, is available here. Applications are due by January 31, 2013.

Last week’s announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us. Best wishes for 2013!

Newtown, Drones, and Comparative Criminal Law

by Kevin Jon Heller

There’s been an interesting debate in the blogosphere recently about why people find the murder of 20 young children at Newtown so much more horrible than the routine killing of children in Yemen and Pakistan by U.S. drones.  Glenn Greenwald and Falguni Sheth, a philosophy professor at Hampshire College, find the selective outrage indefensible.  Ben Wittes and the Telegraph‘s Brendan O’Neill, by contrast, insist that the two situations are not comparable, because Lanza intended to kill the children at Newtown while — as Wittes puts it — “[c]ivilian deaths in drone strikes are not intentional.”

Wittes and O’Neill obviously have a point.  No one can seriously believe that the U.S. wants to kill children with drones; the most that can be said is that the U.S. is willing to accept the possibility, if not inevitability, of such collateral damage, because it believes drones strikes are militarily necessary in the conflict with al-Qaeda.  That is a distinction with a difference: it is indeed morally worse to kill someone because you want them to die than to kill someone without desiring their death but knowing it will result from your (ostensibly well-intentioned) actions.

That said, I think Wittes and O’Neill’s “intentional”/”unintentional” distinction misleads more than it explains.  To see why, it is useful to turn to comparative criminal law.  Although neither Wittes nor O’Neill focus on the legal aspects of Newtown and the drone program, both implicitly adopt a definition of “intent” that parallels American criminal law — as the subjective desire to bring about a particular consequence.  That definition is what justifies their insistence that Newtown involves intentional killing while the drone program involves unintentional killing.

But the American understanding of intent is not the only one.  Many civil-law systems have a much broader understanding of “intent,” one that considers even non-volitional action to be intentional.  German criminal law, for example, considers acting in the knowledge that a consequence is virtually certain to occur to be intentional, even if the actor does not subjectively desire to bring about that consequence.  (Indeed, that action is intentional even if the actor fervently hopes that the consequence will not occur.)  This is what is known as dolus directus in the second degree.  Moreover, although not without controversy, German criminal law, like a number of civil-law systems, even extends “intentional action” to include acting in the knowledge that it is possible a particular consequence will result, as long as the actor subjectively reconciles himself to that possibility.  This is what is known as dolus eventualis.

Nor is a broader understanding of “intent” limited to the civil law.  O’Neill’s own British criminal law embraces what is known as “oblique intent” — acting without the subjective desire to bring about a particular consequence, but with the knowledge that the consequence is virtually certain to result.  (The same formulation as dolus directus in the second degree.)  A defendant can be convicted of intentional murder in Britain, therefore, even if he in no way wanted the victim to die.

Again, I am not claiming that there is no difference between Newtown and the drone program.  All criminal law systems consider acting with the subjective desire to kill to be more serious than acting in the knowledge that death is virtually certain.  But it is important to recognize that many countries, including our British allies, would consider the children killed in U.S. drone strikes to have been intentionally killed, either because the U.S. knew that the drone program was virtually certain to result in their collateral death or because the U.S. was aware that their deaths were possible but, because of its commitment to the drone program, reconciled itself to that possibility.  (The latter would be manslaughter in Britain, which does not — unlike my home country of Australia — criminalize reckless killing as murder.)

There is, in short, a difference between Newtown and the drone program — but the difference is much smaller than Wittes and O’Neill’s “intentional”/”unintentional” distinction implies.  From a comparative perspective, both can be considered intentional killing; the difference is one of degree, not kind.

This is not a minor point.  Consider the final paragraph of Wittes’ response to Greenwald:

It is, rather, a basic difference our moral reaction to the tragic accident versus the intentional crime. A terrible car crash, even when one side is negligent or drunk, might inspire great moral opprobrium, but it doesn’t inspire the same moral horror as, say, intentionally driving one’s car into a crowd in order to kill people. Even if, like Greenwald, one does not accept that the United States is fighting a legitimate war and that civilian deaths are a tragic but inevitable feature of warfare—that is, even if one rejects the United States’s “perceived justification” utterly—there remains a significant difference between accidentally killing innocents and deliberate targeting them.

Wittes’ analogy to an accidental death is inapposite.  Killing children with drones is not the same as negligently or drunkenly driving into a crowd and killing people.  A better analogy would be to the person who drives his car even though he knows that it is very likely, perhaps even a virtual certainty, that someone will die as a result.  We would not judge that person as harshly as we would the person who gets in his car and deliberately plows it into the nearest crowd.  But we would hardly take it easy on him simply because he acted “unintentionally.”

In 2013, I Resolve to Post a Lot … But Only About Robots

by Kenneth Anderson

Kidding!  Happy New Year to everyone!  Chris’s post below made me want to add that I have a goal in 2013, which is to post lots more.  2012 was family-intensive, but things are looking good for 2013, and my resolution is to post much more than I have in 2012.  Thanks to others for carrying the ball, and to our new staff, Jessica and An, as well as to Kristen, and to Peggy for carrying so much of the behind-scenes burden of OJ.

I do plan to take Chris’s excellent suggestion and blog in 2013 about robots, technology, and the inter-relationships with international law, international organizations, globalization more broadly.  I think Chris is right to say that we reflexively think about domestic law when it comes to these areas, but there are many issues in international economic law, as well as the economics of globalization more generally.  Here’s a question I plan to explore across all the places I blog in 2013, including OJ – I’m thinking about offering a course in robots and the law, a research seminar, in a year or two.

I have a couple of hesitations, though.  One is substantive – is there really any “there there” to robots and the law, or is it just a hodge podge of different legal categories, bits and pieces from tort law, products liability, IP, some areas of international economic law – tossed together without any real reason to be together except that the professor thought this was cool?  The other hesitation is pedagogical – like many law professors, I’d guess, I’ve got much tougher in thinking about what I teach and how I think it will benefit my students as lawyers in the world.  It’s easy to say that robotics is the new and happening field (it is!), and so “law and robots” must be important, but there are a lot of reasons for thinking that my students should concentrate on the bread and butter issues, and let things like robots get figured out once they have the basic tools in hand.  I’d welcome your thoughts, on both substance and pedagogy – I’m not committed to doing this, and my primary concern is to do what’s most helpful for my students, at a mid-tier school in a tough job market – not just in relation to international or cross border law, but more generally.  What might make a lot of sense for Stanford Law School doesn’t necessarily make sense for WCL.

But there are other areas I want to explore in 2013 at OJ, and although they certainly include national security and such areas, they do run far away from that stuff.  One is economic, financial, and fiscal issues – related to Europe and the Eurozone, for one, but also economics and legal issues in the global economy.  I hope to engage Martin Holterman and Peter Lindseth, among others, in some of those discussions.  There are other areas related to development economics that I’d like to draw into OJ – microfinance in a generic sense, and the increasing number of issues that it raises in development economics and finance, such as remittance flows, micro-intermediation such as Kiva, and so on.

Finally, I plan to start talking about the UN and my book which, if Santa didn’t bring it to you, meant either that you were on the nice list or else you were on the naughty list, depending.  So I hope all of our readers and all of the OJ community have a wonderful New Year, and I look forward to blogging in 2013!  Best wishes in 2013.

Weekday News Wrap: Friday, December 28, 2012

by Jessica Dorsey

Besides the Year-End Reviews, How About Looking Forward to the Year, or the Century, to Come?

by Chris Borgen

‘Tis the season for year-in-reviews, for taking stock or where we’ve been. ‘Tis also the season for making resolutions about what we want to do in the coming year. (And a week from now will be the season for breaking those resolutions.)

But in the midst of the backward glances and hopeful promises, it might be interesting not only to make promises about what we want to do (Exercise more! Live “in the present!” Reconsider the scope of the drone program! Close Guantanamo!) but also consider where we are going, given our current paths.

I’m not about to get all Nate Silver statistical. I wish I could, but I can’t; I don’t have the quantitative chops. (And Nate Silver may not be globally scalable… but then again, who is?) However, I do suggest that, as international lawyers, it is good to think about some trends about where society is headed.

I am especially interested in the implications of technological change on efforts at coordinated multinational regulation… where regulation of new tech may be beneficial and where it may be detrimental to society and/or to innovation. (Uh, you know, issues having to do with African cyberpunk, DNA hacking and stuff like that. And don’t even let Ken Anderson (1, 2, 3, etc.) or me (1, 2, etc.) get started on robots…)

So I was happy to see that the current issue of Scientific American looks at “The Future of Science: 50, 100, and 150 Years from Now.” Heady stuff. Ubiquitous computing, biotech, colonizing Mars, possibly even my long-awaited flying cars. But reading this with the cool eye of a lawyer (as opposed to with the racing heart of my geeky Star Trek-loving, flying car-coveting self) one begins to see how intertwined these various scientific and technological topics are with questions of law and regulation.

When it comes to conversations about economic and technological innovation, the standard result is that domestic lawyers get slagged and international lawyers get ignored. But as a general matter, that shouldn’t be the norm in either case. And in these essays, and in some other recent writings on technological change, it isn’t…

(Continue reading via the link)

Weekday News Wrap: Thursday, December 27, 2012

by Jessica Dorsey

Weekday News Wrap: Wednesday, December 26, 2012

by Jessica Dorsey

Weekday News Wrap: Tuesday, December 25, 2012

by Jessica Dorsey

Mathieu Ngudjolo Chui: reflections on the ICC’s first acquittal

by Jelia Sane

[Jelia Sane is studying for the English Bar at City University, London. She holds an LLM in Public International Law from University College London and has previously interned at the ICC, the Centre for Justice and International Law, and the Extraordinary Chambers in the Courts of Cambodia.]

The unanimous acquittal and subsequent release of Mathieu Ngudjolo Chui by Trial Chamber II of the International Criminal Court (ICC) on 18 December 2012 was a shock and disappointment to those following the work of the Court and development of international criminal justice. The Open Society Justice Initiative (OSJI) said the judgment sends a “worrying signal about the quality of ICC prosecutions,” and Human Rights Watch emphasized that the acquittal leaves the victims of the Bogoro massacre without justice. While it is disappointing that the Office of the Prosecutor (OTP) failed to present a solid case, the acquittal of Ngudjolo demonstrates that the judges of the ICC are independent, impartial, and will not convict the accused on the basis of weak evidence, showcasing their willingness and ability to uphold the law.

The Ngudjolo judgement is only the second judgment issued by the ICC (the Court’s first judgment, convicting Thomas Lubanga, was issued in March 2012). His case was expected to be an important milestone, as it was the first time that crimes against humanity and sexual violence offences had been charged at the ICC. The ruling represents a missed opportunity in this regard, as the judges based their acquittal on the assessment of Ngudjolo’s lack of authority, making no findings on the crimes themselves.


The Prosecution alleged that Ngudjolo was the former leader of the Front des Nationalistes et Integristes (FNI), an armed rebel group in the Ituri region of the Democratic Republic of Congo (DRC) largely made up of combatants from the Lendu ethnic group. Relying on Article 25(3)(a) Rome Statute, the Prosecution argued that he was criminally responsible for the commission, jointly with Germain Katanga, the leader of another armed militia (the Force de Résistance Patriotique en Ituri, FRPI), of an FNI/FRPI attack against Bogoro village on 24 February 2003, during which 200 civilians were killed. They also alleged that he was directly responsible for the crime of using child soldiers, and that he and Katanga had a common plan to “wipe out” Bogoro. Ngudjolo was accused of three counts of crimes against humanity (murder, sexual slavery, and rape) and seven counts of war crimes (willful killing, directing an attack against civilians, pillage, the destruction of property, the use of child soldiers, rape, and sexual slavery).


Trial Chamber II held that it had not been proven beyond reasonable doubt that Ngudjolo was the commander of the Lendu combatants from Bedu-Ezekere at the time of the 2003 attack in Bogoro and, consequently, that he could not be proven to be responsible for the crimes charged. Given this finding, the judges declined to examine whether he had taken part in a common plan together with Germain Katanga to conduct the attack. The judges did emphasise however that this did not mean “that crimes were not committed in Bogoro on 24 February 2003 nor does it question what the people of this community have suffered on that day.”

In addition, the Chamber found that, at the material time, the use of child soldiers was a widespread phenomenon in the Ituri region, and that child soldiers were present during the Bogoro attack. However, it ruled that there was insufficient evidence to prove beyond reasonable doubt that the accused had used child soldiers before, during, or after the 2003 attack, or that there was any link between the presence of child soldiers in Bogoro and the accused.

The Trial Chamber’s Approach

The ICC’s first acquittal will undoubtedly be much discussed and debated. The OTP has indicated its intention to appeal the judgment which means that more developments will follow in the coming weeks and months. Nonetheless, a cursory reading of the judgment gives rise to the following two observations on the Chamber’s approach in reaching its decision.

Weekday News Wrap: Monday, December 24, 2012

by Jessica Dorsey

Events and Announcements: December 23, 2012

by Jessica Dorsey

Upcoming Events


  • The American Bar Foundation (ABF) invites scholars to join the ABF’s intellectual community for the 2013-2014 academic year. National and international scholars on leave or sabbatical are encouraged to apply. More information can be found here.

Last week’s announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us. Happy Holidays to all of our readers!!

Could Palestine Self-Refer Only the Situation in the West Bank?

by Kevin Jon Heller

In the comments to my first post on the ICC and retroactive jurisdiction, Johnboy4546 suggested that the Palestinians might self-refer only the situation in the West Bank to the Court.  Such a referral would have two clear advantages for the Palestinians: (1) it would prevent the OTP from investigating Hamas’s rocket attacks, which are almost always launched from Gaza, as well as crimes committed by Fatah-related groups in Gaza (such as the murder of civilians); and (2) Israel would be extremely unlikely to prosecute the crime the Palestinians would want the OTP to investigate in the West Bank, the direct or indirect transfer of the civilian population into occupied territory, thereby ensuring that Israel could not take advantage of the Rome Statute’s principle of complementarity.

It’s a creative suggestion — and one that I’ve been hearing with increasing regularity from people sympathetic to the Palestinian cause.  (I’ve just returned from a wonderful conference in Tel Aviv, a trip that included giving three different presentations in one day — a new record for me.)  But would such a geographically-limited self-referral be possible?

On balance, I don’t think so.  There is no question that a state can self-refer crimes committed on a portion of its territory; that is how the ICC treated Uganda’s referral of the situation in Northern Uganda.  (Uganda only referred crimes committed by the LRA, but the Court recharacterized that self-referral on the ground that Article 14(1) of the Rome Statute limits states to referring “situations.”)  The Security Council also limited its Sudan referral to crimes committed in Darfur.  Those referrals would seem to suggest that Palestine could refer only the situation in the West Bank to the Court.  (I am assuming for sake of argument that the Palestinian state includes both West Bank and Gaza.)

The problem is that such a geographically-limited referral would frustrate the spirit, if not the letter, of Article 14(1).  As is widely acknowledged, the drafters limited Article 14(1) to situations precisely to prevent states from using referrals to target their political opponents.  (A legitimate fear, as Uganda’s original self-referral indicates.)  By requiring states to refer situations instead of cases, Article 14(1) ensures that the OTP will always be able to investigate crimes committed by both parties to a conflict.

And therein lies the problem with a hypothetical West Bank referral. Such a referral would obviously be designed to enable the Court to investigate crimes committed by Israel while preventing it from investigating crimes committed by Hamas.  Functionally, then, a West Bank referral would be no different than Uganda’s self-referral of the LRA’s crimes.  The Court would be very unlikely to accept such a referral simply because it was framed in geographic terms.  After all, Uganda could have referred only those parts of Uganda in which the LRA operated instead of specifically — and clumsily — targeting the LRA. I doubt that the Court would have permitted Uganda to accomplish indirectly what it could not accomplish directly.

Nor is that all: even if the Court would be willing to accept a West Bank referral, Palestine might find it difficult to prevent the OTP from investigating its own crimes.  To begin with, the OTP could simply decline to investigate a referral that was limited to the West Bank — on the basis of either insufficient gravity or the “interests of justice” —  and then use its proprio motu powers to initiate a broader investigation.  I’m skeptical that the current OTP would be foolish enough to conduct any investigation into one of the most politicized conflicts in history.  But if it did, it would certainly not be foolish enough to investigate only one side of that conflict.

Moreover, it is not clear that an investigation into the West Bank would preclude the OTP from investigating crimes committed in Gaza.  In Mbarushimana, the defendant argued that because the DRC’s self-referral was limited to crimes committed in the Ituri region, the Court did not have jurisdiction over the crimes he allegedly committed in North and South Kivu.  The Pre-Trial Chamber rejected that argument on the ground that, in fact, the DRC had not limited its self-referral to Ituri.  But it also suggested — obliquely — that, had the referral been so geographically limited, the Court might still have had jurisdiction over at least some acts committed outside of Ituri.  Consider the following paragraphs (emphasis added):

16. The issue at stake is to determine whether the facts underlying the charges brought by the Prosecutor against Mr Mbarushimana can be said not to exceed the territorial, temporal and possibly personal parameters defining the situation under investigation. More specifically, according to the test developed by the Chamber in the present case, it is required that the crimes referred to in the Prosecutor’s application for a warrant of arrest for Mr Mbarushimana occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the Referral by the DRC. As already clarified by the Chamber, such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral.

21. The Chamber takes note of the DRC Observations, clarifying that; in submitting the Referral, the competent authorities did not intend to limit the Court’s jurisdiction to one or more particular provinces within its territory. As already determined by the Chamber, the territorial and temporal scope of a situation is to be inferred from the analysis of the situation of crisis that triggered the jurisdiction of the Court through the referral. Crimes committed after the referral can fall within the jurisdiction of the Court when sufficiently linked to that particular situation of crisis.

Although far from the picture of clarity, these paragraphs seem to imply that the Court’s understanding of the situation underlying a state’s self-referral is more important than the specific parameters of the referral itself.  As long as there is a sufficient nexus between a particular crime and the facts that motivated the state to refer the situation in question, the Court has jurisdiction over that crime.

I don’t want to push that interpretation too strongly.  The PTC’s comment regarding territorial jurisdiction was dicta, given how it construed the DRC’s self-referral.  But the rationale is the same for both temporal and territorial jurisdiction: states should not be able to craft self-referrals that prevent the Court from exercising jurisdiction over crimes that, in an objective analysis, really do fall within the parameters of the situation in question.  That principle explains why Uganda could not self-refer only the LRA’s crimes to the Court — and it explains why Palestine should not be able to impose geographic restrictions on a situation that would effectively limit the OTP to investigating crimes committed by Israel.

Weekend Roundup: December 15-21. 2012

by An Hertogen

This week on Opinio Juris, Kristen Boon followed up on her discussion last week about changes towards more transparency and fairness in the UN’s Al Qaida sanctions regime.

Craig Allen contributed a guest post on the ITLOS’ interim order for the release by Ghana of Argentina’s ARA Libertad. UNCLOS was also central to Duncan Hollis’ post on China’s submission to the Continental Shelf Commission in relation to the dispute regarding the Senkaku/Diaoyu islands.

Peggy McGuinness congratulated Diane Amann, Leila Sadat and Patricia Sellers on their appointments as special advisor to the ICC’s OTP, but was saddened that Diane’s appointment meant a goodbye from IntLawGrrls.

In response to John Bellinger’s NYTimes op-ed, Chris Borgen argued that it is up to Republican leadership to address their base’s aversion towards international treaties. Further on news from the US Senate, Deborah Pearlstein posted the open letter by Senators Feinstein, Levin and McCain to Sony Pictures, protesting against the depiction of torture as an effective means of intelligence gathering in the new movie Zero Dark Thirty. She followed up with a post on the CIA’s press release about the movie.

We concluded the week with our final journal symposium of the year, on the latest issue of the Leiden Journal of International Law. Dov Jacobs introduced the two articles to be discussed, and the comments, here. The first article, by Monika Ambrus, looked through the lens of discrimination law at the question of defining a group for the purpose of the definition of genocide. William Schabas questioned why the definition of genocide needs to be broadened given that the definition of a crime against humanity has already been expanded to include peacetime atrocities. Frederic Mégret’s comment focused on the 19th century understanding of race and ethnicity that permeates the genocide definition. Monika Ambrus’ response is here. Samantha Besson’s article on extra-territoriality of the European Convention of Human Rights was the second article in the symposium. Comments were provided by Cedric Ryngaert and Marko Milanovic, to which Samantha Besson responded here.

Our weekly events and announcements and weekday news wraps completed the week.

Have a nice weekend!

CIA Comments on Zero Dark Thirty

by Deborah Pearlstein

This statement, coming from the Acting Director of the CIA, is perhaps even more remarkable than the Senators’. The press release is posted on the CIA website and is reprinted below.

Statement to Employees from Acting Director Michael Morell: “Zero Dark Thirty”
December 21, 2012
I would not normally comment on a Hollywood film, but I think it important to put Zero Dark Thirty, which deals with one of the most significant achievements in our history, into some context. The film, which premiered this week, addresses the successful hunt for Usama Bin Ladin that was the focus of incredibly dedicated men and women across our Agency, Intelligence Community, and military partners for many years. But in doing so, the film takes significant artistic license, while portraying itself as being historically accurate.

What I want you to know is that Zero Dark Thirty is a dramatization, not a realistic portrayal of the facts. CIA interacted with the filmmakers through our Office of Public Affairs but, as is true with any entertainment project with which we interact, we do not control the final product.

It would not be practical for me to walk through all the fiction in the film, but let me highlight a few aspects that particularly underscore the extent to which the film departs from reality.

First, the hunt for Usama Bin Ladin was a decade-long effort that depended on the selfless commitment of hundreds of officers. The filmmakers attributed the actions of our entire Agency—and the broader Intelligence Community—to just a few individuals. This may make for more compelling entertainment, but it does not reflect the facts. The success of the May 1st 2011 operation was a team effort—and a very large team at that.

Second, the film creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding Bin Ladin. That impression is false. As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.

Third, the film takes considerable liberties in its depiction of CIA personnel and their actions, including some who died while serving our country. We cannot allow a Hollywood film to cloud our memory of them.

Commentators will have much to say about this film in the weeks ahead. Through it all, I want you to remember that Zero Dark Thirty is not a documentary. What you should also remember is that the Bin Ladin operation was a landmark achievement by our country, by our military, by our Intelligence Community, and by our Agency.

Michael Morell

LJIL Symposium: A Response by Samantha Besson

by Samantha Besson

[Samantha Besson is a Professor of Public International Law and European Law, University of Fribourg and Fellow of the Wissenschaftskolleg zu Berlin]

I would like to start by thanking Dov Jacobs and the Leiden Journal of International Law for organizing this on-line symposium on my extraterritoriality piece, and, of course, for agreeing to publish the article in the first place. Many thanks also to Professor Marko Milanovic and Professor Cedric Ryngaert for their generous comments and not least for taking the time to deliver them at this busy time of the year.

In this brief reply note, I will start with Professor Ryngaert’s comments and then turn to Professor Milanovic’s.

Professor Ryngaert’s main critique is that the normative dimension of jurisdiction as I understand it is difficult to pin down (see also Professor Milanovic on its “vagueness”) and in particular to distinguish from mere coercion. I agree that it is a difficult element to grasp, but not less difficult than the concept of jurisdiction itself. Reducing jurisdiction to coercion by virtue of the sheer complexity of its normative dimension amounts not only to choosing the easy route but, as I have argued, a misguided approach to authority and hence to the normative relationship that underlies any human right. In fact, Ryngaert’s own work on the issue makes me believe he agrees with this normative understanding of jurisdiction. Further, the examples given by Ryngaert in order to show how difficult the distinction between coercion and authority is actually dilute the normative test by not focusing on the normative subjects of the laws enforced (and on human rights-holders as a result) and hence by avoiding the reasons that apply to them and not to others. Of course, Ryngaert is right: there will inevitably be a human rights protection gap and it is frustrating, but we know that gap in the context of democratic accountability for international action as well. As a matter of fact, I argue in the article that the tension this gap creates between international or European and domestic human rights law has proven beneficial –slowly certainly, but surely.  Continue Reading…

LJIL Symposium: A Comment on Samantha Besson’s Article on the Extraterritorial Application of the ECHR

by Marko Milanovic

[Marko Milanovic is lecturer in law at the University of Nottingham School of Law.]

It is a pleasure to participate in this discussion organized by the Leiden Journal of International Law and Opinio Juris, and to comment on Professor Besson’s interesting article, which I enjoyed reading. Not to beat around the bush, I (very amicably!) disagree with much of Professor Besson’s article, just as much as she disagrees with much of what I wrote in my recent book on the topic (discussed here on Opinio Juris and at EJIL: Talk!). So there. Let me try to explain why.

Professor Besson’s main claim is that prior scholarship on the ECHR’s extraterritorial application, most of it very critical of the European Court’s case law, has not given serious thought to normative considerations that underpin the issue, ‘except for vague and often misleading gestures to the  universality of human rights that allegedly requires their extraterritorial application.’ Generally speaking, in Besson’s view that scholarship is under-theorized and the vague references to universality fail to account for the relational nature of rights and obligations under human rights treaties. To remedy that, the ‘article endeavours to bring some normative human rights theorizing to bear on the ECtHR’s recent practice on extraterritoriality [and] hopes thereby to provide a different reading of the Court’s case law and show that it has been wrongly depicted by some authors as fragmented and even contradictory.’  Continue Reading…

LJIL Symposium: Response to Samantha Besson

by Cedric Ryngaert

[Cedric Ryngaert is an Associate Professor at KU Leuven and the University of Utrecht]

Samantha Besson has provided a fine normative account of the extraterritorial application of the ECHR. At the same time, she believes that this account may well offer a rationalization of the string of controversial ECtHR decisions in this matter. Besson’s argument may or may not have explanatory power as regards the ECtHR case-law, but what is sure is that the Court will be happy to hear that, as far as extraterritoriality is concerned, it can at least count on some academic supporters.

I concur with Besson’s analysis in many respects, but in the interest of the discussion I would like to elaborate on some points of disagreement.

In my view, that which Besson has added to existing analyses of extraterritoriality is the normative dimension of the concept of jurisdiction, as the third constitutive element of jurisdiction, apart from effective power and overall control. Drawing on legal theorist Joseph Raz’s writings, Besson submits that jurisdiction, qua de facto authority, ‘amounts to more than the mere exercise of coercion or power, as a result: it also includes a normative dimension by reference to the imposition of reasons for action on its subjects and the corresponding appeal for compliance (e.g., through giving instructions)’. Further on in her article, drawing on theorists of democracy, she cites the ‘all-subjected principle’, which ‘requires actual normative subjectedness and not only affectedness’. Continue Reading…

Weekday News Wrap: Friday, December 21, 2012

by Jessica Dorsey

LJIL Symposium: Genocide and Discrimination: A Response

by Mónika Ambrus

[Mónika Ambrus is an assistant Professor at the Erasmus University in Rotterdam]

The interpretation of the expression ‘members of the group’ in the different actus rea under Article 2 of the Genocide Convention through which genocide can be committed as well as that of ‘racial, ethnic or national origin or religious affiliation’ in the chapeau of the same article essentially boils down to who can be seen as victim of genocide (how the protected groups and their members can be identified). As simple an exercise this might seem to be, both case law and scholarly discussion, including this online symposium of the Leiden Journal of International Law, have shown that this is, indeed, not the case. Two main reasons could be identified underlying the different positions: (1) the one relates to the dimension one focuses on in the definition of genocide and the conceptualization of the relationship between the two dimensions, and (2) the other concerns the question of interpretation and the role of the judiciary. Continue Reading…

LJIL Symposium: A Comment on Ambrus by Frederic Mégret

by Frederic Mégret

[Frederic Mégret is an Associate Professor of Law and the Canada Research Chair on the Law of Human Rights and Legal Pluralism, at  McGill University]

Monika Ambrus offers a compelling treatment of the question of what constitutes genocide and persecution as a crime against humanity relying on the human rights law of discrimination to reinforce the case that both protected groups and the definition of who belongs to them should be seen as subjective questions, focusing on the state of mind of the perpetrator, rather than objective as objective issues. In that, she suggests that it is time to move beyond international criminal courts’ constant indecision between an objective and a subjective approach, and to more resolutely move towards the latter. I could not agree more. I note also that in using international human rights law to make a larger point about international criminal law (and, one might hope, vice versa) she does a praiseworthy job of breaking barriers between sister disciplines that have no reason of standing wholly apart.

In this short reaction, I will start not from the case law as Ambrus does, but from some of the underlying ambiguities of the concepts of groups, and how these were bound to create problems for the Law that end up telling us something about the enterprise of international criminal justice.  In that respect, I want to help contextualize Ambrus’s arguments in some of the challenges of post-modernizing an international legal project whose structures often remain embedded in 19th Century thinking. Continue Reading…

LJIL Symposium: A Comment on Ambrus by William Schabas

by William Schabas

[William Schabas is professor of international law at Middlesex University in London]

This article is about the fine points of how we construe a legal text adopted through a complex process of negotiation more than sixty years ago. The post-Second World War codification of genocide is notoriously narrow in scope. The reasons are relatively easy to explain.

At Nuremberg, the four ‘great powers’ had been nervous about their potential liability for crimes against humanity because of the persecution of minorities for which they were themselves responsible within their colonies or inside their own borders. For purely selfish reasons, they insisted that crimes against humanity be linked to aggressive war, failing which they would not be deemed offences at international law. In that way, Nazi atrocities against Jews within Germany could be punished as crimes under international law, while segregation and lynching in the southern United States (and similar acts attributable to Britain, France and the Soviet Union) escaped the net of international criminal liability.

When these same powers concurred in the adoption of the Genocide Convention by the United Nations General Assembly two years later, they agreed to remove the perverse nexus with armed conflict for a category of atrocity crime that they understood to be much more limited in extent than crimes against humanity. This is the definition of genocide that scholars, lawyers and judges have struggled to deconstruct over the ensuing decades.

The text adopted in 1948 provides explicitly that ‘genocide, whether committed in time of peace or in time of war, is a crime under international law’ (my emphasis).  These words were necessary in order to clarify a fundamental distinction between genocide and crimes against humanity, as the concepts were conceived of at the time.  Continue Reading…

LJIL Symposium: Introduction

by dov jacobs

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

Over the next couple of days, you will discover the fourth symposium published this year by the Leiden Journal of International Law in collaboration with Opinio Juris. The symposia up to now featured dynamic discussions on the pluralist or constitutionalist nature of the international legal order, different aspects of international criminal law, such as the theory of modes of liability or the “good deeds” of defendants, the use of fairness in international environmental law, the impact of the Nicaragua ICJ Judgment 25 years on, and a self-reflection on the nature of the epistemic community of international scholars. This selection is a testimony to the diversity of issues, approaches, views and, ultimately, the diversity of voices, that LJIL aims at promoting. We wish to thank Opinio Juris for providing the space to allow LJIL to move this intellectual dialogue online where it can continue to foster debate in a healthy and constructive way.

And the articles being discussed from Volume 25-4 of the Leiden Journal of International Law will we hope equally enable such debate. The first one tackles the difficult question of defining a group for the purposes of genocide, through the lens of discrimination law, and the second one revisits the normative dimensions of the traditional debate on the extra-territoriality of human rights.

The first discussion has as a starting point the Article by Monika Ambrus entitled Genocide and Discrimination: lessons to be learned from discrimination law. In her piece, the author discusses the difficulties in defining a protected group for the purposes of establishing the elements of the crime of genocide and proposes to borrow from discrimination law to overcome the traditional tension between the “objective” and “subjective” approach to this question. In response, William Schabas, from Middlesex University, suggests that the expanded scope of Crimes against Humanity since its initial (limited) definition in the Nuremberg Charter might ultimately make such discussions on the expansion of the definition of genocide irrelevant. In addition, Frederic Mégret, from McGill University, brings a welcome discussion on the origins of the definitions of groups in nineteen century racialist theories and points to the rather uneasy conclusion that by claiming to protect groups, there is a risk of objectifying them in a way that in fact perpetuates the causes for discrimination in the first place.

Beyond the specific questions raised by the article, I wonder if the comments by William Schabas and Frederic Mégret, as well as the response by Monika Ambrus, should not be taken as an invitation to re-evaluate the place of genocide in international criminal law. I think, as I have argued in the past, that we can debate whether genocide should ever have been thought of as a crime in the traditional sense, given the particular collective dimensions of the act, especially as described initially by Raphael Lemkin. If we move away from the objective approach to the definition of the group, as suggested by Frederic Mégret and Monika Ambrus, all one is left with is a subjective motive (as opposed to intent) for inflicting harm on particular persons, which begs the question of why we should punish certain motives (such as discrimination on perceived racial or religious differences) more harshly than others (say, based on the fact of being tall or wearing reading glasses). Genocide might be better understood as a social fact rather than as a crime, especially given that most conducts of genocide can be adequately covered under international criminal law by crimes against humanity, as pointed out by William Schabas.

The second discussion focuses on Samantha Besson’s article entitled The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to. In her piece, the author revisits the case of the ECHR on the extra-territorial application of human rights, and suggests that “jurisdiction” cannot be understood purely as a factual exercise of control, but includes a normative dimension that needs to be better defined. Cedric Ryngaert, from the University of Leuven, challenges the clear distinction between the factual and normative exercise of jurisdiction, by suggesting that most situations of factual exercise of power or control will also include a normative dimension. He also suggests that recourse to reasonableness might be a solution to deciding particular cases. Marko Milanovic, from the university of Nottingham, discusses a number of aspects of Samantha Besson’s article, and challenges it on a certain number of levels. He disagrees with some of her interpretations of the existing case-law, as well as her ambition to find an overarching theory to explain it. For him, the case-law can be explained through a political balance done by the Court between the protection of the interests of powerful states and the protection (and therefore) expansion of human rights. In the end, he considers that the article’s proposed approach to jurisdiction is too abstract and does not give answers for specific cases.

While I share Marko Milanovic’s assessment of the current case law as the result of political choices, I have strong sympathy for Samantha Besson’s attempt at theorizing and grounding the question of jurisdiction on sound conceptual foundations. Ultimately, it is a question of methodology and how we perceive our role as legal scholars. Law is a language that has its own logic in creating meaning and predictability. While this language can of course be discarded as a fiction, like any language, I believe that any belief in the possibility of legal science must be accompanied by adopting this fiction as a methodological starting point.

We hope you enjoy the debates, and hope they contribute to stimulate more discussion among the Opinio Juris community. We will be back next year with new symposiums to continue this fruitful endeavor. In the meantime, the Editorial Board of the Leiden Journal of International Law wishes all the readers a pleasant end of year season, and a happy new year 2013.

Weekday News Wrap: Thursday, December 20, 2012

by Jessica Dorsey

Zero Dark Thirty

by Deborah Pearlstein

Today marked the limited release in the United States of the already much heralded new film on the United States’ hunt for Osama bin Laden. I have not yet seen the film and won’t comment on it until I do. But I do want to at least pass along this remarkable open letter issued today by 1 Republican and 2 Democratic Senators regarding the film’s depiction of torture.

December 19, 2012

Mr. Michael Lynton
Chairman and CEO
Sony Pictures Entertainment
10202 W. Washington Blvd.
Culver City, CA 90232-3195

Dear Mr. Lynton:

We write to express our deep disappointment with the movie Zero Dark Thirty. We believe the film is grossly inaccurate and misleading in its suggestion that torture resulted in information that led to the location of Usama bin Laden.

We understand that the film is fiction, but it opens with the words “based on first-hand accounts of actual events” and there has been significant media coverage of the CIA’s cooperation with the screenwriters. As you know, the film graphically depicts CIA officers repeatedly torturing detainees and then credits these detainees with providing critical lead information on the courier that led to the Usama Bin Laden. Regardless of what message the filmmakers intended to convey, the movie clearly implies that the CIA’s coercive interrogation techniques were effective in eliciting important information related to a courier for Usama Bin Laden. We have reviewed CIA records and know that this is incorrect.

Zero Dark Thirty is factually inaccurate, and we believe that you have an obligation to state that the role of torture in the hunt for Usama Bin Laden is not based on the facts, but rather part of the film’s fictional narrative.

Pursuant to the Senate Intelligence Committee’s recently-adopted Study of the CIA’s Detention and Interrogation program, Committee staff reviewed more than 6 million pages of records from the Intelligence Community. Based on that review, Senators Feinstein and Levin released the following information on April 30, 2012, regarding the Usama Bin Laden operation:

• The CIA did not first learn about the existence of the Usama Bin Laden courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier’s identity from detainees subjected to coercive techniques. No detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which Usama Bin Laden was hidden. Instead, the CIA learned of the existence of the courier, his true name and location through means unrelated to the CIA detention and interrogation program.

• Information to support this operation was obtained from a wide variety of intelligence sources and methods. CIA officers and their colleagues throughout the Intelligence Community sifted through massive amounts of information, identified possible leads, tracked them down, and made considered judgments based on all of the available intelligence.

• The CIA detainee who provided the most significant information about the courier provided the information prior to being subjected to coercive interrogation techniques.

In addition to the information above, former CIA Director Leon Panetta wrote Senator McCain in May 2011, stating:

“…no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.”
We are fans of many of your movies, and we understand the special role that movies play in our lives, but the fundamental problem is that people who see Zero Dark Thirty will believe that the events it portrays are facts. The film therefore has the potential to shape American public opinion in a disturbing and misleading manner. Recent public opinion polls suggest that a narrow majority of Americans believe that torture can be justified as an effective form of intelligence gathering. This is false. We know that cruel, inhuman, and degrading treatment of prisoners is an unreliable and highly ineffective means of gathering intelligence.

The use of torture should be banished from serious public discourse for these reasons alone, but more importantly, because it is a violation of the Geneva Conventions, because it is an affront to America’s national honor, and because it is wrong. The use of torture in the fight against terrorism did severe damage to America’s values and standing that cannot be justified or expunged. It remains a stain on our national conscience. We cannot afford to go back to these dark times, and with the release of Zero Dark Thirty, the filmmakers and your production studio are perpetuating the myth that torture is effective. You have a social and moral obligation to get the facts right.

Please consider correcting the impression that the CIA’s use of coercive interrogation techniques led to the operation against Usama Bin Laden. It did not.

Thank you for your assistance on this important matter.


Dianne Feinstein
Senate Select Committee on Intelligence

Carl Levin
Senate Armed Services Committee
Ex-Officio Member of the Senate Select Committee on Intelligence

John McCain
Ranking Member
Senate Armed Services Committee
Ex-Officio Member of the Senate Select Committee on Intelligence

Treaties, Fear-Mongering, and the Limits of the Bully Pulpit

by Chris Borgen

John Bellinger’s op-ed in today’s New York Times,Obama’s Weakness on Treaties,”  is clear on an important tactical issue on treaty passage but somewhat muted on a more improtant, strategic, issue.   His main argument is that, given rising Republican intransigence against treaties–any treaties–, President Obama should be trying harder to pass treaties like the UN Convention on the Rights of Persons with Disabilities.

OK, but I think Bellinger’s argument puts the emphasis on the wrong issue.  It should be, given rising Republican intransigence against treaties–any treaties–, President Obama needs to work harder than previous Presidents to get any treaty passed. (And, I would add, the President actually may not be the most important voice in this discussion.)

The question of emphasis is not about the blame game.  There are plenty of missteps to go around and Bellinger catalogues those of the Administration.  But there have always been missteps and false starts; the difference is that now there are so many Republicans who refuse to even consider the possibility of treaty passage as an end point. The Obama administration may have made a tactical error with the timing of when it brought the Disabilities Convention to the Senate, but the bigger issue, the issue that Republican foreign policy leaders really need to address, is the black helicopter talk and fear-mongering by the right wing.

The ironic thing, of course, is the great heritage of internationalism in the Republican party.  A heritage being carried forward by leaders like John Bellinger and Richard Lugar. But then again, Senator Lugar was defeated in his own primary by a Tea Party Republican.  So what I would say to Bellinger is this: your advice to the President is helpful, but the elephant in the room is that the Republican base is scared and is not interested in listening to the President, especially on the issue of treaties. There is a limit to what the President, who is constantly villified on right wing radio and TV, can do to calm the Republican base on the issue of treaties, which are incessantly described by right wing pundits and pols as giving away our sovereignty and capitulating to the UN.  In other words, by these mutually reinforcing arguments, the person you would most like to use the bully pulpit to ensure passage of these treaties is the person least likely to be trusted by the right wing.

So, my advice to my Republican friends would be this: Please talk amongst yourselves a little bit. This is a moment for Republicans to calm their own party’s fears about treaties. We can have a great national dialogue about which treaties to sign, but first we need to have someone to talk to. Right now, what you hear coming from the Republican Party is “No, No, No.” No to this treaty. No to that treaty. No to any treaty. Of course there are Republicans who at times support the passage of various treaties. But far too few. Thirty-eight Republican senators voted against the Disabilities Convention, largely focusing on its (perceived)  implications for that Tea Party favorite issue, home schooling.

I’m sure the Administration will work on improving the timing of when it brings treaties to the Senate and on its bully pulpit issues. But relying on the bully pulpit has its limits. I prefer reasoned discourse. It is one thing not to push as hard as possible for a treaty; it is another to constantly push against any and all treaties. That is the real problem.  And that is a problem that the Republican leadership and punditocracy, not the President, is in the best position to address. Should they choose to do so.



Weekday News Wrap: Wednesday, December 19, 2012

by Jessica Dorsey

Small Steps Towards More Transparency and Fairness in the Al Qaida Sanctions Regime

by Kristen Boon

On December 17 the UN Security Council unanimously adopted Resolution 2083, which further details the listing / delisting criteria for the 1287 Al Qaida Sanctions regime.   This Resolution also extends the Ombudsperson’s mandate for another 30 months, guaranteeing some stability for those who seek delisting.  Simultaneously, the Council adopted Resolution 2082, applying the same measures to the Taliban sanctions regime.

Last week I blogged about the wider dynamics leading up to this resolution here, noting proposals by the Like Minded Group to strengthen the Ombudsperson’s powers and improve the listing procedures, by, for example, codifying the office’s practices.  I also flagged the due process concerns raised by the Special Rapporteur on Human Rights and Counterterrorism.

Few of these proposals survived into the final text of the resolution.  Nonetheless, aspects are discernible indicating the conversation continues.  For example, in paragraph 36, the Ombudsperson may request exemptions to the travel ban so that petitioners can travel to another state to meet with the Ombudsperson.  Similarly, the resolution highlights the importance of providing reasons for listing, and strongly urges states to provide relevant information, even if confidential, and to allow the Ombudsperson to reveal their identities as designating States.

It’s not what advocates for a strong, quasi-judicial regime had hoped for, but critics of this vision note that neither listing nor delisting is a criminal process.  The march towards a Rule of Law applicable to the UN Security Council inches forward.

Weekday News Wrap: Tuesday, December 18, 2012

by Jessica Dorsey

China invokes UNCLOS in claiming sovereignty over the Diaoyu/Senkaku Islands

by Duncan Hollis

I’m gearing up for a Spring Semester teaching at Temple’s Tokyo campus.  As part of my preparations, I’ve begun to read-into some of the maritime boundary disputes between China and Japan that have caused so much friction between the two nations of late.  Recent news reports have emphasized (i) China’s moves by air and sea to challenge Japanese control over waters surrounding what the Japanese refer to as the Senkaku Islands (or the Diaoyu Islands if you’re on China’s side) and (ii) how the new Japanese government may be more hawkish in responding to such measures.  So, perhaps it’s not surprising that China’s now also beginning to push its case legally, invoking UNCLOS’s provisions on delineating continental shelf rights beyond its 200 nautical mile Exclusive Economic Zone.

Specifically, UNCLOS Article 76 provides in paragraphs 7-9:

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

China submitted its initial continental shelf claim in 2009.  This past Friday, December 14, China provided an additional “partial submission” on its claims to the East China Sea.  Here’s the key take-away from that submission:

The geomorphological and geological features show that the continental shelf in the East China Sea (hereinafter referred to as “ECS”) is the natural prolongation of China’s land territory, and the Okinawa Trough is an important geomorphological unit with prominent cutoff characteristics, which is the termination to where the continental shelf of ECS extends.  The continental shelf in ECS extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of China is measured.

You can access the full text of China’s submission here (and, if you’re interested, you can also read  Japan’s earlier submissions or see here for the Japanese Foreign Ministry’s take).

I don’t hold out much hope that UNCLOS or the Continental Shelf Commission will actually determine a resolution to this on-going dispute.  But, I am hopeful that China’s move to legal argumentation may give both sides a forum in which cooler heads can prevail, in stark contrast to other existing fora where things have gotten quite heated (see, e.g., the Japanese government’s move to buy the islands, or the scrambling of military aircraft to respond to Chinese vessels transiting the territory).  In any case, the legal and political ramifications of this dispute clearly will bear close watching.

IntLawGrrls Says Goodbye

by Peggy McGuinness

I was saddened to read the announcement last week from Diane Amann — the indefatigable founder, editor, and voice of IntLawGrrls — that IntLawGrrls is closing its blog.  IntLawGrrls has been an amazing source of historical, topical and, at times, deeply personal discussions about international law and the role of women in law and global governance.  It is and will remain an important documentary source of the views of the leading female (and some male) voices in international law and international organizations of our time.  Of course, in the blogosphere, nothing really disappears, and scholars, students and practitioners will benefit from the wonderful contributions of Diane, Jaya Ramji-Nogales, Beth Van Schaack and the many, many other contributors (over 300!) to IntLawGrrls for many years to come.  Diane has been a great friend of Opinio Juris and we have enjoyed many collaborations, guest posts and cross-posts over the years.  We will miss you IntLawGrrls, but look forward to hearing from the contributors in other fora in the future.


ICC Prosecutor Names Diane Amann, Leila Sadat, and Patricia Sellers to Advisory Positions

by Peggy McGuinness

ICC Prosecutor Fatou Bensouda has announced the appointment of three distinguished experts in international criminal law to serve as special advisers to the OTP.  Diane Amann of the Univ. of Georgia Law School has been named Special Adviser on Children in and affected by Armed Conflict. Leila Sadat of Washington University Law School will serve as Special Adviser on Crimes against Humanity. Patricia Viseur Sellers, who is currently at Oxford University, has been named Special Adviser on International Criminal Law Prosecution Strategies. Jaya Ramji-Nogales has the full details over at IntLawGrrls here and here. All three bring a wealth of experience to their new posts, both as practitioners and as scholars of international criminal law, and we look forward to hearing more about their work with the Prosecutor in the coming months. Congratulations to all!

Weekday News Wrap: Monday, December 17th, 2012

by Jessica Dorsey

Events and Announcements: December 16, 2012

by An Hertogen

Calls for Papers

  • The Program on Information Justice and Intellectual Property and Center for Human Rights and Humanitarian Law, American University College of Law; the Intellectual Property Law Center, Drake University Law School; the Center for International and Comparative Law, Duke University Law School; the Institute for Information Law and Policy, New York Law School; and the Committee on International Intellectual Property, American Branch of the International Law Association are co-sponsoring a Conference and Roundtable on Intellectual Property and Human Rights on February 21-22, 2013 at the American University Washington College of Law. The conference will focus on three distinct sets of issues being explored as part of a forthcoming book project edited by Molly Land and Peter Yu: (1) the right to free expression and enforcement of copyright on the internet; (2) the intersection of intellectual property laws and rights to benefit from culture and scientific progress; and (3) the right to health and access to patented medications. The conference welcomes presentations from participants who not wish to be involved in the project and on topics outside these three main themes. On Friday, February 22, registered participants are invited to a half-day roundtable discussion (under Chatham House Rule) on developing a working group of scholars and advocates engaged in work at the intersection of intellectual property and human rights. If you are interested to attend either or both events, please register here by January 22, 2013. If you want to present during the conference on February 21, please fill out the abstract section with a submission of no more than 500 words.
  • The American Society of International Law’s Lieber Society on the Law of Armed Conflict is calling for submissions for the Francis Lieber Prize. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.
    • Criteria: Any work in the English language published during 2012 or whose publication is imminent at the time of submission may be nominated for this prize. The re-submission of works which have already been considered for this prize is not allowed. Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
    • Age Limit: Competitors must be 35 years old or younger at the time of submission. They need not be members of the American Society of International Law. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors. Submissions from outside the United States are welcomed.
    • Submission: Submissions, including a letter or message of nomination, must be received by 21 January 2013. Three copies of books must be submitted. The electronic submission of articles is encouraged. Authors may submit their own work. Any work not already published must be accompanied by documentation indicating that it has been accepted for publication. All submissions must include contact data (e‑mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e‑mail.
    • Printed submissions must be sent to: Professor Iain Scobbie, Department of Law, School of Oriental and African Studies, Thornhaugh Street, Russell Square, London WC1H 0XG, United Kingdom. Electronic submissions must be sent to: is17 [at] soas [dot] ac [dot] uk . Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
    • Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in March 2013.
  • The Global Norms Project at the Universität Bremen is calling for abstracts of up to 500 words, due by February 15, 2013, for a conference on The Legitimation and Delegitimation of Global Governance Organizations to take place in Bremen, Germany, on September 11-13, 2013. More information can be found here.


  • Elizabeth Trujillo from Suffolk University Law School and Jason Yackee from University of Wisconsin School of Law have been elected to be Co-Chairs of the International Economic Law Interest Group for ASIL, after 2 years as being Co-Vice Chairs under the leadership of Sungjoon Cho and Claire Kelly.  New Co-Vice-Chairs are David Zaring and Sonia Rolland.  The election took place at the ASIL-IEcLIG Biennial conference held at George Washington Law School in Washington DC on Nov. 29-Dec. 1, 2012.  The new leadership will be assuming their positions at the ASIL 2013 Annual Meeting in April.

Last week’s announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Law of the Sea Tribunal Resoundingly Affirms the Sovereign Immunity of Warships and Orders Ghana to Release Argentine Tall Ship ARA Libertad

by Craig Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

On December 15, 2012, one phase of the dispute between the Argentine Republic and the Republic of Ghana over the “seizure” of the Argentine frigate ARA Libertad while in a Ghanaian port came to an end, when the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany ordered Ghana to “forthwith and unconditionally release the frigate ARA Libertad” and to “ensure that the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and … that the frigate ARA Libertad is resupplied to that end.” (See Order of 15 December 2012).

The order came just one month after Argentina filed its application for provisional measures with the ITLOS. The tribunal’s decision—which should receive a warm welcome in the Pentagon—sends a clear message on the principle of sovereign immunity of warships and the readiness of ITLOS to enforce that immunity even when the warship is in the port or internal waters of another state—at least if the involved states are party to the 1982 LOS Convention.

The dispute between the two states has its roots in Argentina’s 2001 default on roughly $100 billion in sovereign debt, reportedly the largest sovereign default in history. NML Capital Investments, which owns some $1billion in Argentina’s sovereign debt, obtained judgment in a New York federal district court for $284 million in 2006. The U.K. Supreme Court later upheld NML’s right to execute its judgment against Argentina’s assets in the U.K. (NML Capital Ltd  v Republic of Argentina, [2010] EWCA Civ. 41, aff’d, [2011] UKSC 33), a decision extensively relied on by agents for Ghana during oral argument at the ITLOS.

Weekend Roundup: December 8-14, 2012

by An Hertogen

This week on Opinio Juris, a guest post by Daniel Bethlehem, following up on a post by Julian Ku last week, offered three more legal bases for the legality of an intervention in Syria. Also continuing on some of last week’s themes, Kevin Jon Heller wrote how a recent decision by the ICC’s Appeals Chamber confirms his argument on retroactive ad hoc jurisdiction, and Deborah Pearlstein couldn’t resist taking apart Eric Posner’s Slate article on Jeh Johnson’s recent speech in Oxford. In another post, Deborah refused to read too much into the decisions by Harold Koh and Jeh Johnson to step down from their respective roles at the State Department and the Pentagon.

Ken Anderson recapped the recent debate on autonomous weapon systems and regulation, about which he has created a brief bibliography over at Lawfare. He also extended his congratulations to various members of the OJ community, including Kevin who was recently promoted to Associate Professor & Reader.

Kevin discussed rumours that the OTP is investigating the actions of the M23 movement and others in eastern Congo, and Kirsten Boon discussed the UN Security Council’s upcoming review of the mandate of the Ombudsperson and monitoring regime for al-Qaida sanctions.

On a lighter note, Duncan Hollis provided a link to Jimmy Fallon’s routine on the best treaty in the world and Kevin posted about international relations as depicted by cats.

As always, we provided a listing of upcoming events and daily news wraps.

Have a nice weekend!

The UN Security Council Set to Renew Ombudsperson’s Mandate for Al Qaida Sanctions Regime

by Kristen Boon

A big item on the Security Council’s agenda this month is reconsideration of the mandate of the Ombudsperson and Monitoring Regime for Al Qaida Sanctions, pursuant to Security Council resolutions 1267 and 1989.  Of particular interest are measures proposed by Like Minded States this year (including, amongst others, Switzerland, Belgium, Austria, Norway, Costa Rica, and Germany) which suggest a variety of new measures (and see UN Doc S/2012/805 here for the most recent proposals) to strengthen the Ombudsperson’s office, including codification of its practices, allowing the Ombudsperson to request humanitarian exceptions from the list, disclosing the referring state, disclosing reasons for listing and delisting, and potentially even extending the mandate of the Ombudsperson to other relevant sanctions regimes.  The last suggestion in particular would be a fascinating development – an Ombudsperson with jurisdiction over other sanctions committees with listing powers would be the first step towards a generalized review process.

The Security Council’s consolidated sanctions list has generated much attention due to the vast array of legal challenges the list has sparked over the past decade.    Approximately 30 such cases  have now been brought against the UN, EU and member states.  Specifically, these cases allege various human rights problems in the listing process resulting in violations of the right to property, freedom of movement, privacy and the right to an effective remedy. Most famously, Yassin Abdullah Kadi challenged the implementation of the resolution by the Council of the European Union and the Commission of the European Communities. For an overview of this complicated litigation, including October 2012 oral hearings on the second appeal, see this post at the European Law Blog.  Of particular note in this regard is that Kadi was recently delisted by the Sanctions Committee in October 5, 2012, as noted on the Ombudspersons’ website.   Another recent decision of interest is the European Court of Human Rights’ September 2012 judgement in Nada v. Switzerland.  The Court found that Switzerland violated Nada’s right to family and a private life in its implementation Resolution 1267, and noted that implementation of the Resolution does not bar domestic judicial review.

Life is hard for someone on a UN “blacklist”.  Once an individual is placed on the consolidated lists, States are required to impose a travel ban, asset freeze, and arms embargo, resulting in a situation where the named individuals will not be able to sell property, pay their bills, travel, deposit their paychecks or access funds.  And of course there is the general censure of the community.   Ultimately, sanctioning amounts to the imposition of a penalty.  Yet because the sanctions are not part of a criminal procedure the due process normally afforded to those accused of a crime does not apply.  Although there is evidence the sanctions are effective in combatting Al Qaida, the Security Council’s regime is perhaps better known for the cases in which it was ineffective: where the wrong individual was listed (cases of mistaken identity), when the information was found to be incorrect, or where the individuals were deceased.  The Watson Institute at Brown has just published a new report on Due Process and Sanctions here.  In addition, the Graduate Institute in Geneva issued an assessment of the effectiveness of targeted sanctions generally here.

In an attempt to improve the process, the Security Council created an Ombudsperson’s office in 2009 under Resolution 1904 to assist with delisting requests.  The post is currently held by Kimberly Prost.  The regime was strengthened two years later under Resolution 1989, when a new rule was adopted: if the Ombudsperson recommends against retaining a listing, then that listing will be removed unless the Committee decides by consensus to retain it.  To date, there have been approximately 34 requests for delisting.  Twenty of these came after the regime was strengthened under Resolution 1989.  Of those 10 have been delisted, and 1 was refused.  The most recent report of the Ombudsperson is available here.  Of particular note are the details on how the Ombudsperson has tried to improve fair process.

There is no doubt that the process has improved, but such improvements have not satisfied many critics.  Ben Emmerson, UN Special Rapporteur on Counter Terrorism and Human Rights, released a report in September 2012 that highlighted deficiencies of the Ombudsperson’s office from a human right perspective.  Specifically, he noted that the Ombudsperson’s office is not strong enough because it cannot make its own decisions on delisting, nor can it force member states to provide information.  He also noted that the Ombudsperson is not required to exclude evidence obtained by torture.  He argues that the process does not meet international due process standards.

The new generation of “smart” sanctions have played an important role in restraining the activities of terrorist organizations, but they have also had a significant impact on individual rights and freedoms.  The ongoing debate over the power of the Ombudsperson and the mandate of the 1267 Monitoring Team underscores the dialogue between national and regional courts who have highlighted the many due process concerns in the Committee’s approach on the one hand, and the member states that are incrementally moving towards an administrative / judicial process applicable to the Security Council and its power to sanction.  The Security Council is likely to adopt the extension early next week …. stay tuned for an update!

Weekday News Wrap: Friday, December 14, 2012

by Jessica Dorsey

International Relations as Depicted by Cats

by Kevin Jon Heller

Two of my favorite things, now together in one hilarious tumblr site.  My two favorites:

Check them all out here.

Weekday News Wrap: Thursday, December 13, 2012

by Jessica Dorsey

Appeals Chamber Confirms Retroactive Ad Hoc Jurisdiction

by Kevin Jon Heller

I had an interesting — and respectful — disagreement with André de Hoogh last week concerning the right of non-states parties to retroactively accept the jurisdiction of the Court pursuant to Article 12(3) of the Rome Statute.  I argued in my post that Palestine could accept the Court’s jurisdiction retroactive to whenever it became a state under international law.  Andre challenged that claim in the comments, arguing that “[i]n view of the clear intention expressed in article 11(2) to grant the Court only prospective jurisdiction in regard to members, there is no compelling reason or rationale to judge this issue differently for non-members under article 12(3).”

As if on cue, the Appeals Chamber has just weighed in on the retroactivity issue in the context of Cote d’Ivoire’s ad hoc acceptance of the Court’s jurisdiction under Article 12(3).  Cote d’Ivoire filed its Article 12(3) declaration on 18 April 2003 but accepted the Court’s jurisdiction retroactive to 19 September 2002.  Laurent Gbagbo later challenged the temporal scope of the declaration, arguing that it applied only retroactively — that it gave the Court jurisdiction over events that occurred between 19 September 2002 and 18 April 2003, but not over events that occurred subsequent to 18 April 2003.  (Which would obviously mean the Court did not have jurisdiction over the crimes with which he is charged.)  The Appeals Chamber rejected that argument, and in doing so it made clear that Article 12(3) permits non-member states to accept the Court’s jurisdiction both retroactively and prospectively:

83. In this context, the Appeals Chamber notes that the Statute also serves the purpose of deterring the commission of crimes in the future, and not only of addressing crimes committed in the past. This supports the interpretation that article 12 (3) of the Statute does not prevent a State from accepting the jurisdiction of the Court prospectively, with the consequence that the Court has jurisdiction in respect of any future events that may fall within one or more of the categories of crimes in article 5 of the Statute, as applicable.

84. The Appeals Chamber therefore concludes that the phrase “crime in question” in article 12 (3) of the Statute neither limits the scope of a declaration to crimes that occurred in the past nor to crimes committed in a specific “situation”. A State may accept the jurisdiction of the Court generally.

This is an important decision, because it means that Article 12(3) would permit Palestine to accept the Court’s jurisdiction retroactive to when it became a state.  (A difficult question, one I did not attempt to answer in my post.)  It also means that Palestine could submit an Article 12(3) declaration and then immediately ratify the Rome Statute, thus becoming an ICC member-state while preserving the Court’s retroactive jurisdiction.

Whether the Palestinians will pursue either course remains to be seen.

Al Qaeda in IKEA

by Deborah Pearlstein

As loathe as I am to call any attention to Eric Posner’s latest over on Slate, his piece engaging the Jeh Johnson speech (about the notion that the Al Qaeda that attacked us on 9/11 might someday be defeated) is such a blast from the past it’s hard to resist. Turns out the President has really been detaining everyone under his Article II power all along; that “ordinary law enforcement” is useless against terrorism (guess someone forgot to tell the FBI and its 300-some indictments related to jihadist terror or national security charges since 2001); and that one of two key world changes in recent years that has made terrorism so much more dangerous is terrorists’ ability to miniaturize weapons (but see footnote 50 here). Plus ca change.

For now, let’s focus on the key point of Johnson’s speech: the suggestion that the effective dismantlement of core Al Qaeda might someday mean the AUMF no longer authorizes the President to continue detaining people on the grounds that we are in a conflict with Al Qaeda. Eric begins explaining the debate as follows: “[As civil libertarians wearing ‘rose colored glasses’ would have it,] [t]he AUMF triggered the president’s commander-in-chief power, which enables him to detain enemy combatants indefinitely and kill them with drones and other weapons….”

As an initial matter, hard to figure out what Eric means, “the AUMF triggered” the President’s Commander-in-Chief power. The President is CINC in wartime and not, and whatever powers Article II of the Constitution provides him (more on which anon) I figure they’d exist whether Congress “triggers” them or not. More to the point, it would be a lot easier just to describe the Jeh Johnson argument – the position taken not only by Jeh, but by the President, the Congress, and the federal courts – as what it actually is, namely, that the AUMF is the source of authority for at least a substantial chunk of the detention and targeting we’ve been doing (and certainly for the detentions at Gitmo).

In any case, the AUMF is I guess mostly beside Eric’s point. As he continues: “[E]ven if al-Qaida and its affiliates are destroyed, it will make little difference for the president’s authority to use military force against future terrorist threats. The president will retain his authority under the Constitution, Article 2 of which has been interpreted to give the president the power to use military force against security threats even in the absence of congressional authorization.”

Well, it’s true no doubt the President has some constitutional powers of national self-defense; indeed, the UN Charter (among treaties the U.S. has ratified) has a few things to say about states’ inherent right to repel such threats, provided they are, among other things, imminent. But I’m not sure I’ve ever heard quite so sweeping a description of the President’s use-of-force Article II power before – a power that lets the President do whatever he wants “against security threats” writ large? There is no support in domestic law for the proposition that the President has the power to use force against anything he deems a “security threat” anytime without authorization, and negative support in international law for the proposition that such a use of force (without, for example, a requirement of imminence) is lawful. (Harder still to see how such a power to repel imminent threats could support a decade-long detention program, for example, without congressional authorization. Anyway, again, I kinda thought we’d settled that.)

But one could easily get distracted addressing all the sweeping assertions about legal doctrine and security reality and miss the broader point. Namely, Eric thinks the ever-changing problem of terrorism is here to stay. With this, I agree. Don’t think I know anyone who thinks otherwise. But most folks – the General Counsel for the Secretary of Defense, among others – also think that the President’s powers to address the threat do and should have limits (statutory and otherwise) as a matter of law. So the question I took Jeh to be asking is what happens when, as will someday be the case, the particular terrorist group that attacked us on September 11 – to which one of those authorizations is, by its terms, tied – is effectively no more? What security policy best serves our interests in minimizing the forever kind of threat then? Knowing that our laws and practices influence the behavior of allies and enemies around the world, what powers do we want the U.S. government to have long term?

Here, too, hard at first to tell whether Eric’s response is more about security policy or statutory interpretation. He writes: “[A]lthough Johnson notes that the ‘core’ of al-Qaida has suffered a significant lashing, its affiliates are alive and well, especially in the Middle East, where they appear to be flourishing. The AUMF identifies the affiliates of al-Qaida as the enemy, as well as al-Qaida itself. As long as those affiliates remain in existence, the United States will be at war with them. And because ‘al-Qaida’ has become a kind of brand that any group can lay claim to, al-Qaida affiliates will be around as long as radical Islam is.”

I tend to doubt Eric means this mostly as statutory interpretation, given his view that the AUMF doesn’t much matter for purposes of the President’s power anyway, and given that as a matter of interpretation, the courts have already held the AUMF authorization extends to “associated forces” (as informed by international law), not “affiliates,” whatever that means. There’s also the not insubstantial conceptual problem of fitting terrorist groups into the kind of unified hub and spoke-type organization the AUMF (and international law) would seem to contemplate where the hub no longer exists. (The white petals of a daisy fall to the ground in disarray if the flower loses its yellow core.) It is also facile (and as best I can tell sometimes wrong) to imagine that just because another group of radicals has claimed the franchise name “al Qaeda” they in fact have any association with the al Qaeda that attacked us on September 11. (Just because I set up a coffee stand and hang up a shingle saying “Starbucks” doesn’t mean I have any affiliation with Starbucks. Indeed, sometimes it’s quite the contrary.) None of this is for a moment to suggest that all danger disappears along with ‘core’ Al Qaeda. It is only to point out that it is difficult to understand an idea of “associated forces” if there is no longer an extant group they are associated with.

So let’s set the law aside for a moment and take Eric’s point for what I think he means it to be – one of security policy. A policy that says, in essence, whatever and wherever the “radical Islamist” threat du jour, the best (only?) way of dealing with them is to call them all al Qaeda and target and detain them henceforth and forever. This would certainly be one way to answer the policy question. But Eric’s essay offers scant support for concluding it’s the right one. Meantime, security policy experts like (Iraq counterinsurgency guru) David Kilcullen have argued forcefully that lumping together relatively disparate terrorist groups is exactly the opposite of what would be effective if one’s goal were to undermine local insurgents’ potentially more far-reaching goals.

What Jeh’s speech very usefully opened is the possibility that it is time to design a post-crisis, post-emergency, post-war counterterrorism strategy going forward. One that is smarter than the ad hoc response we cobbled together in a hurry a decade ago, that takes account of lessons learned, and that has built in at its core (to use a word) a commitment to operating within a system of law. That is, a policy that includes law and legal constraints at the outset, but doesn’t let legal wrangling obscure the need for starting with a strategic goal.

Various Congratulations

by Kenneth Anderson

A quick roundup of congratulations to folks in the broad OJ community …

  • To OJ’s good friend Joseph Weiler – whose distinguished record I won’t even try to summarize – named as the new president of the European Union Institute in Florence. (H/T Martin Holterman.)
  • To likewise distinguished and long-time UN diplomat (most recently SG special adviser on responsibility to protect) Edward Luck, who has been named dean of the University of San Diego’s School of Peace Studies (I was out to give a talk at the USD law school last week and was surprised and delighted to see Ed there; what a terrific move by USD).
  • To our very own Kevin Jon Heller (he’s too modest to announce this, but I think it’s good for us to recognize our own folks’ achievements), who, Our Spies Report, has been promoted to Associate Professor and Reader at Melbourne Law School (for American readers, that’s the equivalent of full professor).  Our Spies further Report that the review letters cited his blogging here at OJ, which of course pleases OJ, though anyone who reads Kevin here know that his blogging is deeply informed by his full-on scholarship.

Weekday News Wrap: Wednesday, December 12, 2012

by Jessica Dorsey

Autonomous Weapon Systems and Regulation – A Brief Bibliography

by Kenneth Anderson

Well, bibliography is too grand for what I’ve done over at Lawfare, which is put up a list of articles and reports, with links and a brief description, of documents currently in the debate over the regulation of autonomous weapon systems.  I will update it periodically – I won’t start adding older documents, but as new things come out I’ll add them.

To recap the state of the discussion, however … coincidentally, I’m sure, Human Rights Watch/Harvard Law School International Human Rights Clinic launched their report on autonomous weapon systems, “Losing Humanity: The Case Against Killer Robots,” the same weekend that the Defense Department issued a DOD Directive, “Autonomy in Weapons Systems.” We’ve talked about the HRW report here at OJ some – it is both a report and a set of recommendations calling for a multilateral treaty that would prohibit the “development, production, and use” of autonomous weapons systems.  To judge by its reception in the international NGO community, it seems to be a call for the landmines ban campaign of the 1990s, redux.  The DOD Directive, for its part, calls for integrated review of weapons systems as they acquire more automated features, as well as other things such as training of DOD personnel, to ensure that humans retain the “appropriate” level and kind of role suitable to the system and its use. The HRW report and the DOD directive are headed in very different directions – this is something of an understatement.

After the HRW report appeared, the Naval War College’s Mike Schmitt produced and posted to SSRN a short response to it, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics.”  Mike frames his critique of the report as an argument very much from LOAC – arguing that IHL does not prohibit autonomous weapons or weapon systems as a category of weapon or (other requirements of law being met) their use as such.  He also walks through the process by which DOD reviews weapons for their legality as to both weapon and use.  By contrast, Matt Waxman’s and my critique at Lawfare, as well as Ben Wittes’ separate critical post, were much more about policy and, especially, questioned the many factual premises of the HRW report.  These run from HRW thinking it can predict the empirical outcomes of technology over a long run of time, to HRW’s remarkably self-confident factual assertions on the superiority of human emotions in controlling targeting and firing of weapons, empathy over fear.

Ultimately, however, Mike, Ben, and Matt and I come to the same general conclusion – the HRW preemptory ban call is not likely to gain very much traction and, in our various separate ways, each of think it ought not to because it’s wrong in principle, and in any case this brief and factually speculative report simply can’t support the kind of sweeping recommendations it finally makes. However, Tom Malinowski has responded on behalf of HRW to Matt and me, and separately to Ben, at Lawfare. Meanwhile, the final published version of Matt Waxman’s and my “Law and Ethics for Robot Soldiers,” of which we had posted a working version with footnotes at SSRN, appeared in the new issue of Policy Review.  Finally, because of arguments over the definitions of autonomy and automation, I included in the bibliography a very useful article appearing in 2013 from William Marra and Sonia McNeil, “Understanding ‘The Loop’: Regulating the Next Generation of War Machines,” 36 Harvard Journal of Law and Public Policy 3 (2013), which also appeared as a working paper in the Lawfare Research Paper Series 1-2012.

That’s quite a flurry of activity.  I’ll also add to the list an article on December 3, 2012 in the Guardian by the prominent artificial intelligence scientist Noel Sharkey, who has been pressing for just such an international ban campaign for years and who has served as something of the intellectual inspiration and adviser behind HRW’s embrace of the whole ban treaty agenda.  I don’t share Professor Sharkey’s views (with some I disagree on principle and with others, such as the factual future of technology, I’m agnostic, but unwilling to give up the possible benefits and certainly not sympathetic to HRW’s ban proposals). But he is the most persuasive voice for the ban campaign (as well a model of grace and good humor in debating this, which is no small thing), and I’m much looking forward to meeting him at a January conference on artificial agents at the University of Virginia.  (Update: I’m only including current stuff, going forward, rather than trying to go backwards and generate a true bibliography.  But you’ll find that the notes to most of these pieces, where they have them, point to a lot of useful background materials legal, moral, policy, strategy, and technology.)

Knock. Knock. Who’s There? Best Treaty in The World

by Duncan Hollis

It’s that time of year when things get really busy in the law school environment (not to mention the pre-holiday press of government service, firm work, etc.).  So, for those of you looking for a momentary break from the memo-drafting, exam-writing, grading, article research, whirlwind of holiday events, etc., I submit to you — Jimmy Fallon on treaties.  The routine is a couple of years old, but it’s still pretty funny.  Of course, I take issue with the audience member who says the Treaty of Guadalupe Hidalgo is the “best treaty in the world.”  He clearly doesn’t know what he’s talking about.  It’s not even in the top five treaties of all time.

Hat Tip:  My colleague (and legal historian) Harwell Wells.

Weekday News Wrap: Tuesday, December 11, 2012

by Jessica Dorsey

Weekday News Wrap: Monday, December 10, 2012

by Jessica Dorsey

Jeh Johnson and Harold Koh to Step Down

by Deborah Pearlstein

In case you missed it, the past week saw the announcements that both Pentagon General Counsel Jeh Johnson and State Department Legal Adviser Harold Koh would be stepping down from the Obama Administration at the end of the year. Johnson reports he’ll be returning to the private sector; Koh will head back to his professorship at Yale Law School.

The departures of course create critical vacancies in two top administration legal posts, but I think not too much significance beyond that. Both Johnson and Koh served for essentially Obama’s entire first term – an admirably lengthy tenure given the enormous personal wear and tear that come with these kinds of jobs. That Johnson’s resignation announcement followed close on his important speech at Oxford contemplating limits on the duration of the U.S. conflict with Al Qaeda (much discussed at the time, e.g., here) is perhaps noteworthy. But far more likely than there being any causal relationship between one event and the other – Johnson’s speech inevitably went through ample interagency review before it was given – it seems best to understand the Oxford speech as Johnson’s valedictory address. A useful reminder that the AUMF (among other laws) has a shelf life his successor will sooner or later have to confront.

Upcoming Events: December 9, 2012

by Jessica Dorsey

Upcoming Events

  • The American Society of International Law’s Domestic Courts Interest Group is hosting its annual workshop December 10, 2012, at Duke University School of Law. More information can be found here.
  • On December 18, at 5:30pm, the Center on the United States and Europe at Brookings will host the 9th Annual Raymond Aron Lecture, a talk on “The Internationalization of Law” by Collège de France Professor Emeritus Mireille Delmas-Marty. Following Dr. Delmas-Marty’s remarks, U.S. Supreme Court Associate Justice Stephen G. Breyer will offer a response. Brookings President Strobe Talbott will provide introductory remarks and Brookings Senior Fellow and CUSE Director Fiona Hill will moderate the discussion. After the program, panelists will take audience questions.
  • The 33rd meeting of the Deutsche Gesellschaft für Internationales Recht will take place at the Universität Luzern, March 14-16, 2013.

Calls for Papers

  • The Penn State Journal of Law & International Affairs (JLIA) announces a call for papers for an issue exploring the evolution and future of the field of international criminal justice on the tenth anniversary of the International Criminal Court. Papers should analyze topics at the intersection of law and international affairs, including the future of international criminal justice, the role of international criminal justice in international relations, the structural challenges facing the International Criminal Court and its ability to fulfill its mission in the coming decades, as well as other related topics. Submissions are due by January 28, 2013. More information can be found here.
  • The  British Branch of the International Law Association has issued a call for papers its 2013 spring conference with the theme: The Changing Face of Global Governance: International Institutions in the International Legal Order at the University of Oxford, April 12-13, 2013. More information can be found here. Abstracts should be no longer than 500 words; they should be submitted by 15 January 2013 to ila2013oxford (at) gmail (dot) com.
  • The University of Wisconsin will host the second conference of the Creation of International Law Network, in 2014 with the theme of Exploring the International Law Components of Peace. A call for abstracts has been made. More information can be found here.

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.

ICC Investigating Rwandan Officials for Involvement with M23?

by Kevin Jon Heller

According to Enough!, the OTP is investigating the actions of M23 and “other parties” in the DRC:

In the aftermath of the March 23 Movement, or M23, seizure of Goma, the International Criminal Court, or ICC,Chief Prosecutor Fatoua Bensouda announced that her office is investigating “allegations of ICC crimes by members and leaders of M23, and by other parties taking advantage of the chaos in the region.” While documenting the M23’s crimes is undeniably important, a robust ICC investigation into the other actors responsible for international crimes being committed across eastern Congo could provide much needed leverage to the international community as it seeks to broker peace in the troubled region.

It seems highly likely that the “other parties” in question are Rwandan military and political officials, who — according to the UN — have “created, equipped, trained, advised, reinforced and directly commanded the M23 rebellion.”  Indeed, the UN believes that a Rwandan general, Gen. Emmanuel Ruvusha, personally directed M23’s recent capture of Goma.

It is probably too much to ask for the ICC to bring charges against Kagame for his support of M23. Nevertheless, charges against senior Rwandan military officers would go a long way toward dispelling Kagame’s carefully-cultivated image as a positive force in Rwanda and the region. I doubt anyone in the region takes that myth seriously, but Kagame still has many credulous supporters in the West.

That said, the ranks of Kagame supporters are thinning.  The UK just announced that it is suspending £21m in aid to Rwanda because of concerns about its actions in the DRC.

A Brief Reply on the Legal Bases for Intervention in Syria

by Daniel Bethlehem

In response to Julian Ku’s post here on the potential legal justifications for the U.S. to use force against Syria in the event Assad turns to chemical weapons, Daniel Bethlehem sent along the following. Daniel Bethlehem practices in London and served as Principal Legal Advisor to the UK Foreign and Commonwealth Office from 2006-2011.

Julian Ku suggests that “[a]ssuming no Security Council approval, I think the U.S. would be in technical violation of the UN Charter [were it to intervene in response to an apparent Syrian chemical weapons threat]. Although this may be correct as a matter of international law, it seems like a silly result.”

I agree that this would be a silly result and, with the caveat that a legal assessment would ultimately be fact specific, suggest that the analysis might be broadened to include an examination of the following possible legal bases.

First, the recent request by Turkey under the framework of NATO, now agreed, to be provided with Patriot missile batteries to protect against the risk of a Syrian use of chemical weapons, suggests the possibility of a collective self-defence rationale for military intervention to address such a threat.

Second, with many thousands of deaths and injuries in Syria already, as well as some millions of refugees and internally displaced persons, and the realistic prospect of a significant increase in these numbers if chemical weapons are used, there would seem to be a strong basis for a reasonable assertion of a humanitarian intervention rationale for any action.

Third, there is a line of commentary that suggests that the provision of aid and assistance to one side in a civil war in response to a request is legally defensible – akin to intervention pursuant to request by a government.

A focused Chapter VII authorisation by the UN Security Council would no doubt be the preferable way in which to proceed. But it is not the only available legal framework for action to address a real and substantial threat of the use of chemical weapons.

Weekend Roundup: December 1-7, 2012

by An Hertogen

This week on Opinio Juris, we continued a few conversations from last week. Kevin Jon Heller clarified his argument about the retroactive acceptance of the ICC’s jurisdiction, and challenged the assumption that Palestine was not a state before last week’s UNGA vote. Deborah Pearlstein advanced three reasons for the importance of Jeh Johnson’s recent speech on the conditions for calling an end to the war on terror.

Continuing on the war on terror, Kevin expressed concern over the extension of US targeting policy in Afghanistan to “children with potential hostile intent“.

A few posts dealt with the growing divide between US law and international law. In a guest post on the Feinstein amendment to the National Defense Authorization Act, Jonathan Hafetz argued that the amendment widens the rift between US constitutional law and international law by deepening discrimination against non-citizens.  Peter Spiro and Julian Ku both wrote about the Senate’s rejection of the Convention on the Rights of Persons with Disabilities. Peter argued that the rejection does not prove that sovereigntism lives, but rather that the supermajority required by the US constitution’s Treaty clause is outdated. He also posted a link to a Daily Show segment on the vote. Julian argued that sovereigntists should have held their fire for other treaties that, contrary to the CRPD, may actually have an impact on US law. In another post, Julian argued that a unilateral US intervention in Syria if the Assad regime deploys chemical weapons would be illegal under international law.

Following a recent meeting of the International Commission on the Conservation of Atlantic Tuna, Kristen Boon discussed possible incentives to avoid overfishing. Kristen also discussed whether the Charter of Economic Rights and Duties of States (CERDS) could fill the legal void surrounding land grabbing.

As always, we also provided a list of upcoming events and weekday news wraps.

Have a nice weekend!

Military Age Male Signature on Steroids?

by Kevin Jon Heller

In my essay on signature strikes, I criticize (and I’m not alone) the U.S. practice of considering military-age males in an area of known terrorist activity to be lawful targets.  That signature, however, pales in comparison to the possibility that the U.S. is targeting “children with potential hostile intent,” as well:

The US military is facing fresh questions over its targeting policy in Afghanistan after a senior army officer suggested that troops were on the lookout for “children with potential hostile intent”.

In comments which legal experts and campaigners described as “deeply troubling”, Army Lt Col Marion Carrington told the Marine Corp Times that children, as well as “military-age males”, had been identified as a potential threat because some were being used by the Taliban to assist in attacks against Afghan and coalition forces.

“It kind of opens our aperture,” said Carrington, whose unit, 1st Battalion, 508th Parachute Infantry Regiment, was assisting the Afghan police. “In addition to looking for military-age males, it’s looking for children with potential hostile intent.”

In the article, headlined “Some Afghan kids aren’t bystanders”, Carrington referred to a case this year in which the Afghan national police in Kandahar province said they found children helping insurgents by carrying soda bottles full of potassium chlorate.

IHL does not limit the use of lethal force to adults, so a child can be lawfully targeted at any time if he is a member of an organized armed group (by assuming a continuous combat function in it) or for the duration of his participation if he directly participates in hostilities.  That said, because it is unlikely that the U.S. tracks individual children long enough to establish their continuous combat function, the “potential hostile intent” signature is deeply problematic.  “Hostile intent” does not make a civilian (adult or child) targetable; that intent must be manifested in acts that qualify as direct participation.  And the word “potential” seems to indicate that the U.S. feels free to target children at times when they are not directly participating in hostilities (otherwise they would be manifesting “actual” hostile intent).

Many questions, of course, remain.  It is unclear whether the U.S. is actually targeting children with “potential hostile intent.”  It is also unclear how the U.S. understands “hostile intent” and “potential.” But it doesn’t take an IHL expert to know that targeting children with potential hostile intent creates significant cause for concern.

Support Ratification of the Convention on the Rights of Persons with Disabilities Because It Doesn’t Do Anything!

by Julian Ku

In the’s Room for Debate forum, I offer reasons for supporting U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Unlike most supporters (like a certain Comedy Central personality), I don’t think the opponents are crazy nutcases. (For a more sensible, but less amusing take, take a look at co-blogger Peter Spiro’s contribution to the same forum).  I think they have good and genuine objections.

While these concerns are not completely unfounded, treaty opponents are grossly exaggerating the impact that the convention would have on U.S. law and policy. The Obama administration, following a precedent set during the George H.W. Bush administration, has carefully shielded U.S. law from the treaty’s legal effect. It has conditioned Senate approval on a “non-self-executing” declaration that prevents any litigation under the convention in U.S courts. It has also added a federalism reservation that would prevent the convention from overriding inconsistent state law. And for good measure, it added a “private conduct” reservation that would prevent it from regulating nonstate actors, like parents or small businesses. Taken together, these limitations would indeed render the convention a legal nullity within the United States.

In any event, I argue that “sovereigntists” should save their fire (and credibility) for treaties that would actually impact US law and policy, like the UN Convention on the Law of the Sea.   There are bad treaties that would allow UN agencies and international tribunals to interpret and impose bad legal obligations on the United States, but the CRPD is not one of them.

Would Syria’s Use of Chemical Weapons Change the Legality of U.S. Intervention?

by Julian Ku

The U.S. government has been making all sorts of official and unofficial threats to act if the Syrian government uses chemical weapons in its ongoing civil war.

(CBS News) Whether the U.S. enters the war in Syria appears to be up to the dictator Bashir al-Assad.

On Monday, CBS News reported the Assad regime had given orders to prepare chemical weapons for possible use to put down the revolt that has been raging for more than a year and a half.

President Obama said use of these weapons of mass destruction would be “totally unacceptable.”

One obvious but important legal question: would the Syrian government’s use of chemical weapons affect the legality of a strike by foreign powers (like the U.S.) against that government? My understanding of existing international law governing the use of force is that the use of such weapons in an ongoing civil conflict is no doubt horrible, but not enough to overcome strict rules against an outside military intervention (unless that intervention was approved by the UN Security Council).

If such weapons are used, the U.S. is signaling that it would immediately take military action. Assuming no Security Council approval, I think the U.S. would be in technical violation of the UN Charter. Although this may be correct as a matter of international law, it seems like a silly result. Weapons of Mass Destruction are indeed different than conventional weapons and it seems like the use of such weapons should trigger different consequences. (Wait, this sounds like the Bush Doctrine! It Lives!) Hopefully, Assad will not force the resolution of this legal question.

Weekday News Wrap: Friday, December 7, 2012

by Jessica Dorsey

Jon Stewart Takes Down Treaty Rejectionists: “Please Tell Me This Is Rock Bottom”

by Peter Spiro

In case you missed it, Jon Stewart at his best on the Senate’s rejection on Tuesday of the Disabilities Convention:


The floor debate on the CRPD can be found in the Congressional Record here, starting at page S7365. Not very edifying reading on either side. Here’s a sample from Senator Inhofe:

It seems as though most of the time when the U.N. conventions or treaties come up that I have been opposed to them, and my concern always has been that of sovereignty. I do oppose the United Nations Convention on the Rights of Persons with Disabilities because I think it does infringe upon our sovereignty, establishing an unelected United Nations bureaucratic body called the Committee on the Rights of Persons with Disabilities and a Conference of State Parties. These unelected bureaucratic bodies would implement the treaty and pass so-called recommendations that would be forced upon the United Nations and the United States if the United States is a signatory. . . .

We don’t need the United Nations bureaucrats changing it in our country in the name of worldwide advocation. . . . I know a lot of people feel that no idea is a good idea unless it comes from an international organization. I kind of fall at the other end of the spectrum.

Yes, kind of at the other end of the spectrum. For their part, proponents bent over backwards to stress the lack of any effect of the convention on U.S. law, as if to concede, any human rights treaty that did actually require changes to U.S. law would be a non-starter.

Weekday News Wrap: Thursday, December 6, 2012

by Jessica Dorsey

Due Process under the U.S. Constitution and International Law: The Rift Widens

by Jonathan Hafetz

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School and was previously a senior attorney at the ACLU’s National Security Project. He has served as counsel in numerous national security detention cases, including al-Marri v. Spagone.]

The U.S. Senate last week approved an amendment to the FY 2013 National Defense Authorization Act (NDAA) introduced by Senator Diane Feinstein (D-CA) that would make it harder for the government to subject U.S. citizens and lawful permanent residents (LPRs) apprehended in the United States to indefinite military detention.  The amendment—originally proposed last year as the “Due Process Guarantee Act”—provides that such domestic military detention authority cannot be inferred from a declaration of war or an authorization to use military force, but must instead be expressly provided by Congress.

The amendment, however, is hardly a ringing victory for due process.  Its principal effect would be to embed citizenship-based distinctions that undermine protections for millions of non-citizens in the United States (who are not LPRs) and widen the rift between international human rights and the U.S. Constitution.

The Feinstein amendment seeks to resolve the central dispute in the case of Jose Padilla, the U.S. citizen previously held as an “enemy combatant” in a navy brig for three-and-one-half years following his arrest by the FBI in Chicago.  Two federal appeals courts had split on the legality of Padilla’s military detention: the U.S. Court of Appeals for the Second Circuit ruled that the detention was not authorized by the 2001 Authorization for Use of Military Force (AUMF); the U.S. Court of Appeals for the Fourth Circuit reached the opposite conclusion, finding that the AUMF’s grant of detention power extended globally, encompassing even U.S. citizens arrested inside the United States.  Feinstein’s amendment repudiates the Fourth Circuit’s decision, which had inferred a domestic detention power under the AUMF that the amendment says must be expressly granted.

While the amendment would provide greater protection for U.S. citizens, it comes at a cost.  Previously, there was a strong argument that the AUMF did not authorize the domestic detention of any person arrested in the United States, including non-U.S. persons (i.e., non-citizens and non-LPRs).  The AUMF’s domestic application generally was the central issue in the Al-Marri litigation, which, like the Padilla litigation before it, was mooted when the government brought federal criminal charges against both men once their cases reached the Supreme Court.  [Disclosure: I represented Ali al-Marri in his challenge to his indefinite military detention.]  A central argument against the AUMF’s domestic application was that if it extended to non-citizens in the U.S., it necessarily reached citizens as well.  The Supreme Court had already ruled in Hamdi v. Rumsfeld that the AUMF could authorize the detention of U.S. citizens; the question was whether this congressional grant of detention power extended not only to a battlefield in Afghanistan (as in Hamdi), but also to the United States.

Last year, Feinstein successfully introduced an amendment to the FY2012 NDAA that carefully preserved the status quo by specifying that the act did not alter existing law or authorities relating to the detention of individuals arrested in the United States, regardless of citizenship.  But Feinstein’s amendment to this year’s NDAA weakens the effect of that language.  While the new amendment would not authorize the indefinite military detention of non-citizens in the United States who are not LPRs—indeed, it expressly disavows doing so—it would make it more difficult to maintain that the AUMF does not apply to any person arrested inside the United States because it specifies that the clear statement rule extends only to U.S. citizens and LPRs.

Clear statement rules serve an important function, particularly in the politically charged context of counter-terrorism legislation.  They require that statutes be construed to infringe fundamental liberties only to the extent they unequivocally authorize curtailment of such liberties.  By suggesting that Congress must speak clearly only when certain groups’ liberties are affected, the Feinstein amendment endorses the asymmetric protection of core individual rights and weakens the principle that due process applies to all regardless of citizenship.

To be sure, the provision of the U.S. code—18 U.S.C. § 4001—altered by Feinstein’s amendment previously required a clear statement only for the detention of U.S. citizens.  (The question in Padilla was whether § 4001 applied to military force authorizations and, if so, whether the AUMF satisfied it).  In that sense, the Feinstein amendment did not create a new citizenship-based clear statement rule for detention.  But the amendment perpetuates this status-based distinction, while expanding it to the realm of military force authorizations like the AUMF.  In doing so, it undermines the argument that the clear statement rule exists for all domestic military detentions regardless of the detainee’s citizenship.

The amendment’s status-based approach is also problematic under international law.  The right to be free from arbitrary detention under human rights law applies to all individuals regardless of citizenship.  The Feinstein amendment suggests that this right varies based not only on where a person is arrested (inside or outside the U.S.), but also on his citizenship.  It thus deepens the discriminatory treatment of non-citizens that has been a hallmark of the global war on terror.  Indeed, Guantanamo emblemizes a system of de facto and de jure discrimination based on citizenship: only non-citizens are detained there and only non-citizens may be tried there in military commissions under federal law.

The Supreme Court’s 2008 decision in Boumediene v. Bush had de-emphasized citizenship in concluding that Guantanamo detainees had a constitutional right to habeas corpus and possibly to other constitutional protections as well.  The D.C. Circuit, however, has since rejected the argument that Guantanamo detainees have a right to due process, relying heavily on their status as non-citizens.  Feinstein’s amendment underscores the persistence of citizenship-based distinctions even among those who seek to advance the protection of individual rights.   Further, once citizens are protected, it will be even more difficult politically to extend the same protections to non-citizens.

Weekday News Wrap: Wednesday, December 5, 2012

by Jessica Dorsey


Senate Rejects Disabilities Treaty (Sovereigntism Lives, or Does It?)

by Peter Spiro

Story here on how the CRPD went down. The tally was 61-38, five votes short of the two-thirds necessary for approval.

On the one hand, the defeat demonstrates sovereigntism’s staying power. The anti-internationalist Right has been energized by a flight of treaties baring the putative menace of global governance — the Law of the Sea, the Arms Trade Treaty, and the Convention on the Rights of Persons with Disabilities.   Alarmists at Heritage and elsewhere have had a lot of fodder to work with in calling fellow travelers to the virtual barricades. Rick Santorum will surely claim responsibility for the CRPD’s defeat in trying to revive his political fortunes.

On the other hand, it’s only because of the treaty clause’s supermajority rule that their veto is worth anything. Anti-treaty forces clearly no longer represent a majority of the American people.

Might the second term present an appropriate juncture for a constitutional gambit? Assuming that 15 Republicans could be brought across the aisle, any of these or other agreements (eg the Children’s Rights Convention) could be submitted and approved as congressional-executive agreements, that is, with simple bicameral majority support. The US failure to sign on to broadly subscribed multilateral agreements is making us look stupid. Let’s update our constitutional mechanisms (a continual process with many, many examples in the realm of foreign relations) to better serve the national interest on the global stage.

Weekday News Wrap: Tuesday, December 4, 2012

by Jessica Dorsey

Land Grabbing and the New Economic Order: Revenge of the CERDS

by Kristen Boon

The phenomenon of land grabbing involves powerful transnational economic actors, including corporations, national governments, sovereign wealth funds, and private equity funds, that have searched for empty lands in distant countries that can serve as sites for fuel and food production in the event of future price spikes.

Typically, the foreign investors enter long-term leases with national governments for 25 or 50 years on a renewable basis.   However, land rights are a thorny problem the center of the system.  As Ruth Hall, a South African expert on Land Rights, argues there is a conflict between the status of the (usually unregistered) rights of customary landholders and the authority of states to transact lands to which customary claims are made. Indeed, there is growing evidence that many of the lands allocated to the long-term leases are already occupied and used by small-scale farmers.

One of the obstacles that has arisen in confronting land grabbing is the lack of law in the area.   Earlier this year, FAO released new guidelines on land grabbing that are starting to fill the void. The guidelines cover land, forestry and fisheries (not water and other natural resources like minerals). They also offer principles on responsible tenure governance and the legal allocation of tenure rights. In 2010, the World Bank and partners have promulgated a set of Seven Responsible Agricultural Investment Principles for investors, which focused on corporate social responsibility for investors. In response, the UN Special Rapporteur on the Right to Food produced a set of Ten Minimum Principles on the Right to Food.

All of these guidelines, however, are voluntary.  At present, there isn’t much international law has to say about the problem. This gap got me thinking about the relevance of the Charter of Economic Rights and Duties of States (CERDS) which is the legal component of the New International Economic Order (NIEO) Declaration adopted by the UN General Assembly in Resolution 3281 in 1974. Both CERDS and NIEO sought to establish a new system of rights and duties that would redress economic inequalities between developing and developed states.  In essence, its goal was the creation of a just and equitable system that promoted the economic security and independence of developing countries. CERDS was adopted in the wake of the OPEC crisis of 1973, and while 120 states voted in its favor it garnered strong objections from many developed states at the outset.

Although the general consensus has been that CERDs and NIEO have passed into the annals of history, there are some parallels with the attempts to develop rules on land grabbing.  Indeed, would these new instruments be coming to the fore if it hadn’t been for the precedential value of CERDS?  Land grabbing has a north/south dimension, which is reminiscent of some of the colonial era land grabs. What is new is the south/south dynamic, however, given the involvement of countries like Brazil, Qatar, China, India and South Africa. This World Bank Report gives an in depth assessment of the issue.

A major focus of CERDS was sovereignty over natural resources.  Art. 2, the most controversial article, states that every state has full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities. This article also contained a clause that would have permitted compensation after nationalization or expropriation to be determined by the domestic law of the nationalizing State. It is uncontroversial that today, this nationalistic approach to compensation has been overtaken by more exacting standards determined by BITS and other rules of Customary International Law.

In her lucid new book The Right to Development and International Economic Law, Isabella Bunn argues that “elements of  the NIEO survive in the intention and interpretation of the UN Declaration on the Right to Development.”  It is well documented that Article 14 on the Liberalization of Trade was influential during the negotiations for the World Trade Organization.  Indeed, equitable development, technology transfers and the relevance of human rights to economic development have all emanated from NIEO.

Want to know more? I understand that Fred Pearce’s book the Land Grabbers provides a very readable introduction. It’s on my Christmas list.

Weekday News Wrap: Monday, December 3, 2012

by Jessica Dorsey

Still More End Game

by Deborah Pearlstein

Look much beyond the blogosphere and you’ll be hard pressed to find many headlines about Jeh Johnson’s important speech at Oxford last week.

But important it was. Here are three more of the reasons why I think so.

1. It is difficult to overstate the depth of the scholarly consensus that existed (before last week) around the view that when Congress authorized the use of armed force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the attacks of September 11, the “war” thus undertaken was one without identifiable end. That is, the view has been that not only would it be impossible in advance to identify when the use of armed force would cease – it has of course never been possible at war’s beginning to identify on which definite date war will end – but there would be no set of events, circumstances, or conditions that could be imagined, the occurrence of which might bring about a recognition of the political, or in any objective way factual, end of the war. (I’ll spare blog readers the lengthy set of string cites in support of this proposition I had occasion to assemble for a research paper over the summer, but the list easily included sources from the political left, right and center.) That consensus no longer exists. Both on panels at the ABA’s review of the field of national security law conference over the weekend and in reading some of the other blog entries since, it now seems clear that some combination of Jeh Johnson’s speech and an accumulating set of facts on the ground has made it possible to talk about an end of the war – and the consequences for detention, targeting, and much else, that flow from that eventuality.

2. As I’ve mentioned elsewhere, e.g. here, and beyond the critical policy implications attendant the end of war (like how to reintegrate the 2.5 million-some returning veterans who deployed in one operation or another in the past decade), the authorization for use of military force is far from the only statute that ceases to have effect (or the same kind of effect) when “hostilities” are over. Take private security contractors. Under the Federal Tort Claims Act, private security contractors implicated in misconduct in combatant activities are immune from tort suits for a wide swath of activities, only if those activities are performed “during time of war.” What fraction of the $100 billion security contractor industry is potentially touched by this? Could be worth a little of someone’s time to find out. Either way, there’s an important broader point here as well. How one determines when a conflict (hostilities, war – the words, and often the applicable legal standards, vary) is over depends enormously on in what legal context the question is asked.

3. Speaking of how one determines when conflict is at an end, there is also the question of who makes that determination. Over the past 200+ years, the Supreme Court has had to determine when hostilities were over for purposes of determining the applicability of federal statutes of limitations, criminal jurisdiction and sentencing, tort and fraud liability, authorizations for various government activities, and yes, even the applicability of what we now call the international law of armed conflict. Sometimes the Court has looked to particular statements or actions of the President or Congress. Sometimes it has made the determination essentially on its own (using, for example, standard tools of statutory interpretation). Never has it declined to interpret a statute with an end-of-war condition on the grounds that it presented a nonjusticiable political question.

Upcoming Events: December 2, 2012

by An Hertogen

Upcoming Events

  • The next session of the Joint International Humanitarian Law Forum takes place on December 5, 2012 at the IDC Radzyner School of Law. Dr. Ben Clarke will discuss his new article “Beyond the Call of Duty: Integration of International Humanitarian Law in Video Games and Battlefield Training Simulators”. More information can be found here.

Calls for Papers

  • The International Community Law Review has issued a call for papers for a special issue of its 2013 volume, to be edited by Professor Duncan French (University of Lincoln) and Dr. Russell Buchan (University of Sheffield). The focus of the Special Issue will be to assess to what extent recent case-law has seen a doctrinal restatement of international law by the International Court of Justice and other tribunals, with little regard to the complex and modern pressures upon States. Areas of the law that have seen restatement, if not retrenchment, include the use of force, State immunity and self-determination, as well as arguably a conservative view of the consensual jurisdiction of the Court. Equally, other commentators may wish to critique this understanding. Authors wishing to contribute an article to the Special Issue should submit an abstract of no more than 400 words to Dr. Russell Buchan by 18 February 2013. Authors will be informed by 1 March 2013 as to whether their abstract has been accepted. Subsequently, contributors will be required to submit their articles (approximately 10, 000 words in length) to the editors no later than 1 July 2013.
  • The Amsterdam Centre for European Law and Governance (ACELG) is calling PhD candidates and postdoctoral researchers, from the fields of political science, law, sociology, and international relations to participate in a workshop on European and transnational rulemaking. The workshop will take place in Amsterdam between July 1-5, 2013. Applications are due by January 15, 2013 and more information can be found here.
  • The Academy on Human Rights and Humanitarian Law at American University Washington College of Law is calling for papers of its annual Human Rights Essay Award Competition. The competition seeks to stimulate the production of scholarly work in international human rights law. The 2013 topic is The Rights of Lesbian, Gay, Bisexual and Transgendered People and International Human Rights Law. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. The Academy will grant two Awards, best English article and best Spanish article. The Award in each case will consist of a scholarship to the Academy’s Program of Advanced Studies; travel expenses to Washington D.C.; housing at the university dorms; and a per diem for living expenses.

Journal Announcements

Volume XXI (2011) of The Italian Yearbook of International Law is out. It features a symposium on the international law questions arising from the Libyan crisis and a focus section analysing and discussing certain aspects of the ICJ Judgment in Jurisdictional Immunities of the State (Germany v. Italy). The articles by M. Mancini, The Day After: Prosecuting International Crimes Committed in Libya, and, R. Pavoni, An American Anomaly? On the ICJ’s Selective Reading of United States Practice in Jurisdictional Immunities of the State, are available here.

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.

Palestinian Statehood and Retroactive Jurisdiction

by Kevin Jon Heller

A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC’s jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls:

Even if an entity becomes a “state,” should there be jurisdiction that it can invoke back to a time when (a) there were no clear “nationals” of that state, and (b) there was no clear “territory” of that state, and in fact, even according to the General Assembly there was only an “observer” and not a “state”? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)

Let’s not get carried away here.

I realize that I should have been more precise in my previous post. I was trying to make a more modest point: namely, that the Rome Statute does, in fact, permit retroactive acceptance of the Court’s jurisdiction. I did not mean to imply that Palestine itself could necessarily accept jurisdiction over acts committed on its territory before it became a state. Mea culpa.

That said, I think Jennifer makes an equally problematic assumption: that Palestine only became a state on Thursday, as a result of the UNGA vote. As Bill Schabas reminds us, membership in the UN may be relevant to whether an entity qualifies as a state, but it is not dispositive…

Bluefin Tuna: Is the Tide Turning?

by Kristen Boon

A recent meeting of the International Commission on the Conservation of Atlantic Tuna (ICCAT) has been heralded by environmental groups as a win for science in the management and conversation of scarce resources on the high seas.  One of the species within ICCAT’s jurisdiction is the Bluefin Tuna, a species that has famously declined, and some would claim, collapsed in the last 20 years.

Indeed, it was the precipitous drop off in Bluefin Tuna stocks two years ago that put ICCAT under the global magnifying glass.  When the consequences of ICCAT’s mismanagement of the stocks and its inability to sanction overfishing became apparent, some countries tried (unsuccessfully) to do an end run around ICCAT’s jurisdiction by listing the Bluefin as an endangered species under the Convention on the International Trade in Endangered Species (CITES).

Bluefin Tunas are a highly migratory and valuable fish that swim between national and international jurisdictions.   Because there are few restraints on high seas fishing under the principle of open access, it has been very difficult to create regimes that can effectively regulate or reallocate fishing rights.   The UN Law of the Sea Convention and the UN Fish Stocks Agreement create some limitations on the right to fish on the high seas but they do not create precise rules on how to allocate scares stocks.

Overfishing of highly migratory stocks has become a classic tragedy of the commons:  participants are driven to permit practices and even adopt strategies that will produce overfishing.    In 2010, a New York Times Magazine article entitled Tuna’s End asserted:

“Tuna [are] … the terminus of an idea: that the ocean is an endless resource where new fish can always be found. In the years to come we can treat tuna as a mile marker to zoom past on our way toward annihilating the wild ocean or as a stop sign that compels us to turn back and radically reconsider.”

The press release from the November Morocco meeting indicates that ICCAT may have turned a corner.  Catch limits were extended through 2013, and there is some evidence that the stocks are rebounding.    Moreover, ICCAT has undertaken a variety of new measures to curb Illegal and unregulated fishing.

Nonetheless, not all contracting parties are happy about this.  Reports in the Canadian press here indicate that some countries continue to push for higher quotas.

Ultimately, this issue raises the question of how best to incentivize states to stop overfishing.   One approach might be to promote substantive and strategic linkages.  In the context of fisheries, there are obvious links between fishing and trade, because seafood is now one of the most highly traded commodities.  A reduction in trade through a moratorium or a trade certification regime could be an effective response to overfishing.    However, to date, there have been no successful attempts to use Article XX of the General Agreement on Tariffs and Trade (GATT) to restrict the capture of over-exploited species.  In the Tuna-Dolphin case, the GATT panel found that one country cannot take trade related action to implement its domestic laws. In the Shrimp -Turtle case, the WTO appellate body has been careful to emphasize that sovereign nations can adopt measures to protect endangered species, but its clear preference is that states address conservation through multilateral fora instead.  Ultimately trade must be part of the solution, whether under the WTO or as part of a separate agreement.  Yet it may be decades before countries agree that the international trade in fish should be limited to sustainable fish stocks caught in a sustainable manner.

Another approach might be to incentivize states to comply through financial reward.  One historic agreement illustrative of compliance through financial means is the 1911 Fur Seals convention, which secured the Pribilof herd of seals in the North Pacific Ocean.  Scott Barrett’s detailed account of the treaty in his book Environment and Statecraft demonstrates how the common property problem was rectified by reducing catch and distributing the gain through compensation.  Although there are some important differences between seals and bluefin tunas, in particular, fur seals are connected to territorial lands making them easier to regulate and enforce, there might be room to structure a new agreement for overexploited species where nations that overfish are compensated for reducing their fishing efforts.  The funds to compensate could be generated by vessel licensing schemes, certification and labeling schemes of the tunas themselves, or by taxing vessels directly.

Weekend Roundup: November 25-30, 2012

by An Hertogen

This week on Opinio Juris, Kevin Jon Heller wrote about Niger’s offer to extradite Saadi Gaddafi to the ICC, should this be requested. Kevin also discussed the conditions attached by the UK for a vote in favour of Palestine’s “non-member state” bid in the UN General Assembly. The requirement that the Palestinian authority does not apply for ICC or ICJ membership most likely proved to be a dealbreaker, as the UK ultimately abstained. Following the vote, Kevin argued that Palestine can accept the ICC’s jurisdiction retroactively by making a simple declaration, which triggered a long discussion in the comments.

Membership of international courts was also discussed by Julian Ku, who pointed to Colombia’s decision to withdraw from the 1948 Bogota Treaty’s provision granting jurisdiction to the ICJ over disputes between the parties. Further on Latin American states and international courts, Julian posted a link to his op-ed on Argentina’s arguments against Ghana concerning the seizure of the ARA Libertad, and a link to the webcast of the oral hearings on the case at the International Tribunal on the Law of the Sea.

Two of our bloggers were critical of reporting by the Associated Press. First, Julian argued that the AP’s conclusion that Columbia’s withdrawal from the ICJ does not reduce the ICJ’s authority was incorrect. Kevin also put AP to shame over a fraudulent graph used to report Iran’s alleged efforts to build a nuclear weapon.

Ken Anderson drew our attention to a report by Human Rights Watch and the Harvard Law School Human Rights Clinic calling for a ban on autonomous weapons systems, and contrasted this with the conclusion he and Matthew Waxman have reached in a recent policy essay. In a related post he discussed the incremental approach advanced by a DOD Directive on the topic, released almost simultaneously as the HRW Report.

Efforts to create a legal framework for targeted killings prompted Deborah Pearlstein to ask what the end game is and what strategy determines the choice of targets. Ken chimed in with excerpts from a speech delivered on Friday by DOD General Counsel Jeh Johnson. Deborah followed up by welcoming Johnson’s reflections about the need to challenge the assumption of war as the new normal.

In a guest post, Chris Jenks argued that the negotiations of a status of forces agreement between the US and Afghanistan are likely to stumble over the question of foreign criminal jurisdiction over US service members, as they did in Iraq.

In other posts, Peter Spiro questioned the motives behind Spain’s decision to extend citizenship to Sephardic Jews whose ancestors were expelled 500 years ago, and contrasted this with the stringent naturalization requirements for Moroccan migrants, and Kevin linked to a summary of the Lago Agrio case.

As always, we also provided you with daily news wraps.

Have a nice weekend!