Archive for
June, 2013

Events and Announcements: June 30, 2013

by An Hertogen

Call for Papers

  • The NYU Journal of International Law and Politics (JILP) is currently accepting submissions for its Summer 2014 Peer Review Issue. This year’s peer review issue is dedicated to showcasing the work of emerging scholars who are early in their professional careers and making significant contributions to international legal scholarship. Articles submitted for the peer review issue are reviewed by NYU-affiliated faculty members with expertise spanning a wide variety of disciplines within international law. JILP will be accepting submissions until August 31, 2013 and making decisions for publication on a rolling basis. Submissions must be in electronic form and should be transmitted as attachments to email messages addressed to articleseditors [at] nyujilp [dot] org. Submissions must include the author’s name and “JILP Peer Review Submission” in the subject line of the email. Please also note in your cover letter that you are submitting for consideration in the peer review issue. More information is here.

Announcements

  • A conference on Law & Security: Perspectives from the Field and Beyond will take place in Israel this week. The conference is a joint endeavor of the International Institute for Counter-Terrorism at IDC, the Institute for National Security and Counter-Terrorism at Syracuse University, and the Konrad Adenauer Stiftung.  It will begin today with a keynote speech by Israel’s Deputy Attorney General Shai Nitzan and a dinner, followed by two days of panels on topics including the rule of law, maritime security, cyber-warfare, drones, and the role of courts in balancing law and security. More information is here.

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

My Latest Paper on the Enforcement (or Lack Thereof) of ICSID Awards in China

by Julian Ku

Those international investment law nerds out there know that Article 54 of the ICSID Convention requires each state party to “recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.”  Many of you also probably know that China is one of the most enthusiastic players in the bilateral investment treaty system that often gives ICSID tribunals jurisdiction to issue awards in favor of investors against host governments.

My latest paper, “The Enforcement of ICSID Awards in the People’s Republic of China”, discusses how China (nearly 20 years after joining the ICSID Convention) has failed to adopt any domestic legal mechanism that would fulfill its article 54 obligations.  The only theory by which China could claim fulfillment is if Chinese courts gave the ICSID Convention “direct effect” within its domestic legal system.  I cast some doubts on that theory as well.  Here is the abstract, and comments, of course, are always welcome.

The People’s Republic of China is one of the most enthusiastic signatories of bilateral investment treaties that grant mandatory jurisdiction to the ICSID investment arbitration system. This essay considers the PRC’s domestic laws affecting the fulfillment of its ICSID Convention obligations to recognize and enforce ICSID awards. It notes that the PRC has failed to enact any specific legislation to comply with the ICSID Convention’s recognition and enforcement obligations, making its compliance with these obligations uncertain. It concludes that the only way that the PRC could claim to have fulfilled its treaty obligations is to declare that the ICSID Convention and related agreements have direct effect in its domestic law. The status of treaties within PRC law, however, remains uncertain and unsettled. For this reason, it is likely that a judicial interpretation from the Supreme People’s Court is necessary to guarantee enforcement of such an award within the PRC system. Without such an interpretation, it is highly doubtful that a PRC court would enforce an ICSID award, despite the ICSID Convention’s plain requirement that it do so.

McDonald’s Israel Refuses to Build in Illegal Settlements

by Kevin Jon Heller

ABC reports:

The McDonald’s restaurant chain refused to open a branch in a West Bank Jewish settlement, the company said Thursday, adding a prominent name to an international movement to boycott Israel’s settlements.

Irina Shalmor, spokeswoman for McDonald’s Israel, said the owners of a planned mall in the Ariel settlement asked McDonald’s to open a branch there about six months ago. Shalmor said the chain refused because the owner of McDonald’s Israel has a policy of staying out of the occupied territories. The decision was not coordinated with McDonald’s headquarters in the U.S., she said. In an email, the headquarters said “our partner in Israel has determined that this particular location is not part of his growth plan.”

The Israeli branch’s owner and franchisee, Omri Padan, is a founder of the dovish group Peace Now, which opposes all settlements and views them as obstacles to peace. The group said Padan is no longer a member.

The decision by such a well-known multinational company to boycott the West Bank deals settlers an unwelcome blow.

Without a trace of irony, supporters of Israel’s illegal settlements in the West Bank are calling for a boycott of McDonald’s. No doubt a call for divestment and sanctions won’t be far behind.

Kudos to Padan for putting principle ahead of profit. With luck, his example will inspire other large corporations to do the same.

Weekend Roundup: June 22-28, 2013

by An Hertogen

This week on Opinio Juris, our main event was a book symposium on Katerina Linos’ The Democratic Foundations of Policy Diffusion, introduced here (along with details on OUP’s special offer to our readers). David Zaring and Larry Helfer kicked off the symposium on Monday, and Katerina responded here. On Tuesday, Eric Posner commented on the relationship between policy diffusion and international law, and Ryan Goodman discussed the findings of Katerina’s political opinion experiments. Katerina’s response at the end of day 2 can be found here. On Wednesday, Anu Bradford described how the book can inform the debate on international organizations, and Rachel Brewster welcomed the book’s insights on the influence of international law on national politics. Katerina’s response is here. On the final day of the symposium, Pierre Verdier asked whether the mechanism of policy diffusion would also apply in other areas of international law and policy co-ordination; Harlan Cohen reflected on the book’ conclusions and implications; and Roger raised the question about the role of courts in the diffusion process. Katerina’s final response is here.

The symposium also tied in nicely with Peter’s post on a new sovereigntist essay in Foreign Affairs. As Peter points out, Katerina’s findings may suggest that the tide is shifting on international law.

Roger reviewed Andrew Guzman’s book Overheated, following Hari Osofsky’s review last Friday.

Kevin followed up on the fallout of Judge Harhoff’s lettercalled NBC’s new show Crossing Lines an “unmitigated disaster” and was sceptical about the implications, according to John Dugard’s article, of the ASP’s President’s failure to table a letter on Palestinian statehood. He also recommended a new essay by Ohlin, Van Sliedregt, and Weigend on the Control Theory of Perpetration.

In the category of “oddball questions of international law”, Duncan discussed a Canadian case on diplomatic immunity in case of a dog bite.

Finally, we listed events and announcements and provided weekday news wraps.

Many thanks to our guest contributors, and have an nice weekend!

Was the Expert Letter on Palestine Buried by the President of the ASP?

by Kevin Jon Heller

On 7 August 2012, in response to Moreno-Ocampo’s decision not to accept Palestine’s ad hoc acceptance of the ICC’s jurisdiction, Bill Schabas and John Dugard submitted a letter — signed by 30 leading ICL experts — to the Assembly of States Parties asking it to place the issue of Palestine’s statehood on the agenda of its November 2012 session. The ASP never did, for reasons that were not clear at the time.

The situation may now be clearer. According to a new article by John Dugard in the Journal of International Criminal Justice, the President of the ASP — Estonia’s Tina Intelmann — never presented the letter to the ASP:

Not only was the matter not placed on the agenda of the ASP, but it was not brought to the attention of the Bureau of the ASP. Instead it seems that the decision to take no action was taken by an inner circle of the Bureau. In short the President of the ASP seems to have suppressed the letter and kept its existence unknown to both Bureau and the ASP itself. There seems little doubt that had the President and her inner circle of advisers brought the request to the Bureau it would have been placed on the agenda of the ASP and in all probability the ASP would have made a determination that Palestine qualified as a state as the UN General Assembly decided a few weeks later. The difference is that if the ASP had so decided this would have sent out a clear message to the Prosecutor that she should investigate the situation in Palestine.

Dugard is no doubt correct that the ASP would have decided, if asked, that Palestine qualified as a state. If anything, the membership of the ASP is even more pro-Palestine than the membership of the General Assembly. But I disagree that an ASP decision in favor of Palestine “would have sent out a clear message to the Prosecutor that she should investigate the situation in Palestine.” The issues are separate, so it is entirely possible to believe both that Palestine qualified as a state prior to the General Assembly resolution and that the ICC should be wary of investigating the situation in Palestine. Indeed, that is my position.

I have no insider information concerning the accuracy of Dugard’s claim. I confess to being a tad skeptical — the letter was widely publicized at the time, including at EJIL: Talk!, which I imagine is read by many individuals who are part of, or associated with, the ASP. So I find it difficult to believe that no one outside of the ASP President and her inner circle knew that the letter existed.

That said, Dugard’s allegation is a serious one. It deserves a formal response from the ASP.

Linos Book Symposium: Response to Verdier, Cohen and Alford

by Katerina Linos

[Katerina Linos is an Assistant Professor of Law at Berkeley Law]

I am very pleased that Pierre Verdier, Harlan Cohen, and Roger Alford are offering the closing comments in the symposium on The Democratic Foundations of Policy Diffusion.  Of Pierre Verdier’s multiple contributions to the study of international networks and international economic law, I’ll single out his article “Transnational Regulatory Networks and their Limits,” as it is especially relevant to today’s discussion. In this piece, Pierre Verdier argues that Transnational Regulatory Networks may be ill-equipped to deal with the distributional conflict and defection risks that so often plague transnational cooperation. Harlan Cohen has written extensively about legal theory, legal history, constructivism, and fragmentation in international law. I’ll highlight his recent article “Finding International Law, Part II: Our Fragmenting Legal Community” as it contains the provocative claim that distinct legal communities are forming and creating deeply conflicting interpretations of international lawmaking. Among Roger Alford’s many contributions to international and comparative law, his article “Misusing International Sources to Interpret the Constitution” is particularly relevant today’s discussion, because of its fascinating analysis of the different actors who use foreign models to strengthen their arguments.

These scholars’ posts raise three major questions:

  • Can diffusion through democracy help solve issues like global warming, issues that involve significant externalities and interdependencies?
  • What are the risks of diffusion through democracy?
  • Can we compare judicial borrowing to legislative borrowing? And how does all this connect to yesterday’s decisions on same-sex marriage?

Continue Reading…

Diplomatic Immunity . . . For a Dog?

by Duncan Hollis

Article 37(1) of the 1961 Vienna Convention on Diplomatic Relations (VCDR) provides that a diplomat’s immunity extends to cover “[t]he members of the family of a diplomatic agent forming part of his household … if they are not nationals of the receiving State.”  As the Ottawa Citizen reports, the question is whether Canadian courts applying the VCDR should take the term “family dog” literally:

A lawyer representing the German Embassy is raising the diplomatic immunity flag over a carpenter’s plan to sue the ambassador and his wife after their dog bit him at their official residence last November…. [E]mbassy lawyer Kurt Anders says any such lawsuit would fail in court because Mark Liboiron and his lawyer, Howard Yegendorf, do not have a case against [Ambassador] Werner and Eleonore Wnendt….

Anders states Liboiron was “the author of his own misfortune” when he was bitten by Milou, a golden retriever, on Nov. 29. “The act of keeping a dog unleashed or uncaged was not the cause of your client’s alleged damages. Rather, it is your client’s provocation of the dog that led to any alleged harm. In fact, but for your client’s particular act of calling and taunting the dog, there would not have been any harm.” . . . .

Anders also takes exception to the pending legal proceedings against the Wnendts. “I am positive that a Barrister and Solicitor with your experience is aware of the Foreign Missions and International Organizations Act. … This statute provides for absolute immunity from criminal and civil liability in this situation. Since you must be fully aware of this fact, we wonder why the threat of legal proceedings is contained in your letter.” …

In a Public Citizen story last January, Liboiron said he had a calming influence on Milou, who often growled and snarled at his co-workers, and even at residence staff. Liboiron says the ambassador’s wife was impressed by the way Milou responded to him. But on Nov. 29, he says, after extending his right hand to Milou as the dog approached him, tail wagging, things went terribly wrong. The dog sniffed his hand and then suddenly chomped on it and wouldn’t let go. The carpenter says he furiously swung his arm back and forth several times, eventually smashing Milou into a wall before the dog released his hand. Beside the bite, Liboiron says he suffered damage to his arm, shoulder and neck from swinging the dog. He was on painkillers and underwent therapy for several weeks. He figures he lost about $8,000 in wages….

That the embassy would go [the diplomatic immunity] route, even before there was any threat of a lawsuit from Liboiron, was emphatically denied in January by former German press attaché Peter Finger. When Dolyn Developments, Liboiron’s employer at the time, could not get the German mission to reimburse it for about $5,000 in wages it paid the carpenter while he was recovering at home, it accused the embassy of abusing diplomatic immunity. Finger told The Public Citizen that the refusal to compensate Dolyn had nothing to do with diplomatic immunity. He said it was the embassy’s belief that Dolyn should recover the money it paid Liboiron from the WSIB [Ontario’s Workers Safety and Insurance Board]. Dolyn stopped paying Liboiron about two weeks into his recovery after he decided he was going to sue….

[Liboiron’s lawyer] Yegendorf says that if the Germans present a motion that the lawsuit be dismissed due to diplomatic immunity, he will get a chance to cross-examine in trying to convince the court the lawsuit should proceed based on what Finger told the newspaper in January. “Finger clearly, in speaking, was speaking as a representative of the German government … and I think his statements bind the German government.” Yegendorf says Finger’s remarks played a part in his client’s decision to sue for lost wages as well as pain and suffering….

Meanwhile, Liboiron says he ate into his savings after he missed another three weeks or so of work to recover, without pay. “Pile of BS. I wish it had never happened. It’s not like I asked the dog to bite me.”

OK.  So, it’s not actually a case of diplomatic immunity for a dog; the immunity to be invoked will be that of the Ambassador and his wife.  Still, there’s some interesting questions here.  Does the German press attaché’s statements constitute a waiver of immunity?  I’m guessing it’s not express enough to do so.  In addition, in the United States, a plaintiff might have tried for the non-commercial tort exception under § 1605(a)(5) of the 1978 Foreign Sovereign Immunities Act (which, of course, requires a suit against the sovereign — Germany). I wonder if there’s a Canadian equivalent provision that could play in here?  I’d welcome comments from those with more knowledge of Canada’s approach to diplomatic immunity.  Any dog lovers out there should feel free to weigh in as well.

Linos Book Symposium: Comments by Roger Alford

by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad.

I want to push Katerina a bit on the question of actors involved in the diffusion process. She notes that “many academics, judges and commentators emphasize how references to foreign law reflect elite predilections antithetical to the views of ordinary voters, especially ordinary Americans.” (p.26). The context of that criticism, of course, is constitutional comparativism by the Supreme Court in cases such as Roper v Simmons and Lawrence v. Texas.

Almost ten years ago I too expressed concern about the countermajoritarian difficulty of the Court adopting international and foreign norms that run counter to American majoritarian values. As I put it in this article, “the international countermajoriatian difficulty would suggest that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards…. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard.” (p. 59).

Katerina does not address constitutional comparativism per se, but she clearly voices her support for the democratic diffusion of norms. Her book presumes that “international norms and democracy are mutually reinforcing” and that “democratic processes are an engine, not an obstacle, for the spread of policies across countries.” (p.2). The book also presumes political rather than judicial avenues for the diffusion of norms, with elected politicians constrained to borrow from and reference large, rich, and proximate countries and prominent international organizations to advance their own policy preferences.

So my question for Katerina Linos is whether her theory of democratic diffusion supports or undermines arguments for constitutional comparativism. She explains at length how democratic diffusion occurs, but does not clearly indicate her preference for this type of diffusion over alternatives. Does her convincing case for democratic diffusion undermine undemocratic diffusion by policy elites in the judiciary who are unresponsive to and unconstrained by majoritarian preferences?

In short, does her theory posit that policy diffusion is better when it occurs through democratic processes than when it is imposed by judicial elites? To take concrete examples, is it better with controversial questions such as juvenile death penalty (Roper v. Simmons) or gay marriage (United States v. Windsor) for policy preferences to be advanced through democratic diffusion or judicial diffusion?

My own sense is that the Supreme Court experimented with policy diffusion of global norms through constitutional adjudication ten years ago, but has since retreated from that approach, and that democratic diffusion of global norms is the new normal. Indeed, just yesterday in Windsor the Court expressed its sensitivity to the democratic diffusion of norms with respect to gay marriage:

In acting first to recognize and then to allow same-sex marriages, New York was responding ‘to the initiative of those who [sought] a voice in shaping the destiny of their own times’…. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other…. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. (pp. 19-20).

Linos Book Symposium: Comments by Harlan Cohen

by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]

As others have already written, The Democratic Foundations of Policy Diffusion, is an extraordinary achievement.  Katerina Linos has succeeded in writing a book that is both bold and meticulous, counterintuitive and utterly convincing.  Reading the book, one feels a sense of excitement that we’re truly learning something new.  There is much to learn from it (among others things, the value of her multi-method approach – a model for others), and it is certain to move the conversation in a variety of fields.

Others have already discussed the rich substance of Linos’ study.  My thoughts and questions are on Linos’ conclusions and implications, both those in the chapter of the same title (Chapter 8) and those left unstated.

My main concern is that Linos’ study may be more consequential than the final chapter suggests.  It might just be that she’s too humble, but I’m not sure Linos’ conclusion chapter does justice to the radical implications of her findings.  Take the first set of implications she identifies, those regarding the legitimacy of policy diffusion.  “The good news,” as David Zaring summarized, is that far from being imposed by unaccountable foreigners or technocrats, health and family policies are borrowed from abroad as a result of democratic politics.  As Linos writes on p. 181, “[b]y connecting references to foreign laws and international organization proposals to majoritarian values, this theory offers a direct response to criticisms of foreign laws and international organizations’ recommendations as undemocratic.”

As Linos recognizes, diffusion through democracy comes with concerns of its own.  Because politicians draw only upon those models to which voters are likely to respond – models from nearby and wealthy states – the policies adopted may not be the best available for their state.  Linos suggests that the foreign models they borrow from may be good choices; various theories of optimal borrowing suggest that shared legal heritage and success on the ground are positive indicia of good policy fit.  But whether or not these policies are the best, the overall implication is that, suggested by politicians and ratified by voters, these policies are at least legitimate (or better, more legitimate than critics of borrowing recognize.)

I’m less sure.  Continue Reading…

Linos Book Symposium: Comments by Pierre-Hugues Verdier

by Pierre-Hugues Verdier

[Pierre-Hugues Verdier is an Associate Professor of Law at the University of Virginia School of Law]

Katerina Linos’s new book, The Democratic Foundations of Policy Diffusion, is one of the most important contributions to arise from the recent turn to empirical scholarship in international law and international relations.  Instead of following a deductive path from broad theoretical assumptions, the book carefully combines survey evidence, cross-country regression analysis and case studies to paint a coherent picture of policy diffusion through democracy in the fields of health and family policy.  Yet, this careful and inductive approach leads to a central theoretical contribution to the field.  From a descriptive perspective, the book shows that non-binding standards with minimal institutional support can contribute to significant domestic policy shifts in high-stakes areas, despite resistance by domestic interest groups.  From a normative perspective, its model of diffusion through democracy may solve a perennial and vexing paradox of global governance, by providing international policy coordination that is both effective and consistent with democratic accountability.

However, while the book’s focus on the often neglected areas of health and family policy is innovative and welcome, it inevitably raises the question whether the mechanism it identifies applies to other areas of international law and policy coordination. As the book points out, the field of social policy is characterized by non-binding international models rather than binding agreements, with a few exceptions such as ILO conventions.  Nevertheless, the book suggests in several places that diffusion through democracy may apply much more broadly to other policy choices, and can inform longstanding general questions of institutional design such as the choice of hard law or soft law instruments.  Likewise, the book’s conclusion implies that the normative benefits of this mechanism in alleviating the democratic deficit of global governance also apply to other areas of international policymaking.  In this short contribution, I want to suggest two reasons for caution is assessing the broader potential implications of this mechanism.
Continue Reading…

Sovereigntist Alarm-Ringing in Foreign Affairs

by Peter Spiro

John Kyl, Douglas Feith, and John Fonte have this offering in the July/August edition of Foreign Affairs. It’s a strong restatement of the sovereigntist position on the incorporation of international law from a powerful trio – Kyl, the sovereigntist legislator par excellence; Feith, the veteran executive branch point-man; and Fonte, the house intellectual. But the piece feels tired from the title (“The War of Law”) on down.

If there’s anything new, it’s in a more explicit rhetorical acknowledgement that international law isn’t all bad, to the extent it supplies “useful rules of the road” (an “accommodationist” move also made by Julian Ku and John Yoo in their recent book Taming Globalization). Beyond that, the anti-internationalist tone plays along familiar chords. Though the piece concedes that treaties can sometimes become part of domestic law (“After all, the U.S. Constitution specifies that treaties, together with the Constitution itself and federal statutes, are ‘the supreme law of the land’”), it doesn’t cite a single specific example of a “good” one.

The UN treaty committees are now clearly on the sovereigntist threat list (mandating day care in Slovenia!). Down with universal jurisdiction (Dick Cheney in a foreign dock)! “[T]he transnational law movement is creative, determined, and championed by prestigious figures. It has already altered the legal landscape and could inflict further harm on federalism and democratic accountability.” Cue attack on Harold Koh as ringleader.

Customary international law remains the prime target, in its “new” and “instant” versions, as incorporated not only by activist judges but also by the transnationalist Obama Administration (taken particularly to task for accepting the CIL status of Additional Protocol I). The piece calls on Congress to “counter this affront to the Constitution” with new legislation that “could help ensure that there are authoritative, proper, and constitutional means in place to incorporate new norms or new customary international law into U.S. law.”

I don’t see that bill getting very far (how would it be framed?). The proposal shows a nagging insecurity among the sovereigntists. At one level, what have they got to worry about? If a disabled rights convention can’t get through the Senate, nothing can. Contrary to the activist judge trope, the Supreme Court is resisting international law at every turn.

But international law is more insinuating than that. Chapter 3 of Katerina Linos’ book on policy diffusion, the subject of our excellent symposium this week, supplies some interesting support: even — perhaps especially — Republicans are more inclined to support policies endorsed by the United Nations. That points to a socio-cultural shift on international law, one that sovereigntists are powerless to stop.

Weekday News Wrap: Thursday, June 27, 2013

by An Hertogen

Linos Book Symposium: Response to Comments by Bradford and Brewster

by Katerina Linos

[Katerina Linos is an Assistant Professor of Law at Berkeley Law]

I am thrilled to receive comments from Anu Bradford and Rachel Brewster on The Democratic Foundations of Policy Diffusion! Anu Bradford’s contributions to European Union law, trade law, anti-trust law, and international regime theory are multiple and major, but I highlight her recent piece “The Brussels Effect,” as it connects well to today’s discussion. In “The Brussels Effect,” Bradford explains clearly why some jurisdictions are able to directly influence the choices of foreign firms and citizens through their market power while others are not. Rachel Brewster’s work on international legal theory, state reputation, trade law and climate change has greatly influenced my thinking. Her article “Stepping Stone or Stumbling Block: Incrementalism in National Climate Change Regulation” proposes fascinating and counter-intuitive interactions between national and international regulatory choices.

I focus my response on two questions raised by both scholars:

  • Do popular laws spread in different ways from unpopular ones? What changes when international organizations do not recommend expansions to social programs, but instead call for austerity measures and cut-backs?
  • Does diffusion through democracy lead us to expect global convergence or regional silos?

Continue Reading…

Ohlin, Van Sliedregt, and Weigend on the Control Theory of Perpetration

by Kevin Jon Heller

I want to call readers’ attention to “Assessing the Control Theory,” an important new essay written by three of the best substantive international criminal lawyers. Here is the abstract of the essay, which is forthcoming in the Leiden Journal of International Law:

As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.

It’s a dense essay — modes of participation are never easy, and the control theory is particularly complicated, especially for common-law scholars. But it’s well worth the mental investment. To crib from Larry Solum, read Ohlin, Van Sliedregt, and Weigend!

 

Linos Book Symposium: Comments by Rachel Brewster

by Rachel Brewster

[Rachel Brewster is Professor of Law at Duke Law]

There is much to admire in Katerina Linos’ new book, The Democratic Foundations of Policy Diffusion: How Health, Family and Employment Laws Spread Across Countries.  Linos elegantly integrates a disparate set of literatures – international relations, domestic politics, and transnational diffusion – to construct a powerful and persuasive account of the transmission of social policy between states.  The book is a remarkable achievement.  It uses sophisticated statistical models as well as case studies and polling data to establish the causal argument at the core of the book:  that democratic voters are a crucial part of the diffusion process.

Linos’ approach is a significant departure from the standard diffusion story, which models diffusion as an elitist, technocratic model.  The conventional account posits that high-level policy officials will evaluate the social policies of a diverse group of nations and select the policy that is best suited to their national conditions (or the officials’ political or professional goals).  This expertise-based account predicts that policies will trend across countries as states based on elite connections–potentially over the preferences of the national population.

Linos offers a fundamentally different understanding of the diffusion process.  She argues that domestic democratic majorities are not irrelevant to the spread of social policies, but a central part of the process.  Rather than being an elite policy story, the politics of diffusion is a voter-centric one.  This makes a significant difference in the pattern of outcomes we should observe.  Because voters have limited policy information and limited willingness to investigate competing policy claims, voters focus their attention on the policies of their large and wealthy neighbors.  Thus diffusion policies should be somewhat “lumpy” with dominant regional templates.  Policies recommended by international institutions – even non-binding resolutions or recommendations – are also identifiable to voters and can produce more uniform policies transnationally.  In addition to making different predictions, the voter-centric model also put a different light on the democratic-deficit critique.  Linos persuasively demonstrates that politics of diffusion is a majoritarian process and not a minority-dominated imposition of elite views.

To my eye, the most intriguing elements of Linos’ work relate to what diffusion models inform our understanding of the influence of international law on national politics.  Continue Reading…

Linos Book Symposium: Comments by Anu Bradford

by Anu Bradford

[Anu Bradford is Professor of Law at Columbia Law School]

Katerina Linos’ book provides a novel, intriguing and highly compelling theoretical and empirical account for how and why foreign models diffuse across borders. Voters have limited information and patience to evaluate policy proposals their government advance. Benchmarking these proposals against policies that international organizations have endorsed, or that large, culturally proximate, and successful countries have adopted, provides a powerful and low-cost way of convincing the general public of the expected success of the policy. This explains why international models shape public policy and explain legislative outcomes in democracies.

The book offers a distinctly fresh perspective on the contested relevance of international organizations (IOs). These institutions’ power to convey a clear message of what is competent and mainstream, and the use of that message to gain an electoral advantage domestically, heightens their influence in a way that has thus far not been understood.  This contribution is therefore likely to have a significant and lasting impact in the discussions of international law and institutions.

Linos’ decision to test her theory on health and family policies, which are politically contested and fiscally significant, makes her book all the more interesting. This choice allows for a particularly original look at the influence of international law, which rarely focuses on social policy questions. Governments have tried to shape the family decisions on women’s employment and the fertility patterns for decades, the book notes. Their desire to do so will likely only increase with the looming demographic crises across the developed world, which calls for increasing women’s participation in the labor force while also heightening the need to grow the size of their families.

The empirical discussion of family policy diffusion across OECD countries (Chapter 6) and as well as the quantitative and qualitative study of family policy developments in Greece and Spain (Chapter 7) offer a strong and often surprising support for her thesis. Looking at the evidence from 18 OECD countries over 25 years, Linos shows how international organizations and cross-country influences explain domestic regulatory choices and spending patterns in the field of family policy. The diffusion of maternity leaves has been particularly striking, which is explained by the existence of strong and coherent international models. Family benefits have diffused considerably less in large part due to the lack of such benchmarks. This pattern—uniform maternity leave policies and differential family benefit policies—is confirmed in her study on the adoption of maternity leaves and family benefits in Greece and Spain.

The book emphasizes the relative success of the International Labor Organization (ILO) over the EU in promoting family policies and highlights the power of soft law over hard law to diffuse successfully.  The ILO’s greater success in promoting maternity leaves compared to that of the EU—which is vested with the ability to generate hard law and pursue legal action against reluctant emulators— serves as one indicator of this.

However, an alternative reading of Linos’ work could be that of irrelevance of the binding versus non-binding distinction when measuring the influence of international norms. Continue Reading…

Weekday News Wrap: Wednesday, June 26, 2013

by An Hertogen

Linos Book Symposium: Response to Eric Posner and Ryan Goodman

by Katerina Linos

[Katerina Linos is an Assistant Professor of Law at Berkeley Law]

I’m honored to receive comments on the Democratic Foundations of Policy Diffusion from two preeminent scholars in international law. Eric Posner has written thought-provoking work in countless fields, but I’ll highlight one article, “The Law of Other States” for its rich insights on what an ideal policy diffusion process might resemble.  Ryan Goodman’s work has changed the way we think about human rights, the law of war, and interdisciplinary scholarship in international law more generally. Goodman’s path-breaking article “How to Influence States: Socialization and International Human Rights Law” has lead many international lawyers to focus not only on only political science and economics, but also on sociology. It inspired me to write this book.

Their comments invite debate on several empirical issues, as well as on two major theoretical questions:

  • 1)   Do diffusion studies imply that “international law is weaker than generally recognized”?
  • 2)  How does my theory of diffusion through democracy connect to theories of state socialization, and more generally to research on constructivism and sociological institutionalism? Which exact mechanism do my experimental results support?

Continue Reading…

Linos Book Symposium: Comments by Ryan Goodman

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]

Katerina Linos’s book, The Democratic Foundations of Policy Diffusion, bears the hallmarks of great scholarship. She tells us something new, important, and counterintuitive about international law. And she predicates her theories on multiple, rigorous and innovative empirical methods. I thus share the praise that has been heaped on Linos’s impressive book by the other OJ commentators from yesterday and today.  Indeed, I have drawn upon and cited drafts of the book manuscript in my own work; included excerpts of Linos’s earlier research in a textbook that I co-edit; and blurbed the back of the book with immense praise.

Against this backdrop, I want to interrogate a specific part of the book—the chapter on the United States—and, in particular, Linos’s theoretical account of her political opinion experiments. Indeed, this is the key part of the book that tries to get “inside the minds” of individuals and understand the mechanisms for influencing their policy preferences.

The experiments ask a representative sample of the US population whether they support a social policy. Linos then compares that baseline group with groups that were told either that Canada had adopted the policy, that most western states had adopted the policy, that the UN recommended the policy, or that US experts recommended the policy. She also compares whether particular subjects—Republicans versus Democrats or highly informed versus poorly informed individuals—responded differently to the different prompts. In one experiment the social policy is universal health care, and in another experiment the policy is paid maternity leave.

According to Linos, the experiments suggest that foreign and international models provide a source of information for members of the electorate to determine whether their political representatives are proposing good social policies (an information-deficit theory). Does the data fit this theoretical explanation best? Are the data equally consistent with alternative theories that emphasize social and psychological conformity as a mechanism that explains the influence of foreign and international models on individual preferences?

Let’s start with three of the most interesting and important empirical findings in the chapter:

1. US citizens respond much more favorably to governmental policies—including ones that explicitly require tax increases—if they are told that other western states have already adopted the social policy or told that the United Nations recommends it.

2. Republicans respond more favorably than Democrats when informed that the UN recommends a social policy or that most western states have adopted the policy.

Note: This finding appears to compare shifts in support among Republicans who disfavor a social policy with shifts among Democrats who disfavor the policy. This comparison may involve systematic bias. The type of individual who self-identifies as Republican and favors core parts of the Republican Party platform is very different from the type of individual who self-identifies as Democrat and opposes core parts of the Democratic Party platform. Indeed, the former might be considered conformists and the latter non-conformists. And Linos’s findings show that the former are more likely to follow global trends and the international “mainstream.” Accordingly, the key explanation may boil down to a social conformity mechanism.

3. In important cases, individuals who are poorly informed about a social policy respond more favorably than well-informed individuals when told that other western states have already adopted the social policy or that the United Nations has recommended it.

I want to focus in detail on the third finding, and contend that it should be significantly qualified. Continue Reading…

Linos Book Symposium: Comments by Eric Posner

by Eric Posner

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago]

I’m going to focus on a narrow issue, one that Katerina takes up in the last chapter of her impressive book, and that is the relationship between policy diffusion (the topic of her book) and international law (which is something of an afterthought), and specifically the debate as to why states comply with international law. I can see a few possibilities.

First, there is no relationship between the argument in her book and international law. Katerina argues that state X may adopt the policies of state Y because voters in X perceive the success of the policy in Y as evidence of its value, but this process of diffusion says nothing about why state X may comply with an agreement with state Y. Suppose, for example, that state X and state Y enter into a mutual defense pact. The fact that X may imitate Y’s domestic policies, or even foreign policies, does not mean that X will comply with the pact.

Second, the book suggests that international law is weaker than generally recognized. Maybe what appears to be compliance with international law because it is law is actually the diffusion of policies. X and Y agree to reduce tariff barriers but X lowers its barriers not because of its treaty but because Y, for independent domestic reasons, lowers its barriers, and X mimics Y. Policy diffusion, not international law, is the causal factor. Thus, if numerous other states raise their trade barriers, we would expect X or Y to raise their trade barriers as well, in violation of the agreement.

Third, states comply with treaties because the treaties themselves become a vehicle for the diffusion of policy. States X and Y enter the WTO and comply with its rulings in order to obtain gains from trade. State Z can more easily imitate X and Y’s policies by observing the WTO’s rulings than by surveying numerous states. If Z is itself a member of the WTO, then policy diffusion here may in some sense cause Z to comply with the WTO, or at least act consistently with it. Note, however, that according to Katerina’s argument, Z would comply with the WTO rulings even if Z were not a WTO member and thus had no legal obligation to do so.

Katerina endorses the third hypothesis, but her evidence does not distinguish it from the other two. This matters when we consider her claim that her thesis and evidence should quiet those who criticize international law because it interferes with democracy by constraining domestic politics. Katerina’s argument that international law generates information that voters can use to discipline their political agents depends on an implicit assumption, never defended, that policy differences across states are mainly due to asymmetric information, and not heterogeneous values and preferences.

There are three problems with this assumption. Continue Reading…

Weekday News Wrap: Tuesday, June 25, 2013

by An Hertogen

The Problem with “Crossing Lines”

by Kevin Jon Heller

After weeks of anticipation, I finally had a chance to watch the premiere of Crossing Lines, the new NBC drama about a police unit that works for the International Criminal Court. As a police procedural, the show is not bad. William Fichtner is fantastic as always. Production values are extremely high. Bringing together detectives and investigators from a number of European states is a nice idea. And all the actors have nice accents.

But as a show about the ICC, Crossing Lines is an unmitigated disaster.

The problem, of course, is with the basic premise. I could almost accept a show that gave the ICC a police force; after all, who among us doesn’t wish it had one? But I cannot accept a show that invents an ICC police force that investigates, in the words of one of the executive producers, “topical crimes and illicit global trades such as plutonium poisonings, serial killings, kidnappings, human trafficking and drug smuggling.” Indeed, the two-hour pilot has the “ICC team,” as it’s called — complete with ICC badges — investigating a serial killer who has killed four women in European capitals.

I was very curious to see how, if at all, the writers would get around the inconvenient fact that the ICC team will investigate crimes over which the Court has no jurisdiction. At first they just avoided the issue: after the newly-recruited Fichtner character points out that the ICC usually investigates war crimes and genocide, the leader of the team simply replies, “for now we’re going to try something…” He then changes the subject and explains that the team is comprised of the best and brightest detectives from various Western European states. (Africa’s worst nightmare!)

But then things get ridiculous. Initially, the ICC — via Donald Sutherland, who plays some unidentified but clearly important role at the Court — refuses to sanction the team because the powers-that-be are worried its investigations will “usurp the power of sovereign states.” (I guess the whole notion of consenting to the Court via ratifying the Rome Statute is too difficult to explain — or too dramatically unsatisfying.) The pretty Italian investigator protests, pointing out to Donald Sutherland that he once wrote a report about Kosovo in which he said the ICC was the only place the “mothers and wives of missing Serbs” could turn for justice. (I’ll let my friend Marko Milanovic mock Donald Sutherland’s concern for the fate of Kosovo’s Serbs. I’ll simply note the disappearance of the Court’s temporal jurisdiction.) The leader of the team agrees — and adds in defense of the serial-killer investigation, “it’s a crime of aggression that is ongoing, systematic, and crosses borders – this is exactly what the ICC does.” (Um, no.) Donald Sutherland relents, and quickly returns with “an order” signed by a “magistrate” that permits the team to investigate the killings over the objection of national police forces. (Magistrates at the ICC?)

You don’t have to be an ICC expert to realize that the show’s treatment of the Court’s jurisdiction is a fiasco. And there are numerous minor errors in the show that also collectively annoy: it says the ICC is based in Holland (technically correct, but the Court itself says it’s in the Netherlands); the ICC logo is wrong, with the Court’s initials instead of the scales of justice; the Court’s parking sign is only in English; there is apparently a dusty, brick-lined basement in the Court that isn’t being used for anything; the team has a machine that makes a holographic reproduction of a crime scene (pretty sure that’s not in the ICC budget!); etc.

Having spent a couple of years writing television in Hollywood, I accept the need for dramatic license. But Crossing Lines is not just wrong — it’s wrong in a way that can only harm the ICC. Very few Americans outside of academia understand how the Court functions, and that lack of understanding no doubt helps explain why so many Americans oppose the Court and perceive it as a threat to US sovereignty. This show will only reinforce their ignorance and their skepticism. Even worse, for those Americans who do not reflexively oppose the ICC, it will saddle the Court with unrealistic expectations. Why shouldn’t the Court have a police force? Wouldn’t that make it work better? Why doesn’t it address serious crimes like drug trafficking? (The show should be very popular in Trinidad and Tobago.) Why should it be limited to investigating crimes committed after 1 July 2002? Why doesn’t it have nifty technology that would make investigating crimes so much easier?

What I find the most baffling is that, as best I can tell, there was absolutely no reason for the producers to set Crossing Lines in the ICC. Doing so is simply a counterproductive distraction. Why not set the show — which, as I said, is a relatively interesting police procedural — at Interpol? Interpol doesn’t have a police force either, but it’s certainly not impossible to imagine states giving it one. And Interpol is, in fact, involved in nearly all of the crimes the show wants to explore.

I have no idea whether Crossing Lines will survive. The premiere’s ratings were less than impressive. But rest assured, dear readers: your humble reporter will stay on the case until the bitter end.

Linos Book Symposium: Response to Larry Helfer and David Zaring

by Katerina Linos

[Katerina Linos is an Assistant Professor of Law at Berkeley Law]

I am thrilled that Opinio Juris has chosen to host a symposium on The Democratic Foundations of Policy Diffusion, and has lined up an amazing group of international law scholars to comment on different parts of the book. Special thanks to An Hertogen, Roger Alford, and Peggy McGuinness for all of their work in putting together this symposium.

Today, I am honored to receive comments from Larry Helfer and David Zaring. Larry Helfer’s work on international legal theory, human rights, international organizations, and labor law has shaped a whole generation of younger scholars, including myself. David Zaring’s research on transnational expert networks, judicial citations to foreign decisions, the influence of non-binding norms, and the administrative state has transformed how I think about each of these areas.

Their comments invite debate on three big questions:

  • What’s special about the diffusion of laws as compared to the diffusion of other ideas?
  • What changes when international organizations (rather than foreign country governments) get involved in policy diffusion?
  • What can we infer, and what can we not infer, from politicians’ campaign statements and legislative debates?

Continue Reading…

Linos Book Symposium: Comments by Larry Helfer

by Larry Helfer

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law]

Katerina Linos has written an audacious and analytically rigorous study of how health and family policies spread over time across industrialized countries.  She deftly synthesizes a broad range of qualitative and quantitative research methods into a brilliantly-conceived research design that analyzes the mechanisms by which such policies disperse across borders.  The book’s core findings—that foreign and international models influence domestic policy adoption via politicians’ appeals to skeptical voters who view such models favorably—are highly counterintuitive.  The findings are at odds with the existing literature on policy diffusion, which identifies networks of experts and elites as the primary transmission mechanisms.  They are also contrary to the conventional wisdom that resistance to foreign and international policies is especially strong in the United States, where voters are thought to be unaware of such exemplars or mistrustful of those they have encountered.

My comments focus on chapters 3 and 4 of the book, which consider, respectively, how Americans view foreign models and how national health services have diffused across OECD member states.  Linos labels the first question as a “hard test case” for her theory (p.36), for the reasons just noted.  To search for evidence that U.S. voters and politicians are swayed by foreign policies, she conducts public opinion experiments and codes Congressional debates leading to the adoption of the 2010 Affordable Care Act and the 1993 Family Medical Leave Act.  The experiments suggest that Americans are much more likely to favor publicly-funded health insurance and maternity leave if such policies have previously been adopted by most Western countries or endorsed by the United Nations.  Linos also finds that members of Congress reference the health and family policies of rich, proximate and familiar nations rather than countries that experts view as the most relevant to the United States.

Chapter 4 makes the more modest claim that the national health systems (NHS) of foreign countries with the characteristics identified above (and, to a much lesser degree, nonbinding international norms endorsing universal primary healthcare) explain the spread of health policies among industrialized countries.  Here Linos builds upon an existing literature that identifies facilitating conditions for the adoption of NHS, but that has yet to explain the timing and geographic spread of those policies.  Chapter 4’s conclusions, although more nuanced than those of chapter 3, provide additional evidence to support Linos’ theory of democratic diffusion.

I have two sets of comments and questions about Linos’ arguments and findings in these chapters. Continue Reading…

Linos Book Symposium: Comments by David Zaring

by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School]

Why does almost every country in the developed world have maternity leave, or government supported retirement programs? Katerina Linos knows the – always surprising to me, but repeatedly tested by political scientists – fact that countries adopt the policies of their similar, often nearby, neighbors. In The Democratic Foundations Of Policy Diffusion, she argues that there is good news underlying this trend of cross-border adoption. Rather than being a function of bureaucrats forcing, say Swiss health care models down the throats of American citizens, she shows that, across countries, and even among Americans themselves, 1) citizens prefer policies that are proposed with evidence of foreign and international organization endorsement; and 2) politicians invoke this sort of evidence when trying to mobilize support for their programs.

This might strike your average American, who, if she is anything like me, is hardly maximally cosmopolitan, as implausible. How many voters, let alone the median American voters political scientists think about the most, care about how they do things in Canada, or can be bothered to find out? Will they really choose the suite of policies proposed by the leader who does the best job invoking the recommendations of the United Nations on the campaign trail?

Linos makes a persuasive case that even in America her theory about policy diffusion holds true, partly because her argument proceeds not just from the evidence she gathers, but from two bedrock principles of social science. The first is related to that median voter proposition. Political scientists have become very skeptical of great man histories of the world. Americans, on this reading, are unlikely to support radical reform of the health care because the president really wanted them to do it, or because particularly persuasive norm entrepreneurs, be they in academia, the American Medical Association, or in European health agencies, assured elites that it would be a good idea. But that is how policy diffusion would work if it wasn’t supported by democratic foundations. Paired with evidence of the invocation of foreign practices in American politics, why wouldn’t we assume that rational American voters choose to do things the French way because they wanted to do so?

The second bedrock social science proposition at work here, I think, turns on competition. Social scientists often posit the existence of markets in everything. Voters will always test the job their government is doing for them against the alternatives. Sometimes, those alternatives come from the other party. But isn’t it plausible to think that they might be interested in the alternatives provided in other countries as well?

The plausibility of the story went a long way towards convincing me, but there are some other implications and cavils worth noting: Continue Reading…

Book Symposium: “The Democratic Foundations of Policy Diffusion” by Katerina Linos

by An Hertogen

This week, we’re hosting a symposium on The Democratic Foundations of Policy Diffusion: How Health, Family and Employment Laws Spread Across Countries, a new book by Katerina Linos (Berkeley Law). Here is the publisher’s description:

Why do law reforms spread around the world in waves? Leading theories argue that international networks of technocratic elites develop orthodox solutions that they singlehandedly transplant across countries. But, in modern democracies, elites alone cannot press for legislative reforms without winning the support of politicians, voters, and interest groups. As Katerina Linos shows in The Democratic Foundations of Policy Diffusion, international models can help politicians generate domestic enthusiasm for far-reaching proposals. By pointing to models from abroad, policitians can persuade voters that their ideas are not radical, ill-thought out experiments, but mainstream, tried-and-true solutions. The more familiar voters are with a certain country or an international organization, the more willing they are to support policies adopted in that country or recommended by that organization. Aware of voters’ tendency, politicians strategically choose these policies to maximize electoral gains. Through the ingenious use of experimental and cross-national evidence, Linos documents voters’ response to international models and demonstrates that governments follow international organization templates and imitate the policy choices of countries heavily covered in national media and familiar to voters. Empirically rich and theoretically sophisticated, The Democratic Foundations of Policy Diffusion provides the fullest account to date of this increasingly pervasive phenomenon.

Commentators will be Eric Posner, David Zaring, Larry Helfer, Ryan Goodman, Anu Bradford, Rachel Brewster, Pierre Verdier and Harlan Cohen. It speaks to the quality of Katerina’s work that we’ve been able to assemble such a stellar line-up of commentators, and we look forward to the debate.

We’re also very pleased that Oxford University Press has come on board to offer our readers a 20% discount. To claim the discount, simply visit oup.com/us and type 23954 in the Promo Code box on the upper right-hand side of the OUP homepage, and search for The Democratic Foundations of Policy Diffusion by title or ISBN 9780199967865.

Weekday News Wrap: Monday, June 24, 2013

by An Hertogen

Events and Announcements: June 23, 2013

by An Hertogen

Events

  • The American Bar Association Standing Committee on Law and National Security is sponsoring an event at the Newseum in Washington DC, on June 25 at 4pm, on NSA Surveillance Leaks: Facts and Fiction. There will also be a live webcast on the Newseum website if you can’t attend.
  • The McCoubrey Centre for International Law at the University of Hull (UK) is hosting a two day conference on July 4-5, 2013 on the subject of the responsibility to protect (R2P). With 40 papers from academics from around the world, together with a key note speech by Professor André Nollkaemper of the University of Amsterdam, and Director of the SHARES Research Project on Shared Responsibility in International Law, the conference seeks to make a significant contribution to the understanding of this important area of international law. Registration to attend the conference is now open. Attendance costs £10 and pre-registration is required. For further information or to register to attend please e-mail mcil [at] hull [dot] ac [dot] uk. More information is here.

Announcements

  • American University Washington College of Law’s Initiative for Human Rights in Business (IHRIB), a project of the Center for Human Rights & Humanitarian Law, is seeking research and writing assistance for the drafting of a shadow report on the private military and security industry. The report, which is being written and coordinated by an international team of academics, experts, and civil society organizations, will examine the extent to which a subset of key signatory states are meeting their commitments under the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict. Law school and graduate students and experts in the field are encouraged to apply. The positions are not remunerated, but all contributors will be acknowledged in the report and letters of recommendation will be provided. For questions, or to apply, submit a cover letter and resume to Rebecca DeWinter-Schmitt, Co-Director, IHRIB. More information can be found here.

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

What Judge Harhoff Hath Wrought

by Kevin Jon Heller

I considered adding a question mark to the title of this post, but there’s really no need. I argued a couple of days ago that the real scandal concerning Judge Harhoff’s letter was the Judge’s willingness to reveal confidential discussions between the ICTY’s judges. We now have to acknowledge another aspect of the scandal: quite understandably, defence attorneys are making use of the letter to attack convictions in Judge Harhoff’s cases. Just yesterday, counsel for Rasim Delic filed a motion with the Tribunal that seeks to overturn Delic’s convictions — posthumously, no less — on the ground that the letter reveals “serious misconduct and breach of duty” by Judge Harhoff. Unfortunately, I cannot cut-and-paste from the motion. Summarizing, it argues (1) that Judge Harhoff evidently believes that the ICTY exists to convict high-ranking defendants; (2) that Judge Harhoff is willing to convict on the basis of feelings and suspicions instead of reasonable doubt; and (3) that Judge Harhoff does not understand the ICTY’s jurisprudence, particularly concerning command responsibility.

I don’t want to get into the first or second points, although I agree with the defence that the letter creates at least the perception that Judge Harhoff is pro-conviction and not particularly concerned about proof beyond a reasonable doubt. The third point, however, seems unassailable to me. Consider the following passages from Judge Harhoff’s letter:

But that is exactly what the commanders get paid for: They MUST ensure that in their area of responsibility no crimes are committed, and if they are they must do what they can to prosecute the guilty parties. And no one who supports the idea of ethnic eradication can deny the responsibility of, in one way or another, contributing to the achievement of such a goal. However, this is no longer the case. Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed.

The result is now that not only has the court taken a significant step back from the lesson that commanding military leaders have to take responsibility for their subordinates’ crimes (unless it can be proven that they knew nothing about it)…

Life is too short to patiently explain why almost nothing in the paragraphs above is accurate. Suffice it to point out that, according to the final sentence, Judge Harhoff believes that military commanders bear the burden of proof with regard to the mens rea of command responsibility. It’s deeply troubling to hear an ICTY judge take that position — and it certainly warrants the Tribunal taking a long look at Judge Harhoff’s cases involving command responsibility.

I have no idea whether the Tribunal will be willing to reverse convictions based on (mis)statements made in an informal letter. I think it should, but I’m skeptical. That said, I see no way that Judge Harhoff can continue to sit on the Seselj case, despite the Tribunal’s insistence that he will (for now). The appearance of bias, if not the actual existence of bias, is simply too great.

Something tells me Seselj is busy preparing a motion to recuse right now…

Note: Edited because Marko Milanovic is picky…

A Review of Andrew Guzman’s Overheated

by Roger Alford

I read my friend Andrew Guzman’s book Overheated: The Human Cost of Climate Change with great interest because I know Guzman is exceedingly capable at communicating complex ideas in an accessible format. He’s done that throughout his career, and Overheated is no exception. Like Hari Osofsky, I commend the book to our readers. Before you teach the law of climate change, give your students the facts by assigning portions of this book.

The science behind climate change is one of those issues that is beyond the comprehension of most intelligent individuals. Therefore, the translation and simplification of what is at stake is essential for public awareness and for the development of policies. The greatest virtue in Andrew Guzman’s book is taking conservative estimates of global warming and then graphically portraying the consequences of such changes. As Guzman puts it,

“[T]his book has tried to explain as clearly and honestly as possible how the effects that scientists have identified will actually affect people. If it is successful, readers will appreciate that the climate-change crisis will affect more than just our physical world. The consequences we really care about are those that affect humans, and … many hundreds of millions of people … will be badly hurt as the earth warms….” (p. 212).

It is difficult to grasp the human costs of climate change. Guzman does so by taking abstract problems–rising ocean levels, melting glaciers, climate wars, pandemics–and humanizing them with concrete stories. He explains how rising ocean levels will result in forced displacement of 20 million people in Bangladesh. He explains how melting glaciers creates water storage problems that will impact millions in Bolivia and California. He explains how climate change will destabilize regions and exacerbate conflicts in places such as Darfur and the Golan Heights. He explains how warmer temperatures will create ideal conditions for a global pandemic, similar to how the Spanish flu of 1918 killed at least twice as many people as World War I. Guzman is at his best in humanizing climate change from an incomprehensible, abstract, and distant problem of Malthusian proportions, to a problem that is concrete, imminent, and understandable.

The second great benefit of the book is the way he responds to the climate change skeptics. Rather than simply dismissing them out of hand, he puts both sides on the scales of reason and makes a convincing case that the skeptics fall short. He does it in a way that is respectful and honest, admitting where the skeptics have valid points but nonetheless fail In the end to prevail in the debate. He does it in a way that you get the sense he genuinely is trying to convince good faith, reasonable people who have their doubts to get off the fence and accept the reality of climate change and the consequences of inaction.

His style of reasoned debate reminds me of the effective campaign that scientists like Albert Einstein, Bertrand Russell, Linus Pauling, Andrei Sakharov and Albert Schweitzer initiated in the 1950s to convince the public of the human costs of nuclear atmospheric testing. Those scientists could have belittled a skeptical public with arguments that spoke over their heads. Instead, they treated the public with respect and made a convincing case that concerns for national security should be balanced with concerns for the human cost of nuclear radiation. The result was a groundswell of national and international public opinion that convinced John F. Kennedy and Nikita Khrushchev at the height of the Cold War to sign a nuclear test ban treaty. In a similar fashion, books like Overheated are essential to aid a skeptical public to understand what is at stake with global warming.

If I were to fault Guzman’s book, it would be for failing to include a more fulsome explanation in the last chapter of the available policy choices. As a trained economist and international lawyer, he is particularly well-placed to discuss carbon taxes, cap and trade, the economics of alternative energy, and the true cost of fossil fuels. Unfortunately, he only devotes ten pages to the “grown-up strategies” for reducing greenhouse gas emissions. Just when the reader is convinced that the climate change problem is real and that something must be done about it, we are left thirsting for an economist and scholar of Guzman’s caliber to explain in some detail why, say, cap and trade is better than a carbon tax. At only 230 pages, there was ample room in the book to add another 20 or 30 pages summarizing the policy options and proposing his own recommendations among the available alternatives. I’d be curious for Guzman to explain why he chose not to include this additional information about the path forward.

So my recommendation is that you read the book, digest the key arguments, and add his stories to your arsenal of facts that you can marshal when you are politely debating your friends and neighbors about the truth and consequences of climate change. My guess is that by simply reading Guzman’s book you will be way ahead of your interlocutors.

Weekend Roundup: June 16-21, 2013

by An Hertogen

This week on Opinio Juris, Kevin flagged three problems with the PTC’s decision on Libya’s obligation to surrender al-Senussi to the ICC. He also discussed Libya’s admissibility challenge: he criticized the defence’s response to the challenge for adopting the due process thesis and he argued why the President’s refusal to excuse one of the Appeals Chamber judges is erroneous.  Kevin also turned his attention to the ICTY with a post on what he called the real Judge Meron scandal.

Kristen reported on a speech by Judge Gaja on a duty to prevent for international organisations, and Neomi Rao followed up on last week’s guest post, with two more on the politics and the calculus of R2P.

We closed off the week with Hari Osofsky’s book review of Andrew Guzman’s book “Overheated”.

As always, there were our weekday news wraps and our listing of events and announcements. Duncan also flagged an upcoming conference at the Duke-Geneva Institute of International Law on the role of opinio juris in customary international law.

Have a nice weekend!

Addressing the Complexity of Climate Change’s Human Cost: A Review of Overheated: The Human Cost of Climate Change by Andrew T. Guzman

by Hari Osofsky

[Hari M. Osofsky is an Associate Professor at the University of Minnesota School of Law.]

Andrew Guzman’s new book, Overheated: The Human Cost of Climate Change, does an excellent job of explaining in an accessible fashion the devastating consequences of climate change for people, especially the world’s poorest people.  The focus of this book is on bridging the gap between expert knowledge and popular understanding in order to catalyze needed mitigation.  Its great strength is that it does so without minimizing the complexity and intertwined character of the problem.  Rather, it shows how the simultaneity of climate change’s impacts and of their interaction with underlying resource scarcity and political tensions will likely have devastating human consequences even in relatively conservative scenarios of these impacts.

Each chapter builds upon the previous one in portraying climate change’s human costs.  The introductory chapter likens the problem of climate change to the game of “Kerplunk,” in which one removes sticks holding up marbles and tries to win by minimizing how many marbles fall during one’s turn.  The difficulty is that the farther one gets in the game, the harder it is to prevent the marbles from falling and to limit the risks of the removal of each subsequent stick.  The book proceeds to show how late we are in our game of “Kerplunk,” outlining the harm that climate change has already done and how that pales in the face of the harm that is very likely to come.  After an initial overview of climate change science, chapters focus on the human consequences of impacts: (1) sea-level rise, severe storms, and forced migration of nation-states and populations; (2) current and future water shortages and our lack of capacity to address them adequately; (3) the risks of armed conflict arising from water shortages and other climate change impacts; and (4) the many resulting health consequences, from increases in known diseases to the growing risks of evolving pathogens and global pandemics. The book concludes with a discussion of solutions.  It analyzes ways to set a carbon price effectively, and cautions against relying on solutions like geoengineering or waiting for an increased future capacity to address the problem effectively.

The book’s focus on the human face of climate change is an important contribution to the literature because it helps make the case for why we need to act to address the problem.  It compiles a wide range of existing information on climate change and puts it together in an engaging way that a reader without a technical or legal background could understand.  Each chapter interweaves geopolitics and historical examples with the problem of climate change and how it is likely to worsen.  This approach helps the book contextualize its argument, showing how climate change fits within a complex global context.

This book is explicit in its primary focus on describing the human problems rather than on solving them.  However, in this review, I would like to continue where the book left off by suggesting two implications of Guzman’s exposition for potential solutions.  Continue Reading…

Weekday News Wrap: Thursday, June 20, 2013

by An Hertogen

Guest Post: The Calculus of Responsibility

by Neomi Rao

“Of course our opinions do not coincide. But all of us have the intention to stop the violence in Syria,” President Putin said after meeting with President Obama at the G8 summit. A neat summary of the dilemma of responsibility to protect—everyone wants an end to violence, but responsibility does not suggest how it should be done.

Responsibility to protect emphasizes the rights of victims and the cosmopolitan obligations of every state. In my previous post, I explained why states do not have such a duty, drawing from my recent article. Here, I consider why whatever right people have to be protected, states contemplating intervention will determine the obligations arising from those rights. To begin with, the standards of R2P are notoriously indeterminate and there are no reliable mechanisms for defining responsibility in any particular circumstance. Although there is debate about when precisely the responsibility arises—for genocide, war crimes, ethnic cleansing, and crimes against humanity—the more serious questions are what should be done when such situations invariably arise.

The United Nations Security Council is the ostensible source for recognizing the conditions for the responsibility to protect. Yet the Security Council repeatedly fails to respond, in part because of the well-understood dynamic between the P3 on the one side and Russia and China on the other. An ineffective Security Council means, unsurprisingly, that any responsibility to protect will depend on strong states to preserve human security.

Moreover, the doctrine of responsibility to protect includes numerous conditions that seek to balance the seriousness of humanitarian concerns with preventing escalation of violence and ensuring the best outcome. First, intervention is considered appropriate only for “extreme and exceptional cases” sometimes described as violence that shocks the conscience. Is that standard met with respect to Syria? Over 93,000 people have reportedly been killed and there is evidence that the Assad regime is using chemical weapons.

Second, intervention must be a last resort. Again, states will have to judge when all diplomatic, humanitarian and other actions have been exhausted. The notion of last resort created disputes about Libya, when the United States expressed concern that the killing of civilians was imminent. President Obama stressed we had a responsibility to act before more innocent people were killed. After the Libya intervention, disagreements continued about the timing for action and its efficacy in limiting violence.

Third, the means of intervention must be proportional. Proportionality is a favorite concept in international law as well as European constitutional law. It is a concept, however, that makes rights and duties flexible and discretionary. Responsibility to protect recognizes a continuum of responses culminating in military force. States will have to determine what they are willing to risk and how to calculate whether the contemplated involvement will result in a proportionate benefit.

Finally, and perhaps most tellingly, states must intervene only if they have the capacity to do so—when they can intervene without excessive costs to their own people. Although responsibility to other people is treated as a moral duty, because it is a positive obligation, nations cannot fulfill their responsibility unless they have financial and military means. Accordingly, the scope of responsibility depends not only on the indeterminate factors for intervention, but also on resources. The question of resources can be assessed only by states. Even for wealthy states, the question of capacity is a relative one and must be balanced with domestic priorities.

All of this indeterminacy suggests that despite the lofty language of responsibility to protect, the humanitarian needs of victims do not define the assistance. Rather, states contemplating intervention will define the scope and extent of the protection provided. This is not to underestimate the seriousness of the harm or the desirability of intervention in certain circumstances, but only to highlight that nothing in international law or the responsibility to protect doctrine has established a duty of states to assist.

Although responsibility to protect sought to move away from state-centered and traditional notions of sovereignty, its cosmopolitanism has faltered on the realpolitik of violent conflict. The politics of figuring out what to do are messy and fraught with uncertainty—yet hiding behind platitudes does little to alleviate humanitarian problems.

A Conference on the Role of Opinio Juris in Customary International Law

by Duncan Hollis

I usually defer to An and Jessica’s (excellent!) work in flagging international law-related conferences and events.  But, I wanted to call particular attention to a conference I just learned about that Duke Law School is co-hosting with the University of Geneva next month at the Duke-Geneva Institute of Transnational Law on the Role of Opinio Juris in Customary International Law.  The event is well located (and timed) given the International Law Commission’s current project on customary international law.  But unlike many conferences, where all those not in attendance can see is a schedule of attendees and/or paper topics, the Duke-Geneva schedule generously includes links to the papers themselves.  I’m working my way through them for my own research on the functions interpretation serves in international law.  And although I’d note they seem to be mostly of the short, discussion paper variety, if the first one by Curt Bradley is anything to go by (he identifies and critiques existing paradoxes in definitions of opinio juris and offers a new descriptive and normative thesis for identifying CIL based on state preferences), these papers will be well worth reading.  I’m also interested to here from anyone who attends the conference itself what reception these papers receive, and in particular, what the various ILC members who will be commenting on several of them have to say about customary international law itself.

Weekday News Wrap: Wednesday, June 19, 2013

by An Hertogen

The Presidency’s Erroneous Refusal to Excuse an Appeals Chamber Judge (Updated)

by Kevin Jon Heller

On 11 June 2013, Judge Sanji Mmasenono Monageng asked the Presidency to excuse her from the Appeals Chamber concerning the recent denial of Libya’s admissibility challenge to the case against Saif Gaddafi, which Libya is appealing. Judge Monageng’s request was based on her previous participation (as Presiding Judge) in the Pre-Trial Chamber’s decision to issue an Arrest Warrant for Saif — the same Arrest Warrant that played a critical role in the (differently constituted) Pre-Trial Chamber’s later conclusion that Libya is not currently investigating the same case as the ICC.

Yesterday, the Presidency denied Judge Monageng’s request. Here is its reasoning (emphasis mine):

The Application is dismissed. The Presidency notes that the notice of appeal is not directly contesting the Decision on the Warrant of Arrest or the Warrant of Arrest which the judge issued as a former member of the pre-trial bench. Rather it is challenging the decision of the Pre-Trial Chamber, as currently composed, on the admissibility of the case before the Court, which, in considering whether Libya was investigating the same case as the Court, inter alia, compared the alleged crimes in the Decision on the Warrant of Arrest and the Warrant of Arrest with conduct allegedly under investigation by the Libyan authorities. As such, the excusal is not warranted at present. However, should the situation change, directly or indirectly, and in this vein the Presidency notes that the Document in Support of the Appeal setting out the grounds for the appeal has yet to be filed and the Appeals Chamber has yet to determine the scope of the appeal, the judge may decide to seek a request for excusal.

With respect to the Presidency, this decision is patently incorrect. Here is the relevant provision in the Rome Statute, Art. 41(2)(a), on which both Judge Monageng’s request and the Presidency’s denial focused (emphasis mine):

A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence.

As should be obvious, the Presidency’s test for disqualification — whether the judge in question was previously involved in the specific decision being appealed — has no basis whatsoever in the text of Art. 41(2)(a). The provision says “any capacity” in the same case requires (“shall”) disqualification. Judge Monageng presided over the Arrest Warrant decision, which clearly qualifies as participating in “any capacity” in the case against Saif. The Presidency was thus required to disqualify her.

UPDATE: As David Koller points out in the comments, the Presidency abandoned a literal reading of Art. 41(2)(a) in the Lubanga case. In the relevant decision, which involved a request to be excused by Judge Usacka, the Presidency said that “the relevant part of article 41(2)(a) is concerned with disqualification where a judge has previously been involved in any capacity which gives rise to a reasonable ground to doubt his or her impartiality.” There are two problems with this. To begin with, the Presidency’s interpretation makes no sense, because it renders the second sentence of Art. 41(2) completely superfluous, treating it as nothing more than a restatement of the first sentence. To say that is unconvincing is something of an understatement. There are really only two plausible interpretations of the second sentence: that it provides an example of a situation in which the Presidency must, as a matter of law, presume reasonable doubt about impartiality; or that it provides a ground for disqualification that is completely independent of the “reasonable doubt” ground. Either way, the Presidency’s interpretation is incorrect. Indeed, the Presidency’s reasoning (on p. 5) must be read to be believed; it’s difficult to find a better (worse?) example of judges using “teleological” reasoning to defeat a literal interpretation of a provision in the Rome Statute they don’t like.

I also find it troubling that the Presidency thinks its role is to “interpret” (ie, rewrite) the Rome Statute. The Presidency is an administrative body. It is not a Pre-Trial Chamber. It is not a Trial Chamber. It is not the Appeals Chamber. It does not make decisions on the basis of established procedures after adversarial argument. So although I don’t believe interpretation can ever be objective, I also believe that an administrative body like the Presidency should be extraordinarily conservative in its interpretation of the Rome Statute, avoiding readings that deviate too substantially from its text. And its reading of Art. 41(2)(a) is — to put it mildly — anything but conservative.

Guest Post: The Politics of Responsibility to Protect

by Neomi Rao

In my last post, I introduced my recent article rethinking the concept of responsibility to protect. Today, I consider how the discussion of R2P often obscures the reality of how states go about choosing to intervene by speaking of duties and responsibilities. Some commentators have expressed concern about the selective nature of R2P or about the disappointment of R2P in Syria. But this disappointment simply glosses over the real problem, which is that states simply have no responsibility or duty in these circumstances—rather, they have a choice, which they exercise selectively based on myriad factors.

R2P lumps together two distinct responsibilities that actually have very different foundations. First, the responsibility of a state to its own people; and second, the responsibility of all states to people victimized in other states.

The responsibility of a state for its own people reflects well-established understandings about the nation state—it is an essential aspect of the social contract that the state provides basic human security to the people within its borders. Although state practice often violates these principles (creating the asserted need for intervention), states have widely accepted the basic responsibility to their own people. For instance, no state contested this responsibility in the 2005 United Nations World Summit that affirmed certain principles of R2P.

A responsibility to protect between a state and its people primarily begins with the negative right to be left alone, the right to enjoy life without interference from the state. The social contract, however, includes more than this because within a political society individuals have a claim to be kept safe—for the state to ensure certain conditions of safety to individuals and their property. All governments provide some form of protection from private actors through their criminal justice systems. This demand, however, is inherently a political one within the state. It concerns the type of public resources that should be allocated to crime prevention, law enforcement, incarceration, and rehabilitation.

Importantly, even within the most liberal, rights-respecting countries, there are not enforceable rights to safety or protection from private actors. The United States Supreme Court has repeatedly affirmed that the government does not have an affirmative obligation to protect individuals, even though it may have an obligation to refrain from harmful activities. Instead, the political process determines what the state provides with respect to protection—increased security is balanced against civil liberties, not to mention costs.

The second responsibility between a state and people in other states lacks this political foundation. The claim of victims in other states to protection is essentially a positive claim for rescue from the harms inflicted by their government or by private actors while their government stands by. Consider that victims in Syria have no particular political claim to the assistance of France, England, or the United States. Their plight may present a moral demand for assistance and political pressure may mount through interest groups, the media, international organizations, and former Presidents. Yet the claims of foreigners will invariably present a different calculus than domestic claims and rightly so.

The responsibility to protect people in other states is a positive claim and positive claims require resources (diplomatic, humanitarian, and military). Although proponents of R2P often prefer to shift the language away from “rights,” at its foundation R2P depends on having some conception of the “rights” of people to protection from other states. It is not about leaving the Syrians alone, but rather protecting them from harm. Yet what precisely this right to assistance includes in Syria or elsewhere, no one is able to say.

Even accepting a basic moral responsibility, there remain difficult questions about what action best respects rights and what will serve to promote human rights and security overall. The responsibility will always be contingent on political, military, and other calculations and will be uncertain in any particular instance. Calling this choice a responsibility dilutes the meaning of rights and duties and obscures the actual mechanisms for promoting intervention.

International Organizations and the Duty to Prevent

by Kristen Boon

ICJ Judge Giorgio Gaja (who was also the special rapporteur on the International Law Commission for the Responsibility of International Organizations) has made the case that International Organizations have a duty to prevent.  The context was a talk he gave at the University of Amsterdam in April 2013 on the European Union and the ILC’s Articles on the Responsibility of International Organizations.

If one takes the approach followed by the International Law Commission on the issue of attribution and applies it to the European Union, the Union would be internationally responsible when its organs or agents commit a breach of one of the obligations that the Union has under international law.

Depending on the content of the international obligation, a breach could consist in the failure to comply with a rule requiring the European Union to ensure that Member States do something or in the failure to prevent them from taking certain actions.

This type of obligation does not necessarily consider the conduct of Member States in a specific way. It may be an obligation of result, like arguably those under UNCLOS that were at stake in the Swordfish case between the European Community and Chile. The fact that the European Union does not achieve the required result of the conservation of swordfish stocks would be sufficient to cause a breach, whether the failure is caused by its organs or agents or by its Member States. The WTO agreements may provide further examples of obligations of result that may be breached by the Union because of the conduct of its Member States.

The emphasis on the conduct rather result indicates there is no requirement to succeed.  But he goes on to say that this obligation is linked to an IO’s capacity to influence the actions of member states, such that an IO might incur its own responsibility if it fails to prevent a breach of an international obligation.

The simplest, and probably most frequent, scenario of a possible responsibility of the European Union is that the Union is bound not only by the obligation breached by the Member State but also by an ancillary obligation to prevent the relevant wrongful act of member States or at least not to contribute to it. Failure by the European Union to comply with that ancillary obligation would give rise to the Union’s responsibility. The Union would then incur responsibility for the breach of this distinct, though connected, obligation. The responsibility of the European Union would be normally additional to the responsibility incurred by the Member State.

These ideas about an International Organization’s duty to prevent are noteworthy for a few reasons.

  • First, they give more context and detail on the duty to prevent than the Draft Articles on the Responsibility of IOs, which refer in general ways to omissions and the Swordfish case, but do not play out scenarios of ancillary IO liability.
  • Second, this logic suggests that IOs may be independently liable for the failure to prevent acts by their member states.   In other words, states and IOs could be concurrently liable for acts and omissions. For terrific work on shared responsibility generally, see the University of Amsterdam’s SHARES project (where I am spending some of my sabbatical).
  • Third, it raises the stakes for IO “supervisory” capacity generally.  Indeed,  a pivotal question in this regard is what are the circumstances that would trigger the duty to prevent?

An IO must be bound by a relevant primary norm of course, and the acts in question must constitute breaches of those norms by act or omission. These are the two key preconditions for application of the Draft Articles.  An additional third factor would be capacity: the ICJ’s Bosnia decision specifies in this regard that the duty to prevent is heavily contextual, in that an actor must use all means available to them, and it will depend on their capacity to influence.  For IOs that operate on a consensus basis (ie, NATO) or that work through advice and assistance rather than coercion (ie, the WHO), it might be hard to argue they have much capacity to prevent.  On the other hand, IOs like the EU or the UN that can coerce member states, might be facing more liability going forward.

What substantive areas will the duty to prevent be most likely to arise?  I would wager to guess that we can expect to see this duty argued in three cases: the use of force, conservation of scarce resources, and situations involving massive human tragedies that trigger the Genocide Convention or other human rights treaties.  I would be interested if our readers predict other areas of activity with regards to the duty to prevent.

Weekday News Wrap: Tuesday, June 18, 2013

by An Hertogen

The Real Judge Meron Scandal at the ICTY

by Kevin Jon Heller

I have refrained from weighing in on the recent scandal at the ICTY concerning a letter written by the Danish judge, Frederik Harhoff, that accuses the President of the Tribunal, Judge Theodor Meron, of pressuring his fellow judges into acquitting high-profile defendants such as Gotovina and Perisic. I have done so not because the scandal isn’t worth mentioning, but because I have little to add to what Dov Jacobs has written in two excellent posts — here and here — at Spreading the Jam. Like Dov, I think the scandal is vastly overblown, revealing little more than business as usual at the international tribunals. In fact, if I have any disagreement with Dov at all, it’s concerning the propriety of Judge Harhoff writing the letter in the first place. Dov says one can “question the propriety” of the Judge writing the letter and sending it to 56 of his friends and colleagues. I’d go much further than that — I think it was deeply unethical, and far more scandalous than any of the allegations in the letter, for Judge Harhoff to reveal confidential discussions between the judges. Can you imagine if a legal officer or intern had written the letter? He or she would have been fired immediately. The fact that Judge Harhoff still has a job indicates the need, as Michael Bohlander has pointed out, for a binding code of judicial ethics at all international criminal criminal tribunals, not just at the ICC.

That said, the brouhaha about Judge Harhoff’s letter did lead me to a WikiLeaks cable dated 27 July 2003 that recounts a discussion between Judge Meron, then also the President of the ICTY, and an unnamed American ambassador — presumably to the UN — about Carla Del Ponte, who was nearing the end of her term as Prosecutor at the time. Judge Meron’s statements, as summarized by the cable, are truly shocking. Here is the summary…

Weekday News Wrap: Monday, June 17, 2013

by An Hertogen

The Al-Senussi Defence’s Unfortunate Adoption of the Due Process Thesis

by Kevin Jon Heller

I have been making my way through the defence response to Libya’s admissibility challenge. It’s excellent, both with regard to why Libya is not prosecuting the “same conduct” as the ICC and with regard to why Libya is currently unable to genuinely prosecute Al-Senussi. I was particularly struck by the defence argument that Libya does not currently have complete control over the detention centre in which Al-Senussi is being held, making the “inability” argument more similar than I imagined to the one in Saif’s case. It’s an interesting, and potentially powerful, argument.

That said, in this post I want to quibble with the defence’s adoption of what I’ve called the Due Process Thesis (DPT) — the idea that a national prosecution’s failure to live up to international standards of due process makes a case admissible before the ICC. The DPT is incorrect: due process is relevant to a national prosecution only insofar as a national prosecution’s failure to live up to domestic due-process requirements threatens the viability of a prosecution.

It’s unfortunate that the defence response adopts a number of problematic arguments in favor of the DPT, such as focusing on the statement in Art. 17(2)(c) of the Rome Statute that a case is admissible if “[t]he proceedings were not or are not being conducted independently or impartially.” Here is what the defence says…

Events and Announcements: June 16, 2013

by An Hertogen

Calls for Papers

  • The Antonio Cassese Initiative for Justice, Peace and Humanity is inviting students and young professionals born after July 1, 1983 to hand in an abstract on a subject dealing with new perspectives in international criminal law. The abstract should be submitted by July 1, 2013 and should be limited to 400 words. Five abstracts will be selected, setting out the most innovative perspectives. The authors of these abstracts will be invited to elaborate upon their ideas in a paper of around 8000 words. From these papers, the best one will be awarded with the Cassese Initiative Prize, receive a collection of books from OUP and his/her paper will be submitted for publication in the Journal of International Criminal Justice. More information is here.
  • The University of Seville (Spain) will hold an international conference on The Implementation of the UN Guiding Principles on Business and Human Rights in Spain that will take place on 4-6 November 2013. The conference is now calling for paper proposals related to the themes of the conference (more information here).
  • The World Trade Institute (WTI) of the University of Bern invites the submission of papers and abstracts for its conference on November 8, 2013, entitled “The Role of the State in Investor-State Arbitration”. The conference will examine the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration. More information is here.
  • To commemorate the 50th Anniversary of the Signing of the Vienna Convention on Consular Relations, the Southern Illinois University Law Journal is pursuing a Fall 2013 “paper” symposium related to the topic. For the symposium, the Journal is soliciting articles from experts in the field regarding the past and/or future of the VCCR and consular relations law. Final drafts of approximately twenty pages are requested by the end of August. If you are interested in submitting an article for publication, please contact the Journal editors, Jessica Sarff or Dean Davis, for additional details.

Events

  • The ABA Section of Administrative Law and Regulatory Practice is organizing the 8th Annual Homeland Security Law Institute on June 19-21, 2013, at the Capital Hilton Hotel in Washington DC. More information is here.

Announcements

  • The Faculty of Law, University of Copenhagen, is seeking applications for a position as professor of law to be affiliated with iCourts – The Danish National Research Foundation´s Centre of Excellence for International Courts, which is a research centre at the Faculty of Law. More information is here.

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

The PTC’s Erroneous Decision Regarding the Surrender of Al-Senussi

by Kevin Jon Heller

On 6 February 2103, the PTC ordered Libya to surrender Al-Senussi to the ICC. Libya failed to comply with that order; instead, on April 2, it filed an admissibility challenge in the case and argued that Art. 95 of the Rome Statute entitled it to postpone surrender pending resolution of its challenge. Yesterday, the PTC agreed with Libya.

The PTC correctly found — in light of previous ICC jurisprudence — that a state is entitled, as a matter of right, to postpone surrendering a suspect pending resolution of an admissibility challenge. The more important question was whether Libya had properly filed its admissibility challenge to the case against Al-Senussi. Art. 19(5) of the Rome Statute requires a state to challenge admissibility “at the earliest opportunity.” According to the Appeals Chamber in the Kenya admissibility proceedings, that means a state must “challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions.”

The PTC rejected the defence argument that Libya had not challenged the admissibility of the case against Al-Senussi “as soon as possible.” Here are the relevant paragraphs (emphasis mine):

30. The Admissibility Challenge was filed by Libya on 2 April 2013, almost seven months after Mr Al-Senussi’s transfer to Libya from Mauritania. The Chamber notes the Defence argument to the effect that this fact “shows without a doubt that Libya […] has not filed its challenge expeditiously”. The Chamber is not persuaded that this mere chronology per se renders the Admissibility Challenge tardy, and, as such, abusive. Indeed, the Chamber must take into account the circumstances of the individual case, with a view to determining whether the challenge was filed in violation of article 19(5) of the Statute.

[snip]

32. In the case at hand, and without entertaining, for the purposes of the present decision, the validity of the arguments advanced by Libya in support of its Admissibility Challenge, the Chamber is of the view that the information before the Chamber does not appear to indicate that Libya, despite being in a position to properly and timely challenge the admissibility of the case against Mr Al-Senussi, unduly failed to do so, in violation of article 19(5) of the Statute.

There are three very significant problems with the PTC’s analysis. To begin with, the PTC provides no explanation — literally, none — for why Libya’s decision to wait seven months after Al-Senussi’s extradition qualifies as challenging admissibility “as soon as possible.” We are just supposed to trust that the PTC took the matter seriously, considered all of the available information, and decided that Libya had a good reason for waiting so long. Al-Senussi deserves better, given that he has already spent seven months in detention without access to a lawyer — and that the PTC’s decision means that, if its dilatory approach to the Saif admissibility challenge is any indication, he will spend another ten months or so in the same situation.

Even worse, the PTC seriously misrepresented the defence’s argument concerning the length of time Libya waited to file its admissibility challenge. The PTC says, as the bolded text in para. 30 indicates, that the defence claimed Libya waited seven months. But that is not what the defence argued. Here is the relevant paragraph from the defence response to Libya’s request to postpone Al-Senussi’s surrender (emphasis mine):

35…. The chronology of these proceedings outlined above shows without a doubt that Libya – which has been filing pleadings in respect of admissibility for Mr. Gaddafi for over a year – and has held Mr. Al-Senussi for over 7 months – has not filed its challenge expeditiously. It should therefore not be allowed to use article 95 to cause further unacceptable and unnecessary delay.

Nothing can justify the PTC’s mischaracterization of the defence’s argument. But perhaps the PTC could be forgiven if seven months was the correct length of time that Libya waited to challenge admissibility. But it is easy to see that the defence claim, not the PTC’s, was far closer to the truth. As the defence noted in its response, Libya initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, which it filed with the PTC on 1 May 2012. On May 4 — only three days later — the PTC informed Libya that it did not consider its Al-Senussi challenge to have been properly filed:

8. As a preliminary matter, the Chamber has considered Libya’s submissions as to the scope of the Article 19 Application and considers that it must be understood to only concern the case against Mr Gaddafi. Accordingly, the Chamber will not consider the admissibility of the case against Mr Al-Senussi in resolving the Article 19 Application.

In short: (1) Libya believed that it was in a position to challenge the case against Al-Senussi sometime prior to 1 May 2012 (whenever it began work on the joint admissibility challenge); (2) Libya formally challenged the admissibility of the case on 1 May 2012; (3) Libya learned that it had not filed a proper admissibility challenge on 4 May 2012; yet (4) Libya waited until 2 April 2013 — more than 11 months later — to file a proper admissibility challenge. At a minimum, therefore, the PTC should have determined whether Libya’s decision to wait 11 months, not seven, was reasonable under the circumstances.

Perhaps the PTC would have still given Libya the benefit of the doubt. We have no way to know, of course, because the PTC did not bother to explain its decision concerning a seven month delay. From my perspective, I cannot see how even seven months was reasonable — after all, Libya not only initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, it subsequently formally submitted to the Court (see para. 175) its intention to try the two men together. Both of those facts strongly imply that Libya considers the case against the two men to be substantially similar. So if Libya felt able to challenge the case against Saif on 1 May 2012, it is difficult to understand why it needed an additional 11 months to challenge the case against Al-Senussi.

The PTC’s decision to permit Libya to keep Al-Senussi in custody was clearly erroneous. The defence should appeal — and, at a minimum, the Appeals Chamber should order the PTC to consider whether Libya’s failure to file a proper admissibility challenge for 11 months, not seven, is consistent with Art. 19(5).

Weekend Roundup: June 8-15, 2013

by An Hertogen

This week on Opinio Juris, there was a lot of news to cover with NSA leak and the US administration’s decision to arm Syrian rebels. On the first, Julian thought Hong Kong was a dumb choice of refuge for the NSA leaker. Chris dug deeper into domestic data-mining with earlier stories about the NSA’s activities. Peter addressed the position of expat Americans in PRISM. Further on cyber-issues, Duncan highlighted Japan’s new Cybersecurity Strategy.

On the second bit of news, Julian argued why the “red line” crossed by Syria is meaningless in terms of the legal framework restricting US intervention in Syria. Neomi Rao contributed a guest post on the implications of the Syria crisis for the R2P doctrine. As announced by Julian here, Neomi will continue to blog on R2P next week, so stay tuned!

Other internationally relevant news can be found in the weekday news wraps.

First in string of guest posts, Michael Lewis argued that Pakistan has withdrawn its consent to US drone strikes in its territoryJames Stewart then responded to Kevin’s defence last week of the ICTY’s new “specific direction” standard for aiding and abetting. Finally, Elizabeth Wilson returned to the discussion of Kiobel to refute Samuel Moyn’s argument in his ForeignAffairs post, by delving into the historical background of anti-Shell protests in Ogoniland.

In other posts, Duncan pointed to a recent article by Jean Galbraith on the treaty-implementing power of Congress in historical practice, and Kristen reported back from a conference in Leiden on privileges and immunities of international organizations. If this inspires you to write or to attend a conference, check out this week’s listing of calls for papers and events here.

Have a nice weekend (especially Jessica who has a big day today!)

Guest Post: The Choice to Protect (or Not) in Syria

by Neomi Rao

The White House’s recent statement that it would begin supplying Syrian rebels with arms demonstrates how military assistance and intervention remain a choice of states rather than an obligation. Recent events confirm the arguments I make in a recent article The Choice to Protect: Rethinking Responsibility for Humanitarian Intervention. I am pleased to be guest blogging about this topic over the next few days and thank the editors at Opinio Juris for the opportunity.

The comparison between the intervention in Libya and the foot dragging with respect to Syria should cause some rethinking about the doctrine of responsibility to protect (R2P). As readers here are aware, R2P posits that states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. When states fail in this responsibility, the international community and individual states have a responsibility to protect people from serious human rights violations. In the context of Libya, President Obama appeared to invoke this doctrine when he said the United States had a “responsibility to act” to prevent the slaughter of civilians by Gaddafi’s forces. In the latest statement on Syria, “responsibility” is notably absent. There is no mention of the 93,000 people killed in the conflict. Rather, the Administration’s statement focuses on the fuzzy “red line” of chemical weapons, not the humanitarian nightmare of the ongoing fighting.

Action in Syria will depend, the statement made clear, on the Administration’s assessment of the threat and its appropriate response: “[W]e will make decisions on our own timeline. Any future action we take will be consistent with our national interest, and must advance our objectives….” Commentators have considered the legality for intervention in Syria. While these may be important questions of international law, whether the United States chooses to intervene invariably will depend less on considerations of international law as on whether Administration chooses to intervene.

The pragmatism of the Administration’s statement should come as little surprise—powerful states will make their own choices in light of their own interests, regardless of the humanitarian credentials of the foreign policy team. Yet international law scholars and proponents of intervention often ignore these realities and continue to speak of an emerging norm of intervention or of the responsibility of states to people outside their borders. While emerging norms may tolerate intervention, state practice hardly suggests that an emerging norm requires intervention.

Focusing on the choice of intervention and the domestic processes of choosing intervention should be relevant both for proponents of intervention and its critics. In subsequent posts, I will discuss why the responsibility to protect people in other states is theoretically problematic and also explain why the scope of any such obligation rests entirely with the states considering assistance.

Welcome to Guest Blogger Professor Neomi Rao

by Julian Ku

Opinio Juris is pleased to welcome Professor Neomi Rao of George Mason University School of Law as guest-blogger for the next week. With the Syria crisis re-emerging as a possible flashpoint for military intervention, we thought it would be interesting for Professor Rao to discuss her recent work on the status and impact of the “Responsibility to Protect” principle that is forthcoming in the Columbia Human Rights Law Review.

Professor Rao teaches both constitutional and comparative law classes, and she has had wide experience at all levels of the U.S. government including clerking for the US Supreme Court, working at the U.S. Senate Judiciary Committee, and the White House Counsel’s office. We look forward to her posts on R2P, Syria, or any other subjects.  Welcome, Professor Rao!

Kiobel Guest Post: A rejoinder to Samuel Moyn

by Elizabeth A. Wilson

[Dr. Elizabeth A. Wilson is Assistant Professor at the School of Diplomacy and International Relations at Seton Hall University.]

In the “Insta-Symposium” conducted here after the Supreme Court’s Kiobel decision, Peter Spiro linked to a piece by Samuel Moyn about Kiobel posted on the Foreign Affairs website and said he was “sympathetic” with Moyn’s conclusion that “human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.” Not willing to go quite so far as Moyn in celebrating the ATS’s demise, Spiro nonetheless said, “pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.” These criticisms connect with important debates happening now concerning the “legalization” of human rights and the ability of human rights to offer “a real politics of change,” in Beth Simmons’ words, so it is important to see what lessons the Kiobel case  and its underlying facts really teach.

For those not specialized in human rights, Moyn is a professor of history at Columbia who wrote a book called The Last Utopia in which he argued for a revisionist account of human rights history, stressing the discontinuity of human rights– imagined as they are today as a feature in an international legal system — with a host of ideas and events usually taken as antecedents, including the Universal Declaration of Human Rights, the American Declaration of Independence, and the French Declaration on the Rights of Man and the Citizen. In his Foreign Affairs post on Kiobel, Moyn folds the ATS into this iconoclastic revision of human rights history, stating that the “ATS strategy” favored by American human rights lawyers “resulted in a narrow approach [i.e., a legal approach] that marginalized other options,” doing nothing “to address underlying political and economic problems.”  “Far better,” he opines,” to move onto other ways of protecting human rights – less centered on courts, less rushed for quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad.”  Moyn asserts that “[t]here is little evidence…that the wave of ATS litigation has put a dent in the world’s suffering,” though he provides no evidence to support this claim.

Continue Reading…

Legally Meaningless “Red Line” Crossed in Syria

by Julian Ku

The U.S. Government has finally confirmed what other nations, and certain UN investigators, have been saying for weeks: the Syrian government has been using chemical weapons against the rebel opposition in its ongoing civil war and that at least 100 individuals have been killed. And the White House also repeats a version of the “red line” language President Obama first invoked last fall on the use of chemical weapons. So what does this mean?

As we’ve discussed here previously, it is not clear that the use of chemical weapons crosses a “red line” that would change the legal framework constraining military intervention in Syria by the United States or some other country.  If the U.S. wants to intervene, I don’t quite see how chemical weapons makes its legal case substantially easier.  Moreover, the White House has not revealed any change in its strategy that would necessitate re-thinking the legal framework (e.g. there is no suggestion the White House will intervene, or even ask the UN Security Council to intervene).  But if they do, these legal issues will likely be worth discussing again.

 

The Deadline for Proposals is Here: ASIL Mid-Year Research Forum

by Kristen Boon

The deadline for submitting your proposal has arrived! A reminder that June 14 is the last day you can submit a proposal for the Mid-Year Research forum to be held in NYC from November 1-3 this year.   This conference features works-in-progress by society members – it is a terrific way to workshop your research projects.   Here is the call for papers.

 

Japan’s New Cybersecurity Strategy

by Duncan Hollis

The tendency in the United States is to think about cyberthreats exclusively in terms of US interests (a tendency I’ve certainly followed on more than one occasion).  Hence, the extended attention to questions of whether and how Congress should regulate cybersecurity.  But, of course, cyberspace — and cyberthreats — are global.  Every nation is now faced with developing a strategy for responding to these threats, whether through the deployment of government resources, private industry, or public-private partnerships.  So, I read with interest Hitachi’s English-language summary of Japan’s new Cybersecurity Strategy, which was adopted by Japan’s Information Policy Council earlier this week (you can read the policy itself here in Japanese).  Here are some highlights:

  • Japan (like most other States) has moved away from using “information” as the adjective to describe the issue; so it’s now cybersecurity, not information security
  • Japan’s National Information Security Center will be given more authority to play a “command” role in dealing with cyberthreats
  • Japan will revisit what counts as “critical infrastructure” to include targets, which, if attacked, would have significant socioeconomic effects or impact civilians more broadly.
  • Japan will increase consultation with the private sector and pursue more information sharing.
  • There will be a “Cyber Clean Day” to raise user-awareness of cyberthreats and ways to combat them.
  • A Cyber Defense Unit will be established within Japan’s Self Defense Forces with responsibility for countering cyber-attacks that constitute part of armed attacks;
  • In terms of international relations, the Japanese government intends to continue to study how international law, including international humanitarian law, is applicable to cyberspace; establish confidence-building to avoid any escalation of tensions; and prioritize cooperation with the United States.

Japan is truly a high-tech culture, but I was surprised during my Spring semester there, how little attention cyberthreats have received; indeed, the most visible “cyberthreat” has been anonymous users making threats via the Internet (this was the dominant story line this past Spring on the cyber front).  I saw much less attention to the threats posed by large-scale DDoS attacks, let alone infiltration of critical infrastructure by Advanced Persistent Threats.  So, it is a welcome development to see the Japanese government moving forward on these issues.  That said, I don’t see much in the way of “new” ideas here; almost everything Japan’s government is talking about doing there is on the table here in the United States (with the possible exception of a “Cyber Clean” day, which I attribute to the fact that the Japanese populace is much more willing to undertake collective enterprises than the U.S. citizenry). Still, I’m very interested to see how Japan approaches the question of cyberattacks and the use of force, especially given its Constitutional structure with respect to military activities.  Will they adopt Harold Koh’s mutli-factored, contextualized standard?  Or, will they be one of the first States to accept the Tallinn Manual’s effects-based approach?  Or, is there some other way they could approach the issue?  Comments welcome, especially from those readers who can offer more insights into how the Japanese government is thinking about these topics.

Hat Tip:  Mihoko Matsubara

Weekday News Wrap: Thursday, June 13, 2013

by An Hertogen

“Specific Direction” is Indefensible: A Response to Heller on Complicity

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.]

Last week, Kevin Heller posted an insightful and provocative defense of the “specific direction” standard for aiding and abetting the ICTY has newly announced in the Perišić and Stanišić cases. Although I believe that his arguments fall well short of justifying the conclusion he endorses, his argument intelligently brings together many of the intuitions that seem to have shaped this new definition of complicity. It is also a credit to Kevin that he agreed to post my earlier two-part criticism of this novel definition of complicity here and here despite harboring contrary intuitions, and that he generously welcomed this further response now. All of this out of an obvious commitment to even-handedness and frank debate. But with praise for my friend aside, let me move to criticize aspects of his argument that I believe defend the indefensible.  

At the outset, I am concerned by the structure of Kevin’s reasoning. Kevin (and apparently the ICTY judges he supports) seem to reason inductively, taking the putative innocence of weapons transfers by American and British governments to Syrian rebels as a point of departure. Although I’m sure Kevin just means to use a well-known contemporary example to illustrate his concerns, the optics are bad for him and the ICTY—by backing into this issue with the a priori assumption that American and British practices are necessarily beyond reproach, the reasoning risks substantiating views (so common now among African leaders and TWAIL scholars) that the discipline is structurally biased. To preserve the impartiality and therefore legitimacy of international criminal law, surely we should start with a morally defensible concept of complicity, then let responsibility attach where it may. Otherwise, the new “specifically directed” test speaks to darker problems that infect the entire system.

Continue Reading…

“Foreign Intelligence” ≠ Foreigner Intelligence (Expatriate Americans in PRISM)

by Peter Spiro

The NSA may be collecting data on Americans in the United States. What about Americans abroad?

“Foreign intelligence” is a term threaded through the surveillance debate, with a general understanding that collecting that kind of information is okay. The term is defined in a territorial sense, in the sense of intelligence originating outside of the United States. Under the FISA Amendments Act, the Attorney General and the NDI are required to adopt “targeting procedures that are reasonably designed to ensure that any [intelligence acquisition] is limited to targeting persons reasonably believed to be located outside the United States.”

If intelligence is “foreign” in that sense, the gloves seem to come off. (We’re talking not just metadata, but the contents of emails and other electronic communications, the kind of stuff which in the ordinary case clearly requires probable cause.) The FISA Amendments Act does bar “intentionally target[ing] a United States person reasonably believed to be located outside the United States.” But there doesn’t seem to be any mechanism to police that constraint or the citizenship determination (or at least not any mechanism that has been publicly disclosed).

If on the internet it’s difficult to draw the domestic/foreign line in territorial terms, it’s only more so in terms of citizenship. The surveillance is all secret, so there’s no chance to declare yourself an American. There’s really no way for the Government to know whether you are a citizen or not. There is no master list of US citizens. For every John Smith Bank of America employee temporarily in London (who might be easily flagged as a US citizen), there are many who have acquired citizenship in less obvious ways and who don’t wear their American identity on their electronic sleeve. Does the NSA have a citizenship algorithm?

This may be as much a problem with the doctrine as with the practice. Under the conventional reading of the Supreme Court’s 1958 decision in Reid v. Covert, constitutional rights are portable to US citizens. If you’re American, you have the same rights against governmental action in Paris as you do in Detroit. But even in the non-virtual world, it’s tough to know the citizenship status of people behind foreign doors you are about to knock down. There’s no evidence that anyone in the intelligence apparatus is even trying to stay true to the constitutional rule. Perhaps yet another reason for several million expatriate Americans to feel second class.

Weekday News Wrap: Wednesday, June 12, 2013

by An Hertogen

Diving into Domestic Data Mining

by Chris Borgen

Network from Michael Rigley on Vimeo.

Via Boing Boing a very good short animation discussing data mining. This isn’t focused on the NSA program that is currently the source of discussion and dispute but the broader issue of how both companies and governments are able to retain, purchase, and analyze massive amounts of data.

For a deeper dive into data mining, I highly recommend Inside the Matrix, James Bamford’s March 2012 cover story for Wired. Bamford has written four highly regarded books on the history of the National Security Agency. (See this New Yorker profile of Bamford as the NSA’s “chief chronicler.”) His Wired article focuses on the NSA’s new massive data center in Utah.

But, given that so many people seemed shocked– shocked I tell you!– to hear that the NSA is data mining information from domestic calls, one should read what Bamford wrote over a year ago about NSA activities (not to mention what he had written in his books about the NSA’s history of testing 4th Amendment limits, if not transgressing them):

For the first time, a former NSA official has gone on the record to describe the program, codenamed Stellar Wind, in detail. William Binney was a senior NSA crypto-mathematician largely responsible for automating the agency’s worldwide eavesdropping network. A tall man with strands of black hair across the front of his scalp and dark, determined eyes behind thick-rimmed glasses, the 68-year-old spent nearly four decades breaking codes and finding new ways to channel billions of private phone calls and email messages from around the world into the NSA’s bulging databases…

OK, so we’re not talking about a new hire at Booz Allen.  Later, Bamford continues:

Binney left the NSA in late 2001, shortly after the agency launched its
warrantless-wiretapping program. “They violated the Constitution setting it up,” he says bluntly. “But they didn’t care. They were going to do it anyway, and they were going to crucify anyone who stood in the way. When they started violating the Constitution, I couldn’t stay.” Binney says Stellar Wind was far larger than has been publicly disclosed and included not just eavesdropping on domestic phone calls but the inspection of domestic email. At the outset the program recorded 320 million calls a day, he says, which represented about 73 to 80 percent of the total volume of the agency’s worldwide intercepts. The haul only grew from there.

Emphasis added.  So, the answer, my friend, has been blowin’ in the [stellar] wind for some time now.

Bamford’s article is long and it is excellent. It provides context for today’s debates. And, as for that new NSA facility? Consider this:

Given the facility’s scale and the fact that a terabyte of data can now be stored on a flash drive the size of a man’s pinky, the potential amount of information that could be housed in Bluffdale is truly staggering. But so is the exponential growth in the amount of intelligence data being produced every day by the eavesdropping sensors of the NSA and other intelligence agencies. As a result of this “expanding array of theater airborne and other sensor networks,” as a 2007 Department of Defense report puts it, the Pentagon is attempting to expand its worldwide communications network, known as the Global Information Grid, to handle yottabytes (1024 bytes) of data. (A yottabyte is a septillion bytes—so large that no one has yet coined a term for the next higher magnitude.)

It needs that capacity because, according to a recent report by Cisco, global Internet traffic will quadruple from 2010 to 2015, reaching 966 exabytes per year. (A million exabytes equal a yottabyte.) In terms of scale, Eric Schmidt, Google’s former CEO, once estimated that the total of all human knowledge created from the dawn of man to 2003 totaled 5 exabytes. And the data flow shows no sign of slowing. In 2011 more than 2 billion of the world’s 6.9 billion people were connected to the Internet. By 2015, market research firm IDC estimates, there will be 2.7 billion users. Thus, the NSA’s need for a 1-million-square-foot data storehouse. Should the agency ever fill the Utah center with a yottabyte of information, it would be equal to about 500 quintillion (500,000,000,000,000,000,000) pages of text.

The data stored in Bluffdale will naturally go far beyond the world’s billions of public web pages. The NSA is more interested in the so-called invisible web, also known as the deep web or deepnet—data beyond the reach of the public. This includes password-protected data, US and foreign government communications, and noncommercial file-sharing between trusted peers…

Yeah, you really should read Bamford’s article.

Privileges and Immunities of International Organizations

by Kristen Boon

I’ve spent the last days at the University of Leiden in the Netherlands attending a terrific conference on privileges and immunities of IOs.   (In addition to Leiden’s history of excellence in international law, there were some wonderful revelations at the conference about the university’s history — like the fact that Albert Einstein taught there).

The discussions shed light on the complex and sometimes conflicting caselaw regarding why and when IOs are immune from court jurisdiction, and on areas in which this immunity might be waived by IOs themselves, or limited by courts.   This topic is timely:  there is increasing litigation against IOs generally, prompted in part by the expansion of IO mandates, and in part by more developed litigation culture, particularly where human rights are concerned.  A notable example is the so-called “Mothers of Srebrenica” case brought in Dutch courts against the UN regarding the genocide in Srebrenica.  So far, Dutch courts have found the UN to be immune, although the Dutch state has been found responsible in separate litigation.   For an analysis of recent developments in this latter litigation, see Andre Nollkaemper’s analysis here.

Privileges and Immunities are meant to protect the independent functioning of IOs and shield them from vexatious litigation.  Most of the sources of law on this topic, however, are dated:  the General Convention on Privileges and Immunities of the UN was drawn up in 1946 for example, and more recent instruments, such as the Agreement on Privileges and Immunities of the ICC, contain fairly standard provisions that draw on this general approach.  It is sometimes contended that immunities have a basis in customary international law as well, although it appears that the UN is the organization viewed as being most clearly protected in this regard.

Speakers suggested that there has been an erosion of IO immunities at the margins, and that complex tort cases are amongst the most difficult to resolve.  Following Waite and Kennedy, an employment dispute involving the European Space Agency, courts have often linked immunities to “reasonable alternative means.”  Nonetheless, there is little guidance on what standards should be applied to evaluating those alternatives.   Moreover, it is far from clear that claims arising in other contexts – for example under Art. 29 of the Agreement on Privileges and Immunities (see e.g. Haiti Cholera Claim) would be treated in the same way as an employment case that rests upon Article 6 of the European Convention on Human Rights.

Lower courts tend to be more willing to restrict immunities, but on appeal, higher courts generally   confirm the absolute immunity of IOs.  The bread and butter of P & I litigation involves rather routine questions of contract disputes, employment litigation, and claims against staff members of organizations for traffic violations or damage to property.  Ultimately, the issue is one of balancing the right of access to courts (or other review mechanisms) with the independence of IOs.  At present, its not clear that the key instruments on privileges and immunities always get that balance right however.

Weekday News Wrap: Tuesday, June 11, 2013

by An Hertogen

  • The United States may decide early this week to provide armed assistance to Syrian rebels. Israel’s PM Netanyahu has made clear that Israel refuses to get involved in this discussion.
  • Turkish riot police have moved into Taksim Square to remove anti-government protesters.
  • A Kenyan court has imposed prison sentences of five years on nine Somali nationals accused of piracy in the Gulf of Aden.
  • EU officials have been critical of Special Rapporteur Falk when he presented his report on Israel at the UNHRC in Geneva.
  • As more revelations about the NSA’s surveillance are in the pipeline, Ed Snowden’s current whereabouts are unknown.
  • Ethiopia is being advised to take Egypt to the ICJ to secure rights to dam the Nile.

Guest Post: Pakistan’s official withdrawal of consent for drone strikes

by Michael W. Lewis

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

Something interesting and I believe significant, happened on Saturday.  The Pakistani Foreign Ministry summoned the US Charge d’Affaires and formally protested the continuance of drone strikes on Pakistani territory.

Pakistan protests drone strike; US CdA summoned
(2013-06-08)
On the Prime Minister’s instructions, the US Charge d’ Affaires, Ambassador Richard Hoagland was summoned this afternoon to the Foreign Office by Special Assistant to the Prime Minister and Minister of State for Foreign Affairs, Mr. Tariq Fatemi to lodge a strong protest on the US drone strike carried out in North Waziristan on 07 June 2013. The US official was handed a demarche in this regard.

It was conveyed to the US CdA that the Government of Pakistan strongly condemns the drone strikes which are a violation of Pakistan’s sovereignty and territorial integrity. The importance of bringing an immediate end to drone strikes was emphasized.

It was also pointed out that the Government of Pakistan has consistently maintained that drone strikes are counter-productive, entail loss of innocent civilian lives and have human rights and humanitarian implications.

It was also stressed that these drone strikes have a negative impact on the mutual desire of both countries to forge a cordial and cooperative relationship and to ensure peace and stability in the region.

Islamabad
08 June 2013

While it is nothing new to hear Pakistani politicians complaining about drone strikes, this is the first (to my knowledge) formal state-to-state expression that unmistakably denies further consent.  The prior statements by Pakistani members of parliament and parliamentary resolutions condemning drone strikes were not effective assertions of Pakistani sovereignty because they were not made by the sovereign.  Further, they were not directed to the proper diplomatic representative assigned to receive such statements.  This statement satisfies both requirements.

I think this raises the bar for the US.  While Pakistan is still subject to an “unable or unwilling” analysis it would seem that this would place some form of obligation on the US to show that they are in fact unable or unwilling.  Up until now the US was apparently operating under continued passive consent based upon the behavior of the military and ISI which were either cooperating or at least not interfering with the strikes.  But once Pakistan makes it clear state-to-state that they are no longer consenting, the US cannot rely on non-interference by the Pakistani military as the basis for continued consent.  This means there must be some showing that Pakistan is “unable or unwilling”.  This would, at a minimum, require the US to inform them state-to-state (not necessarily publicly) that there are targets that the US expects them to deal with.  Unless they immediately stated they were unwilling or unable to do anything about those targets, the US would also have to give Pakistan an opportunity to deal with the issue.  Only after some period of inaction or fruitless effort by Pakistan would the US be able to declare them “unable” and continue drone strikes.

This is not saying that the US cannot continue drone strikes based upon self-defense, but such self-defense would need to entail a Caroline­-like immediacy.  Where the strikes are directed against training areas or other targets that are not in the process of preparing or staging attacks against US forces in Afghanistan, then there will need to be a showing that Pakistan is unable or unwilling to deal with that threat, which would require allowing Pakistan time to deal with the threat if they indicated a willingness to do so.

On the other hand, by taking this step, Pakistan is opening itself up to having to answer some hard questions.  If this is a clear withdrawal of consent then the US will have to ask about Pakistan’s willingness and ability to deal with the problem.  Any prevarication on this issue is tantamount to being unwilling to deal with it.  If Pakistan is insisting on its sovereign right to deny others access to its territory, it will need to be ready to live up to its sovereign obligation of preventing the Taliban using its territory as a base of operations.

The NSA Leaker’s Dumb Choice of Refuge: Hong Kong

by Julian Ku

There has been a rightful flurry of media interest in the saga of Edward Snowden, the U.S. government contractor who is the apparent source of the leaks about the U.S. National Security Program’s data mining surveillance program.  One area of focus is Snowden’s decision to take refuge in Hong Kong from a possible prosecution by the U.S. government.

As I noted here in my comments to this Foreign Policy post, this is an odd, borderline dumb, choice of refuge.  As everyone now realizes, the U.S. has a special extradition agreement with Hong Kong, although it does not have one in China.  This agreement looks pretty similar to other U.S. extradition agreements, and it has been something that the U.S. government and the HK governments valued so highly that they executed it in 1997, after HK’s return to Chinese sovereignty, to ensure continued cooperation in these sorts of matters.

If Snowden was really afraid of extradition, he should have gone to a place like Ecuador, which has shown it does not mind angering the U.S.  Or he could have wandered across the border into China, which doesn’t have an extradition treaty.  But in choosing Hong Kong, he exposes himself to a real possibility of an extradition proceeding without any guarantee of his prevailing.  And he launches a zillion conspiracy theories about his real intentions: is he secretly planning to turn himself into the Chinese government?

What he will get, I suppose, is the maximum level of publicity he could desire and a level of celebrity Julian Assange will be envious of.  Which is probably what he wants.

What if Everyone Thought Congress Could Expand its Powers in Implementing Treaties?

by Duncan Hollis

Things are starting to heat up around the pending U.S. Supreme Court case Bond v. United Stateswhich will test the scope of Congress’s power to implement U.S. treaties.  The case is a big one — challenging as it does the holding of the most famous of U.S. foreign affairs law cases — Missouri v. Holland and Oliver Wendell Holmes’ wonderfully written (if somewhat ambiguous) opinion.  The amicus briefs are pouring in.  And with lots of lurid facts regarding affairs, revenge and chemical weapons, I assume the case will garnering increasing interest from the main stream media.

There’s already plenty of scholarship on (a) the scope of the treaty power (I’m a fan, if not always a follower of, the work of Curt Bradley, David Golove and Ed Swaine on this topic) as well as (b) Congress’s power to implement U.S. treaties (jump-started by Nick Rosenkranz).  Most of that work employed originalist research along with textual and structural arguments (my own contribution was to note the Executive’s self-regulation with respect to relying on Missouri).

Amid the many many pages of treaty power-related research, however, there’s been remarkably little academic attention to subsequent historic practice — how the implementing power was perceived after the framing and before Holmes’ opinion in Missouri v. Holland.  So, it’s with great interest that I read Jean Galbraith‘s new article — Congress’s Treaty-Implementing Power in Historical Practice.  It examines that history and comes to a somewhat surprising conclusion:  prior to Missouri v. Holland, both those who favored and those who opposed expansive uses of the U.S. treaty power believed Congress had authority to implement otherwise valid U.S. treaties.  That’s a finding that clerks and others working on the Bond case might want to investigate and think about a bit more.  Obviously, it’s not going to be determinative, but I’d assume the historical practice should be referenced and incorporated into whatever outcome the Court reaches.

For those interested in a more nuanced summary of Jean’s article, here’s her abstract:

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.

Weekday News Wrap: Monday, June 10, 2013

by An Hertogen

Events and Announcements: June 9, 2013

by An Hertogen

Calls for Papers

  • The American Society of International Law’s International Economic Law Interest Group (ASIL IEcLIG) is pleased to issue a Call for Proposals for its inaugural Junior Scholars Research Forum, to be held at the University of Pennsylvania’s Wharton School, in Philadelphia, on November 22, 2013. The deadline for receipt of proposals is June 25th, 2013 and more information can be found here.
  • On November 14–15, 2013, the University of Michigan Law School will host the Second Annual ASIL–ESIL–Rechtskulturen Workshop on International Legal Theory. This year’s theme is ‘Politics and Principle in International Legal Theory’. The deadline for the submission for abstracts is July 21, 2013. More information is available here.
  • The Faculty of Law, University of Ljubljana is organizing an international scientific  conference entitled Second Contemporary Challenges of International Environmental Law Conference. The conference will be held on June 5-6, 2014. Abstracts are due by September 5, 2013. You can find the call for papers here.
  • The Institute of Advanced Legal Studies (IALS), School of Advanced Study at the University of London is pleased to announce its inaugural IALS Student Law Review and invites applicants to submit their papers. The IALS Student Law Review will be an open-access journal publishing scholarly articles or developing work format and will focus on legal studies within the main expertise of IALS. Contributions from all areas of the law are welcomed. More information about the Journal and the call for papers can be found here.
  • The New Journal of European Criminal Law has issued a call for papers on Fundamental Rights and Penal Law in the Wake of Lisbon. It welcomes contributions on all aspects of the protection of fundamental rights within the Lisbon framework, with a particular focus on criminal law. Contributions, of maximum 12000 words (footnotes included, abstract and five keywords excluded), should be sent to irene [dot] wieczorek [at] vub [dot] ac [dot] be by September 1, 2013.

Events

  • On June 17, 2013 from 12.00pm – 2.00pm the American Society of International Law will host U.S. Department of State Assistant Secretary for International Security and Nonproliferation Thomas Countryman and other distinguished panelists for an educational event discussing domestic and international implications of the Arms Trade Treaty, challenges to the implementation of the treaty and its international humanitarian law aspects. More information is here.
  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) Herzliya would like to invite you to the next session of the Joint International Humanitarian Law Forum, on June 19, 2013. This month they host Prof. Eugene Kontorovich to discuss his new article “Jurisdiction over Israeli Settlement Activity in the International Criminal Court” and Dr. Ben Clarke to present his new article “Arming drones for law enforcement: challenges and opportunities for the protection of human life”. More information is here.

Announcements

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

Weekend Roundup: June 1-7, 2013

by An Hertogen

This week on Opinio Juris, Kevin analyzed the ICC’s Pre-Trial Chamber’s rejection of Libya’s admissibility challenge. He examined the PTC’s analysis of Libya’s inability to prosecute, and expressed surprise that Libya’s failure to provide Saif with defence counsel was evidence of its “inability” instead of “unwillingness”. If you find yourself in Johannesburg next week, you can hear more from Kevin on the admissibility challenge during a lunchtime lecture at the Open Society Initiative for Southern Africa.

In other ICC news, Jennifer Trahan argued that Germany’s ratification of the Kampala Amendment on the Crime of Aggression was a significant step.

Peter was less impressed by the US’ excuse not to attend the signing ceremony of the UN Arms Trade Treaty.

Kevin discussed recent ICTY developments, and his arguments why the ICTY’s “specifically directed” requirement is justified attracted a lot of comments.

Julian asked Chinese scholars to explain why island sovereignty claims in the South China Sea support China’s broader claims using the nine dash line.

Chris pointed out that Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen have published their full length article on the question of whether a “least harmful means” rule exists in the Law of Armed Conflict. He also posted about the approaching deadline for AJIL‘s Agora on “Transnational Human Rights Litigation after Kiobel. Other events and announcements can be found here. Finally, you can find our roundups of the daily news here.

Have a nice weekend!

Speaking at OSISA in Johannesburg

by Kevin Jon Heller

I am currently in Durban, South Africa, co-teaching a fantastic ICL course with my friend (and War and Law blogger) Chris Gevers at the University of KwaZulu-Natal. Durban is a very nice city, with amazing coffee — high praise from someone who lives in Melbourne. I will be spending three days in Cape Town next week, then two days in Johannesburg. On June 13, I’ll be giving a lunchtime lecture at the Open Society Initiative for Southern Africa on Libya’s failed complementarity challenge; any Opinio Juris readers in Johannesburg/Pretoria are warmly invited to attend. RSVP is required; you can find information about the lecture here.

If you come to the event because of this post, please come say hello. There will be a light lunch provided after the lecture.

Weekday News Wrap: Thursday, June 6, 2013

by An Hertogen

Weekday News Wrap: Wednesday, June 5, 2013

by An Hertogen

  • According to French Foreign Minister Laurent Fabius, forensic examination has shown that the Syrian regime used sarin gas against the rebels. He added that all options are now on the table regarding the response to the situation in Syria.
  • Syrian troops, assisted by Hezbollah militia, have seized control of the strategic city of Qusair.
  • The US International Trade Commission has sided with Samsung in its ongoing patent fight against Apple; this could see certain types of iPads and iPhones banned from import and sale in the US.
  • An Egyptian court has handed out prison sentences of up to five years to 43 pro-democracy NGO workers, including 16 Americans.
  • Environmental NGOs have released a report accusing Joseph Kony and his militia of poaching elephants for cash and have called upon governments, particularly in Asia, to do more to combat the illegal trade in ivory.
  • The EU Trade Commissioner, Karel De Gucht, has imposed a 12% import duty on Chinese solar panel products that will increase to an average of 47% unless a solution is negotiated within 60 days. China has already responded by announcing an investigation into EU wine trading subsidies.

China and the Philippines Take Their “Battle” Over South China Sea to Military Conference

by Julian Ku

The indefatigable Benjamin Wittes at Lawfare has a short post describing a lively exchange between the Chinese and Filipino representatives at MILSOPS, an invitation-only off-the-record meeting of top military officials from the Asia-Pacific region, about China’s nine-dash-line claim to the South China Sea.

Apparently, this has been an ongoing debate at this annual conference. Last year, the Chinese representative presented this set of powerpoint slides usefully entitled:  “China has indisputable sovereignty over the islands in the South China Sea: Understanding the South China Sea issue from the angle of law”.  (The title says it all). Ben says he is somewhat constrained in his reporting since the conference is off-the-record, but hopefully he can get participants to write more about their exchange.

The one thing that is a constant in these slides and from other articles from China is that Chinese officials are using their claim to sovereignty over the “Nansha” islands as the basis for their claims of “indisputable sovereignty.”  And China does indeed have plausible sovereignty claims to many of the islands in the South China Sea, and those sovereignty claims are of course not subject to UNCLOS arbitration.  But no one in China has really offered a particularly detailed explanation of how the sovereignty claims to the islands can justify the “nine-dash line” (see my earlier post here describing the nine-dash line claim) which goes well beyond a 12 mile territorial sea or the 200 mile exclusive economic zone. Thus, even if China had sovereignty over every random rock in the South China Sea, it can’t quite support the nine-dash line.  I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims.  It is the nine-dash line that makes China’s claims unusual, and particularly dangerous.  And, oddly, it overshadows and weakens China’s much better and more legally supportable claims to particular South China Sea islands.

Guest Post: Germany’s Ratification of the Crime of Aggression Amendment: A Significant Step

by Jennifer Trahan

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

Yesterday, June 3, 2013, Germany deposited its instrument of ratification of the Kampala Amendment on the crime of aggression.  The ratification is the 6th to date, and one step closer to the thirty ratifications needed to activate the International Criminal Court’s crime of aggression.  The amendment, negotiated at the ICC’s Review Conference in Kampala, Uganda, requires 30 ratifications and one more vote at the ICC’s Assembly of States Parties in order for activation.  The amendment provides both a definition of the ICC crime of aggression and sets forth conditions for the ICC’s exercise of jurisdiction over the crime.  The definition also facilitates states in implementing the crime into their national laws – something considered controversial by some countries.

Germany ’s ratification is historic, because it was at the Nuremberg Tribunal that the Allies prosecuted key Nazi leaders for “crimes against the peace,” now termed the crime of aggression.  Yet, the definition used at Nuremberg—and the International Tribunal for the Far East (Tokyo)—was rather minimal, and somewhat circular, necessitating the drafting work that led to the adoption of the crime of aggression amendment at the 2010 Review Conference.  The text of the amendment rests on a sound historical foundation, incorporating language from Nuremberg ’s London Charter, U.N. Charter article 2(4) and U.N. General Assembly resolution 3314.  Still, some countries, including the United States , remain wary of the ICC’s activating the crime of aggression.  Under the complex jurisdictional agreement reached in Kampala , the U.S. , as a non-State Party to the Rome Statute, will be exempt from the ICC’s crime of aggression jurisdiction even once it activates.

Germany ’s ratification is important because it is the most significant country to date, and a significant NATO member, to have ratified the amendment.  States appear to have various motivations in ratifying, with some countries clearly seeing the amendment as a step to further protect their national boundaries.  While aggressive use of force by a state is already prohibited under the U.N. Charter, the crime of aggression amendment is hoped to provide added deterrence against aggressive use of force (that is, force that is not exercise in self-defence, authorized by the U.N. Security Council under Chapter VII, or humanitarian in nature).  That the crime of aggression amendment does not criminalize humanitarian intervention is something that this author would prefer to have seen added clarity on; the U.S. had proposed an “Understanding” to this effect in Kampala , but it was not ultimately adopted.

Germany ’s step today should be applauded as a significant move that advances the rule of law, the work of the International Criminal Court, and a commitment to international peace and security.

Further Debate Over Whether There is a “Least Harmful Means” Rule in the Law of Armed Conflict

by Chris Borgen

As readers of Opinio Juris know, Ryan Goodman argues in a forthcoming article in the European Journal of International Law  that:

“the modern law of armed conflict supports the following maxim: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided.”

Whether an obligation under the law of armed conflict (LOAC) to use the least harmful means possible against enemy belligerents exists has been the subject of much debate on this blog (1, 2, 3) and at Lawfare (see, for example, this)  and Jens Ohlin has also explored similar issues in his scholarship on the duty to capture.  I want to give readers a “heads-up” that Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen, who participated in the Lawfare discussion of Ryan’s piece (go to this link for a list that includes their posts, or go directly to their first post), have just posted to SSRN a full length article being published in the U.S. Naval War College’s International Law Studies on the question of whether a “least harmful means” rule exists. Their short answer is in the title: “Belligerent Targeting and the Invalidity of the Least Harmful Means Rule.” Here’s the abstract:

The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this obligation to capture rather than kill, or use the least harmful means to incapacitate enemy belligerents, do not contest the general authority to employ deadly force derived from belligerent status determinations. Instead, they insist that the conditions that rebut this presumptive attack authority are broader than the traditional understanding of the meaning of hors de combat embraced by military experts, and include any situation where an enemy belligerent who has yet to be rendered physically incapable of engaging in hostilities may be subdued without subjecting friendly forces to significant risk of harm.

This essay offers our collective and — we hope — comprehensive rebuttal of this least harmful means LOAC interpretation. First, Section I reviews the fundamental principles of the LOAC that permit status-based attacks against enemy belligerents with combat power highly likely to cause death unless and until the enemy is rendered physically incapable of participating in hostilities. Section II thoroughly analyzes the affirmative prohibitions on the use of force that the LOAC — and specifically Additional Protocol I — does require, and also highlights what Additional Protocol I does not require. In particular, the fact that Additional Protocol I — by any account the most humanitarian-oriented LOAC treaty ever developed — did not impose any affirmative least harmful means obligation vis à vis belligerents undermines any assertion that such an obligation may be derived from the positive LOAC. Finally, and perhaps most importantly, Section III emphasizes how this least harmful means concept, especially when derived from an expanded interpretation of the meaning of the concept of hors de combat, is fundamentally inconsistent with the tactical, operational, and strategic objectives that dictate employment of military power.

The LOAC must, as it has historically, remain rationally grounded in the realities of warfare. We are confident that anyone grappling with this issue understands that decisions related to the employment of combat power are not resolved in the quiet and safe confines of law libraries, academic conferences, or even courtrooms; they are resolved in the intensely demanding situations into which our nation thrusts our armed forces. The law must, as it always has, remain animated by the realities of warfare in the effort to strike a continuing credible balance between the authority to prevail on the battlefield and humanitarian objective of limiting unnecessary suffering. The clarity of the existing paradigm achieves that goal and does not include any legal obligation to use the least harmful means in targeting enemy belligerent personnel.

US (Lamely) Excuses No-Show at UN Arms Treaty Signing

by Peter Spiro

Here’s the official explanation: the US had yet to “satisfactorily complete” the “process of conforming the official translations” of the agreement. Via Twitter, FP’s David Bosco sees a back-up excuse once the analysts at State finish reading the French version:

Bosco is almost certainly on the money predicting that when the US does sign on, it will be late on a Friday afternoon in summer.

I don’t understand this. The treaty wouldn’t require any changes in US law, much less trample on any Second Amendment rights. Can’t the Administration stand up to the NRA on this front, at least for the purely symbolic exercise of the treaty signing?

If Obama wanted to put his recently aggressive interpretations of executive branch power to work, he might even think of acceding to the convention as a sole executive agreement. (Before you laugh, remember that he has that in mind for the more consequential Anti-Counterfeiting Agreement, as Oona Hathaway describes here.) The US absence yesterday at the UN bodes ill for any second-term progress on any of the human rights treaty fronts.

Weekday News Wrap: Tuesday June 4, 2013

by An Hertogen

Deadline Approaching for Submissions to AJIL’s Agora on post-Kiobel Human Rights Litigation

by Chris Borgen

A quick reminder to all readers that the American Journal of International Law is looking for submission on “Transnational Human Rights Litigation After Kiobel.” You can see Opinio Juris’ own discussion on the topic here.  The June 15th deadline for the AJIL Agora is approaching. Here is the call for submissions, which is also available on the ASIL’s website.

Call for AJIL Agora Submissions: 

Transnational Human Rights Litigation After Kiobel
The American Journal of International Law is calling for short submissions (maximum 3000 words, including footnotes) for a forthcoming agora on “Transnational Human Rights Litigation After Kiobel.” Contributions must not have been previously published in whole or in substantial part (on the web or elsewhere). Some of the chosen contributions will be published in the October 2013 issue of the Journal. Other selected contributions may be published electronically in a special ASIL online publication. All contributions must be submitted no later than June 15 in order to be considered. Contributions on U.S. law issues, and on comparative and non-U.S. dimensions, are welcome. The editors aim to publish a set of distinctive contributions, rather than many making similar points. All selections for publication in AJIL or in the ASIL online publication will be peer reviewed by a committee of the AJIL editorial board consisting of Carlos Vázquez (chair), Curtis Bradley, and Ingrid Wuerth, in consultation with Co-Editors in Chief José Alvarez and Benedict Kingsbury. Decisions on publication (including requests for revisions) will be made on a rolling basis, but in any case no later than June 30. Submit contributions to ajil [at] asil [dot] org with “Kiobel Agora” in the subject line.

Weekday News Wrap: Monday, June 3, 2013

by An Hertogen

Events and Announcements: June 2, 2013

by An Hertogen

Calls for Papers

  • The T.M.C. Asser Institute has issued a call for submissions of research papers and articles for publication in the online article series of the International Crimes Database, a new database on international crimes that will be launched this year. The International Crimes Database is based on the DomCLIC database, found here. 500-word abstracts and CVs/résumés are due by June 16, 2013.
  • International Court of Justice will host a conference in celebration of the Centenary of the Peace Palace on Monday, 23 September 2013. It has issued a call for papers for a session on “The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs”. Abstracts, in either English or French, should be no more than 2500 words in length and must be received by the Court by  July 10, 2013.

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

Why the ICTY’s “Specifically Directed” Requirement Is Justified

by Kevin Jon Heller

A couple of months ago, the ICTY Appeals Chamber acquitted Momčilo Perišić, the Chief of the General Staff of the Yugoslav Army, of aiding and abetting various international crimes committed by the Army of Republika Srpska (VRS) during the war in the Balkans. According to the Appeals Chamber, when a defendant is accused of aiding and abetting crimes committed by an organization, the prosecution must prove that the defendant “specifically directed” his assistance to the organization’s criminal activities; proof that he provided general assistance to the organization is not enough. That “specific direction” requirement doomed the case against Perišić, because the Appeals Chamber concluded that the prosecution has not proved that his assistance to the VRS was specifically directed toward the VRS’s criminal activities.

The “specific direction” requirement has now doomed another ICTY prosecution. Just yesterday, an ICTY Trial Chamber acquitted Jovica Stanišić and Franko Simatović, the former Chief of the Serbian State Security Service and a former employee of the Serbian State Security Service, respectively, and ordered their immediate release. With regard to allegations that the two defendants aided and abetted international crimes committed by units of the Serbian State Security Service, the Trial Chamber concluded that although Stanišić and Simatović had provided assistance to the units in question, the prosecution had failed to prove that their assistance was specifically directed towards those units’ crimes.

Various scholars criticized the “specific direction” requirement following Perišić’s acquittal, most notably — and very intelligently — James Stewart on this blog (see here and here). Jens Ohlin has also just written an excellent post on the requirement in response to the acquittals of Stanišić and Simatović, but he does not specifically argue that the Appeals Chamber should not have adopted it.

Although I do not necessarily endorse how the Chamber applied the requirement in Perišić and Stanišić & Simatović, I believe that the ICTY Appeals Chamber was absolutely correct to endorse the “specific direction” requirement in the context of organizational criminality…

Inability and Due Process in the Saif Gaddafi Admissibility Judgment

by Kevin Jon Heller

By any standard, the Pre-Trial Chamber’s rejection of Libya’s admissibility challenge is a crushing defeat for the Libyan government. Libya’s challenge failed for two basic reasons: (1) Libya is not investigating the same case as the OTP; and (2) Libya is currently unable to genuinely prosecute Saif. I will address the first ground, which I think is legally correct but practically problematic, in a subsequent post. In this post I want to discuss the second ground, Libya’s inability to genuinely prosecute, with which I basically agree.

The PTC identifies three reasons why Libya’s is unable to genuinely prosecute Saif within the meaning of Art. 17(3) of the Rome Statute, which deems a state “unable” if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” First, the PTC notes that Libya has not demonstrated that is is able to obtain Saif from the Zintan militia that is holding him:

207. The Chamber has no doubt that the central Government is deploying all efforts to obtain Mr Gaddafi’s transfer but, in spite of Libya’s recent assurances, no concrete progress to this effect has been shown since the date of his apprehension on 19 November 2011. The Chamber is not persuaded that this problem may be resolved in the near future and no evidence has been produced in support of that contention.

This rationale for denying Libya’s admissibility challenge is unassailable, as I have pointed out numerous times before. (See here, for example.)

Second, the PTC says that the Libyan government’s lack of control over certain detention centres means it cannot guarantee that all of the witnesses necessary for a domestic prosecution will be able to testify…

Weekend Roundup: May 25-31, 2013

by An Hertogen

This week on Opinio Juris, we teamed up with SHARES Blog for a symposium on the intersection between the law of the sea and the law of responsibility, introduced here by Kristen. A first series of posts dealt with whaling. Natalie Klein contrasted responsibility regimes on whales and sharks. In his comment, Tim Stephens expressed hope that the ICJ will apply article 48 of the Articles on State Responsibility in the Whaling in the Antarctic case. Irini Papanicolopulu also discussed the international responsibility of non-state actors in the whaling dispute, which led Julian to ponder whether non-state actors are more important than states.

Further on living marine resources, Yoshinobu Takei asked whether the law of responsibility can play a role in international fisheries management. Ilias Plakokefalos commented that, as desirable as it is to apply the law of state responsibility to overfishing, it will be no easy feat. Tim Stephens’ comment pointed out how regulatory efforts to deal with overfishing tend to focus on specialized regimes rather than the law of responsibility. Anastasia Telesetsky argued in favour of imposing a due diligence obligation on flag states to avoid damage to marine resources. Ilias Plakokefalos raised two questions regarding the role of the flag state in terms of its international responsibility.

Finally, there was also a discussion of humans at sea with Seline Trevisanut’s post on responsibility for search and rescue operations, on which Tim Stephens provided an Australian perspective in his comment.

In other posts, Ken returned to his old favourite of EVOO, while Kevin brought you a breaking news update that the ICC’s Pre-Trial Chamber has rejected Libya’s admissibility challenge. Kevin also mentioned two unpleasant possibilities about the drone programme, and was disturbed by threats of genocide against Shia in Syria. A guest post by Onur Güven highlighted three challenging questions during the Third CWC Review Conference that recently took place in The Hague.

Finally, as always, we listed events and announcements and brought you the weekday news wraps.

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