Archive for
January, 2013

More on Zero Dark Thirty

by Deborah Pearlstein

For those following the ongoing public controversy surrounding the film’s depiction of the hunt for bin Laden, two notes. First, the conservative thinktank the American Enterprise Institute hosted a forum on the film featuring three of the former CIA officials centrally involved at the policy level in the “enhanced interrogation” program: former General Counsel John Rizzo, former CIA director Michael Hayden, and former head of the CIA’s National Clandestine Service, Jose Rodriguez. Will Saletan has a summary of the proceedings (and a link to the video) over at Slate. Second, for the New Yorkers among you, Cardozo Law School is hosting a panel discussion of the film on Feb. 11 at 6pm. PBS NewsHour co-anchor Jeff Brown will moderate. The evening will begin with an interview with John Rizzo, followed by a discussion with Mark Bowden, National Correspondent for The Atlantic and author of a new book on the killing of bin Laden; Glenn Carle, retired career CIA officer assigned to conduct black site interrogations; Ann Hornaday, film critic for The Washington Post; and yours truly. RSVP: floersheimercenter [at] gmail [dot] com. Should be an interesting conversation.

Weekday News Wrap: Thursday, January 31, 2013

by Jessica Dorsey

Professor George Bisharat Calls (Again) for an ICC Investigation of Israel

by Julian Ku

Apropos of Kevin’s recent posts, Professor George Bisharat of UC Hastings Law School takes to the NYT op-ed pages to call for Palestine to join the ICC and seek investigation of Israel’s actions in the West Bank and Gaza.

The Palestinians’ first attempt to join the I.C.C. was thwarted last April when the court’s chief prosecutor at the time, Luis Moreno-Ocampo, declined the request on the grounds that Palestine was not a state. That ambiguity has since diminished with the United Nations’ conferral of nonmember state status on Palestine in November. Israel’s frantic opposition to the elevation of Palestine’s status at the United Nations was motivated precisely by the fear that it would soon lead to I.C.C. jurisdiction over Palestinian claims of war crimes.

Israeli leaders are unnerved for good reason. The I.C.C. could prosecute major international crimes committed on Palestinian soil anytime after the court’s founding on July 1, 2002.

As our readers know, the retroactivity issue is not quite so easy, although there is certainly ample evidence this could happen. But I have two main reactions:

1) Are we so sure that the UN General Assembly vote to upgrade Palestine to observer state status settled the statehood question for the purposes of the ICC? After all, Palestine had already been recognized by more than 100 countries prior to the recent GA vote, but the ICC rejected jurisdiction in that situation.  What has really changed?  I agree that the GA vote matters, but does it matter enough?

2)  Professor Bisharat also suggests that “Ending Israel’s impunity for its clear violations of legal norms would both promote peace in the Middle East and help uphold the integrity of international law.”  I am doubtful about both of these claims.  Even if Israel is guilty of the violations Bisharat alleges, how does chasing them with ineffectual ICC arrest warrants help the peace process? And how would the integrity of international law be upheld by ICC investigations that will surely be rejected by Israel (and Hamas when they realize what they are facing).

If this is the Palestinian strategy to resolve their dispute with Israel, than the prospects for the settlement of this dispute are even more remote than I had previously believed.

U.S. Renditions: Continuity, Change, and New Trends

by Jonathan Hafetz

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School]

A recent Washington Post story posits that the rendition of terrorism suspects has continued under the Obama administration. While the story fails to describe how renditions have changed since the Bush administration, it highlights several areas of concern.

The story focuses on the prosecution of three European men with Somali roots (two Swedes, the third a long-term U.K.-resident) in federal court in Brooklyn for supporting al-Shabab, an Islamist militia in Somalia that the United States considers a terrorist group. Many details about the case have not been made public, but the basic facts are as follows. The men were arrested while passing through Djibouti, under what the story describes as “a murky pretext.” They were held without access to a lawyer or a judge in Djibouti, where they were questioned by U.S. officials. The men were subsequently arrested by the FBI and brought to the United States on charges of providing material support for terrorism.

Plainly, these facts differ from Bush-era “extraordinary renditions.” Bush’s extraordinary rendition program had two main features: prolonged incommunicado detention in secret CIA-run jails (or “black sites”); and transfers to foreign countries for torture and other abusive interrogation practices. In many cases, the same individuals were subjected to both, as they were secretly moved around a global U.S. detention network in a manner that resembled a shell game.

President Obama ended the extraordinary rendition program through his 2009 executive order requiring the closure of “black sites” and banning torture (including by ordering that the interrogation of all individuals in U.S. custody comply with the Army Field Manual on interrogation and Common Article 3). Moreover, by shifting U.S. policy away from torture, he undermined the program’s raison d’être, which was not incapacitating terrorism suspects but exploiting them for intelligence-gathering
purposes.

Obama did not end all renditions—a practice which pre-dates the Bush administration. (I define renditions as the transfer of an individual without extradition or some other formal process). Obama, however, has returned the focus of renditions to bringing terrorism suspects to justice through criminal prosecution rather than making them disappear.

Yet, despite these important changes, concerns remain.

First, as the Post story highlights, the United States’ increasing reliance on proxy detention raises due process issues. Proxy detention occurs when one country detains a person within its borders at another country’s direction or behest.

Proxy detention is not necessarily problematic, and its continued use reflects the fact that countries often need the assistance of foreign governments in counter-terrorism operations. It can also facilitate criminal prosecution in the absence of an extradition treaty and thus without a formal mechanism for a suspect’s arrest and transfer. Proxy detention can, however, raise concerns where the foreign government has no independent interest in detaining the person, there is no lawful basis for the detention, and where the detention is used as a means for the foreign government to collect evidence and build a criminal case. In the past, the United States has utilized proxy detention to avoid the limitations of its own laws that would otherwise restrict its ability to detain without prompt access to counsel and judicial process.

Second, proxy detention increases the risk of abusive interrogation. Defense attorneys for the three men arrested in Djibouti have said Djibouti officials treated their clients roughly. I do not know whether these allegations are valid, nor have the attorneys provided much detail. But U.S. officials should not be able to engage foreign proxies to use techniques that those officials are themselves prohibited from using, or turn a blind eye if those techniques are employed. The risk of abuse is heightened by the U.S. government’s position that foreign terrorism suspects overseas are not covered either by the Constitution or international human rights treaty obligations, which it maintains do not apply extraterritorially.

Third, the Post article highlights another issue— one that has less to do with human rights norms than with the substantive reach of U.S. counter-terrorism laws and the material support for terrorism statute in particular. It suggests that discomfort with the Djibouti arrests may have less to do with how the three men were treated in foreign custody than with why they are being prosecuted by the United States in the first place. Their lawyers concede they were combatants who fought on behalf of al-Shabab in Somalia, but deny they ever engaged in any terrorist activity against the United States. The case thus raises larger concerns about the scope of criminal liability under the material support statute—concerns that are magnified by the defendants’ extraterritorial seizure and detention. (For a recent case discussing limitations on the United States’ authority to prosecute piracy absent a direct connection to the United States, see the district court’s decision in United States v. Ali). Their rendition to the United States, in other words, would seem less problematic if they were being prosecuted for terrorist activity aimed at the United States or its nationals.

Labels like “rendition,” which can cover a range of conduct, are not terribly illuminating. More important is the extent to which the United States is utilizing foreign governments to avoid procedural safeguards against arbitrary detention; the increased risk of abusive treatment in proxy detention; and the implications of aggressively using the material support statute without a nexus to the United States. These issues do not trigger the same alarms as the sheer lawlessness that characterized extraordinary rendition, but they are worthy of continuing scrutiny nonetheless.

Weekday News Wrap: Wednesday, January 30, 2013

by Jessica Dorsey

The ICC’s Retroactive Jurisdiction, Revisited

by Alexander Wills

[Alexander Wills is an LLM student at Leiden University]

Kevin’s earlier posts (here, here and here), and the robust discussion they provoked, centred on two key questions:

  • Can Article 12(3) declarations can have effect retroactively; and
  • Can State Parties lodge declarations under Article 12(3)?

I don’t propose to repeat the points Kevin made earlier, but to briefly provide some additional material suggesting an affirmative answer to both questions.

Rule 44(1)

Rule 44(1) of the Rules of Procedure and Evidence provides that

The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3.

This clearly suggests that State Parties for whom the Statute entered into force after 1 July 2002 can make article 12(3) declarations.  Any such declaration would also necessarily be retroactive, as the Court would already have jurisdiction prospectively under Articles 11(2) and 12(1).  Rule 44(1) thus apparently envisions a situation in which the Prosecutor wishes to open an investigation into crimes committed in a state that later became party to the Statute, and asks that state whether it would accept the exercise of the Court’s jurisdiction over those earlier crimes.

Kony

In addition to Laurent Gbagbo and Côte d’Ivoire’s 12(3) declaration, the Pre-Trial Chamber also obliquely touched on both questions in issuing arrest warrants for Kony and his co-defendants.  Uganda is a State Party, but the Statute only entered into force for it from 1 September 2002.  In order to fill the temporal gap between 1 July and 1 September, the Prosecution relied on Uganda’s ‘Declaration on Temporal Jurisdiction’, presumably made under Article 12(3), which purported to retroactively accept the exercise of the Court’s jurisdiction from 1 July 2002.  The Pre-Trial Chamber acknowledged the Ugandan declaration and issued the arrest warrants for Kony and his co-defendants in respect of crimes allegedly committed since 1 July 2002.  In doing so it implicitly endorsed the Ugandan declaration, even though it was made after Uganda became a State Party and purported to accept the Court’s jurisdiction retroactively.

However, as a disclaimer it should be noted that none of the charges against Kony and his co-defendants actually concerned conduct occurring between 1 July and 1 September 2002, and thus the question of the Court’s temporal jurisdiction during this period was not technically in issue and therefore may not have been closely scrutinised by the Pre-Trial Chamber.

Travaux to article 12(3)

Finally, the travaux to article 12(3) show that the non-party acceptance mechanism was always viewed as being retroactive in nature.  In the 1994 ILC Draft Statute, the Prosecutor could only initiate an investigation following a State Party’s complaint, and the Court could only exercise its jurisdiction over a person with respect to a crime if (at a minimum) both the custodial and territorial states consented.  State Parties could ‘opt in’ by making a general or limited acceptance of the Court’s jurisdiction.  However, under Article 22(4) non-party custodial or territorial states could only consent on an ad hoc basis where their consent was necessary for the Court to exercise its jurisdiction – that is, after a complaint had already been made.

This ad hoc, retroactive mechanism was retained with occasional minor changes in wording in the various successive drafts, including the 1998 Preparatory Committee draft that formed the basis for negotiations at the Rome Conference.  Indeed, the final Statute Article 12(3) was drafted in terms almost identical to Article 22(4) of the 1994 ILC Draft.  A review of the travaux thus reveals a clear understanding at all stages of the process that non-party declarations would be ad hoc and have retroactive effect.  If anything, the general or prospective effect of such declarations would appear to be less well-founded (though it has of course now been upheld by the Appeals Chamber in Laurent Gbagbo).

Conclusion

None of the above points, nor those made by Kevin, are completely dispositive: the unclear drafting of Article 12(3), read in conjunction with Article 11(2), has made sure of that.  However, unless and until the Assembly of States Parties gets around to fixing it, there are nevertheless a number of compelling reasons to believe that Article 12(3) declarations can be made by State Parties, and that they can have retroactive effect.

Weak and Strong International Judicial Review: Legal Policy Implications

by Başak Çalı

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the third in a series of three.

In my previous post, I reviewed the Von Hannover (2) and Fatullayev cases to illustrate my argument that the standard of judicial review used by the European Court of Human Rights is variable. Notably, the Strasbourg Court chooses to employ a weaker form of judicial review when interacting with domestic courts it deems to be ‘responsible’ and a stronger form of judicial review when interacting with those it deems are not.

I term a ‘responsible’ domestic court to be one that, 1), takes Strasbourg’s interpretive principles seriously when interpreting fundamental rights and, 2), gives full-bodied reasoning when applying these principles to facts. Once a domestic court meets these criteria ‘strong reasons’ must be shown for Strasbourg to interfere with the outcome of the domestic judgment, be this violation or non-violation of rights. In contrast to this, a domestic court that fails to meet the threshold of Strasbourg-defined responsibility loses its legitimacy as a final domestic judicial authority. The European Court of Human Rights, therefore, sees itself as justified in demanding the annulment of a prison sentence confirmed by a supreme court.

What legal policy implications follow on from this? Is a variable standard of judicial review desirable? An obvious objection to this is the potential to alienate courts and political institutions in countries that are subject to harsher standards. As research on the perception of the legitimacy of the European Court of Human Rights shows, countries that are subject to stronger standards of review are also those that accuse the Strasbourg Court with employing ‘double standards’.  This has the potential of discouraging human rights compliance in countries where it is needed the most. The light touch approach also has the danger of alienating individuals in countries with responsible courts. Whilst it is easier to propose that identification of the correct procedure is distinct from the identification of the correct outcome, this is harder to distinguish in practice. In addition, applicants are primarily concerned with correct outcomes, and not with procedures.

The move away from a variable standard of judicial review may also have harmful consequences for the legitimacy and the authority of the European Court of Human Rights. Domestic courts that have made serious efforts to harmonise their acts with Strasbourg case law do so on the basis that mutual respect exists between their courts and the European Court of Human Rights. Stronger intrusion into all domestic courts for the sake of creating a level playing field would lead to a backlash from all domestic courts – regardless of their level of protection of human rights. Strong of judicial review is also what individuals demand in countries like Azerbaijan. As my research on this subject shows, domestic elites in countries such as Turkey and Bulgaria view the lack of intrusion into domestic sovereignty as a legitimacy deficit. In Germany and the United Kingdom, however, the exact opposite case was made.

On balance, a variable standard of international judicial review, I would argue, is the best strategy for an international court that looks over the shoulders of a variety of domestic legal systems with varying degrees of domestic protection of human rights. Whilst strong judicial review of courts with weak human rights protections may lead to a backlash from some judges, it may also offer an incentive for others who want to be seen as responsible internationally. The challenge for the European Court of Human Rights is to further clarify its ‘strong reasons’ test and ensure that its judgments –  whether concerning countries it deems ‘responsible’ or ‘irresponsible’ – are immune from any charges of politicization.

Does the Six Day War Support “Elongated” Imminence?

by Kevin Jon Heller

Michael Lewis claims, in his very interesting post, that “it is fair to say that if Israel’s action in the 1967 war was justified by Article 51 (something that most states, if not most scholars, seem to agree with), then Article 51 ‘imminence’ is broader than Caroline ‘imminence’.” I don’t have time today to address that claim in any detail, but I want to point out — once again using Tom Ruys’ fantastic, and extraordinarily careful, book on Article 51 (pp. 272-80) — that the Six Day War actually provides little support for an “elongated” concept of imminence. To begin with, Israel itself did not claim that it was engaging in anticipatory self-defense:

[T]he justification used by Israel made no reference whatsoever to anticipatory self-defence. Quite the contrary, Israel expressly argued that it had responded in self-defence to a prior armed attack:

[This] morning Egyptian armoured columns moved in an offensive thrust against Israel’s borders. At the same time Egyptian planes took off from airfields in Sinai and struck out towards Israel. Egyptian artillery in the Gaza Strip shelled the Israel villages of Kissufim, Nahal-Oz and Ein Hashelosha. Netania and Kefar Yavetz have also been bombed. . . . The Egyptian forces met with the immediate response of the Israeli Defence Forces, acting in self-defence [in] accordance with Article 51 of the Charter . . .

Subsequently, in the UN General Assembly, Israel shifted to a somewhat different line of argument. It was argued that the blockade of the Straits of Tiran to Israeli ships constituted an ‘act of war’, justifying action in self-defence under Article 51. Thus, after elaborating at length on the imminent peril to Israel’s existence, Foreign Minister Eban concluded that:

The blockade is by definition an act of war, imposed and enforced through armed violence. … From 24 May onward, the question who started the war or who fired the first shot became momentously irrelevant. . . . From the moment the blockade was imposed, active hostilities had commenced and Israel owed Egypt nothing of her Charter rights.

If Israel did not believe — rightly or wrongly — that it was engaged in anticipatory self-defense when it launched the Six Day War, the reaction of the international community can hardly be considered evidence that customary international law accepts an “elongated” concept of imminence. But the international reaction was also far more complicated than Lewis acknowledges (emphasis mine):

A second factor that undermines the alleged precedential value of the Six Day War concerns the reactions of third States in the UN fora. Indeed, an analysis of the debates reveals that not a single UN Member explicity subscribed to the lawfulness of Israel’s actions. A considerable number of States, including Canada, Denmark, Belgium, Norway, New Zealand, the Ivory Coast and Uruguay, argued that it would be useless to try to apportion blame to one party or the other, and instead preferred to focus on finding a peaceful solution for the conflict. The US and the UK followed a similar point of view, and were particularly keen on denying involvement in the Israeli operations. It may also be recalled that when the Soviet draft resolution was voted down in the Security Council, no-one voted against the operative paragraph which ‘condemned Israel’s aggressive activities’: eleven States abstained; four States supported the provision. This muted stance may indicate a degree of sympathy with the Israeli position, yet it seems difficult to deduce a willingness to establish a precedent in support of pre-emptive self-defence, certainly if one takes into account that a second group of States did condemn outright Israel’s actions as a violation of the UN Charter. Apart from the Arab States, the latter group included the Soviet Union, India, Spain, Pakistan, Indonesia, Albania, Bulgaria, Burundi, Belorussia, Czechoslovakia, Guinea, Hungary, Mali, Mongolia, Somalia, Sudan, Ukraine, Tanzania and Zambia. Several of these UN Members publicly fulminated against the possibility of anticipatory self-defence. India, for example, added that the concept of a pre-emptive strike or a preventive war was contrary to the letter and spirit of the UN Charter.

I am not claiming — here at least… — that there is insufficient state practice and opinio juris to establish a concept of imminence that goes beyond the traditional Caroline formulation. But the Six Day War itself provides neither.

Legal Systems of the World (Updated)

by Roger Alford

After reviewing the comments from my last post expressing general dissatisfaction with the chart showing the legal systems of the world, I decided to do a little more research to find a more accurate chart.

Fortunately, those efforts paid off in spades, with a series of wonderful charts produced by the University of Ottawa. As you can see, these charts are much more accurate, and in the case of mixed systems provide much greater detail on the nature of each mixed system.

Here are charts for the World, for Africa, North America, and Asia.

Legal Systems of the World Updated

African Legal Systems

North America Legal Systems

Asia Legal Systems

Eyal Benvenisti and Amichai Cohen on ‘War as Governance’

by Kenneth Anderson

Perhaps some OJ readers caught this abstract from the SSRN public international law postings this week, but if you didn’t, I want to commend it to you:  Eyal Benvenisti and Amichai Cohen, “War as Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective.” I have read it once, and plan to re-read it; I’ve long followed both authors’ work with considerable respect (and have been pleased to have Amichai as a friend ever since he visited at my law school years ago).  I don’t know yet whether I agree fundamentally or not; I want to consider this carefully.  But I thought it was one of the most interesting methodological approaches to the laws of war that I’ve read in quite a long time and believe it should get substantial attention (though I admit I teach law and economics, as well as the law of agent and principal in corporations classes, so I might have some prior methodological biases here).  SSRN abstract:

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality, and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article we develop an alternative explanation which is based on the principal-agent model of domestic governance. We pry open the black box of “the state,” and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant intra-state conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nations’ interests are likely to prefer that warfare be regulated by international norms. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that, as a practical matter, international law enhances the ability of states to amass huge armies, because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run it strengthens the state against its enemies.

One reason I don’t want to offer a view yet is that I am still completing the fine new book applying standard rational choice theory to international law, Eric Posner and Alan Sykes, Economic Foundations of International Law (Harvard UP 2012); its account has bearing on Benvenisti and Cohen’s quite interesting take.  Posner and Sykes is a very straightforward, descriptive account of how rational choice applied to public international law would look, by comparison to other methodological approaches.  Benvenisti and Cohen are not engaged in rational choice theory as such, however; at first pass, it seems to me that the work done in their account is much more dependent upon the political and social theory attached to looking inside the state to see its intra-state arguments over war and its conduct.  But now I’m tempting myself to say more than I’m prepared to say at this point.  Here, by the way, is Jack Goldsmith’s Lawfare comment on Posner and Sykes:

Eric Posner and Alan Sykes have a new book entitled Economic Foundations of International LawThe book does what its title suggests: gives a comprehensive rational choice account of public international law.  It distinguishes itself from other books in this genre in (among other things) its scope.  For it covers all of the major elements of public international law, from general issues (such as treaties, custom, sovereignty, and state responsibility) to various fields (jus in bello and jus ad bellum, human rights, environmental law, law of the sea, international trade and investment, and more). Economic Foundations does not engage theoretical debate about the virtues and vices of rational choice accounts of international law as opposed to other accounts.  It simply sets out basic rational choice principles and applies them to the various fields and topics.  The book is clear, insightful, and accessible, and I highly recommend it.

Elongated Imminence and Operational Realities

by Michael W. Lewis

[Michael Lewis is a Professor at Ohio Northern University’s Petit College of Law and a former F-14 pilot for the US Navy.]

Peter Margulies’s recent posts here at Opinio Juris and over at Lawfare broadly covered the issues raised and discussed at the Boundaries of the Battlefield symposium recently hosted by the Asser Institute at the Hague.  I just wanted to briefly discuss two issues raised at the conference that may warrant further discussion.

The first involved complaints that the term “imminence” has been stretched beyond recognition by the Obama Administration.  Speeches by Brennan, Holder, Koh and others describing the legal justification for using force, particularly outside of traditionally recognized battlefields, have been careful to maintain two bases for doing so.  The first, which I personally favor and appears to be the primary justification for most US strikes, is based upon consent of the state in which the strikes take place.  The second is self-defense.  It is here where the “elongation” of imminence has occurred.  Brennan in particular has made it clear that the US will not pass up a window of opportunity to strike operational members of groups that are actively engaged in planning and executing attacks against Americans.  And he has acknowledged that this position requires a broader reading of the term “imminence” than is found in typical situations.  But is this truly unrecognizable “imminence”?

First of all it must be recognized that, like the term “proportionality”, “imminence” is an important term in two different areas of international law, and it carries different meanings in these different contexts.  Imminence is at the core of the jus ad bellum concept of self-defense based on its use in the Caroline standard.  Since the adoption of the UN Charter there has been debate about whether the “inherent right” of self-defense contained in Article 51 is broader or narrower than the Caroline standard.  While that question has not been definitively settled, it is fair to say that if Israel’s action in the 1967 war was justified by Article 51 (something that most states, if not most scholars, seem to agree with), then Article 51 “imminence” is broader than Caroline “imminence”.  If for over 40 years most states believe that…

Weekday News Wrap: Tuesday, January 29, 2013

by Jessica Dorsey

Yet Another Estimate of When Iran Will Have the Bomb

by Kevin Jon Heller

McClatchy reports that Israel now believes Iran will not be able to produce a nuclear weapon until 2015 or 2016.  That is progress of a sort; Netanyahu had previously been claiming that Iran would have the bomb no later than late summer 2013 — around six months from now.  But Israel is still insisting that Iran is only two or three years away from nuclear capability, so I think it is useful to recall and update the timeline I mentioned early last year of breathless Israeli and Western claims about Iran’s nuclear program:

1984: West German intelligence sources claim that Iran’s production of a bomb “is entering its final stages.” US Senator Alan Cranston claims Iran is seven years away from making a weapon.

1992: Israeli parliamentarian Benjamin Netanyahu tells the Knesset that Iran is 3 to 5 years from being able to produce a nuclear weapon.

1995: The New York Times reports that US and Israeli officials fear “Iran is much closer to producing nuclear weapons than previously thought” – less than five years away.  Netanyahu claims the time frame is three to five years.

1996: Israeli Prime Minister Shimon Peres claims Iran will have nuclear weapons in four years.

1998: Former Secretary of Defense Donald Rumsfeld claims Iran could build an ICBM capable of reaching the US within five years.

1999: An Israeli military official claims that Iran will have a nuclear weapon within five years.

2001: The Israeli Minister of Defence claims that Iran will be ready to launch a nuclear weapon in less than four years.

2002: The CIA warns that the danger of nuclear weapons from Iran is higher than during the Cold War, because its missile capability has grown more quickly than expected since 2000 – putting it on par with North Korea.

2003: A high-ranking Israeli military officer tells the Knesset that Iran will have the bomb by 2005 — 17 months away.

2006: A State Department official claims that Iran may be capable of building a nuclear weapon in 16 days.

2008: An Israeli general tells the Cabinet that Iran is “half-way” to enriching enough uranium to build a nuclear weapon and will have a working weapon no later than the end of 2010.

2009: Israeli Defense Minister Ehud Barak estimates that Iran is 6-18 months away from building an operative nuclear weapon.

2010: Israeli decision-makers believe that Iran is at most 1-3 years away from being able to assemble a nuclear weapon.

2011: An IAEA report indicates that Iran could build a nuclear weapon within months.

2013: Israeli intelligence officials claim that Iran could have the bomb by 2015 or 2016.

The McClatchy articles quotes an Israeli intelligence officer as asking “Did we cry wolf too early?” That’s amusing: Israel (and the West) have been crying wolf over Iran’s nuclear capability for nearly three decades.

The Legal Systems of the World

by Roger Alford

Legal Systems of the World

In case you ever wanted a snapshot of the legal systems of the world, this handy chart is worth a look. If you follow the link you can get a brief explanation of the legal system of each country, including the historical roots. The orange is common law, the blue civil law, the green mixed, and the red Muslim law.

The biggest surprise from this chart is how many countries are identified as mixed systems. I would have thought that most former British colonies would be identified as common law countries, that most former French, Spanish or Dutch colonies would be identified as civil law, and that most Middle Eastern countries would be identified as Muslim. Not so. The overwhelming majority of nations in Africa, the Middle East, and Asia are mixed systems.

UPDATE: In light of the comments, I have posted a new set of charts that more accurately depicts the legal systems of the world.

Weekday News Wrap: Monday, January 28, 2013

by Jessica Dorsey

So, How Does the Chinese Press Feel About the UNCLOS Arbitration?

by Julian Ku

W020130124366690332002For those of you wondering how seriously the Chinese media is taking the Philippines’ arbitration claim against China over the South China Sea (there must be at least two of you out there), here is an illustrative cartoon from a Chinese newspaper, “JingChu Times”, in Central China (although originally from another publication).

Although one doesn’t need to read Chinese to get the jist, here is my attempt to translate anyway.

The Foot is labeled: “Chinese Territory”

The Fish biting the Foot’s toe is labeled: “The Philippines”.  The Fish is holding a sign with the words: “Mine!”.

Yes, this Annex VII UNCLOS arbitration claim is really sending shock waves throughout China.

Events and Announcements: January 27, 2013

by An Hertogen

Calls for Papers

  • The International Law Discussion Group of the University of Edinburgh is launching a call for papers for its biennial spring Doctoral Symposium to take place on June 17-18, 2013 on Regime Interactions. Abstracts are due by March 1, 2013. More information can be found here.
  • The quarterly journal, Transnational Legal Theory, is soliciting submissions for a Symposium on William Twining’s Montesquieu Lecture on “Globalisation and Legal Scholarship”, available as pdf here. TLT will publish responses to and engagements with Professor Twining’s inspiring lecture in its Summer 2013 issue. Submissions can take the form of essays, review articles or small scholarly papers, but should in no case exceed the length of 5.000 – 6.000 words, including footnotes. The journal is anonymously peer-reviewed. Interested contributors are invited to send a working title and short abstract to Peer Zumbansen at Osgoode Hall Law School or to TLT by 28 February 2013 in order to allow for the drafting of a provisional table of contents for the symposium issue. All final submissions are due by 15 April 2013.

Special Issue

Transnational Dispute Management has published its special issue on Aligning Human Rights and Investment Protection. Excerpts can be found here.

Anti-Corruption Prize

The University of British Columbia’s Faculty of Law at Allard Hall has launched one of the world’s largest prizes dedicated to the international fight against corruption and protecting human rights.

The $100,000 prize will be awarded every two years to an individual, movement or organization that has shown exceptional courage and leadership in combating corruption, especially through promoting transparency, accountability and the rule of law.

Nominations for the inaugural prize are now open at www.allardprize.org, and will remain so until the deadline of February 20, 2013. The selection process will occur in the spring of 2013, and the inaugural prize is scheduled to be awarded in September 2013.

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

Weekend Roundup: January 19-25, 2013

by An Hertogen

This week on Opinio Juris, Duncan was thrilled that the Supreme Court had finally reached a decision on whether to grant certiorari in Bond v United States, a case that requires revisiting Missouri v Holland. Julian though questioned whether Bond v United States will matter, although he gave his own two cents on the treaty power and federalism later.

Julian clearly got more excited about the Philippines’ move towards UNCLOS arbitration in the South China Sea dispute with China, which he labelled a game-changer. In further posts on this arbitration, he reflected on China’s options, disagreed with the Chinese argument that it could still withhold agreement to set up a tribunal and reflected on the irony that the Japanese ITLOS President gets to appoint an arbitrator on China’s behalf if China fails to do so.

Julian was surprised by John Bellinger’s op-ed on intervention in Syria, which John Bellinger then clarified in a guest post. Julian also noted a slight shift in the US foreign policy establishment against drone strikes with a recent critique on current policy by the Council of Foreign Relations

Kevin meanwhile was (nearly) rendered speechless, not once but twice, first by the US Air Force’s claim that US militarism is a fitting tribute to Martin Luther King and then by an article quoting Jeh Johnson as stating that MLK would approve the US’ current wars. He also thought that it was pathetic for Susan Rice to object to a “State of Palestine” nameplate in the UN Security Council. And this brings me to his next post on Palestine, summarizing why it matters formally that Palestine ratifies the Rome Statute on top of its ad hoc declaration under article 12(3).

In other posts, Kevin found a further reason to disagree with Judge Pohl’s decision in al-Nashiri, this time because of Hamdan II. Peter Spiro looked at President Obama’s second inaugural speech from the perspective of citizenship and concluded that the speech was mainly intended for domestic consumption. Julian had not noticed last weekend’s conclusion of the negotiations on an international agreement on the control of mercury and wondered about the negotiation dynamics. Finally, Kristen provided a list of International Law Apps and wondered whether we’ll see more of them in the future.

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

Have a nice weekend!

What Happens if China Tries to Boycott UNCLOS Arbitration? A Japanese Guy Gets to Appoint the Tribunal

by Julian Ku

[I know that what this blog needs is yet another post on the China-Philippines UNCLOS Arbitration! We aim to please!]

Steve Groves of Heritage asks in the comments to my prior post: What happens if China simply refuses to show up at the arbitration? Can an arbitral tribunal even be formed to rule on jurisdiction?

This is something that I’ve wondered too, and then I realized Annex VII of UNCLOS appears to settle this issue as well.  The key provision is Article 3 of Annex VII. Under Art. 3(b), the initiating party appoints an arbitrator, which the Philippines has already done.  Then,

(c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e).

(Emphasis added.).  Turning to Subparagraph (e):

(e) Unless the parties agree that any appointment under subparagraphs (c) and (d) be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments.

(Emphasis added). Essentially, this means the President of ITLOS can fill out the rest of the arbitral tribunal if China tries to boycott, by appointing the remaining four members.  As Craig Allen of the University of Washington pointed out to me in an email, the current President of ITLOS is Shunji Yanai, a well-respected diplomat and jurist.  That is to say, a well-respected Japanese diplomat and jurist.  I’ve met President Yanai briefly, and he is a very smart and well-accomplished guy.  But Japan is just not on China’s BFF list right now.  China’s Weibo Internet commenters might well just blow up if this happens.

Professor Allen suggests that the President of ITLOS might, before appointing arbitrators, consider the jurisdictional objection and refuse to appoint a tribunal. I think this is a plausible, but not the most natural reading of Annex VII, Art. 3.  Professor Allen also raises a good point: China’s best friend here might well be the United States, which has a strong interest in seeing an expansive reading of the Article 298 exemptions.

In any event, the few Annex VII arbitral tribunals that have been constituted have generally not hesitated to rule on their own jurisdiction.  See Barbados v. Trinidad, or Guyana v. Suriname. (For a full list, see here).  Even worse from China’s perspective, these Annex VII arbitral tribunals issued their jurisdictional decision at the same time as they issued the award on the merits.  They don’t have to do so, and they can bifurcate the proceedings to address jurisdiction first.  But they don’t have to.

Would one of the journalists forced to sit through Chinese Ministry of Foreign Affairs press briefings please ask the spokesman to address the arbitral tribunal question?  Or at least, ask them again? Will China play the arbitral tribunal game and appoint someone by February 21?  Or will they let President Yanai appoint the tribunal for them?   The 30-day clock is running.

Weekday News Wrap: Friday, January 25, 2013

by Jessica Dorsey

Has China Rejected the Philippines Arbitration Already? Not yet.

by Julian Ku

This article from the Global Times, a hawkish state-controlled newspaper in China, probably reflects a little bit of the official Chinese view on the Philippines UNCLOS claim. It also contains this troubling bit of analysis, from a Chinese scholar:

The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times.

Uh, yes, that’s true in a general sense.  But China has already agreed to allow an Article 287 arbitral tribunal to take this case and at least to determine jurisdiction. Article 288(4) would seem to be the last word on this point.

4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

Sorry, Global Times! China is stuck with this case, at least as a legal matter, and at least through the jurisdictional phase. I hope the Chinese government is getting better legal advice than this. China could boycott the arbitration, but they would be in a clear violation of Article 287 and Article 288 of UNCLOS.  Will it dare to do so?

Why It (Formally) Matters Whether Palestine Ratifies the Rome Statute

by Kevin Jon Heller

David Bosco has an important post at The Multilateralist today reminding people that Palestine does not have to ratify the Rome Statute for the ICC to be able to investigate the situation in the West Bank and Gaza.  As David notes, because Palestine has filed a declaration under Article 12(3) accepting the Court’s jurisdiction on an ad hoc basis, the Prosecutor already has the authority to initiate an investigation, should she so choose.

That said, it still matters — at least formally — whether Palestine takes advantage of its newly-recognized statehood and ratifies the Rome Statute.  The Court’s jurisdiction over a situation can be triggered in three different ways: (1) a referral by a State Party; (2) a referral by the Security Council; and (3) a decision to investigate proprio motu by the Prosecutor.  Procedurally, there is a significant difference between those methods: unlike investigations triggered by a State Party or Security Council referral, the Pre-Trial Chamber has to authorize a proprio motu investigation.  The relevant provision of the Rome Statute is Article 15:

1.         The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2.         The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3.         If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4.         If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

The Rome Statute’s differential treatment of proprio motu investigations is not an accident.  During the drafting of the Rome Statute, some states wanted the Prosecutor to have unfettered authority to initiate investigations, while others — fearing politically-motivated prosecutions — wanted to limit investigations to referrals by States Parties and the Security Council.  Article 15 reflects the compromise the drafters reached: the Prosecutor would have proprio motu power, but the use of that power would always be subject to judicial review.

Why does this matter for the new state of Palestine? Because an investigation conducted pursuant to an ad hoc declaration like Palestine’s is treated as a proprio motu investigation, so the Prosecutor’s decision to investigate must be confirmed by the Pre-Trial Chamber.  That was the case, for example, in Cote d’Ivoire: once the Prosecutor decided to act on Cote d’Ivoire’s ad hoc acceptance of the Court jurisdiction (retroactive, as I’ve noted before), he submitted a formal request under Article 15 to the Pre-Trial Chamber asking it to authorize the investigation — which it did.

At least procedurally, then, Palestine does indeed have a significant incentive to ratify the Rome Statute.  If it ratifies, a formal referral of the situation in the West Bank and Gaza to the Court would qualify as a State Party referral under Article 14 of the Rome Statute, exempting a decision by the Prosecutor to investigate from Pre-Trial Chamber review,  By contrast, if Palestine does not ratify the Rome Statute and rests on its previous ad hoc declaration, a decision by the Prosecutor to investigate would qualify as a proprio motu investigation that would require the Pre-Trial Chamber’s authorization.

As I have pointed out numerous times before, I find it inconceivable that this Prosecutor will decide to investigate the situation in the West Bank and Gaza.  But if she does, it will be easier for her to open that investigation if Palestine has ratified the Rome Statute.

All You Ever Wanted to Know About the Treaty Power and Federalism, But Were Afraid to Ask*

by Julian Ku

I am remiss in not linking earlier to this excellent and absorbing discussion of the upcoming US Supreme Court decision in Bond v. United States at the Volokh Conspiracy.  Rick Pildes at NYU is doing a nice job, but he is single-handedly taking on Professors Nick Rosenkranz, Ilya Somin, and Eugene Kontorovich on various aspects of the treaty power and its limitations under the U.S. Constitution.  So Professor Pildes is a little outgunned, although he is doing a nice job nonetheless.

My own two cents so far:  I find the textual argument for a limited treaty-execution power fairly compelling, especially under the Necessary and Proper Clause.  I also agree that the Bill of Rights limitation on the treaty power, inferred from the Supreme Court’s plurality decision in Reid v. Covert, is not a particularly powerful precedent in favor of the Missouri v. Holland result.  If anything, the Reid v. Covert conclusion that treaties cannot violate the Bill of Rights should limit the impact of the earlier Missouri decision, which may not have agreed with Reid.

But Professor Pildes certainly has a powerful argument on this front (at least to me): If a self-executing treaty can exceed Congress’ Article I powers, than why not a statute implementing that same treaty?  What is the structural logic of this result?

For this reason, I associate myself with Professor Curtis Bradley’s view that it makes sense to read a federalism limitation on the self-executing effects of a treaty as well. That question was the subject of Missouri’s main holding, and that holding is also troubling and suspect. I understand that the arguments for limiting the implementation power are stronger, at least textually, but that doesn’t mean there aren’t good structural arguments for limiting the self-executing effects of treaties as well.

Here Comes the Mercury Emissions Control Treaty

by Julian Ku

This treaty was totally NOT on my radar screen.  But as the NYT reports:

More than 140 nations adopted the first legally binding international treaty on Saturday aimed at reducing mercury emissions, after four years of negotiations on ways to set limits on the use of a highly toxic metal.

The treaty was adopted after all-night negotiations that followed a week of talks in Geneva, United Nations environmental officials and diplomats said. A signing ceremony will be held later this year in Japan, and then 50 nations must ratify the agreement before it comes into force, which officials said they expected to happen within three or four years.

I haven’t been following this at all, but I wonder what the dynamics of the negotiations were.  I have the vague impression that this shapes up to a be a developed country/developing country negotiation, with the US and Europe pushing for more aggressive emission limits and controls. But maybe I have this wrong.  I am curious if anyone out there has a copy of the draft treaty text that I can link to here, and/or any commentary on the new treaty.

Weekday News Wrap: Thursday, January 24, 2013

by Jessica Dorsey

Placard? I Don’t See No Stinking Placard!

by Kevin Jon Heller

Pathetic:

Ambassador Susan Rice objected Wednesday to the Palestinians’ latest bid to capitalize on their upgraded UN status when their foreign minister spoke at Security Council while seated behind a nameplate that read “State of Palestine.”

It was the first Palestinian address to the Security Council since the UN General Assembly voted overwhelmingly on November 29 to upgrade the Palestinians from UN observer to non-voting member state.

Rice said that the United States does not recognize the General Assembly vote in November “as bestowing Palestinian ‘statehood’ or recognition.”

“Only direct negotiations to settle final status issues will lead to this outcome,” Rice said.

“Therefore, in our view, any reference to the ‘State of Palestine’ in the United Nations, including the use of the term ‘State of Palestine’ on the placard in the Security Council or the use of the term ‘State of Palestine’ in the invitation to this meeting or other arrangements for participation in this meeting, do not reflect acquiescence that ‘Palestine’ is a state,” she added.

Fortunately — though I know this comes as a shock to the US, which likes to pretend that it is primus inter pares — the US doesn’t get to unilaterally determine whether Palestine is a state. Nor does Israel (and note that that Rice’s “direct negotiations” lament is simply designed to give Israel a veto over Palestinian statehood by continuing to avoid negotiating in good faith).

My suggestion: at all future UN meetings, Rice should avoid turning her head toward the seat with the State of Palestine placard.  That will make it much easier for her to pretend that more than 70% of the world’s states didn’t recently vote to recognize Palestinian statehood.

John Bellinger Responds to Julian Ku on Intervention in Syria

by John Bellinger

[John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter LLP in Washington, DC and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009.]

Julian invited me to respond to his post about my op-ed on the international law applicable to intervention in Syria.

It is not accurate to say that the op-ed “endorses non-legal intervention in Syria.” Indeed, it does not “endorse” intervention at all.

But I can see how Julian may have been misled, since he linked to a reprint in the San Antonio Express News of my original op-ed in the Washington Post. The Texas paper (perhaps not surprisingly, given views of international law in Texas) entitled my article “International law has failed Syria; it’s time to intervene” — which was quite the reverse of what the op-ed said. The Washington Post more accurately titled my article (in the print editions): “Aiding Syria: Easier said than done — International law presents many obstacles to a quick U.S. intervention.” (Note: Op-ed writers don’t get to approve the headlines given to their articles.)

In fact, I pointed out that the Obama Administration had been prudent to be cautious about intervening in Syria. I said:

Intervention without an international legal basis could make it more difficult for Washington to criticize other countries if they intervene in neighboring states based on less laudable motives. Inserting more arms into an already unstable region risks more bloodshed, and those weapons could fall into the hands of groups hostile to U.S. interests, as happened in Libya.

But I added that “As the violence in Syria increases…the president is likely to feel compelled to provide more than political support and non-lethal aid.”

Julian asks at the end of his post:

If one really thought international legality was so crucial, wouldn’t it be better to seek out a plausible legal theory, rather than simply rely on muddy political formulations? For instance, wouldn’t it be easier just to recognize the Syrian opposition as the government of Syria, and get their consent?

In fact, I suggested exactly this possibility. I said

If the Syrian Opposition Council becomes more inclusive and can legitimately claim to represent the majority of Syrians, and if it excludes terrorist groups and other extremists, the administration may conclude that it is legally permissible to provide military assistance based on the council’s consent.

Of course, there are also other potential legal rationales for intervention, including a possible argument for a No Fly Zone that would extend from Turkey into Syria, based on a Turkish theory of self-defense. But I did not have space to describe these alternative theories.

There are counter-arguments to each of these theories. So I also noted the possibility that

the administration could intervene in a limited way to protect civilians without asserting a legal basis, as the Clinton administration did with its participation in the 1999 NATO bombing campaign of Kosovo, to protect Kosovars from atrocities committed by Serbia.

My concluding paragraph did not endorse intervention. It simply stated that if the violence in Syria continues, the Obama Administration (and other governments) “may” conclude that they need to intervene, whether they can come up with a good legal basis or not.

At Your Fingertips ….. International Law Apps

by Kristen Boon

It’s becoming a trend …. international law apps that aim to influence policy makers and engage the public. The app for “Children and Armed Conflict” (sponsored in part by the Mission of Liechtenstein)  collates information on the legal framework and grave violations relevant to the effects of armed conflict on children, as well as providing recent news, background information on country situations, relevant Security Council resolutions, and even a checklist for drafting new mandates.  As the app’s homepage explains:  ”with this application we aim to provide policy-makers and those seeking to influence them with readily available key documents and appropriate language on child protection issues in order to increase the agenda’s impact.”    This note by the International Peace Institute indicates how useful the app is in situating what may appear to be isolated incidents within large trends.

There is also an app titled “Safe Access to Firewood and alternative Energy” which addresses the lack of safe access to cooking fuel in humanitarian situations.   This app uses decision trees and matrices on roles and responsibilities to develop strategies for long term fuel supply and identify the responsible agencies and working groups.

An app titled “Women, Peace & Security Handbook” provides a compendium of resolutions that address issues relevant to women, peace and security on topics such as:  sexual exploitation, displacement, and participation.    This app serves as a mini-handbook, providing up to date information on thematic trends within Security Council resolutions.

A movement is now afoot to develop a new Sanctions App that would provide information to practitioners on the design of UN sanctions.  According to preliminary materials distribution by the Swiss Mission to the UN the “Sanctions App (an iPhone, iPad, or android application) would be based on links to relevant operative paragraphs of UNSCRs and also contain interactive features to enable real-time access to various databases while draft texts of new sanctions resolutions are being developed.”

These apps coincide with the proliferation of apps for charitable giving and advocacy on various issues including immigration and protest.  Even the Red Cross has entered the fray, developing apps that will apply in humanitarian emergencies.

Are these apps the leading edge in the growth of international law, and can we see more to come?  Or, might the high costs associated with entry and design keep tightly funded organizations from entering the space?  What do OJ readers think?

Will China Participate in the UNCLOS Arbitration with the Philippines?

by Julian Ku

China’s initial reaction to the Philippines’ decision yesterday to file an arbitration claim has been to stick to its guns.  From the BBC:

On Wednesday, Chinese foreign ministry spokesman Hong Lei told journalists that China has “indisputable sovereignty over the South China Sea islands and adjacent waters, which has abundant historical and legal grounds”.

“The key and root of the dispute over the South China Sea between China and the Philippines is territorial disputes caused by the Philippines’ illegal occupation of some of the Chinese islets and atolls of the Spratly Islands,” he said.

He said China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability”.

Some observers, quoted here by the VOA, have suggested that China will simply not participate in the UNCLOS arbitration.  I think this makes sense from a strategic perspective, but it is hard to understand how that would work from a legal perspective.

As a legal matter, China has an obligation to participate in the UNCLOS arbitration by selecting an arbitrator, and then a schedule for the proceedings.  It will then file a challenge to the UNCLOS arbitration tribunal’s jurisdiction (an argument I believe it has a good chance to win).  If China simply doesn’t show up, then it would be in clear violation of its UNCLOS obligations.

China has an interesting choice here. It could participate in the arbitration, and if it loses on jurisdiction, simply withdraw and declare that it won’t abide by the tribunal’s decision.  Or it could litigate to the merits, and then if it loses, simply refuse to comply with the arbitral tribunal’s award.

None of these potential arbitral results are really all that attractive, from China’s perspective. But defaulting on the arbitration is not all that attractive either.  What China does here will tell us a lot about China’s commitment to its strategic goal of controlling the South China Sea, as well as its level of commitment to UNCLOS and international dispute resolution.

Weekday News Wrap: Wednesday, January 23, 2013

by Jessica Dorsey

[And Begins Again]

by Kevin Jon Heller

The indefatigable Glenn Greenwald has unearthed an even more appalling appropriation of Dr. King by the military — a Department of Defense news article entitled “King Might Understand Today’s Wars, Pentagon Lawyer Says.”  The lawyer in question is none other than Jeh Johnson, former DoD General Counsel.  Here is what he says:

In the final year of his life, King became an outspoken opponent of the Vietnam War, Johnson told a packed auditorium. However, he added, today’s wars are not out of line with the iconic Nobel Peace Prize winner’s teachings.

“I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack,” he said.

This is a stunning example of the myth I mentioned in my previous post — that US violence is always used for noble purposes and always promotes peace.  Nearly everything that Dr. King said about Vietnam applies with equal force to the war on terrorism; now as then, instead of trying to understand the complicated relationship between the US and its supposed enemies, the US simply assumes it can kill its way to peace and security.  Not to put too fine a point on it, but the idea that Dr. King would support the US drone program and the war in Afghanistan (to say nothing of the war in Iraq) is both completely absurd and an insult to his memory.

[Kevin Bangs Head on Table Repeatedly]

by Kevin Jon Heller

I am very rarely rendered speechless, but this appropriation of Martin Luther King by the Air Force Global Strike Command Programming Division (nearly) did the trick:

The Department of Defense is a leader in equal opportunity for all patriots seeking to serve this great nation. . . The vigilant warriors in AFGSC understand they are all equal and unified in purpose to provide a safe, secure and effective deterrent force for the United States. . .

Dr. King would be proud to see our Global Strike team – comprised of Airmen, civilians and contractors from every race, creed, background and religion – standing side-by-side ensuring the most powerful weapons in the U.S. arsenal remain the credible bedrock of our national defense. . . Our team must overlook our differences to ensure perfection as we maintain and operate our weapon systems. . . Maintaining our commitment to our Global Strike team, our families and our nation is a fitting tribute to Dr. King as we celebrate his legacy.

It is a wonderful thing that the US military is desegregated.  And the military deserves credit for so rapidly adjusting to the end of “Don’t Ask, Don’t Tell.”  But to say that maintaining the strength of the US military is a “fitting tribute” to Dr. King is simply perverse. I can’t do better than Glenn Greenwald, who wrote a great post yesterday about the phenomenal speech Dr. King gave at Riverside Church in NYC on 4 April 1967 condemning US militarism and advocating refusal to serve in the military.  I’ll simply offer a few paragraphs from the speech about the US’s “liberation” of Vietnam…

Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea

by Julian Ku

In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

  1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
  2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
  3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
  4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

Council on Foreign Relations Coming Out Against Drone Strikes?

by Julian Ku

As a gauge of the temperature of the American foreign policy establishment, it is hard to do better than the Council on Foreign Relations.  And that uber-establishment organization has recently released a pretty hard-hitting critique of the Administration’s drone strike policy.  It is not a knee-jerk attack, but a substantive policy critique, part of which is that existing laws aren’t quite sufficient to regulate drone attacks properly.  Hence, the U.S. should:

■ explicitly state which legal principles apply—and do not apply—to
drone strikes and the procedural safeguards to ensure compliance to
build broader international consensus;
■■ begin discussions with emerging drone powers for a code of conduct
to develop common principles for how armed drones should be used
outside a state’s territory, which would address issues such as sovereignty,
proportionality, distinction, and appropriate legal framework;

Relatively uncontroversial stuff, although easier said than done.  I do sense a slight shift in the establishment, which is moving very slightly against drone strikes.  But it will be interesting to see whether this shift turns into a broader based policy change.

John Bellinger Endorses a Not-Legal Military Intervention in Syria

by Julian Ku

Former Bush State Department Legal Adviser John Bellinger has a complicated op-ed arguing that the U.S. should be prepared to intervene militarily in Syria, even if its intervention is not strictly legal.  His argument is complicated because he rejects the idea that any intervention in Syria now, even with the agreement of the Syrian Opposition, would violate existing international law.

The escalating death toll in Syria, which exceeds 60,000, has increased pressure on President Barack Obama to do more to help the Syrian opposition. But traditional legal rules that protect international peace and security constrain the president’s options. Although the administration recognized the Syrian Opposition Council last month as the “legitimate representative of the Syrian people,” that announcement created no new legal basis for Washington to give weapons to Syrian rebels or to intervene with military force against the Assad government.

The U.N. Charter prohibits member states from using force against or intervening in the internal affairs of other states unless authorized by the U.N. Security Council or justified by self-defense. These rules make it unlawful for any country to use direct military force against the Assad regime, including establishing “no-fly zones” or providing arms to the Syrian opposition without Security Council approval. Russia and China, of course, have continued to block such approval.

So any Syrian intervention would be illegal, under international law.  This doesn’t seem that controversial.  But then Bellinger goes on to argue that the humanitarian crisis in Syria might still justify an intervention, even if such an intervention is not legal.

Humanitarian crises challenge international legal rules as well as our consciences. But when the Security Council is blocked from protecting civilians against the most egregious atrocities, the United States should be prepared to intervene when other avenues have been exhausted and there is sufficient international consensus to support intervention.

If Assad’s attacks on Syrian civilians continue, the United States and other governments may soon conclude that intervention is morally, if not legally, justified.

This conclusion surprises me, not because I disagree, but because Bellinger has spent quite a bit of ink lately arguing that U.S. military interventions abroad should have an international legal basis (albeit for mostly practical political reasons).  I am also surprised Bellinger does not embrace the various legal theories of humanitarian intervention or “responsibility to protect” that might justify an intervention.  What this essay seems to argue is that, as a last resort, military intervention can be justified even if it violates the U.N. Charter, as long as there is sufficient international consensus.

This formulation cries out for more elaboration (and he is welcome anytime to do so here).  I am certain that Legal Adviser Bellinger would not have advised his client in quite this way.  If one really thought international legality was so crucial, wouldn’t it be better to seek out a plausible legal theory, rather than simply rely on muddy political formulations?  For instance, wouldn’t it be easier just to recognize the Syrian opposition as the government of Syria, and get their consent?  Or is Bellinger conceding that the international laws here are effectively optional in certain situations?

Weekday News Wrap: Tuesday, January 22, 2013

by Jessica Dorsey

Obama Citizenship Discourse Watch (Second Inaugural Edition)

by Peter Spiro

It was a liberal speech, but also a nationalist one. Obama returned to the citizenship theme of his DNC acceptance speech:

My oath is not so different from the pledge we all make to the flag that waves above and that fills our hearts with pride. They are the words of citizens, and they represent our greatest hope. You and I, as citizens, have the power to set this country’s course. You and I, as citizens, have the obligation to shape the debates of our time, not only with the votes we cast, but the voices we lift in defense of our most ancient values and enduring ideas.

This speech was inward-looking, situated in the task of a particular state, defining responsibilities and rights in a nationally bounded fashion. There was no “global citizen” vibe in the way of candidate Obama’s Berlin speech in July 2008. More “We the People,” as in the people of the United States. Equality, yes, but in a national frame.

The domestic editorial response will be positive, in a measured way. I wonder if international opinion will be more tepid (even with the big shout-out to climate change initiatives). This wasn’t a speech that had much for an international audience. That’s probably too bad, since I’m sure there was a big one.

Weekday News Wrap: Monday, January 21, 2013

by Jessica Dorsey

  • A UN report released yesterday entitled Treatment of Conflict Detainees in Afghan Custody: One Year On (report found here, press release found here) claims that Afghan authorities are still torturing prisoners, such as hanging them by their wrists and beating them with cables.
  • A police office in Kabul has been attacked earlier today by Taliban forces, in a second attack on a government building in less than a week.
  • Patriot missiles arrived from Germany and the Netherlands to prevent violence from spilling over Syria’s borders.
  • An international donor conference on Myanmar is overshadowed by fighting in the northern Kachin province, and accusations that the military is not respecting its unilateral ceasefire.
  • China has responded strongly to Hilary Clinton’s brief description of the Diaoyu/Senkaku Islands dispute during a press conference in Washington on Friday.
  • At a press conference to release Huawei’s 2012 performance results, its CEO has rejected US claims about security concerns related to privately-held Chinese company’s telecom equipment as trade protectionism.
  • Bangladesh’s war crimes tribunal sentenced a popular Islamic televangelist to death in the first verdict given by the tribunal.
  • The Israeli army removed a Palestinian encampment in the occupied West Bank saying the tents and building were on land owned by Israel.
  • The leader of Ansar Dine, an al Qaeda-linked Islamist group in northern Mali, was once a trusted partner of the German government and brokered the release of hostages in 2003, according to Spiegel magazine.
  • A unilateral ceasefire declared by the FARC rebels at the start of peace talks with the Colombian government ended this weekend after the government refused to join the truce, according to the rebels.
  • British Prime Minister David Cameron is set to deliver his hotly anticipated speech about his plans for Britain’s membership of the European Union this week.

Does Hamdan II Undermine Al-Nashiri?

by Kevin Jon Heller

A few days ago, I criticized Judge Pohl’s rejection of al-Nashiri’s claim that there was no armed conflict between the US and al-Qaeda at the time of the acts alleged in his indictment — such as the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts.  Judge Pohl’s decision relied almost exclusively on two facts: (1) Congress enacted, and Obama signed, the Military Commissions Act of 2009, which gave the commissions jurisdiction over acts committed prior to 9/11; and (2) the government referred charges against al-Nashiri knowing full well that the acts in question took place prior to 9/11.  Those facts, according to Judge Pohl, suffice to establish that there was an armed conflict between al-Qaeda and the US at the time of al-Nashiri’s acts.

As I explained in the post, Judge Pohl’s argument doesn’t make sense on its own terms.  But I think there is an even deeper problem with the decision: it conflicts with Hamdan II, in which the D.C. Circuit rejected the government’s claim that material support for terrorism (MST) was a war crime.  Central to that decision was the D.C. Circuit’s insistence that the military commissions can only prosecute acts that qualify as war crimes under the international law of war; whether they are war crimes under the so-called “U.S. common law of war” is irrelevant:

Third, and perhaps most to the point, [the Government’s] cases do not establish that material support for terrorism was a war crime recognized under international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821. The Government contends that those Civil War precedents illuminate what it calls the “U.S. common law of war” – not the international law of war. But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war. As the Government told the Supreme Court in Quirin, “This ‘common law of war’ is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war.” Brief for the United States at 29, in Quirin, 317 U.S. 1 (emphasis added) (citation omitted). To be sure, U.S.precedents may inform the content of international law. But those Civil War precedents fail to establish material support for terrorism as a war crime under the international law of war as of 1996 to 2001. And even the Government admits that material support for terrorism was not an international-law war crime as of 1996 to 2001.

In short, material support for terrorism was not an international-law war crime under 10 U.S.C. § 821 at the time Hamdan engaged in the relevant conduct.

Here is my question: doesn’t the D.C. Circuit’s insistence in Hamdan II that the criminality of conduct must be determined according to the international law of war contradict Judge Pohl’s conclusion in al-Nashiri that Congress and the President have the authority to determine the existence of armed conflict?  The idea that the existence of armed conflict is determined by the subjective perceptions of the fighting parties is foreign to IHL; indeed, the modern view — encapsulated in the ICTY’s seminal decision in Tadic — is predicated on the idea that the existence of armed conflict is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities.  Under the international law of war, in other words, states and non-state actors don’t decide when they are engaged in an armed conflict; the hostilities themselves make that decision for them.

Given Hamdan II, I don’t see how Judge Pohl’s decision in al-Nashiri can be sustained.  The existence of armed conflict is an essential element of every war crime; an act that takes place outside of armed conflict may violate a state’s domestic criminal law, but it does not violate IHL. So if the military commissions have jurisdiction only over acts that violate “the international law of war,” they do not have jurisdiction over acts that took place during hostilities that do not satisfy the Tadic test.  And that is true regardless of the US’s subjective perceptions of its “armed conflict” with al-Qaeda.

I have no idea whether the DC Circuit, if presented with the question, would be true to its own principles and apply Hamdan II to al-Nashiri.  I am also far from confident that the DC Circuit would apply Tadic correctly and conclude that there was no armed conflict between the US and al-Qaeda at the time of al-Nashiri’s acts.  But if I were al-Nashiri’s lawyers, I’d raise the issue as soon as I could.

Events and Announcements: January 20, 2013

by Jessica Dorsey

Upcoming Events

Calls for Papers

  • The Tilburg Law and Economics Center (TILEC) organizes a two-day Workshop on Economic Governance and Organizations at Tilburg University, the Netherlands, on June 6-7, 2013. The aim is to assemble scholars from law, economics, and management studying organizations that mitigate economic governance problems. Submissions of theoretical, empirical, and experimental work, as well as case studies are welcome. The deadline for submissions is February 1, 2013.
  • The Forced Migration Review invites submissions for a special issue on Detention and Deportation. Submissions are due April 15, 2013. See the call here.
  • The German Yearbook of International Law is Germany’s oldest yearbook in the field of public international law. The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing all aspects of public international law. The ‘General Articles’ section of the GYIL is open to submissions from the entire academic community and is independently peer-reviewed by a board of renowned experts.

Additional Announcements

  • ILSA has announced a call for proposals for the 2014 Jessup Competition problem. Proposals must be submitted by March 9, 2013.
  • The Academy on Human Rights and Humanitarian Law is pleased to announce the
    opening of the application period for the Program of Advanced Studies on Human Rights and Humanitarian Law that will be offered from May 28 to July 15 of 2013. This Program offers 19 courses in English and Spanish lectured by over 39 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 170 participants from more than 40 different countries and with different levels of professional experience The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission and Court on Human Rights, recognized members of NGOs and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance, ABA Credits for students currently studying in a U.S. law school and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. The application form for this program is available here.

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

Will Bond v. United States Matter?

by Julian Ku

Bond v. United States is one of those cases that promises both more and less than it seems.

At first glance, it seems an important and fascinating case because it is the first time the U.S. Supreme Court will revisit any aspect of the famous 1920 Oliver Wendell Holmes Jr.’s decision in Missouri v. Holland.  That decision, arguably the most famous decision in the U.S. foreign affairs law canon, held that the treaty power was not constrained by the state’s rights limitations in the Tenth Amendment of the U.S. Constitution.  It also held that Congress’ power to implement treaties through normal legislation is similarly unconstrained.

By agreeing to decide Bond, the Supreme Court may reconsider the second (and less famous) of those two holdings.  That second holding, on the much understudied “treaty implementation” power, was challenged in a 2005 Harvard Law Review article by Georgetown Professor Nicholas Rosencranz. (BTW, large congratulations should go to Nick for almost single-handedly creating, or at least reviving, this argument.)

As a matter of high constitutional principle about the nature of the U.S. Constitution’s grant of enumerated powers, this could be a huge case.  But there are reasons to doubt the practical importance of any decision by the Court to revisit Missouri v. Holland in the context of Bond.  Why?  Because the central holding of Missouri v. Holland was that treaties are not constrained by the Tenth Amendment.  Even if the Court holds that Congress cannot use a treaty to exceed its Article I powers, the President and Senate could still simply use a self-executing treaty to implement the same obligations (as Prof. Rick Pildes argues here).

Having said all that, a favorable decision for the petitioners in Bond could still have a practical impact by reviving that almost extinct constitutional creature: the self-executing treaty.  The President and Senate, at least in the past few decades, have very rarely approved self-executing treaties outside of a few subject matter areas (like taxes, extradition, and investment).  Big important treaties, such as human rights treaties, have generally been approved on the condition they are non-self-executing. (Go ahead, name the most important self-executing treaty of the past thirty years. That Tax Convention with Chile?)  Or they are approved like most trade agreements via the route of the congressional-executive agreement.

So Bond might actually result in giving the President and the Senate the incentive to go the “self-execution” route.  As a matter of politics, this might be difficult in today’s Senate, but I think future treaty supporters might not think it would be safer to go the self-execution route to avoid future Bond-like challenges to their treaties.

Supreme Court decides to revisit Missouri v. Holland after all!

by Duncan Hollis

Just a quick entry (it’s late here in Tokyo) to note that the Supreme Court is going to hear the case of U.S. v. Bond, which, in effect, revisits the question of Missouri v. Holland and the scope of Congress’s power to implement U.S. treaty obligations.  Over at Volokh this past week, Nick Rosenkranz and Rick Pildes have been debating that constitutional question in some detail (see here for links to all their posts in one place).  I’ll have more to blog on this later, but for now, my plea is an editorial one.  I think Holmes’ opinion in Missouri is one of the most well-written in the pantheon of the Court’s great cases.  So, if the Court’s going to mess with it — and as I’ve said before I don’t think they should — I’d hope that the current Court can adjust Missouri with something of equal eloquence.

Hat-tip — SCOTUS blog

Weekend Roundup: January 12-18, 2013

by An Hertogen

The week on Opinio Juris started off on a lighter note with Ken’s post on the Obama Administration’s response to a petition to build the Death Star. And although the administration’s answer encourages readers to  “pursue a career in a science, technology, engineering or math-related field”, our comments raised the question of customary inter-stellar law. The pop cultural fun continued later with a video linking Ken to the Terminator…

The call for referral of the Syria situation to the ICC was the topic of two posts. In a guest post, Jennifer Trahan analysed the merits of a referral and expressed some concerns about its implementation. Kevin also weighed in with a few thoughts. Jennifer’s comment then led Kevin to develop his argument that the Security Council cannot implicitly amend the ICC Statute, which triggered further discussion in the comments.

Continuing on the ICC, Kevin posted why Saif Gadhafi’s first court appearance in Libya undermines the state’s arguments in its complementarity challenge at the ICC. In another post, Kevin was very critical about the decision by Judge Pohl rejecting the argument that the US and Al-Qaeda were at war at the time of the attack on the USS Cole.

Kristen Boon compared sanctions by the UN Security Council with those imposed by regional organizations, particularly the African Union and ECOWAS, who are becoming increasingly active. Further on Africa, Deborah asked whether, under international and domestic law, the US could engage in armed drone strikes to assist the French intervention in Mali.

We also had two guest posts this week. Peter Margulies provided a guest post summarizing the debate on targeted killing at a recent symposium on the Boundaries of the Battlefield, co-ordinated by my fellow Assistant Editor, Jessica Dorsey, and Başak Çalı posted the second part of her series on international judicial review, comparing two cases of the European Court of Human Rights.

In addition to our regular Events and announcements post, Julian announced that Tom Graham, member of the WTO’s Appellate Body, will give the Shapiro lecture at Hofstra on February 6. Roger congratulated David Caron on his appointment as the new dean at the Dickson Poon School of Law at King’s College London, and Kevin welcomed Diane Marie Amann back to the blogosphere. As always, we also provided you with daily news wraps.

Many thanks to our guest contributors and have a great weekend!

Weekday News Wrap: Friday, January 18, 2013

by Jessica Dorsey

Libya Admits It Should Lose Its Complementarity Challenge Re: Saif

by Kevin Jon Heller

Not in so many words, of course.  But that’s the upshot of the Libyan government’s most recent statements.  Saif recently appeared for the first time in a Libyan court; his trial, which was supposed to start this month, is now set for May 2013 because the Libyan government has still not provided him with counsel.  Don’t be fooled into thinking, though, that Saif will stand trial for the crimes against humanity of murder and persecution — the charges at the ICC.  No, according to AP, the charges in Libya are, shall we say, a bit different:

The imprisoned son of slain dictator Moammar Gadhafi made his first appearance on Thursday in a local court on charges of harming state security, attempting to escape prison and insulting the nation’s new flag, Libya’s official news agency said.

LANA says the trial of Seif al-Islam Gadhafi, the ousted leader’s longtime heir apparent, was held in the western town of Zintan where he is being held by militiamen. The spokesman of Libya’s General Prosecutor Taha Baara quoted Seif al-Islam as saying: “only God will defend me.”

The charges are linked to his June meeting with an International Criminal Court delegation accused of smuggling documents and a camera to him in his cell. The four-member team was detained by Zintan rebels but released after the ICC made an apology and pledged to investigate the incident.

The ICC declined comment on what it called “national proceedings,” which on Thursday were adjourned until May so that a lawyer could be assigned Seif al-Islam, the most senior member of the ousted Gadhafi regime to be captured alive in 2011.

There is no reason to revisit the ridiculousness of the charges involving Melinda Taylor and the OPCD — the fact that they are at the heart of Saif’s domestic prosecution simply serves as a reminder of Libya’s contempt for the ICC.  It is important to emphasize, however, that Libya’s complementarity challenge can succeed only if Libya’s domestic prosecution of Saif is based on the “same conduct” as the ICC proceedings.  That is obviously not the case.

Libya could argue, of course, that it is continuing to investigate Saif for the conduct underlying the crimes against humanity charges, so it is not inactive with regard to that conduct.  But there is a problem with that — Taha Baara, the spokesperson for Libya’s General Prosecutor, has admitted that the requisite investigation is over:

Baara said the Zintan tribunal would convene again on May 2.

“Investigations for trying him for war crimes are over and he will be put on trial for that at a later time,” Baara told the Reuters news agency.

From a complementarity perspective, vague promises to prosecute Saif for “war crimes” at some point in the future are not good enough.  Libya must either be actively investigating Saif for the same conduct or actively prosecuting him for that conduct.  By its own admission, it is doing neither.  Libya’s complementarity challenge, therefore, must fail.

Tom Graham, US Member of the WTO Appellate Body, to Give Shapiro Lecture at Hofstra

by Julian Ku

I am delighted to announce that Thomas Graham, the U.S. Member of the World Trade Organization’s Appellate Body, will be giving the Shapiro Lecture at Hofstra entitled “It Sure Looks Different from the Inside: Deciding International Disputes at the WTO.”   Graham has been an observer and a participant in the international trade law system since the 1970s as a USTR attorney, private lawyer, Deputy US Trade Representative, and now as a WTO Appellate Body Member.

For those of you international trade law groupies or international dispute resolution folks trapped living in the NY area this winter, please consider visiting us at Hofstra on February 6.  If you can’t, we will be webcasting it live as well.

 

Standards of International Judicial Review: Von Hannover and Fatullayev Compared

by Başak Çalı

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the second in a series of three.

Last week I suggested that comparing the Von Hannover (2) Case of 2012 and the Fatullayev Case of 2010, both of which concern reviews of freedom of expression decisions given by supreme domestic courts, is a good way of understanding the variable standard of judicial review developed by the European Court of Human Rights.

The Von Hannover Cases (1) and (2)

The Von Hannover (2) Case was the second appearance of Princess Caroline of Monaco before the Strasbourg Court, arguing that the German press had violated her right to privacy. In the first Von Hannover Case of 2004, Princess Caroline advanced the argument that given that she does not hold a public office or have any public functions, the continuous publication of pictures depicting her private life in the German press violated her right to privacy, and the German Courts had failed to protect her. In the first case, the Strasbourg Court found a violation. In the second case it did not. From Princess Caroline’s perspective, this outcome is odd. The explanation lies in how the Strasbourg Court defines its standard of judicial review of domestic courts.  Continue Reading…

Weekday News Wrap: Thursday, January 17, 2013

by Jessica Dorsey

Judge Pohl: the US and AQ Were Engaged in Hostilities in 1775

by Kevin Jon Heller

Okay, I’m exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri’s contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment — primarily the attack on the USS Cole in 2000 — thereby depriving the military commission of jurisdiction over those acts. I have explained before (see here and here) why al-Nashiri’s argument is correct. Unfortunately, but completely unsurprisingly, Judge Pohl disagrees.  It is worth examining his four-page decision in detail, because it illustrates why the military commissions are so deeply and irremediably flawed.

Here is the first substantive paragraph:

Whether hostilities existed on the date  of the acts alleged to have been committed by the accused is as much a function of the nature of hostilities as any particular legally significant act by either the legislative or executive branches of government. Whether hostilities existed on the dates of the charged offenses necessarily is a fact-bound determination; moreover, whether a state of hostilities existed is as much a function of the will of the organization to which the accused is alleged to belong to as the U.S. government. In determining whether hostilities exist or do not exist, the enemy gets a vote.[1] Whether Al Qaeda, the organization of unprivileged enemy belligerents to which the accused is alleged to be a member, considered itself to be at war with the United States on the date of the alleged law of war violations is a factor among many to be considered by the trier of fact and is as relevant as any judgments made or withheld by the President or the Congress.

This is patently incorrect.  Whether a state is engaged in an armed conflict with a non-state actor is a purely factual determination, one that depends (sound familiar?) on the organization of the non-state actor and the intensity of hostilities between the non-state actor and the state.  Full stop. Whether a non-state actor believes it is “at war” with a state is irrelevant to that determination; it is not “a factor among many.”

But perhaps Judge Pohl is aware of legal precedent that I’m not.  After all, he footnotes his claim! So let’s see what the footnote says (emphasis mine):

“In connection with the plan of a campaign we shall hereafter examine more closely into the meaning of disarming a nation, but here we must at once draw a distinction between three things, which as three general objects comprise  everything else within them. They are the military power, the country, and the will of the enemy. The military power must be destroyed, that is, reduced to such a state as not to be able to prosecute the war. This is the sense in which we wish to be understood hereafter, whenever we use the expression “destruction of the enemy’s military power.” The country must be conquered, for out of the country a new military force may be formed. But if even both these things are done, still the war, that is, the hostile feeling and action of hostile agencies, cannot be considered as at an end as long as the will of the enemy is not subdued also…” Carl von Clausewitz, On War Book I Chapter 2 (1832) (emphasis added). In other words, whether the enemy has the will to make war is determinative of whether hostilities begin to exist, continue to exist, or have been terminated.

Yes, indeed: Judge Pohl’s only citation for the idea that a non-state actor can declare war against a state is an 1832 quote from Clausewitz about conflicts between states.  Had he chosen to do so, of course, Judge Pohl could have provided a slightly more relevant — and slightly more recent — citation, such as Quincy Wright’s widely-accepted conclusion that insurgents, “not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  Judge Pohl must have missed that one.

Onward to the next paragraph…

Thinking Through the Malian Thicket

by Deborah Pearlstein

I can’t imagine that the DOD-DOJ-DOS-DNI-CIA lawyers assigned to this one are getting much sleep these days. According to the Washington Post:

The Obama administration is considering significant military backing for France’s drive against al-Qaeda-linked militants in Mali…. The loosely affiliated web of Malian militants in the country’s north includes members of al-Qaeda in the Islamic Maghreb (AQIM). But other fighters are longtime foes of the Malian government and pose no direct threat to U.S. interests.… U.S. officials have said publicly that they are evaluating France’s requests for further assistance. But privately, they say that one of the critical requests relates to intelligence that could be used for targeting purposes, said the senior official, who spoke on the condition of anonymity about intelligence and diplomatic matters. Evaluating the request involves “understanding what the French objectives are and really how they intend to go about them and against whom,” the official said.… The official said contingency plans for the use of armed drones were already in place and are being reevaluated. The official would not be more specific.

Hard to figure out from this bare report what’s really being considered here, but it seems that France wants either (at least) U.S. intelligence support for deciding what/whom to target in its ongoing ground operations against Islamist insurgents in Mali, or (perhaps) wants the U.S. to conduct targeting operations itself. (According to the Post, the U.S. government has ruled out sending U.S. ground troops to Mali anytime soon.)

Could the U.S. lawfully engage in armed drone operations in Mali? Where to start (and still get class prepared for tomorrow)? Maybe one international law question, one domestic:

(1) International law. Attacking anything in Mali raises territorial sovereignty concerns. Is there a government there that could lawfully consent to the U.S. use of force in country such that the U.S. wouldn’t risk violating UN Charter article 2 prohibitions against the use of force? Consent, best I can tell, is the only option here. There’s no UN Security Council resolution authorizing the use of force. And I’ve yet to see any media report suggesting we think there’s any kind of direct threat (much less an imminent threat) posed by the Malian militants against the United States. So consent it is, and it would come from, best case, a government that seized power by coup and to which we’ve otherwise cut off military aid. The U.S. still maintains an embassy in Mali (as does Mali in the U.S.), so perhaps consent is not legally insurmountable. But I’d wonder both what the terms of the U.S. aid cut-off were, and whether there’s any precedent for this.

(2) Domestic law. This seems the tougher question. Would, for example, the 2001 AUMF authorize the use of military force here? Recall the AUMF authorizes the use of “necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Setting aside for the moment whether there’s any operational way of distinguishing AQIM folks from the non-AQ-affiliated militants also opposing the Malian government, the AUMF would seem to apply at most to members of AQIM (not the other militants). But does the AUMF even extend to AQIM? According to the analysts at the West Point Combating Terrorism Center, AQIM was born as a guerilla Islamist movement opposing the secular government of Algiers. It became affiliated with Al Qaeda only as a last ditch effort to save its flagging local fortunes, perhaps as many as 5+ years after the attacks of September 11. This brings us back to the thorny and never resolved question of against whom, other than members of the Taliban and the Al Qaeda that attacked us on 9/11, the AUMF permits the use of force. But where it seemed possible to understand the case (based on publicly available information) that AQAP – the Al Qaeda affiliate in Yemen – actually had designs on harming the United States, it’s much less clear to me that AQIM harbors the same objective. Of course the United States should be concerned about AQIM – both the possibility of it establishing a Taliban-like Al Qaeda-friendly government in Mali, and the threat it more plainly poses to our allies France and Spain. But is that the threat Congress was worried about when it passed the AUMF? Hard to see.

(2b) So if not the AUMF, then what? The President’s own constitutional authority to use force (at least until the War Powers Act deadline)? Remind me after class tomorrow to re-read in full that OLC memorandum defending the President’s constitutional authority to use force without congressional authorization in Libya. For now I’ll just note that the sign-off there was pretty case specific. And had something to do with a UN Security Council resolution we surely don’t have this time.

The President explained in his March 21, 2011 report to Congress that the use of military force in Libya serves important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council. The President also stated that he intended the anticipated United States military operations in Libya to be limited in nature, scope, and duration. The goal of action by the United States was to “set the stage” for further action by coalition partners in implementing UNSC Resolution 1973, particularly through destruction of Libyan military assets that could either threaten coalition aircraft policing the UNSC-declared no-fly zone or engage in attacks on civilians and civilian-populated areas. In addition, no U.S. ground forces would be deployed, except possibly for any search and rescue missions, and the risk of substantial casualties for U.S. forces would be low. As we advised you prior to the commencement of military operations, we believe that, under these circumstances, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval.

If armed drones are really what France is after, hope the OLC folks know where to get late-night take out coffee and croissants.

UPDATE: Complicating matters further, the Times now reports: “Islamist militants seized a foreign-operated gas field in Algeria early Wednesday and took 20 or more foreign hostages, including Americans, according to an Algerian government official and the country’s state-run news agency, in what appeared to be a retaliation for the French-led military intervention in neighboring Mali.”

Sanctions On the Upswing by Regional Bodies in Africa

by Kristen Boon

The African Union (AU) and the Economic Community of West African States (ECOWAS) are becoming active sanctioners in Africa.   In the last few years, the AU and ECOWAS have applied sanctions in many African conflicts, including Mali, the Central African Republic, Ivory Coast, and Guinea-Bissau.  This represents a lot of activity for the AU in particular, which is only 10 years old.

The role of sanctions by regional organizations is to be contrasted with the UN Security Council’s.  The UN has typically applied sanctions in three situations: counter-terrorism, nuclear proliferation, and in cases of civil wars or interstate conflicts.  However, sanctions by African regional organizations focus heavily on internal political conditions.  Under Articles 23 and 30 of the AU’s constitutive act, for example, the AU can sanction for non-payment of organizational dues and for unconstitutional changes of government. See an analysis of these provisions here.   For ECOWAS, Article 45 of the Protocol on Democracy and Good Governance permits sanctions against its members “in the event that democracy is abruptly brought to an end by any means or where there is massive violation of Human Rights in a Member State.”    In sum, these regional security systems permit sanctions in internal situations where the constitutional order and good governance is at stake. These are situations where the UN Security Council rarely acts, unless it is supporting regional measures, as it did in Guinea Bissau and Sierra Leone.  Regional organizations consequently have a narrow purview, and focus less, as a legal matter, on the international ramifications to peace and security that would trigger the Security Council’s chapter VII powers.

In terms of form, the AU applies what are known as “targeted” sanctions that apply to specific actors and have specific goals.  AU targeted sanctions typically involve travel bans, asset freezes, and denial of transport and communications, as this excellent report by Mikael Eriksson explains.    Both the AU and ECOWAS can suspend membership rights as well.   Suspension might appear as little more than a slap on the wrist, however it has long been observed that there are multiple obstacles to effective implementation of sanctions in Africa, including: (i) lack of local capacity to implement; (ii) porous borders blunting the impact of sanctions, and (iii) the difficulty of reaching targeted individuals who operate outside formal financial systems.   Exclusion from membership of a respected regional organization may therefore have a greater impact than multilateral sanctions imposed by distant bodies, due to the stigmatizing effects and loss of participation in local economic and security communities.

Another difference between UN and regional sanctions is duration.   Whereas UN Security Council sanctions often linger on for years, and some would argue, far beyond their natural lifespan, sanctions applied by the African organizations are typically short lived.  For example, ECOWAS applied sanctions against Mali’s leaders in April 2012, and lifted them a few months later, in August 2012.   Relatedly, regional organizations have been much quicker to threaten sanctions in deteriorating political situations, and use them as a tool to keep the dialogue going in times of instability.  Although the track record is too short to indicate definite trends, it appears that sanctions by regional bodies have been more nimble and responsive to situations on the ground.  Nonetheless, regional organizations have encountered many of the same problems of implementation and compliance as Security Council. The jury is still out on whether regional sanctions are more effective.

Sanctions will be an important nexus point for future cooperation between the UN Security Council and regional bodies.   Of course the UN Charter accords the UN Security Council primary (but not exclusive) responsibility with regards to peace and security. There is interesting work being done on the relationship between the AU’s Peace and Security Council and the UN Security Council on peacekeeping, but little work (as far as I am aware) assessing the relationship between the Security Council and regional organizations on sanctions.  This seems like an important area of inquiry moving forward, as it might provide an opportunity to more fully utilize Chapter VIII of the UN Charter on regional arrangements.

Law and Robotics Conference Seeking Paper Proposals, and HRW’s Tom Malinowski Releases Video That I Will Always Treasure

by Kenneth Anderson

Ordinarily I would leave events posting to our regular postings, but I fell behind and wanted to flag the upcoming Friday deadline for paper proposals for the “Law and Robotics Conference.” It will take place on April 8-9, 2013, at Stanford Law School (the conference follows on the highly successful law and robotics conference that took place at University of Miami last year).  The call for papers says that the conference is open to papers in all fields of law, and specifically mentions international and comparative law, so I thought it would be of interest to OJ readers.  Matthew Waxman and I plan to submit, for example, a proposal on comparing self-driving cars and autonomous weapon systems (I’ve been exploring some of these ideas, brainstorming for the paper, over at Volokh). I am 100% certain the conference will be terrific with outstanding papers and great discussions.  Here is the link if you’re interested.

Meanwhile, over at Lawfare, Human Rights Watch’s Tom Malinowski, Benjamin Wittes, Matthew Waxman, and I have been debating the recent HRW report calling for a ban on “Killer Robots.”  Tom’s latest response – though mostly a serious discussion, well worth reading, though I’m afraid it doesn’t finally manage to persuade me – has a video at the end that I will always, always fondly treasure.  It’s great.   (It’s in Hindi, and though I didn’t know Tom knew Hindi, I’m going to trust his subtitles.)

Weekday News Wrap: Wednesday, January 16, 2013

by Jessica Dorsey

Welcome (Back) to the Blogosphere, Diane Marie Amann!

by Kevin Jon Heller

As Peggy noted a couple of weeks ago, the international-law blogosphere lost one of its most important collective voices when IntLawGrrls closed up shop.  Fortunately, one of the most important individual voices within IntLawGrrls is back blogging — Diane Marie Amann, who holds the Emily & Ernest Woodruff Chair in International Law at my former academic home, the University of Georgia.

Her new, eponymously-entitled blog can be found here.  Welcome back, Diane!

Can the Security Council Implicitly Amend the Rome Statute?

by Kevin Jon Heller

I argued yesterday that the Security Council cannot refer a situation to the ICC under Art. 13(b) of the Rome Statute while exempting nationals of non-States Parties from the Court’s jurisdiction.  Jennifer Trahan disagrees:

I primarily disagree with Kevin’s first point.  While it may be objectionable to have an exemption of nationals of non-States Parties, I actually think that the UN Security Council can do this.  Kevin makes the point that under article 13(b) of the Rome Statute, the Security Council refers a full “situation” and not particular defendants.  Yes, 13(b) governs how the Prosecutors and Judges view a Security Council referral, and they might well take this position.  But ultimately the Security Council’s power comes not from 13(b) but from the UN Charter, and the Council has great leeway to act under Chapter VII.  Once it has found a “threat to the peace, breach of peace or act of aggression” under article 39, it has open-ended lists of what it is empowered to do under articles 40, 41 and 42, so I think the Security Council has the ability to do the exemption.  The problem then with Kevin’s reading is he is setting up a conflict where 13(b) is read to disallow something the Security Council arguably has power to do under Chapter VII.  In the event of a conflict between the Charter and a treaty, it is, under article 103 of the Charter, the Charter that prevails.  So, if we take Kevin’s reading, and there is such a conflict, it is the Security Council’s reading that I believe would prevail.

I have heard this argument from a number of scholars I respect, but I continue to believe that it is incorrect.  My position is straightforward: the ICC is an independent international organization that was consensually created by states via treaty.  The Security Council has the power to refer situations to the Court for one reason, and reason only: states decided to include Art. 13(b) in the Rome Statute.  The Court thus has no obligation whatsoever to comply with a “referral” that does not comply with Art. 13(b); after all, the very first article of the Rome Statute provides that “[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”

Indeed, it is important to emphasize the implications of the argument to the contrary.  If the Security Council has the power to implicitly rewrite Art. 13(b) by passing a resolution that says a different jurisdictional regime is necessary to address a threat to international peace and security, why does it matter that Art. 13(b) even exists?  Assume that there was no Security Council referral power at all in the Rome Statute. If the Security Council didn’t like that limitation and passed a resolution referring a situation to the ICC anyway, we would have the same “conflict between the Charter and a treaty” that Jennifer believes must be resolved in favor the Security Council.  So the Court would have to investigate the situation even though doing so was directly contrary to the Rome Statute.

Nor is that all.  If the Security Council has the authority under Chapter VII to rewrite the Court’s personal jurisdiction via a referral, what principled reason is there to deny it the same power to change other aspects of the Court’s jurisdiction?  Could it pass a resolution deferring an ongoing investigation or prosecution in perpetuity, even though Art. 16 limits the Security Council’s deferral power to one-year increments?  Could it refer a situation to the Court that took place in the 1970s — some of the worst excesses of the Dirty War, perhaps — even though the terms of Art. 126 limit the Court’s temporal jurisdiction to actions that took place after 1 July 2002?  Could it deem an aggression prosecution necessary to protect international peace and security, even though the aggression amendments are not yet operative?

I don’t see how we can answer these questions in the negative if the text of the Rome Statute is irrelevant and the Security Council’s authority to refer situations to the Court is limited only by its Chapter VII authority.  And I don’t see how we can sustain that conception of the Security Council’s authority under Chapter VII.  There is no question that Chapter VII empowers the Security Council to do many things.  But I don’t think rewriting the text of a carefully drafted treaty is one of them.

Readers?

David Caron Appointed New Dean at King’s College London Law School

by Roger Alford

Dean CaronMy friend and colleague David Caron, C. William Maxeiner Distinguished Professor of Law at the University of California, Berkeley, has been named the new Dean at the Dickson Poon School of Law at King’s College London. The press release is here.

I have known David Caron for over twenty years and always thought he would make an excellent Dean or Judge. He has tremendous administrative experience, having served at the highest levels at ASIL, the ABA’s Section on International Law, the Law of Sea Institute, and the Institute for Transnational Arbitration.

He also brings a wealth of international law knowledge to the subject, including public and private dispute resolution, international courts and tribunals, the United Nations, the law of the sea, and international environmental law. On top of his academic chops, he remains seriously engaged with the legal profession. He served at Pillsbury Madison & Sutro before joining the academy, regularly consults with law firms around the world, and serves as an arbitrator in various commercial and investment matters.

David not only has a great head he also has a great heart. His enthusiasm is infectious, his laughter contagious, and his genuine warmth toward students and colleagues a model for us all. When I was starting my career twenty years ago in The Hague, he’s the kind of person that I looked to and thought to myself, “I want to be like that some day.”

He will be a great Dean, and will substantially contribute to the global reputation of King’s College.

Weekday News Wrap: Tuesday, January 15, 2013

by Jessica Dorsey

A Few Thoughts on a Syria Referral

by Kevin Jon Heller

My thanks to Jennifer for contributing her post, which makes the case for referring the situation in Syria to the ICC.  I don’t necessarily disagree with her bottom line, but I have my hesitations.  And I want to offer a few thoughts about the idea of a referral in general.

First, as Jennifer notes, the letter states that a Security Council referral should not exempt nationals of non-States Parties from the Court’s jurisdiction.  I’m glad to see the letter take that position, but it is important to note that nothing in the Rome Statute suggests that the Security Council has the authority to refer only those individuals to the Court it thinks deserve punishment.  Indeed, as I have discussed before, I think such exceptions are inconsistent with Art. 13(b) of the Rome Statute, which provides (emphasis mine) that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if… (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”  Art. 13(b) makes clear that the ICC investigates situations, not individuals or individual cases — particularly not individuals or individual cases associated with only one side of a conflict.  If the Assembly of States Parties wants to amend Art. 13(b), it can. Until it does, though, the Security Council has no right to limit the personal jurisdiction of the Court as part of a referral.

Second, I don’t think the funding issue can be stressed strongly enough. As Jennifer notes, the letter explicitly calls for the UN to provide the Court with the funds it would need to investigate the Syria situation and to prosecute those it finds the most responsible for serious international crimes — something it failed to do with the Darfur and Libya referrals.  (Mark Kersten has written endlessly and well about this.)  I’d go farther than the letter: the Prosecutor should refuse to act on any Syria referral unless it is accompanied by the necessary funding.  Although there is much scholarly debate about whether the OTP is obligated to investigate a situation referred to the Court by the Security Council, the existence of any such obligation seems facially inconsistent with Art. 53(1) of the Rome Statute, which provides (emphasis mine) that “[t]he Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.”  One of the factors relevant to the “reasonable basis” inquiry is whether an investigation would serve “the interests of justice.”  In my view, it is not in the interests of justice — especially for the victims — for the OTP to conduct an inadequate investigation because of lack of resources.  An underfunded and understaffed investigation is a recipe for impunity.

Third — and this is my one point of disagreement with Jennifer — I am not completely convinced that now is the best time for the Security Council to refer the Syria situation to the Court.  I’m always skeptical of claims that the threat of an ICC prosecution will deter dictators like Assad from committing serious international crimes to stay in power, but I’m particularly skeptical that threats of prosecution have deterrent value long after the dictator in question has already committed those crimes.  The time for a referral was at the beginning of the conflict, when Assad could have avoided prosecution by choosing a different path; at this point, he really doesn’t have anything to lose by continuing to commit crimes, because he’s already facing life imprisonment if (by some small miracle) he ever ends up in the ICC’s dock.  So I think the Security Council might be better off waiting until after the conflict ends to refer the Syria situation, when we will have a much clearer idea of what the constellation of power in the country will be.

Fifty-Seven Countries Call for Referral of the Syria Situation to the ICC: analysis of the merits of the referral and concerns as to its implementation

by Jennifer Trahan

[Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]

Today, January 14, 57 U.N. Member States from Africa, Asia, Europe and Latin America, coordinated by Switzerland, sent a letter requesting the U.N. Security Council to refer the situation in Syria to the International Criminal Court for investigation and prosecution.

The UN Security Council should make the referral; in fact, it should have done so already months ago.  Because Syria is not a party to the ICC’s Rome Statute, the Court would not have jurisdiction over the crimes in Syria absent the referral.

Mass crimes

With an estimated 60,000 fatalities, and reason to suspect both war crimes and crimes against humanity have occurred, referral is clearly warranted.  Underlying crimes according to the UN’s independent international Commission of Inquiry on Syria include “patterns of summary execution, arbitrary arrest, enforced disappearance, torture, including sexual violence, as well as violations of children’s rights…”

The UN Security Council, which may refer “situations” to the ICC pursuant to Rome Statute article 13(b), has previously referred both the situations in Darfur (SC res. 1593) and Libya (SC res. 1970) to the ICC for investigation and prosecution.  The latter referral was made after far fewer fatalities had occurred than have occurred in Syria.  Security Council action is needed if the Council is to retain institutional legitimacy and consistency in its relationship with the ICC and to show its resolve in addressing large-scale crimes.

Impunity at the national level

The Syrian judiciary is not addressing the crimes that are occurring, and there is no reason to suspect that, under the current government, there would be national court trials.

If there were to be a future change of government, the ICC referral still makes sense.  If a future government were to contain vestiges of the past regime, national court trials could be impeded by efforts to “shield” perpetrators from justice.  If a future government were to consist of an entirely new regime, national trials could become vengeful affairs— overzealous prosecutions lacking due process—such as Saddam Hussein’s trial before the Iraqi High Tribunal.

If there actually were to be future credible national trials, the referral would have done no harm (it would not supplant good faith national investigations and prosecutions under the “complementarity” provisions of Rome Statute article 17), and in fact could provide incentive for holding national trials.

As in all referrals, the referral would be of the “situation” in Syria , so would not be limited to crimes by the Assad government and military, but would encompass opposing Syrian forces as well.

Whether to exclude nationals from non-States Parties from the referral

The Swiss letter states that the referral should be made “without exceptions.”  This is a reference to the fact that past referrals by the UNSC excluded jurisdiction over nationals of non-States Parties (for instance, should they become part of a troop deployments in the countries at issue).  This raises a complex question, but suffice is to say that such automatic exclusion of nationals of non-States Parties appears to engender resentment in the international community.  To begin with, three permanent members of the UN Security Council are non-States Parties to the ICC (Russia, China and the U.S.), so there already exists the imbalance that these countries have the power to vote for or veto ICC referrals, yet crimes committed on their territories are not subject to ICC jurisdiction (and they have the power to veto referrals involving their own nationals).  A further level of insulation of troops from non-States Parties as part of a referral increases such imbalance, but also seems unnecessary in a situation such as the present one, where no such troops are deployed.  (Were there future deployments of troops from non-States Parties, this issue would no doubt resurface and could then be addressed.)

Whether UN funding should accompany the referral

The Swiss letter also asks that if the referral occur that the Security Council “commit the necessary resources.”  Past referrals of the Darfur and Libya situations came with no funding.  Given the ICC’s tight budget and ever-expanding docket and expectations placed on it, such lack of funding is indeed problematic for the Court.  Investigating and prosecuting crimes requires significant financial expenditures.  A strong case can be made that the UN Security Council should not preclude UN funding.  While current U.S. legislation precludes the US from directly funding the ICC, it is unclear that this necessarily precludes use of UN dues.

The need for Security Council follow-up

Finally, the Swiss letter asks that if the Security Council makes the referral, that it facilitate “execution of potential arrest warrants.”  This is significant.  The past Darfur and Libya referrals were made without any commitment by the Security Council to follow-up efforts to ensure that ICC trials actually occur.  (Thus, for example, none of the Darfur arrest warrants have ever been executed).  It is high time to ensure that when the Security Council makes a referral that it undertakes some obligation to conduct follow-up, including in the areas of arrests.

If the crimes and violence occurring in Syria are going to be deterred to any extent, that will not occur without a credible threat of prosecutions.  Right now, the only way to make that threat serious is through a UN Security Council referral.  The ICC would provide a reliable, fair and neutral forum for prosecuting high level perpetrators.

Boundaries of the Battlefield Symposium Insight

by Peter Margulies

[Peter Margulies is a Professor of Law at the Roger Williams University School of Law focusing on the balance of liberty, equality and security in counter-terrorism, and author of Law’s Detour: Justice Displaced in the Bush Administration (NYU Press 2010).]

The days of Donald Rumsfeld chiding “Old Europe” are gone, but targeted killing has renewed debate on counter-terrorism strategies between the US and Europe.  Boundaries of the Battlefield, a symposium sponsored last week by The Hague’s Asser Institute and coordinated by Asser researcher and Opinio Juris contributor Jessica Dorsey, offered an opportunity to explore those differences and find common ground.  The symposium, co-sponsored by the International Centre for Counter-Terrorism, IHCL Platform, Konrad Adenauer Foundation, City of The Hague, and the Dutch Foreign Ministry, was especially valuable against the backdrop of former UK Legal Adviser Daniel Bethlehem’s new AJIL piece (see Ashley’s discussion here) on self-defense against non-state actors.  This first post will flag the debate at the conference on targeted killing and what Ken Anderson has called “naked self-defense.” A second post will analyze another issue that has roiled relations between the US and its allies: the clash between the law of armed conflict (LOAC) and international human rights law (IHRL).

The targeted killing debate started with law on the initiation of hostilities, aka the jus ad bellum.  In Daniel Webster’s 1841 Caroline formulation, the use of force in self-defense requires an imminent threat.  A number of conference participants, supporting the position taken by Bethlehem, favored a broad view of imminence.  I argued that the agility and clandestine nature of terrorist groups precluded waiting until the precise moment before an expected attack.  Rather, responses to violent non-state actors may appropriately trade off imminence and probability, intervening at an earlier stage to address what Chris Slobogin has called the…

Weekday News Wrap: Monday, January 14, 2013

by Jessica Dorsey

Events and Announcements: January 13, 2013

by An Hertogen

Calls for Papers

  • Applications are due this week on January 15 for a workshop on European and transnational rulemaking in Amsterdam between July 1-5, 2013. More information can be found here.
  • The Committee of Non-State Actors of the International Law Association (ILA), The Institute
    for Transborder Studies (ITS) at Kwantlen Polytechnic University, the Leuven Centre for
    Global Governance Studies, Oxford Brookes University, in collaboration with the ILA-
    Canada, the Flemish Scientific Research Fund (FWO, ‘the network’), and the Canadian Bar Association – British Columbia Branch invite papers on the responsibilities of non-state actors in international law for a conference in Vancouver on 27-28 June 2013. A paper abstract should be submitted by 10 February 2013. The organizers will get back to the author by 28 February 2013. Draft papers (5000 – 6000 words) should be submitted by 1 June 2013. More information, including contact details for the submission of the abstracts, is available here.
  • The Customs and International Trade Bar Association (CITBA) and Brooklyn Law School
    (BLS) are calling for submissions by students enrolled as a JD or LL.M student in a US law school, interested in customs or international trade law, for the Fifteenth Annual Andrew P. Vance Memorial Writing Competition.  Winning papers will be considered for publication in the Brooklyn Journal of International Law and cash prizes of $500 and $1000 are awarded to the top two papers. Details on the paper requirements and the judging criteria can be found here.

Weekend Roundup: January 5-11, 2013

by An Hertogen

This week on Opinio JurisKevin responded to Eugene Kontorovitch’s post over at The Volokh Conspiracy on the comparability of Israel’s settlement of the West Bank to Turkey’s settlement of Northern Cyprus, by arguing that both settlements are not comparable. Eugene rebutted by advancing five reasons why Turkey’s settlement is the graver violation of international law.

Reflecting on Zero Dark Thirty, Deborah wrote about the responsibility of film makers for the story they decide to tell, and deplored that Bigelow and Boal were not willing to engage more deeply in the public conversation on the use of torture in the war on terror. Further on the War on Terror, Ken argued that Jen Daskal’s NYTimes op-ed on keeping Guantanamo open for now is less heretic for a human rights lawyers than its title suggests.

Meanwhile, Duncan is still waiting for the US Supreme Court to decide on whether to grant certiorari, and in the process revisit Missouri v Holland, in the case of Carol Ann Bond.

Roger Alford posted a graph showing the growth of international law scholarship on Westlaw since 1987. Kevin brought two pieces of new scholarship to your attention by posting links to his essay on the role of the international prosecutor, forthcoming in the Oxford Handbook of International Adjudication, and to a very timely essay by Luc Reydams on the US-Rwanda relationship.

In addition to posts by our regular contributors, we welcomed three guests on the blog this week. First, William Dodge contributed a guest post updating us on recent developments in official acts immunity. In her post, Jennifer Trahan hailed the extension of the US Rewards for Justice program to include the arrests of those wanted by international criminal tribunals, and suggested other ways to strengthen the US-ICC relationship. Finally, Başak Çalı offered a different framework to look at the often difficult relationship between domestic courts and the European Court of Human Rights, arguing that the latter is only engaged in weak international judicial review.

As always, we also provided you with our weekday news wraps and a listing of events and announcements.

Many thanks to our guest contributors and have a nice weekend!

Space Law Update – US Won’t Build Death Star, Also Does Not Support Blowing Up Planets

by Kenneth Anderson

Opinio Juris is pleased to note official White House reaction to the petition (via the We the People White House site, an Obama administration initiative promising an official response to citizen petitions garnering 25,000 signatures within 30 days of posting) calling upon the Obama administration to “secure resources and funding, and begin construction of a Death Star by 2016.”

As reported by Entertainment Weekly  (the only truly canonical outlets for this kind of news would have to be EW or Wired, Hollywood or Silicon Valley), here is the official administration response, from Paul Shawcross, Chief of the Science and Space Branch of OMB (we must assume this went through the authoritative interagency clearance process and perhaps one day might even contribute to the opinio juris of the United States for purposes of interstellar law of war on the destruction of planets):

“The Administration shares your desire for job creation and a strong national defense,” begins Shawcross, “but a Death Star isn’t on the horizon.” He cites a Lehigh University study that calculated that a Death Star would cost a deficit-exploding $852,000,000,000,000,000 (that’s $852 quadrillion), notes that “the Administration does not support blowing up planets,” and rightly points out that it would be foolhardy to build a space station “with a fundamental flaw that can be exploited by a one-man starship.”

Shawcross then goes on to tout the many space endeavors, both public and private, that are currently underway. (“Even though the United States doesn’t have anything that can do the Kessel Run in less than 12 parsecs, we’ve got two spacecraft leaving the Solar System and we’re building a probe that will fly to the exterior layers of the Sun.”) He concludes by encouraging the diligent soul(s) who created the petition to pursue a career in a science, technology, or math-related field, declaring that anyone who does so embraces the power of the Force: “Remember, the Death Star’s power to destroy a planet, or even a whole star system, is insignificant next to the power of the Force.”

I’ve put the full text of the Obama administration response below the fold (and check out the many interesting links at the White House site, which I haven’t included). It is more substantive than one might have anticipated – it discusses private space flight initiatives, the International Space Station and – naturally! – robots.

Update:  Response from the Air Force General Counsel’s Twitter feed (and I recommend both the Twitter feed (@AirForceGC) and blog:

Still smarting from Death Star decision, but must admit weapons review would have been a bear.

Referring to US legal requirements for a review of the legality of all weapons systems, meeting the terms of Article 36 of 1977 Additional Protocol I. Continue Reading…

Jennifer Daskal in the NYT on Why to Not Close Guantanamo (For Now)

by Kenneth Anderson

Jennifer Daskal (who, I’m delighted to say, has just accepted an offer to join the faculty at my school, Washington College of Law) has an important op-ed in the New York Times today titled, simply, “Don’t Close Guantanamo.”  Many of us know Jen Daskal from her earlier positions in the Obama administration Justice Department and, before that, Human Rights Watch – where these were her issues.  So why not close Guantanamo?  Her core point hinges on the notion of deeming an end to the conflict in a legal sense – the conflict as defined under the AUMF – as highlighted by just-stepped-down Department of Defense General Counsel Jeh Johnson in one of his final speeches:

The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.

In a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a future “tipping point” at which Al Qaeda would be so decimated that the armed conflict would be deemed over. Statements from high level officials suggest that this point may be near. And as the United States pulls out of Afghanistan, there is an increasingly strong argument that the war against Al Qaeda is coming to a close. With the end of the conflict, the legal justification for the detentions will finally disappear.

At that point, the remaining men in Guantánamo can no longer be held without charge, at least not without running afoul of basic constitutional and international law prohibitions. Only then is there a realistic hope for meaningful closure, not by recreating a prison in the United States but through the arduous process of transferring, releasing or prosecuting the detainees left there.

In the meantime, we should keep Guantánamo open.

Framed against the idea that a formal legal end to the conflict might be forthcoming sooner rather than later, Daskal’s arguments for not closing it now seem much less an about-face than the op-ed title might suggest.  The argument is essentially strategic as a matter of timing; far from giving up on closing Guantanamo, it argues that the legal timing matters quite a lot to actually getting there. Given that, I’m not sure there’s that much daylight between her position and Deborah’s, for example, in relation to Deborah’s comments on this same Jeh Johnson speech. But as Ben Wittes notes at Lawfare, this is a brave move by Daskal, given the world from which she comes:

[T]he truth is that the argument is different coming from Jen, a committed human rights advocate, than coming from [Wittes]. The human rights movement has been rigidly and dogmatically—and irrationally—dug in on this matter. And very few people have had the guts to state simply that given the way things have played out, Guantanamo’s closure isn’t the ideal outcome. If the administration could come to where Jen has come here, significant policy opportunities for a different relationship with Congress over detention would open up. It’s great that Jen is willing to say in public that the emperor has no clothes.

The basic debate here will gradually turn (I believe Daskal is right to suggest) and hinge on the meaning of the end of the conflict. At this point, what we have in the way of administration statements on this is Jeh Johnson’s somewhat delphic speech – it has something on which everyone can hang their hat if they want to.  That is not a failing of the speech, to be clear – it had to be hedged in many ways (and Jack Goldsmith has commented on many of them).  It is far from insignificant, as I remarked at Lawfare when the speech was first delivered, to recognize the possibility of an end to the conflict and to begin cautiously to lay out the general conditions for it and what they mean in legal terms.

Still, no one should think they can know today when that point will come and exactly how it will be defined, either as a general proposition or in the factual circumstances as they develop; Johnson was explicit about this.  A lot of what is being said in commentary on this is less analysis, however, than lobbying on exactly this issue.  But consider how wide the gaps are between declaring an end to the conflict in a legal sense, and stating precisely and concretely what that means.  One the one hand, the speech talked about the end of the conflict and the importance of defining its meaning in legal terms.  On the other hand, it recognized with respect to detention that there would be people who might never be tried or released, and it cautiously hinted at legal reasons that might cover this.

Moreover, it was also clear in Johnson’s speech that an end to the conflict, in the US legal view, would not thereby terminate the US’s legal authorities to use force abroad, in targeted killing or other operations. Those legal justifications might shift or be articulated differently in both international and domestic law terms.  But whether in relation to on-going threats that might be put under the AUMF (arising from actors that might or might not be characterized as “affiliated” forces with Al Qaeda), or in relation to brand new kinds of threats, the end of the conflict would not be seen as somehow shutting down the President’s authority to engage in self-defense actions.  Johnson’s speech was enormously important, but mainly it quite deliberately (and correctly) raised questions of law and policy rather than answering them.

In that regard, Daskal’s op-ed, while heretical on the surface, actually laid down a strategic marker to challenge the administration to go ahead and find a way to declare the conflict legally over – and to figure out what it thinks that would mean in legal terms for detainees at Guantanamo. Daskal laid down that marker with a strong inflection that the end of the conflict would be the basis for closing Guantanamo, and would put the necessity of that closure on a far firmer footing, both legally and politically.

Weekday News Wrap: Friday, January 11, 2013

by An Hertogen

Domestic Courts and the European Court of Human Rights: Towards Developing Standards of Weak International Judicial Review?

by Başak Çalı

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the first in a series of three.

The relationship between the highest domestic courts and the European Court of Human Rights has been subject to much debate in the past ten years in Europe. Some of this debate focuses on the backlash against the dynamic interpretation of the European Convention of Human Rights by the European Court of Human Rights. The interpretive principles such as the living instrument doctrine, and positive obligations are often thought to upset a wide variety of values including the original consent of states, democratic governance, and integrity and predictability of domestic legal systems. Some readers on the other side of the Atlantic view these debates as a good reason for remaining outside of international adjudication of human rights. Overly strong international human rights courts involved in exercises of ‘virtue ethics’ are not regarded as a good development for integrity of constitutional systems and democratic politics. Much of these debates assume that international human rights bodies, including the European Court of Human Rights, act as a Court of fourth instance, exercise their own opinions on the interpretation of facts on the ground or that they micro-manage domestic legal orders.

I would like to suggest a different framework here. Much criticism of the European Court of Human Rights and the international human rights law in general relies on the assumption that international bodies are engaged in strong judicial review. I suggest that this is a descriptive error. Much of what the European Court of Human Rights does is best understood as weak international judicial review or, at least, the development of standards of weak international judicial review in the making. Weak judicial review involves leaving an interpretive discretion to domestic courts that take into account the broader interpretive principles of the Court and admitting that where there is more than one reasonable interpretation, the Strasbourg Court will defer to the interpretation favoured by domestic high courts. This makes many of the concerns regarding micro-management of domestic systems by the Strasbourg Court ill-founded.  The most recent example of this is the Von Hannover case of 2012. In this case the Strasbourg Court is embracing this careful approach to its relationship with Constitutional and Supreme Courts, and going through special pains to signal that it wants to work with strong Supreme Courts rather than compete with them. Admittedly, for weak international judicial review to be in place the domestic court 1) has to be a strong rule of law court, and 2) must take international human rights protections seriously.  The development of the standard of weak international judicial review in the human rights field has parallels with the doctrine of  ‘responsible representative governments’ in the WTO Hormones case and points to an important emerging theme for future debate: should international courts treat different domestic courts differently as a matter of doctrine?  Do we need an explicit doctrine of ‘responsible domestic courts’ for international judicial review?

In the forthcoming post, I will review two cases from opposite ends of the Council of Europe terrain: the Von Hannover v. Germany No. 2 case of 2012 and the Fatullayev v. Azerbaijan case of 2010 to show that the European Court of Human Rights is signalling restraint when faced with a responsible domestic court and is willing to signal activism when faced with the opposite.

Still Waiting to Revisit Missouri v Holland?

by Duncan Hollis

I’m in Tokyo for the Spring semester teaching in Temple Law’s semester abroad program.  But that hasn’t stopped me from watching the Supreme Court, particularly its decision on whether or not to revisit Missouri v Holland via the case of Carol Anne Bond and the question of the scope of Congress’s power to implement U.S. treaty obligations (SCOTUS blog has many, if not most, of the relevant pleadings on-line here).

When I blogged about it last October, I’d assumed we’d know by now whether the Court was going to take up the case, or as I thought, decline certiorari.  Well, it’s now mid-January and we’re still waiting.  As John Elwood notes over at SCOTUS blog, the Bond case was relisted again this week — making it six times now for those of you keeping count.  I guess the best we can say about the continued delay is that it’s hard to imagine the Court continuing to relist it much longer (although who am I to say that they won’t go for lucky number 7 next).  In any case, it’s probably worth keeping a closer eye on the Court in the weeks ahead to see if it decides to grant or deny cert.  The latter decision could have especially large foreign affairs law implications in theory, if not in practice.

U.S. Cash Rewards Program to Include International Criminal Court Arrests

by Jennifer Trahan

[Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]

Congress recently approved a bill expanding the U.S.’s “Rewards for Justice” program to include apprehension of individuals wanted by international tribunals such as the International Criminal Court.  The bill, passed by the Senate on December 20 and House on January 3, and promoted by U.S. Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp, covers rewards for information leading to

the transfer to or conviction by an international criminal tribunal (including a hybrid or mixed tribunal), of any foreign national accused of war crimes, crimes against humanity, or genocide ….

While the U.S. Government still clearly remains wary of the ICC and is not anticipated to ratify the ICC’s Rome Statue at any time in the near future, the legislation is a further positive step that strengthens U.S. constructive engagement with the Court.  Other recent positive developments include U.S. deployment of 100 special operations forces as military advisers to Uganda to assist with the apprehension of members of the Lords Resistance Army led by Joseph Kony; statements by State Department Legal Advisor Harold H. Koh that the U.S. respects its obligations as signatory to the ICC’s Rome Statute (obligations the second Bush Administration attempted to revoke); and U.S. participation at ICC-related meetings, including meetings of the Assembly of States Parties to the ICC.

During the second term of the Obama Administration, the U.S. should further solidify the US-ICC relationship by formally reactivating U.S. signatory obligations and articulating a clear policy position of U.S. support for the Court, which is designed to prosecute the worst instances of genocide, war crimes and crimes against humanity.  Congress should repeal the ban on direct U.S. financial support of the Court, to which the U.S. has supported referral of the situations in Libya and tacitly supported referral of the Darfur situation.  The U.S. should also press for referral by the U.N. Security Council of the situation in Syria, which has now claimed an estimated 60,000 fatalities, to the Court for investigation and prosecution.

Weekday News Wrap: Thursday, January 10, 2013

by An Hertogen

Having Seen Zero Dark Thirty

by Deborah Pearlstein

Perhaps my favorite scene in the film Zero Dark Thirty comes relatively early on, when the two CIA interrogators around whom the early film revolves arrive at a U.S. military base in Afghanistan to interrogate their next detainees. The soldiers on the base have been keeping a cage of small monkeys (for unexplained reasons), and the scene opens with the lead interrogator – the man shown as directing the torture of a detainee in the scenes before – standing before the monkey cage and feeding them small bits of his ice cream cone. The feeding is conducted beneath a large handwritten sign that says, “Do not feed the monkeys.” The interaction ends in frustration for the interrogator when one of the monkeys successfully swipes the entire cone.

It is a small moment. It is, in the cinematic sensibility of this film, subtle. And for me it very nicely captured the absurd predictability of one of the many things the American experiment with torture wrought. Back in 2006, when my colleagues and I at Human Rights First did the numbers (thanks in no small measure to the volumes of the government’s own documents released under FOIA), there had been more than 330 cases in which U.S. military and civilian personnel were credibly alleged to have abused or killed detainees – cases involving more than 600 U.S. personnel and more than 460 U.S.-held detainees. They included nearly 100 detainees who died in U.S. custody, including 34 whose deaths DOD reported as homicides. At least 8 of these detainees were, by anyone’s definition of the term, tortured to death.

I doubt I’m alone in the world in my metaphorical interpretation of that scene. But I do suspect I’m in a minority for a variety of reasons. Among others, as Amy Zegart notes in yesterday’s Times, in 2007, 27% of Americans surveyed said the United States should torture prisoners captured in the war against terrorism. In Zegart’s August 2012 national poll, that number was up by 14%. In the same period, public opposition to, for example, naked chaining in cold rooms, fell from 79% to 51%. What do movies have to do with it? When my colleagues at Human Rights First studied the impact of media on public perceptions of torture back during the height of the popularity of the TV show “24,” they found that the show had helped reinforce how Americans, including policymakers, thought about torture: as necessary in certain situations. More, interrogators reported that junior soldiers imitated the interrogation techniques they had seen on TV. As Tony Lagouranis, a former U.S. Army interrogator at Abu Ghraib, once put it: “Everyone wanted to be a Hollywood interrogator. That’s all people did in Iraq was watch DVDs of television shows and movies. What we learned in military schools didn’t apply anymore.”

How much should the makers of Zero Dark Thirty care about such things? In her remarks before the Washington, D.C. premiere of the film last night, the film’s director, Kathryn Bigelow, said “we had no agenda” in making the film, and were “not trying to generate controversy.” We were trying, Bigelow said, to tell a story based on firsthand accounts of a decade’s worth of events given to screenwriter Mark Boal in his research. As a director, she said, I make the film. It’s up to the audience to interpret it. (The quotes are around words I’m sure I got exact, the others are the very close paraphrases from my handwritten notes.)

Room for interpretation there is. I walked out at the end of the film last night with two colleagues, who took diametrically opposed views about what they thought it had portrayed about the role of torture in leading to the capture of bin Laden. One thought it clear that the film showed that the CIA had the information or would have had the information about the existence of a courier from a number of sources (more than a dozen), and it wasn’t clear in the film whether all of them had been tortured. The other thought the film portrayed torture as producing the but-for lead that led to the eventual discovery of bin Laden’s compound. I thought it was dizzyingly unclear what the film was trying to say about the facts in this regard. My overwhelming perception of the intelligence efforts depicted in the film was of how fundamentally little the officials depicted knew, and how close to blind they all were, up until the moment bin Laden was shot in the head.

In this respect, I credit the filmmakers for their efforts to depict the human struggle with ambiguity. But while the film was in part about ambiguity – and about an avalanche of other things besides torture – it chooses (after some seconds of black screen and horrifying audio from the victims of 9/11) to lead with torture. The film could’ve started anywhere in telling the decade+ story about the hunt for bin Laden – in a Washington office, on a field of battle, with a family of one of the victims, even in a courtroom – but it features torture front and center. And for an extended period of time. More, the filmmakers chose to give voice to intelligence official characters who lamented the ending of the CIA detention program, but chose not to give voice to any intelligence official character (though such people also exist) who thought, for example, that torture was making it harder to find information they needed. It is not possible to tell a story like this (any story) as if simply presenting information devoid of meaning but for whatever meaning the audience attaches. The first and last time in the film one sees the protagonist intelligence agent Maya, she is a passenger – along for the ride in the first interrogation, being flown off to parts unknown in the final scene. The filmmakers have no such luxury. They are responsible for the story they choose to tell.

So what does responsibility mean? It is beyond obvious they have every right to make the film, exactly as they wish to make it, for whatever reason (or none) they wish to do it. Sure I would have told the torture story differently. (I would’ve also left out the film’s ample number of disappointing, even cringe worthy features. The absurdly overwrought performance in which a senior CIA bureaucrat berates the intelligence team for their failure to find bin Laden, banging his fist on the table like a bad motivational speaker. The greater absurdity of James Gandolfini in a bad hairpiece as Leon Panetta.) What might matter more is something like what happened when Human Rights First went through this back around “24.” My colleagues set up a meeting between the creative team behind “24” and the Dean of West Point and other experienced interrogators. Howard Gordon, an executive producer of “24,” even participated in a training film later developed for military academies that aimed to help troops distinguish the story of “24” from the reality of what they need to do. Far short of that, it would go some distance for the filmmakers to engage more in the public conversation. Bigelow and Boal deserve great credit for bringing their film to this kind of audience in Washington. But from an “aesthetic” point of view, Boal explained, he was not a fan of explaining work. And he did not.

That circumspection is well understandable, even admirable, under many circumstances. This, though, may be one of those circumstances in which more speech would help.

Weekday News Wrap: Wednesday, January 9, 2013

by Jessica Dorsey

Reydams on the US-Rwanda Relationship

by Kevin Jon Heller

My friend Luc Reydams, who teaches at Notre Dame (which clearly has a better faculty than football team…), has just finished an absolutely superb — and extremely timely — essay on the relationship between US and Rwanda and its role in facilitating impunity for Kagame and his cronies.  Here is the abstract of the essay, which is available on SSRN:

This article examines whether the ICTR was doomed from the start to be a court of ‘victor’s justice.’ I explore the issue by re-examining the politics of the ICTR’s creation. Hundreds of declassified diplomatic telegrams (‘cables’) and intelligence reports of the US Department of State shed new light on this process. My analysis concentrates on the strategy of the RPF vis-à-vis the international community and the responses of the United Nations and United States. In a previous publication, I claim that US leadership is a necessary (but not a sufficient) condition for successful international prosecutions. Building on that research, I argue that understanding the evolution of the relation between Washington and Kigali – from an early, almost accidental support of the RPF to nearly unconditional backing – can help explain RPF impunity. I do not suggest that Washington planned to shield Kagame from international prosecution, or that the US was the only Security Council member to embrace him. However, once Washington entered into a partnership with the ‘new’ Rwanda, it was committed to moving forward – and this implied burying the past and oftentimes also ignoring the present. The result was victor’s justice in Arusha – and seemingly endless war in neighboring Congo.

I know Luc has just begun the process of finding a good home for the essay.  If you’re an editor of a good international-law journal, you should snap it up!

The Growth of International Law Scholarship

by Roger Alford

There are a variety of ways one can measure the growing importance of international law scholarship. One metric that I have never seen discussed is simple: how often has the term “international law” been used in academic scholarship? Using Westlaw’s JLR library I calculated how often “international law” was referenced from 1987 to 2011. The results are impressive. Twenty-five years ago there were only 706 articles that included that term, compared with 4,300 today. That’s an annual growth rate of 7.5 percent. At that pace, in ten years there will be over 8,800 references to international law, and over 26,000 references in a quarter century.

Growth of International Law

It’s also noteworthy that today’s academic scholarship references “international law” more often than other core terms. Based on a Westlaw JLR search for 2011, “international law” (4,300 references) appears more often than “criminal law” (3,918 references), “intellectual property” (3,233 references), “constitutional law” (3,198 references), “torts” (2,709 references), and “professional responsibility” (1,092 references).

I knew that international law scholarship was popular, but I would not have guessed it has shown such sustained growth across the decades.

UPDATE: Further to Stuart Ford’s comments on January 9, I thought I would post the graph he is discussing. Very interesting as a point of comparison.

Google NGram2

Weekday News Wrap: Tuesday, January 8, 2013

by Jessica Dorsey

Recent Developments in Official Act Immunity

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on immunity matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

The Fourth Circuit’s November 2, 2012 decision in Yousuf v. Samantar has generated discussion by Professor Curtis Bradley, former State Department Legal Adviser John Bellinger, and myself. There, the Court of Appeals held that State Department determinations of conduct-based immunity are entitled to substantial weight, but not absolute deference, and that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. But to understand the current state of so-called “official act” immunity in the United States, it is also worth looking at the U.S. Government’s recent filings.

To avoid confusion, it is important to keep the categories of immunity straight. The immunity of foreign officials in U.S. courts is distinct from the immunity of foreign states. Since 1976, foreign state immunity has been governed by the Foreign Sovereign Immunities Act (FSIA), but in 2010 the Supreme Court held in Samantar v. Yousuf that the FSIA does not apply to foreign officials. The immunities of foreign officials fall into two basic categories: (1) Status-based immunities attach to the current holders of certain offices, like heads of state. They extend to all acts (even to ones that are purely private) but apply only during the time the official is in office. (2) Conduct-based immunity, on the other hand, attaches only to acts taken in an “official capacity,” but applies even after an official leaves office. The immunities of diplomatic and consular personnel are covered by treaties, but otherwise the status- and conduct-based immunities of foreign officials in U.S. courts are governed by federal common law.

Since the Supreme Court’s decision in Samantar, determinations of status-based immunities have proved relatively straightforward. The U.S. Government has filed determinations of immunity in a number of cases involving sitting heads of state, and U.S. courts have deferred to those determinations. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). But the U.S. Government has also recently made several filings in cases involving conduct-based immunity.

The most recent came on December 17 in the…

Weekday News Wrap: Monday, January 7, 2013

by Jessica Dorsey

Whose Alleged Settlement is Bigger?

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern Law. This post is cross-posted at The Volokh Conspiracy]

In response to my post about Turkey’s settlements, Kevin Jon Heller argues that from the perspective of International Criminal Court liability for “indirectly… deporting or transferring” its nationals into occupied territory, Israel would be more vulnerable than Turkey.

Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — [before Cyprus’s ICC membership went into effect] and that the number of immigrants in the past decade has been relatively small, likely in the thousands. Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

[Prof. Heller seems to assume, as he has argued before, that ICC jurisdiction over Palestine could be retroactive to 2002, if it files an Art. 12(3) declaration. I think that position has real textual basis, but is not in my view the best reading of the text as a structural or policy matter. Let’s set this aside – just as we set aside big questions about territorial jurisdiction – and, since we’re talking about my original post, stick with my assumption of purely prospective jurisdiction.]

Now to the issues Prof. Heller raises. In fact, Turkey’s settlements are a far graver violation of the anti-transfer norm and its purposes.

1) How does one measure the gravity of civilian “transfer”? Typical war crimes are measured in the number of bodies — but that is because the purpose of the provisions is to protect lives. But this doesn’t seem the right way to measure “deportation or transfer.” It must be measured in light of its purposes – colonization, etc. Otherwise, if 1000 people are transferred into a territory of 500, it would be considered de minimis, whereas if 1 million were transferred into a territory of 100 million, it would be a big deal.

Turkish settlers constitute an absolute majority in N. Cyprus (and by many accounts the prior Turkish population is not so happy about the new arrivals). By contrast, Israeli civilians in the West Bank (not including Gaza) are under 20% of the total population, if you include E. Jerusalem (and follow Palestinian population figures). Throw in Gaza, and the percentage drops considerably.

Lets look at it another way. The total population of the island is 1.1 million. Turkish settlers in N.Cyprus constitute over 13% of the population of the island. In the unlikely event of reunification, the Greeks see this as a bitter pill. Population statistics for the Palestinians are also greatly in the dispute, but if one estimates the total population between the river and sea at 11 million, the Jews across the Green Line would be about 5% of the total. Given that Israel has had more time to cement its hold, and it doesn’t have far go to to “transfer” settlers, one might conclude it was not trying particularly hard, or that the Turks are just better at it.

2) In the same vein, In N. Cyprus, the influx of settlers has been accompanied by the collapse of the local population, ie had net emigration. That exacerbates the demographic effect, and is course part of the classic “move in, kick out” model where 49(6) violations were helped effectuate de facto 49(1) breaches. In West Bank, by contrast, population has grown rapidly. Similarly, the ICRC commentary mentions economic effects as one of the policies behind 49(6), and the WB has done in the past decade whereas N.Cyprus has stagnated.

3) That leaves the question of when the Turkish “transfer” happened, which is a real and important point Prof. Heller raises. The real is answer is we do not know for sure. Yes, the big surge was in the years after the invasion. But all these numbers are very disputed and we do not have the benefit of human rights groups like Peace Now or Foundation for Peace in the Middle East that have gone out of their way to track Turkish settlers with the precision of their Israeli counterparts.

However, in June 2003, the Parliamentary Assembly of the Council of Europe issued a recommendation that stated, in part:

“It is a well-established fact that the demographic structure of the island has been continuously modified since its de facto partition in 1974, as a result of the deliberate policies of the Turkish Cypriot administration and Turkey. Despite the lack of consensus on the exact figures, all parties concerned admit that Turkish nationals have since been systematically arriving in the northern part of the island.”

Based on the European Parliament’s estimates of the settler population a decade ago (115K) and conservative estimates today (150K), one can conservatively estimate an increase equivalent 16% of the territory’s population a decade ago.

More anecdotally, a quick Google search reveals news accounts that suggest non-trivial mainland influx in the past decade, and more importantly, it appears this period saw the significant out-flow of the previous locals.

Moreover, some portion of both populations are the children born to those who have allegedly been “transferred.” Israel has a higher fertility rate than N.Cyprus as a whole, and the Jewish civilian population across the Green Line is higher than the Israeli average. So more of the contested Israeli population was delivered, rather than transferred, than their Turkish counterparts. That is why “natural growth” allowance proposals for Israeli settlements were once more in vogue, and now not so much.

4) The bigger picture concerns the unit of analysis. The number of people on the island of Cyprus has changed drastically as a result of Turkey’s settlement program. The number of people between the river and the sea has not changed a whit. Thus, ultimately the effects cannot be measured independently of the proposed political solution. In the case of Cyprus, the international community favors a one-state solution, which makes the sending of external migrants relevant. If the dominant paradigm would be partition, no one would care how many Turks Ankara squeezed into their corner of the island.

Since the dominant paradigm for Israel involves a border demarcation that puts the vast majority of Israelis inside Israel, and kicks the rest out, the demographic implications are entirely unlike Turkey’s settlement program. And if the dominant paradigm were one-state – all the more so, the number of Jews between the river and sea has not increased at all, unlike the number of Turks on the island.

5) As for Kevin’s point that Israel has taken greater steps to facilitate transfer – well, that gets into the merits, which I wish to avoid at this point. I’ve assumed for the sake of argument that “transfer” has occurred on both sides. That is a highly fact specific question, and I am pretty sure I would not characterize some of the Turkish and Jewish migrants as “transferred.” I will observe that the WB is on the other side of an imaginary line, while N.Cyprus is on the other side of a body of water. The latter takes more getting to.

Are Israel and Turkey’s Settlements Comparable?

by Kevin Jon Heller

Eugene Kontorovich argues today at Volokh Conspiracy that Israel could minimize the likelihood of an ICC investigation into its transfer of Israeli civilians into the West Bank by emphasizing Turkey’s similar transfer of Turkish civilians into Northern Cyprus, which it has been illegally occupying for more than four decades.  Here are the key paragraphs:

Cyprus was a state with clear borders when Turkey invaded in 1974, and is a charter member of the ICC. If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey. Interestingly, no one has suggested in the past decade that Cyprus’s ICC membership would scare the Turks out of N. Cyprus, or get the Turks to agree to a peace deal). But a referral by Cyprus would not face the various thorny temporality and territoriality issues of a Palestinian complaint. Moreover, Cyprus is a particularly gross case of changing the demographics of occupied territory through settlement, with settlers now outnumbering protected persons n the territory.

Apart from the manifest hypocrisy, what should be disappointing for believers in international humanitarian law is the failure of anyone to call Abbas (or Erdogan) on it. I am not aware of any news, NGO, or governmental response pointing out the unseemliness of Abbas invoking the ICC from Ankara.

[snip]

Discussions of a potential ICC referral often focus on potential liability by Palestinians as a factor that would dissuade them (or the Court) from proceeding. But Israel’s best bet for heading off such a suit would be to make clear the implications for other non-member states that would clearly be on the settlement hook: Turkey and Russia.

For the record, I think it quite unlikely that the ICC will indict Israeli leaders over settlements, but I’d bet the farm it wouldn’t indict Israel and Turkish leaders in this decade. Indeed, if I were the Israeli government, I’d spend less time preparing an ICC defense that working up a Cypriot case against Turkey, as a favor to its new bestie.

With respect to Eugene, this is a terrible suggestion for Israel.  I have no sympathy for Turkey’s occupation of Cyprus, and Eugene correctly points out that an ICC prosecution of Turkish officials would face no territorial-jurisdiction problem.  But he seriously underestimates the issue of the Court’s temporal jurisdiction.  Indeed, when we take into account the fact that the ICC can only prosecute acts committed after 1 July 2002 — the day the Rome Statute entered into force — it seems clear that the case against Israel is vastly stronger than the case against Turkey.

Two points of comparison are relevant.  The first concerns the sheer number of immigrants. Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — and that the number of immigrants in the past decade has been relatively small, likely in the thousands.  Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

Numbers, however, do not tell the whole story.  The mere fact of settlement in occupied territory is not a war crime; the actus reus of the crime is “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.”  Article 8(2)(b)(viii) thus targets state officials whose actions facilitate the transfer of civilians into occupied territory; it does not target the settlers themselves.  That is a critical distinction when we try to compare Turkey and Israel, because the Israeli government has much more actively facilitated the transfer of civilians since 2002 than the Turkish government.  Here is what the 2006 report says about immigration to Cyprus:

The significance of demography in Cyprus changed after 1974 not only because of this ethnic homogenization of the two states, but also because of an influx of immigrants from Turkey. In addition to the displacement of Cypriots, Turkey and the Turkish Cypriot administration initially facilitated and encouraged an immigration of Turkish nationals from Turkey following the war. This policy was designed to bolster the Turkish population and to create a viable economy independent of Greek Cypriots.  Immigrants who were part of this policy received empty Greek Cypriot properties and citizenship in the Turkish Cypriot state almost upon arrival. This facilitated migration ended by the late 1970’s, and international pressure and internal opposition to the policy led to the amendment of the law that eliminated property privileges for the other immigrants who arrived after 1982. Immigration had by this time declined, and the number of immigrants acquiring citizenship significantly dropped. A further amendment of the citizenship law in 1993 restricted citizenship rights to persons who had been resident on the island for at least five years. Although immigration from Turkey continued on a smaller scale, these later immigrants who arrived in the island did so of their own initiative as they sought a better future there. In contrast to the first wave of migrants who were brought to the island as part of state policy, the factors determining the later wave fit other global patterns of economic migration, and those later immigrants received no special treatment or privileges from the state.

I don’t want to push this argument too strongly; there may well be other Turkish policies that would qualify as indirect transfer both pre- and post-2006, when the report was written.  But there is no question that the Israeli government has much more actively facilitated the transfer of its civilians into the West Bank since 2002 — and that Israel intends to continue to facilitate that transfer for the indefinite future.

Statehood issues aside, in short, a rational prosecutor would find Israel’s violation of Article 8(2)(b)(viii) to be far more serious — and far easier to prove — than Turkey’s.  The number of Israeli civilians transferred since 2002 is much greater, and Israel’s facilitation of that transfer since 2002 is much more significant.

Like Eugene, I’m skeptical that the ICC will ever prosecute an Israeli official for the war crime of illegal transfer.  But the last thing the Israeli government should do, if it wants to avoid an investigation, is “work up a Cypriot case against Turkey.”  That case would simply foreground how much stronger the case against Israel really is.

Events and Announcements: January 6, 2013

by Jessica Dorsey

Upcoming Events

Calls for Papers

  • The Chinese (Taiwan) Society of International Law, in partnership with the ASIL Law in the Pacific Rim Region Interest Group, will hold the ILA-ASIL Asia-Pacific Research Forum on May 15-16, 2013 in Taipei, Taiwan, ROC. The title of the Research Forum is “International Law and Dispute Resolution: Challenges in the Asia Pacific.” The organizing committee welcomes proposals on any topic relating to international law with a focus on the Asia Pacific. Paper proposals must be submitted electronically by January 20, 2013 to ila [at] nccu [dot] edu [dot] tw. For additional information, please refer to the Research Forum website.
  • The University of The Gambia Law Faculty will publish its first Student Law Review in September 2013. Submissions from students, academics and law professionals are welcomed. This is a call for papers with a human rights focus. 300-word abstracts are due no later than 12.00 noon January 20 2013. The final article will be 5,000 words including footnotes (OSCOLA) and will need to be submitted by 1 May 2013. With questions and to submit abstracts, please contact Fiona Batt (F [dot] Batt [at] utg [dot] edu [dot] gm).
  • The School of Law, Queen Mary University of London presents the 4th Annual Queen Mary Postgraduate Legal Research Conference: Reinvigorating Legal Thought in Times of Change June 6, 2013. Abstracts are due Feb. 6, 2013.
  • The Ninth Cornell Law School Inter-University Graduate Student Conference welcomes submissions. The conference will be hosted by the graduate students at Cornell University Law School in Ithaca, New York on Friday, April 12 and Saturday, April 13, 2013. The program will consist of several  panels throughout the day featuring 3-4 panelists each. Each panelist will provide a ten to fifteen minute presentation of his or her paper topic after which there will be input from the other panelists and conference attendees. Abstract submissions should be received by January 18, 2013. Click for the call for papers.

Additional Announcements

  • The Berlin-based Postdoctoral Program Rechtskulturen: Confrontations beyond Comparison invites scholars to apply for seven postdoctoral fellowships for the academic year 2013/2014. “Fellowships begin on 1 October, 2013 and will end on 31 July, 2014. Postdoctoral fellows will receive a monthly stipend of € 2,500 plus supplements depending on their personal situation. Organizational support regarding visa, insurances, housing, etc. will be provided.” Applications will be accepted Jan. 10-24, 2013. Please find the call for applications here.
  • A special issue of the Review of European Community & International Environmental Law is now available, for a limited time, free online. Entitled All Hands on Deck: Mobilizing Climate Change Action Beyond the UNFCCC, this special issue contains 6 articles by prominent legal scholars and practitioners. Attention is drawn to the potential of other international institutions to complement the UNFCCC in its efforts to scale up climate change mitigation ambition under the Durban Platform. The contributions to the issue examine a variety of venues, including other multilateral environmental institutions, human rights mechanisms, international trade talks, and small groupings of like-minded countries, and explore how actions under these institutions could contribute to the UNFCCC’s objectives.

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

New Essay at SSRN on the Role of the International Prosecutor

by Kevin Jon Heller

The (short and unassuming) essay is forthcoming in the Oxford Handbook of International Adjudication, which is being edited by Cesare Romano, Karen Alter, and Yuval Shany and should be published by OUP this year.  Here is the abstract:

The role of the international prosecutor is uniquely challenging. Unlike domestic prosecutors, who normally have the material resources to prosecute all of the serious crimes committed within their jurisdiction, international prosecutors are never able to prosecute more than a small fraction of the suspects who have committed an international crime. International prosecutors thus enjoy much greater discretion than their domestic counterparts. At the same time, international prosecutors operate in much more normatively complicated situations than domestic prosecutors: whereas most domestic crimes are generally perceived as deviant and unacceptable, international crimes are nearly always committed for ideological reasons that make their prosecution profoundly controversial. International prosecutors thus also tend to face far more intense political pressures – from states, the United Nations, NGOs, etc. – than their domestic counterparts.

Because international prosecution is both highly discretionary and politically charged, the legitimacy of international criminal justice depends, in large part, on the ability of tribunals to strike an appropriate balance between independence and accountability. This chapter explores the tension between the two. Section I addresses the Prosecutor’s structural independence — her independence from external political actors and other organs of the tribunal. Section II examines the Prosecutor’s functional independence – her practical ability to exercise her discretion free from undue limitation.

As always, comments and criticisms most welcome!

Holiday Roundup: December 22, 2012 – January 4, 2013

by An Hertogen

Over the holidays here at Opinio Juris, the comments section of Kevin’s post on the distinction between the legality and the morality of drone strikes was a hive of activity. The post itself was a follow-up to a first post in which Kevin applied a comparative criminal law lens to argue that under the broader understanding of intent prevailing outside the United States, the moral distinction between the intentional killing of children in Newtown and the unintentional killing of children during drone strikes isn’t all that clear.

Inspired by the suggestion that Palestine could limit an ICC referral to the situation in the West Bank, Kevin advanced legal and political arguments against the notion that a self-referral could be geographically limited. Further on the ICC, Jelia Sane contributed a guest post reflecting on the Court’s first acquittal.

The end of 2012 inspired Chris to look towards future areas of (international) law in 2013 and beyond, focusing in particular on the need for regulation to deal with the impact of technological change, such as flying cars and 3D printing. Ken has already made a new year’s resolution to post more about robots, but promised to cover other areas as well. His first post of the year covered adulteration of extra virgin olive oil, showing that there is no limit to potential international law questions. Kristen Boon also reflected on the role of international law in settling the East China Sea dispute.

If you need to catch up with the news of the past fortnight, our weekday news wraps may be helpful. As always, we also provided our weekly events and announcements posts (1, 2).

Best wishes for 2013 to all our readers!

East China Sea dispute: what is the Role of International Law?

by Kristen Boon

The Senkaku / Diaoyu islands, a series of rocky, uninhabited outcrops, are being claimed by Japan, China, and Taiwan, amongst others, both for historical reasons, and because of their potential value in anchoring sovereignty over natural resources like oil.   Some have predicted the dispute may be a military “flash point” in 2013.

As Duncan noted last month, China made a partial submission to the Commission on the Continental Shelf in December, identifying the outer limits of China’s continental shelf.   Reactions of neighboring countries to China’s submission are starting to emerge.   Last week, Korea made a partial submission to the Commission seeking to identify the outer limits of Korea’s continental shelf, which, unsurprisingly, overlap with China’s claim.  The map here is illustrative.

Moreover, in a note dated December 28, 2012, Japan asked the Commission not to consider China’s submission because the distance between the coasts in the area covered by the submission is less than 400 nautical miles, and pursuant to UNCLOS Article 83, the delimitation must be effected by agreement of the parties.  As a result, Japan is maintaining its position that the islands are under Japan’s control and are an inherent part of its territory.

Reactions from other countries with interests in the area (Vietnam, the Philippines and Brunei for example) may be forthcoming.

Despite the overlap between continental shelf claims and sovereignty over the islands however, the  Commission’s direct role in the dispute will be limited.  The Commission makes independent recommendations that are based on technical and scientific data.  It is not competent to consider the merits of division lines between states with overlapping claims, as this article by Coalter Lathrop explains.  As a result, the parties’ submissions to the Commission are without prejudice to their strategy in the larger political contest over sovereignty to the islands.

Looking ahead however, if the sovereignty dispute evolves into a delimitation dispute between the various parties, it could be resolved in one of three ways: military action, political negotiations or international dispute resolution.  To date, most seem to assume that international dispute resolution (and, I might add, international law) will not have much of a role to play.  Although parties to the UN Law of the Sea Convention (and most of the relevant contenders in this dispute are parties to UNCLOS) are required to submit their disputes to one of four methods of compulsory dispute resolution pursuant to Article 298, international jurisdiction in this case is complex because of the number of countries potentially involved, the patchwork of treaty commitments and reservations over dispute resolution mechanisms and law of the sea matters, and the “cultural” hesitance of some of the key players to submit the dispute to an international tribunal. (OJ readers, please chime in on these complexities!)

Nonetheless I think the November 19, 2012 decision of the International Court of Justice (ICJ) in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) should give the parties to the S/D dispute confidence in the role of international dispute resolution mechanisms.   In that decision, the ICJ found that Colombia has sovereignty over disputed Caribbean islands in the San Andres Archipelago.  The Court also found Nicaragua has sovereignty over a disputed maritime area of approximately 75,000 square kilometers.   In essence, the Court tried to reach an equitable decision by giving one country sovereignty over the islands and another sovereignty over the marine area. Although the judgment was initially met with anger in Colombia, even leading it to denounce the Bogota pact which gave the ICJ jurisdiction in the first place, a few days later Bolivia suggested that it might submit a brewing dispute with Chile to the ICJ, suggesting that the authority of the Court has not been diminished in the region.

The ICJ has a long and impressive track record on maritime delimitation cases.  It has been seized of 15 such cases around the world, including an ongoing dispute between Peru and Chile.  Moreover, compliance rates with ICJ cases are generally high because the ICJ has limited, consent-based, jurisdiction.  Third party alternatives to the ICJ are arbitral tribunals, and the International Tribunal of the Law of the Sea (ITLOS), which released its first maritime boundary decision in March 2012, in the Myanmar v. Bangladesh case.

All indicators suggest that the need for dispute resolution in maritime matters will increase.  As countries get bigger, so to speak, by defining their maritime entitlements like the extent of their continental shelf, it is not surprising that they will start to bump up against one another.  With 180 unresolved maritime disputes around the globe, dispute resolution is becoming increasingly appealing when bilateral negotiations fail or stall.

Countries in the South East China sea dispute should reconsider their circumspection towards international dispute resolution.  We need an international court with international jurisprudence in particularly the type of situation where regional tensions run high.  It is surely better than the alternative:  protests, military exercises and potentially conflict at sea.

Weekday News Wrap: Friday, January 4, 2013

by Jessica Dorsey

Extra Virginity

by Kenneth Anderson

(Plainly I’m not above a risqué title to shamelessly drive web traffic but I’m afraid this post is all about fraud in the international extra virgin olive oil trade.)  I’m an unsophisticated but enthusiastic aficionado of extra virgin olive oils, ever since a sabbatical in Spain years ago. I was aware of Tom Mueller’s 2007 New Yorker article on international trade in adulterated extra virgin olive oils (EVOO), but somehow hadn’t read it, as I figured I knew what it said.  Reading Mueller’s subsequent 2011 book, Extra Virginity: The Sublime and Scandalous World of Olive Oil, which my daughter gave me for Christmas, well, I was horrified.  Well, seriously deflated at least; we’re not talking about war crimes here.  But really irritated, speaking as a consumer who has willingly paid not-inconsiderable amounts for EVOO on the theory that college is overrated.

It’s not that my palate is so very refined, I hasten to add. I’ve yet to discover, for example, the “banana” notes in the latest olive oil sample delivered by Santa, let alone the “artichoke” and “berry,” despite oxygenating it while noisily slurping it with the special technique I learned at one tasting (and which drives my wife from the kitchen).  I’m embarrassed to say that I’m not entirely sure I’d be able to identify a bad or even stale (“fusty”) EVOO. I’m even less sure, now that I’ve understood from Mueller’s book just how much of the normal stuff, and even premium priced stuff – and especially the stuff arriving to market shelves in the United States – is low grade ordinary olive oil (“lampante,” meaning fuel or lamp oil), or other seed oils, deodorized and refined through heat and solvents to the point of being tasteless, with a variable amount of EVOO added for flavor.

If I’m dismayed as a consumer, speaking as a professor of international economic law, I’m both shocked and astonished at the levels of fraud in the international EVOO trade.  I naively assumed that olive oil, given its importance in the EU, would be regulated with nearly as much care as wine.  It turns out that, quite apart from illegal adulteration, EU regulations permit olive oil to be brought to Italy from Spain, Greece, and in many cases both legally and illegally from Morocco or Tunisia, processed and packaged and sold as Italian olive oil.  Italian law on adulteration, far from being concerned about the protection of a national reputation for setting the world-standard, demonstrates all the characteristics of regulatory capture.  Mueller’s outrage is not merely on behalf of defrauded consumers worldwide (including the EU and Italian publics, who are no more knowledgeable about olive oil adulteration than people anywhere else), however, but is particularly directed to the economic pressures that the adulteration puts on the mostly smaller producers who do maintain quality standards, in accordance with law.  They simply can’t compete with products that appear indistinguishable from theirs, but whose costs are a mere fraction. Continue Reading…

Weekday News Wrap: Thursday, January 3, 2013

by Jessica Dorsey

Weekday News Wrap: Wednesday, January 2, 2013

by Jessica Dorsey

Weekday News Wrap: Tuesday, January 1, 2013

by An Hertogen