Archive for
February, 2013

A Broken Windows Theory of International Corruption

by Roger Alford

I have just posted on SSRN my latest article published in the Ohio State Law Journal. Through the lens of the broken windows theory of community policing, the Article examines the connection between corruption and other social goods in society, as well as the relationship between U.S. enforcement efforts and those of other OECD countries.

It is incredible how much empirical research has been done on international corruption in other disciplines, and yet the legal community largely ignores this data. It’s also incredible how rare it is for social science empiricists to make policy arguments that flow from their research. The Article tries to bring these two worlds together by digesting the mountain of empirical evidence regarding international corruption, and then making specific policy recommendations. Here’s the abstract:

The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.

Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.

Part III of the Article illuminates how corruption is associated with other matters of grave public concern, such that the struggle against corruption is the struggle to promote a variety of public benefits. Corruption is inextricably linked to many other public concerns. Empirical evidence finds a positive relationship between a country’s corruption ranking and its ranking on other major indices measuring public welfare. Communities that are perceived to take corruption seriously score well on their commitment to other social goods, such as global competitiveness and productivity, increased standards of living, enhanced children’s health, protection of civil liberties, and the safeguarding of political freedom. These corruption correlations provide an evocative snapshot of the connection between corruption and social order.

Part IV of the Article analyzes the legal efforts to combat corruption, with particular focus on the utility of cooperative efforts to regulate and prosecute corruption. Empirical studies show that coordination strategies between OECD enforcement authorities alter the behavior of corporations, foreign officials requesting bribes, and government officials prosecuting the payment of bribes.

Part V of the Article discusses how these findings have important implications when considered from the perspective of a “broken windows” theory of international corruption. How would a broken windows theory of corruption alter the legal landscape of anti-bribery laws? I offer three suggestions. First, a broken windows approach would redefine and reframe corruption as distrust and disorder. Conceptualizing corruption as a matter of public trust heightens its importance. Public trust is essential to the rule of law. Second, a broken windows approach would augment the battle against corruption with a greater emphasis on petty bribery. Thus far the legal enforcement strategies have focused on high-profile, large-scale corruption. A broken windows strategy would not ignore those cases, but would also focus on low-profile, petty corruption that alters quality of life and undermines public trust. Third, a broken windows theory would place greater emphasis on a partnership between the public and private sectors to combat corruption. This approach would mean that corruption should be considered in the local context, with a focus on its destabilizing effects in specific countries and communities.

Weekday News Wrap: Thursday, February 28, 2013

by Jessica Dorsey

U.S. Affirms that It Adheres to Rome Statute Signatory Obligations: It Should Put This In Writing

by Jennifer Trahan

[Jennifer Trahan is associate clinical professor at NYU’s Center for Global Affairs (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.]

A little-noticed event has taken place.  Before he returned to Yale Law School, top State Department Legal Advisor Harold H. Koh has made it clear in three speeches that the U.S. (despite an earlier writing to the contrary made under the Bush Administration), does respect the “object and purpose” of the International Criminal Court’s Rome Statute.  In other words, the U.S. considers itself a signatory to the treaty.  Koh’s words—which reaffirm only a lose commitment to support the Court—are nonetheless a significant step in the right direction, continuing the U.S.’s policy (under the Obama Administration) of positive engagement with the ICC.

On December 31, 2000, then-U.S. War Crimes Ambassador David Scheffer signed the Rome Statute on behalf of the U.S.  Under article 18 of the Vienna Convention on the Law of Treaties, a signatory is obligated not to do anything that would undermine the “object and purpose” of a treaty.  (The U.S., which is not a party to the Vienna Convention, does recognize it as customary international law.)  However, by note dated May 6, 2002, the Bush Administration stated that the U.S. was no longer bound by the obligations of a signatory. Specifically, the note from John R. Bolton stated that “the United States does not intend to become a party to the treaty.  Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000.”

Koh has now orally negated the Bolton note by remarks he made that the Administration’s policy is not to defeat the object and purpose of the Rome Statute.  He stated this at N.Y.U.’s Center for Global Affairs on October 27, 2010, the Grotius Center of Leiden University on November 16, 2012, and the New York City Bar Association on November 26, 2012.

The Bolton 2002 note did not in fact withdraw the U.S.’s signature because there is no provision in the Vienna Convention for removing a signature to a treaty.  Yet, it was nonetheless a dispiriting low-point that the Bush Administration chose not to adhere to even the very minimal obligations of a signatory to the treaty—not to undermine the “object and purpose” of the ICC.

While various NGOs and others—including the American Branch of the International Law Association’s International Criminal Court Committee (which this author chairs)—have urged the Obama Administration to send a new note negating the Bush Administration’s note, Koh’s oral statements are nonetheless welcome.  While the statements do not necessarily have the weight of a counter-note, hopefully, support will galvanize to send such a counter-note.  Koh has taken the position that Bolton’s note is merely a piece of “graffiti” and no further action is required; yet, the U.N., in its listing of Rome Statute States Parties and signatories has a footnote by the U.S.’s name still reflecting the Bolton note as the official position of the U.S. government.

Being a signatory only creates a loose commitment for a state to support a treaty, and is in no way akin to joining the treaty—done through the process of ratification or accession.  The U.S.—which now supports the ICC’s work on a case-by-case basis—should have no problem in supporting the “object and purpose” of a court designed to prosecute the worst instances of genocide, war crimes and crimes against humanity.

UPDATE: See also Dianne Marie Amann’s post here.

A Response to Kontorovich and Gallagher About Piracy (Updated)

by Kevin Jon Heller

Both Eugene and Maggie disagree with my claim that politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit. Here is Eugene (my emphasis; combining two comments):

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

I would add that the Harvard commentary only seems to make an exception for the classic hard case – rebel warships in an actual belligerency. The International Law Commission seems to endorse that exception in its commentary to the treaty draft, but at the same time seem to exclude merchant vessels not in a belligerent context from an possible immunity.

There are three problems with Eugene’s argument. First, it does not address the League of Nations report, which specifically states that politically-motivated acts do not qualify as piracy. The report adopted a private/political binary, not a private/public one. Second, the Harvard commentary does not make an exception only for “rebel warships in an actual belligerency.” On the contrary, the commentary specifically rejects the idea that the exception applies only to rebel groups that have been recognized as belligerents. Here is the quote from my previous post (emphasis mine)…

Weekday News Wrap: Wednesday, February 27, 2013

by Jessica Dorsey

Judge Kozinski’s “Rich History” of Piracy

by Kevin Jon Heller

As Julian noted earlier, the Ninth Circuit, in an opinion written by Judge Kozinski, has decided that anti-whaling activism qualifies as piracy if it involves violence against a ship on the high seas. I’m running short for time right now, but I want to briefly respond to Kozinski’s key claim about the traditional understanding of piracy’s “private ends” requirement (p.4; emphasis mine; internal citations omitted):

The district court construed “private ends” as limited to those pursued for “financial enrichment.” But the common understanding of “private” is far broader. The term is normally used as an antonym to “public” (e.g., private attorney general) and often refers to matters of a personal nature that are not necessarily connected to finance (e.g., private property, private entrance, private understanding and invasion of privacy)…. We give words their ordinary meaning unless the context requires otherwise. The context here is provided by the rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state.

Kozinski doesn’t mention any of the historical sources that ostensibly constitute this “rich history”; he simply cites the dictionary definition of “private” and a 25-year-old Belgian case that has never been followed by any other court. But that’s not surprising: although the traditional understanding of piracy is not limited to acts of violence motivated by the desire for financial gain (an error made by many scholars and activists), there is significant historical support for the idea that piracy specifically excludes acts of violence that are politically motivated.  Here, for example, is what the rapporteur of the League of Nations Committee of Experts for the Progressive Codification of International Law had to say in 1927 about the meaning of “private ends” (emphasis added)…

Whale Wars, Round II! U.S. Court of Appeals Issues Preliminary Injunction Against Sea Shepherd “Pirates”

by Julian Ku

In a tartly worded opinion, the U.S. Court of Appeals for the Ninth Circuit has reversed a lower court and granted a group representing Japanese whalers a preliminary injunction against the protest activities of Sea Shepherd.  Here is Judge Alex Kozinski’s  instantly quotable opening to the opinion:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Interestingly, the Cetacean Institute (the group representing Japanese whalers) had sued Sea Shepherd under the Alien Tort Statute.  In particular, Cetacean alleged that the Sea Shepherd groups had engaged in “piracy” within the meaning of customary international law, and the Court (as you can see above) agreed with them.

The Ninth Circuit opinion doesn’t seem troubled by tricky questions such as whether piracy is one of the causes of action recognized by the Alien Tort Statute after Sosa v. Alvarez Machain, but given the language in that opinion, I suppose it is safe to assume piracy is indeed an acceptable ATS action.  I wonder more about Cetacean’s basis for a preliminary injunction pursuant to violations of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the Convention on the International Regulations for Preventing Collision at Sea.  I am going to assume the Court found the former two treaties self-executing, but a little analysis here would have been helpful.

I’m no expert on the definition of piracy, so take this with a grain of salt. I am with the Court on the view that the “violence” element was satisfied, but I am less confident of the Court’s conclusion that “private ends” needed to satisfy an element of piracy includes goals other than financial enrichment.  This seems a reasonable interpretation in the context of this case, but it is also an obviously reviewable and debatable issue on appeal to the full en banc court.

So this case is far from the last word. Sea Shepherd has made clear that they will appeal this order and in any event ignore the U.S. court’s order on the theory that Sea Shepherd (Australia) is unconnected with the defendants in the U.S. proceeding. The Court of Appeals here seems to have ordered the removal of the lower court judge from this case and stands ready to issue orders to further enforce its preliminary injunction.   Whale Wars will go on.

International Law and China’s Domestic Reform – A Good Mix or Self-Defeating?

by Julian Ku

Some leading Chinese scholars and prominent Chinese activists have been circulating a letter on Chinese social media calling for the National People’s Congress (China’s legislature) to ratify the International Covenant on Civil and Political Rights (ICCPR).   Here is an excerpt from the letter, which is carefully worded not to challenge the authority or the accomplishments of the current government.

2. Immediate ratification of the International Covenant on Civil and Political Rights will honor the solemn pledge of the Chinese government, satisfy the fondest hopes of the Chinese people, and demonstrate China’s commitment to be a responsible world power.

When the United Nations passed the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966, it called on all nations to see both treaties as part of a whole, signing and ratifying both together. As of November 1, 2010, 167 of the 193 United Nations member countries had formally joined the International Covenant on Civil and Political Rights. In 2001, China ratified the International Covenant on Economic, Social and Cultural Rights, which has been referred to as the “second generation of human rights.” But today, 15 years after our country signed the International Covenant on Civil and Political Rights in 1998, it has still not ratified this treaty, which is regarded as the “first generation of human rights.” China’s government has placed its emphasis on the gradual improvement of China’s existing legal system in advance of ratification, so that it can accommodate the demands and various responsibilities of the treaty. However, the gap between the signing of human rights treaties and their ratification must still be kept within the realm of reason, in order to promote further progress on civil rights and political rights, and in order to avoid unnecessary conjecture from the international community.

As a Permanent Member of the United Nations Security Council, China has always been an active initiator and participant in the International Bill of Human Rights. China’s government played an important role in the formulation of the Universal Declaration of Human Rights (UDHR). International human rights standards are therefore not imported products but in fact include the achievements of Chinese culture and the Chinese people. The signing of the International Covenant on Civil and Political Rights 15 years ago demonstrated even more our country’s serious commitment to the protection of basic human rights as a responsible world power. Afterwards, both President Hu Jintao and Premier Wen Jiabao said openly on numerous occasions both at home and overseas that China would immediately take the legal steps to ratify the treaty once the conditions were right. In the beginning of 2008, more than 10,000 Chinese citizens signed a call for the ratification of the International Covenant on Civil and Political Rights. And so there is no longer any need to vacillate. In order to adapt to trends in human rights development, live up to our government’s pledges and answer the demands of the people, in order to behave in a manner consistent with a major power, we must join the treaty without hesitation, with a positive and decisive attitude.

As stirring as this letter is, I am doubtful that China’s adherence, or non-adherence to the ICCPR would make a big difference in advancing reform within China.  China is already a party to key human rights treaties, such as the Convention Against Torture and the Convention Against Genocide, but it is hard to tell whether being party to those treaties has made a big policy difference within China.  Moreover, the Chinese Constitution already guarantees many of the key rights in the ICCPR, but those rights are still rarely protected in China, and not all protected under Chinese law.

The larger question for international lawyers is whether human rights covenants like the ICCPR can or should be a vehicle for advancing a domestic political reform agenda.  I haven’t thought about this question enough, but I am skeptical that such treaties can play a big role and I’ve seen no empirical data that suggests it does make a difference one way or the other. (If I’m missing something, please feel free to post below). Indeed, such treaties can often be counterproductive to domestic reformers who lose some credibility by being too closely associated with foreign and international powers.

Don’t get me wrong. I’m all for advancing human rights and political reform within China. I just have doubts as to whether international human rights law is a useful vehicle for advancing this agenda.

Who Is the Best Cartoonist, Matt Bors or Tom Tomorrow?

by Kevin Jon Heller

Matt Bors takes the lead, at least for today:

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Weekday News Wrap: Tuesday, February 26, 2013

by Jessica Dorsey

Weekday News Wrap: Monday, February 25, 2013

by Jessica Dorsey

An EJIL Symposium on Treaty Reservations

by Duncan Hollis

Last fall, I was very pleased that, in conjunction with the publication of my book — The Oxford Guide to TreatiesOpinio Juris was able to host an interesting (and I hope useful) discussion of the current state of international law on treaty reservations, including some prominent reactions to the ILC’s recent Guide to Reservations by Harold Koh, Marko Milanovic, David Stewart and Ed Swaine.

For those who are interested in the subject, I’m pleased to see that EJIL is preparing to publish a volume dedicated to the ILC’s reservations work, and, even better, that EJIL Talk! is making drafts of these papers publicly available while the editorial process is on-going.  Here’s how Marko describes it:

I am happy to announce that the EJIL will be publishing a symposium on the International Law Commission’s Guide to Practice on Reservations to Treaties.  The symposium was edited by Linos-Alexandre Sicilianos and myself, and features contributions from Alain Pellet, Michael Wood, Daniel Mueller, and Ineta Ziemele and Lasma Liede. It will most likely be coming out in issue 3 of this year’s volume of the Journal, but because of the symposium’s topicality we have decided to post the unedited drafts online in the meantime, as part of NYU’s Jean Monnet Working Papers Series.  Comments are of course welcome, and we will likely be hosting a further discussion on the symposium on the blog once the final papers come out in the Journal.

For a summary of each of the contributions, see the rest of Marko’s post here.   You can get copies of the current papers themselves here.

 

Events and Announcements: February 24, 2013

by An Hertogen

Events

On March 22, The Vermont Law School Chapter of the Federalist Society and The International Law Society at Vermont Law School are organizing Reaching Critical Mass: International and U.S. Law in the Wake of Modern Exigencies. The conference will explore the delicate balance between combating modern security threats, observing international law, and protecting human rights and civil liberties. Registration is here.

Calls for Papers

  • The Asian Society of International Law has issued a call for papers for its  4th Biennial Conference, Asia and International Law in the Twenty-First Century: New Horizons, which will be hosted by the Indian Society of International Law in New Delhi, from November 14-16, 2013. More information can be found here. The deadline for abstract submission is April 15, 2013. A half-day student workshop on research in international law will be held the day before the conference. More information about this event can be found here
  • The American Society of International Law’s International Law and Technology Interest Group (ILTechIG) is calling for papers addressing an issue at the intersection of international law and technology for its inaugural works-in-progress workshop, to be held from 9 a.m. to 5 p.m. on Monday, April 8, 2013, at ASIL’s Tillar House Headquarters in Washington, D.C. Possible topics might include, for example, the regulation of data and privacy in trade regimes; the use of new technologies in warfare; technological challenges affecting environmental regulation; the regulation of cyberspace; the role of technology in advancing human rights; or the effect of technology on the practice of international law. Those interested in presenting should e-mail an abstract of not more than one page by March 1, 2013. Proposals should indicate the author’s name, phone number, e-mail address, and institutional affiliation and describe the anticipated state of the paper at the time of the conference (i.e., published or unpublished, complete or incomplete). To defray the cost of meals during the workshop, participants will be asked to pay a conference fee: $50 for ASIL members and $65 for non-members. A discounted rate of $55 is available for public sector non-member attendees.
  • The Melbourne Journal of International Law invites submissions analysing contemporary jurisprudential questions raised by ‘the state’ and ‘sovereignty’ for its focus issue to be published in November 2013. Articles should be in the vicinity of 8 000 to 20 000 words in length and be an original and detailed contribution to international law scholarship. Commentaries explore recent developments in a specific field of international law and their practical applications, and should be between 5 000 and 8 000 words in length. The deadline for submissions is July 1, 2013. More information on the submission process can be found here

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

C-SPAN Book TV Interview on ‘Living With the UN: American Responsibilities and International Order’

by Kenneth Anderson

If you’re interested, I’ll be on C-SPAN Book TV tomorrow, Sunday, February 24, at 1:20 pm, talking about my book, Living With the UN: American Responsibilities and International Order. It runs about half an hour, and though I have no idea whether I’m especially interesting on the program, I very much enjoyed doing it – I thought the interviewer was terrific and asked excellent questions. (Plus, he let me talk pretty much as long as I liked.)

Is Libya “Willing” to Prosecute Saif?

by Kevin Jon Heller

That may seem like a ridiculous question. After all, Libya is doing everything in its power to prosecute Saif domestically — and he is facing a variety of charges that carry the death penalty. But consider the text of Art. 17(2), the “unwillingness” prong of the the admissibility test:

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable… (a)  The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5.

As I noted in my previous post, Libya has not denied that Saif will be prosecuted in Zintan before (supposedly) being prosecuted in Tripoli; indeed, Taha Baara, the official spokesperson for Libya’s General Prosecutor, specifically told Reuters last month that “[i]nvestigations for trying him for war crimes are over and he will be put on trial for that at a later time.” That acknowledgment needs to be read in conjunction with a number of statements by Libya.  First, Libya insists that it is responsible for both prosecutions — thereby denying the disquieting possibility that the Zintan case is being prosecuted by a militia over which the Libyan government has no control (para. 6; emphasis mine)…

Is Libya “Able” to Obtain Saif?

by Kevin Jon Heller

As I have explained before, Libya’s admissibility challenge must fail if it cannot ensure that the militia in Zintan who have Saif custody will transfer him to the government to stand trial, because Art. 17(3) of the Rome Statute deems a state “unable” to prosecute if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused.” A state’s inability to apply its criminal law to all of its territory is the prototypical example of “unavailability.” Moreover, in a hearing at before the Pre-Trial Chamber last October, the Libyan government admitted on the record that a trial in Zintan on the conduct at issue in the ICC proceedings could not satisfy Art. 17 (pp. 19-20; emphasis mine):

Since the filing of Libya’s 1 May 2012 challenge, the investigation of Mr Gaddafi has continued to progress and other arrangements for his trial have been made by the new government. These arrangements include the building of a courtroom complex and prison facility in Tripoli, which is known as Tajura, and although there’s been some recent contention in the press as to the planned location of any future trial, President el-Magariaf confirmed to the press on 22 September 2012 that there is no prospect of a trial taking place in Zintan due to inadequate courtroom facilities and the other infrastructure that will be needed for a trial.

With each passing day it becomes increasingly clear that Libya has no reasonable prospect of obtaining Saif from the Zintan militia anytime soon. The OTP’s most recent filing makes clear (para. 43) that it is not satisfied that Libya can obtain Saif — skepticism that needs to be taken particularly seriously in light of the OTP’s consistent support for a domestic prosecution. (Which seems to be changing, given the OTP’s most recent filing and a couple previous ones.) And the OPCD’s most recent filing — a withering critique of Libya’s attempts to support its admissibility challenge with anything more than unsubstantiated allegations — provides far more detail concerning  Libya’s lack of control over the Zintan milita holding Saif…

Weekend Roundup: February 16-22, 2013

by An Hertogen

This week on Opinio Juris, Julian returned to his old favourite of the Whale Wars, and argued that the US courts can most likely exercise personal jurisdiction over Sea Shepherd, even in relation to its movements in the Southern Ocean.

Julian also covered a more recent favourite: the Philippines’ UNCLOS arbitration against China. He first reported on an article in the Chinese press quoting an unnamed expert advising the Chinese government not to take the Philippines’ claims too lightly. The advice, however, wasn’t followed, and Julian analysed what China’s decision not to walk down the arbitration path meant for UNCLOS arbitration involving major powers and for the discussion on UNCLOS ratification in the US. When the Philippines’ government decided to continue with the arbitration anyway, Julian didn’t consider this to be a futile exercise, or at least not any more futile than when China had decided to participate.

Kevin didn’t share Julian Assange’s optimism that a successful run in the upcoming Australian elections would lead the US to have to drop charges against him. As our regular readers will remember, Kevin argued last week that the ICC’s OTP committed a serious legal error when it argued that even an in absentia trial would mean that Libya’s admissibility challenge of the case against Saif Gaddafi could pass. It is no surprise then that Kevin was happy to see the OTP retract its submission this week. Kevin also recommended Jens Ohlin’s new article on “Targeting and the Concept of Intent“.

Kristen put the spotlight on International Peace Institute’s recent recommendation to give the African Union a bigger role in transitional justice issues in Africa. Kristen also posted the UN’s letter rejecting the Haiti Cholera claims, but thought the letter didn’t explain why the dispute was a public rather a private claim. Ken added to the discussion with an anecdote from his own experience while working in Bosnia.

Michael Lewis provided a guest post questioning how clear the dividing line between API and APII is, and ought to be.

If you’re planning to watch the Oscars this weekend, make sure to have a look at Deborah’s latest post on Zero Dark Thirty in which she discusses another forgotten element of the real story in the movie: the possibility of regret by those involved in the authorization of torture.

If your weekend plans include writing that long neglected paper, don’t make the mistakes listed by Roger when he stepped in the discussion on why academic writing is so bad. Check out our list of events and announcements too, maybe there is conference that is looking for just that paper!

Finally, as always, we provided you with our weekday news wraps.

Have a nice weekend!

Before You Watch the Oscars This Weekend

by Deborah Pearlstein

Read Ali Soufan’s op-ed about Zero Dark Thirty today in the New York Times. If you’ve read Ali’s gripping book, his take won’t surprise you. As he puts it: “I watched ‘Zero Dark Thirty’ not as a former F.B.I. special agent who spent a decade chasing, interrogating and prosecuting top members of Al Qaeda but as someone who enjoys Hollywood movies. As a movie, I enjoyed it. As history, it’s bunk.”

Ali goes on to talk about how what the film says is not an accurate account of what actually was. And I’ve written before about what I regret the film leaves out of the torture story it tells. But I was especially struck at Cardozo’s panel discussion of the film last week by what else has been missing from the public torture debate. Namely, the possibility that anyone involved in authorizing any aspect of the program might publicly express any kind of regret about the decision to pursue it. In that regard, I found the concluding remarks of former CIA General Counsel John Rizzo – CIA’s top lawyer from 2001-2009 – striking. I played the internal video from the event back and copied them down verbatim.

“You know, in many ways, I wish we’d never started down this road – the interrogation program. It is certainly of all the controversies I was involved in during the course of my CIA career this was by far the most portentous. And as time went on and the controversy grew, there were criminal investigations, careers were affected. It honestly didn’t do a lot for my career ultimately, and I became defined not for what I’d done for my previous 25 years but my actions in the post 9/11 era. So all of that. In many ways, I mean – the Agency would have been better off if we’d never gone down that road. But I would just repeat, in February, March 2002, the fear, the dread, especially in the city, about another attack, was all pervasive. There was a guy we had in custody. The experts, our experts, concluded he was holding back information about another attack. We could’ve, I could’ve, when those techniques were first proposed, basically say, ‘You guys are crazy, these are immoral, they’re going to get us into huge trouble, let’s just not do them.’ Now, had there been a second attack, and in that post mortem — I frankly — it would have been hard for me to countenance the possibility that Zubaydah knew about that second attack, we didn’t get the information out of him, and the reason we didn’t was because we decided we could not go forward with admittedly very aggressive, unprecedented procedures. And that’s what we did. That’s what I did.”

The event ended up drawing press coverage mostly for Rizzo’s separate remarks that he couldn’t recall CIA Director nominee John Brennan ever having expressed concerns to Rizzo about the morality of the Agency’s “enhanced interrogation” program, so that’s the only video clip posted so far. I’m told the rest of the video will be posted soon, and you can judge for yourself how you take these closing remarks in the context of the entire event. After the event, I heard varying reactions from the audience – a highly unscientific sampling of students, law professors, press, members of the general public described the totality of Rizzo’s remarks as everything from admirably candid and sympathetic to stunningly hypocritical.

There was, however, uniform agreement in one respect: he was riveting to hear speak. Perhaps it was the novelty of hearing anyone involved with the program at the time expressing, for whatever reason, some regret. Perhaps it was the novelty of hearing an official in or around the CIA speak with such seeming candor. Perhaps it was, still after all this time, the need to figure out what really happened – and why. The possibility seems well past that there will be criminal accountability in the United States for any of the actors involved in the program, not even for those who exceeded the scope of the staggeringly broad authority they had been given by the lawyers then in the Department of Justice (the agent Rizzo mentioned, for example, who exceeded the authority by threatening a detainee with a power drill to the head). But it is not too late to learn about, and learn from, the real story. That 6,000-page classified report the Senators who criticized the movie keep noting – it would be good for all of us to see. Not just to correct the record on what the film says. But to say all those things the film passes over in silence.

The UN Haiti Cholera Dispute – Public or Private Law Claim Under Section 29?

by Kenneth Anderson

Kristen asks in her post below whether anyone has a view on whether the UN’s assertion that the cholera epidemic claims in Haiti constitute a public law claim, and hence not within the purview of Section 29 of the UN Convention on Privileges and Immunities is supported by  law or past practice?  I don’t have a view, or any genuinely legal materials to raise, but curiously I encountered the issue in passing, in practice as general counsel for an NGO during the Bosnian war in the 1990s.  Circumstances were unique, and for various reasons my client organization decided not to pursue it as a matter of research or dispute, but Section 29 specifically came up as a comment from UN officials I was negotiating with at the time.

At the time of the Dayton Accords, the agreement and all the parties – not just signers of the Accords but states, the UN, various other international bodies – agreed there needed to be a TV and radio network reestablished across Bosnia that would broadcast in all languages, provide neutral news reporting, etc., in the run-up to the elections.  But broadcast towers and all that had been destroyed, so the physical infrastructure needed to be put in place very quickly.  The states involved, and some organs of the UN – I’m sure I’m not remembering the details correctly – agreed in principle to fund this, but expressed concern that they could not get the funds flowing quickly enough to meet the deadlines.  So my organization was invited to consider whether it would front the funds, pay for the work, hire the consultants and contractors, and see that the work was completed in time. Continue Reading…

Weekday News Wrap: Friday, February 22, 2013

by Jessica Dorsey

UN Flatly Rejects Haiti Cholera Claim

by Kristen Boon

 

After 15 months, the UN has finally responded to the Haiti Cholera claims brought by lawyers representing over 5000 victims.  For background on this massive and tragic case, see my post here.

The UN’s rejection was communicated to the claimants’ lawyers via this two page letter which relies on a brief reference to the Convention on Privileges and Immunities in support of the decision.  The operative paragraph of the letter is as follows:

“With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters.  Accordingly, these claims are not receivable pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946.”

 

Section 29 of the Convention on Privileges and Immunities of the UN requires the United Nations to “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”.

This provision mitigates the absolute de facto immunity of the United Nations, and August Reinisch has argued that the rationale of Section 29 is to ensure due process of law and to protect fundamental human rights.

The UN’s position appears to be that the cholera claim is in the nature of a public (rather than a private law claim cognizable under Section 29) due to the political and policy issues it raises.   Nonetheless, there is no explanation in the letter itself as to why this should be considered a public law dispute.

One key element of a public law claim would presumably be that the dispute arises between a state and the UN, but in this case it is absent because Haiti expressly elected not to participate in this dispute.  Perhaps another rationale is that the claim involves public law because the cholera outbreak arose pursuant to a Status of Forces Agreement with Haiti.

Many elements of a “dispute of a private law character”, however, would appear to be present:  the claim itself was essentially one of tort, the claimants were private individuals (represented by an NGO), and the remedy sought was monetary compensation.   This distinction clearly troubled the claimants lawyers as well, as their press release makes clear.

The upshot of this communication is that the claimants have no venue to pursue their case.    The UN’s decision cannot be appealed.  Moreover, if the UN were sued in a national court, it would assert its privileges and immunities which would shield it from jurisdiction.   Although the Model Status of Forces Agreement  provides for a standing claims commission, no such commission has ever actually been established in any context.   There is a well developed practice of adjudication by local claims boards for routine claims and injuries that occur during Peacekeeping Missions, although in this case, it appears that such a board in Haiti would not have jurisdiction due to the complexity of the case in addition to the level of compensation sought.

Does anyone have views as to whether the UN’s assertion that this is a public law claim is supported by the law or past practice?   If this distinction between public and private claims was so clear, it is surprising that the UN took 15 months to respond, and then in such a terse manner.

Is the Philippines Arbitration Claim Against China “Bizarre” and “Futile”?

by Julian Ku

As this Voice of America report notes, the Philippine government is determined to forge ahead with its UNCLOS arbitration, even though China is refusing to participate in the arbitration. This seems to be a sensible strategy, at least from a legal point of view, because it is plainly within its legal rights to do so.

But would a one-party arbitration be futile?  The VOA quotes Prof. Myron Nordquist of UVA on this point:

But how would one-party arbitration work, exactly? Professor Myron Nordquist of the Center for Oceans Law and Policy at the University of Virginia calls the situation “quite bizarre.”

“For one thing, it is doomed to failure because if the party won’t consent to the arbitration there is then no enforcement,” said Nordquist. “How would they expect a country that didn’t want to have a dispute settled by third parties to feel in any sense bound by a decision where they didn’t even participate?”

I agree the situation is odd, but it is not unprecedented.  The Annex VII provisions clearly contemplate situations where one party refuses to appoint an arbitrator by giving the power to the President of ITLOS to appoint the rest of the tribunal.  Moreover, general international arbitral practice is to allow arbitrations to proceed even when one party (like China) boycotts the whole proceeding. (See Gary Born, International Commercial Arbitration, at 449-50). In such cases, the tribunal typically continues to give notice to the boycotting party, and will reach a reasoned award based on its own assessment of the law and facts. It does not typically simply accept the participating party’s submissions as true.

Moreover, I take issue with Professor Nordquist’s conclusion that the arbitration is “doomed to failure because if the party won’t consent to the arbitration there is then no enforcement.”  His statement embeds a variety of (understandable) misunderstandings about the nature of Annex VII arbitration.

First of all, let’s be clear.  China has already consented to Annex VII arbitration, at least with respect to allowing a tribunal to be constituted and to determine whether it has jurisdiction in a dispute. China consented when it acceded to UNCLOS. All China has done so far is refuse to appoint an arbitrator.

Second, as any private international commercial arbitrator could tell you, consent to an arbitration does not in any way guarantee enforcement.  Indeed, in private commercial arbitrations, judicial enforcement proceedings are common and necessary to force parties to comply with arbitral awards.

To put this another way, if China had participated in the arbitration by appointing an arbitrator, I don’t think it would have affected its likelihood of complying with any arbitral award.  UNCLOS does not have any sanctions regime akin to, say the Dispute Settlement Understanding of the WTO, so China would not face any formal sanctions if it failed to comply with an arbitral award.

All of this is a long way of saying, the decision by the Philippines to continue with the arbitration (sans China) is not really any more futile than if China had fully participated.  In both situations, China would likely not have complied  with any unfavorable award.  Any award is only going to be useful to rally other countries to the Philippines’ side as well as in marshaling global public opinion to its cause (as Prof. Nordquist does note).  Indeed, it seems that the Philippines’ American lawyer is banking on the negative reputational effects of this case eventually pushing China to come around to participate in the arbitration. (FWIW, I am skeptical that the Chinese government can be manipulated this way, especially since domestic public opinion in China leans in the opposite direction.)

For this to work, though, the Philippines has got to try to educate the global media more effectively. Headlines from USA Today, for instance, describing China as rejecting “UN Mediation” only make things murkier for them.  China is going to play the “we-just-want-to-negotiate-unlike-you-troublesome-Filipinos” card.  The Philippines needs to play the “we-are-just-asking-for-the-arbitration-that-you-consented-to” card.  So far, they are not doing all that well.

Weekday News Wrap: Thursday, February 21, 2013

by Jessica Dorsey

Weekday News Wrap: Wednesday, February 20, 2013

by Jessica Dorsey

The OTP Retracts Its Statement About in Absentia Trials

by Kevin Jon Heller

I noted a few days ago that the OTP made a serious legal error when it suggested that Libya’s challenge to the admissibility of the case against Saif could succeed even if Libya had to try Saif in absentia.  Fortunately, the OTP has recognized its mistake and withdrawn its submission:

The Prosecution wishes to retract its reference to the possibility of conducting trials in absentia in Libya. Article 17(3) of the Statute indicates that “the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out proceedings”. Hence, Libya will not be able to conduct the proceedings within the terms of Article 17(3) if it cannot get custody of Saif Al-Islam as a result of “a total or substantial collapse or unavailability of its national judicial system” and the possibility of conducting a trial in absentia is not relevant for such determination.

This is absolutely correct, and the OTP deserves credit for being willing to admit its mistake and correct the record.

Goodbye UNCLOS Dispute Settlement? China Walks Away from UNCLOS Arbitration with the Philippines

by Julian Ku

Breaking news:  China has rejected arbitration under Annex VII of the UN Convention on the Law of the Sea with the Philippines, dealing a heavy blow to the future of dispute settlement under UNCLOS (h/t China Law Prof Blog).  According to this China Daily report,

“Chinese Ambassador to the Philippines Ma Keqing had an appointment with officials from the Philippines’ Foreign Ministry on Tuesday and returned a note and related notice after expressing China’s rejection,” spokesman Hong Lei said at a daily press briefing.

“The note and related notice not only violate the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC), but are also factually flawed and contain false accusations,” Hong said.

As I have noted here (and as Prof. Clarke notes as well), the Philippines is now within its rights to ask the President of the International Tribunal for the Law of the Sea to appoint all four remaining arbitrators for the Annex VII tribunal.  Once the President of ITLOS has done so, the duly constituted arbitral tribunal may act even without China’s participation.

Upon reflection, I am not really surprised China has decided to walk away from the Annex VII tribunal.  As I noted earlier, such tribunals have tended to combine their considerations of jurisdiction with those of the merits.  They have not generally bifurcated their proceedings, nor do they seem to have any obligation to do so.

This is a problem for China because while their jurisdictional challenge is pretty strong, their argument on the merits is undeveloped and fuzzy.  They have never exactly spelled out what they mean by having “indisputable sovereignty” over the South China Sea.   Do they mean it is a territorial sea? Or that they have general economic rights similar to an Exclusive Economic Zone?

So I am not shocked that China is walking away here. The question for the Philipppines is: what next? Do they continue with the Annex VII arbitration without China? Well, their DFA seems ready to move forward without China.  But would any award issued by this tribunal be pretty meaningless?

I’m not sure. I think that any award there would have little impact on China, but it should be useful in helping rally allies in Southeast Asia, especially within ASEAN.  It is not going to stop China much, but an award that undermines the legality of China’s claims is certainly better to have than not to have. But it is not nearly as much as it would have been if China had played ball (and lost).

China’s statement contains a curious and hard to understand argument.  According to the Chinese foreign ministry, the Philippines arbitration claim “complicates” resolution of conflicts in the South China Sea in violation of the Declaration on Parties’ Conduct in the South China Sea.    Presumably, China is referring to Article 5 of the Declaration:

5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

Does making an arbitration claim under Annex VII “complicate or escalate disputes”?  Given the whole context of Paragraph 5, I am highly doubtful of this argument. One must also note that the previous paragraph instructs all parties to

undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

The explicit reference to UNCLOS (albeit the 1982 version) doesn’t really add much weight to the claim that the the Declaration somehow prohibits parties from resorting to UNCLOS arbitration.  If anything, it goes the other way.  Given that the Declaration is not technically binding under international law anyway, let’s just say this is the weakest of a series of weak arguments trotted out by China in this dispute.

So let’s just call this what it is: China is thumbing its nose at UNCLOS and it has now dealt a  serious, near fatal blow, to the UNCLOS dispute settlement system, at least in its ability to resolve serious disputes involving major powers.  UNCLOS arbitration is not going to restrain China in any significant way. At least, China doesn’t think it will pay any serious costs to walking away, which is why it is willing to accept the equivalent of a default judgment.

From the perspective of the United States, the China-Philippines episode is a cautionary tale. On the one hand, it suggests that those critics of UNCLOS worried about the impact of Annex VII arbitration tribunals need not fear them all that much.  On the other hand, this episode should put an end to the always silly argument that the US needed to join UNCLOS in order to use UNCLOS against China.  That was never really going to work, and we now have ample evidence.

Weekday News Wrap: Tuesday, February 19, 2013

by Jessica Dorsey

Will Julian Assange Be My Next Senator?

by Kevin Jon Heller

The Australian political world is all abuzz at the prospect of Assange running for the Senate in the upcoming federal election, which will be held on September 14.  It’s not completely clear whom he’ll run against, but he will register as a voter in my home state of Victoria and intends to start a new political party, surprisingly entitled the WikiLeaks Party.  There are some interesting election-law aspects regarding Assange’s plan, such as his ability to register from overseas and take the oath of office, but what I find particularly interesting is his view of what winning (which is by no means inconceivable, particularly if he runs in a liberal state like Victoria) would mean for the ongoing US grand jury investigation of his activities.  From The Guardian (which I’ve just learned, to my great excitement, is planning to start an Australian edition):

The WikiLeaks founder Julian Assange has told an Australian news website that his bid to become an Australian senator will serve as a defence against potential criminal prosecution in the United States and Britain

Assange spoke to the Conversation website at the Ecuadorian embassy in London where he was granted asylum in June to avoid extradition to Sweden on sex crime allegations.

If he were to win a Senate seat at elections on 24 September, Assange told the website, the US department of justice would drop its espionage investigation rather than risk a diplomatic row. The British government would follow suit otherwise “the political costs of the current standoff will be higher still”, Assange said.

Readers know that I have the greatest respect for WikiLeaks’ tireless efforts to promote government transparency — and that I am completely opposed to any attempt to prosecute Assange for espionage.  But I think the idea that holding a seat in the Australian Senate would prevent the US from pursuing charges against him is, well… a tad optimistic.  Has he met the United States lately?  Its current government — run by Democrats — has no problem executing American citizens on the unreviewable whim of a “senior administration official.”  And Assange really thinks that it would hesitate to prosecute a “sitting” Senator from a country that many Americans think is next to Germany?

Color me unconvinced.  But I’d still vote for him, if I could.

PS. It goes without saying — I hope — that being elected to the Senate would not provide Assange with any kind of immunity, especially not the kind of immunity that would require the Brits to let him leave the Ecuadorian embassy.

A Bigger Transitional Justice Role Recommended for the AU

by Kristen Boon

The International Peace Institute (where, in full disclosure, I am spending part of my sabbatical as a Senior Visiting Advisor) has just released a new report entitled Peace, Justice and Reconciliation in Africa.  The report, which will be of interest to those who follow the ICC and transitional justice issues, is available here

The report makes two recommendations:

1)      The African Union’s Panel of the Wise (a five member consultative body of the AU) should adopt an advocacy role to promote and reinforce guiding principles.  Specifically, the Panel is urged to place transitional justice issues at the center of a new continental legal architecture, which would include promoting ratification of existing legal instruments such as the African Charter on Human and People’s rights and the new African Court on Human and Peoples’ Rights.

2)      The AU should develop a Transitional Justice Policy Framework and strengthen instruments for justice and reconciliation on the continent.  The text provides general background on the ICC’s role in Africa, but of particular note are the recommendations in the Annex that, if implemented, would alter the landscape of international criminal law in Africa.  For example, the Annex suggests the creation of an AU – ICC liason office and AU hybrid courts with jurisdiction over crimes within the Rome Statue and Geneva Conventions. 

If implemented these recommendations would be a significant step towards a stronger AU.  I’ve blogged here about the AU’s increasing use of sanctions, and have watched with interest the growing (but not always harmonious) relationship between the AU’s Peace and Security Council and the UN Security Council, as illustrated by differences of opinion on how to respond to the crises in Libya and Côte d’Ivoire and over the financing of the AU Mission in Somalia in 2011.  On the international criminal justice front, a low water mark was the AU’s decision to oppose the ICC’s indictment of Bashir.  Better coordination between the AU and other institutions like the Security Council and the ICC would change the landscape considerably.  The International Peace Institute’s report is worth a read.

Why is Academic Writing So Bad?

by Roger Alford

Scholarship

There is an interesting discussion by Stephen Walt over at Foreign Policy on why academic writing is so bad. It is a subject academics are reluctant to discuss, yet there is no doubt that much of what passes as legal scholarship is dull, disagreeable, undigestable. Here’s Walt’s take:

The first problem is that many academics (and especially younger ones) tend to confuse incomprehensibility with profundity. If they write long and ponderous sentences and throw in lots of jargon, they assume that readers will be dazzled by their erudition and more likely to accept whatever it is they are saying uncritically. Moreover, jargon is a way for professional academics to remind ordinary people that they are part of a guild with specialized knowledge that outsiders lack, and younger scholars often fear that if they don’t sound like a professional scholar, then readers won’t believe what they are saying no matter how solid their arguments and evidence are.

The second problem is the fear of being wrong. If your prose is clear and your arguments are easy to follow, then readers can figure out what you are saying and they can hold you to account. If you are making forecasts (or if the theory you are advancing has implications for the future), then you will look bad if your predictions are clearly stated and then fail. If your argument has obvious testable implications, others can run the tests and see how well your claims stand up.

But if your prose is muddy and obscure or your arguments are hedged in every conceivable direction, then readers may not be able to figure out what you’re really saying and you can always dodge criticism by claiming to have been misunderstood. (Of course, sometimes critics do deliberately misrepresent a scholarly argument, but that’s another matter). Bad writing thus becomes a form of academic camouflage designed to shield the author from criticism.

My own sense is that legal scholarship is better than most academic writing because we are trained at law school and in law firms to be convincing and comprehensible. Once in the academy, we are further trained to reach two audiences: our academic peers and our student gatekeepers who hold the keys to the kingdom. Obscurity may be appropriate for one audience, but not the other. Our law student underlords save us from the trap of most other academics.

So why does legal scholarship still miss the mark?

First, legal scholarship is formulaic. There is an order and predictability to legal writing that stifles creativity. You know the recipe: (1) Introduction with obligatory road map; (2) Background section for the neophyte; (3) Excruciating description of the problem; (4) Unrealistic normative solution; (5) Standard conclusion. This formula rules the day. Add ingredients, mix hastily, half-bake to 25,000 words, and then publish.

Second, legal scholarship is prosaic. Many legal scholars are more interested in arguments than words. We love the research, but not the writing. We are “ideasmiths” rather than wordsmiths. I recently read a draft article on financial regulation that had profoundly good ideas expressed in profoundly bad ways. At some point in the writing process, an entire draft should be devoted to simple wordsmithing. Every word, sentence, and paragraph should matter. When the manuscript is nearing completion we should be spending days wordsmithing, polishing rough edges, adding color and texture, altering the draft so that it is elegant and interesting.

Third, legal scholarship has a footnote fetish. Years of experience responding to law review editors has made original thought suspect. Today articles often have 500, even 600 footnotes. Student editors routinely demand supporting citations for original thought to the point of farce. The fruit of creativity struggles to survive with such aggressive pruning.

Fourth, legal scholarship is technical. Let’s face it, many of the subjects we write about are arid and lifeless. The devil is in the details, and those details are devilishly difficult to disseminate. It is not easy to make Rule 26(b) sound snappy. Maritime delimitation is not exactly the pearl of great worth. Okay, maybe it is, but writing about it is not. The trick is to make a technical subject sound as interesting as possible. Great legal writing often is about taking dry and tedious ingredients and transforming them into agreeable fare. It will not keep your teenager from rolling her eyes when you explain what you did at work today, but it should keep your colleagues and students from giving up in frustration.

Weekday News Wrap: Monday, February 18, 2013

by Jessica Dorsey

Michael Lewis Guest Post: How Clear and Inviolable is the Line between AP I and AP II?

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

In his Hamdan opinion in 2006 Justice Stevens described the conflict between al Qaeda and the United States as a NIAC (his opinion did not address in any way the geographical scope of that NIAC).  He then went on to measure the process provided by the military commissions against the requirements laid out in AP I Art. 75.  At the time I found this to be odd because AP I is supposed to apply to IAC’s while AP II applies to NIAC’s.  As I pointed out here this was all the more puzzling because AP II Art. 6 is worded in almost exactly the same way as AP I Art. 75.  However, Art. 6 is four paragraphs shorter than Art. 75 and fails to provide some of the protections that Justice Stevens found to be indispensable in his opinion striking down the military commissions.  At the time everyone seemed to agree with Stevens’ reliance on Art. 75 and most critiques of the future military commissions also referenced Art. 75 as the standard against which they were to be measured.  I don’t believe I have ever seen a reference to AP II Art. 6 in any of these discussions. This agreement in relying upon an AP I article to determine the indispensable guarantees associated with a NIAC cut across the political spectrum from members of the JAG Corps to ICRC representatives to members of Human Rights Watch and Human Rights First.  When, as someone brand new to academia, I raised the textual problem one individual patiently explained to me that a lot had changed since 1977 and intervening wars, particularly the one in the former Yugoslavia, had changed the way this divide was perceived.

Why am I mentioning this now?  Because it seems as though IHL scholars currently have an interest in AP II that did not seem to exist in 2006.  In a variety of areas from Deborah’s analysis of the White Paper to panelists at various events insisting that the line between AP I and AP II should not be blurred there appears to be a (re)new(ed) interest in keeping the provisions of the two Protocols separate.  Meanwhile Kevin’s analysis of the White Paper relies heavily on provisions found in AP I.

My own view is that textually there is a clear divide between…

Events and Announcements: February 17, 2013

by Jessica Dorsey

 Calls for Papers

Events

  • The Academy on Human Rights and Humanitarian Law at American University College of Law is sponsoring the Program of Advanced Studies on Human Rights and Humanitarian Law, which runs from May 28th to June 14th 2013. The program offers 19 courses taught by more than 39 prominent scholars in the field of human rights, in both English and Spanish. The program welcomes more than 170 participants from more than 40 countries with differing backgrounds and levels of experience for an intensive three weeks in Washington, D.C. Additionally, the Academy hosts special events, such as panels, a film series, and site visits to international organizations. Access more information here.

Announcements

  • Oil, Gas and Energy Law has published its first issue of 2013 on Nuclear Law and Policy.
  • The GlobalTrust Project at Tel Aviv University Faculty of Law, directed byProfessor Eyal Benvenisti, invites candidates interested in exploring themes related to this project, to apply for: One post-doctoral fellowship ($25,000 per one year), two doctoral fellowships ($20,000 per year, up to three years) and two visiting fellowships ($1,500 per month, between 3-6 months). Application deadline (for the academic year of 2013-2014): 1 April, 2013.

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

Ohlin on Targeting and the Concept of Intent

by Kevin Jon Heller

My friend Jens Ohlin (Cornell) has just posted a very important article on SSRN entitled “Targeting and the Concept of Intent.”  Here is the abstract:

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.

This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.

I am completely in agreement with Jens concerning recklessness/dolus eventualis.  The more difficult issue, which the essay touches on, is whether knowledge/dolus indirectus qualifies as intent in the targeting context. I believe it does, for all the reasons I’ve previously discussed on Opinio Juris. (See here and here, for example.)  Jens is more agnostic, at least for now.

As Larry Solum would say, read Ohlin!

First Signs that China Is Taking the Philippines Arbitration Seriously?

by Julian Ku

As far as I can tell, the Chinese government continues to pretend as if the Philippines’ Law of the Sea arbitration claim doesn’t exist.  Articles like this one suggest the Philippines government continues to wait for some official or unofficial Chinese response.  The February 22 deadline for China to appoint an arbitrator is fast approaching.

There are obviously bigger things going on in the world, and in East Asia (the North Korea nuclear tests come to mind).  But it is worth noting that I ran across, for the first time, an article in the Chinese press discussing the arbitration with sophistication and a very good understanding of the Annex VII process.  Published in the journal “瞭望新闻周刊“ or “Outlook Newsweekly”, the article describes the views of an unnamed expert advising the Chinese government not to take the Filipino arbitration claim lightly.

The expert offers a few considerations for the Chinese government.  Among other things, the expert notes that the Philippines is using this arbitration to gain support and sympathy from its neighbors (Vietnam is supporting) and its allies (US Secretary of State Kerry and the EU Parliament head support it). The claim also hypes suspicions of China at the United Nations and elsewhere.

More interestingly, the expert further notes that if China does nothing, the arbitration will still continue with the Japanese ITLOS president appointing the rest of the members.  (Maybe the expert was reading Opinio Juris!).  In any event, the expert advises the Chinese government to appoint an arbitrator and work hard to convince to arbitration tribunal to dismiss for lack of jurisdiction.  Moreover, China can at any time during the arbitration work out a settlement agreement with the Philippines.  (There is more to the article, but this is the key advice).

So is this is a sign of where the Chinese government is going? It seems unlikely that the musings of an unnamed expert will be very important, but who knows? At the very least, it seems as if there is some thinking on this issue going on in China.  The 30 day clock continues to tick. Only six days left!

Whale Wars Hits Seattle!

by Julian Ku

I used to blog regularly about the Whale Wars, my name for the ongoing struggle between Japanese Whalers and those groups devoted to protecting whales.  But I stopped almost three years ago when Australia filed its case against Japan in the ICJ, since nothing important seems to have happened since then.  (Did we really need 22 months for written proceedings, when the reply and rejoinder weren’t even permitted? And then a decision to let New Zealand to intervene, and no doubt they need time to file papers.  Someone, wake me up when a decision or hearing is in sight!)

I used to watch TV regularly, but stopped a few years ago in an effort to set a good example for my daughter. But I regret that now because, I might have run across this program on Animal Planet, Whale Wars, about the “heroic” Sea Shepherd group that is engaged in a decade long effort to harass or even block Japanese whalers.  (Strangely enough, the “heroic” lawyers duking out these issues at the ICJ don’t rate their own show, or even make it into this show as cameos.  It’s because they need 22 months to file two measly memorials!).

As Jessica noted yesterday, the Whale Wars (as TV programming) came to an abrupt end yesterday when the US Supreme Court denied an emergency petition to overturn an injunction by the U.S. Court of Appeals for the Ninth Circuit enjoining the Sea Shepherd from coming within 500 feet of active Japanese whalers.

I don’t have access to the papers filed in the Supreme Court petition, but the jurisdictional argument described in the news seems pretty sketchy, certainly as to personal jurisdiction.  I don’t think the Japanese whalers’ merits claims are very persuasive either, but given that the star of the show is based in the Seattle, and that the organization is based in Seattle, the fact that it uses an australian affiliate can’t possibly be enough to avoid personal jurisdiction in Seattle courts.

In any event, I am pleased the Whale Wars has made it into US courts.  I look forward to re-opening my coverage of the various disputes, as the US courts will seem quite a “rocket docket” when compared to the glacial pace of the ICJ.

Weekend Roundup: February 9-15, 2013

by An Hertogen

This week on Opinio Juris, Julian noticed the apparent truce between the American right and the ICC, but didn’t go as far as calling it peace. Further on the ICC, Kevin pointed out a flagrant mistake at the Washington Times, and argued that the OTP was wrong in concluding that Libya is able to try Saif Gaddafi, because the Rome Statute does not consider a trial in absentia to meet that standard. Talking about criminal prosecutions, Peggy asked whether Pope Benedict XVI could be sued in the child sex abuse cases, when he retires later this month.

Julian discussed the latest interim order in the saga of the Lago Agrio case between Chevron and Ecuador, and wondered whether there is anything stopping Ecuador from dragging its feet in complying with the order. Roger weighed in in the comments.

In another post, Roger reflected on the role of intellectuals as Doubters-in-Chief of a society, and how often we take this for granted in a free society. Following the reference to the importance of citizenship to society in Obama’s State of the Union address, echoing earlier speeches, Peter argued that this is unfortunately more of an ideal not reflected by reality.

Peter also drew our attention to the issue of private rights of action under the Hague Convention on the Civil Aspects of International Child Abduction that is likely to reach the Supreme Court after the Second Circuit split with the Fourth Circuit.

To finish off the week, Deborah gave her view on the increasingly popular argument to create a drone court with jurisdiction to review targeted killing decisions.

If you want to read more this weekend, can we refer you to Kevin’s new his essay on Charles Taylor’s sentencing or an essay by Noam Lubell and Nathan Derejko on the Geography of NIAC, recommended by Kevin? Or, if you’d rather turn to writing, check out our events and announcements post. Kevin also posted a call for papers for the newly launched London Review of International Law. In the spirit of the Review’s intention to include “non-traditional forms of engagement with international legal themes”, Roger posted the poem Cruel Window No More.

You can also find our summary of international law news in our weekday news wraps.

Have a nice weekend!

These Aren’t the Courts We’re Looking For

by Deborah Pearlstein

The N.Y. Times editorial page yesterday joined the growing chorus of folks in D.C. calling for Congress to create a new, executive branch court to review executive targeting decisions.

“Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country,” Senator Angus King Jr. of Maine said at the Brennan hearing. “If you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA Court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.”

Mr. Brennan said the idea was worthy of discussion, adding that the Obama administration had “wrestled with this.” Two other senators, Dianne Feinstein of California, the chairwoman of the Intelligence Committee, and Ron Wyden of Oregon, also expressed interest. Even Robert Gates, a former C.I.A. director who was defense secretary under President George W. Bush and President Obama, said on CNN that such a judicial panel “would give the American people confidence” that a proper case had been made against an American citizen.

The speed with which this idea has gained currency in Washington has, I fear, less to do with its merits and more to do with the intense attractiveness of the notion that there might be a neat procedural solution to a messy substantive problem. Alas, I don’t think it works that way. Here’s my thinking. Continue Reading…

Umm, No.

by Kevin Jon Heller

Okay, I admit it.  The ICC is a failure.  As Raj Kannappan insightfully notes at the Washington Times, its botched prosecution of Milosevic proves it:

Although the International Criminal Court (ICC) was established with the promise of bringing to justice a host of international criminals, the Court has fallen short of delivering on that promise.

Eleven years ago, on February 12, 2002, the International Criminal Court (ICC) began its trial of Slobodan Milosevic. The former Serbian and Yugoslav president, charged with genocide and war crimes in Bosnia, Croatia, and Kosovo, chose to serve as his own attorney throughout the painfully prolonged trial, which ended abruptly on March 11, 2006 when a heart attack killed the “Butcher of the Balkans.”

Now, you might object that, in fact, the ICTY prosecuted Milosevic, not the ICC.  To that, I respond “whatever.”  If the ICC didn’t want to be confused by a right-winger who can’t bother to type “Milosevic and ICC” into google, it shouldn’t have put the initials “IC” in its name.

An old tip of the fedora to Mark Kersten.

New Essay on the Charles Taylor Sentencing Judgment

by Kevin Jon Heller

Last May, I offered some critical thoughts on Opinio Juris about Charles Taylor’s 50-year sentence at the Special Court for Sierra Leone.  I have just finished a short essay (8,000 words) on Taylor’s sentence that will appear in an upcoming issue of the Journal of International Criminal Justice; you can find the essay on SSRN. Here is the introduction:

On 30 May 2012, despite concluding that he was liable for crimes committed in Sierra Leone only as an accessory, Trial Chamber II of the Special Court for Sierra Leone (SCSL) sentenced Charles Taylor to 50 years imprisonment – the second longest sentence in the Tribunal’s history. This article provides a critical analysis of Taylor’s sentence, asking whether it comports with the principle – widely accepted by international tribunals – that a sentence must not be ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’. The article concludes that Taylor’s sentence is, in fact disproportionate in comparison to other sentences imposed by the SCSL – Augustine Gbao’s 25-year sentence in particular.

In reaching that conclusion, the article is mindful of how difficult it is to reliably compare sentences. Sentencing is highly discretionary, and no two cases are ever completely alike. Moreover, sentencing judgments rarely explain in a systematic way how the judges have decided upon a particular sentence; as Boas et al. have noted, ‘it often seems as though the trial chamber has simply pulled the number out of the air’. The Taylor Sentencing Judgment, unfortunately, is no exception. A mere 40 pages long – in contrast to the 2,499-page Trial Judgment – it discusses the gravity of Taylor’s offences, his individual circumstances, and the relevant aggravating and mitigating factors, but makes little attempt to explain why those factors require a 50-year sentence.

The article itself is divided into four sections. Section 1 provides a brief summary of the Sentencing Judgment. Section 2 explains why the Trial Chamber has overestimated the gravity of Taylor’s offenses. Section 3 argues that the Trial Chamber misapplied a number of aggravating factors and impermissibly double-counted others. Finally, Section 4 criticizes the Trial Chamber’s refusal to consider Taylor’s contributions to the Sierra Leone peace process as a mitigating factor.

Comments and criticisms welcome!

Weekday News Wrap: Friday, February 15, 2013

by Jessica Dorsey

Is Another Treaty Question Headed to the Supreme Court?

by Peter Spiro

Is there a private right of action under the Hague Convention on the Civil Aspects of International Child Abduction? The Fourth Circuit said no in 2006, the Second Circuit now says yes, in an opinion released on Monday (the case is Ozaltin v. OzaltinReuters recap here).  Sounds like SCOTUS will have to take the question. Attention student note writers!

This may be a matter of small-bore treaty interpretation — how to apply implementing legislation in light of the treaty text, particulars good for this train and time only. But one might wonder if recent history makes it a little more freighted than that, after the Court skipped around the private-rights issue through the VCCR litigation in Sanchez-Llamas and Medellin. Could this be yet another vehicle for the Court in its campaign to obstruct the insinuation of international law?

Cruel Window No More

by Roger Alford

With the publication by the Journal of Legal Education’s recent “Fiction Issue,” and the London Review of International Law announcing that they will include poetry with the goal of expanding and enriching the international legal conversation, I thought this poem was particularly timely. It is written by an anonymous friend for those who have suffered from human trafficking and for those who advocate on their behalf.

Cruel Window No More

Colored panes of glass, once collected,
Good and evil, gently refracted.

Purveyor of harm enters in,
muffled alarm, tragic din.

The deed is done, young soul plucked,
Life shattered, filthy muck.

Stained glass, broken body,
Nature’s law suspended.

Shards of life, colors bleed,
Love’s dance upended.

Corrupted inquisitor, shadow valley,
Rotten misery.

Timely advocate, verdant pasture,
Quenching remedy.

Shutters open, warm air,
Cleansing counsel, gentle care.

Broken glass reframed,
Child reborn, strengthened claim.

Colored pane restored,
Cruel window no more.

Weekday News Wrap: Thursday, February 14, 2013

by Jessica Dorsey

The OTP Makes a Serious Legal Error Concerning Libya and Saif

by Kevin Jon Heller

The OTP has weighed in on Libya’s ongoing challenge to the admissibility of the case against Saif Gaddafi. In its view, although there are serious questions concerning whether Libya is investigating the same conduct as the OTP, Libya is currently willing and able to conduct a genuine prosecution. Unfortunately, its conclusion regarding ability rests on a very serious legal error. Here are the relevant paragraphs (emphasis mine):

42. However, the Prosecution also notes that not all detention centers, including apparently the one holding the suspect in this case, are under the control of the Minister of Justice and Libya has no access to certain detainees held in these centers. Further, abuses and deaths have occurred in detention centers in 2012,

43. Most notably, Libya does not clarify whether it has gained custody over Saif Al-Islam and when his transfer to Tripoli will be effected

44. Nonetheless, the investigation of the case against Saif Al-Islam has progressed and the Libyan legislation does permit a trial in absentia. Hence, and in light of the evidence submitted and notwithstanding the challenges faced by Libya as a post-conflict country, the Prosecution concludes that Libya appears, at this time and in light of the materials considered, able to conduct the proceedings.

Libyan criminal law may permit a trial to be held in absentia, but the Rome Statute does not. Article 17(3) of the Rome Statute is explicit on this point — a state cannot be considered “able” to prosecute a defendant if it does not have that defendant in custody (emphasis mine):

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

This is not a question of whether Libya will give Saif a fair trial; it is a question whether Libya’s can hold a trial at all, as “trial” is defined by the Rome Statute. And according to the plain language of Article 17(3), Libya is not currently able to try Saif. Unless it actually effectuates Saif’s transfer, therefore, its admissibility challenge must fail.

Obama’s New Citizenship (Is Anyone Listening?)

by Peter Spiro

From the closing of last night’s State of the Union:

We may do different jobs, and wear different uniforms, and hold different views than the person beside us. But as Americans, we all share the same proud title:

We are citizens. It’s a word that doesn’t just describe our nationality or legal status. It describes the way we’re made. It describes what we believe. It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations; that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter in our American story.

This now qualifies as a refrain, in the DNC acceptance speech, the second inaugural, and now this. Has Obama arrived at a theme for his second term?

Let’s call it the New Citizenship.

Great stuff, if anyone were buying. But there isn’t enough solidarity on the ground for even so thoughtful and impassioned an exponent as Obama to pull this off. Americans are migrating away from this sense of mutuality (at least specially with other Americans), and no leader is going to be able to reverse the trend. That may be too bad, but that’s probably just the way it is.

Weekday News Wrap: Wednesday, February 13, 2013

by Jessica Dorsey

Peace in the ICC Wars? Let’s Just Call It a Truce

by Julian Ku

Apparently, the U.S. conservative policymaking world has made its peace with the ICC.  As long as the ICC doesn’t bother the US, the US won’t bother the ICC.  But the US has no plans to join either.  That is the bottom line from this report from Colum Lynch.

Have U.S. conservatives really lost the war on the International Criminal Court?

A decade ago, President George W. Bush‘s U.N. envoy, John Negroponte, threatened to shut down U.N. peacekeeping missions from Bosnia to Guatemala if the U.N. Security Council failed to immunize American peacekeepers from prosecution by the International Criminal Court (ICC). The Bush administration threatened to cut aid to America’s military allies if they failed to sign pacts — known as Article 98 Agreements — vowing never to surrender a U.S. citizen to the Hague-based court. John Bolton, the Republicans’ fiercest foe of the court, declared the day he reversed the Clinton administration’s decision to sign the treaty establishing the court his happiest. “I felt like a kid on Christmas day,” he wrote in his memoir. The very future of the international tribunal appeared to be at risk.

Today, the Security Council routinely passes resolutions expanding the scope of the international court and few pay it any notice. Last year, the Security Council cited the ICC in resolutions nine times, including in a December resolution — 2085 — that requires peacekeepers in Mali to support “national and international efforts, including those of the International Criminal Court, to bring to justice perpetrators of serious human rights abuses and violations of international humanitarian law.”

The article goes on to quote our own Ken Anderson and Brett Schaefer at Heritage to say that, basically, the American right doesn’t really care about the ICC much anymore. I think that is more or less correct. I would add that the utter lack of enthusiasm in the Obama Administration for joining the ICC has made the right feel much better as well.  Even the most influential US NGOs have toned down their ICC campaigns.

I will also say that (as Ken notes in the article), Israel is a red line for the American right and the ICC will be back in the penalty box if the ICC opens an investigation into Palestine.  And that is not exactly out of the realm of possibility.

Does Ecuador Deserve Condemnation for Ignoring Arbitral Tribunal Orders and Treaty Obligations?

by Julian Ku

Neither the arbitral tribunal’s order demanding Ecuador act to stop enforcement of the $18 Billion judgment against Chevron, nor Ecuador’s continued brazen refusal to follow the order is really much a surprise. The Chevron-Ecuador Death Cage Match continues unabated and has gotten so out of control that almost nothing shocks me about this case anymore.  A former Ecuadorian judge swearing in US federal court that he was paid thousands of dollars by US plaintiffs attorneys to ghostwrite the underlying case against Chevron is just another weird detail in an already sordid story.

The theory of the interim award is interesting.  Ecuador has a duty to preserve the status quo while the arbitral tribunal reviews the merits of Chevron’s claims against Ecuador.  But the plaintiffs in the Lago Agrio case are not parties to the arbitration and are free to continue to pursue enforcement.  I suppose the argument is Ecuador is facilitating the overseas enforcement actions by not suspending  the domestic Ecuadorian litigation. That does seem a problem, although what exactly could Ecuador do? Pass new legislation ordering its courts to stop the domestic litigation?

I may be missing something, I am not sure this award does Chevron much good.  It simply puts a little more leverage on Ecuador to do something to stop the enforcement actions against Chevron, or face responsibility for costs incurred by Chevron from the enforcement actions.  Fair enough, but if Ecuador feels the tribunal will ultimately rule for them anyway on the merits, then this award doesn’t really add a whole lot of pressure, nor does it give Chevron much additional leverage in foreign courts like Argentina or Canada where enforcement actions are proceeding.  The US litigation attempting to show fraud is more likely to bear fruit than this award in stopping those actions.

In other words, it is rational for Ecuador to drag its feet on obeying the arbitral tribunal’s various interim awards.  The only basis for condemning Ecuador is simple: it is flagrantly and openly violating its solemn treaty obligations.  But should it be condemned on those grounds alone?  Neither rational choice nor realist scholars would do so.  But what about the rest of you?

The Role of Intellectuals in Society

by Roger Alford

In doing research on Aung San Suu Kyi, I recently came across this wonderful discussion from 2005 on the role of the intellectual in society. It comes in the form of a dialogue with Alan Clements in his book, The Voice of Hope: Aung San Suu Kyi: Conversations with Alan Clements.

Clements: I brought with me a quote from Václav Havel in which he explains the role of the intellectual within society. When I first read it, I instantly thought of you. He writes, “The intellectual should constantly disturb, should bear witness to the misery of the world, should be provocative by being independent, should rebel against all hidden and open pressures and manipulations, should be the chief doubter of systems … and for this reason, an intellectual cannot fit into any role that might be assigned to him … and essentially doesn’t belong anywhere: he stands out as an irritant wherever he is.”

Suu Kyi: I would agree with everything that Václav Havel says. I would say that basically, in order to become an intellectual you’ve got to have a questioning mind…. Intellectuals are very important in any society. Because they are the ones who, like in the quotation, are provoking people, opening them to new ideas, pushing them along to new heights. This is one of the tragedies of Burma–the intellectual is not allowed any place within the society. And the real intellectual, of the kind described by Václav Havel, would not be allowed to survive in Burma.

Clements: Why?

Suu Kyi: He would either have to repress his instincts as an intellectual, or he would have to leave Burma, or he would have to go and sit in prison. He’s got to choose between those three.

Clements: So by function, a totalitarian regime attempts to create a mindless, featureless society by crushing the intellectual?

Suu Kyi: The intellectual with his questioning mind threatens the totalitarian mind which expects orders to be carried out and decrees to be accepted without question. There will always be clashes between the authoritarian mind and the questioning mind. They just cannot go together.

I think it is easy in a free society to forget how important an intellectual is to the welfare of a country. The right to question and doubt is taken for granted. Freedom of thought and expression are a given. Skepticism of the system is encouraged. Intellectuals are often discouraged because they too are taken for granted. “I’m just an intellectual,” we sometimes think.

As you go about your work today give thanks that you are an intellectual in a free society. As you watch the Commander-in-Chief tonight propose his agenda for his Second Term, marvel not with what he says, but that he is accountable for every word and deed to the intellectuals–the Doubters-in-Chief.

The same cannot be said of much of the world. Over one-half of the world’s population live in closed societies. Burma, of course, is rising. It no longer is among the worst of the worst. That dishonor goes to the forlorn citizens of these fifteen Asian and African authoritarian regimes: Belarus, Chad, China, Cuba, Eritrea, Equatorial Guinea, Laos, North Korea, Saudi Arabia, Somalia, South Ossetia, Sudan, Syria, Turkmenistan, and Uzbekistan.

In a free society intellectuals are encouraged to speak their minds with reason and integrity. Our colleagues living under authoritarian regimes must speak with equal measures of insight and courage.

Weekday News Wrap: Tuesday, February 12, 2013

by Jessica Dorsey

Can Ex-Pope Benedict be Sued for the Sex Abuse Cases?

by Peggy McGuinness

Andrew Sullivan raises the stakes on the legal effect of the Pope’s retirement decision. As the Pope emeritus, can he now be sued in connection with his role in the sex abuses cases against the Catholic Church?  I can already see a lot of problems such a suit would present, and I am writing on the go today, but what do OJ readers think?  Does an ex-Pope retain head-of-state immunity?

For a full take on the canon law implications of the resignation, see my colleague Mark Movsesian’s analysis at CLR Forum here.

Weekday News Wrap: Monday, February 11, 2013

by Jessica Dorsey

Call for Papers: London Review of International Law

by Kevin Jon Heller

I know we normally announce call for papers in a group, but I want to highlight a particularly exciting new journal from Oxford University Press, the London Review of International Law.  As you’ll see, the editors are both distinguished and innovative; I’m sure the journal will prove to be both, as well.  I hope readers will consider submitting to it.

Call for Papers: The London Review of International Law

Dear friends and colleagues:

We are writing to encourage submissions to the London Review of International Law, a new journal to be published by Oxford University Press in 2013. In addition to scholarly articles, we are seeking review essays and writings in non-traditional formats of broader interest to international legal scholarship.

The London Review of International Law is a peer-reviewed journal for critical, innovative and cutting-edge scholarship on international law. The journal’s mission is to publish high-quality research and to support and foster the emergent body of work being undertaken in the areas of international legal theory, international legal history and international socio-legal studies. This work is reshaping the contours of international legal scholarship with profound implications for received enquiries and ideas, and the London Review gives it pride of place. 

The London Review encourages transdisciplinary enquiry. Disciplinary boundaries are there to be transgressed, or at any rate problematised, and the editors are keen to publish research that expands the range of concepts, insights and manoeuvres deployed to analyse international law. Equally, however, the editors aspire to publish work that explores and excavates the untold stories and lost traditions of international law itself. The disciplinary affiliation of authors is not important.

Insisting on the notion that international legal scholarship can and should read well, the London Review prioritises excellence in writing. While the careful crafting of texts is all too often subordinated to the dictates of technical proficiency, the ascent of English as a global language has generated an array of registers and modes of expression. The London Review welcomes that diversity, and encourages an experimental attitude to the communication and development of international legal ideas. 

The London Review is divided into three sections. The first section publishes scholarly articles. The second section is devoted to review essays. These may be critical explorations of one or more new publications or of older texts reconsidered in the light of new publications, but may also be structured, for example, around particular scholars, concepts or events. The London Review does not publish short-length book reviews. The third section supplements this writing with material designed to broaden and enrich the international legal conversation in a different way. Varying from issue to issue, this may include annotated reprints of classic texts, translations of foreign language scholarship, and reports of archival sources, along with photography, poetry and other non-traditional forms of engagement with international legal themes.

For further information, including the full editorial board, guidelines on submitting, instructions to authors and a list of suggested books for review please visit the London Review website here.

We look forward very much to hearing from you,

Matthew Craven
Catriona Drew
Stephen Humphreys
Andrew Lang
Susan Marks

Events and Announcements: February 10, 2013

by Jessica Dorsey

 Calls for Papers

  • The 21st Annual Conference of the Australian and New Zealand Society of International Law (‘ANZSIL’) will take place from Thursday, 4 July 2013 to Saturday, 6 July 2013 at The Australian National University, Canberra with the theme of “Accountability and International Law” The conference will be hosted by the Centre for International and Public Law, ANU College of Law. The Conference Organizing Committee now invites proposals for papers to be presented at the Conference. Call for Papers – Deadline 14 February 2013. More information can be found here (.pdf). Additionally, a Post-Graduate Research Students Seminar will be held Wednesday 3 July 2013. Abstracts are due 14 February 2013 as well. That information can be found here (.docx).
  • The Australian Human Rights Centre, Faculty of Law, University of New South Wales, Sydney, Australia in collaboration with the Fondazione Lelio e Lisli Basso ISSOCO, Rome, Italy has issued a call for papers for an expert seminar on Peoples’ Tribunals and International Law. The seminar will be held on 27-28 September 2013 in Rome. The seminar will bring together 10-12 scholars or other experts from different disciplines to examine a number of general themes about the nature and impact of peoples’ tribunals over the last half century, and to critically examine the operation of a number of specific tribunals. Papers are invited from scholars working in any relevant discipline, including law, political science, history, anthropology, sociology and other disciplines. Paper proposals should address a specific theme or a particular tribunal. More information can be found here. One-page proposals and CVs are due by March 11, 2013.
  • The McCoubrey Centre for International Law at the University of Hull is hosting a two-day conference for research students and early career scholars on 4-5 July 2013. The theme of the conference is “Beyond Responsibility to Protect: Towards Responsible Use of International Law?” (.docx) July 4-5, 2013, at the McCoubrey Centre for International Law, University of Hull. Panels will be chaired by leading academics, who will also act as discussants. Interested participants should provide an abstract of no more than 500 words by the 18th of March. More information can be found here.
  • Alternate Routes, a journal of critical social research, requests papers on the environment and prospects for social change. Topics include, but are not limited to, the following: ongoing theoretical debates; increasing ocean acidity; species decline; rising carbon emissions; more intense natural disasters; deforestation; desertification; resources extraction; poverty; environmental migration and displacement; “overpopulation”; economy and ecology; the weakening of international and national environmental laws and protections; alternative technologies (e.g. solar, tidal, wind, biofuels); food and water security; lobbying efforts by oil and multi-national companies to counter climate science; alternatives to (neoliberal) capitalism; social justice activism and the prospects for change. Deadline: May 31, 2013.
  • The Common Law Review seeks submissions concerning European Union Law. Potential topics include (but are not limited to) the following: judicial dialogue between the ECJ and national courts; defining the competences in the EU; principles of conferral, subsidiarity, and proportionality; the ECJ as an arbiter of inter-state disputes; and the selection and appointment of judges to the CJEU. Additional topics can be found at the European Union Law link above. The deadline for submission is October 2, 2013.

Events

  • NYU’s Center for Transnational Litigation and Commercial Law will host a conference on “Forum Shopping in the International Commercial Arbitration Context” from 28 February to 2 March 2013.
  • The American Branch of the International Law Association will hold an “International Law Weekend West” on March 2, 2013 at the University of Denver with the theme: “International Law and Human Security in the 21st Century” More information can be found here.
  • From March 13-16, 2013, the German Society of International Law will host its 33rd bi-annual at the University of Lucerne in Switzerland. The conference will focus on the “Hybridisation of legal systems” on the one hand and “Immunity”. More information is found in German here.

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

Weekend Roundup: February 1-8, 2013

by Jessica Dorsey

This week on Opinio Juris, Duncan started us off by discussing privileges and immunities for diplomats and posed the question of what the public should know in cases like DWIs. His next post offered a discussion of the Native American mutual defense treaty involving the Tar Sands Projects.

Kevin weighed in this week on affairs at the ICC, including this post outlining Libya’s contempt for the Office of Public Counsel for the Defense in the Saif Gaddafi case, and on a related note, with respect to the Al-Senussi case, he pointed out that Libya has now taken to insulting Al-Senussi’s defense counsel.

Kevin also pointed out a recent discussion started by Robert Howse on Prawfsblawg discussing the future of American legal education. Professor Howse was kind enough to then offer a guest post in response to Kevin’s thoughts.

The US Department of Justice’s White Paper was leaked this week, and Kevin pointed out its fatal flaw in international law (the lack of discussing organization with respect to Al Qaeda) and called attention to its confused approach to imminence and capture.  Deborah also had a post outlining her initial thoughts and critique of the White Paper. She also pointed out that Obama has ordered the release of classified memos to congressional oversight committees regarding targeted killing, calling it a step in the right direction.

Roger had a post discussing the recent decision in a Dutch district court against Shell and alternatives to ATS litigation in the United States and a post about John Kerry’s opening speech in his position as US Secretary of State, following Hillary Clinton. He also called attention to his latest article, which has just been published in the Virginia Journal of International Law, analyzing section 1782 discovery proceedings in the context of BIT arbitration.

Also active this week were Ken, who posted an update to his earlier post on the rising price of olive oil, and Kristen, who called attention to a recent conference organized by the University of Georgia Law School designed to define the word “scarcity” as it applies in international law.

And last but not least, as usual, we featured our Events and Announcements post as well as our Weekday News Wraps.

Lubell and Derejko on the Geography of NIAC

by Kevin Jon Heller

Noam Lubell and Nathan Derejko, both at the University of Essex, have posted “A Global Battlefield? Drones and the Geographical Scope of Armed Conflict” on SSRN. The essay will appear in the same Journal of International Criminal Justice symposium as my essay on signature strikes. Their abstract is all of one sentence, so here are the first couple of paragraphs:

Defining the geographical scope of an armed conflict is a matter that carries weight in more ways than one. Outside the legal sphere the question might seem like one that requires nothing more than common sense – if two (or more) parties are engaged in battle, then the area of conflict is wherever they are fighting. The reality – or at least the legal reality – is unfortunately one that does not conform to simple formulations. Being ‘at war’ or ‘going to war’ does not necessarily mean that the whole of a state is in fact embroiled in an armed conflict. For example, while most of Iraq became a zone of armed conflict in 2003, life for most people in the United States continued uninterrupted while its troops invaded a country on the other side of the globe. This can even be the case for both states involved, as was seen in the 1982 Falklands/Malvinas conflict between the UK and Argentina. The same is true for armed conflicts between a state and an organised armed group, which may be raging in one part of the country with little manifestation in other areas as is evident from the armed conflict between the armed forces of the Philippines and the Moro Islamic Liberation Front (MILF), which, for more than 20 years, was largely confined to the southern island of Mindanao. Clearly then, the actual hostilities do not necessarily correspond with the borders of the states(s) concerned. Another possibility is to base the determination of geographical scope on the existence of actual fighting. In other words, wherever there are hostilities, there is an armed conflict. But this too has its obstacles, including the question of how to determine what should count as hostilities, and whether there must be a temporal consistency within a specific geographical area that would eliminate occasional flare-ups from the scope. These issues will be returned to in greater detail in later sections.

Our focus is on the particular challenges raised to the geographical scope of armed conflict by the use of unmanned aerial vehicles, commonly referred to as drones. Much has been written about drones from a variety of perspectives,4 and we do not intend to repeat all the debates. Instead, the aim of this work is to asses not the drones themselves, but rather to examine one of the perceived ways in which the use of drones is affecting, if not leading, to the metamorphosis of armed conflict. The very notion of armed conflict appears to be going through a process of shape-shifting whereby the use of new technologies such as drones or cyber-operations are slowly erasing the crucial significance of geographical boundaries, truncating vast distances, and diminishing the need for boots on the ground.

The essay is absolutely superb — I wish I had written it myself. If I have one criticism, it’s that the authors could have spent more time discussing what actions suffice to establish that an individual located away from an active combat zone has assumed the kind of continuous combat function in a terrorist group that makes him targetable at any time, not simply when he directly participates in hostilities.

In any case, it’s a must-read. Check it out.

Ancillary Discovery in Aid of Foreign or International Proceedings

by Roger Alford

I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within the meaning of Section 1782.

But the article has salience outside that context, and could be applied to many foreign or international proceedings. One plaintiff involved in a French proceeding, for example, served a discovery subpoena on a French party while he was visiting a museum on vacation in the United States, thereby incorporating American discovery into the French proceeding. A German defendant in a German proceeding issued a Section 1782 discovery subpoena on the American plaintiff, and thereby incorporated non-reciprocal American-style discovery into the German proceeding.

The article presents several conclusions regarding the growing use of ancillary discovery in international adjudication, particularly in the context of investment arbitration claims against respondent states.

First, ancillary discovery under Section 1782 reflects a congressional intent to allow interested parties to avail themselves of liberal discovery under the Federal Rules of Civil Procedure, resulting in the indirect incorporation of American-style discovery into foreign or international proceedings. If this trend continues, American discovery will become an important ancillary mechanism to gather evidence, in addition to and perhaps in lieu of the traditional evidence gathering procedures utilized by foreign or international tribunals. For example, I outline in the article how all the important fraud information Chevron received against Ecuador came from Section 1782 proceedings, not evidence gathering pursuant to foreign or international proceedings.

Second, liberal discovery pursuant to Section 1782 promotes evidentiary forum shopping, encouraging parties to pursue ancillary discovery in the United States rather than rely on the discovery procedures available in foreign or international proceedings. If parties can rely on the liberal discovery standard of FRCP Rule 26, requiring only that the requested information is “reasonably calculated to lead to the discovery of admissible evidence,” then why opt for narrow discovery approaches of foreign or international tribunals?

Third, the use of Section 1782 in aid of international tribunals reflects sensitivity to the comity of courts, not the comity of nations, such that federal courts determining whether to order ancillary discovery should consider the international tribunal’s receptivity to such assistance, but not the attitude of the foreign sovereign responding to allegations of international law violations. International tribunals thus far have been extremely passive in their role in this regard, whereas respondent state’s have protested vigorously, but to no avail.

Fourth, in the specific context of investment arbitration, providing foreign investors with a remedy for denial of justice, together with a robust means to prove such a violation, alters the host State’s incentives and requires it to play a two-level game that reconciles international obligations with domestic political preferences. Robust evidence gathering at the international level increases the likelihood that respondent states will be liable for international law violations.

Finally, the article outlines the possible abuse of ancillary discovery under Section 1782. Chevron’s recent subpoena of Kevin Jon Heller’s email logs is an example. Email providers such as Google, Yahoo, and Microsoft are becoming obvious targets for discovery by parties seeking access to email account information of individuals involved in domestic, foreign, or international proceedings. Section 1782 is particularly vulnerable to abuse where one party is situated (or transiently found) in the United States, while all the relevant information of the other party is located abroad.

Weekday News Wrap: Friday, February 8, 2013

by Jessica Dorsey

International Law and Scarcity

by Kristen Boon

Scarcity of land, water, food, fish…These are common refrains today, and yet they beg an important question: what is scarcity?  This was the starting point of a terrific conference this week organized by the Dean Rusk Center, at the University of Georgia Law School, the Georgia Journal of International and Comparative Law, and OJ friend Professor Harlan Cohen.

The definition of scarcity can be approached in three ways.  Usually, scarcity is determined by supply and demand.  When demand outruns supply, it goes, we are in a state of scarcity. Nonetheless, the economic view of scarcity is not the only relevant framework because it doesn’t address questions of access.   Another way of looking at the issue, therefore, is through the window of rights and justice.  In other words we must consider vulnerability, exclusions, and access when we are assessing access.  Finally, we might look at the use of exhaustible resources on a trajectory.  As resources are used, we move down a slope.  The issue then is where are we on that slope with regards to exhaustible resources, and what should we do about it?

On the issue of how to respond to questions of scarcity, members of the panels canvassed opportunities to conserve, redistribute, substitute, innovate, acquire, and even abandon.  Some were particularly keen to highlight the problems of waste, as we contemplate scarcity.   Nonetheless, the discussion led to the suggestion we can’t get a handle on any of the scarcity issues in one area without coming to terms with the fact choices may need to be made about what uses are most important.  Normative choices about what to prefer, perhaps based on substitutability, will be part of the solution.  (Although, water and air of course are not substitutable.) Moreover, we might need to think hard about governance choices in order to make those institutions stick.  Management and regulation are therefore part of the conversation.

But these approaches raise big questions about whether to think about all these issues separately or together, in emergency/crisis terms or in terms of long-range planning, locally or globally.  Ultimately, it may depend on what resources we are talking about.  For my part, I discussed scarcity and redistribution in the case of Bluefin Tuna, which I have blogged about here.

Weekday News Wrap: Thursday, February 7, 2013

by Jessica Dorsey

Obama Orders Classified OLC Memo Released to Congressional Intelligence Committees

by Deborah Pearlstein

According to NPR:

President Obama directed the Justice Department late Wednesday to give Congress access to classified information that details the rationale for targeted strikes against U.S. citizens believed to have links to al-Qaida. NPR’s Carrie Johnson is reporting on the story for our Newscast Unit. She says the decision comes after Senators threatened to hold up nominees for the CIA and Pentagon. Here’s more from her report:

“An administration official says the president personally made the decision to give lawmakers on the house and Senate intelligence committees a chance to review the memo. The classified document provides a legal justification for killing U.S. citizens who have become senior operatives in al-Qaida. A U.S. drone killed radical cleric Anwar al-Awlaki, a U.S. citizen in Yemen in September 2011. Senators said they wanted to see the basis for that action before they would approve a new CIA director. The administration official says the release is extraordinary and does not set a precedent.”

The decision to grant access to lawmakers comes a day before John Brennan, Obama’s pick to head the CIA, faces the Senate Intelligence Committee for his confirmation hearing.

Note that if the full memo is still classified, and no redacted version is available, it may yet be some time before the memo sees the light of day. Nonetheless, this is surely a step in the right direction.

Weekday News Wrap: Wednesday, February 6, 2013

by Jessica Dorsey

“I Have Big Heels to Fill”

by Roger Alford

Secretary of State John Kerry made a few opening remarks (video here) yesterday at the State Department that are worth quoting.

“So here’s the big question before the country and the world and the State Department after the last eight years: Can a man actually run the State Department? (Laughter) I don’t know. (Applause) As the saying goes, I have big heels to fill. (Laughter)”

He then presents a poignant historical account of his childhood memories as a diplomat’s son in Berlin:

“I was back in Boston two weeks ago and I was rummaging through some old stuff and I found the first evidence of my connection to this great diplomatic enterprise – my first diplomatic passport. (Applause.) There it is. Number 2927 – there weren’t a lot of people then. (Laughter.) And if you open it up, there’s a picture of a little 11-year-old John Kerry and no, you will not get to see it. (Laughter.) And then in the description it says, “Height: 4-foot-3.” (Laughter.) “Hair: Brown.” So as you can see, the only thing that’s changed is the height. (Laughter.)

And the first stamp in it, the first arrival, was 1954 in Le Havre. And back then the State Department, we went over – we spent six days at sea on the S.S. America and the State Department and the United States Government sent us over, the entire family, first class. Don’t get any ideas. (Laughter.) Anyway, I – we went to Berlin, and this was not too long after the war, and I used to ride my bicycle around Berlin, it was my pastime, my passion, and rode everywhere, the Grunewald, around the lakes, up and down the Kurfurstendamm, the church where the steeple burned down, past the Reichstag, burned out, past Brandenburg Gate, past Hitler’s tomb with these amazing, huge concrete slabs blown up. And I just roamed around. It was stunning how little control there was.”

And one day – in my sense of 12-year-old adventure, I think it was then – I used this very passport to pass through into the East Sector, the Russian sector, and I bicycled around, and I’ll tell you, as a 12-year-old kid, I really did notice the starkness, the desolation. In fact, I was thinking about it the other day. If the tabloids today knew I had done that, I can see the headlines that say, “Kerry’s Early Communist Connections,” something like that. (Laughter.) That’s the world we live in, folks.

But I would reassure them by saying I really noticed the difference between the east and west. There were very few people. They were dressed in dark clothing. They kind of held their heads down. I noticed all this. There was no joy in those streets. And when I came back, I felt this remarkable sense of relief and a great lesson about the virtue of freedom and the virtue of the principles and ideals that we live by and that drive us.”

He then makes the case for the virtues of working for the State Department:

“We get to do great things here. This is a remarkable place. And I’m here today to ask you, on behalf of the country, I need your help. President Obama needs your help, to help us to do everything we can to strengthen our nation and to carry those ideals out into the world.

Here, we can do the best of things that you can do in government. That’s what excites me. We get to try to make our nation safer. We get to try to make peace in the world, a world where there is far too much conflict and far too much killing. There are alternatives. We get to lift people out of poverty. We get to try to cure disease. We get to try to empower people with human rights. We get to speak to those who have no voice. We get to talk about empowering people through our ideals, and through those ideals hopefully they can change their lives. That’s what’s happening in the world today. We get to live the ideals of our nation and in doing so I think we can make our country stronger and we can actually make the world more peaceful…. That’s as good as it gets. And I’m proud to be part of it with you. So now let’s get to work.”

Not a bad start.

White Paper

by Deborah Pearlstein

I set out to begin to untangle the strings of argument in the DOJ white paper, and find myself, after three pages of writing notes myself, having untangled only as far as the paper’s page 5 (of 16). There is something wrong with a memo like this. Let me see if I can explain why.

The white paper says that it intends to set forth “a legal framework for considering” when the U.S. government can “use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” While the paper disclaims any intention of establishing the “minimum requirements necessary” to make such a killing lawful, I take it to be an explanation for how such an operation is both authorized by domestic law, and in compliance with the various provisions of domestic and international law that regulate the use of force. It is the closest thing we have seen – and perhaps the closest thing that exists – to a detailed argument for why such a practice is legal.

So let’s start where the paper starts, more or less, with the domestic source of authority on which the administration relies for the use of lethal force it describes. The paper points to two sources of domestic law and suggests the operation is authorized either by the Constitution itself or the statutory Authorization for Use of Military Force (AUMF). So which one is it in the highly specific context here – statute or Constitution? The paper never commits. But which one it is matters enormously. It is, in a sense, what matters most. Pull out the argument threads. What law does the paper mean to reference by invoking as a source of authority the “President’s constitutional responsibility to protect the nation” (pp. 1, 2)? I infer from this description the authors mean to reference the President’s power under Article II, though I could find no citation to that provision. In particular I imagine this is some reference to the President’s power to, as the framers put it, “repel sudden attacks.” In such limited form – i.e. as a defensive use of force – it is a principle that has been recognized in various ways back to the Civil War era Prize Cases (though I find no citation to those authorities either). Does the paper contemplate that this Article II power alone – without further congressional authorization – would be sufficient as a matter of domestic law to authorize the use of lethal force against any senior operational leader of al-Qa’ida or an associated force actively engaged in planning operations to kill Americans? If the Article II power so conceived includes lethal force in those circumstances, mustn’t it also include the authority to employ lesser forms of force, like detention, against those figures, without further congressional authorization? Given the Administration’s insistent reliance on statutory, and not purely constitutional, authority to support the legality of ongoing detention of folks like KSM, it is hard to imagine the paper here is really intended as a full throated embrace of that claim.

So maybe the paper means to limit the scope of the “President’s constitutional responsibility to protect the nation” in some other way…

Dutch Court Issues Mixed Ruling on Shell’s Liability for Nigerian Environmental Claim

by Roger Alford

As we wait with bated breath for the Supreme Court’s decision in Kiobel, it is worth remembering that there are viable alternatives to ATS litigation. That was particularly evident last week when The Hague District Court in the case of Akpan/Royal Dutch Shell. Here’s the Judicial Press Release (translated by Pieter Bekker):

Four Nigerian farmers and fishermen, together with Milieudefensie, commenced the lawsuits in The Netherlands, because they hold four entities within the Shell group, with its headquarters in The Hague, accountable for the damage resulting from four specific oil spills near their villages in Nigeria. The district court has found that the four oil spills were not the result of poor maintenance by Shell, but were caused by sabotage by third parties. Based on the applicable Nigerian law, an oil company in principle is not liable for oil spills resulting from sabotage. On this principal ground, all claims in four out of the five cases have been dismissed. With regard to the four lawsuits regarding an oil spill near the village of Goi in 2004 and an oil spill near the village of Oruma in 2005, the district court is of the view that Shell Nigeria took sufficient measures to prevent sabotage of its submerged oil pipelines. For this reason, and applying the general rule of Nigerian law, the Hague district court has dismissed the claims of plaintiffs Oguru, Efanga and Dooh in those four lawsuits.

In the lawsuit concerning two oil spills near the village of Ikot Ada Udo, the district court has ruled that Shell Nigeria has violated its ‘duty of care’ under applicable Nigerian law and has committed the ‘tort of negligence.’ In 2006 and 2007, an act of sabotage was committed in a very simple way near that village by using an English wrench to remove above-ground heads of an oil well abandoned by Shell Nigeria. Shell Nigeria could and should have easily prevented the sabotage by installing a concrete plug prior to 2006, whereas it only did so in 2010 while the lawsuit was pending. Consequently, the district court has ordered Shell Nigeria (i.e., Shell Petroleum Development Company of Nigeria Ltd, the Nigerian subsidiary of the Shell group) in that case to pay compensation to the Nigerian plaintiff, Mr. Akpan. The amount of compensation will need to be determined in a separate procedure, because to date the parties have only litigated the issue of liability, and the level of damages has not been addressed. Milieudefensie has brought the lawsuits together with the Nigerian plaintiffs. In the view of the district court, Milieudefensie has standing to defend environmental interests in Nigeria before the courts in The Netherlands. However, according to Nigerian law the oil spills in Nigeria are not unlawful vis-à-vis Milieudefensie and for this reason the claims of Milieudefensie have been dismissed.

Dutch courts and the parent companies of Shell The cases have been adjudicated by the Dutch court, because the claims are not only directed at Shell Nigeria, but also target the current British parent company of Shell, which has its headquarters in The Hague. The former parent companies of the Shell group in London and The Hague have also been sued. In interim rulings issued in 2009 and 2010, the district court ruled that it is justified to adjudicate the lawsuits against all Shell entities in The Netherlands, because those lawsuits are all closely connected.

In its final rulings of 30 January 2013, the district court has dismissed all claims against the parent companies, because (in short) under Nigerian law a parent company in principle is not obligated to prevent its subsidiaries from injuring third parties abroad and in the present case there are no special reasons to deviate from the general rule.

Here is a portion of Bekker’s commentary on the ruling (reprinted from OGEMID listserve with Pieter Bekker’s permission):

On January 30, 2013, the district court in The Hague, The Netherlands, announced in a press release that it has ruled that Shell Petroleum Development Company of Nigeria Ltd. (SPDC or “Shell Nigeria”), a member of the Royal Dutch Shell group of companies, is liable to pay compensation to plaintiff Friday Alfred Akpan, a resident of the Nigerian village of Ikot Ada Udo situated in Akwa Ibom State in the Niger Delta. Applying Nigerian law, the Dutch court found that Shell Nigeria had breached its duty of care and had committed the tort of negligence by failing to take sufficient measures to prevent sabotage by third persons to Shell Nigeria’s submerged pipelines near the Nigerian village in 2006 and 2007. The amount of compensation will be determined in a subsequent phase of the proceeding. The full text of the ruling (in Dutch) is yet to be released.

The lawsuit against Shell constitutes the first time that a Dutch multinational has been sued before a civil court in The Netherlands in connection with allegations of damage caused abroad by a subsidiary and appears to be part of a trend of plaintiffs from the developing world turning to the courts in developed countries for redress against multinationals.

Four Nigerian farmers and fishermen, along with Milieudefensie, the Dutch branch of the environmental group Friends of the Earth, had brought five separate lawsuits against four Shell entities and their parent company before the District Court in The Hague, claiming compensation for oil pollution damage suffered locally by the Nigerian plaintiffs in four incidents between 2004 and 2007, and allegedly caused by poor maintenance on the part of the Shell defendants.

The Hague court dismissed all claims in all but one proceeding after finding that the oil contamination was caused by sabotage by third persons as opposed to Shell’s poor maintenance of its local oil installations and that there was no evidence of Shell’s negligence in those cases. Under Nigerian law, an oil company in principle is not liable for oil pollution damage caused by third-party sabotage.

Importantly, the court dismissed all claims against Shell Nigeria’s co-defendant and parent company, Royal Dutch Shell plc, which has its headquarters in The Hague, referring to the general rule of Nigerian law according to which a parent company is not obligated to prevent foreign subsidiaries from injuring third parties abroad and finding no special reasons to deviate from the general rule. The court had found in interim rulings that it had jurisdiction over the claims against all of the Shell defendants because those claims were closely connected.

While the court accepted the Dutch environmental group’s standing to defend environmental interests in Nigeria before the courts in The Netherlands alongside the Nigerian plaintiffs, it rejected the NGO’s claims because oil pollution in Nigeria is not unlawful vis-à-vis the Dutch-based group under Nigerian law.

All plaintiffs have announced that they will appeal the district court’s ruling insofar as it concerns the court’s dismissal of the four other lawsuits and its rejection of the claims against the parent company.

The full text of the opinion (in Dutch) is available here. For more on Dutch human rights and environmental rulings similar to Akpan, see this amicus brief.

As I will discuss in greater detail later, such cases strongly suggest that domestic tort laws may be a viable alternative solution to ATS litigation. There is a wealth of cases (including US cases) applying tort law and conflict of laws that address many of the same factual scenarios that are presented in ATS litigation. Such cases will be particularly important if, as I suspect, the Supreme Court narrowly construes the ATS in Kiobel.

UPDATE: An English translation of the decision is available here.

Weekday News Wrap: Tuesday, February 5, 2013

by Jessica Dorsey

The DoJ White Paper’s Confused Approach to Imminence (and Capture)

by Kevin Jon Heller

According to the White Paper (p. 6), a US citizen “who is located outside the United States and is an operational leader continually planning attacks against US persons or interests” cannot lawfully be killed unless, inter alia, “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of attack against the United States.” Early criticism of the White Paper has focused on how it defines imminence. The ACLU’s Jameel Jaffer, for example, says that it “redefines the word imminence in a way that deprives the word of its ordinary meaning.” That’s actually something of an understatement; as I’ll discuss in this post, the White Paper’s entire approach to the concept of imminence is deeply confused — and deeply problematic from the standpoint of international law.

The first thing to note is that it’s not clear why the White Paper even discusses imminence. As I noted in my previous post, the White Paper’s central premise is that all targeted killings of “senior operational leaders” in “al-Qa’ida or its associated forces” take place in the context of a global non-international armed conflict (NIAC) and are thus all subject to the laws of war (IHL). The White Paper also takes the position that the laws of war apply to a U.S. citizen in the same way that they apply to a non-citizen; it specifically argues (p. 3) that because “the military may constitutionally use force against a US citizen who is part of enemy forces,” the DoJ “does not believe that US citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad.”

Although I reject the White Paper’s claim that the US is engaged in a global NIAC with “al-Qa’ida and its associated forces,” I have no problem with the idea that US citizenship does not affect the targetability of an individual who is otherwise a legitimate target under IHL. But why, then, discuss imminence at all? It is black-letter IHL that a legitimate target can be targeted at any time; it is not necessary to show that the target is an imminent threat, regardless of how imminence is defined. Given that the White Paper assumes both that all targeted killings of US citizens take place in armed conflict and that US citizenship does not affect targetability under IHL, it should consider whether a US citizen poses “an imminent threat of attack against the United States” — or against anything else — to be completely irrelevant.

So why does the White Paper graft an imminence requirement onto IHL?  There are two possible explanations…

The DoJ White Paper’s Fatal International Law Flaw — Organization

by Kevin Jon Heller

There is much to say about the DoJ White Paper on the targeted killing of US citizens, which reflects the US’s idiosyncratic interpretation of international law. In this post I want to focus on the White Paper’s primary — and in my view fatal — flaw: its complete failure to address the relationship between the organized armed groups that it considers to be engaged in a single non-international armed conflict (NIAC) with the US.

The White Paper begins with the standard premise that “[t]he United States is in an armed conflict with al-Qa’ida and its associated forces” (p. 2). It then claims that the armed conflict in question is a global NIAC that extends to any member of “al-Qai’da and its associated forces” anywhere in the world (p. 3; citations omitted; emphasis mine):

[T]he United States retains its authority to use force against al-Qa’ida and associated forces outside the area of hostilities that targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.

After making that claim, the White Paper does something interesting: it explicitly addresses the argument that the existence of a NIAC between the US and al-Qaida must be determined according to the test established by the ICTY in Tadic — the test adopted by the ICRC, by the ICC, and by nearly all international law scholars. Here is what it says (pp. 3-4; some citations omitted)…

Breaking: DoJ White Paper on the Targeted Killing of US Citizens Leaks

by Kevin Jon Heller

Michael Isikoff has obtained the 16-page memo.  It is available here.

Analysis later!

H/T — Lawfare.

Libya Is Now Insulting Al-Senussi’s Attorney, As Well

by Kevin Jon Heller

Here’s a gem from Libya’s latest submission in its challenge to the admissibility of the case against al-Senussi (emphasis mine):

The Libyan Government observes that there has been a recent increase in filings in this case, no doubt due to the retention of new counsel for Mr Al-Senussi. Libya of course understands that counsel for Mr Al-Senussi will rightly want to explore all avenues of recourse for his client. However, it is hoped that in the future the Defence for Mr Al-Senussi will not file unfounded and repetitive applications before the Court containing serious allegations against the Libyan Government which are premised solely on inaccurate media reports. It is an unfortunate fact that inaccurate media reporting is frequent and inevitable and it is for this reason counsel are encouraged to properly substantiate all future allegations made to the Court, the Security Council, the UN Assistant SecretaryGeneral for Human Rights and the UN High Commissioner for Human Rights.

Yes, you read that right: the Libyan government, which has spent the past year baselessly impugning the integrity of the OPCD, now has the temerity to accuse al-Senussi’s lawyer, Ben Emmerson QC, of filing “unfounded and repetitive” applications with the Court based on unsubstantiated allegations. Ben Emmerson QC, who currently serves as the UN’s Special Rapporteur on Counter-Terrorism and Human Rights and as the British judge on the ICTY’s Residual Mechanism; who has been a special advisor to the ICC Prosecutor and to the judges at the ECCC; and who has literally decades of experience litigating cases at international courts and tribunals.

And what are the unsubstantiated allegations Emmerson has supposedly made on the basis of “inaccurate media reports”? There are only two such allegations mentioned in the motion that so aroused Libya’s ire: (1) that Libya intended to put al-Senussi on trial in a month (para. 2); and (2) that Libya paid Mauritania $200,000,000 to extradite al-Senussi (para. 29). The first allegation did indeed prove to be inaccurate, but Emmerson can hardly be blamed for making it — the news article in question simply quoted Taha Bara, the official spokesperson for Libya’s Prosecutor General, to that effect. If the spokesperson was somehow misquoted, Libya made no attempt to correct the record. As for the second allegation — well, I’ve dealt with the persuasiveness of Libya’s response to that one before. I’ll simply note here that Libya’s response (para. 18) to Emmerson’s “unsubstantiated allegation” relied solely on the unsubstantiated allegation of the former Libyan Deputy Prime Minister, as quoted in a news article.

Pot, meet Kettle.  I’m sure you’ll be fine friends.

Olive Oil Update – Prices on the Rise

by Kenneth Anderson

I posted a few weeks ago about the scandalous situation of adulterated Extra Virgin Olive Oil (EVOO) exported from Italy, Greece, and Spain.  Here is an update on the international olive oil market from Ed Dolan of EconoMonitor.  He reports that cold weather in Spain, followed by drought, has shrunk the Spanish harvest:

There is little doubt about what is happening on the supply side of the market: The weather in Spain, the world’s largest producer, was unusually bad last year. In the spring, an unexpected frost damaged the trees just as they were blossoming. Summer brought a prolonged drought. By December, which should be the height of the 2012/13 harvest, the Spanish crop was coming in at just 44 percent of the year before.

The harvest has been better elsewhere, but … Spain so dominates the world market that no one else can really make up the loss. Tunisia is trying. The fifth largest producer and fourth largest exporter, its production is expected to rise by 27 percent in the 2012-13 season. California will also have a good year. Growers there hope to reach 3 percent of world output this year, up from the 1 percent or less reported by the FAO for 2011. But none of that is going to go far in replacing the hundreds of thousands of tons of lost Spanish production.

Dolan also notes that demand over the long run is sharply on the rise.  The US consumer market is embracing EVOO as a healthy oil, and Brazil and China are seeing strong increases in demand over time.  Long term, demand is healthy and rising.  (Lest anyone doubt this, Dolan reports that Wrangler jeans has introduced a line of “olive-oil infused jeans” to moisturize the wearer’s legs while wearing.)  Production is up in other places – California, Tunisia and Morocco, South Africa, Chile, Australia, and New Zealand – all of which produce some very fine EVOO.  However, Spain so dominates production today that for the short term, expect price hikes for all olive oil, as evidenced in this olive oil futures chart (click for larger version):

P130204-2

One thing Dolan does not address is the effect of these supply and demand factors on the nasty little secret of this burgeoning market – adulteration of EVOO, as discussed in my earlier post.  We can make some guesses, however.  One is that the constriction of supply is going to push more adulteration, whether with lesser grades of olive oil or simply other oils such as cottonseed. If that does not become widely known then it might actually entrench adulteration even more as the norm. (If that’s possible, given that some officials in the EU suggest that 50% of the EVOO-labelled oil is actually adulterated with either lesser grades or non-olive oil.  The chances that an “Italian” oil you buy even at Whole Foods or Trader Joe’s in the US is pure EVOO is likely not better than 50%, and any any case, the export rules allow Italian packers, for example, to import oil from Spain or Greece, or outside the EU, such as Morocco, package it with a pretty Tuscan villa on the label, and sell it as Italian, according to Tom Mueller’s book, as I discussed in my earlier post. The losers in this game are the artisanal EVOO producers in Italy and Spain, who do produce the pure and much more expensive stuff, but can’t get clear identification and differentiation of their products in the export market.)

Many consumers are not likely to care, interestingly – at least, not if the consequence of enforcing the purity standard meant that the price of real EVOO went up a lot, as it would have to absent adulteration.  Those who do care are tending to shift to trusted sources, which often means shortening the supply chain. In my case, that means shifting to California EVOOs (as a Californian who has been in exile his adult life, I have a sentimental interest as well) – there are in fact sources I trust in Italy and Spain. Australia and New Zealand have much more trustworthy systems of labeling EVOO and certifying it than Europe these days, I sorrow to say. And all these places produce many superb EVOOs.  But one has to be prepared to pay for it, both because of the spike in prices due to the poor Spanish harvest – but also because if you want the real stuff, it’s going to cost you more.

Weekday News Wrap: Monday, February 4, 2013

by Jessica Dorsey

Libya’s Remarkable Contempt for the OPCD — Ex Parte Version

by Kevin Jon Heller

We know what is stake at in Libya’s admissibility challenge regarding Saif Gaddafi: either a fair trial at the ICC that will likely result in a lengthy prison sentence or an unfair trial in Libya that will almost certainly result in execution. Libya has done nothing to disguise the unfairness of its national proceedings, but it has generally pretended to be concerned with Saif’s right to a fair trial in its many filings at the ICC. So I was very surprised to find Libya argue in its most recent motion that Saif’s lawyers, the Office of Public Counsel for the Defence (OPCD), should not even be allowed to see the evidence it provides the Pre-Trial Chamber in support of its admissibility challenge:

29. In its 7 December 2012 Decision concerning Mr. Gaddafi the Pre-Trial Chamber requested Libya to make available sample investigative materials. Libya has made such samples available (as set out in Annexes 4 to 7 and 15 to 17), prior to the accusatory phase of proceedings on an exceptional basis as a demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings. Libya requests however that this material be treated as being submitted to the Chamber on an ex parte basis. This is necessitated by the strict non-disclosure requirements of investigative material prior to the accusatory phase of proceedings under Article 59 of the Libyan Code of Criminal Procedure (as set forth in the Application of Libya), and for
obvious reasons of confidentiality.

30. Article 59 requires non-disclosure of investigative material under threat of criminal punishment. It provides that:

Investigation procedures and their results shall be considered confidential.
Investigators, prosecution members and their assistants of clerks and experts who are related to the investigation or attend to their profession or post shall undertake not to disclose same. Anyone who breaches this provision shall be punished in accordance with Article 236 of the Penal Code.

The unfairness of Libya’s ex parte request is obvious — the OPCD can hardly challenge Libya’s claim that the national proceedings against Saif satisfy the principle of complementarity if they don’t have access to the supporting evidence. Which is, of course, precisely the point of the request.

To be sure, Libya doesn’t acknowledge the real reason it doesn’t want the OPCD to see its evidence. Instead, it chooses to once again attack the integrity of the OPCD’s lawyers…

A Native American Mutual Defense Treaty Against Tar Sands Projects

by Duncan Hollis

Last week, a Ceremonial Grand Council was held on Ihanktonwan homelands (located within the boundaries of the U.S. State of South Dakota) which concluded and negotiated the “International Treaty to Protect the Sacred from Tar Sands Projects”.  I can’t find a specific list of participants, but news reports suggest signatories included representatives from an array of U.S native American Tribes and Canadian First Nations.  The treaty (see here for the text) is seven articles long, most of which involve establishing the authority of indigenous peoples’ over their remaining land, including the authority to oppose tar sands oil projects (tar sands are unconventional oil deposits in sand and sandstone that are saturated with a particular form of petroleum; oil is produced from these deposits either by strip mining or using wells that inject steam, solvents and/or hot air into the sand).  The treaty signatories oppose oil work on tar sands for manifold reasons, including their degradation of the “the soil, the waters, the air, sacred sites, and our ways of life”.  In Article VI, the signatories

[A]gree to mutually and collectively, as sovereign nations, call upon the Canadian and United States governments to respect our decision to reject tar sands projects that impact our sacred sites and homelands; to call upon the Canadian and United States governments to immediately halt and deny approval for pending tar sands projects because they threaten the soil, water, air, sacred sites, and our ways of life; and, confirm that any such approval would violate our ancestral laws, rights and responsibilities.

Article VII then goes on to establish a mutual defense commitment of sorts, wherein the signatories

[A]gree to the mutual, collective, and lawful enforcement of our responsibilities to protect our lands, waters, and air by all means necessary, and if called on to do so, we will exercise our peace and friendship by lawfully defending one another’s lands, waters, air, and sacred sites from the threat of tar sands projects, provided that each signatory Indigenous Nation reserves and does not cede their rights to act independently as the tribal governments see fit to protect their respective tribal interests, further provided that each signatory Indigenous Nation reserves its inherent sovereign right to take whatever governmental action and strategy that its governing body sees fit to best protect and advance tribal interests affected by the pipeline project consistent with the agreements made herein and subject to the laws and available resources of each respective nation.

I find this treaty enormously interesting from a constitutional and international law perspective.  Of course, the treaty implicates other issues as well — environmental degradation, indigenous peoples’ rights, Canadian law, etc., but I’m not enough of an expert to opine on such questions.  Whatever its merits, though, I wonder what legal authority U.S. Native American tribes had to consent to conclude this treaty, let alone consent to be bound by it in the future (which the treaty says will occur via ratification by the “governing bodies of the signatory nations”).

[Update: Stephanie Farrior writes in with an important clarification.  Although the United States, Canada, New Zealand and Australia all initially opposed the the UN Declaration on the Rights of Indigenous Peoples, all four states have since formally expressed their support for the Declaration: Australia in 2009, and Canada, New Zealand and the United States in 2010]

Events and Announcements: February 3, 2013

by An Hertogen

 Calls for Papers

  • The American Branch of the International Law Association and the International Law Students Association (ILSA) have called for submissions for the International Law Weekend 2013 to be held in New York City on October 24-26. The overall theme is Internationalization of Law and Legal Practice, and its aim is to examine how and why an appreciation and knowledge of international law is an increasingly relevant and important professional tool for virtually every lawyer. Proposal should be submitted here on or before March 15, 2013.
  • The International Journal of Transitional Justice invites submissions for its 2013 Special Issue titled ‘The role of international criminal justice in transitional justice,’ to be guest edited by Naomi Roht-Arriaza, Professor of Law at the University of California, Hastings College of Law. Submissions are due by March 1, 2013. More information is here.
  • PhD Training School on Contemporary Challenges to International Criminal Law will be held at the Institute of International Relations in Prague, on 14-16 March 2013. The PhD Training School is organised within COST Action 1003: “International Law Between Constitutionalisation and Fragmentation: the role of law in the post-national constellation”. Applications should be e-mailed to Dr. Veronika Bílková by February 8, 2013. More information is here.
  • The Irish Law Journala hybrid peer-reviewed student-edited journal, is now accepting submissions on Irish and international law for its second edition. If you have a paper that is exclusively tied to an American audience, then it will be of little interest to ILJ. But if you have an article touching on comparative law, public or private international law, or any other topic (including legal history) that may interest an Irish, European, or transnational audience, then it will be actively considered. The deadline for submissions is March 1. Submissions should be no more then 25,000 words in length.

Events

  • On February 22, 2013, the Southern Illinois University Law Journal is organizing a symposium on Guantanamo Bay: What’s Next?. Registration is here.
  • On March 2, 2013 the International Legal Studies Program (ILSP) at Denver Law will host the Western Regional Conference of the American Branch of the International Law Association (ABILA). This year’s title is “International Law and Human Security in the 21st Century”. More information is here.
  • On March 14-15, 2013, The Amsterdam Center for International Law will host a seminar entitled: Interfaces between International and National Legal Orders: An International Rule of Law Perspective. You can find the provisional program and the list of participants here.
  • The early-bird discount for the 107th Annual Meeting of the American Society of International Law on April 3-6, 2013, in Washington, DC, has been extended until February 15, 2013. The theme is International Law in a Multipolar World. The program and registration are here.

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

Ps&Is for DWIs – What should the Public Know?

by Duncan Hollis

In order for diplomatic missions to function, international law has long accorded diplomats and their families immunity from all local criminal laws.  And when a major crime occurs involving a diplomat, there’s often a lot of press attention on the case by virtue of the privileges and immunities (Ps&Is) involved.

But Ps&Is aren’t limited to allegations of rape or manslaughter, they extend to ALL local laws, often posing problems for the host State as it tries to police dangerous behavior while also complying with its international law obligations.  So, how do States deal with day-to-day misdemeanors or mid-level criminal activities?  In Australia, they write letters.  As this story in ninemsn notes:

More than two dozen foreign diplomats and consular officials have been warned about repeated or serious driving offences on Australian soil over the past three years.

The offences include drink driving, speeding more than 30km/h over the limit, running red lights, driving while talking on a mobile phone and not wearing a seat belt. But none of the offenders can be prosecuted or even lose their driving licence because of diplomatic immunity.

The offences are outlined in 26 warning letters sent by the Department of Foreign Affairs since 2010 to the heads of various foreign embassies and consulates about members of staff who had lost seven or more demerit points on their licence or who were involved in a serious driving incident that came to the attention of police.

One letter describes a diplomat who lost 15 demerit points from 11 speeding fines in just 15 months. Another refers to a diplomat who was deemed too drunk to continue driving after being intercepted by police on Canberra’s Commonwealth Avenue Bridge at 1am on a Sunday. Police only agreed to release him when one of his own passengers agreed to get behind the wheel and take him home.

The story links to the actual letters sent out by the Australian Foreign Ministry – see here.  I found the extensive redactions especially interesting — looking at the documents, you don’t know who did what or what government she or he represented.  The Australian Chief of protocol explains that disclosing such details could damage Australia’s good relations with foreign governments and “their willingness to cooperate and communicate with Australian government officials in the future.”

Hmmm.  Now, I’m a supporter of P&Is for their functional value — I truly believe they are a key cog in diplomatic machinery.  But, I’m less sanguine about the lack of transparency the Australian letters suggest.

Saif Has Been Repeatedly Interrogated Without Counsel

by Kevin Jon Heller

Libya has filed a lengthy response to a series of Pre-Trial Chamber questions about the domestic proceedings against Saif. There is much of interest in the motion, but what particularly caught my eye is Libya’s open admission that it has repeatedly interrogated Saif and confronted him with witnesses in the absence of defence counsel. Here are the relevant paragraphs (emphasis mine):

49. In the period since 1 May 2012, testimonies regarding the actions of Saif Al-­Islam Gaddafi have been obtained from individuals who previously operated at the highest civilian and military levels of the Gaddafi regime. These individuals include [Redacted]. Mr. Gaddafi himself has also been interviewed on a number of occasions since 1 May 2012 (the last occasion being on 13 November 2012), and has been confronted with witnesses who have given testimonies in his case during such interviews.

51. The procedure for prosecution team interviews is that a private meeting is scheduled, to be attended by the witness and prosecution lawyers (other people are not permitted to be present at such meetings). The witness is then asked to swear an oath that he or she will tell the truth in answering the questions posed by members of the prosecution team. The questions asked of the witness and the witness’ answers to these questions are then written down, and each page of the witness testimony is sealed by the witness with their signature and/or fingerprint, as well as the signature of the attending representative/s of the prosecution team. The accuracy of witness testimonies which might be contested by the suspect are verified through a process under Libyan law known as confrontation (Article 106 of the Criminal Procedure Code). During this process the accused person in the investigation (i.e. Mr. Gaddafi) is presented with each witness whose account differs from that given by him, and is given the opportunity to refute the testimony of that witness in front of one or more member of the prosecution investigative team.

These uncounseled interrogations and confrontations categorically violate Libyan criminal procedure. (As readers know, I don’t think it’s relevant whether they violate international standards of due process.). Here is what Libya said in its original admissibility challenge

More on the Future of American Legal Education

by Robert Howse

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.]

Thanks to Kevin Heller for taking to Opinio Juris the discussion I started on Prawfsblawg about the future of American law schools.

I agree with Kevin entirely that there are excellent institutions of legal education in other countries, including but not limited to the ones he mentions.  In my original post, I did not say-as some critics have suggested-that the US has a “monopoly” on high quality legal education, but only (more modestly) a competitive advantage.  But these days the notion of American decline is it seems so widely held among pundits and professors that saying that America remains a leader in anything may start sounding atavistic and unappreciative of the genuine achievements of other societies.  My sense is that the demand for high quality legal education cannot be met in many countries by existing institutions in those countries as they now operate. That’s not based on some kind of personal arrogance but two decades of globetrotting as a legal academic. Mostly I am reporting the judgments of students and professors themselves in the countries in question.

I hope I did not say or imply that the foreign JD market is “vast”. Indeed, I mentioned one of the main limits of that market in my original post-law is a first degree in most countries and so we would need to rethink our own approach to address that extremely important factor.

Kevin makes a very important point about the expense of an American law degree compared to the cost of studying in one’s own country (or even an elite institution in a third country).  Some of my readers took me to be suggesting that I think students will pay that cost because they will have access to high-paying jobs at prestigious law firms as a result of the American degree.  That is far from certain, and we shouldn’t be marketing ourselves based on that premise.  I’ve talked to foreign students who have chosen JD study in the US, and not only in the so-called “elite” law schools.  The reasons they give for this choice are multiple, but usually involve both a perception of the relatively higher quality of US legal education to that which would be accessible to them at home and additional reasons for choosing the US over some of the great institutions in other countries that Kevin mentions.  Again, I emphasize that I am not talking about a “monopoly” by any means.  But rather that we have a degree of competitive advantage in a real market that we need to understand better, and better serve.

Understandably, Kevin focuses on the aspect of my argument that concerns the foreign JD market.  That may, however, give the misimpression that I view foreign JDs as a panacea.  My post equally explores the importance of executive and continuing education to the future of American law schools and that we can do a great deal more to design effective programs to provide non-lawyers with elements of legal education they increasingly need to pursue their own professional and business goals.

Finally, I see a strategy of playing our strengths globally as consistent with and reinforcing of efforts elsewhere to improve the quality of legal education.  And here I think the potential of mutually advantageous partnerships with foreign institutions is considerable.

Libya Didn’t Buy Al-Senussi; It Simply Made a Donation to Mauritania!

by Kevin Jon Heller

I’ve been catching up on the lastest filings regarding Libya’s complementarity challenges, and I’ll have a post tomorrow about some shocking admissions by Libya concerning its planned domestic prosecution of Saif Gaddafi.  But I would be remiss if I didn’t point out now that Libya is denying — in writing, but apparently with a straight face — that it paid Mauritania $200,000,000 to extradite al-Senussi:

Serious evidential issues apply to Mr. Al-Senussi’s manifestly unsubstantiated allegations that Libya incited or provided “aid and assistance” to a violation of Resolution 1970 by Mauritania through the offer and payment of a sum of money in return for receipt of Mr. Al-Senussi. As outlined in Mr Al-Senussi’s Application, Libyan Government records establish that the payment of 250 million dinars to Mauritania which was approved by the Libyan General National Congress and recorded in a GNC Decision of 14 November 2012 (ie. more than 70 days following the extradition of Mr Al-Senussi to Libya from Mauritania), was made by way of bilateral aid “as a donation to the Mauritanian people”. Indeed, the former Libyan Deputy Prime Minister, Mostafa Abu Shagur, who was in office at the time of Mr Al-Senussi’s extradition, has confirmed that the payment made was consistent with Libya’s many other investments in Mauritania and was made specifically in order to assist the Mauritanian economy.

See?  The $200,000,000 wasn’t a bribe.  It was merely a good-hearted “donation to the Mauritanian people” from the generous and compassionate Libyan government.

If the ICC judges buy that, I have a nice bridge they might be interested in…

Rob Howse on the Future of American Legal Education

by Kevin Jon Heller

Rob has an excellent post today at Prawfsblawg extolling the potential of American legal education. It is nice to see someone dissenting from the conventional doom and gloom, and Rob makes a number of valuable points. But I feel compelled to take issue with (1) his description of non-American legal education, and (2) his assessment of the potential for American law schools to attract large numbers of foreign students. Here, in relevant part, is what he argues:

The potential of America’s law schools is only starting to be realized.

The global market for US legal education was traditionally regarded as composed of a relatively small group of foreign-educated lawyers seek advanced degrees. But this changing. Increasingly, a US JD degree is an attractive option for foreign students. And you have probably noticed more non-US JDs in your classes. In most countries law is the subject of a first degree after high school. The market could be expanded of US law schools were to offer a combination undergraduate degree in another discipline and a law degree-what about a 5 or 6 year program that leads to a BA in economics or political science or philosophy and a JD?

The fact is that American law schools have a competitive advantage. To be sure there is excellent legal education in some other countries. But my considerable global experience suggests to me that those countries are few. In most places, legal education is dominated by old-fashioned rote learning and by professors who spend much if not most of their time in private practice. Innovation is rare and slow. Class sizes are often huge.

If we are not distracted by US News rankings, we will observe that in all kinds of law schools all across the US there are world class intellectuals and leading specialists on the faculty. Of course national law schools abroad have a captive audience of students who can’t study in English and/or whose first and immediate priority is to qualify for the local bar or who can’t afford foreign study (though we can reach out to the last group through distance education and foreign campuses).   But overall the number of students with global ambitions, and the prevalence of English as a global language of law, are growing, from what I can tell.

It would have been nice if Rob had named names, because his rather dismissive description of legal education outside of the US strikes me as significantly overbroad. Does legal education in most non-American law schools involve little more than rote learning at the hands of non-academics? Rob is certainly not describing New Zealand or Australia, where I’ve held permanent positions. He isn’t describing Canada — especially not his own alma mater, the University of Toronto! — or most good UK law schools. Is he describing schools in countries with civil-law systems? I hope readers will weigh in, because my evidence is merely anecdotal. That said, I don’t think Rob’s description applies to the Netherlands or most Scandinavian countries. It may be somewhat more true of German legal education, though it certainly doesn’t describe all German law schools. I also doubt it is true of elite Asian law schools, such as National University of Singapore or the University of Hong Kong.

Frankly, I’m not even sure how well Rob is describing American legal education — at least in general.  His rosy picture of innovative teaching orchestrated by full-time academics dedicated to legal scholarship clearly applies to elite American law schools, but does it really describe the situation at lower-ranked law schools — even quite prestigious ones?  As Rob points out, there are excellent scholars in many, perhaps most, American law schools.  But that does not mean American legal education is excellent no matter where a student goes to law school.  Nor does it mean that legal education is generally better in the US than in other countries.

I am also skeptical of Rob’s belief that foreign law students represent a vast and largely untapped market for American law schools.  His point about the greater value of a JD on the international market is well taken; my law school, Melbourne, recently shifted to a JD-only model precisely in order to maximize the international marketability of our law graduates. I also agree that a graduate law degree can be a significant draw for students in countries where law is an undergraduate subject; approximately 15% of our JD students come from outside Australia.

That said, I question whether American law schools are particularly well-situated to attracting foreign students who don’t intend to practice in the US. Most obviously, American legal education is absurdly insular — far more so than legal education anywhere else in the world. Outside of the elite American law schools, students receive almost no education in international law. Comparative law is almost non-existent. All, or nearly all, of the professors are American. Exchange options are limited — and many foreign law schools are off the table, no matter how elite, because they don’t offer graduate-level classes. How much do most non-elite American law students know about how law functions in the rest of the world when they graduate? I’d venture it is vastly less than law students who graduate from law schools almost anywhere else.

And then, of course, there is the expense of American legal education — something that Rob doesn’t even mention. Why would a large number of foreign students want to spend $200,000 on an American JD when they can get law degrees in their home countries for next to nothing (even at the most prestigious law schools) or can attend elite non-American law schools for half the price? (Melbourne falls into the latter category.) Rob suggests that universities create five or six year joint BA/JD programs to attract foreign students. Barring a radical transformation in financial-aid practices, however, attending such a program would simply mean more debt for a foreign student — perhaps more than $300,000. How many non-wealthy foreign students would want, or could handle, that expense?

To be sure, for students able to afford Yale, Stanford, or NYU, the additional expense of a JD may well be worth it — even taking into account that starting legal salaries tend to be much lower outside of the US. But lower-ranked schools? I don’t see it. Given the insular nature and ridiculous expense of American legal education, the primary draw for foreign students will always be the prestige of the degree-granting institution.  So, far from providing salvation, I think that whatever pull the US has on foreign law students will likely do little more than exacerbate the vicious elite/non-elite division that currently characterizes American legal education.

Readers — especially non-American ones? Your thoughts?

Weekend Roundup: January 26 – February 1, 2013

by An Hertogen

This week on Opinio Juris, Julian kicked off on a lighter note with a Chinese cartoon on the maritime dispute between China and the Philippines.

IHL and ICL lawyers were well catered for throughout the week, starting with a guest post by Michael W. Lewis, who discussed two more issues raised at the Boundaries of the Battlefield symposium: “elongated imminence” in response to an armed attack and the lack of operational experience of those writing on international humanitarian law. Kevin later took issue with the suggestion that Israel’s Six Day War supports an “elongated” concept of imminence.

Alexander Wills added two more arguments in favour of allowing states to make article 12(3) declarations under the ICC Statute and for these to have retroactive effect. Also on the ICC and Palestine, Julian shared his two reactions to a NY Times op-ed by Professor George Bisharat calling for an ICC investigation, which triggered a lively discussion in the comments.

A potential ICC’s claim was far from Israel’s only worry this week, with the UN Human Rights Council strongly condemning Israel’s settlements policy. Kevin commented on the report’s main conclusions here. And then there is of course Iran’s threat; Kevin updated his timeline of estimates of when Iran will have the bomb.

And if these posts were not enough, Ken recommended Benvenisti and Cohen’s new article on SSRN addressing the laws of war from an principal-agent perspective.

Two more guest posts graced our blog this week. Başak Çalı provided her final guest post in a series on international judicial review, in which she assessed the legal policy implications of the variable standard used by the European Court of Human Rights, and Jonathan Hafetz analysed the changes and the continuities in renditions under the Obama administration. He expressed particular concerns about the use of proxy detention and the substantive reach of US counter-terrorism legislation.

Finally, Roger posted a chart depicting the legal system of the world, and updated it with a more accurate one.

As always, we kept you informed with our weekday news wraps and a list of events and announcements. Deborah also advertised a panel discussion of Zero Dark Thirty hosted by Cardozo Law School on February 11.

Thank you to our guest contributors and have a nice weekend!

Weekday News Wrap: Friday, February 1, 2013

by Jessica Dorsey

HRC Issues Blistering Report Condemning Israel’s Settlements

by Kevin Jon Heller

Nothing in the Human Right’s Council’s report is particularly novel; it’s long been obvious that both the settlements and the transfer of Israeli civilians into the Occupied Palestinian Territories are illegal. Nevertheless, it’s worth noting the report’s most important conclusions:

100. The facts brought to the attention of the Mission indicate that the State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures. The Mission notes that despite all the pertinent United Nations resolutions declaring that the existence of the settlements is illegal and calling for their cessation, the planning and growth of the settlements continues both of existing as well as new structures.

101. The establishment of the settlements in the West Bank including East Jerusalem is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination.

102. The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law, as applicable in the OPT as notably recognised by the 2004 ICJ Advisory Opinion.

103. The settlements are established for the exclusive benefit of Israeli Jews; settlements are being maintained and developed through a system of total segregation between the settlers and the rest of the population living in the OPT. This system of segregation is supported and facilitated by a strict military and law enforcement control to the detriment of the rights of the Palestinian population.

104. The Mission considers that in relation to the settlements Israel is committing serious breaches of its obligations under the right to self-determination and “certain obligations under international humanitarian law”, including the obligation not to transfer its population into the OPT. The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.

105. The existence of the settlements has had a heavy toll on the rights of the Palestinians. Their rights to freedom of self-determination, non-discrimination, freedom of movement, equality, due process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of expression, freedom to access places of worship, education, water, housing, adequate standard of living, property, access to natural resources and effective remedy are being violated consistently and on a daily basis.

Based on those conclusions, the HRC report demands that Israel “cease all settlement activities without preconditions” and “immediately initiate a process of withdrawal of all settlers from the OPT.” Interestingly, the report also encourages both states and corporations to ensure that their business dealings with Israel do not support the settlements — even if that means terminating those dealings…