Archive for
April, 2013

New Book on Terrorism and the Right to Travel

by Kevin Jon Heller

9780472118588I want to take a moment to spruik (if you don’t know the word, look it up!) Jeffrey Kahn‘s new book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, which has just been published by the University of Michigan Press. Here is the publisher’s description:

Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.

In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.

As an American who lives abroad but likes to see his family, I will avoid casting aspersions on terrorist watchlists. I’ll leave that to Jeff. Make sure to check out his book!

Weekday News Wrap: Tuesday, April 30, 2013

by Jessica Dorsey

Further Thoughts on Judge van den Wyngaert’s Withdrawal from the Kenyatta Case

by Kevin Jon Heller

I have now had the opportunity to read both Judge van den Wyngaert’s request to be excused from the Kenyatta case and the Presidency’s decision to grant that request. There is no question that workload did indeed play a role in the Judge’s decision to withdraw. But it also seems clear that there was at least one other reason, as I will explain below.

To begin with, though, I want to apologize to anyone — especially the Judge! — who saw my post as an attack on Judge van den Wyngaert’s integrity. That was certainly not its intent; I have nothing but respect for the Judge. Indeed, I intended the post to praise the Judge for her willingness to challenge the prosecution’s conduct openly and in writing, while still questioning whether withdrawing from the case was a good idea or consistent with the ICC’s rules. Unfortunately, having re-read the post a few times, I can see that I was nowhere near clear enough in expressing my intent. I should have avoided talking about “convenient excuses” and the like. My apologies again to anyone who thought I was attacking the Judge.

Now, my thoughts in light of the newly-released documents. First, my (at least partial) misinterpretation of the Judge’s actions reflects an ongoing problem with the Court’s release of information to the public. Had the Court made the relevant documents available in a timely fashion, I would have written the post differently — and more importantly, the Kenyan press would have found it more difficult to further discredit the case against Kenyatta by drawing a connection that may not actually exist. All too often, though, critical documents are either never put on the ICC website or are uploaded days after decisions themselves attract attention. I can usually hunt down documents I need, whether through personal connections or by asking for them here on the blog. But too many others depend solely on the website. Something needs to be done.

Second, to echo David Koller’s comment to my previous post, I am a bit baffled by the idea that Judge van den Wyngaert was only temporarily assigned to the Trial Chamber in the Kenyatta case. Here is paragraph 2 of her request to be excused:

On 30 March 2012, I was requested to accept temporary assignment to Trial Chamber V, in view of the limited capacity of judges in the Trial Division, as the newly elected judges assigned to that Division had not yet been called to The Hague. I accepted this assignment on the clear understanding that it would be limited in time and only for the purposes of the preparation of the two Kenya trials.

I am not completely convinced that the Rome Statute and Rules of Procedure and Evidence allow such a temporary assignment. Art. 39(4) of the Rome Statute does provide that “[n]othing in this article shall… preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court’s workload so requires.” My guess, though, is that the drafters of Art. 39(4) assumed that PTC judges would be temporarily assigned to the TC for the duration of a particular case, not simply for part of it. I could be wrong about that and invite readers to weigh in. Regardless, such temporary assignments are a terrible idea — not only because the departure of a judge just before trial can prejudice one of the parties (as I still believe is the case regarding the defence in the Kenyatta case), but also because they actually waste judicial resources by requiring two different judges to familiarize themselves with the case.

Third, and most importantly, I still have to disagree with those who insist — in the comments to my previous post or via email — that Judge van den Wyngaert withdrew solely because of her workload. Two very cryptic statements in the Presidency’s decisions contradict that idea (emphasis added):

The Judge submits that her assignment to that Chamber was temporary, only for the purpose of the preparation of the two Kenya cases for trial. REDACTED.


The Presidency, having considered the matter before it, finds the request to be well founded. In coming to this conclusion the Presidency took particular note of the workload and REDACTED of the Judge as described above.

The second statement in particular makes clear there is more to the Judge’s desire to withdraw than just workload. I have no idea what the other rationale might be — although it’s impossible not to speculate that it is indeed that the Judge does not trust the prosecution to conduct itself fairly in the Kenyatta case. (And no, that’s not a criticism of the Judge!)  Maybe it’s not; maybe the rationale is completely different. But once again we have an optics problem: I think the public has a right to know precisely why a judge who has been so openly critical of the prosecution in an important case wants to be excused from that case. And I fail to see what could possibly justify the Presidency’s decision to redact the additional rationale — with no explanation whatsoever.

We need answers, and we need them sooner rather than later.

Kiobel Insta-Symposium: Deepening the Divide

by Katherine Florey

[Katherine Florey is Professor of Law at UC Davis]

I come late to this discussion.  Professors Alford and Whytock have adeptly explored the question of whether international human rights litigation might be reframed under state tort law.  To their observations, I would add the following: Because state choice-of-law methodology is incredibly diverse, it is difficult to make predictions or generalizations about the overall prospects for human rights cases in state court.  Regardless of what the general landscape might hold, however, it is easy to imagine scenarios in which foreign plaintiffs successfully pursue human rights claims arising abroad by invoking state tort law.  Consider a claim subject to the conflicts methodology used in California, known as comparative impairment.  Although comparative impairment is among the more nuanced and sophisticated of modern conflicts methodologies, it is also persistently biased toward forum law.  For example, before a California court will even consider the possibility of applying foreign law, the party advocating for the application of such law must demonstrate that foreign law materially differs from California law and that the foreign jurisdiction has an interest in having its law applied.  Given the near-universality of tort law principles of some sort, the first requirement, in particular, may prove problematic for defendants arguing that their conduct should be governed by a foreign jurisdiction’s laws.  Comparative impairment additionally favors forum law when it comes to damages.  Courts applying California conflicts methodology have consistently held that foreign jurisdictions have no interest in limiting damages as to non-resident defendants.  Even in some cases involving defendants who are residents of the damages-limiting jurisdiction, some courts have applied California law.

It is easy to imagine how these principles could converge to create appealing prospects for human rights plaintiffs seeking to bring state tort claims.  Indeed, recent cases like Bowoto v. Chevron, in which the court applied California law to claims by Nigerians for activities undertaken by Chevron in Nigeria, provide a ready template.

The possibility that some human rights litigation will be displaced into state court is thus very real, even if the extent of that displacement is difficult to predict.  And that leads me to a further observation.  To the extent that state courts increasingly operate concurrently with federal courts as forums for the litigation of cases with extraterritorial elements, the disparate treatment of extraterritoriality issues under state and federal approaches becomes ever more problematic. And Kiobel seems likely to compound those problems, not only because it pushes another category of foreign-squared or -cubed cases into state court, but because it takes the federal law of extraterritoriality in a direction increasingly incompatible with state conflicts approaches.

What do I mean by this?  I see two main ways in which Kiobel’s reasoning is likely to impede useful dialogue between federal and state approaches.  The first is the meaning, and relevance, of territory in assessing the scope of a sovereign’s prescriptive jurisdiction.  Everything about Justice Roberts’s opinion reflects a narrow, stubbornly physical notion of territoriality.  He seeks to crisply cordon off from the ATS’s reach “conduct occurring within the territorial jurisdiction of another sovereign” – a category that (because it assumes a definition of territorial jurisdiction based on the physical location of conduct) seems both question-begging and potentially troublesome to apply in practice.  And his odd final formulation – that the presumption might be “displace[d]” as to claims that “touch and concern the territory of the United States” – suggests an even more constrained view of the relationship between law and territory.  Justice Roberts’s territoriality is one not of a sovereign, but of a landowner.  By contrast, modern state conflicts approaches, in reaction (perhaps overreaction) to the rigidly territorial approach of the First Restatement, have tended to sideline territoriality entirely.  Famously, modern conflicts approaches tend to privilege the parties’ domiciles over the site of relevant events; even when location of events does come into play, the place of both conduct and injury may frequently be relevant.  But even more broadly, modern conflicts doctrine speaks in terms of relationships and interests.  It has done more than reject territorial formalism; it has made it largely irrelevant.

Second, and more practically, Kiobel cements the sense that the Court has conclusively abandoned an approach to extraterritoriality grounded in comity and international norms in favor of one rooted entirely in statutory interpretation.  Whatever might be said for or against this shift more generally, it virtually guarantees that state courts applying predominantly common law will find little or nothing in the Court’s recent case law to guide them.  This is not for lack of interest or concern on the part of state courts, which have often earnestly attempted to follow the Court’s extraterritoriality approach to the extent that they can.  In the wake of Morrison, some state courts have interpreted state statutory law to be consistent with its federal models; some state courts, for example, have limited the extraterritorial application of state RICO statutes in light of federal precedents doing the same.  But Morrison or Kiobel shed precious little light on the question of how far state law should extend when no legislative intent exists about which to make presumptions.

All of this means that state conflicts doctrine and principles governing the extraterritorial reach of federal statutes are likely to drift farther apart.  Further, it means that state courts are bereft of guidance at a time when they are increasingly likely to need it.  State choice-of-law doctrine, developed to deal with trivial interstate differences over guest statutes or interspousal immunity, seems increasingly provincial when it is pressed into service for weighty matters of corporate responsibility and human rights.  It is possible that, for the moment, personal jurisdiction and forum non conveniens issues will forestall a rush of foreign-cubed plaintiffs into state courts.  But if not, where do we go from there?

Bolivia’s Ridiculously Weak ICJ Case Against Chile

by Julian Ku

Last week, the government of Bolivia filed an application in the International Court of Justice against Chile arguing that Chile has breached its “obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean.”

Is it just me, or is this the weakest case ever filed at the ICJ?   I am baffled as to how there could be compulsory jurisdiction under the Bogota Treaty, whose relevant provision reads:

“…the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation”.

According to Bolivia, the legal dispute exists because “Chile denies its obligation to enter into negotiations regarding Bolivia’s fully sovereign access to the Pacific Ocean.”  Ergo, there is a dispute over whether Chile has an international obligation to negotiate and whether it has breached this obligation that it denies having.

But this is circular.  Bolivia is the one claiming there is an obligation, and the mere fact that Chile denies the existence of the obligation can’t by itself create the basis for jurisdiction.  Bolivia needs to point to some source which imposes a legal obligation  on Chile an obligation to negotiate in good faith on this issue.  The following appears to be Bolivia’s best effort to find such an obligation:

17. The Bolivian note of 1 June 1950, invoking the different declarations and commitments formulated by Chile, proposed: “for the Governments of Bolivia and Chile to formally enter into a direct negotiation to satisfy Bolivia’s fundamental need for obtaining an own and sovereign access to the Pacific Ocean, thus resolving the problem of Bolivia’s confinement, on the basis of natural conveniences and the true interests of both countries”

18. The Chilean note in response, dated 20 June 1950, states that: “( … ) my Government ( … )it is willing to formally enter into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia an own and sovereign access to the Pacific Ocean and for Chile to obtain compensations that are not of a territorial nature and that effectively take into account its interests”

Apparently, those negotiations never worked out.  But there is an even more fundamental point. The 1950 Chilean note states that the government “is willing to formally enter into a direct negotiation”.  It doesn’t say that the Chilean government obligates itself to negotiate (whatever that would mean anyway).   The same non-obligatory language is true of a 1975 statement that Chile “would be prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Linea de la Concordia” (emphasis added).  Even if there was a treaty provision that explicitly obligated the parties to negotiate in good faith, I would be skeptical.  But there isn’t even that.

Maybe I’m missing something, but this case looks like a sure loser on admissibility. It looks like it is going to be a major waste of time for the ICJ.  I admit I am not an expert on the relevant treaties here, or on this dispute, but if Bolivia’s application reflects its best arguments, then I can’t see how the ICJ could possibly allow this application to proceed.  How would they ever avoid future cases where one party asks another party to negotiate, and then complains when that party doesn’t agree to do so.  This should be a slam-dunk unanimous admissibility dismissal for the ICJ. I just hope they don’t need more than a year to figure this out. (If someone out there has a good defense of Bolivia’s case for jurisdiction, would love to hear about it.)

Reminder: New Voices Abstract Deadline May 1!

by Jessica Dorsey

For the procrastinators among us, here’s another friendly reminder about our New Voices Symposium coming up in July and August. As a recap, this July, we are planning to launch a new feature called New Voices: a two-month online symposium to run alongside our regular posts. Our goal is to give students, new practitioners and emerging scholars a chance to profile their work by providing a platform for fresh ideas that will hopefully stimulate discussion with our regular bloggers and commentators.

We invite submissions on any topic of international law from LL.M., Ph.D., and S.J.D. students as well as those in the early stages of their careers (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing their final degree), anywhere in the world.

If you’re interested, please send a 200-word summary of your idea and your CV to opiniojurisblog [at] gmail [dot] com by May 1, 2013–that’s this coming Wednesday! If selected, we’ll let you know by mid-May. We’ll also let you know at that point when your post is scheduled to go online. Final submissions between 1000-1500 words will be required two weeks before publication for review, so at the earliest by mid-June.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

Weekday News Wrap: Monday, April 29, 2013

by Jessica Dorsey

Bored with Japan and the Philippines, China Intensifies a Third Border Dispute with India

by Julian Ku

Not content to push border disputes with only Japan and the Philippines, China apparently has decided that now is also a good time to create a border crisis with India.  Last week, Chinese troops apparently crossed over a disputed border to camp 20 km inside Indian-claimed territory in the remote region of the Himalayas (the Chinese deny the incursion has occurred and both sides appear to be climbing down a bit).

This rather hostile-to-China essay in the Japan Times provides a nice summary of how China has stepped up its activities on three different territorial fronts at the same time.  First, there is the ongoing dispute with the Philippines over the Scarborough Shoal/Huangyan Island in the South China Sea. Then, there is that dangerous dispute with Japan over the Diaoyu/Senkakus in the East China Sea.  Finally, China is provoking India.

Overall, China’s strategy appears to be to put its interlocutors on the defensive and to exhaust them with low-intensity incursions. This is working.  Japan is now repeatedly having to scramble its jets over the Senkakus at repeated Chinese incursions, and India is apparently rushing troops to the remote border region to confront the Chinese troops.  But, as the author of the essay notes, these are all reactive measures that allow China to keep the initiative.  China is not seeking a war, but it is seeking to push the envelope against its neighbors, with some success. India is trying to keep the dispute from escalating and Japan has been defensive about the Senkakus for the first time in decades.

Only the Philippines seems to be able to push back and force China to react, albeit through the soft pressure of an Annex VII UNCLOS arbitral proceeding.

It is impressive how China can keep three of its neighbors scrambling to respond while it slowly builds up its territorial claims.  In the long run, China v. India/Japan/Philippines/Vietnam/etc.  seems like bad odds, but so far it is working. Will international arbitration play any role in resolving these disputes?  I doubt it, but we will soon get some empirical evidence if the Philippines is able to win a judgment that affects or shifts China’s behavior.

Events and Announcements: April 28, 2013

by Jessica Dorsey

Calls for Papers

  • We have launched our own call for papers aimed at LL.M, Ph.D and S.J.D. students as well as those practitioners/academics within the first five years post-degree to participate in our New Voices symposium starting in July. The deadline for 200-word abstract submissions is in only two short days: May 1, 2013!!
  • This serves as a reminder for the call for papers for the Interpretation and International Law conference at the University of Cambridge. The deadline for abstract submissions has been extended to May 8, 2013. For more information, click here.
  • The Center for Legislative and Evaluation Studies of the University of Geneva and the International Association of Legal Methodology hosts Assessment of Research in Law: Stakes and Methods, on February 13-14, 2014. Research Proposals should be submitted to cetel[@] by June 30, 2013.
  • The Campbell Law Review announces a call for papers for its National Edition, which will be focused on Internet Law and related themes. Abstracts should be submitted by August 1, 2013. Submissions, along with a curriculum vita, should be sent to culawreview [at] email [dot] campbell [dot] edu.
  • The Refugee Law Initiative (RLI) invites submissions to its Working Papers Series. The series provides for the rapid dissemination of preliminary research results and other work in progress, reflecting cross and inter-disciplinary interests within refugee law and policy, broadly defined. Recent papers have considered integration, detention and smuggling of asylum-seekers, gender-related asylum claims and long-term encampment. For more information, see here.

Upcoming Events

  • The British Institute of International and Comparative Law will hold a seminar on Unilateral Jurisdiction and Arbitration Clauses, Valid or Not? on May 8, 2013.
  • The British Institute of International Comparative Law will also host the Twentieth Public Meeting of the Investment Treaty Forum May 10, 2013. The theme is the Litigation of Public Law Concepts in Investor-State Arbitration – Practical and Theoretical Considerations.
  • From May 22, 2013 to May 24, 2013, Lee Epstein and Andrew Martin will be teaching their annual Conducting Empirical Legal Scholarship workshop. This workshop will be held in Los Angeles, California, and is co-sponsored by University of Southern California’s Gould School of Law and Washington University Law. The workshop is for law school and social science faculty and graduate students interested in learning about empirical research. There is more information available about the workshop here. 
  • The New York City Bar is hosting an event entitled Targeted Killing Away from a “Hot Battlefield:” Exploring the Legal Issues on May 28, 2013. Click here to register.
  • The University of Amsterdam’s Research Project on Shared Responsibility in International Law (SHARES) will organise a seminar on Distribution of Responsibilities in International Law in Amsterdam on 30 and 31 May 2013. This seminar will consider extra-legal perspectives on how responsibility is to be distributed when multiple wrongdoing actors contribute to a harmful outcome. The relevant principles of international law leave many questions open. Should the responsibility of all actors be based on their individual contribution to such harms? Are there grounds for differentiation? Should all actors be held responsible in an equal amount, or should they, if no differentiation can be made, be held responsible collectively? At the seminar, 13 contributions by leading experts from various disciplines will be discussed. Only limited seats are available. If you are interested in participating, please send an email to: contact [at] sharesproject [dot] nl. For more information and the preliminary programme see here.


  • The Sandra Day O’Connor College of Law at Arizona State University seeks a dynamic, proactive, and highly-motivated individual for the position of Director of the Center for Law and Global Affairs. The successful candidate will be responsible for advancing the vision of the Center and will be responsible for managing the Center’s budget and fund-raising efforts as well as coordinating Center events and activities. The Director will also be responsible for facilitating student engagement in international and transnational legal work. For a full description of the job description and instructions on how to apply, please click here. 

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

Leiden Wins ICC Moot

by Kevin Jon Heller

From the Court’s press release:

Today, 26 April 2013, Leiden University won the final round of the International Criminal Court (ICC) Trial Competition, English version, held in ICC Courtroom I in The Hague (Netherlands). Osgoode Hall Law School of York University (Canada) and Bond University (Australia) won, respectively, second and third place. The Best Speaker award went to Katherine Stewart of Osgoode Hall Law School. Leiden University’s winning team was composed of John Doyle, Sophie Beelaerts van Blokland, Uzay Aysev, Alexander Wills, Joe Holt, Daniel Huck and Adrian Plevin.

Congratulations to Leiden and the runners up. I’m particularly delighted — and completely unsurprised — that the winning team included Alexander Wills, who was one of the smartest students I’ve ever had the pleasure to teach. It’s not every day that an LLB student publishes an article in the Journal of International Criminal Justice — in the special issue dedicated to the crime of aggression, no less. Employers: he’s one to keep an eye on.

Troubling Development in the Kenyatta Case (Updated) (Updated Again)

by Kevin Jon Heller

I cannot find the relevant document on the ICC website, but Kenya’s CapitalFM is reporting that Judge Christine van den Wyngaert, sitting in the Trial Chamber, has withdrawn from the case against Uhuru Kenyatta because of concerns about the prosecution’s behavior:

In her opinion the prosecution failed to disclose to the Pre-Trial Chamber on the credibility of witness four and disclosing new evidence after confirmation stage.

“There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started,” she stated.

She further agreed with Kenyatta’s argument that the prosecution introduced evidence and witnesses that had not been disclosed before.

“I stress the concerns expressed in the decision about the overwhelming number of post confirmation witnesses and the quantity of post-confirmation documentary evidence, as well as the very late disclosure of the latter.

Wyngaert observed that even though the prosecution faced challenges it has not justified how so many witnesses were interviewed after charges against Kenyatta were confirmed.

“The Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation. The mere invocation by the Prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation,” she opined.

However in her concurrence with the other two judges, she explained that the hitches on the side of prosecution were not weighty enough to warrant a referral to the Pre Trial Chamber or withdrawal of charges against Kenyatta.

Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4.

I’m not sure quite what to make of this, and it’s difficult to draw conclusions without reading Judge van den Wyngaert’s concurrence. That said, three (tentative) points. First, and perhaps most obviously, Judge van den Wyngaert’s withdrawal casts the prosecution in an extremely unflattering light. I cannot imagine that the Judge would have withdrawn unless she was profoundly concerned by the prosecution’s actions.

Second, I have serious reservations about the Judge’s decision to withdraw, given that — ironically — it clearly benefits the prosecution. If Judge van Wyngaert’s concerns were simply procedural, the prejudice to the defence might be minimal. But the CapitalFM article seems to imply that the Judge has questions about the merits of the prosecution’s case — its failure to conduct a thorough investigation in particular. (Recall that Article 54 of the Rome Statute provides that the prosecution must, “[i]In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”) As a result, Judge van den Wyngaert’s withdrawal may well replace a judge who is skeptical of the prosecution’s case with one more inclined to accept it. That hardly seems fair to the defence.

Third, and finally, I am not sure whether there is even a legal basis for Judge van den Wyngaert to withdraw. Art. 41(1) of the Rome Statute provides that “[t]he Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.” The key is the final clause, because Rule 35 of the RPE says that “[w]here a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused” (emphasis added). A request to withdraw from a case thus seems to require the presence of one of the grounds for disqualification listed in Rule 34 — personal interest in a case, conflict of interest, etc. Disagreeing with the prosecution’s conduct in a case is not such a ground for disqualification, although it is important to acknowledge that Rule 34 does not make the list exclusive (“inter alia“). Even so, I think it sets a very bad precedent for the Presidency to agree to excuse a judge on the ground that she has a problem with the prosecution’s conduct. That hardly seems like a ground for disqualification, no matter how liberally such grounds are construed.

UPDATE: Zach was kind enough to provide a link to Judge van den Wyngaert’s concurrence. The concurrence reinforces my point that the Judge’s withdrawal is significantly unfair to the defence, because it deprives Kenyatta of a judge who was clearly willing to question the strength of the prosecution’s evidence. Paragraph 4 is particularly revealing:

Finally, there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case. This negligent attitude is particularly apparent in relation to Witness 4’s evidence because, as the Prosecution concedes, ‘the Office as a whole was on notice, prior to the confirmation hearing, of the inconsistencies in the account Witness 4 gave during his [second] screening’. The Prosecution offered a number of explanations for overlooking the problems with Witness 4’s evidence. However, what all these explanations reveal is that there are grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff. Clearly, thorough and comprehensive due diligence with regard to the reliability of the available evidence is an ongoing obligation of the Prosecution under article 54(1)(a), which is as important as the collection of that evidence itself.

If I were the defence, I would try to challenge Judge van den Wyngaert’s withdrawal. Nothing in the Rome Statute expressly permits a party to challenge or appeal a judicial disqualification, but such a right would seem to be implied by Article 41(2)(b), which provides that “[t]he Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph.” The right to request disqualification should be accompanied by the right to challenge the same.

UPDATE 2: Writing for Reuters, Thomas Escritt says that Judge van den Wyngaert withdrew from the Kenyatta case because of her workload, not because of her criticisms of the prosecution. I do not doubt that Escritt’s reporting is more accurate than the Kenyan media’s, but I find it difficult to believe that there is no connection between the Judge’s criticisms and her decision to withdraw. She certainly could have withdrawn from a different case — one in which she had not savagely criticized the prosecution — instead. “Workload” strikes me as little more than a convenient excuse — and I stand behind the suggestion that the defence should challenge the Judge’s decision to withdraw. Still, it is important to acknowledge Escritt’s reporting.

Weekend Roundup: April 20 – 26, 2013

by An Hertogen

This week on Opinio Juris, we continued last week‘s Kiobel Insta-Symposium. Quoting from his and John Yoo’s Forbes contribution, Julian argued that the rejection of universal civil jurisdiction is common sense because it leaves the decision on foreign policy consequences of extraterritoriality to the political branches. He also drew our attention to two positive assessments of the opinion, by John Bellinger and Eugene Kontorovich. Austen Parrish offered an alternative narrative about the meaning of Kiobel, seeing it as a welcome retreat from US unilateralism towards more multilateralism.

The many unanswered questions in Kiobel continued to invite commentary. Roger listed various activities with some link to US territory that may still be subject of future ATS litigation. Beth Stephens also predicted many years of continuing litigation, and preferred the world pre-Kiobel. Examples of upcoming cases were also discussed. Roger pointed out how the Supreme Court has already granted certiorari in DaimlerChrysler AG v Bauman, a human rights case involving jurisdiction over foreign corporations, and Roger Phillips discussed two piracy cases with mixed loci delicti that will soon arrive at the Supreme Court.

Bill Dodge argued that because of the unanswered questions, Kiobel is only a Pyrrhic victory for the position on extraterritoriality first pushed by the Bush administration and urged the human rights and business communities to reach a compromise on a statute that would end the litigation. Milan Markovich argued that it could also turn out to be a Pyrrhic victory for corporate defendants and could lead to more settlements to avoid discovery proceedings into whether claims “touch and concern” the US territory.

Accusations about the use of chemical weapons against civilians in Syria, as reported in our weekday news wraps, raised the question whether Obama’s “red line” had been crossed. Julian was sceptical as to why Assad’s use of chemical weapons would justify an intervention in Syria under US and international law, and Deborah similarly explored whether there is a legal basis for intervention.

Other recent events that prompted posts were the Boston bombings, which Kevin argued fall within at least one definition of terrorism that does not require acts to be politically or ideologically motivated, and the collapse of a garment factory in Bangladesh, which Roger hoped would provide an incentive to sign up to agreements, such as the Bangladesh Fire and Building Safety Agreement, that include a binding arbitration clause to ensure better protection of human rights.

In news from international courts, Julian updated us on the appointment of the final arbitrators for the UNCLOS arbitration lodged by the Philippines against China, and assessed China’s “talking points” on the case. He also urged the Supreme Court to follow the ICJ’s lead and release video recordings of oral hearings.  On the US-ICC relationship, Julian ventured that a cultural change is required if it is to blossom into a love affair. More news from the ICC came from Kevin, who worried that a funding crisis was behind the OPCD’s request to withdraw from the Saif Gaddafi case, and the Pre-Trial Chamber’s approval of a new lawyer.

Finally, Kevin corrected an old post on whether Bill Keller of the NYTimes can be charged with aiding and abetting the enemy like Bradley Manning.

As always, we listed events and announcements that may be of interest to our readers. And remember, there is still time for grad students and recent grads out there to submit an abstract for our New Voices symposium!

Have a nice weekend!

China Updates its Talking Points on the Philippines Arbitration

by Julian Ku

Professor Craig Allen of University of Washington alerts me to this excerpt from the press conference held yesterday at China’s Ministry of Foreign Affairs.  It is the first time, as far as I know, that a Chinese government spokesman has offered a detailed explanation of China’s legal position in the Philippines arbitration.   It still doesn’t fully make sense, or at least it is still not fully responsive, but it is something at least.  China’s explanation goes something like this.

1. It is the Philippines that is illegally occupying various islands in the South China Sea, not China.

2. Although the Philippines claims it is not seeking to contest sovereignty in the arbitration, it has consistently said it is seeking a “durable solution” to dispute.  This is “self contradictory.”

3. The principle of the “Land Dominates the Sea” means that all of the Philippines’ claims are essentially maritime delimitation claims that “inevitably” involve resolving questions of territorial sovereignty over various islands and reefs. But these are the questions excluded from UNCLOS arbitration. Hence, China’s rejection of arbitration has a “a solid basis in international law.”

4. Every nation in the region, including China and the Philippines, has committed to the Declaration of the Code of Conduct for the South China Sea, which obligates them to resolve disputes on territorial and maritime rights through bilateral negotiations.

Let’s toss out points 1 and 4 since they don’t really change much of the legal analysis on whether China’s rejection of arbitration has a “solid basis in international law.”

The really interesting parts of the statements are in points 2 and 3.  To China, the Philippines is misleading everyone by pretending to be interested in the Law of the Sea when they are really trying to advance their sovereignty claims. I am not sure that “durable solution” necessarily means “resolving sovereignty claims” but I suppose it is plausible.

The most important point is Number 3, which is that the disputes over the island/rock/reef distinction or the Nine Dash Line are so inextricably linked with sovereignty that they cannot be separated.

This is really what a jurisdictional challenge would look like, if China argued its case.  I think this is the most plausible part of China’s argument, but it is not exactly a slam dunk.  First of all, China’s invocation of the “Land Dominates the Sea” doesn’t help their argument much here since the infamous Nine Dash Line doesn’t seem to flow from any land claims, or at least China has usually based the Nine Dash Line on “historic rights,” not land.

In any event, the Philippines is not rejecting the “Land Dominates the Sea” principle.  They are just arguing that the “land” China is relying on is a rock, not an island within the meaning of UNCLOS Art. 121(3), and hence cannot grant China a 12 mile territorial sea even if China did have sovereignty.  Since some of these rocks/islands fall within the Philippines Exclusive Economic Zone, this is not a sovereignty issue but a UNCLOS issue.  I am not sure that the Philippines is right about this, but they certainly have a good case.

It is also worth noting that the Chinese statement is conspicuously silent on China’s obligation under UNCLOS to at least allow a UNCLOS arbitration tribunal to determine whether it has jurisdiction (UNCLOS Art. 288(4)).  China’s statement simply assumes that the jurisdictional issue is clear, and it has no further obligations.  As almost any lawyer could tell you, jurisdictional issues are almost never clear, and even when they are, you have an obligation to go to court/arbitration to resolve them.

So China is slowly beginning to engage on this issue, and they are making a bit of progress. Still, they need better talking points. (And they need to be careful invoking the phrases like the “Land Dominates the Sea,” that could come back to hurt them later.)

So Was Congress Thinking of Authorizing Force in Syria?

by Deborah Pearlstein

As members of Congress begin calling more insistently for some unspecified form of U.S. military intervention against the regime of Syrian president Bashar al-Assad, I admit to suffering the same doubt as Julian. What exactly is the legal theory here – under domestic and international law – that would authorize the United States to use force in Syria?

There was, once upon a time, this idea in the Constitution that only Congress had the authority to declare war. While declarations of war per se have long since fallen out of legislative favor, Congress has still from time to time stirred itself to authorize the President to use military force abroad – giving the whole going-to-war business some meaningful democratic imprimatur. But Congress hasn’t authorized the use of force in Syria.

The go-to use-of-force authority for the post-9/11 wars – the 2001 Authorization for Use of Military Force – doesn’t plausibly extend to the use of force against Assad’s government. The 2001 AUMF authorized the President to use force against the Taliban, Al Qaeda and “associated forces.” Assad is none of the above. There have been reports that some of the rebel groups competing to overthrow the Assad regime are sympathetic (at the least) with the radical Islamist aims of Al Qaeda. Even if (a big if) those groups could be counted as associates of the Al Qaeda that attacked this country on 9/11, those groups in this conflict are also fighting against Assad. In other words, if we intervened in Syria against Assad, we would all in some sense be on the same side. That can’t be what the Congress that passed the AUMF had in mind.

Maybe, then, Congress is imagining the President could take action under his own power under Article II of the Constitution. After all, this President intervened in Libya without prior congressional authorization. That, too, of course had its problems. It was also thought, once upon a time, the President’s power to use force without getting Congress’ sign off first was quite limited. The Constitution’s framers believed, and the Supreme Court agreed, that the President must have at least some inherent constitutional power to, as they put it, “repel sudden attacks.” There has been no such attack by Syria against the United States here. True enough, the White House was legally untroubled by the absence of any attack against the United States by Libya. Embracing the far more problematic contemporary reading of inherent presidential power, the Obama Justice Department said then that the President could use military force on his own so long as it was in the national interest, and so long as the contemplated force didn’t actually amount to “war.” At least for 60 days. After that, under the statutory War Powers Resolution, the President has to get congressional approval for engaging U.S. forces in any kind of “hostilities” – a level of force even the Administration recognized could fall short of all-out war. In Libya, the Administration was able to argue its continued military engagement beyond the 60-day clock didn’t rise to the level of “hostilities” requiring authorization in part because our international allies did much of the actual fighting themselves. Is that in the cards here?

This brings us to the other small set of problems around Syrian intervention: international law. The UN Charter says that one state can use force against another in two circumstances: (1) if the UN Security Council authorizes it, or (2) in national or collective self-defense if an armed attack occurs, until the Security Council has time to act. In Libya, we had a UN Security Council Resolution authorizing military intervention. There is no such resolution here, and at the moment, slim prospect of obtaining one given Russia’s opposition to intervention. Is this plausibly self-defense, for example, collective self-defense on behalf of our NATO ally Turkey? Perhaps. Recent months have seen scattered reports of shelling across the Syria-Turkey border. But there is no public indication thus far that Syria has used chemical weapons against Turkey, or evidence that it has plans to do so, or even that it is threatening conventional attacks. In any case, without support from NATO itself, it is difficult to see the United States prevailing in any claim that it is acting with such justification. Is NATO actually on board?

Finally, and even setting aside the still contested international legality of humanitarian intervention in the absence of a Security Council resolution, it’s not at all yet clear that the limited use of chemical weapons seemingly at issue thus far materially changes the already horrifying humanitarian disaster that has been Syria for the past nearly two years. It is here the term “weapons of mass destruction” can hide all kinds of important detail. Of course the use of chemical weapons is horrible, of course it’s illegal. But not every use of a chemical agent, or even a biological one, harbors the potential to cause actual mass destruction. Both in assessing the case for humanitarian intervention, and the case that might justify an anticipatory use of force in self defense, it matters a lot what’s actually going on. The Obama Administration wants to wait and find out the details? For the sake of the law along with very much else, sounds like a good idea to me.

Arbitrating Bangladesh Labor Rights

by Roger Alford

BangladeshThis week 170 garment workers in Bangladesh died after the Rana Plaza building collapsed. A few months ago 112 garment workers in Bangladesh died after the Tazreen Fashions garment factory was destroyed by fire. Both tragedies were the result of inadequate fire and safety standards.

These tragedies could not have come at a worst time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on.

The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine-member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. As reported by the New York Times here,

The companies would bear the costs of improvements through higher prices for clothes and grants to workers who miss workdays because of renovations. The cost of the inspection program to each company would vary by the firm’s size, but it would be capped at $500,000 a year…. Labor groups say a roughly 3 percent annual increase in prices paid to the factories would be sufficient to make the needed improvements.

A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”

In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country.

I have long advocated the use of international arbitration to address human rights concerns such as core labor rights. As I argued in “Arbitrating Human Rights“:

“[O]ne can anticipate that many corporations will increasingly include core human rights and environmental standards as contractual covenants in their international agreements. These contracts will also include grievance procedures, including arbitration, as a com­mon mechanism for dispute resolution. Serious noncompliance with substantive contractual obligations will trigger invocation of the dispute resolution provisions. Thus, by contracting for human rights as a substantive obligation and contracting for arbitration as a procedural guarantee, corporations throughout the globe can establish a firm basis for the promotion of human rights within their spheres of influence.”

In order to incentivize corporations that source their garments from Bangladesh, large wholesale and institutional buyers and IP holders, such as colleges and universities who purchase garments or license trademarks, can require these corporations to sign reasonable labor agreements such as the Bangladesh Fire and Building Safety Agreement as a condition in their agreements. In other words, upstream contracts can require downstream supply chain labor rights.

Tragic events like the death of 170 and 112 garment workers—a death toll that is over ninety times greater than that of the Boston marathon bombings—should be sufficient incentive to sign MOUs like that proposed in Bangladesh to improve the working conditions of garment workers who earn just over $1 a day.

Weekday News Wrap: Friday, April 26, 2013

by Jessica Dorsey

The Legality of President Obama’s “Red Line” on Syrian Chemical Weapons

by Julian Ku

New evidence that Syria has used chemical weapons against insurgents have spurred new calls here in the U.S. for military action in Syria.  Here is the LA Times (hardly an interventionist paper):

An American or multilateral response should of course be proportional to the offense. That means considering whether chemical weapons were used against civilians or militants, and whether a “whole bunch” were used, as Obama put it, or much less. But there’s no doubt that an operation to secure or destroy the regime’s chemical weapons would be consistent with this country’s stated commitment (one that all too often has not been honored) to protect civilians from the worst ravages of war.

The editorial was plainly drafted carefully with some knowledge of the legal issues that would apply to such an operation.  First of all, there is that pesky U.S. Constitution, Article I, Section 8 which many folks think grants the the U.S. Congress the exclusive power to authorize U.S. military force.  I don’t think the editorial envisions President Obama seeking congressional authorization, so it is probably assuming he would act under his inherent Commander-in-Chief powers. (When George W. Bush was president, newspapers like the LA Times used to worry about the unilateral exercise of this type of power, but these days, not so much.)

Second, there is the international law governing the use of force. I raised this question back in December, when President Obama drew his red line, suggesting that the self-defense justification under the U.N. Charter can’t work here.  This post drew two very good responses from experts in the field, one from Daniel Bethlehem (formerly the chief legal advisor to the UK’s Foreign Office) and the other from Ashley Deeks (former legal advisor to the U.S. State Department, now UVA Law Prof).

My earlier post offered a simple no-frills reading of the U.N. Charter, building on the simple no-frills reading of the U.N. Charter critics of the Iraq War were fond of making in the Bush years. This was a useful strawman, since I pointed out it would lead to a “silly result.”  Still, I am not totally sold on the more sophisticated rationales offered by Daniel and Ashley.  As far as I know, Syria has not threatened (at least recently) to attack its neighbors. I don’t count its skirmishes with Turkey, which seem in any event to have settled down. It has certainly not threatened use of chemical weapons against Turkey, Israel, or anyone other than the Syrian rebels.  I am just not buying self-defense here, unless we really are back in 2002 and President Bush’s doctrine of preemptive self-defense for WMDs has achieved international consensus.

What is it about chemical weapons that changes the legal calculus? Sure, I realize the use of chemical weapons here is a plain and blatant violation of the law of armed conflict, and really horrible in every way possible.   But as horrible as it is, I wonder why chemical weapons would be the trigger since the casualties from the non-chemical weapons in Syria has been much worse. And what is it about chemical weapons that would per se justify humanitarian intervention, while the mass bombings or killings of thousands of civilians would not?

I am guessing the answer here is going to come from a different path that has nothing (formally) to do with chemical weapons.  Since the U.S. has recognized the Syrian opposition as the legitimate government of Syria, I suppose consent for an intervention can be had without too much trouble. But, this opposition doesn’t exactly have widespread recognition, and doesn’t really control most of the country. Still, it probably is the least difficult legal path.

When President Obama said using chemical weapons would “cross a red line,” he must have had something in mind, unless it was a total bluff.  A unilateral U.S attack is very possible, and may even be desirable.  But legality is going to have to be finessed in ways that critics of the Iraq War should not be happy with.

Game On! ITLOS President Appoints Final 3 Members of Philippines-China Tribunal

by Julian Ku

Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

I have to admit I am a bit surprised that President Yanai did not appoint any arbitrators from East Asia or Southeast Asia. As it turns out, the Annex VII tribunal will have four Europeans, three of whom are currently serving as judges on ITLOS.  Chris Pinto of Sri Lanka will be the only member of the tribunal from Asia (broadly defined).  I would have appointed a Chinese national and a Philippines national, which would be in keeping with the tradition of many other interstate arbitrations.

It turns out that I had the opportunity to meet Philippines Solicitor General Jardeleza, who is spearheading the Philippines arbitration team, just yesterday at an event sponsored by the U.S.-Asia Law Institute at New York University.  I got some great insights in to the strategy behind the Philippines’ decision to pursue arbitration, which I hope to share in a later post.  But for now we can say that the arbitration is going to happen, for sure.

If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

(Emphasis Added).  So the tribunal has a legal duty to consider the jurisdictional issue seriously and to ensure that the Philippines’ claim is well-founded.  No “default” judgments can be issued here (Nor would that be in the interest of the Philippines anyway).

Weekday News Wrap: Thursday, April 25, 2013

by Jessica Dorsey

Kiobel Insta-Symposium: Settlement, Discovery and Kiobel

by Milan Markovic

[Milan Markovic is an Associate Professor of Law at Texas Wesleyan University School of Law.]

When the Supreme Court originally granted certiorari in Kiobel, many feared that it would bar ATS suits against corporations entirely.  The Supreme Court’s actual decision bars ATS claims that do not “touch and concern” United States territory.  I tend to agree with Marty Lederman that there are at least three categories of ATS cases that might survive Kiobel, but even if Kiobel requires substantial conduct on U.S. territory, the decision should not alter the playing field between ATS plaintiffs and defendants in a meaningful way.

Because of the high profile nature of ATS cases, few, if any, corporate defendants wish to be drawn into protracted litigation concerning their complicity in human rights violations.  They are especially motivated to avoid expensive and potentially embarrassing discovery.  Many defendants will consider settling if they cannot prevail on a motion to dismiss.  Corporate defendants have prevailed in many ATS cases, but as the U.S. Chamber of Commerce’s press release in response to Kiobel intimates, they have generally incurred substantial costs to do so.

ATS complaints post-Kiobel are likely to focus on actions that are undertaken in the United States.  Without the benefit of discovery, however, plaintiffs cannot know the full extent of a defendant’s activities.  For example, a plaintiff may be able to allege that serious human rights violations in a foreign country were financed from the United States.  This in and of itself might not be sufficient to rebut the presumption against extraterritoriality, but further discovery might reveal other activities of the kind referenced in Roger Alford’s post.   It is not clear whether Kiobel was dismissed under F.R.C.P. 12(b)(1) or 12(b)(6), but under either standard, plaintiffs will not be required to demonstrate without discovery that the conduct on U.S. territory was of sufficient force to displace the presumption against extraterritoriality.   Under the former, ATS plaintiffs will most likely have to plead a prima facie case of a substantial nexus with U.S. territory and will be generally entitled to limited jurisdictional discovery whereas under the latter they must state only a plausible claim of such a nexus.

Kiobel would be a Pyrrhic victory if, to dismiss ATS claims, corporate defendants must have their officers and directors sit for depositions to determine to what extent they contributed to human rights violations abroad.  Some of these individuals might be located in the United States but also have formal or informal roles in the entities that are most connected to the alleged violations committed abroad.  It is not uncommon for there to be a great deal of overlap among the boards and management teams of a multinational corporation’s subsidiaries.

After the Supreme Court applied the presumption against extraterritoriality in Morrison, plaintiffs filed more cases against foreign defendants under the Exchange Act.  While Kiobel will change how ATS claims are pleaded and may make it more difficult for plaintiffs to ultimately prevail, the decision hardly bars ATS plaintiffs from pursuing claims against corporations that are “merely present” in the United States, and the prospect of even limited discovery regarding whether ATS claims “touch and concern” the United States will lead a substantial number of corporate defendants to prefer settlement to further litigation.

Kiobel Insta-Symposium: A More Positive Outlook for International Law

by Austen Parrish

[Austen Parrish is the Interim Dean and a Professor of Law at Southwestern Law School in Los Angeles.]

With Kiobel, the general mood among those in the human rights community is pessimistic. Because it curtails use of the Alien Tort Statute, viewing the decision as a loss is tempting. From this perspective, Kiobel is another indication that the Court continues to reinvent itself with a particular brand of conservative activism, the U.S. remains hostile to international law and its institutions, and corporate interests have won out over the protection of individuals. For others, the Court’s finding that the Alien Tort Statute does not redress claims of human rights violations by foreigners against foreigners on foreign soil is scratched up as win on the side of those pushing for tort reform, for those who believe there is too much litigation in the United States,  and for those who courts, as un-elected institutions, need to be carefully watched and constrained in the area of foreign affairs.  While those of a more conservative orientation have celebrated the case as ending litigation “run amok,” the reaction among many concerned with protecting human rights has been to decry the result and paint the case as a setback.

But there’s a different way to describe the case than these two narratives: one that’s more positive for international law and its institutions.  Viewed through a different lens, Kiobel is a case about whether the United States should privilege unilateralism over multilateralism, and whether it prefers international over pluralistic approaches to global governance.  The case may signal a modest retreat from a failed strategy of aggressive American unilateralism (viewed by other countries as illegitimate and legal imperialism) that has taken root in a number of public and private law contexts. In this way, to the extent Kiobel helps to inter unilateral regulation of foreigners for conduct occurring abroad – not just in ATS cases, but also in a wide-range of other contexts –  the case is not a setback for international law or human rights, but rather a vindication of them.   To reach this conclusion, one must believe that international law should generally be advanced through multilateral consensus, rather than unilateral means.  Unilateral extraterritorial regulation of the foreign-cubed variety, where one state purports to dictate conduct in another state’s territory, is in tension with international norms and basic principles of democracy.  It’s also a perspective that believes human rights become universal not through some sort of predetermined inevitability, but only through careful building of alliances and legitimacy between different groups joined in purpose.  The concern therefore should not be that U.S. courts will become the world’s courts.  Rather it’s that any court, in any nation, can assert authority to right what it perceives to be the world’s wrongs.  If human rights involves contested ideals, it’s unclear that the human rights community should desire that sort of pluralistic experimentation.  While we may be comfortable with a U.S. court developing human rights norms, there’s a significant question whether other courts will develop human rights tendentiously or not, or whether those conceptions of human rights will be more illiberal and non-western, or at least different than ours.

Through this lens, Justice Breyer’s concurrence takes on greater meaning than Chief Justice Roberts’ opinion or even Justice Kennedy’s.  The Roberts opinion was hardly surprising.  It tracked what the Court had done in Morrison and how the Court’s more conservative justices had generally interpreted the presumption against extraterritoriality.  Commentators may disagree whether the use of the presumption was doctrinally correct, but the opinion was broadly consistent with how other jurisdictional statutes have previously been interpreted.  Rarely has the Court found that Congress intended to use all the power granted to it under international law or the U.S. Constitution (see, e.g., the interpretations of the…

Weekday News Wrap: Wednesday, April 24, 2013

by Jessica Dorsey

Kiobel Insta-Symposium: Closing Avenues for Relief

by Beth Stephens

[Beth Stephens is a Professor at Rutgers Law]

As a late-arrival to this Insta-Symposium, I find that many of my thoughts about the Kiobel opinion have already been expressed. Corporate defendants won an important victory in Kiobel, at least for foreign corporations with no more than a “mere corporate presence” in the United States. I had not predicted that the justices would be unanimous in rejecting the ATS claims in this case. But in the most important aspect of the decision, I’m not surprised that we fell just one vote short. Had Justice Breyer been in the majority, I would have found his list of factors permitting ATS cases to be a workable compromise. Since the Supreme Court has changed dramatically over the course of my legal career, I’m no longer surprised to lose cases by one vote. We all predicted that Justice Kennedy would provide the key vote, and the good news is that his short separate opinion left the plaintiffs’ side much to work with going forward.

I particularly appreciate Marty Lederman’s analysis of the divisions within the majority. As he points out, Justices Kennedy, Alito, and Thomas all stated that the decision left significant issues unresolved. The actual holding of the case is quite narrow. Many cases were stayed pending a decision in Kiobel, and I expect that lower courts will come to divergent decisions about which pending cases are still viable. Those disagreements may well require further Supreme Court review. For those of us who are litigators and scholars working in this area, that may be an interesting prospect. But for clients on both sides of these cases, it could be a disaster: years of litigation ahead, including in cases that have already been pending for years.

In this new post-Kiobel legal framework, I join with the contributors who have pointed to state courts as a likely venue for cases that can no longer be litigated in federal court. Most ATS cases have included related state law claims, and some have already been litigated in state courts. Doe v. Unocal, for example, was refiled in a California state court after a federal district court dismissed the ATS claims. The state court litigation continued while the Ninth Circuit heard the appeal, and the state case had been set for trial when the parties settled all of their claims.

Legal doctrine aside, I’ll take a moment to be cranky. Some members of the corporate bar are crowing about the resounding defeat of rapacious trial lawyers who used these cases to shake down virtuous multinational corporations. Let’s be real. Who has made more money from ATS litigation over the past 33 years: plaintiffs, plaintiffs’ lawyers, or defense lawyers? (I assume I don’t need to provide an answer to that rhetorical question.) If there was a moment in which private lawyers thought that filing ATS cases was a route to easy money, they were soon disabused of that notion. Plaintiffs’ attorneys have litigated most of these cases for years without payment — often with no possibility of collecting any fees.

I’ll throw out another question, which is surely more important than my thin-skinned crankiness: Is the world, or even the U.S. legal system, a better place as a result of this decision? I assume that we all recognize that some corporations around the world do bad things, along with their many good or neutral activities. I assume that we all agree that people who are hurt by an evil-doing corporation should have a means to seek relief, somewhere. But it must be apparent to all of us that the global legal system has no effective mechanisms to provide remedies to those who are injured by multinational corporations, hold accountable corporate bad apples, or deter future bad deeds. It may not be the obligation of the U.S. legal system to offer such relief, and it is certainly not the obligation of legal scholars or litigators to assume responsibility for the flaws of the global legal system. But perhaps we might pause for a moment to honor the people around the world who have been maimed and killed by above-the-law corporations, some of whom have just lost their only chance to obtain a remedy, before we proceed with our legal analysis of the Supreme Court’s Kiobel decision. In the absence of workable alternatives, I favor the pre-Kiobel world.

Kiobel Insta-Symposium:The Pyrrhic Victory of the Bush Administration Position in Kiobel

by William S. Dodge

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

My friend John Bellinger over at Lawfare can rightly claim credit for keeping the extraterritoriality issue before the Supreme Court in Kiobel. Indeed, the Supreme Court’s conclusion that “principles underlying” the presumption against extraterritoriality apply to claims under the Alien Tort Statute (ATS) represents a victory for the Bush Administration’s legal position in ATS cases, an administration John served with distinction.

That Bush Administration legal position, however, marked a sharp break with past positions of the United States Government regarding extraterritorial application of the ATS. In 1980, the Carter Administration argued in Filartiga v. Pena-Irala that the ATS reaches claims by one alien against another alien for torture committed abroad. Indeed, the United States said that “a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.” In 1995, the Clinton Administration successfully supported application of the ATS to foreign non-state actors for human rights violations abroad in Kadic v. Karadzic, a decision that opened the door to the wave of corporate cases that shortly followed. Even the intervening Reagan Administration did not take the position that the ATS did not apply to conduct abroad.

It was not until 2004 that the United States argued for the first time, in Sosa v. Alvarez-Machain, that the ATS did not apply extraterritorially. The extraterritorial nature of claim in Sosa could hardly have escaped the notice of the Court, since the parallel Federal Tort Claims Act suit against the United States was dismissed under the FTCA’s foreign country exception. Yet not a single Justice in Sosa adopted the Bush Administration’s extraterritoriality position, and there are many parts of the Sosa opinion that only make sense on the assumption that the ATS applies to conduct abroad. Undaunted, the Bush Administration continued to press the extraterritoriality argument in nine nearly identical briefs filed between 2004 and 2008. Not a single appellate court adopted the argument—and many expressly rejected it. Not a single appellate court, that is, until the Supreme Court in Kiobel.

But upon reflection, there is also less to the victory of the Bush Administration’s position in Kiobel than meets the eye. Part IV of the Court’s opinion, coupled with Justice Kennedy’s observation that the opinion “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute” and Justice Alito’s complaint that Kiobel “leaves much unanswered,” is a recipe for continued litigation. The Court’s observation that “it would reach too far to say that mere corporate presence suffices” should send chills down the spines of corporations domiciled in the United States (and their general counsels). Nor is the Court’s grant of certiorari in DaimlerChrysler AG v. Bauman likely to bring greater clarity. Although that case arose in the context of an ATS suit, the only issue on appeal concerns personal jurisdiction over a foreign company—an important issue to be sure, but one largely unrelated to the ATS and of little help to U.S. companies.

Chief Justice Roberts’s opinion in Kiobel invites Congress to clarify its intent with “a statute more specific than the ATS.” Congress did something similar in 1992 when it passed the Torture Victim Protection Act, authorizing civil claims for torture and extrajudicial killing abroad, while incorporating substantive definitions and procedural safeguards. The human rights and business communities would be well advised to seek common ground on a reasonable statute. The alternative would seem to be decades more litigation to answer the questions that Kiobel leaves open.

The ICJ’s One Clear Advantage over the U.S. Supreme Court

by Julian Ku

Longtime readers know that I have often criticized (unfairly in many readers’ eyes) the snail’s pace of dispute resolution before the International Court of Justice.  I respect the ICJ as an institution, but I have never thought it has lived up to its potential as the “principal judicial organ” of the United Nations.  On the other hand, I will give credit where credit is due.  Unlike the U.S. Supreme Court, which is still battling over whether audio recordings of its oral arguments can be distributed live, the International Court of Justice has done a nice job putting video of its oral hearings online.  Like the International Tribunal for the Law of the Sea, the ICJ is not shy about putting videos online for the world to see and gape over.

Now, like the U.S. Supreme Court oral arguments, these arguments are not exactly the stuff of thrilling drama.  I admit I did not make it through the entire six hours of video on the recent Cambodia-Thailand Temple of Preah Vrear case (I made it through about six minutes, to be honest).  But it helps everyone who studies or practices before the ICJ, or simply wants to understand the ICJ, to be able to see the various submissions, the different orders, and the oral arguments, and the final judgment online.

Indeed, the ICJ arguments (video here) in the Temple of Preah Vrear case is getting pretty good play in Thailand, if these articles in the English language Thai paper The National are any indication (all of the top articles at this hour are about the ICJ hearing).  Indeed, one of the Thai government’s attorneys, Alina Miron, an associate of Thai counsel Alain Pellet, has become a social media celebrity in Thailand due solely to her performance during the oral argument.  It was the quality of the arguments, to be sure, but I have a feeling the fact that her personal appearance may have also made her a star.

Obviously, turning our attorneys or justices into celebrities is not important, but even so, the US Supreme Court could take a lesson from the ICJ here.  Sure, it may be impressive to shroud your processes and arguments in obscurity to make it seem more mysterious, but I don’t think it serves the long term interests of the institution.  Let the cameras in!

Kiobel Insta-Symposium: Piracy – Not Just Kiobel’s Analogy

by Roger Phillips

[Roger L. Phillips is an international criminal law practitioner. He also maintains Communis Hostis Ominum, a blog about maritime piracy. This post is cross-posted there.]

The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of “cross-border” conduct that could clarify this issue. Indeed, two piracy cases will imminently arrive at SCOTUS’ courthouse steps.

The piracy statute 18 USC 1651 shares much in common with the Alien Tort Statute: both were passed in the same time frame and both have reference to “the law of nations.” The presumption against extraterritoriality applies to 18 USC 1651. However, the plain language of the piracy statute and its historical context clearly rebut the presumption for all conduct that occurs on the high seas. Further, neither the victim nor the defendant need be American (U.S. v. Klintock). That said, there remains an important subset of piracy cases that involve conduct both on the high seas and within the territory of another sovereign: acts of aiding and abetting piracy through financing or negotiating ransoms for acts of piracy; or recruiting of child pirates.

In US v. Shibin (4th Circuit) and US v. Ali (DC Circuit), currently on appeal, the underlying criminal conduct of hijacking vessels occurred on the high seas. But, the negotiators in these cases only boarded the vessels upon entry into Somali territorial waters. Hence the mixed loci delecti on the high seas and within the territory of another state. Does this type of mixed conduct touch and concern the territory of the United States?

First, the plain language of the piracy statute would not rebut the presumption against extraterritoriality for conduct occurring within the territory of another state (the statute merely applies to conduct on the “high seas”). However, the historical context of the piracy statute indicates that it was intended to prevent impunity for acts of piracy wherever committed. That is why the modern definition of piracy applies to conduct outside the jurisdiction of any state, as well as to the high seas.

Here is where a case-by-case analysis, suggested in Part IV of the Kiobel majority, could be determinative. In Shibin, the defendant is accused of negotiating the ransom of two vessels. The first vessel has a strong nexus to US interests; the victims were American nationals and the targeted vessel was flagged in the US. Although a vessel’s flag does not designate its surface as territory of the sovereign, it is treated in much the same fashion (Lauritzen v. Larsen) which is to say that there are strong domestic interests in exercising jurisdiction over acts of piracy on one’s flagged vessels. But the second course of conduct charged in Shibin involves a vessel with no links to the US apart from a general interest in suppressing acts of piracy. The same is true in Ali. As the district court described the case: “Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship’s Danish owners to pay a ransom for its release.” These latter facts would not prevent the exercise of jurisdiction if the alleged criminal conduct occurred on the high seas. The question is whether aiding and abetting conduct occurring within the territory of another state must touch and concern US interests. If answered in the affirmative, it would curtail the US’s ability to suppress and prosecute acts of piracy, which is contrary to the historical purpose and intent of 18 USC 1651. It would also be inefficient as those who initiate an act of piracy on the high seas and continue acts of piracy in foreign territorial waters could only be prosecuted for the former conduct.

One significant factor Kiobel instructs to consider is the imperative to avoid enmeshing US courts in foreign affairs. In this regard, the specific facts of the Somali cases militate in favour of exercising jurisdiction. For the then Transitional Federal Government (TFG) of Somalia did not have effective control over the territorial waters where these acts of piracy occurred. The UN Security Council authorized States and regional organizations “to undertake all necessary measures that are appropriate in Somalia, for the purpose of…

(More) Spiking the Football on Kiobel

by Julian Ku

In addition to the Ku/Yoo essay in Forbes, I’ll just point out two more positive takes on Kiobel from FOBs (friends of the Blog).

In Lawfare, John Bellinger expresses satisfaction with the Roberts opinion, and takes some credit for raising the presumption against extraterritoriality issue in government briefs during the Bush Administration and in the first round of Kiobel briefing.  He also adds a quick note on Bauman, guessing that the Court will reverse on personal jurisdiction grounds and not reach the ATS issues.

In the WSJ, Eugene Kontorovich of Northwestern Law offers a more sweeping take on Kiobel. My favorite line: “Yet many who think the U.S. should not be the world’s policeman nonetheless want it to be the world’s judge.”  (One question: Is the converse also true?)

The whole essay is worth reading. He also offers a cautionary lesson for academic lawyers, most of whom failed to take the extraterritoriality issue more seriously. 

The unanimous vote in Kiobel also shows how the legal academy and bar tend to underestimate the strength of arguments that they politically disfavor. Foreign-cubed suits had proceeded for decades without any serious questions raised about their propriety. Instead, professors largely cheered them on. Nearly everyone anticipating the Kiobel decision (including myself) predicted a Supreme Court vote starkly divided on ideological lines. Yet all nine justices voted unreservedly in favor of ending ATS suits against foreign corporations….

Weekday News Wrap: Tuesday, April 23, 2013

by Jessica Dorsey

The U.S. Relationship with the ICC Blossoms into a Love Affair?

by Julian Ku

Professor David Kaye has a thoughtful essay in the latest issue of Foreign Affairs analyzing the growing level of cooperation between the U.S. and the ICC.   He correctly notes that the U.S. is not only no longer actively hostile, but it has taken various steps in recent years to actively support the work of the ICC (most notably in Uganda against the LRA).

We’ve already discussed the relationship between U.S. conservatives and the ICC here, and I suspect the future of US-ICC cooperation will depend on the views of U.S. conservatives who can still muster 40 plus votes in the Senate (and may get more soon).  As Kaye notes, there is no prospect of U.S. ratification of the ICC Rome Statute now or in the foreseeable future. And the Palestine investigation that Kevin mentions below is going to return the ICC to the U.S. Congress’ attention in the context of Israeli relations, which is the absolute worst context for the ICC.

I would say the ICC’s only hope of US ratification one day lies in a slow cultural change. Perhaps this new NBC drama “Crossing Lines”  will help.  Then again, since it seems to propose that the ICC will operate with a shadowy investigative team of former cops, I wonder if this might backfire…

Supreme Court Agrees to Hear Another Human Rights Case

by Roger Alford

This time it is about general personal jurisdiction of a foreign parent corporation based on alleged human rights violations of one subsidiary in a foreign country and unrelated activities of another subsidiary within the forum. The question presented in Daimler Chrysler AG v. Bauman is as follows:

Daimler AG is a German public stock company that does not manufacture or sell products, own property, or employ workers in the United States. The Ninth Circuit nevertheless held that Daimler AG is subject to general personal jurisdiction in California—and can therefore be sued in the State for alleged human-rights violations committed in Argentina by an Argentine subsidiary against Argentine residents— because it has a different, indirect subsidiary that distributes Daimler AG-manufactured vehicles in California. It is undisputed that Daimler AG and its U.S. subsidiary adhere to all the legal requirements
necessary to maintain their separate corporate identities. The question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.

Scotusblog and have commentary.

Kiobel Insta-Symposium: Degrees of Territoriality

by Roger Alford

“[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”

That is the operative language in Kiobel. Which raises the question, if mere corporate presence is not enough, what kind and how much territorial activity within the United States is enough? After Kiobel, that will be a critical question for future ATS litigation. Without expressing an opinion on how much is enough, I thought it worth considering the types of activities that might be the subject of future litigation. Here’s a non-exhaustive list:

Execution. In some ATS cases it is alleged that individuals commit international law violations within the United States. Examples include allegations of unlawful conduct within U.S. prisons, immigration deportation centers, or military bases, or conduct within the United States such as sex trafficking or slavery.

Cross-border Conduct. In some ATS cases it is alleged that individuals commit international law violations based on conduct that occurs partly within the United States and partly outside the United States. Examples include cross-border kidnapping, airline hijacking, or piracy within and outside territorial waters.

Planning and Authorization. In some ATS cases it is alleged that individuals located within the United States either plan or authorize an international violation occurring abroad. If the judgment call to conduct an international violation occurred within the United States, is that enough? Examples include the decision to conduct medical experiments without patient consent or the approval within the United States to engage in extraterritorial torture or killings.

Design and Testing. In some ATS cases it is alleged that products known to harm individuals are designed and tested in the United States, but the manufacture and exposure to the product occurs abroad. Examples include the design and testing in the United States of pesticides or medicines known to cause death or blindness, with the manufacture and human exposure of those products occurring abroad.

Training. In some ATS cases it is alleged that individuals are trained within the United States to engage in conduct that would constitute an international law violation. Examples include training to commit acts of torture within the United States, and then committing those acts of torture abroad.

Construction. In some ATS cases it is alleged that products are manufactured within the United States and those products are then used abroad to commit international law violations. Examples include the manufacture of weapons, armor-plated bulldozers, pesticides, etc.

Contracting. In some ATS cases it is alleged that contracts for employment were signed within the United States, and the individuals committed acts abroad pursuant to those contracts that constitute an international law violation. Examples include contracts signed within the United States for nongovernmental security forces, but the performance of those contracts occurring abroad. Another territorial nexus might be a contract executed and performed abroad that has a territorial nexus based on the choice of law clause, such as a New York governing law clause.

Financing and Money Transfers. In some ATS cases it is alleged that the unlawful behavior and injuries occurred abroad but the financing for such conduct was done within the United States or the money used to commit such crimes was transferred through U.S. banks. Examples are too numerous to mention, but include the financing of terrorism or other unlawful conduct.

Electronic Communications. In some ATS cases it is alleged that unlawful conduct and resulting injuries occurred abroad, but the electronic communications with respect to such conduct occurred within the United States. With the root servers located in the United States, any Internet-based electronic communication might satisfy this territorial nexus. Communications conducted through email accounts based within the United States, such as Gmail and Yahoo, might also satisfy this territorial requirement.

Unlawful Gains. In some ATS cases it is alleged that the unlawful conduct and injuries occur abroad, but the benefits that accrue from such unlawful behavior are experienced at home. Examples include profits derived from corporate aiding and abetting government abuse, corporate profits from unlawful labor practices occurring abroad, or extraterritorial sex trafficking or criminal activity with the ill-gotten proceeds accruing at home.

Injury. In some ATS cases it is alleged that the unlawful conduct occurs abroad, but the resulting injuries occur within the United States. Examples include the expropriation of property located abroad owned by individuals located within the United States, poisoning or medical testing abroad with resulting injuries occurring within the United States, or torture or extrajudicial killing of individuals abroad that causes secondary injuries (intentional infliction of emotion distress) to loved ones within the United States.

“Extraterritorial Territory.” In some ATS cases, it is alleged that the unlawful conduct occurs abroad, but there is nonetheless a territorial nexus to the United States. Examples include conduct that occurs on U.S. territories, within U.S. embassies and consulates, on U.S. military bases located overseas, or on U.S.-flagged vessels or airlines.

Obviously, not all of these activities will touch and concern the United States with sufficient force to displace the presumption against extraterritoriality. But these are the kinds of questions that will be the subject of future litigation.

Why Isn’t Bill Keller Being Court-Martialed for Aiding the Enemy?

by Kevin Jon Heller

Two years ago, I wrote a long post analyzing the most serious charge in Bradley Manning’s court martial — aiding the enemy, a violation of Art. 104 of the Uniform Code of Military Justice (UCMJ) and 10 USC 904. I claimed in the post that someone like Bill Keller, the Executive Editor of the New York Times during the WikiLeaks era, could not face similar charges, because the UCMJ applies only to soldiers.

I was wrong.

Here is the text of Art. 104 (my emphasis):

Any person who—

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

The key here is “any person.” Such broad personal jurisdiction is very unusual among the UCMJ’s punitive articles; the only other ones that use it are Art. 83 (fraudulent enlistment in the armed forces) and Art. 106 (spying). All of the other punitive articles have more limited jurisdiction, applying only to “any person subject to this chapter” (such as solicitation, Art. 82) or “any member of the armed forces” (such as desertion, Art. 85). The difference is critical, because it means that a person does not have to be subject to the UCMJ to be subject to court-martial for aiding the enemy. Indeed, both Art. 104 and Art. 2 in the Manual for Courts Martial (MCM) are explicit on that point. Here is the MCM’s explanation of Art. 104 (emphasis added):

Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.

And here is the MCM’s explanation of Art. 2 (emphasis added):

(1) Authority under the code. Article 2 lists classes of per­sons who are subject to the code. These include active duty personnel (Article 2(a)(1)); cadets, aviation cadets, and midship­ men (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members of Reserve components not on active duty under some circumstances (Article 2(a)(3) and (6)); persons in the custody of the armed forces serving a sentence imposed by courtmartial (Article 2(a)(7)); and, under some circumstances, speci­fied categories of civilians (Article 2(a)(8), (9), (10), (11), and (12); see subsection (3) and (4) of this discussion). In addition, certain persons whose status as members of the armed forces or as persons otherwise subject to the code apparently has ended may, nevertheless, be amendable to trial by court-martial. See Article 3, 4, and 73. A person need not be subject to the code to be subject to trial by court-martial under Articles 83, 104, or 106.

There is no reason, then, why Bill Keller could not be court-martialed for aiding the enemy. And indeed, for all the reasons I discussed in my post two years ago, he is no less guilty of that crime than Bradley Manning. Here are the elements of aiding the enemy via communication:

(5) Communicating with the enemy.

(a) That the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy, and;

(b) That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.

If Manning has aided the enemy, so has Bill Keller. The crux of the government’s argument is this (see Specification 1 on the charge sheet): (1) Manning gave classified documents to WikiLeaks; (2) Manning knew that WikiLeaks would publish the documents on the internet; (3) the “enemy” — basically al-Qaeda and its associated forces — had access to the documents on the internet; (4) Manning thus indirectly communicated with the enemy. That argument, however frightening, is unfortunately far from frivolous. The crime does not require any intention to communicate with the enemy, much less an intention to harm the United States; as the MCM commentary says,”the intent, content, and method of the communication, correspondence, or intercourse are immaterial.” Nor does the crime require proof that the enemy actually received the prohibited communication: “[t]he offense is complete the moment the communication, correspondence, or intercourse issues from the accused.”

The government’s argument obviously applies to Bill Keller no less than to Bradley Manning. Indeed, in one respect, the case against Keller is even stronger than the case against Manning. Manning “communicated with the enemy” indirectly: he gave the documents to WikiLeaks; he did not post them on the internet himself. Keller, by contrast, authorized the New York Times to post Manning’s documents on its website, where anyone — al-Qaeda included — could find it. His communication with the enemy was thus direct, not indirect.

To be clear, I am categorically opposed to prosecuting anyone, Bradley Manning or Bill Keller, for “aiding the enemy” in circumstances like these. It is impossible to overstate the chilling effect the government’s argument — that causing intelligence to be posted on the internet qualifies as communicating with the enemy — will have on media freedom. But there is not simply moral equivalence between Manning’s actions and the actions of the New York Times. There is legal equivalence, as well. So if Manning deserves to be court-martialed for aiding the enemy, Bill Keller should be in the dock with him.


Yes, Boston Was an Act of Terrorism (At Least Under One Definition)

by Kevin Jon Heller

In the wake of Obama’s memorable statement, a number of bloggers have questioned whether the Boston bombings deserve to be labeled “terrorism.” Most of those bloggers — such as the excellent Ali Abuminah here — emphasize that many US definitions of terrorism require the violent act in question to be politically or ideologically motivated, which is still an open question with regard to the Tsarnaev brothers’ actions.

I’m sympathetic to this position — and I wholeheartedly agree with Abuminah’s observation that “acts of violence, especially mass shootings, carried out typically by white males, are immediately labeled as the acts of ‘disturbed individuals’ while the acts of a person identified as ‘Muslim’ are to be labeled ‘terrorism’ regardless of the facts.” But it is important to acknowledge that not all definitions of terrorism require a political or ideological motivation — including the one that is most relevant to the Boston bombings, the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which is codified in the US Code at 18 USC 2332f. Here is the international definition:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

And here is the US definition:

(a) Offenses –

(1) In general – Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility –

(A) with the intent to cause death or serious bodily injury,
(B) with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,

shall be punished as prescribed in subsection (c).

The Boston bombings clearly qualify as terrorism under either definition. There is also no question that the Terrorist Bombing Convention applies, because one of the victims of the bombings was a Chinese national. (The Convention excludes acts that take place in one state and involve only nationals of that state.) The US version is a bit more complicated, because 18 USC 2332f requires a bombing to have a substantial effect on foreign or interstate commerce if jurisdiction is predicated — as it would be here — on the fact that the bombing killing a foreign national. But I agree with Bobby Chesney that the bombings almost certainly do have the requisite effect.

Again, I think it’s unfortunate that the label “terrorism” is almost always reserved for violent acts committed by Muslims, even though domestic groups (from right-to-lifers to neo-Nazis) pose a much greater threat to Americans living in the US. But that doesn’t change the fact that setting off bombs in the middle of a marathon does indeed qualify as terrorism.

NOTE: I should add that, as a normative matter, we should restrict the term “terrorism” to violent acts that are politically or ideologically motivated. I think it is precisely the presence of such a motivation that distinguishes terrorism from “ordinary” criminality. Alas, the international community does not seem to agree, at least for certain kinds of weapons.

Weekday News Wrap: Monday, April 22, 2013

by Jessica Dorsey

Why Kiobel’s Rejection of Universal Jurisdiction Matters

by Julian Ku

Our discussion of Kiobel has been fascinating, but it has been focused on the question of what exactly is left of the ATS in the future and what differences exist between the majority opinion and the various concurrences.

In our contribution today to, John Yoo and I focus on Kiobel’s significance in light of the history of ATS litigation.  Building on my earlier post on this subject, we argue that the real significance of Kiobel is its unanimous rejection of an interpretation of the ATS that would grant universal jurisdiction.

The Supreme Court’s unanimous decision last week to dismiss a lawsuit alleging human rights violations by Royal Dutch Shell in Nigeria is already being portrayed as a victory for big corporations over human rights victims. While the decision will allow some multinational corporations to avoid being sued in the United States for business activities overseas, the real significance of the Court’s decision is that it provides a wise example of judicial restraint and deference to the role of Congress and the President to set American foreign policy.

In particular, we argue:

Kiobel’s unanimous rejection of universal civil jurisdiction is thus the most significant part of its ruling. Writing for the Court, Chief Justice John Roberts held that the presumption that U.S. law does not apply to acts outside the territory of the United States should apply to ATS cases. Championed by Justice Antonin Scalia in an earlier 2010 decision involving the reach of U.S. securities laws, this rule forces Congress and not the courts to decide whether to apply U.S. law to foreign activity.

This common sense rule reserves for the political branches the crucial right to weigh the foreign policy consequences of subjecting foreign conduct to U.S. law. It also gives Congress a chance to determine whether it wants to give private plaintiffs the power to enforce such norms or keep it in its traditional home, the President and the executive branch.

So before we all end up in the weeds of interpreting Roberts’ last paragraph and Kennedy’s concurrence, let’s keep in mind the bigger picture.  Nine justices rejected the universal jurisdiction reading of the ATS.  Breyer’s concurrence would have preserved only Filartiga-style safe harbor cases under a weird (or at least creative) version of the protective principle.  This is already a pretty big shift in most observers’ understanding of the ATS, and, in our view, a welcome one.

Events and Announcements: April 21, 2013

by An Hertogen

Calls for Papers

  • We have launched our own call for papers aimed at LL.M, Ph.D and S.J.D. students as well as those practitioners/academics within the first five years post-degree to participate in our New Voices symposium starting in July. The deadline for 200-word abstract submissions is May 1, 2013.

Upcoming Events

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


Saif Gaddafi Gets a New Lawyer (For Now)

by Kevin Jon Heller

The Pre-Trial Chamber has granted the OPCD’s request to withdraw from the case and has appointed the OPCD’s chosen replacement, John RWD Jones QC, to represent Saif until such time as he is either able to choose his own lawyer or the ICC finally rules on Libya’s admissibility challenge. Jones is a fantastic choice — he successfully represented both Oric and Markac at the ICTY, established the Defence Office at the Special Court for Sierra Leone, and is one of the world’s leading extradition scholars and practitioners.

That said, the OPCD’s rationale for withdrawing should give us all pause:

The OPCD submits that an imminent depletion in staffing will disrupt the continuity of Mr Gaddafi’s representation and will significantly affect its ability to fulfil its mandate in a timely and effective manner. The OPCD suggests that replacement of counsel for Mr Gaddafi at this juncture would facilitate a smooth transition in representation and would ensure that new counsel has sufficient time to acquaint themselves with the case in advance of potential appellate proceedings.

Reading between the lines, it seems clear that the OPCD is facing a significant funding crisis. That’s a serious problem, given the critical role the OPCD plays in the overall defence scheme at the ICC.

The OPCD deserves our praise for its advocacy of Saif’s interests — efforts that never wavered, even when Melinda Taylor and her colleagues were illegally and unconscionably detained by the Libyan government. Best of luck to Jones, whom I have no doubt will do an equally superb job.

Weekend Roundup: April 13 – 19, 2013

by An Hertogen

This week on Opinio Juris, it was hard to miss our insta-symposium on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. Ken beat Julian to the punch to break the news and link to the opinions.

The core part of Chief Justice Roberts’ opinion for the Court, on the insufficiency of “mere corporate presence” to displace the presumption against extraterritoriality, can be found in this post by Julian. Roger read this to require that the ATS can only apply to conduct that at least partly takes place within the United States. Julian concluded that instances of corporate civil liability under the ATS are now restricted to very specific, and very unlikely, situations.

A recurring theme in the comments were the many questions that the majority opinion left unanswered, a point that was also raised in Justice Kennedy’s one paragraph concurrence, which Deborah would like to have identified those questions in more detailsThomas Lee and Marty Lederman had a go at developing scenarios in which the presumption against extra-territoriality could be rebutted.

Although Chimène Keitner welcomed how the majority’s opinion may have made the ATS more robust by clearing up some issues, she agreed with other commentators that Justice Breyer’s concurrence took the better conceptual approach. Anthony Colangelo criticised the majority opinion for extending the presumption against extraterritoriality to causes of action, which as part of lex fori are by definition not extraterritorial. Also favouring the Breyer concurrence was John Knox, who was happy to see the presumption against extrajurisdictionality resurfacing. Alex Mills pointed out that by applying a presumption against total extraterritoriality, i.e. in foreign cubed cases, the majority opinion failed to answer conclusively whether the ATS applies when there is some form of territorial hook, and argued that the Breyer concurrence may end up being the more influential one.

Julian pointed out how Justice Breyer’s concurrence essentially read the ATS as an expression of the protective principle used to allocate prescriptive jurisdiction, and expressed surprise that Justice Breyer’s concurrence took a narrower stance than his 2004 concurrence in Sosa.

So, where does this leaves human rights litigation against corporations?  Peter argued how Kiobel does not spell the end for corporate compliance with international human rights obligations while Roger saw a big future in transnational tort litigation and listed seven advantages this approach has over its alternatives. Chris Whytock agreed that human rights litigation in state courts could increase, but pointed to a few barriers to this approach.

Mike Koehler discussed the impact of Kiobel on enforcement of the Foreign Corrupt Practices Act, and Ishai Mooreville discussed why questions of personal jurisdiction would become more important, and why they were only lurking beneath the surface during the Kiobel litigation.

It wasn’t all about Kiobel this week though! Ken wrote about new scholarship, including some of his own, on law and ethics for autonomous weapons systems. Julian discussed reports that Japan is considering to take its dispute with China over the Diaoyu/Senkaku islands to the ICJ, and attracted a lot of comments with his argument that the US could legally bomb North Korea’s missile before it is deployed.

In ICC news, Kevin wrote about comments by Fatou Bensouda about retroactivity when Palestine decides to ratify the Rome Statute and about the start of the construction of the ICC’s permanent home, set to be completed in 2015.

Finally, as always, we listed upcoming events and announcements and provided you with weekday news wraps.

Have a nice weekend!

Kiobel Insta-Symposium: Questions of Personal Jurisdiction Lurk Beneath the Surface

by Ishai Mooreville

[Ishai Mooreville is an attorney at Baker & Miller PLLC, Washington, DC.  His forthcoming article on the 1795 Bradford Opinion regarding the Alien Tort Statute can be found here.]

The opinions expressed in this article belong to the author alone, and the author has not received any compensation from any party for writing this article.

The question of personal jurisdiction over the defendant in Kiobel, which was raised during oral argument and mentioned in passing in Justice Breyer’s concurrence, may have had a significant effect on the outcome of the decision.    But the issue was not before the Court in this case, and had not been raised by the defendant as a reason for dismissal, apart from asserting the defense in their answer to the complaint filed in 2006.

Let’s back up and review the facts.  When Plaintiffs filed their original suit in 2002, they chose to sue only two Shell entities: the Shell parent entity, based in the Netherlands and U.K. (“Shell Europe” for the purposes of this post), and Shell’s Nigerian subsidiary, which allegedly aided and abetted the human rights violations at issue.

However, the District Court Judge dismissed Shell’s Nigerian subsidiary from the case for lack of personal jurisdiction, as it had no minimum contacts with the United States.  Kiobel  v. Royal Dutch Petroleum Co., No. 02-CV-7618, 2010 WL 2507025, at *1 (S.D.N.Y. June 21, 2010).  That left only Shell Europe, whose only presence in the United States (as of the year 2000) was operating an office in New York through which it managed its listing on the New York Stock Exchange.

Shell’s U.S. subsidiary, which clearly would have been subject to…

Kiobel Insta-Symposium: Interpreting “Touch and Concern”

by Roger Alford

A few posts yesterday suggest that the reports of the death of the ATS have been greatly exaggerated. Oona Hathaway argues that “[t]hose celebrating the demise of the ATS may thus find themselves surprised to discover that the end result of the Supreme Court’s decision yesterday may not be the end of the ATS after all, but instead a renewed focus of ATS litigation on U.S. corporations.” Marty Lederman argues that “the language and history of the ATS provide no basis for wholly rebutting the presumption against extraterritoriality; but that there also remain unresolved sets of “significant” cases in which the conduct alleged might be sufficient to “displace[]” the presumption…. [T]he cases most amenable to such displacement would be those in which a U.S. person or corporation is responsible for the violation.”

In both cases they seize on the “touch and concern” language in Section IV of the majority opinion in Kiobel, which states as follows:

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

They seem to suggest that “touch and concern” is not about U.S. conduct, but rather U.S. interests. I respectfully disagree.

One cannot interpret that phrase without looking to pages 17-24 of the Morrison slip opinion. That section of Morrison clearly addresses the question of conduct that partly occurs abroad and partly occurs at home.

Here’s a few choice excerpts from the relevant section of Morrison:

[I]t is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States. But the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case…

“[W]e think that the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States…. Those purchase-and-sale transactions are the objects of the statute’s solicitude. It is those transactions that the statute seeks to “regulate”; it is parties or prospective parties to those transactions that the statute seeks to “protec[t]….”

The Solicitor General suggests a different test, which petitioners also endorse: “[A] transnational securities fraud violates [§]10(b) when the fraud involves significant conduct in the United States that is material to the fraud’s success.” Neither the Solicitor General nor petitioners provide any textual support for this test. The Solicitor General sets forth a number of purposes such a test would serve … [b]ut it provides no textual support for the last of these purposes, or for the first two as applied to the foreign securities industry and securities markets abroad. It is our function to give the statute the effect its language suggests, however modest that may be; not to extend it to admirable purposes it might be used to achieve….

The Solicitor General points out that the “significant and material conduct” test is in accord with prevailing notions of international comity. If so, that proves that if the United States asserted prescriptive jurisdiction pursuant to the “significant and material conduct” test it would not violate customary international law; but it in no way tends to prove that that is what Congress has done….

Section 10(b) reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States. This case involves no securities listed on a domestic exchange, and all aspects of the purchases complained of by those petitioners who still have live claims occurred outside the United States.

In light of Morrison, how should one interpret the Court in Kiobel when it says that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24).” I think the answer can only be that it is a reference to conduct that occurs at least partly within the United States. I say that because the referenced language in Morrison addresses situations in which the presumption applies, but to avoid it being a “craven watchdog” must be reconciled with some U.S. activity. Section IV in Kiobel concerns situations in which there is both territorial and extraterritorial conduct. It is not a backdoor attempt to embrace Justice Breyer’s concurring opinion, or an attempt to convert domestic conduct into domestic interests.

The “significant questions” that remain unanswered by Kiobel are how much and what kind of domestic activity is sufficient to rebut the presumption against extraterritoriality. Consistent with Morrison, those questions must be answered in light of the text, history, and purpose of the statute as interpreted by the Court in Section III of Kiobel.

Weekday News Wrap: Friday, April 19, 2013

by Jessica Dorsey

Kiobel Insta-Symposium: What Remains of the ATS?

by Marty Lederman

At first glance, the Court’s decision in Kiobel appears to portend a significant restriction on Alien Tort Statute jurisdiction—even for suits that allege torture, genocide, or another of what the Court in Sosa called the “modest number of international law violations” cognizable under the ATS, those with “definite content and acceptance among civilized nations” equal to that of the “historical paradigms” (such as piracy and violation of safe conducts) familiar in 1789.

And perhaps that will, indeed, be Kiobel’s legacy.  But perhaps not.  What’s most striking about the collected opinions is that the Justices themselves apparently do not think the decision will necessarily cut off ATS claims in such a comprehensive manner.  Justice Kennedy writes that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”; and even Justices Alito and Thomas acknowledge, with evident regret, that the Court’s opinion “obviously leaves much unanswered” (emphasis added).

What is the “much” that the Court does not answer?  The “number” of “significant” questions that remain unresolved?  If only it were as “obvious[]” as Justice Alito suggests.

To begin with, what legal propositions is it fair to say the Kiobel decision does establish?  Well, it is now settled that where the alleged conduct in question occurred wholly abroad, the mere fact that a corporate defendant has an office in the United States and shares that are traded on a U.S. exchange is insufficient to establish ATS jurisdiction, unless and until Congress amends the statute.  (All nine Justices agree that this is the case where only aiding and abetting is alleged; and I think it’s safe to say that a majority would rule the same way even where the defendant corporation is alleged to be the principal tortfeasor.)

By contrast, all nine Justices agree that there is ATS jurisdiction when, in Justice Alito’s words, “the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.”

But what about cases falling somewhere in between these polar ends?

Tom Lee describes some hypothetical cases that might not be covered by the Kiobel holding, such as where the conduct occurred in a “failed state”; but I doubt such rare hypotheticals are what the Justices had foremost in mind.  (It’s hard to imagine these are the “significant” questions that the decision “obviously” does not answer.)

I can think of at least three more familiar types of cases that the Justices might have had in mind as those that remain “unresolved” by Kiobel:

(i) Cases alleging Sosa-sufficient torts committed overseas by U.S. defendants;

(ii) Cases such as Filartiga, where a foreign defendant uses the U.S. as an effective “safe harbor,” thereby preventing other states from bringing him to justice;


(iii) Cases in which the defendant is alleged to have engaged in conduct in the United States that contributed materially to the violation of a Sosa-sufficient law of nations norm (such as providing active assistance to torture), but where that conduct in the U.S. was not itself sufficient to establish the violation.  (I am not including in this category cases alleging aiding and abetting predicated solely on knowledge by a U.S. corporation of a foreign subsidiary’s bad acts.  Although even that case is not technically resolved by Kiobel, I think it’s safe to predict the Court would not recognize such a claim, most likely on the theory that such general knowledge, and failure to stop the tort, does not satisfy the scienter requirement for a Sosa-qualified claim.)

We can say with some confidence that at least four current Justices (Breyer, Ginsburg, Sotomayor and Kagan) would recognize ATS jurisdiction in many or all cases in these three categories . . . and that, by contrast, two Justices (Alito and Thomas) would not.  What we do not know is whether and in what circumstances one or more of the other three Justices — or future Justices — would recognize ATS jurisdiction in such cases.

The question going forward, then, is whether such claims can satisfy the standard the Chief Justice articulates in the key, final paragraph of the Court’s opinion:  Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application”?

Continue Reading…

Kiobel Insta-Symposium Insta-Roundup

by An Hertogen

With the steady stream of posts on Kiobel in the past 24 hours, you may have lost track of it all. So here is a little insta-roudup with links to all the posts we’ve had so far (there’ll be more in the regular roundup on Saturday).

To start, you can find the opinions here.

Julian posted on Roberts’ opinion, Kennedy’s concurrence (as did Deborah) and Breyer’s concurrence. He also provided his quick take and discussed the end of universal civil jurisdiction. Looking at the future, Peter wrote on how human rights will survive Kiobel and Roger on the rise of transnational tort litigation.

We also have a series of guest posts by Thomas Lee, Anthony ColangeloJohn Knox, Chimène Keitner, Mike KoehlerAlex Mills and Chris Whytock.

There is more to come, and remember, we welcome unsolicited submissions by young academics who wish to contribute to our insta-symposium.

And if you want to refresh your memory, the posts from our roundtable when Kiobel was reargued in October 2012 can be found here.

Kiobel Insta-Symposium: After Kiobel: Human Rights Litigation in State Courts and Under State Law

by Christopher A. Whytock

[Christopher A. Whytock is a Professor of Law and Political Science at UC Irvine School of Law]

I do not think the Court’s opinion in Kiobel means that ATS litigation in federal courts is going away any time soon.

First, make no mistake, the “presumption against extraterritoriality” applied by the Court in Kiobel is a new creation that is likely to give rise to further litigation.  In at least three ways, the new presumption is different from the Morrison-style presumption used by the Court to determine whether a federal statute applies abroad: (1) the coverage of the new presumption is different (it covers recognition of causes of action under the ATS), (2) the new presumption can be overcome on grounds not available for the Morrison version of the presumption (e.g., if “the claims touch and concern the territory of the United States . . . with sufficient force to displace the presumption”), and (3) a case-by-case analysis seems necessary to determine whether the new presumption is displaced (see my comments on Tom Lee’s earlier post).  I agree with Anthony Colangelo that the creation of this new presumption is a bit of a “strange move,” and I think it creates more problems than it solves (as evident in the analytical tension I pointed out between Parts III and IV of Chief Justice Roberts’ opinion).  These problems may take many more years of federal ATS litigation to figure out.

Second, the door still appears open for ATS claims against U.S. corporations and other defendants with sufficient presence to subject them to general jurisdiction under Goodyear v. Brown (decided after the Kiobel case was originally filed), even when the claims arise out of extraterritorial conduct (see my comments on Julian Ku’s earlier post).

That said, the Kiobel decision obviously imposes significant new limits on ATS litigation in the federal courts.  I therefore agree with Roger Alford (and with Trey Childress) that there may be a new wave of human rights litigation in U.S. state courts in the form of transnational tort claims.  Roger’s post does an excellent job outlining the attractions of the state court transnational tort approach.  And, as Paul Hoffman and Beth Stephens remind us in a recent article, human rights claims have been litigated in state courts for decades.

But there are also potential barriers to this approach, which Trey, Michael Ramsey, and I discuss in After Kiobel: International Human Rights Litigation in State Courts and Under State Law, our foreword to a special issue of the UC Irvine Law Review on Human Rights Litigation in State Courts and Under State Law that just came out:

  • Personal Jurisdiction: In Goodyear v. Brown, decided in 2011, the Supreme Court limited the scope of general jurisdiction over corporate defendants.  This limitation is as much of a barrier in state courts as in federal courts.
  • Immunity and Act of State Doctrine: Foreign sovereign immunity and the act of state doctrine likewise impose limits in state courts as well as federal courts.
  • Removal: A defendant sued in state court may be able to remove the case to federal court.
  • State Forum Non Conveniens Doctrines: States have their own versions of the forum non conveniens doctrine that defendants can and do rely upon to seek dismissal of transnational tort claims.
  • Preemption: Federal foreign affairs preemption and other constitutional limits on state involvement in international matters may also pose barriers to human rights litigation in state courts and under state law—potentially even if styled as transnational tort claims.

As Roger notes, another issue is choice of law.  Different states use different choice-of-law methods to determine whether domestic law or foreign law provides the rule of decision in transnational tort cases.  Traditionally, American courts applied

Kiobel Insta-Symposium: A Tale of Two Presumptions

by Alex Mills

[Dr. Alex Mills is a Lecturer in the Faculty of Laws at University College London.]

Although the Kiobel Court finds unanimously for the respondents, it is nevertheless predictably split (between the opinion of the Court, written by Chief Justice Roberts, and the concurrence led by Justice Breyer) when it comes to the reasons underlying that decision. One way of characterising this split is as a competition between two presumptions (as also noted previously by Anthony Colangelo and John H Knox in this ‘Insta-Symposium’).

The first, the apparent foundation of the opinion of the Court in Kiobel, is the application to the Alien Tort Statute of the ‘presumption against extraterritoriality’, most recently articulated by the Supreme Court in its 2010 Morrison decision. The opinion of the Court finds that the presumption “applies to claims under the ATS, and that nothing in the statute rebuts that presumption” (p.13). On this basis the ATS is determined (as discussed further below) not to apply to the facts of Kiobel, in which “all the relevant conduct took place outside the United States” (p.14), and the only connection with the United States was the “mere corporate presence” (p.14) of the respondents.

The second, which finds a more implicit support in the Breyer concurrence, is the presumption against breach of international law – often known as the ‘Charming Betsy’ doctrine after the 1804 Supreme Court decision. One particular application of this presumption is that statutes should be interpreted not to violate international law’s jurisdictional rules (this has thus been called the ‘presumption against extra-jurisdictionality’) – that is, that statutes should be presumed only to assert prescriptive jurisdiction where that assertion would be acceptable under international law. These include not only assertions of jurisdiction over conduct within a State’s own territory, but also over conduct of its nationals wherever occurring, in protection of its nationals wherever located, and in protection of a State’s essential national interests. As discussed further below, these criteria are readily (if slightly roughly) recognisable as the limitations which Justice Breyer et al would apply to the ATS – under their approach the ATS is thus interpreted as constrained by these recognised jurisdictional grounds under international law.

So why should one of these presumptions be adopted over the other? If the concern is avoidance of “unintended clashes between our laws and those of other nations which could result in international discord” (Roberts opinion, p.4, quoting EEOC v. Arabian American Oil Co), then clearly the presumption against extraterritoriality is the more cautious option. It is simply true that US law is less likely to conflict with the law of foreign States if it does not purport to regulate events outside US territory. But there is a self-denialism in such restraint, curiously difficult to reconcile with the US history of expansive interpretation of international law’s extraterritorial jurisdictional rules (most notably through the effects doctrine). Many States exercise jurisdiction on the basis of the nationality or protective principles, including over conduct occurring in the United States, and US restraint in exercising such jurisdiction hardly seems likely to persuade other States not to exercise their rights. The fact that these jurisdictional grounds are accepted in international law also means that States have implicitly accepted a limited possibility of regulatory conflict – making a collective policy decision that the potential for conflict in overlapping regulation is outweighed by its benefits. A broadly-applied presumption against extraterritoriality presumes (in the absence of indications to the contrary) that Congress does not wish to exercise regulatory power which it is widely agreed that Congress can exercise as a matter of US and international law. This is a highly debatable presumption – indeed, if one overriding policy concern here is “the danger of unwarranted judicial interference in the conduct of foreign policy” (p.5), this seems ironically like the Supreme Court attributing (or even dictating) a foreign policy conservatism to Congress.

But there is a perhaps even more significant issue with the Roberts approach, which is what it leaves undecided – as noted particularly in Justice Kennedy’s pivotal concurrence, as well as the Breyer opinion. While Part III of the Roberts opinion appears to argue that the ATS must conclusively be interpreted as not applying extraterritorially, Part IV appears to take a critical step ‘backward’ in concluding that it is only the facts of this case which are not subject to the ATS, providing only that where other claims “touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application” (p.14). Despite initial appearances, the ATS has thus not definitively been interpreted to have no extraterritorial effect, but rather, it has only been interpreted as not extending extraterritorially in the circumstances of Kiobel – that is, to purely extraterritorial ‘foreign cubed’ cases. This is not a presumption against any extraterritoriality, but only a presumption against total extraterritoriality. As the Breyer opinion notes, the Roberts opinion’s reliance on the presumption against extraterritoriality “offers only limited help” (p.5) in interpreting the ATS, and “leaves for another day” (p.6) the question of when the ATS might nevertheless have some extraterritorial effect, and subject to what limits.

One possible source for these guidelines remains, of course, the Charming Betsy doctrine, and its presumption of compliance with international law’s jurisdictional limitations. Thus, the ATS might still properly be interpreted as applying not only to events in US territory, but also to the conduct of US ‘nationals’ (which may extend not only to US companies but also

Kiobel Insta-Symposium: The Impact of Kiobel on FCPA Enforcement

by Mike Koehler

[Mike Koehler is an Assistant Professor of Law at Southern Illinois University School of Law and the author of the FCPA Professor website. This contribution is cross-posted on Professor Koehler’s site.]

Yesterday, the Supreme Court released its long-awaited opinion in Kiobel v. Royal Dutch Shell Petroleum.

The precise issue before the court was “whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute (“ATS”), for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

The opinion, authored by Chief Justice Roberts, holds that “the presumption against exterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.”

Accordingly, the court in a unanimous opinion (several justices authored concurring opinions) affirmed the Second Circuit’s dismissal of a lawsuit brought by a group of Nigerian nationals residing in the United State who filed suit in federal court against certain Dutch, British, and Nigerian corporations, alleging that the corporations aided and abetted the Nigerian government in committing violations of the law of nations in Nigeria.

This post analyzes the impact of Kiobel on FCPA enforcement.

While the ATS and Foreign Corrupt Practices Act are separated by 188 years in terms of enactment, the statutes have often being viewed by some as siblings, or at least distant cousins within the same family.

However, it is important to grasp that the ATS and FCPA are very different statutes in very material ways.

The jurisdictional issue the Supreme Court addressed in Kiobel – whether the canon of statutory interpretation known as the presumption against extraterritorial application – was necessitated because the ATS was silent on the jurisdiction issue. Indeed, Chief Justice Roberts stated that the canon “provides that when a statute gives no clear indication of an extraterritorial application it has none” (emphasis added).

In contrast, the FCPA is explicit as to its jurisdictional scope and provides as follows depending on the category of person (legal or natural) subject to the law’s anti-bribery provisions.

As to U.S. persons (legal or natural) the FCPA provides for two types of jurisdictional. The original statutory standard was (and is still part of the law) “use of the mails or any means of instrumentality of interstate commerce corruptly in furtherance” of a bribery scheme. However, in 1998 Congress amended the FCPA to also provide for so-called nationality jurisdiction as to U.S. persons. 15 USC 78dd-1(g) and 78dd-2(i) specifically state, in pertinent part, as follows: “It shall also be unlawful for [any issuer organized under the laws of the United States or for any United States person] to corruptly do any act outside the United States in furtherance [of a bribery scheme] irrespective of whether such [U.S. person] makes uses of the mails or any means or instrumentality of interstate commerce in furtherance [of the bribery scheme]. In short, as to U.S. persons, in 1998 Congress explicitly amended the FCPA to provide for extraterritorial jurisdiction thus negating the need for reference to the canon of statutory interpretation at issue in Kiobel.

As to foreign issuers subject to 78dd-1 of the FCPA (i.e. foreign companies with shares registered on U.S. exchanges or otherwise required to file periodic reports with the SEC), the 1998 amendment found in 78dd-1(g) did not apply to such companies. It can thus be inferred that Congress did not intend for the extraterritorial provisions of the 1998 amendments to apply to such entities. Here again, the need for the canon of statutory interpretation at issue in Kiobel is negated. For such foreign issuers, the FCPA explicitly provides only territorial jurisdiction as stated above.

As to persons other than U.S. persons (legal or natural) or foreign issuers, the FCPA was also amended in 1998 to create an entire new category of “person” subject to the FCPA’s anti-bribery provisions. See 78dd-3. This category applies to non-U.S. actors and non-foreign issuers such as foreign private companies and foreign nationals. This FCPA prong has explicit jurisdictional provisions. 78dd-3(a) states, in pertinent part, that it shall be unlawful for “any person” other than an issuer or domestic concern (that is a U.S. “person”) ”while in the territory of the United States, corruptly to make use of the mails or any means or instrumentality of interstate commerce or to do any other act in furtherance [of a bribery scheme.” Here again, because the FCPA is explicit, the need for the canon of statutory interpretation at issue in Kiobel is negated.

Just because the canon of statutory interpretation at issue in Kiobel is not directly applicable to the FCPA, it does not follow that Kiobel will not have…

Weekday News Wrap: Thursday, April 18, 2013

by Jessica Dorsey

Kiobel Insta-Symposium: The ATS After Kiobel: Less Bark but More Bite?

by Chimene Keitner

[Chimène Keitner is Professor of Law, University of California Hastings College of the Law.]

The Kiobel majority concludes that the plaintiffs in that case impermissibly sought to extend a U.S. cause of action to foreign conduct by foreign companies against foreign victims (even though the victims subsequently became lawful U.S. residents). It dismisses the historical practice of allowing suits for transitory torts (which I have explored in more detail here) by reasoning that the cause of action in ATS cases comes from U.S. law, not foreign or international law (the latter of which does not provide “causes of action” as such). As the first part of the majority’s opinion acknowledges, the presumption against extraterritoriality cannot apply in a literal fashion to the ATS, because the statute is “strictly jurisdictional.” The majority opinion deals with the hybrid quality of ATS claims (which translate certain clearly defined international norms into federal common law causes of action) by treating ATS claims like any other claim brought under a federal statute. This departs from the majority’s approach in Sosa, which took the more nuanced position that federal courts do not “lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” Under Kiobel, federal courts have not lost “all” such capacity, but they appear to have lost much of it, contrary to what the Sosa majority believed was the intention of the First Congress, and contrary to the (in my view) more conceptually defensible approach in Justice Breyer’s concurrence, which has also been endorsed by Anthony Colangelo and John Knox in this OJ symposium.

The majority’s “narrow approach” leaves a number of specific questions open, but it also resolves a few broader issues that are likely to arise in future cases. Under the majority’s reasoning, there should be no Article III problem with remaining ATS suits, because the ATS applies (and thus “arises under”) federal law. It follows that U.S. law will govern various aspects of the claim, including the standard for accomplice liability (i.e., knowledge), and the availability of corporate liability and punitive damages. In that sense, the Kiobel decision has left us with a geographically truncated, but perhaps substantively more robust, ATS. ATS claims (including those against foreign defendants that, in Justice Kennedy’s words, are “covered neither by the TVPA nor by the reasoning and holding of today’s case”) may be brought against individuals and against corporations, where there is a greater connection to the forum than the defendant’s “mere corporate presence” in the United States. Several such claims are currently making their way through the appellate courts.

Kiobel Insta-Symposium: A Presumption Against Extrajurisdictionality Resurfaces

by John Knox

[John H. Knox is Henry C. Lauerman Professor of International Law at Wake Forest University School of Law]

As Anthony Colangelo has already noted, the fundamental difference between the majority and the Breyer concurrence in Kiobel is that the majority opinion applies a presumption against extraterritoriality, and the Breyer concurrence a presumption against extrajurisdictionality.  Kiobel illustrates how stark the difference can be.  The majority’s refusal to allow ATS suits for torts beyond U.S. territory is likely to result in the dismissal of most ATS litigation.  The concurrence’s approach would allow the great majority of pending ATS suits to continue, as long as they did not extend beyond certain accepted bases for legislative jurisdiction under international law.  (Justice Breyer specifies the two most important bases, territory and nationality, and adds a third – a substantial and adverse effect on “an important American national interest” – that would appear to include not only protective jurisdiction and some types of jurisdiction based on effects, but also, as he makes clear, universal jurisdiction for a limited set of crimes constituting the modern equivalents of piracy, such as torture and genocide.)

As Anthony says, the Breyer concurrence more or less adopts his suggestion, which is to use international principles of jurisdiction in interpreting laws “designed to implement international substantive law,” such as the ATS.  I think that the Breyer concurrence ’s approach is also consistent with a more general use of the presumption against extrajurisdictionality in interpreting all federal laws, which I described three years ago in the AJILKiobel again illustrates the superiority of a canon linked to international jurisdictional norms to one based on a strict presumption against extraterritoriality.

Although the presumption against extraterritoriality has become the more commonly cited canon, the presumption against extrajurisdictionality is the one with the longer history.  An early offshoot of the Charming Betsy canon, it emerged in the piracy cases of the early nineteenth century (such as United States v Palmer) that are now erroneously cited as the first uses of the presumption against extraterritoriality.  The presumption against extraterritoriality branched off from the earlier presumption in the twentieth century, and attained its current pride of place only after being promoted by the conservative justices on the Supreme Court in a series of decisions since the late 1980s.  Over the same period, the presumption against extrajurisdictionality was reduced to lurking in the margins of Supreme Court opinions.

It deserves greater attention.  Two of the Court’s principal justifications for the presumption against extraterritoriality are predictability (which it cited in Morrison in 2010) and the avoidance of foreign conflicts (cited in Kiobel).  But predictability is obviously not served by overturning decades of settled jurisprudence from federal appellate courts, as the Court has now done for the second time in three years.  And while foreign governments may well be uneasy about assertions of universal civil jurisdiction for all human rights violations, there is no reason to believe that the concurrence’s limited bases for jurisdiction in accordance with international law would cause the same types of problems.

Let’s be clear:  the real motivation underlying the Court’s use of the presumption against extraterritoriality is the conservative justices’ dislike of the aggressive use of federal law, which the presumption gives them a convenient tool to restrict.  The concurring opinion shows that there is another approach, one that I hope a future Court will follow in construing the ATS and, beyond that, other federal laws.   

Kiobel Insta-Symposium: The Death of the ATS and the Rise of Transnational Tort Litigation

by Roger Alford

The ATS as we know it is dead. I predicted as much in October, but I was uncertain whether the Supreme Court would deliver a mortal blow and by what means it would deliver it. Now we know. The presumption against extraterritoriality, combined with a narrow interpretation of territoriality, means that the Filartiga human rights revolution is essentially over. Other posts this week will discuss whether the ATS has a future after Kiobel, but that is simply a search for a silver lining in what is, for plaintiffs, otherwise a dark and ominous thunderstorm that has destroyed an entire cottage industry.

What now? Obviously there is the Torture Victim Protection Act (TVPA), which may be sufficient for some causes of action. But per Mohamed v. Palestinian Authority, such causes of action are only available against natural persons. No corporate claims may be brought under the TVPA, and claims against corporate officers will struggle to overcome the Iqbal/Twombly pleading standards.

Others will argue that the ATS survives as long as there is some territorial nexus. This may mean that the old American Banana and Sisal Sales standard applied in the antitrust context is now applicable to human rights litigation. The search is on for some constituent act that occurred within the forum to satisfy the territorial nexus. But if territoriality is the new standard, why rely on international law instead of a panoply of more favorable domestic laws that capture the same conduct? And if Alito’s standard for territoriality is required, then the constituent territorial act must violate an international law norm. Good luck finding that conduct.

More promising than these options is transnational tort litigation. As I discuss in a forthcoming article (now more relevant than ever) and as Trey Childress discusses here and a recent Irvine Law Review symposium features here, the future of human rights in domestic courts is transnational tort litigation. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort. Indeed, many complaints routinely add pendent state tort claims. In the Kiobel oral argument, both Kathleen Sullivan and Paul Hoffman concede the availability of state tort claims in lieu of ATS litigation.

What does this mean in practice? Now more than ever, human rights lawyers must become experts on choice of law and comparative tort law. It is a trend that already has been applied for over a decade in the terrorism context, but no one has been paying attention. Pursuant to the FSIA’s Flatow amendment, victims of international terrorism have secured billions (yes billions) of dollars in judgments against state sponsors of terrorism. They typically have done so by invoking choice of law principles to apply domestic tort laws to redress foreign terrorist attacks. In most cases the state tort law of the decedents’ domiciliary has controlled. Thus, when a suicide bomber kills Americans in Israel, or Lebanon, or Nigeria, it is Illinois, Louisiana, or Nebraska law that is applied to hold the perpetrators accountable.

Going forward, human rights lawyers must consider whether choice-of-law standards of the several states will authorize recourse to state or foreign tort laws. That means forum shopping with an eye toward choice of law. Is it better to sue in a “most significant relationship” jurisdiction (e.g., Texas, Florida), a “government interest” jurisdiction (e.g., District of Columbia, California), a lex fori jurisdiction (e.g., Michigan, Kentucky), a lex loci delicti jurisdiction (e.g., Virginia, Maryland), a “better law” jurisdiction (e.g., Minnesota, New Hampshire), or a jurisdiction that adopts an eclectic approach (e.g., New York, Pennsylvania). Who knows, for it will depend on the facts of each case. In some cases (i.e., terrorist attacks in Israel), foreign tort laws may be preferable to state tort laws. In other cases (i.e., torture and killings in Burma), domestic tort laws will be far preferable to foreign laws. If I were a law student who aspired to become a human rights lawyer, after today I would be enrolling in courses that teach conflict of laws and comparative torts.

What does a choice-of-law analysis for human rights abuses typically mean? More often than not, it means the application of foreign tort laws. That is to say, if one analyzes the major choice-of-law approaches and applies them to the facts of prominent human rights cases, courts will typically apply foreign tort laws to resolve claims alleging foreign conduct that causes foreign injuries. Under the specific facts of Kiobel, for example, a state court would apply Nigerian, English, or Dutch law under every choice-of-law approach.

Lest one think that transnational tort litigation is a poor second to ATS litigation, it is fairly clear that this option has numerous advantages over the alternatives. First, tort laws are almost universal. According to the International Commission of Jurists, “[i]n every jurisdiction, despite differences in terminology and approach, an actor may be held liable under the law of civil remedies if through negligent or intentional conduct it causes harm to someone else.” Assuming a fair and impartial adjudicator, remedies for harm to life and liberty are part of public and private laws throughout the civilized world. To the extent a foreign country does not have effective tort laws, then a choice of law public policy exception may result in the application of domestic tort laws.

Second, transnational torts have much lower thresholds than the standards applied under international law, allowing claims to be brought for intentional torts, simple negligence, strict products liability, or any other harmful or offensive conduct that constitutes a legal wrong. Human rights litigation is about grave public wrongs; transnational tort litigation is about redressing simple private wrongs. If the choice is between proving simple negligence instead of a paradigmatic international law violation with a territorial nexus, which would you prefer? For most plaintiffs, it’s not a hard choice.

Third, corporate accessorial liability for aiding and abetting human rights abuse is largely irrelevant when pursuing claims for transnational torts (a question left unresolved in Kiobel with respect to international law). Establishing that a corporate defendant aided and abetted government abuse with the requisite intent is likewise irrelevant. What matters is whether the defendant knew or should have known that its conduct would cause harm. If so, under most jurisdictions of the world a corporation is liable.

Fourth, pleading a violation of transnational torts in most state courts may avoid heightened federal pleading standards. The notice pleading standard applied in the majority of state courts is that a complaint should not be dismissed for failure to state a claim unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Pursuing state law tort claims in state courts is more likely to overcome a motion to dismiss than if the same claim were filed in federal court. Thus, plaintiffs struggling with the heightened federal pleading standard of Iqbal and Twombly may wish to pursue state tort law claims in state court, and file in the defendant’s home state to avoid removal to federal court on diversity grounds.

Fifth, forum non conveniens does not have the same force or favor in state courts as in federal courts. Moreover, after the $18 billion Chevron debacle in Ecuador and Chevron’s huge victory in Bowoto, it is unclear whether corporations will remain as enthusiastic about foreign court litigation or as skittish about domestic court litigation as they have in the past. Many defendants may surmise that it is better to fight in state court rather than gamble with the vagaries and corruption common in many foreign courts.

Sixth, under almost every choice-of-law approach, concerns for international comity and foreign sovereign interests are built into the analysis. For example, under the approach adopted by most states, the needs of the international system and the policies of other interested states are part and parcel of the choice-of-law determination. The sovereignty concerns expressed in Kiobel are built into the system, and often result in the application of foreign laws.

Seventh, state tort laws may apply extraterritorially. As noted, typically this is done on a case-by-case basis after the full implications for such application are taken into account. Thus, virtually every terrorism case pursuant to the Flatow amendment did just that, with the paramount government interest in combatting terrorism trumping foreign interests. Think back to the major foreign terrorism events of recent decades: Khobar Towers, Beirut barracks, USS Cole, Jerusalem bus bombings, African embassy bombings. All resulted in the application of domestic wrongful death tort laws based on the domicile of the decedent victim.

There’s more I could say, but you get the idea. Transnational tort litigation cannot replace the old version of ATS litigation. But after Kiobel, human rights lawyers have precious few alternatives. If there is a silver lining to Kiobel, it is that human rights lawyers will wake up to what transnational tort litigation has to offer.

Kiobel Insta-Symposium: An Extraterritorial Cause of Action

by Anthony Colangelo

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

I’ll start with a few brief points about why I believe Justice Breyer’s opinion provides a sounder approach and is more legally accurate than the Court’s opinion.

Then I will critique the Court’s opinion and, in particular, its extension of a presumption against extraterritoriality to causes of action (as opposed to conduct regulating rules).

First, I must say I’m sorry to see Justice Breyer’s view that “just as we have looked to established international substantive norms to help determine the statute’s substantive reach, so we should look to international jurisdictional norms to help determine the statute’s jurisdictional scope” did not command a majority. This is more or less the argument I laid out in an article in the Virginia Law Review in 2011, where I argued “when Congress enacts a statute silent on geographic scope designed to implement international substantive law, courts should construe that statute in line with international jurisdictional law, including attendant principles of extraterritorial jurisdiction.”

History and precedent support this view as to the ATS. As Breyer’s opinion points out, piracy took place on other nations’ ships, and those vessels were clearly considered foreign territory in early Supreme Court case law. Moreover, as Tony D’Amato and I pointed out in our amicus brief in Kiobel, the way Congress overturned application of a judicially imposed presumption against extraterritoriality to U.S. law outlawing piracy was to revise the definition to confer jurisdiction over piracy, “as defined by the law of nations.” That is, Congress explicitly invoked the law of nations—and its jurisdictional principles—to grant universal jurisdiction over, and to reject a judicially imposed presumption against extraterritoriality to, piracy on foreign ships (which, again, were considered the territories of foreign nations). The ATS contains this same invocation of “the law of nations,” which comprises both substantive and jurisdictional components. That ought to be enough to dispose of the presumption given this precedent.

It is also worth mentioning that the Kiobel Court’s assurances that Congress would have included a “clear indication of extraterritoriality” had it wanted the ATS to apply to causes of action arising abroad simply makes no sense in light of the fact that the statute was enacted in 1789, and the earliest manifestation of a judicially invented presumption against extraterritoriality came about in 1818—and in a piracy case no less!—United States v. Palmer.

Next, I want to critique what seems to me a strange move in extending the presumption against extraterritoriality to causes of action. The Court begins by noting that the presumption typically applies to conduct regulating rules, then acknowledges that the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” But the Court then extends the presumption to “constrain courts considering causes of action that may be brought under the ATS.” This is weird.

To begin with, as the Court acknowledges, the presumption has traditionally applied to U.S. prescriptive jurisdiction, or jurisdiction to prescribe rules of conduct. But that rationale can’t apply to the ATS, since the conduct regulating rule is international law, and whether that conduct regulating rule is deemed the direct or indirect application of international law via common law doesn’t matter. All that matters from a prescriptive jurisdiction perspective is that the rule applied accurately reflects substantive international law, including as to liability. If it does, there is no concern about extraterritoriality, as the Court seems to accept: “The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.”

Thus the Court seizes upon the cause of action as the relevant creature of U.S. law to which the presumption applies. The problem is that under longstanding principles of private international law—which is, and has been since the founding, part of “the law of nations”—causes of action are creatures of forum law, or the lex fori. A presumption against extraterritoriality doesn’t apply to causes of action because, simply put, they aren’t extraterritorial. This is the whole basis for the traditional approach to conflict of laws under which the forum crafts causes of action to allow foreigners to sue under foreign laws. It may be true that, generally speaking, the forum will not create a cause of action if there is no cause of action under the law of the place of the tort. And here the Court in Kiobel cites Justice Holmes’ opinion in Cuba R. Co. v. Crosby. But at the very least, this would require some evaluation of whether the lex loci delicti provides a cause of action for, among other things, extrajudicial killing, crimes against humanity, torture, and arbitrary arrest and detention. At most, we might even take Holmes’ opinion in Crosby at its word. There, the Court explained that when dealing with torts that “are likely to impose an obligation in all civilized countries . . . [U.S.] courts would assume a liability to exist if nothing to the contrary appeared.” Thus in such cases, the burden is on the defendant to show no liability under the law of the place of the harm. And if nothing else, universal jurisdiction stands for the proposition that there are some acts that “impose an obligation in all civilized countries.”

In sum, the Court’s extension of the presumption against extraterritoriality to causes of action is both conceptually mistaken and doctrinally unsupported under longstanding principles of the law of nations.

Kiobel Insta-Symposium: When Can the Presumption Against Extraterritoriality Be Rebutted?

by Thomas Lee

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.]

Based on my quick read through the opinions, it seems that it’s a win for corporations and a loss for international human rights groups seeking to use the US federal district courts to vindicate claims of customary international law violations outside of the United States, in other foreign sovereign territories.  The principal rationale was that there was not enough here to rebut the presumption against extraterritoriality, most recently articulated in Morrison v. National Australia Bank.

The big question going forward will be the circumstances in which the presumption might be rebutted. One possibility clued in by the majority’s discussion of the 1794 Bradford opinion (page 12) is where there is a treaty provision in play which the US has ratified, even though that treaty might not be viewed as “self executing.”  For instance, torture under the Torture Convention brought by an alien, as opposed to a US citizen under the TVPA.

Another might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

Finally, perhaps, as with piracy on the high seas, ATS claims may be possible in terra nullius circumstances, such as where acts have occurred in failed states.

Kiobel Insta-Symposium

by Roger Alford

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the Supreme Court’s decision in Kiobel. We also are going to try something new and invite young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Kiobel of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish as many as we deem appropriate.

The Death of Universal Civil Jurisdiction Under the ATS

by Julian Ku

One idea that Kiobel has put to rest (at least here in US courts) is the idea that the ATS could be fairly read as a grant of universal civil jurisdiction.  On this theory, the ATS could be applied to overseas activities if the nature of the alleged action was so heinous as to rise to the level of a universally proscribable crime (see here for Donald Donovan and Anthea Roberts’ take on this).   The Court seemed to take this idea pretty seriously in Sosa v. Alvarez-Machain.  At least, Justice Breyer seemed to do so in his concurrence to that decision.

That concurrence hinted that Justice Breyer was untroubled by ATS cases which satisfied the international standards of universal jurisdiction because such cases would be unlikely to cause friction with foreign governments. Here is Justice Breyer back in 2004.

…[R]ecognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement §404, Comment b. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. [citation omitted] Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well. 

Indeed, Sosa could have been read as a universal civil jurisdiction decision, although it was grounded in U.S. historical analysis that seemed to coincide with universal civil jurisdiction.  Still, as I noted before, Justice Breyer did not build on the Sosa concurrence in today’s Kiobel opinion.  Instead, he revived the quite rarely invoked “protective” principle to justify the ATS’ extraterritorial reach.  He then added that preventing war criminals from winning a “safe harbor” in the U.S. was within the protective principle (that’s a somewhat dubious interpretation to me).  This is a much narrower approach than I would have expected from his Sosa concurrence.

Indeed, I am somewhat surprised that this narrower Breyer approach, which would still have knocked out most ATS corporate lawsuits, did not manage to win Justice Kennedy’s vote. It certainly looks like it was designed to do so.  But having lost Kennedy, I guess Breyer figured he would simply go forward anyway with his narrower concurrence.  But this also means that the idea of “universal civil jurisdiction” under the ATS, both as a matter of law but also as a matter of justifying the ATS on policy grounds, is dead.  The heinousness of the crime alleged is not as important as identifying a distinctly American interest in the case. This really shifts the ground in the ATS public relations wars, and will be much harder for the ATS advocates to overcome.

Human Rights Will Survive Kiobel

by Peter Spiro

This is a tough loss for the human rights advocacy community, ending an era that began with the Second Circuit’s rediscovery of the Alien Tort Statute in its 1980 decision in Filartiga v. Pena. As Julian highlights below, Justice Kennedy may have left the door ajar to future claims, but only barely. Even Breyer’s concurrence — the rejection of the claim was unanimous, which must make it hurt a little more — sets a bar of a “distinctly American interest”, which may translate in the days of compartmentalized multinationals to the presence of US citizen victims. Lots of claims are going to get thrown out in Kiobel’s wake.

Does this mean that corporations can turn a blind eye to human rights? Not a chance.

Human rights is now a core component of corporate social responsibility, which, at least among major transnational corporations, is no longer optional. The United Nations is moving to bring human rights directly to bear on corporations through such initiatives as the U.N. Global Compact and the Guiding Principles on Business and Human Rights (see John Ruggie’s important new book on the latter). Accountants, shareholders, NGOs, and other private standard-setters are increasingly vigilant to human rights compliance (think Apple and Foxconn to highlight only one recent example). Human rights is being internalized in the corporate psyche, a process not contingent on the survival of the ATS.

There may even be alternative legal avenues. State tort law presents some promising possibilities. Kent Greenfield suggests reviving corporate “ultra vires” doctrine as another possible entry point for human rights. The ATS helped police and facilitate corporate compliance with international law, but other forms of discipline will work to help fill the gap created by its eclipse.

SCOTUS Votes 9-0 that Corporations Cannot Be Sued Under ATS for Extraterritorial Acts Without U.S. Interest At Stake

by Julian Ku

[Apologies for all the random short posts, I think what make blogging interesting, sometimes, is that one can think out loud online.  Dangerous, I know, but fun too!]

Here is one quick take:  As Deborah noted below, the Supreme Court voted 9-0 that the Kiobel plaintiffs should be dismissed because their claims against a foreign corporation for actions in a foreign jurisdiction did not belong within the jurisdictional ambit of the ATS.

Five justices (including the sometimes squishy Justice Kennedy) voted to apply the presumption against extraterritoriality, an interpretive rule, to the ATS.  Although the language is a little mushy here and there, the court’s opinion makes very clear that the rule announced in Morrison v. National Australia Bank applies to the ATS.  In Morrison, the Court held that there is a broad presumption that congressional statutes are not meant to regulate extraterritorial activity unless there is a clear statement in the statutory text.  This presumption cannot be overcome simply because there is some minimal connection to the U.S, like being listed on the U.S. stock exchange or even doing business here.  The exact contours of this rule are a little fuzzy, for instance, it is somewhat uncertain what the rule would be if the defendant was a U.S. corporation, but it seems clear to me that most of the corporate ATS defendants will win dismissals from their ATS lawsuits after this decision.  Almost all of them are being sued for foreign conduct, and often through actions of foreign subsidiaries, and rarely with any action by the corporate actors based in the U.S.

It is also worth noting that the four justices who did not join the opinion, nevertheless would have voted to dismiss the case against Shell anyway because of the lack of a territorial nexus or connection to the national interest of the U.S. While the concurrers would have included preventing the U.S. from being a safe harbor for war criminals within the U.S. national interest, they would not have found that punishing corporations for their complicity with war crimes and torture abroad was enough to satisfy their test.

So this means that the ATS wars over corporate liability are almost over. I say almost because under the majority opinion, U.S. corporations might still be sued for domestic conduct and, perhaps, for foreign conduct if that conduct was also deeply connected with domestic acts.  This seems unlikely in most ATS cases, and it is worth noting that the severity of the crime that the corporation was alleged to have committed does not change the analysis, even under the Breyer concurrence.  A theory that the ATS can be justified in universal civil jurisdiction cases has been rejected, 9-0.

Bottom line: Corporate general counsels!  Rest easy, your long, transnational ATS nightmare is over!

Justice Breyer’s Concurrence Would Have Limited ATS Suits to Cases Where U.S. Could Invoke Protective Principle

by Julian Ku

Interestingly, the four liberal justices would have also dismissed the Kiobel plaintiffs on a different theory: that this case (involving actions by a foreign corporation against foreign plaintiffs in a foreign sovereign’s territory) does not “substantially or adversely affect an important American national interest…”  In other words, Justice Breyer seems to want to graft the “protective” principle of prescriptive jurisdiction onto the ATS, rather than the universality principle that I would have expected.  Here is a summary of Justice Breyer’s proposed reading of the ATS.

… I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.

Justice Kennedy’s One-Paragraph Concurrence

by Deborah Pearlstein

Would’ve been helpful if he’d said a wee bit more. For now, we’ll have to comb through the majority opinion in search of the questions he has in mind. In the meantime, worth noting the Court was 9-0 in affirming the Second Circuit’s decision to dismiss the ATS complaint in this case.

JUSTICE KENNEDY, concurring.
The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

UPDATE: In the annals of amusing moments in OJ history, looks like Julian and I had much the same thought at the same moment.

The Concurrence That Leaves the Candle Flickering for ATS Supporters

by Julian Ku

It is worth noting that Justice Kennedy offered a very short concurrence. Here is the complete text of his concurrence, which should hearten ATS supporters that there is some room for future extraterritorial ATS cases (a very small room, I guess).

The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

US Corporations Sued For Acts in Foreign Jurisdictions Are (Probably) Now Free from ATS Liability

by Julian Ku

Here is the bottom line of the Roberts’ opinion, which makes it sound like this whole ATS thing is really a simple application of Morrison v. National Australia Bank.

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

It also makes clear that “mere corporate presence” would not be enough to trigger US territorial jurisdiction under the ATS.  I sense a new litigation front opening up.

Goodbye ATS? U.S. Supreme Court Imposes Presumption Against Extraterroriality on ATS Claims

by Julian Ku

(UPDATE: Whoops, Ken beat me to the punch. Still, look here for more comments soon.) Here is the opinion. I am just going through it now, but it looks like the ATS is going to be severely restricted on territoriality grounds for the near future.  More from all of us later on today.

Breaking: US Supreme Court Affirms Second Circuit Dismissal of ATS Suit in Kiobel v. Royal Dutch Petroleum Co.

by Kenneth Anderson

The US Supreme Court released its long-awaited Kiobel decision this morning, affirming the Second Circuit’s dismissal of the plaintiffs Alien Tort Statute claims.  Chief Justice Roberts wrote the opinion, joined by Justices Scalia, Alito, Thomas, and Kennedy.  Justice Kennedy wrote a separate concurrence; Justice Alito did likewise, joined by Justice Thomas. Justice Breyer concurred in the judgment, joined by Justices Ginsburg, Sotomayor, and Kagan.  I’m posting this primarily in order to supply the link to the opinion asap, so I’ll refrain from commenting on it for now.  The SCOTUS opinion in Kiobel v. Royal Dutch Petroleum Co. can be found here.

Weekday News Wrap: Wednesday, April 17, 2013

by Jessica Dorsey

ICC Breaks Ground on Its Permanent Home

by Kevin Jon Heller

So reports the Kuwait News Agency. The building is expected to be completed in late 2015. Here is the winning design:


You can read more about the design, and see more artists renderings, here. It’s not a bad design, but it’s a bit too high-modernist for my taste. I preferred the one by Wiel Arets Architects & Associates that won third prize in the ICC’s competition. You can find it here.

How the financially-strapped Court is paying for its fancy new digs — which are expected to cost 190,000,000 euros — is anyone’s guess.

Bensouda on Palestinian Ratification of the Rome Statute

by Kevin Jon Heller

An opinion piece in Al-Jazeera by an international lawyer who works with the Palestinians, John Whitbeck, reports some interesting comments by Fatou Bensouda about Palestinian ratification:

During a public discussion held at the Academie Diplomatique Internationale in Paris on March 20, Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC. During the question time, she was asked:

“If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She started her reply by recalling why Palestine’s initial application was not approved — essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said, unsurprisingly, that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration. It was clear that, in her eyes, ICC membership for the State of Palestine was Palestine’s for the asking. There was even a hint of puzzlement that the ICC had not heard from Palestine subsequent to the UN vote. 

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status.

There is nothing particularly new here, but the retroactivity comment is useful. As a theoretical matter, I think the ICC could determine that Palestine qualified as a state prior to the UNGA resolution upgrading its status. But I think that the Court would be well-advised to take a conservative approach to Palestinian ratification — and as Whitbeck notes in his piece, the less retroactive Palestine’s acceptance of the Court’s jurisdiction (perhaps even purely prospective, from the date of ratification), the more difficult it will be for Israel to complain about it.

That said, as I’ve pointed out before, Palestine has reason to be wary of even prospective ratification. The ICC would find it much easier to prosecute Hamas’s rocket attacks on Israel than Israel’s expansion of the settlements or disproportionate attacks on Gaza.

Japan Ponders Sending Its Island Disputes to the ICJ

by Julian Ku

The Asahi Shimbun is running a couple of interesting features on the International Court of Justice and Japan’s relationship with it.  One essay features interviews with Japan’s current and former members of the ICJ: President Owada and former vice-president Oda.  The other explores what might happen if Japan were to somehow send its disputes with China and Korea to the ICJ.

“Since we are already facing such an explosive situation, it would probably be good for Japan to take action and suggest that China file a claim–and then respond in court,” said Yoshio Otani, 73, an honorary professor at Hitotsubashi University.

To date, however, the Chinese side has made no move to file a claim unilaterally.

“The stances of both countries with regard to the Diaoyu (Senkaku) Islands are too far apart to be able to bring the problem to a third party, including to the ICJ, for resolution,” said Xinjun Zhang, 45, an associate professor at Tsinghua University in Beijing. “The issue of territory, even domestically, is intertwined with ethnic pride. It is a very sensitive matter. Currently, it would be better to think about how to manage the issue rather than try to resolve it.”

I am not sure I agree with Prof. Zhang that the stances of the two countries are “too far apart” to go to a third party, since that is kind of always the case in these kinds of disputes.  But I do agree that it is hard to imagine the China-Japan dispute going to the ICJ.

Having said that, it might be smart politics for Japan to announce its willingness to take the Diaoyutai/Senkaku disputes to the ICJ, and put the onus on China to reject the offer. Japan is already becoming ICJ-savvy in the upcoming Australia Whaling case (hearing finally scheduled for June), they might feel like the ICJ is a good forum for them.   In our panel last week at ASIL, Stephanie Kleine-Ahlbrandt suggested that that Japan had already privately made such an offer, and had been turned down.  I wonder if it is now time for Japan to go public with this offer.  Then again, maybe it should sit still and wait and see how the Philippines arbitration turns out, since China has not so suffered any serious damage from their non-response to that claim.

Weekday News Wrap: Tuesday, April 16, 2013

by Jessica Dorsey

Should the U.S. Bomb North Korea Before It Launches its Missile?

by Julian Ku

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.

Weekday News Wrap: Monday, April 15, 2013

by Jessica Dorsey

Events and Announcements: April 14, 2013

by Jessica Dorsey

Calls for papers

  • In case you haven’t seen it yet, we have launched our own call for papers aimed at LL.M, Ph.D and S.J.D. students as well as those practitioners/academics within the first five years post-degree to participate in our New Voices symposium starting in July. The deadline for 200-word abstract submissions is May 1, 2013.
  • Vermont Law School will host the fourth-annual Colloquium on Environmental Scholarship October 11, 2013, and has issued a call for abstracts. From the website: “If you are interested in presenting a paper at the Colloquium, please submit a working title and short abstract, using our online form, no later than June 1, 2013. For an abstract to be eligible for submission, the author must anticipate that the paper will still be at a revisable stage (neither published nor so close to publication that significant changes are not feasible) by the date of the Colloquium. We will do our best to include all interested presenters, and will notify authors about acceptances no later than July 2013.”
  • The International Review of Law invites submissions for its next editions to be published in July and January. Papers may be in English or Arabic. Submissions are considered on a rolling basis. Selected authors will be invited to Qatar University College of Law in Doha to conduct a guest lecture on their area of research.

Upcoming events

  • The 22nd annual Society of Legal Scholars’ International Law section/British Institute of International and Comparative Law conference on theory and international law will be held April 29 in London. This year’s topic is Sanctions and Embargoes: International Law and Contemporary Practice?, and more information can be found here.
  • The international conference on NON-STATE ACTOR RESPONSIBILITIES: EMPIRICAL FINDINGS AND THEORETICAL CONSIDERATIONS, co-chaired by the Institute for Transborder Studies and the Non-State Actor Committee of the International Law association, will take place in Richmond (Vancouver), BC, Canada, on June 26-28, 2013. The conference will address the obligations and responsibilities of non-state actors with a view to understanding the complexity of non-state actors’ international legal personality, their responsibility and compliance with international law, and the associated legal consequences. Focus is placed on the following five categories of non-state actors: non-governmental organizations (NGOs), multinational/transnational corporations (MNCs), certain organized armed opposition groups, sui generis entities such the International Committee of the Red Cross (ICRC), and organised indigenous peoples’ groups. For further information and registration, please see this link.

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


Law and Ethics for Autonomous Weapon Systems

by Kenneth Anderson

Last November, two documents appeared within a few days of each other, each addressing the emerging legal and policy issues of autonomous weapon systems – and taking strongly incompatible approaches.  One was from Human Rights Watch, whose report, Losing Our Humanity: The Case Against Killer Robots, made a sweeping, provocative call for an international treaty ban on the use, production, and development of what it defined as “fully autonomous weapons.”  Human Rights Watch has followed that up with a public campaign for signatures on a petition supporting a ban, as well as a number of publicity initiatives that (I think I can say pretty neutrally) seem as much drawn from sci-fi and pop culture as anything.  It plans to launch this global campaign at an event at the House of Commons in London later in April.

The other was the Department of Defense Directive, “Autonomy in Weapon Systems” (3000.09, November 21, 2012).  The Directive establishes DOD policy and “assigns responsibilities for the development and use of autonomous and semi-autonomous functions in weapon systems … [and] establishes guidelines designed to minimize the probability and consequences of failures in autonomous and semi-autonomous weapon systems.”

By contrast to the sweeping, preemptive treaty ban approach embraced by HRW, the DOD Directive calls for a review and regulatory process – in part an administrative expansion of the existing legal weapons review process within DOD, but reaching back to the very beginning of the research and development process.  In part it aims to ensure that whatever level of autonomy a weapon system might have, and in whatever component, the autonomous function is intentional and not inadvertent, and has been subjected to design, operational, and legal review to ensure that it both complies with the laws of war in the operational environment for which it is intended – and will actually work in that operational environment as advertised.  (The DOD Directive is not very long, and makes the most sense, if you are looking for an introduction into DOD’s conceptual approach, read against the background of a briefing paper issued earlier, in July 2012, by DOD’s Defense Science Board, The Role of Autonomy in DOD Systems.)

In essence, HRW seeks to ban autonomous weapon systems, rooting a ban on autonomous lethal targeting per se in its interpretation of existing IHL while calling for new affirmative treaty law specifically to codify it. By contrast, DOD adopts a regulatory approach grounded in existing processes and law of weapons and weapons reviews.  Michael Schmitt and Jeffrey Thurnher offer the basic legal position underlying DOD’s approach in a new article forthcoming in Harvard National Security Journal, “‘Out of the Loop’: Autonomous Weapon Systems and the Law of Armed Conflict.” They say that autonomous weapon systems are not per se illegal under the law of weapons and that their legality or restrictions on lawful use in any particular operational environment depends upon the usual principles of targeting law.

I think Schmitt and Thurnher have it right as a legal matter, but there are important dissenting voices.  A contrary view is offered by University of Miami’s Markus Wagner in, for example, “Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict” (chapter in International Humanitarian Law and the Changing Technology of War, 2012).   New School for Social Research professor Peter Asaro (who is not a lawyer, but a philosopher of technology, thus establishing himself as having the Coolest of Jobs, and also co-founder of an organization that has been calling for a ban for several years) has offered a reading of Protocol I and other IHL treaties aiming to show that human beings are built by positive, if tacit, assumption into these texts and their approach to weapons and targeting (forthcoming special section of the International Review of the Red Cross). Asaro is careful to hold out only that this interpretation is implicit, rather than explicit – a thoughtful and creative reading, though not finally one that persuades the hard-hearted lex lata lawyer in me.  A debate is underway in academic law and policy – and in the Real World.  It promises to heat up considerably.

Some months prior to these two documents making their appearance, however, Matthew Waxman and I published a short policy paper in the journal Policy Review, “Law and Ethics for Robot Soldiers.” It made note of arguments by those favoring a complete ban, but mostly focused on the United States (as well as other technologically advanced states; the US is far from the only country doing cutting-edge robotics, in weapons and many other things) and the possibility of developing weapon systems that might move from “automated” to “autonomous.”  That paper endorsed a regulatory approach to these weapon systems, embracing transparency of standards, best practices in weapons reviews, close interaction between the lawyers and engineers from the beginning of weapon system design, etc.  The Policy Review essay was devoted to setting out the problem for a lay audience not having much prior knowledge, however, and oriented toward policy and process issues by which DOD would formulate policy, conduct legal reviews, and how it would deal with other states and their weapon development policies.  It was not primarily directed to arguments for or against a sweeping ban, since HRW had not yet launched its Killer Robots campaign.

Since then, however, Matt and Ken have been busy.  And we’re pleased to announce that the Hoover Institution has just published our new policy essay, Law and Ethics for Autonomous Weapon Systems: Why a Ban Won’t Work and How the Laws of War Can. It revises and substantially extends our arguments on autonomous and automated robotic weapons, and shifts the focus of argument to address the ban arguments more directly.  Though longer than our first essay, it is still not long (at some 12,000 words) and intended to be readable by a general audience, not an academic one.  It is available at SSRN, here (and the same pdf at the Hoover Institution website, here).

Weekend Roundup: April 6-12, 2013

by An Hertogen

This week on Opinio Juris, we hosted a symposium on the latest issues of the Leiden Journal of International Law, introduced here by Dov Jacobs. The first article, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority by Armin von Bogdandy and Ingo Venzke, discussed the functions of international courts in the international legal order beyond their traditional dispute settlement role. In his comments, Andreas Føllesdal asked how a “function” is defined and whether the various functions of international courts contribute to our assessment of their effectiveness and legitimacy. Ruti Teitel suggested to open up the question of legitimacy. The authors’ response can be found here.

The second article in the symposium was by Darryl Robinson, entitled A Cosmopolitan Liberal Account of International Criminal LawJens Ohlin commented how the article had made him take a step back. Mark Drumbl raised points on moral agency and how ICL can understate responsibility in mass atrocity. Darryl’s response is here.

Another series of guest posts was by Jonathan Horowitz and Naz Modirzadeh who provided two posts (1, 2) discussing how international law could work in transnational non-international armed conflicts.

If writing a guest post for Opinio Juris is on your wish list, check out the call for papers for our upcoming New Voices symposium, aimed at international law students and early career professionals.

In our regular posts, Julian shared his impressions about the ASIL Panel on China and international law, discussing in particular the importance of sovereignty to China as a fundamental principle of international law. Julian also pointed out Judge Leval’s article in Foreign Affairs defending the ATS and agreed with his suggestions of how a modern legislator could limit civil jurisdiction for the enforcement of universal norms.

Kristen brought a request for an advisory opinion to the International Tribunal on the Law of the Sea to our attention and wondered about the background of this request.

Deborah considered the McClatchy report that most drone strikes do not target senior al-Qaeda leaders, and speculated about what could the domestic and international legal basis for these strikes could be.

Chris posted about a conference this week at St John’s on the topic of Cyberconflicts. For more on upcoming conferences, see our events and announcements post.

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

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


Guest Post: How International Law Could Work in Transnational Non-International Armed Conflicts: Part II of a Two-Part Series

by Jonathan Horowitz and Naz Modirzadeh

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program and Naz K. Modirzadeh is a Senior Fellow at the HLS-Brookings Project on Law and Security at Harvard Law School, where she leads the Counterterrorism and Humanitarian Engagement initiative.]

Part II: How International Law Could Work in a Transnational NIAC…with Consent

In our previous posting, we used a scenario to explore a set of legal issues relating to transnational non-international armed conflicts (NIACs). The scenario focused on Syria deciding whether or not to attack three high-level Free Syria Army (FSA) rebel commanders on U.S. soil who were present at the invitation and encouragement of the U.S. government (obviating any expectation that the U.S. would provide consent for an attack against them, or that it would arrest and hand them over to the Syrians).

In this posting, we explore the set of legal issues that arise when a foreign State, in this case Iran, does grant Syria permission to target the high-level FSA commanders who are part of Syria’s NIAC.

As mentioned in the previous post, the purpose of setting out this scenario is to tease out how different international law regimes (specifically the law of armed conflict, the law of self-defense, and international human rights law) could interact in transnational NIACs.  What follows does not intend to raise, or answer, all the legal issues that the scenario presents. Nor do we even think the legal analysis below is necessarily “correct” in all places. Instead, we intend to find areas of agreement, provoke disagreement, and welcome any other thoughts and comment amongst Opinio Juris readers.

Let’s begin:

In this scenario, while Syria is in a NIAC with the FSA, the three high-level FSA commanders secretly travel to Iran to meet with members of the Sunni minority community to discuss possible recruitment operations. The Syrian government learns of the meeting and contacts the Iranian government to ask for assistance to kill or capture the FSA commanders. “Are you kidding me?” the Iranian official responds. He continues, “We’re not getting involved in your war… Well, not directly at least. Plus, I’m not going to commit our limited military and law enforcement resources to a low-priority operation that could result in the death of my agents.” The Syrian official responds, “Well, how about you let one of my fighter jets deal with the situation? After all, we are at war and these FSA commanders shouldn’t be immune from attack just because they cross an international border.” The Iranian official agrees.

What could happen next: After a bit more thinking, the Iranian official realizes that he just authorized what amounts to…

Weekday News Wrap: Friday, April 12, 2013

by Jessica Dorsey

Cyberconflict: Threats, Responses and the Role of Law

by Chris Borgen

Today (April 12) St. John’s Law School of Law is hosting a conference in New York  in cooperation with NATO’s Allied Command Transformation group entitled Cyberconflict: Threats, Responses and the Rule of Law. The conference brings together experts from the armed forces, academia, and law enforcement to consider issues at the intersection of technology, law enforcement, national security, civil liberties and international law. In an environment where individual, independent hackers can do the same damage as a government-sponsored cyberattack, how can states craft legal tools, military strategies, and intelligence operations that address national security concerns and differentiate between cyberwarriors and amateur hackers acting on their own?

The opening panel, moderated by Peggy McGuinness is “Cyberwar, Jus ad Bellum, Jus in Bello and Views from a NATO Perspective.” Panelists David Fidler (Indiana University Maurer School of Law), Richard Pregent (Legal Advisor for NATO Allied Command Counterintelligence), and Alex Vandurme (NATO Computer Incident Response Capability) will consider  public international law, domestic law, and how it effects NATO strategy regarding cyberwar.

I will moderate the panel on “Public International Law, National Security Law and Cyberconflicts.” Geoffrey Corn (South Texas College of Law), Sean Watts (Creighton University School of Law), and Richard Jackson (Special Assistant to the US Army Judge Advocate General for Law of War Matters)  will consider questions such as whether cyberwarfare can conform to the International Humanitarian Law principles of humanity, proportionality, distinction, and military necessity,  whether the U.S. should pursue a cyberwar treaty, and whether the President order extended cyberattacks without Congressional authorization?

Finally, Jeff Walker (St. John’s) will moderate the session on “Constitutional Issues in Addressing CyberWar/CyberEspionage/CyberCrime.”  Susan Brenner (University of Dayton School of Law), Amy Harman Burkart (Cybercrime Unit, U. S. Attorney’s Office for the District of Massachusetts), and Christopher Soghoian (The American Civil Liberties Union) will address questions such as what legal framework applies when states defend against, investigate, and prosecute non-state-actors who engage in cyber-espionage or computer-based crime and how do we differentiate between cybercrime and cyber war?

I will post on the substantive issues in the coming days. The St. John’s Journal of International and Comparative Law will also have a symposium issue in the fall devoted to the conference papers.

Judge Leval’s Revealing Defense of the Alien Tort Statute

by Julian Ku

Pierre N. Leval, a well-respected judge who sits on the U.S. Court of Appeals for the Second Circuit in New York, has published a full-scale no-holds-barred policy defense of the Alien Tort Statute in Foreign Affairs.   The essay, which is adapted from his lecture to the New York City Bar Association, offers the standard argument in favor of the Alien Tort Statute (it gives victims of human rights atrocities the possibility of justice and compensation).  And he offers a pre-rebuttal to a possibly negative ATS ruling from the U.S. Supreme Court in Kiobel v. Royal Dutch Shell: the fact that other countries do not permit similar civil suits does not mean the United States should also close its courthouse doors.  In fact, it is a good reason to keep them open.

But I found Judge Leval’s advice for foreign countries that might enact their own version of the ATS most interesting and revealing.

Human rights advocates should try to allay predictable objections to countries’ opening their courts. They should start by drafting proposed legislation with modest and realistic goals, building in limitations that may disappoint the most ardent activists but hugely increase the chances of success. For example, a proposed bill for a country should require the approval of the foreign ministry before each suit can proceed to trial and specify that a suit will be allowed only if the plaintiff has no access to just relief in the country of the defendant or in the country where the abuse occurred. The bill should also require a court to dismiss a suit when the defendant can show that the plaintiff has forum-shopped and has access to justice in a country far better suited to hear the dispute, on the condition that the defendant agrees to face trial in that other country’s courts. And it should require an initial showing of probable cause to stave off frivolous, politically motivated suits. Limitations such as these would do much to disarm or convert opponents.

I agree!  In fact, any law allowing for civil suits to enforce universal norms must have these kinds of political and foreign policy safeguards. And critics of the ATS in the United States have repeatedly noted that such safeguards do not really exist in the expansive and textually-unsupported interpretation of the ATS first developed by judges on Judge Leval’s court. Put another way, it is hard to imagine that a new bill in the U.S. Congress creating universal civil jurisdiction would pass without similar limitations.  So why should the courts feel comfortable giving the ATS such a widely expansive role if neither Congress nor any foreign legislature would ever enact such a law if given a choice?

Keeping up with the Drones’

by Deborah Pearlstein

Internal debate inside the Administration must be heating up, because someone in D.C. is in a leaky mood. McClatchy yesterday released a story on U.S. targeting operations billed as the “first independent evaluation of internal U.S. intelligence accounting” of such operations. The report is based substantially on classified reports covering most (not all) of the drone strikes carried out by the intelligence community (as opposed to the Defense Department) in 2006-2008 and 2010-2011. Among the findings:

At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were ‘assessed’ as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts. Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani Network, several Pakistani Taliban factions and the unidentified individuals described only as ‘foreign fighters’ or ‘other militants.’

The McClatchy piece contends that such statistics are necessarily at odds with Administration statements that its targeting operations were limited to senior leaders of Al Qaeda and allied groups. This seems wrong; I haven’t understood the Administration’s position to be that it would only target senior leadership. Indeed, that was part of the problem with the White Paper. It argued that targeting senior leaders was within the President’s authority, but it didn’t foreclose the possibility that others could also be targeted. The Paper spent a great deal of time gesturing at, if not quite committing to, legal theories that would support much broader targeting authority. In this respect, the leaked news, if accurate, confirms what should by now be the unsurprising conclusion that the White Paper did not describe the full scope of asserted U.S. targeting authority.

That said, the official details here are new and therefore important to untangle. We might fairly assume some of these strikes are the deeply problematic signature strikes we’ve known about – against ‘militants’ who may or may not pose a threat to the United States. But what about the named groups? Does the United States have the authority to target the groups it targeted in the Pakistan/Afghan border region – including the Haqqanis, the Pakistani Taliban, and Lashkar i Jhangvi? Start with domestic law. The Authorization for Use of Military Force (AUMF), giving the President the power to use force against those groups responsible for the attacks of 9/11, is an authorization for the use of military force. It’s not clear the AUMF empowers the CIA to do anything. In any case, as the article points out, there’s no suggestion that the groups named above were in fact responsible for the attacks of 9/11. So odds are slim that the AUMF is the relevant source of domestic authority. That leaves CIA’s authority under Title 50 of the U.S. Code to conduct covert operations, operations for which a presidential finding is required and which the U.S. wishes to be able publicly to deny. So perhaps there is a presidential finding (of course classified) that authorizes the use of force against a far broader range of groups than is covered by the AUMF. That would be news. One may well not think this a good idea (itself worth several separate posts), but provided the Administration is complying with the modest requirements of covert action (the finding, congressional notification, etc.), it would address the problem of domestic law.

That still leaves international law. Set aside for the moment my ongoing concerns (see, e.g., here, here) that CIA doesn’t especially think itself legally bound by these obligations. What is the international law justification for the U.S. to use force against these groups? At least as to Haqqani and Lashkar i Jhangvi, McClatchy’s report suggests those groups are responsible for attacks against U.S. forces in Afghanistan. If that’s true, the United States might well be justified in using force against those groups in self-defense, and compliant with domestic law as well, provided these groups were covered under the scope of whatever classified presidential finding exists. Put differently, and to be clear, at least some of these strikes against these groups might be legal.

That still leaves several puzzles. For one, how broad is the President’s covert action finding? Hard to imagine it’s one that gives the CIA has some general power to use force in self-defense on behalf of the United States. That would seem quite a bit beyond the scope of ordinary Title 50 authority, which forecloses the intelligence community from using covert action authority to conduct traditional military activities (as, one might imagine, would include the military’s power to defend itself against foreign attack). So more likely the finding named groups. Were the groups targeted actually on it? Then there’s the U.S. targeting of Pakistani Taliban, which McClatchy doesn’t indicate is behind attacks on U.S. forces. That may just be oversight, or lack of information on McClatchy’s part. Maybe the same self-defense rationale exists there, too. But the Pakistani Taliban wasn’t a publicly designated (at least) terrorist group until 2010, and as I understand it is mostly focused on overthrowing the Pakistani government itself. So if it’s not self-defense, what is the international law justification for targeting them?

The unattractive (and speculative) explanation is this. The President issued a broad finding authorizing the CIA to use lethal force against a set of terrorist groups larger than just those groups responsible for the attacks of 9/11 – including a bunch of Pakistan’s internal enemies. The CIA isn’t especially worried about whether its exercise of this authority globally complies with international law restrictions on the use of force. Or, more specifically, the CIA thinks as long as it has the foreign state’s consent, it can use force in that foreign state whether or not it has an independent basis – UN Security Council authorization or a self-defense justification notwithstanding. In other words, the CIA thinks as long it’s not violating Pakistani sovereignty (which consent addresses), there’s no other international legal bar preventing its actions.

Exactly because it would be far too easy for one state to have another state do its internal dirty work for it, that’s never been my understanding of the UN Charter Article 2/Article 51 universe in which we live. I suspect the CIA disagrees with me. As for international human rights law, like the International Covenant on Civil & Political Rights (the treaty the United States ratified that says, among other things, states can’t kill people arbitrarily), the U.S. has long taken the view that our treaty obligations under the ICCPR don’t restrict our actions outside the United States. And while the Obama Administration had made gestures in some settings that it was reconsidering that longstanding position, if this is really what we’re doing in Pakistan, I can see why it hasn’t actually taken the plunge. In the meantime, worst case from the above and all apart from the loopy signature strikes themselves, we’re killing people in Pakistan with whom we are not at war and who pose no threat (imminent or otherwise) to the United States.

Guest Post: How International Law Could Work in Transnational Non-International Armed Conflicts: Part I of a Two-Part Series

by Jonathan Horowitz and Naz Modirzadeh

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program and Naz K. Modirzadeh is a Senior Fellow at the HLS-Brookings Project on Law and Security at Harvard Law School, where she leads the Counterterrorism and Humanitarian Engagement initiative.]


This is the first in a two-part series of postings that attempt to tease out how different international law regimes (specifically the law of armed conflict, the law of self-defense, and international human rights law) interact in transnational non-international armed conflicts (NIACs).  Through conversations between the two of us, and conversations we have had with others, our sense is that looking at public international law generally, as opposed to focusing separately on targetability, other jus in bello constraints, imminence and self-defense, and human rights, illustrates the myriad dilemmas, tensions, and consequences that such a borderless  notion of NIAC would raise.

By way of background, a “transnational NIAC” is the term-of-art for a NIAC where hostilities cross international borders and/or where NIAC targetable individuals cross international borders.  In this type of NIAC, many have argued that the law of armed conflict (LOAC) can follow, like a cloud overhead, targetable individuals to another territory where there are no indications that a NIAC is taking place.  This place could be an empty café in Paris where a targetable individual is making arrangements for a weapons airdrop back where he is fighting; or it could be on a dark street corner in Morocco where a targetable individual is obtaining a zip-drive with the license place numbers and vehicle descriptions of his enemy’s top commanders.  The idea is that the NIAC itself would follow the fighters (thus presumably making their targeting lawful under LOAC), but that the actual decision to target these individuals would hinge on a complex array of other factors borrowed from other areas of law: imminence of the threat posed by the individual, consent from the state where the individual has traveled, or the determination that the state is unable or unwilling to detain or expel the individual.

The purpose of this posting is not to discuss whether “the cloud” of LOAC is or isn’t allowed to follow targetable individuals from places fraught with the violence of a NIAC to a place that is peaceful and calm. Its purpose is to assume that this is allowed and, from there, look at the consequences of this; ask what parts of international law outside of LOAC interact with this type of targetability; and ask whether new mechanisms or doctrines should be put in place to limit those consequences.

It is also important for us to note that what follows does not raise, or answer, all the legal issues at hand. Nor do we even think the legal analysis below is necessarily…

Weekday News Wrap: Thursday, April 11, 2013

by Jessica Dorsey

LJIL Symposium: The Idea of Justice in International Criminal Law

by Darryl Robinson

[Darryl Robinson is Assistant Professor at Queen’s University Faculty of Law]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

I am deeply grateful to Jens David Ohlin and Mark Drumbl for participating in this symposium. Their comments are valuable and insightful, just as one has come to expect from their work. I am privileged to have the benefit of their thoughts.

Jens advances an important clarification that domestic legal systems should not be seen as idealized systems and that liberal inquiry must be based on ‘deeper principles’ of criminal law as it ought to be.  I emphatically agree, and this is an important point to highlight.  I argue in my article that the aim of the liberal critique is not the replication of articulations of principles from national systems, but rather upholding the underlying commitment not to treat individuals unjustly.  In Jens’ terms, it’s a search for deeper principles.  Indeed, I would say that our endeavor is not a uni-directional one of applying criminal law theory to ICL.  Rather, it is a bi-directional process in which the special problems of ICL can bring about new realizations about our first principles. The ultimate aim is that ICL doctrines are consistent with some defensible concept of just treatment of individuals.

I agree with Jens that domestic systems can depart just as egregiously from important principles. As I have suggested elsewhere, I think the greatest difference between national systems and ICL in terms of departures is the type of reasoning associated with departures (a more openly anti-liberal law-and-order agenda versus more subtle distortions of internationalist liberal heuristics).

Further supporting Jens’ point, I would gesture to a new trend in ICL jurisprudence.  While there was a tendency in earlier days toward exuberantly expansive doctrines, much of the most recent jurisprudence seems to have internalized the liberal critique.  Indeed, there is even a danger that ICL could overcorrect, adopting unnecessarily narrow and restrictive doctrines to avoid any risk of breaching principles.  Thus, a clarified concept of justice is doubly useful.  It not only delineates what ICL should not do, it also clarifies the zone of permission, where there is no deontological impediment to the pursuit of sound social policy.

Continue Reading…

LJIL Symposium: International Criminal Law and Moral Agency

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington and Lee University School of Law.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

Darryl Robinson is among the most exciting thinkers currently engaged with international criminal law (ICL). In his latest piece, the subject of today’s discussion, he surveys the field. While much of academic work is given over to exploiting fissures and wedges, Darryl yearns for compatibilities. Ever the optimist, he searches for bridges and synergies.

Darryl – rightly, I think – notes that ICL’s roots lie in a teleological formalism. Motivated by the very human impulse to pursue accountability for the equally human impulse to inflict great harms, the formalists established the foundations and charted the territory. Celerity was the name of the game; time was of the essence. But making sense of the macabre isn’t easy, so the formalists soon had to contemplate instrumental short-cuts. One of these, as Darryl identifies, was to the principle of legality. Acting in the name of the law necessitated diluting the purity of the law. Retroactivity, duress, specific intent, and the causality of contribution became viewed as vaguely inconvenient instead of centrally constitutive.

These compromises, in turn, spawned a second wave of scholarship, which Darryl describes as the liberal critique. This critique recovered the value of legality for ICL. Its advisories, however, also risked rendering the system unworkable, too exigent, and somewhat unwieldy. This critique may have overemphasized general principles of law drawn from ordinary systems, rather than built lex specialis for violence in extremis.

A third critique then emerged, which Darryl portrays as the critique of the liberal critique. This critique – in which Darryl generously incudes my own efforts – intimates that the collective nature of atrocity is such that compromises to liberal legalism, while not necessarily justifiable, are eminently understandable. In this regard, the critique of the liberal critique could be seen as coming full circle and supporting the work, and the compromises, of the formalists. Alternately, the critique of the liberal critique could be seen as nihilistic – nothing works, so let’s do nothing. But neither caricature gets to the heart of the critique of the liberal critique. The focus of this critique is on methodology and ordinality, that is, questioning why the criminal law should be such a primadonna in the pursuit of post-conflict justice. This critique does not suggest inaction but, rather, exceeding present efforts and, in addition, working differently. This critique begins with an epistemological inquiry: from where do we know what we know about mass atrocity? It ends with an assumptive challenge: why is it, exactly, that we believe that the criminal law has so much to offer and yields such a high return on an at times astronomical investment?

Continue Reading…

LJIL Symposium: Where to Find the Liberal Principles of Criminal Law

by Jens David Ohlin

[Jens David Ohlin is Associate Professor of Law at Cornell University Law School.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

I agree with almost everything in Darryl Robinson’s plea for a cosmopolitan liberal approach to international criminal justice.  Robinson’s article sketches out the development of ICL scholarship, noting the beginnings of the field, followed by the liberal critique of early ICL development, and then the counter-critique of the liberal critique that emphasized the need for sui generis theories to deal with the unique nature of international atrocities.  The story is convincing and tightly explained.  Although it might be difficult to identify particular scholars with just one of these schools of thought, it is certainly possible to identify particular arguments as fitting into one of these moments in the dialectic of ICL.

I do, however, want to point out an important trend in the development of the criminal law that cuts across the dialectical story emphasized by Robinson.  This won’t suggest that Robinson has it wrong – far from it – though I think it does complicate the picture somewhat.

Continue Reading…

New ITLOS Advisory Opinion Sought

by Kristen Boon

The International Tribunal of the Law of the Sea has received a request for an advisory opinion from the Sub Regional Fisheries Commission located in Senegal. The Commission is a treaty based organization founded in 1985, which has seven member states (Senegal, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, and Sierra Leone). Some background information on the Commission is available here.

The Commission’s request asks four questions:

1. What are the obligations of the flag State in cases where illegal, unreported, and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States?

2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?

3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?

4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and sticks of common interest, especially the small pelagic species and tuna?

If ITLOS’s approach to this advisory opinion is similar to its Advisory Opinion on the Seabed, we can expect a creative and expansive response.  There, ITLOS affirmed the due diligence principle (which the ICJ recognized in the Pulp Mills case), and gave it content by linking it to the obligations of states.  ITLOS therefore has a trackrecord of “making waves” with regards to linkages between the law of responsibility and the Law of the Sea.

Nonetheless, at present, there is not much information generally available about the background of this request other than general difficulty with IUU fishing in the region.   Has the commission brought this case to try to gain leverage with distant water fishing nations?  Is this ultimately a dispute with the EU?   Some relevant conversations about the law of the sea and responsibility are taking place at the Food and Agriculture Organization that might provide useful background information.  See in particular the draft guidelines on Flag State performance that address questions of flag state responsibility for IUU fishing.

And we at Opinio Juris hope to contribute to this conversation by way of a symposium later this spring on the intersection between the law of the sea and principles of state responsibility.

Weekday News Wrap: Wednesday, April 10, 2013

by Jessica Dorsey

LJIL Symposium: A Reply to the Comments by Andreas Føllesdal and Ruti Teitel

by Armin von Bogdandy and Ingo Venzke

[Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International Law and Ingo Venzke is a Senior Research Fellow and Lecturer at the Amsterdam Center for International Law, University of Amsterdam.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

We are truly grateful to Andreas Føllesdal and Ruti Teitel for their perceptive comments on our article, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. Their insights will surely inform our continuous work on the multi-functionality, public authority, and democratic legitimacy of international courts and tribunals (ICTs). In this reply, we will focus on three main points to which both commentators draw attention: our understanding of functions; why ICTs require democratic legitimacy; and, finally, whose interests matter for a normative assessment.

Functional Analysis

Both commentators challenge us to clarify what we want to achieve with our functional analysis and, at the same time, suggest nuances to the four functions we do identify. Andreas Føllesdal specifically prompts us to choose – do we want to explain why ICTs exist, or do we see functions as legitimating the practice of ICTs? If either one or the other was our ambition we would indeed fall short of giving a convincing answer. But our functional analysis stands in a sociological tradition and aims at a better understanding of the phenomenon (cf., M. Madsen, ‘Sociological Approaches to International Courts’, in K. Alter, C. Romano, and Y. Shany (eds.), The Oxford Handbook of International Adjudication, 2013). We are not (neo-) functionalists, and neither develop an explanation of institutional developments nor a functional justification. Especially the latter point merits emphasis; a functional analysis does not — it cannot — justify the phenomenon it tries to understand (N. Luhmann, Legitimation durch Verfahren, 1983). But it might still be seen as potentially apologetic to frame a certain social consequence of an institution’s characteristic activity as a function. Because of this looming hazard, we keep the straightforward normative questions in sight. In fact, our functional analysis serves as a precursor for discussing the democratic legitimation of an ICT’s exercise of public authority. It aims at a better understanding of the phenomenon to sharpen normative questions.

Against the backdrop of an orthodox understanding of ICTs, which sees ICTs in the function of dispute settlement alone, we identify three more main functions: (1) the stabilization of normative expectations, (2) law-making, and, (3) the control as well as legitimation of public authority exercised by other actors. Ruti Teitel argues that ICTs pursue a further function — and find a more promising source of legitimacy than we are ready to acknowledge — in the development and protection of specific substantive values at the international level. Furthermore, she submits that ICTs step in and serve the values in domestic settings when national authorities have broken down. While it concerns the postulation of another function, it is true that this dimension of ICTs’ activity, especially of international criminal tribunals, is only weakly reflected in our summary analysis that draws together different ICTs on a high level of abstraction.

Continue Reading…

LJIL Symposium: A Consideration of ‘On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority’

by Ruti Teitel

[Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Professor, London School of Economics, and Affiliated Visiting Professor, Hebrew University of Jerusalem.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

Armin Bogdandy and Ingo Venzke argue that we should see the increasing activity of international courts and tribunals as the exercise of public authority, requiring justification according to the principles characteristic of democratic constitutionalism within national states.   They question, rightly, whether the functions and importance of international adjudicative bodies in today’s world can be seen as legitimate on the basis of traditional concepts such as state consent to jurisdiction.  The idea of pubic authority implies that international courts and tribunals ultimately address themselves not just to sovereigns, who bow if they choose, but to citizens and the human interests of citizens.

Based on my own experience in studying courts and tribunals in relation to human rights, transitional justice, and international criminal law, I would like to challenge – or invite -Armin and Ingo to look at the question of legitimating pubic authority in a broader way when they deal with international adjudication, taking into account considerations that go beyond those that relate to judicial authority within mature well-functioning constitutional democracies.

First of all, some tribunals have been created and have had as their mission to further particular substantive values in the context of conflicts where the normal exercise of pubic authority has broken down.  The ICTY, for example, had as one explicit goal ‘the restoration and maintenance of the peace’ in the former Yugoslavia.  In Prosecutor v. Tadic, a seminal case, the Tribunal explicitly sought to understand the authority it exercised in light of the values that it was created to serve and (implicitly) the agreed importance of these to the international community.  I believe that this kind of substantive, values-based legitimacy is important to understanding the exercise of public authority by international adjudicators in the human rights and international criminal law fields.

It leads to a different way of posing the question of democracy, one that brings in however broader considerations than democratic consent,  namely the relative competence or legitimacy of international courts and tribunals, and domestic institutions, to further the values in question.  As I suggested in my 2011 book, Humanity’s Law, the primacy that attaches to human security in the framework of norms currently animating international legal authority may reflect a recognition that human security including elements of legal security (rule of law) is a precondition, or a presupposition, for the fulfillment of a broader range of rights including democratic rights. In this light, it is worth looking at the rise of international adjudication in the post-Cold-War world along with the increasing attention to the problem of weak and failed states.  The decisions of international adjudicators in the international criminal law and human rights law areas often respond directly to political and legal institutional failures or gaps at the level of the state.  The authority of international adjudicators thus may be seen as relative to that of other institutions.  This is explicitly contemplated by the conception of “complementarity” that governs the exercise of jurisdiction by the International Criminal Court, legitimating the intervention of the Court on the basis of the unwillingness or incapacity of domestic institutions. The burgeoning caseloads of the Inter American Court and the European Court of Human Rights are concomitant with problems emerging from weak domestic legal systems and specific threats to the rule of law domestically (e.g., Russia and Turkey in the case of the ECHR). The diminished role of judicial review/ legitimacy is at the same time circumscribed by principles of admissibility and substantive jurisdiction, and relativised by domestic politics and the vision of threshold guarantees of the community delimited by the regional covenants.

A final point should be considered that is not unrelated to the observation that substantive values have a role in legitimating the authority of international adjudicators. How does judicial discourse shift power by empowering non-state actors, who in turn, by addressing themselves in various ways to international courts and tribunals and being addressed by them, become agents of legitimacy? International courts and tribunals are well situated to supply a rights-based discourse at least partly detached or autonomous from national political cultures and constitutionalisms – universalizable, secular, transnational – and with the authority of high human values.   In a world that is interdependent but not integrated there quite simply may be a need for a potentially universalizable discourse that can still function in a context of difference between persons and peoples, one that comprehends wrongdoing and atrocities, and can be diffused through multiple institutions that would otherwise be isolated or fragmented – a discourse that allows recognition of individual rights and attribution of individual responsibility and accountability with or without the state, hence arguably allowing for some change. International adjudicators are better situated that many other international institutions to supply this discourse and the discourse is arguably a source of self-legitimisation for international courts and tribunals.

In sum, given this analysis of the interpretive and discursive role played by international judiciaries, there are good reasons for less concern with the legitimacy question.  Perhaps, as Alexander Bickel understood in his well-known book on the topic, The Least Dangerous Branch, dealing with this question has always been to a greater or lesser degree a relative inquiry.

LJIL Symposium: Explaining and Justifying International Courts as Agents and Actors: Comments on von Bogdandy and Venzke’s ‘On the Functions of International Courts’

by Andreas Føllesdal

[Andreas Føllesdal is Professor at Norwegian Centre for Human Rights, University of Oslo]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

The expansive growth and influence of international courts, tribunals, and quasi-judicial bodies (ICTs) fuels well deserved interest across disciplines far beyond public international law, including political science and political philosophy. How are we to describe, explain, and assess this partial abdication of sovereignty by the main actors of a (formerly) state-centric world order?  Armin von Bogdandy and Ingo Venzke have again joined forces to illuminate these profound issues of the functions and legitimacy of ICTs, tying together and expanding on previous valuable insights (von Bogdandy and Venzke, 2011).

Von Bogdandy and Venzke diagnose some previous scholarship of ICTs as suffering from a two-fold myopia. Scholars have tended to focus on only one social function of international courts, and on a single source of legitimation: dispute settlement and state consent. Von Bogdandy and Venzke start with the plausible and well-argued observation that ICTs now cause impact in ways far beyond that of instruments for settling disputes among their creators. These further functions stabilize normative expectations by several means: law making; judicial interpretation; and, the control and (hence) legitimation of other authorities (cf, Alter 2013). Von Bogdandy and Venzke furthermore identify intriguing and far-reaching challenges of ICTs to the state-centred world order paradigm. Three further supplemental and partially competing traditions are those that see ICTs as  agents (‘organs’) of a world community, ‘institutions’ of legal regimes, and as actors who exercise public authority. Implications range from the reduced salience of state consent as the main mode of legitimation of international law and courts, entailing ‘restrictive interpretation’ to the appropriate role of amici curiae briefs and the need to differentiate modes of legitimation amongst the ICTs.

The following observations from a fellow traveller point to some topics for further elaboration and development.  Continue Reading…

LJIL Symposium Vol 26-1: Introduction

by dov jacobs

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

This symposium launches our second year of collaboration with Opinio Juris, which we hope to be as fruitful as the first in combining the in-depth discussions that arise in the Leiden Journal of International Law with the dynamic online community of the blogosphere. In order to start the new year with a bang, we bring you, from Volume 26-1 of LJIL, two discussions of fundamental issues of international law: the functions of international tribunals and the philosophy of international criminal law.

The first discussion has as a starting point the article by Armin von Bogdandy and Ingo Venzke entitled On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. In this piece, the authors suggest to look beyond the traditional dispute settlement function of international courts in order to assess other functions, such as law making and control and legitimation of authority exercised by others. This is, for the authors, the only way to better understand the role and place of international courts in the international legal order as exercising public authority and requiring ‘democratic legitimation’. In their thoughtful reactions, Ruti Teitel, from New York Law School, and Andreas Follesdal, from the University of Oslo, both question the choices made by the authors of the article. They mostly question the choice of ‘functions’ (why these and not others?) and the basis for legitimacy of international tribunals (why ‘democratic’ legitimacy? In whose name?). I share the methodological concerns of the commentators in this respect, and would even go a little further on the question of functions and legitimacy.

Continue Reading…

Weekday News Wrap: Tuesday, April 9, 2013

by Jessica Dorsey

Weekday News Wrap: Monday, April 8, 2013

by Jessica Dorsey

China and Sovereignty Under International Law

by Julian Ku

As regular readers of this blog might have noticed, I have become more and more interested China and its engagement with international law issues.   Last year, I proposed to the ASIL Planning Committee that we put together a panel of leading U.S. China law scholars.  But the ASIL organizers pushed back and put together a much more diverse group than I had suggested, which included a U.S. China scholar like Jacques Delisle from Penn, but also Chinese international law scholars like Bingbing Jia of Tsinghua and then added a nice dose of on-the-ground policy analysis from Stephanie Kleine-Ahlbrandt of the International Crisis Group.  It ended up being a terrific mix of style, topics, and expertise.  We didn’t rate a “livestream”, but I wanted to share a few thoughts for our readers on what I think is an important topic. I am not going to attempt to summarize their comments, but simply offer some of my reactions to their key points.

The idea of the panel (at least to me) was to consider whether the “rise of China” in global affairs has changed much about how China interacts with international law. In my crude formulation, the question is now less about what “international law does to China” but more what “China will do to international law.”

Both of the lawyer-panelists (Jia and Delisle) focused on “sovereignty” as the most important principle guiding China’s understanding and engagement with international law.

Events and Announcements: April 7, 2013

by An Hertogen

Calls for papers

  • In case you haven’t seen it yet, we have just launched our own call for papers aimed at LL.M, Ph.D and S.J.D students to participate in our New Voices symposium starting in July. The deadline for submissions is May 1, 2013.
  • The Forced Migration Review invites submissions for a special issue on Detention and Deportation. Submissions are due April 15, 2013. See the call here.
  • The 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.

Upcoming events

  • The Sydney Centre for International Law is a holding a conference entitled Facing Outwards: Australian Private International Law in the 21st Century on Wednesday, April 10, 2013. A conference flyer may be found here. For further information and registration, click here.
  • The Spring Conference of the International Law Association (British Branch) which will take place in Oxford on April 12 and 13. The theme of the conference is “The Changing Face of Global Governance: International Institutions in the International Legal Order”. The conference will explore the changing nature of international institutions and their impact on international governance, international law-making and law-enforcement. Papers address the role of international institutions in a wide range of areas, including the maintenance of peace and security, international economic law, environmental law, law of the sea, international criminal law, as well as the regulation of technology and health. The Keynote Lecture and Inaugural Oxford Global Justice Lecture will be delivered by Patricia O’Brien, United Nations Under Secretary General for Legal Affairs and Legal Counsel.
  • Golden Gate University will host its Annual Fulbright Conference on April 12, 2013 in San Francisco, California, with the theme International Law in a Multipolar World. This event which will bring together some of the region’s leading experts and scholars in international law. In addition, some Fulbright scholars have accepted invitations to attend or present at this event. Dr. Michael C. van Walt van Praag, will deliver the keynote address. Register online here.
  • The inaugural London International Boundary Conference will take place on 18 and 19 April 2013 at the Royal Geographical Society, London. Speakers at the Conference are among the world’s leading experts and practitioners in the effective resolution of territorial disputes. They will examine recent developments in disputed “hotspots” around the world, and discuss new and emerging ideas for the resolution and management of territorial disputes, from legal, geopolitical, technical, commercial and other viewpoints. The Conference will also run a half-day technical workshop at King’s College London on the afternoon of 17 April 2013, offering a practical introduction to maritime limits and boundaries. For further details (including speakers, pricing and registration), click here.
  • The Sandra Day O’Connor College of Law, Arizona State University, presents Can International Law Support Changes to Federal Indian Policy? Implementing the United Nations Declaration on the Rights of Indigenous Peoples on Friday, April 19, 2013.
  • The British Institute of International and Comparative Law is organising its 13th Annual WTO Conference on May 15-16, 2013. The programme is available here.
  • The Irish Centre for Human Rights, School of Law, NUI Galway, will hold its inaugural Summer School on Human Rights, Migration and Globalization from July 8-12, 2013. The inaugural year’s subtopic is Defining and Promoting Human Rights of Migrants in an Era of Globalization.The School is open to practitioners, journalists, NGOs, and students interested in the contemporary challenges of migration and human rights protection. During the five days of intensive lectures, delivered by leading specialists in the field, students will be provided with a detailed working knowledge of the issues through presentations, readings and class discussions which will include a component on research and advocacy skills. Participants will have an opportunity to propose their research ideas, advocacy or field experience for discussion with specialists and fellow participants, but you can register for the Summer School without submitting an abstract. The deadline for abstracts or for registration is May 31, 2013. Other summer schools on offer are on the International Criminal Court (June 17-21, 2013) and on Cinema, Human Rights and Advocacy (June 27 – July 6, 2013, applications due by April 30).

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


New Voices: Call for Papers

by An Hertogen

Are you an international law student or a recent graduate with an idea that you’d like you tell our readers about? Then we at Opinio Juris want to know about you! This July, we are planning to launch a new feature called New Voices: a two-month online symposium to run alongside our regular posts. Our goal is to give students and emerging scholars a chance to profile their work by providing a platform for fresh ideas that will hopefully stimulate discussion with our regular bloggers and commentators.

We invite submissions on any topic of international law from LL.M., Ph.D., and S.J.D. students as well as those in the early stages of their careers (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing their final degree), anywhere in the world.

If you’re interested, please send a 200-word summary of your idea and your CV to opiniojurisblog [at] gmail [dot] com by May 1, 2013. If selected, we’ll let you know by mid-May. We’ll also let you know at that point when your post is scheduled to go online. Final submissions between 1000-1500 words will be required two weeks before publication for review, so at the earliest by mid-June.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

Weekend Roundup: March 30 – April 5, 2013

by An Hertogen

This week on Opinio Juris, we brought you the latest round in the Goodman-Heller debate on capture v kill, in which Ryan Goodman responded to Kevin’s comments on this blog a few weeks ago.

Kevin started his week by pointing to turmoil in Sweden’s prosecution of Julian Assange, following the resignation of the prosecutor and the decision by one of his accusers to fire her lawyer. He also addressed the ICC’s Pre-Trial Chamber’s decision to refer Chad to the Security Council over its non-cooperation in the execution of the ICC’s arrest warrant of Sudan’s President’s Omar al-Bashir. Kevin saw this as a risky move that can threaten the Court’s legitimacy if the Security Council does not act. Kevin also recommended a new casebook on international humanitarian law.

Julian criticized the glacial pace of progress of the ICJ proceedings, arguing that in the case between Australia and Japan on whaling it did nothing to cool the dispute. He also urged the NRA to hold its fire over the Arms Trade Treaty, arguing that the treaty is too weak to affect the right to bear arms.

Deborah hailed new guidelines for Armed Private Security Companies doing business with the UN as significant, and asked our readers for their opinions.

At the end of the week, we hosted a symposium by the NYU Journal of International Law and Politics on Professor Jenia Iontcheva Turner’s article Policing International Prosecutors.  In her comment, Professor deGuzman provided two reasons why international criminal courts should err on the side of the defendant when balancing his right to a fair trial with the rights of victims and the broader international community. Sonja Starr argued that the fairness of the trial is not just one factor in the analysis but rather the threshold question. Kevin likewise argued that the accuracy of the trial is essential, and expressed concerns about the article’s rhetoric. Alex Whiting in turn feared that a balancing approach might make the courts too willing to find procedural misconduct, particularly when their are differences in litigation culture between the judges and the defence counsel. These cultural differences were also raised by James Stewart who credited the article with changing his mind about prosecutorial misconduct.  Professor Turner’s response to the comments can be found here.

One of the commentators in the symposium, James Stewart, also provided a guest post in two parts (12) over the ICTY’s approach to complicity in the Perišić judgment.

Many of you are probably at ASIL’s Annual Meeting. In preparation, Jessica highlighted some of the main events. Chris posted about the newly establish Space Law Interest Group of which he is the co-chair and Deborah shared her notes on the discussion on targeted killing.

Finally, as always, we listed upcoming events and announcements and summarized international law related news in our weekday news wraps

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

NYU JILP Symposium: Policing International Prosecutors Concluding Remarks

by NYU Journal of International Law and Politics

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

We would like to once again extend our deepest gratitude to Opinio Juris for providing us with such a wonderful forum to host this symposium. Thank you to all of the scholars who contributed insightful commentary, and especially to Jenia Turner for her thought provoking article. We hope this symposium helped to advance the dialogue about the complicated issues surrounding the conduct of international prosecutors.

ASIL on Targeting

by Deborah Pearlstein

As usual, the American Society of International Law conference in Washington, D.C. is filled with panels of interest and great off line conversations with friends and colleagues. Good to see many OJ’ers there. Among many other things, I wanted to highlight yesterday’s lively discussions on targeted killing, including a panel featuring Daniel Bethlehem, Marco Sassoli, Hina Shamsi and David Glazier – a wonderfully thoughtful group. I take it the panel was available via live stream so would expect it will be posted in recorded form at some point as well. For now, a few assorted notes (in no particular order).
Continue Reading…

NYU JILP Symposium: Response to the Commentary on Policing International Prosecutors

by Jenia Iontcheva Turner

[Jenia Iontcheva Turner is a Professor at SMU Dedman School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

Many thanks to Opinio Juris and the NYU Journal of International Law and Politics for hosting the symposium and to Margaret deGuzman, Alex Whiting, Sonja Starr, James Stewart, and Kevin Heller for agreeing to read and comment on my article. I would like to use this opportunity to address briefly several key points raised by the commentators.


1) The balancing approach and the ICC’s competing purposes

In the article, I argue that the ICC pursues multiple and sometimes competing goals—protecting defendants’ rights, promoting respect for the rule of law, holding perpetrators of international crimes responsible, and establishing a record of the atrocities. While the first two goals generally tend to favor stricter remedies for prosecutorial misconduct, the last two goals call for a more tempered approach. Meg deGuzman agrees that the balancing approach is necessary to accommodate the competing goals of the ICC, but she argues that the goal of promoting global norms takes precedence. To attain this goal, the court should err on the side of defendants’ rights when addressing prosecutorial misconduct. This would help spread respect for the highest standards of procedural fairness.

Continue Reading…

NYU JILP Symposium: The Rhetoric of Remedies

by Kevin Jon Heller

[Kevin Jon Heller is currently Associate Professor & Reader at Melbourne Law School.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

I appreciate the opportunity to respond to Jenia’s excellent article. I always learn from her scholarship, and this article is no exception. That said, I find myself in an unusual quandary. When asked to critique an article, I normally take issue with its substance. There is very little substance in Jenia’s article, however, with which I disagree. Indeed, if she and I were both ICC judges, I imagine that we would almost always agree on the appropriate remedy or sanction for a violation of a defendant’s rights.

That said, I find the rhetoric of Jenia’s article very problematic. To begin with, I think her distinction between “absolutist” and “balancing” approaches to remedies misleads more than it enlightens. Like my friend Meg DeGuzman, I don’t believe that the ICC has ever engaged in the “absolutist” approach, selecting remedies for misconduct without reference to the consequences for victims, the penological rationales of international criminal law (ICL), etc. When the Court has selected a drastic remedy for a violation of the defendant’s rights, it has done so only when the violation seriously compromised the Court’s ability to accurately determine the defendant’s guilt or innocence. The Trial Chamber initially stayed the proceedings in Lubanga, for example, only when it lost faith in the OTP’s ability to identify (much less disclose) exculpatory evidence. In Jenia’s own words (p. 188), “[w]ithout examining the documents at issue, the Chamber would be unable to ensure that the verdict in the case was fair and accurate.” The Appeals Chamber, in turn, only lifted the stay once it became clear that the OTP would, in fact, disclose any and all exculpatory evidence to the defendant.

Continue Reading…

NYU JILP Symposium: New Thoughts about Barayagwiza: Reactions to Policing International Prosecutors

by James G. Stewart

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

In September 2000, I began work for appellate judges at the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia. Soon after arriving, I quickly came upon a decision the Appeals Chamber had rendered in a case called Barayagwiza.[1] In that case, the Appeals Chamber initially stayed proceedings against Jean-Bosco Barayagwiza, one of the chief architects of the notorious radio station, Radio télévision libre des millies collines (RTLM), because he had spent close to a year in custody without being charged. The stay was a radical response to the prosecutorial (and judicial) error: it effectively ended the trial of one of the Rwandan Genocide’s most outspoken protagonists. Predictably, Rwanda baulked at the decision, and threatened to cut all ties with the ICTR. With this response and other new information, the Appeals Chamber reviewed its earlier decision, lifting the stay and declaring that the violation of Barayagwiza’s basic rights could be addressed through either a sentence reduction or financial compensation in the event of an acquittal.

At the time, I felt that politics had trumped principle in Barayagwiza, but I hadn’t then had the benefit of Professor Jenia Iontcheva Turner’s excellent new article. Professor Turner’s piece Policing International Prosecutors eloquently argues against the type of absolutist positions that the Appeals Chamber first adopted in Barayagwiza. Rather, it favors a more nuanced array of sanctions that can be calibrated to specific prosecutorial errors. She argues that the absolutist position does violence to the interests of victims, the desires of the international community and potentially the quest for peace and reconciliation. These values should not be sacrificed to generate greater prosecutorial discipline. Instead of adopting such blunt sanctions, Professor Turner ably argues that international courts and tribunals should consider and deploy a wider variety of sanctions, which can be better married to the intricacies of each particular prosecutorial violation. These sanctions include sentencing reductions, dismissal of select counts of an indictment, declaratory relief, and the type of compensation envisaged for Barayagwiza. A wider panoply of institutions should also have some role in this process.

Continue Reading…

Weekday News Wrap: Friday, April 5, 2013

by Jessica Dorsey

ASIL Launches the Space Law Interest Group

by Chris Borgen

Lawyers take note: science fiction is become less fiction and more science every day. In the last year we have witnessed the launch of the first commercially built capsule to resupply the International Space Station (ISS), the announcement of significant private ventures aimed at eventually mining asteroids (1, 2, see also this), the announcement of a plan to send two people on a privately-funded Mars flyby mission in 2018, an asteroid exploding over Russia on the same day that another flies by the Earth beneath many satellites, and the formation of a company attempting to land humans on Mars as of 2023… on a one-way trip.

Humanity’s exploration of space may only be in its earliest stages, but the legal implications are already widespread and varied.  Some activities, such as multilateral cooperation on “big science” projects like the ISS or responding to the threats posed by asteroids, are government-led.   But the private sector is also undertaking new, increasingly audacious projects—from expanding the commercial space launch market to mining asteroids. Space law is an evolving, robust practice area for international lawyers.

And so it is fitting that the American Society of International Law has started a new Space Law Interest Group (Space IG).  Brian Israel, of the State Department’s Office of the Legal Adviser, and I are currently the Space IG’s co-chairs. We look forward to working on the group’s programs for this next year. (We should note that the person who most recently sent in a suggestion that the ASIL should have such an interest group is actually a high school student member of the ASIL. Talk about the future of the legal profession!)

While the actual activities of the Space IG will be designed by the members, the founding conception is that it will serve as a forum, resource, and community for scholars and practitioners of the international law governing the use and exploration of outer space.  And it is a community for ASIL Members to connect with others interested in these issues, and a bridge to other space law communities around the world.

More generally, the Space IG, along with the new International Law and Technology Interest Group, are part of the ASIL’s expanding programming on the relationship of society and technology. And there are many issues related to space and technology that warrant consideration by international lawyers.

Yet that observation is nothing new. Since the dawn of the space age, international law has played an essential role in the peaceful use of outer space by an ever-growing range of actors. The space applications that are ubiquitous in modern life—from communications and navigation to weather forecasts and disaster response—are enabled in significant measure by a robust international regime comprising a settled international legal framework as well as non-binding principles and guidelines.

It is an exciting time for space exploration and an important moment for international law. Issues of long-term sustainability, the prospect of audacious, unprecedented uses of space, and emerging commercial space activities present significant governance challenges and important roles for international lawyers.

We will be having the first meeting of the Space IG at this year’s Annual Meeting of the ASIL.  Regardless as to whether you are able to attend the Annual Meeting, if you are interested in possibly joining the group, please contact me.


NYU JILP Symposium: When Should International Criminal Tribunals Compromise on Remedies for Prosecutorial Misconduct?

by Sonja Starr

[Sonja B. Starr is an Assistant Professor of Law at the University of Michigan Law School.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

In Policing International Prosecutors, Jenia Iontcheva Turner offers a rich account of the competing interests at stake in cases involving international prosecutors’ misconduct, and advances a strong case that remedial doctrines should squarely acknowledge those competing interests. Because international law has often struggled to close the gap between rights and remedies, many might understandably be skeptical of proposals to explicitly recognize the validity of such gaps. Still, I agree with Turner that in some instances, a candid remedial interest-balancing approach is the best solution to intractable conflicts of legitimate interests. I have previously proposed remedial interest-balancing and the use of intermediate remedies (e.g., sentence reduction) in international criminal procedure on the grounds that it might improve the protection of defendants’ rights. Overly rigid remedial rules may perversely often result in no remedy at all, because if the only available remedies involve releasing defendants who may be perpetrators of atrocities or ordering a costly and lengthy retrial, tribunals may find ways to avoid recognizing rights violations in the first place. Turner offers a distinct, complementary argument: even assuming interest-balancing is not ultimately better for defendants, defendants’ rights are not the only important interest at stake. Holding the perpetrators of international crimes accountable and establishing a record of atrocities are vital international interests that sometimes should outweigh the defendant’s right to a remedy for misconduct.

Turner argues persuasively for this conclusion, develops the case for a range of alternative remedies, and proposes a nuanced approach designed to ensure that defendants’ rights are not compromised unnecessarily. In this regard, her proposal could be strengthened if it clearly drew one bright-line distinction: interest-balancing can never justifiably extend to permit courts to allow a conviction that is not based on a fair trial (or a valid guilty plea). By “fair trial,” I mean one that, whatever its failings, remains a legitimate test of whether the defendant’s guilt is established beyond reasonable doubt. If prosecutorial misconduct throws the validity of a conviction into doubt (or, ex ante, has rendered it impossible to ensure a fair trial even if lesser remedies are invoked), the tribunal’s obligation is not just remedial in nature—it is an obligation to cease a continuing violation of the defendant’s rights or to prevent a future one, namely the imposition of wrongful punishment.

Continue Reading…

NYU JILP Symposium: The Challenge of Assessing Misconduct Allegations at an International Court

by Alex Whiting

[Alex Whiting is the Prosecution Coordinator at the Office of the Prosecutor at the International Criminal Court. The views expressed are his own.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

I commend Jenia on her thoughtful and balanced analysis of remedies at the ICC for prosecutorial mistakes or misconduct. It is a topic that should be of interest and concern to all actors within the Court, as well as interested parties on the outside. I particularly appreciate that she clarifies that she is talking about both prosecutorial errors and misconduct. I can attest to the extremely high ethical commitment of the prosecutors within the Office of the Prosecutor, and the intense distress that is felt within the office when mistakes are made. Nonetheless, mistakes, and even misconduct, can occur, and therefore it is important to consider the appropriate remedial approach when it happens.

Speaking for myself only and not on behalf of the office, I agree with Jenia regarding the wisdom of the balancing approach, but there may be an additional hazard to the ones she identifies. Just as an absolutist approach might cause judges to avoid finding a violation of an accused’s rights – what Jenia and others refer to as “remedial deterrence” – the balancing approach, which offers the judges a range of remedial options, risks having the opposite effect, causing judges to be too willing to find prosecutorial violations or prejudice to the defense. If judges can impose only a small penalty on the prosecution for an alleged violation, will they be more likely to succumb to pressures to “even” the score or to appear balanced and fair in a high-profile and much-scrutinized case? This risk will be greatest when it is not an individual prosecutor but rather “the Prosecution” that is to be sanctioned. We all like to think that judges are immune to such pressures, but the premise of the remedial deterrence argument is precisely that they are not, that they are in fact human, and so we must also consider the danger of pressures pushing in the opposite direction.

Continue Reading…

NYU JILP Symposium: How Much Weight Should Courts give to Defendants’ Rights in Determining Remedies for Prosecutorial Violations?

by Margaret deGuzman

[Margaret deGuzman is an Associate Professor of Law Temple University Beasley School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

Thanks to Opinio Juris for inviting me to comment on Jenia Turner’s article and to Professor Turner for her excellent and thought-provoking work.

Professor Turner’s article tackles an important problem that has plagued the ICC in its early days. When the ICC Trial Chamber ordered the release of the the Court’s first defendant due to the prosecutor’s procedural violations, it sent shock waves through the international community. Was the ICC’s first case to be derailed by prosecutorial misconduct?  Reactions were mixed.  Some commentators felt the Trial Chamber was overreacting.  Professor Bill Schabas invited the defendant to dinner.

Professor Schabas’ dinner did not come to pass, however, because the Appeals Chamber rejected what Professor Turner terms the Trial Chamber’s “absolutist” approach to remedying the prosecutor’s errors.  The case proceeded, resulting in a conviction and a fourteen-year sentence.

Professor Turner’s article endorses the Appeals Chamber’s more moderate approach to identifying the appropriate remedy for prosecutorial errors and misconduct. Indeed, she urges international courts to go further and develop a balancing test that explicitly pits the interests of victims and the international community in prosecuting international crimes against the values of deterring misconduct and promoting fair trials. The article makes an important contribution to the growing literature on remedies at international criminal courts. Professor Turner provides both a detailed analysis of existing jurisprudence and a compelling normative argument, complete with proposed factors for courts to consider in performing the requisite balancing. The article will thus be extremely useful to scholars and judges alike.

Continue Reading…

NYU JILP Symposium: Policing International Prosecutors Introduction

by NYU Journal of International Law and Politics

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

We are excited to collaborate again this week with Opinio Juris for an online symposium. The symposium will be a discussion of Jenia Iontcheva Turner’s article Policing International Prosecutors published in our Volume 45, No. 1 issue. Professor Turner’s piece analyzes the complex issue about how to “how to ensure that prosecutors are held accountable for their errors and misconduct.”

A number of international criminal law scholars will offer their thoughts on the topic followed afterward by Professor Turner’s response.

Thursday, April 4th, 12pm – 2pm EDT

Friday, April 5th, 12pm – 2pm EDT

Below is the abstract from Professor Turner’s article:

A recurring question in international criminal procedure is how to ensure that prosecutors are held accountable for their errors and misconduct. When International Criminal Court (ICC) judges encountered the first serious error by the prosecution in Prosecutor v. Lubanga, they opted for an absolutist approach to remedies: the judges stayed the proceedings and ordered the release of the defendant. Although termination of the case was avoided through the intervention of the Appeals Chamber, the standoff between the judges and the prosecution highlighted the dilemmas that the ICC faces in these circumstances. To protect the integrity of its proceedings, the court must order remedies that effectively punish misconduct. At the same time, sweeping remedies may harm other interests of international criminal justice, including deterrence, retribution, and the establishment of an accurate historical record.

In its more recent decisions, the ICC has acknowledged these competing interests and weighed them in determining remedies for prosecutorial misconduct. This Article argues that the court should fully and openly embrace a balancing approach to remedies. Because of the gravity and systematic nature of international crimes, it is essential to recognize and accommodate the significant interests of the international community and victims in preventing impunity and establishing an accurate record of the crimes.

The balancing approach is not without shortcomings—it can be unpredictable, and it risks weakening enforcement of defendants’ rights. To avoid these dangers, the court should take several concrete steps in conducting the balancing analysis: specify clearly the factors that will guide it; place special importance on the fair trial rights of the defendant; temper remedies only when a significant and legitimate goal of the international criminal justice system warrants it; and finally, develop a broader range of responses to prosecutorial misconduct, including sentence reductions, partial dismissals, fines, and disciplinary referrals. By applying a well-defined balancing analysis, the ICC can achieve an approach to prosecutorial misconduct that is both effective and able to accommodate the competing interests of international criminal justice.

We look forward to the discussion on this important subject over the next two days.

Weekday News Wrap: Thursday, April 4, 2013

by Jessica Dorsey

New Casebook on the Law of Armed Conflict

by Kevin Jon Heller

CornetalSince I was unable to attend their book launch at Georgetown yesterday, the least I can do is put in a hearty plug for a new casebook written by a number of superb IHL scholars: Geoff Corn, Victor Hansen, Chris Jenks, Richard Jackson, Eric Jensen, and James Schoettler. It’s entitled The Law of Armed Conflict: An Operational Approach, and it more than lives up to its name — which not surprising, given that all of the authors have vast experience in the military. Here is the description:

The Law of Armed Conflict: An Operational Approach comes to students with stunning authority. All of the authors are active or retired United States Army officers with more than 140 years of collective military operational experience among them. Several have experience in both legal and operational assignments as well.  They deliver a comprehensive coverage of all aspects of the law of armed conflict, explaining the difference between law and policy in regulation of military operations. The Law of Armed Conflict provides a complete operational scenario and introduction to the operational organization of United States forces. The focus remains on United States law perspective, balanced with exposure to areas where the interpretation of its allied forces diverge. Jus ad bellum and jus in bello issues are addressed at length. Rich with documentation and examples, the text includes excerpts from treaties and treaty commentaries, domestic and international cases, Department of Defense directives, service field manuals, and regulations implementing legal obligations. Its unique pedagogy is based on overviews of each topical area of the law and utilizes a wartime scenario. Students experience operational legal issues from pre-deployment preparation through post-conflict stability operations to war crimes investigation and prosecution. Carefully crafted problems, most based on actual operational experience, follow each chapter and place the student in the position of a military legal adviser providing operational legal advice.  In this way, students enhance their understanding of the relevance of the law in planning and executing military operations. Designed for either a three or four credit offering, 14 chapters correspond to a 14-week course.

A robust ancillary package accompanies the text with solutions to all study problems, model exam questions (multiple choice, short answer, essay,) recommended supplemental sources, suggested video clips to illustrate issues, Power Point slides for each chapter, and a website with links to all primary sources.

I have already used the book in my scholarship multiple times, and I am sure it will be a great text for any IHL course. The operational emphasis is particularly exciting; when I’ve taught IHL to UN field officers and to officers from various militaries, I’ve always found practical exercises to be the most effective way to convey the basic rules and principles of IHL. Anyone who teaches IHL will definitely want to check the book out.

New Guidelines for Armed Private Security Companies Doing Business with the UN

by Kristen Boon

Armed Private Security Companies (APSC) doing business with the UN are now subject to a new set of practices and protocols that contain a multi-stakeholder monitoring and complaints mechanism.   These practices and protocols are set forth in the International Code of Conduct for Private Security Providers (“Code”), which the UN incorporates via its new Guidelines on the Use of Armed Security Services from Private Security Companies (“Guidelines”) (to be read in conjunction with the UN’s Security Policy Manual, Chapter IV, Section I, “Armed Private Security Companies”).

The UN now requires that APSCs comply with the Code, and limits its hiring of armed APSCs to those that cooperate with the mechanism, as detailed in Section F of the Guidelines.  Prior to commencing UN service, the Guidelines require the APSC to provide training to its personnel on, among other things:

  • cultural sensitivity training
  • Human Rights Law and application
  • Use of Force training
  • integrity and ethical awareness
  • preventing sexual harassment

James Cockayne provides a good overview of the context and content of the Guidelines over at the IPI’s Global Observatory.

The effort is significant for a few reasons.  First, it demonstrates a new effort towards regulating the activities of the UN’s numerous commercial partners in the peace and security field.   This effort to implement and maintain international standards will replace practices that many have described as incoherent and inconsistent (as described in the report here).

Second, these UN specific Guidelines supplement a general but stalled effort to create a multilateral convention on private military and security companies, and will consequently contribute to the soft law in the field.   The most recent draft (from 2010) is available here.  The UN is thus to be applauded for introducing the Guidelines at this time, as opposed to stepping back and waiting for the multilateral process to mature.

Finally, the Guidelines are indicative of a general move towards multi-stakeholder regulation of non-state actors.   This trend has been noted in other international areas including health, as this paper by Professors Abbott and Gartner make clear.   The oversight mechanism here will be established as an association under Swiss law.  It will be governed by two multistakeholder bodies: a General Assembly and a Board. There are three ‘pillars’ in each composed of civil society, industry and states/IOs.  Voting is arranged so as to give any pillar the power to block a decision.  As a result, states, civil society organizations, and industry must cooperate in the Association’s certification, human rights monitoring and complaints mechanism processes.

The oversight mechanism works by requiring the Association to review APSC performance under the Code through external monitoring and self-reporting based on established criteria.  If an APSC violates the code, the Association can initiate suspension proceedings.  For proceedings launched by individuals, the Board can also set up a grievance process to ensure an effective remedy.

I am interested in what OJ readers think.  Will this approach fill an accountability gap by improving   human rights compliance in the field?  Moreover, will this soft law approach establish new benchmarks for an eventual multilateral treaty?  There will be a panel on this topic at the annual ASIL meeting later this week which will be well worth attending.


Guest Post: The ICTY Loses its Way on Complicity – Part 2

by James G. Stewart

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.

In my earlier post, I voiced grave concerns with the ICTY’s recent decision on complicity in a case called Prosecutor v Momčilo Perišić (see here). In my earlier posting, I provided background to this seminal case and criticized the new notion of “specific direction” as an actus reus element of complicity. In this second posting, I discuss how the concerns that animated the Appeals Chamber are better considered within the confines of the mental element required for complicity. Some of the judges in Perišić share this intuition—in their Separate Opinion, Judges Agius and Meron indicate that they might be willing to consider “specific direction” as a component of mens rea if they were entitled to rewrite tribunal jurisprudence (Appeal Judgment, Meron and Agius Separate Opinion, para. 3). For myself, I doubt whether the rewrite required would be anywhere as far-reaching as that they have adopted, especially when the extant law governing the mental element of complicity already contemplates these issues.

International criminal courts and tribunals apply varying mental elements for complicity, including purpose, knowledge and recklessness (see here, pp. 36-47). In the Perišić case, the Appeals Chamber’s recourse to the “specifically directed” standard as an actus reus appears to be a reaction to the notion of reckless complicity i.e. awareness of a probability that assistance will lead to crimes. As such, its embrace of the “specific direction” standard as part of the actus reus could be read as a pragmatic attempt at restraining the scope of an over-inclusive mental element. Nonetheless, if elevating the mental element through the back door like this is the desired effect, it is arbitrary, unprincipled and unnecessary when more moderate interpretations of existing doctrine better account for the underlying concerns.

There are several better routes. Continue Reading…

Pre-Trial Chamber Puts Ball in Security Council’s Court Re: Chad

by Kevin Jon Heller

Omar al-Bashir, the President of Sudan, visited Chad earlier this year. The Chadian government made no attempt to arrest him, despite the fact that — as a member of the ICC — both SC Res. 1593 (the Darfur referral) and the Rome Statute obligated it to cooperate with the Court’s arrest warrant. Human rights groups criticized Chad’s unwillingness to arrest Bashir at the time, and now the Pre-Trial Chamber has formally referred Chad’s non-cooperation to the Security Council. Here are the relevant paragraphs of its judgment:

22. In this context, the Chamber wishes to point out that, unlike domestic courts, the ICC has no direct enforcement mechanism in the sense that it lacks a police force. As such, the ICC relies mainly on the States’ cooperation, without which it cannot fulfil its mandate. When the Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Court as constituting a threat to international peace and security, it is expected that the Council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of the relevant State Party to the Statute to cooperate in fulfilling the Court’s mandate entrusted to it by the Council. Otherwise, if there is no follow up action on the part of the Security Council, any referral by the Council to the ICC under Chapter VII would never achieve its ultimate goal, namely, to put an end to impunity. Accordingly, any such referral would become futile.

23. Having said the above, the Chamber recalls article 87(7) of the Statute according to which, “[wjhere a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute […] the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council”. Since the Republic of Chad has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al-Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council.

Although necessary, this is a risky move by the ICC. As Mark Kersten has repeatedly documented, the Security Council has proven far more willing to refer situations to the Court than to ensure that the Court has the ability to successfully investigate those situations. If the Security Council stays true to form and fails to respond to the PTC’s referral, it will do significant damage to the Court’s legitimacy. Why should any suspect fear arrest while traveling abroad if the Security Council won’t even penalize ICC member-states that fail to comply with its own resolutions?

Stay tuned.

ASIL Annual Meeting: International Law in a Multipolar World, April 3-6, 2013

by Jessica Dorsey

As many of our readers may know, ASIL’s 107th Annual Meeting with the theme of International Law in a Multipolar World is taking place in Washington D.C. at the Marriott Renaissance Hotel today through Saturday.

Select highlights of the meeting include:

  • The Grotius Lecture, with Emilio Álvarez Icaza, Executive Secretary, Inter-American Commission on Human Rights as the Speaker and W. Michael Reisman, Yale Law School as the Distinguished Discussant (Wednesday, April 3).
  • The Women in International Law Interest Group Luncheon, featuring Diane Marie Amann as the Honoree/Speaker and a plenary discussion about International Law in the Obama Administration: The First Four Years. Donald Francis Donavan of Debevoise & Plimpton will moderate the plenary among Harold Hongju Koh, Yale Law School; Michael H. Posner, Department of State; and Anne-Marie Slaughter of Princeton University (Thursday, April 4).
  • The Hudson Medal Luncheon will feature Judge Bruno Simma of the Iran-U.S. Claims Tribunal as the Speaker/Honoree and will be moderated by Joseph Weiler of New York University School of Law (Friday, April 5).
  • The Inaugural Charles N. Brower Lecture will be delivered by V.V. Johnny Veeder. A plenary panel will follow to discuss Twenty Years of International Criminal Law: From ICTY to ICC and Beyond, moderated by Abi Williams, President of The Hague Institute for Global Justice and featuring Fatou Bensouda, Prosecutor of the International Criminal Court and Theodore Meron, President of the International Criminal Tribunal for the Former Yugoslavia and the International Residual Mechanism for Criminal Tribunals (Friday, April 5).
  • The Closing Plenary will discuss Global Governance, State Sovereignty and the Future of International Law, moderated by José Alvarez of New York University School of Law and featuring Judge Bruno Simma of the Iran-U.S. Claims Tribunal, Judge Xue Hanqin of the International Court of Justice and Joel P. Trachtman of the Fletcher School of Dipomacy at Tufts University (Saturday, April 6).
  • Our own Julian Ku will be moderating a panel on China and International Law featuring Jacques DeLisle, University of Pennsylvania School of Law; Bing Bing Jia, Tsinghua University Law School; and Stephanie Klein-Ahlbrandt, International Crisis Group (Friday, April 5)
  • Our own Roger Alford will moderate a panel on Kiobel, the ATS and Human Rights Litigation in US Courts. Panelists will be John B. Bellinger, Arnold & Porter, LLP; Lori Damrosch, Columbia University; David Scheffer, Northwestern University; and Elizabeth Wilson, Seton Hall University (Friday, April 5). Roger will also be participating in a discussion about Jeremy Waldron’s new book, “Partly Laws Common to All Mankind”, Foreign Laws in American Courts (Friday, April 5).
  • Our own Chris Borgen will co-chair the Space Law Interest Group Business Meeting (Friday, April 5).
  • And our own Kevin Heller is on the ASIL Annual Meeting Program committee, led by Laurence Boisson de Chazournes, University of Geneva; Stanimir Alexandrov, Sidley Austin, LLP; and Kal Raustiala, University of California Los Angeles School of Law.

Additionally, our friends at ASIL have asked us to help spread the word about another event taking place during the meeting. The event is Connecting Junior and Senior International Law Academics and it will take place Thursday, April 4, 2013, from 3:15-4:45 p.m. in the Renaissance East Ballroom.

This event, as its title suggests, it is focused on creating new intellectual and mentoring relationships among junior and senior international law academics. It will provide opportunities for people to meet other academics who share similar substantive and conceptual interests through small group discussions and “speed dating.” Please attend to meet new and interesting colleagues and to support ASIL’s junior academic members in their development.

The full program can be found and downloaded here (.pdf). Some of the sessions will be live streamed here and you can follow ASIL Cables, the online daily reporter of the 107th ASIL Meeting. OUP Blog has prepared for the meeting in a post here.

Guest Post: The ICTY Loses its Way on Complicity – Part 1

by James G. Stewart

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.]

The International Criminal Tribunal for the former Yugoslavia (ICTY) is undoubtedly one of the most important institutions in the history of international law, not only for its catalytic effect in generating trials for international crimes before both international and domestic courts but also for breathing new life into both international humanitarian and criminal law. Yet, the ICTY Appeals Chamber recently rendered a judgment on the law of complicity in Prosecutor v Momčilo Perišić (see here), that could undo much of its legacy. In this first of two posts, I will set out the background to this case and consider the problem of “specific direction” as an element of the actus reus, which the Appeals Chamber has newly adopted. In a second post, I will focus on the mental element of complicity, showing how a more traditional approach to mens rea can address the underlying concerns without so seriously disrupting the law of complicity.

Two weeks ago, I attended a roundtable dedicated to the law of complicity at the University of San Diego.  Over the course of two days, a dozen of the best criminal theorists in the English-speaking world came together to debate four competing accounts of complicity.  On the flight home, however, I was more than slightly surprised to learn that the ICTY had just announced a new understanding of the doctrine that is without equivalent in any national law, very different from the Tribunal’s earlier jurisprudence and at odds with the views of all experts congregated at the roundtable I had just attended. Indeed, the new understanding of complicity that the ICTY adopts in Perišić appears inconsistent with foundational principles of criminal law in ways that seriously compromise the doctrine.  Below, I explain why this new position is so troublesome, before I go on to suggest a safer path the Appeals Chamber could have followed.

Momčilo Perišić was the Chief of the General Staff of the Yugoslav Army (VJ), making him the highest ranking officer in that army. Between August 1993 and November 1995, he provided extensive military and logistical aid to the Army of Republika Srpska (VRS), lead by the infamous Radovan Karadžić and Ratko Mladić. At trial, Perišić was convicted of aiding and abetting international crimes perpetrated by the VRS, most notably for crimes associated with the sniping campaign used to terrorize civilians within Sarajevo and for the terrible bloodletting at Srebrenica. Perišić unquestionably provided the VRS with large quantities of weapons, seconded officers involved in these crimes to the VRS (Mladić included), and supported the VRS in a host of other ways. Was all this support innocuous assistance of a general type or criminal complicity in the international crimes undertaken by the VRS?
Continue Reading…

Weekday News Wrap: Wednesday, April 3, 2013

by Jessica Dorsey

Hey, NRA! Hold Your Fire on the Arms Trade Treaty

by Julian Ku

The U.N. General Assembly has voted in favor of the Arms Trade Treaty, which would do what exactly?  Its proponents say it will create an international mechanism to regulate the international sale of arms and other weapons.  Its critics say it will infringe on the individual rights of citizens and nations to buy and possess weapons by requiring member states to keep national registries of end users.

I am probably more sympathetic to gun rights and the U.S. Constitution’s Second Amendment than most of my fellow co-bloggers, but my general take is that the National Rifle Association should not bother fighting this treaty. Earlier versions of this treaty could have given extra legal and political power to Congress for creating a more aggressive national gun and ammunition registry, but the final text is pretty weak on this point. It requires records of exports, but it only “encourages” records of imports.  For instance,

Article 12 Record keeping
1. Each State Party shall maintain national records, pursuant to its national laws and regulations, of its issuance of export authorizations or its actual exports of the conventional arms covered under Article 2 (1).
2. Each State Party is encouraged to maintain records of conventional arms covered under Article 2 (1) that are transferred to its territory as the final destination or that are authorized to transit or trans-ship territory under its jurisdiction.
3. Each State Party is encouraged to include in those records: the quantity, value, model/type, authorized international transfers of conventional arms covered under Article 2 (1), conventional arms actually transferred, details of exporting State(s), importing State(s), transit and trans-shipment State(s), and end users, as appropriate.
4. Records shall be kept for a minimum of ten years.

(Emphasis added).  A similar approach is followed in Article 3 (exports of ammunition) and Article 4 (exports of gun parts).  There is also no mandatory dispute settlement system, and a weak Secretariat with no enforcement or oversight powers.  With all due respect to Ted Bromund over at Heritage, I am not as worried about the philosophical issues he raises in this critique.

The bottom line is that as a practical matter, I don’t think this treaty can be used to regulate domestic use of firearms, or even the domestic registry of firearms.  In fact, I have doubts that this treaty will do much of anything for anyone given how weak its provisions are.  I have never heard the NRA worry about regulation of gun exports, and in any event, I am sure their members care little about that.

I would hope that the NRA will hold its fire on this treaty, and save its political credibility for laws that really would constrain the right of self-defense and the right to bear arms.  We’ll see.

Whale Wars Update: The ICJ Is Not Exactly Rushing to Issue a Judgment

by Julian Ku

I was struck by this line from an editorial in an Australian paper about the latest clashes between Sea Shepherd (e.g. the Ninth Circuit’s “pirates”) and Japanese whalers:

[T]hat the International Court of Justice is expected to hear Australia’s case to shut down the Antarctic hunt later this year.

Three years after the case began,  this hearing can’t come soon enough.

I agree.  The ICJ judgment will not come down anytime before the spring of 2014.  I know this is a complicated case but the timetable for this ICJ decision is really unacceptable.  The original application was filed in 2010. If everyone is lucky, a decision will be issued a year from now, four years after the original application. (It could be longer).  (I have been beating this dead horse for years, but I think I am still right about it).

No doubt part of the problem is that the parties (Australia and Japan) have not sought to expedite this process.  The original scheduling order gave each party ten months to make their written submissions.  So Australia filed their submission in May 2011, and Japan had until March 2012 to file their response.
I suppose part of the idea behind this slow process is to give the dispute time to cool and perhaps even to resolve itself.  But in this case, the dispute has really only intensified. Delay is not really serving anyone’s purpose here.

Weekday News Wrap: Tuesday, April 2, 2013

by Jessica Dorsey

Chaos in the Swedish Prosecution of Assange

by Kevin Jon Heller

And remarkably enough, it has nothing to do with Assange himself. On the contrary:

The top Swedish prosecutor pursuing sexual assault charges against Julian Assange has abruptly left the case and one of Mr Assange’s accusers has sacked her lawyer.

The turmoil in the Swedish Prosecution Authority’s effort to extradite Mr Assange comes as another leading Swedish judge prepares to deliver an unprecedented public lecture in Australia next week on the WikiLeaks publisher’s case.

The Swedish Prosecution Authority want to extradite Mr Assange to have him questioned in Stockholm in relation to sexual assault allegations by two women.

Fairfax Media has obtained Swedish court documents that reveal high-profile Swedish prosecutor Marianne Nye has unexpectedly left the handling Mr Assange’s case, effective from Wednesday, and has been replaced by a more junior prosecutor, Ingrid Isgren. The reasons for the change have not yet been disclosed.

One of Mr Assange’s two accusers, political activist Anna Ardin, also applied to the Swedish courts on February 28 to replace her controversial lawyer Claes Borgstrom. Ms Ardin complained that she found Mr Borgstrom spent much more time talking to the media than to her, referred her inquiries to his secretary or assistant, and that she had lost faith in him as her legal representative.

As well as pursuing the prosecution of Mr Assange, Mr Borgstrom has been heavily criticised for his handling of another high-profile case involving an alleged mass murderer, with one prominent Swedish commentator describing him as doing “the worst defence counsel job in modern Swedish history”.

Ms Ardin’s engagement of a new lawyer, Elisabeth Massi Fritz, has now been approved.

News of changes in the Swedish prosecution of Mr Assange comes shortly before Swedish Supreme Court judge Stefan Lindskog delivers a keynote lecture on “the Assange affair, and freedom of speech, from the Swedish perspective” at the University of Adelaide next Wednesday.


Justice Lindskog is chairman of the Supreme Court of Sweden, the country’s highest court of appeal. In announcing his forthcoming lecture, Adelaide University observed that “as one of Sweden’s most eminent jurists, he is uniquely able to provide an authoritative view of the Assange affair”.

In an article in today’s Australian Financial Review the judge observes that he finds it “amusing how the Assange case offers possibilities of sharp turns when it comes to topics to be discussed. From, on the one hand, whether lies about condoms can result in a sexual crime to, on the other, the question of if telling the truth, by publishing classified information, can amount to a crime permitting extradition to the state that claims being harmed.”

Greg Barns, a barrister spokesman for the Australian Lawyers Alliance, said it was a fundamental legal principle that judges do not speak publicly on matters that are likely to come before the courts or are yet to be decided.

“That a Swedish supreme court judge thinks this is acceptable tends to confirm the fears people have about the impartiality and robustness of the Swedish judicial system. It gives great currency to the belief that Mr Assange’s case in Sweden has been heavily politicised.

As I said, chaos. It will be interesting to see what the Swedish judge has to say in Adelaide. If I weren’t currently in the US for the ASIL conference, I would have made the trip to see him speak…

Guest Post: Goodman Responds to Heller on Capture v. Kill

by Ryan Goodman

[Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. You can also find him on Twitter: @rgoodlaw]

In a forthcoming article in the EJIL (“The Power to Kill or Capture Enemy Combatants”), I argue that the law of armed conflict prohibits the use of lethal force, in some situations, when it is manifestly unnecessary to kill an individual rather than injure or capture them to accomplish a military objective.

On Lawfare, Kevin Jon Heller posted an initial critique of my article (Heller 1.0). I responded pointing out what I consider flaws in his analysis—including extravagant claims such as “no scholar reads Art. 35(2)” of the 1977 Protocol as I do. Heller followed up with a second round of criticisms in an Opinio Juris post (Heller 2.0). Overall, his analysis includes some of the most formidable challenges to my article, and I appreciate how he has presented many of these criticisms. I am grateful to OJ’s editors and to Professor Heller, in particular, for this opportunity to respond to his second round of criticism in this Guest Post.

In this reply, I raise three types of concerns about Heller 2.0’s analysis. First, Heller overlooks clear and contrary evidence in a leading article that Heller himself invokes. Second, Heller reads a provision of an international instrument almost in the exact way that has been understood to reflect a defect in its wording and corrected in later treaties. Third, Heller makes persuasive points about the ICRC Commentaries to the 1977 Protocol, but I argue why my position is, on balance, more convincing.

The relevant treaty provision for our discussion is…

Weekday News Wrap: Monday, April 1, 2013

by Jessica Dorsey