Archive for
July, 2013

Emerging Voices: Taking Forced Marriage out of the “Other Inhumane Acts” Box

by Frances Nguyen

[Frances Nguyen is a recent J.D. graduate of Lewis & Clark Law School.]

Forced marriage is a complicated subject. The multilayered acts of brutality frequently overlap with sexual slavery, enslavement, rape, and arranged marriage. This can create confusion leading scholars, courts, and legal practitioners to either disregard forced marriage or shelve it into the box of “other inhumane acts” under crimes against humanity. The purpose of this post is to facilitate a proper discussion and address the legal complexities of forced marriage. More importantly, this post is calling for a robust recognition of forced marriage as an international crime. Instead of putting it under the general rubric of “other inhumane acts” it should be explicitly listed and placed alongside other sex and gender-based crimes under the International Criminal Court (ICC)’s Rome Statute.  In doing so, the criminalization of forced marriage by the international community will gain ground. This will lead to greater punishment against the perpetrators and properly accord the victims justice. Victims of forced marriage often endure severe long-term physical and emotional trauma due to their continuous and exclusive relationship with their perpetrators. For example, Fatmata Jalloh was selling pancakes on a rural road in Sierra Leone when a rebel soldier kidnapped her and made her his wife. “I was a child. I didn’t know anything about love at that time. But he said, “If you don’t take me [as your husband], I’ll kill you,” Jalloh said. As his wife, Jalloh was forced to perform sexual acts and domestic duties for two years until Sierra Leone’s civil war ended. “There was no way not to do it. If I would leave, I would have no food. He would kill me.”

Jalloh’s story is representative of many young women and girls who were forced to become “bush wives,” women who were forced into marriage and essentially became domestic and sexual slaves to militia soldiers. From 1991 to 2002, Sierra Leone was embroiled in a civil war, which resulted in the national government fighting against rebel groups. At least 50,000 people died, while an estimated 100,000 suffered from mutilation. While massive atrocities were prosecuted by the Special Court for Sierra Leone (SCSL), forced marriage remained a neglected issue until 2008 when the SCSL in Prosecutor v. Brima, Kamara, and Kanu formally recognized forced marriage as a crime against humanity as an “other inhumane act.”

Continue Reading…

Weekday News Wrap: Wednesday, July 31, 2013

by Jessica Dorsey

Correcting a Common Misperception of the Espionage Act

by Kevin Jon Heller

As a progressive, I’m delighted that Bradley Manning was acquitted of aiding the enemy but horrified that he was convicted of espionage. Ethically, Manning is a hero, not a spy. As a law professor, though, I think it’s critically important to get the law right — and unfortunately, many commentators are simply misstating what the Espionage Act says and how courts have interpreted it. Consider the following claim by Elias Groll at FP.com (emphasis mine):

In past cases in which the government pressed espionage charges against members of the intelligence community who provided classified information to the media, the government had to prove “bad faith” — that the accused intended to harm U.S. interests. If there was ever to be a legal reprieve for men like Manning and Snowden, it lay in the “bad faith” provision and the argument that these whistleblowers had in fact acted in the best interests of the nation. But that provision has been jettisoned in more recent rulings, a precedent continued by Lind.

Groll misunderstands what courts mean by “bad faith” in the context of an espionage prosecution — which is probably why he neither links to nor cites a past case that equated “bad faith” with the intent to harm the US. The key decision is Gorin v. United States, 312 US 19 (1941), in which the petitioners argued that the “connected with the national defense” requirement in what is now 18 USC 793(a) was unconstitutionally vague. The Supreme Court rejected that argument, holding that any potential vagueness was cured by the mens rea requirement in the Espionage Act, which required the defendant to act with bad faith (emphasis mine):

But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring “intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.” This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood, be no reasonable intent to give an advantage to a foreign government.

Notice: the Gorin Court did not limit “bad faith” to obtaining national-defense information with the “intent” to injure the United States; it also considered bad faith obtaining national-defense information while having “reason to believe” that the information could be used to injure the US. Those are very different mental states.

Nor is Gorin an outlier. No court in the 70 years since the Supreme Court’s decision has held that the Espionage Act requires the defendant to obtain (or receive, or transmit, etc.) national-defense information with the intent to injure the US. And that is not surprising: all of the various subsections of 19 USC 793 make clear that is enough for a defendant to have “reason to believe” information could be used to injure the US. That much more easily satisfied mens rea requirement appears in 793(a), 793(b) (“with like intent”), 793(d), and 793(e). It does not appear in 793(c) — but only because that provision, which deals with receiving or retaining information “connected with the national defense,” does not require even potential injury to the US.

Again, I think it is terrible that Manning has been convicted of espionage. I think it would equally terrible if Edward Snowden was ever convicted of it. But courts have not suddenly stopped requiring espionage defendants to intend to injure the US. That intent has not been required since at least 1941.

Libya Thumbs Its Nose at the ICC — Again…

by Kevin Jon Heller

As I recently noted, the Appeals Chamber has rejected Libya’s request to suspend its obligation to surrender Saif Gaddafi to the ICC pending resolution of its admissibility appeal. Libya, of course, has no intention of complying with that obligation. Indeed, it admitted as much today:

According to Libya’s Justice Minister Salah al-Marghani, Seif, who is being detained in the Libyan city of Zintan by order of the General attorney, will soon be transferred to Tripoli to stand trial. But the ICC wants to try him, and Gaddafi’s brother-in-law and former intelligence chief Abdullah Senussi on the same charges.

On July 18 the Hague-based ICC rejected Tripoli’s request to keep Seif in Libya for trial, saying that Libya remained “obliged” to hand over Seif to the court.

Libya’s representative to the ICC, Ahmed al-Jehani said that as soon as Seif is transferred to Tripoli, the Libyan government would again appeal the ICC decision.

Mr al-Jehani added: “The ICC decision is based on Seif al-Islam’s detention in Zintan and not under the control of the judicial authorities in Tripoli. This (ICC) decision is not final. Libya’s right to try Seif al-Islam is linked to his transfer to Tripoli.”

Salah al-Marghani said that Libya would appeal the Court’s decision as soon as it meets the three demands expressed by the ICC, namely, the transfer of the Seif to Tripoli and the appointment of lawyers for Seif and Abdullah Senussi. He pointed out that the Public Prosecution would handle the investigation.

He added: “The provision of lawyers, we are working on, that, as well as on several different investigations other than rape and murder.”

Put more simply: Libya will not comply with a binding order to surrender Saif to the ICC, but it fully expects the ICC to let it file a second admissibility challenge. The Rome Statute does, in fact, leave open the possibility of multiple admissibility challenges; Art. 19(4) provides that, “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial.” But there is nothing exceptional about Libya’s circumstances that would justify a second admissibility challenge; Libya simply wants to be rewarded for ignoring the Court’s surrender order long enough to fix the problems with its initial challenge. For that reason alone, the Court should reject any Libyan request to file a second admissibility challenge — a decision that, as Art. 19(4) makes clear, is left to the Court’s discretion.

As an aside, I feel obligated to point out that Ahmed el-Gehani, the same man who regularly makes clear to the press that Libya will not surrender Saif to the ICC — and who once told Saif that he was the “architect” of the domestic charges against him — also signs each and every legal document that Libya files with the Court. (See, for example, Libya’s latest brief.) In my view, a strong case can be made that el-Gehani’s actions violate the ICC’s Code of Professional Conduct for Counsel (CPCC) which specifically applies to “counsel acting for States.” Art. 7(3)  of the CPCC provides (emphasis mine) that “[c]ounsel shall comply at all times with the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and such rulings as to conduct and procedure as may be made by the Court, including the enforcement of this Code.” Moreover, Art. 25(1) provides (emphasis mine) that “Counsel shall at all times maintain the integrity of evidence, whether in written, oral or any other form, which is submitted to the Court. He or she shall not introduce evidence which he or she knows to be incorrect.” Those obligations seem difficult to reconcile with el-Gehani’s actions.

Peter Margulies’ Sur-Reply

by Kevin Jon Heller

Peter has responded at Lawfare to my most recent post. I think we’ve taken the argument about as far as we can, so I’ll give Peter the last word. Suffice it to say that, according to Peter’s new post, there is nothing wrong with an appellate court upholding a defendant’s conviction (1) for a non-existent war crime — conspiracy; (2) on the ground that the non-existent war crime bears a resemblance to a mode of liability that is not within the jurisdiction of a military commission — JCE; because (3) that mode of liability bears a resemblance to a mode of participation that is within the jurisdiction of a military commission — aiding and abetting. We can only hope that the military commissions themselves, and the courts that review them, do not take such a cynical approach to the principle of legality. But I’m not going to hold my breath.

PS. Peter’s invocation of aiding and abetting tells us all we need to know about his willingness to rely on analogy to paper over vast differences between criminal-law doctrines. JCE is a form of principal liability; aiding and abetting is a form of accessorial liability. The actus reus of JCE requires an enterprise, a common plan, and a contribution to the plan; the actus reus of aiding and abetting requires no plan at all, just assistance to a crime that has a substantial effect on its commission. The mens rea of JCE requires intent to commit the crimes contemplated by the common plan; the mens rea of aiding and abetting requires only knowledge that assistance will contribute to a crime. But other than that, JCE and aiding and abetting are exactly the same…

PPS. I feel compelled to set the record straight concerning the government’s decision to drop JCE from the Hamdan case. Peter rejects that description of what happened, arguing that “[t]he government dropped the language after a judge in Salim Hamdan’s case rejected the enterprise concept from the Racketeering Influenced and Corrupt Organizations Act (RICO), not from JCE.” Peter’s argument, however, is specifically contradicted by Judge Allred’s decision. As Judge Allred notes (p. 102 of the document here), in defending the “enterprise theory,” the government argued (emphasis mine) that “[t]here is also historical precedent… in the law of war for an enterprise theory of liability that is neither present nor required in military law.” The italicized language puts beyond doubt that the government was arguing JCE, not some kind of RICO liability. Last time I checked, RICO was not part of the law of war.

Weekday News Wrap: Tuesday, July 30, 2013

by Jessica Dorsey

Emerging Voices: Distinction without a Difference – The UN’s Attempt to Fight A War Without Fighting A War

by Leslie Schildt

[Leslie Schildt is a criminal prosecutor at the Monroe County District Attorney’s Office in Rochester, New York and previously worked in the Office of the Prosecutor at the International Criminal Court in the Hague.]

Earlier this year, the United Nations created its first ever offensive combat force – the “Intervention Brigade.”  It enters the Democratic Republic of Congo (DRC) as part of MONUSCO, the long-standing United Nations peacekeeping operation in the DRC.  According to Security Council Resolution 2098, the Intervention Brigade will act unilaterally or alongside the Congolese army.  The Brigade is a creature of Chapter VII of the UN Charter, which governs peace enforcement operations.  The force will execute “robust, highly mobile … targeted offensive operations” to find, engage, “neutralize,” and disarm the heavily armed rebel forces.  This is an unprecedentedly aggressive humanitarian combat force that arguably is the first of its kind.

The Intervention Brigade raises serious questions regarding how the offensive mission might affect the non-combatant peacekeepers in MONUSCO.  To understand the potential dangers to peacekeepers and how to avoid them, one must first understand the core legal distinctions between peacekeepers and peace enforcers.

UN peacekeeping operations operate under three bedrock principles: (1) Consent of the main parties, (2) impartiality, and (3) non-use of force except in self-defense and in defense of mandate.  Consent of the parties requires commitment and acceptance from the main parties to the conflict.  Without consent, “the peacekeeping operation risks becoming a party to the conflict; and being drawn towards enforcement action.”  Impartiality requires the peacekeepers’ even-handed treatment of all parties to the conflict, but not neutrality in execution of their mandate.  Indeed, where one party commits blatant violations, “continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil.” (Brahimi Report)  Peacekeepers also cannot use force except in self-defense or in defense of mandate.  “Defense of mandate” may accommodate offensive use of force in some circumstances (e.g., to protect civilians under imminent threat), but peacekeepers certainly cannot lawfully conduct offensive seek-and-disarm missions.

Because peacekeepers are not “used outside the humanitarian function to conduct hostilities,” they remain protected as civilian non-combatants.  During an armed conflict, “all persons who are neither members of the armed forces of a party to the conflict . . . are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”  This attribute enables combatants to distinguish lawful enemy targets from protected persons.  However, it is another matter entirely when peace enforcement units conduct aggressive seek-and-pacify operations. Continue Reading…

Weekday News Wrap: Monday, July 29, 2013

by Jessica Dorsey

Alexandra Link on Material Support for Terrorism and JCE

by Kevin Jon Heller

As I was doing some research for my posts on the al-Bahlul amicus brief, I came across a superb student note in the Michigan Journal of International Law written by Alexandra Link. It’s entitled “Trying Terrorism: Material Support for Terrorism, Joint Criminal Enterprise, and the Paradox of International Criminal Law,” and here is the (very long) abstract:

In 2003, the United States commenced its first criminal proceedings against a handful of Guantanamo detainees. Rather than trying them before traditional federal courts, the U.S. chose to try them before military commissions for violations of the laws of war. After this first iteration of military commissions were struck down in 2006, Congress passed the Military Commissions Act which codified some thirty-two offenses, including conspiracy and material support for terrorism. In enacting the legislation, Congress provided that it was only codifying those offenses which had “traditionally been triable by military commission… [and was] not establish[ing] new crimes,” thus the codified crimes could apply retroactively. One detainee, Salim Ahmed Hamdan — known to the world as Osama bin Laden’s driver — challenged the government’s authority to subject him to trial by military commission on the charges of conspiracy and material support, arguing that military commissions lacked subject matter jurisdiction over the charges. Hamdan has contended that, irrespective of the new statutory provision, both of these effectively inchoate offenses are not violations of the customary international laws of war, and thus that the military commissions still lack subject matter jurisdiction. Parallel to his case, another detainee, Ali Hamza Ahmad Suliman Al Bahlul, made a nearly identical argument on appeal from nearly identical charges. In 2011, the Court of Military Commission Review (CMCR) rebuffed both defenses; both defendants in turn filed appeals with the D.C. Circuit Court of Appeals. Now, for the first time in over a century, the U.S. federal courts will be tasked with looking to international law to answer the rarely heard but exceptionally important question of what limitations constrain congressional power to define and punish offenses against the law of nations, or in this case, the laws of war. In answering that question, the courts will have primary recourse in international criminal law (ICL).

The issue presented by Hamdan’s appeal — whether a recognized war criminal’s driver may be tried for war crimes on the theory that his driving contributed to the crimes — brings to the fore dilemmas posed by modern developments in international law. Defying public international law’s anachronistic statist origins and formal doctrine of sources, the last two decades have witnessed the rapid evolution of law driven not by states, but by international and nongovernmental organizations and international courts. This “judicialization” of international law is nowhere more evident than in ICL, a body of law that, in reality, has been almost wholly developed by international tribunals. Although rooted in a handful mid-twentieth century treaties elaborating the laws of war, much of the substance of ICL has been articulated, expanded, and, frankly, revolutionized by the ad hoc tribunals. Nevertheless, judge-made law remains formally anathema to an international legal system still governed by a statist doctrine of sources that rejects the ability of courts and judges to make law. Previously a matter of abstract theory for scholars, this paradox is rendered concrete by the cases of Hamdan, Al Bahlul, and other detainees whose futures appear to rely upon the substantive and authoritative limitations placed on these juridical sources. This Note subsequently examines three issues in the wake of Hamdan’s and Al Bahlul’s appeals to the D.C. Circuit: (1) whether material support is properly analogous to JCE; (2) whether, as a matter of formal public international law, U.S. courts have properly interpreted the authority of the ICTY’s jurisprudence vis-a-vis the Rome Statute in defining and identifying customary international law norms; and (3) whether the importation of these ICL sources for the purposes of the military commission is proper given the unique context of the tribunals and what, if any, restraints should be placed on the use of their doctrinal developments.

The Note is a model of careful methodological analysis — and exhibits an understanding of the relevant international law that puts most professors (to say nothing of most American courts) to shame. It’s a must read.

Joint Criminal Enterprise Was Also Dismissed in Khadr

by Kevin Jon Heller

I noted in the update to my response to Margulies that the Hamdan military commission rejected the government’s argument that JCE is a viable alternative to conspiracy as an inchoate crime. It’s worth adding that the Khadr military commission rejected the same argument. A brief filed by Khadr provides the necessary background (pp. 2-3; emphasis mine):

On 2 February 2007, the Office of the Chief Prosecutor (OCP) caused charges to be sworn against Mr. Khadr. (See Sworn Charges, Appellant’s Appx., Ex. K.) Charge III (conspiracy) includes the allegation that Mr. Khadr “conspired and agreed” with named individuals to commit offenses triable by military commission. (Id.) In addition, in apparent reliance on the Secretary’s ultra vires attempt to enlarge the definition of “conspiracy,” the OCP included the allegation that Mr. Khadr did “willfully join an enterprise of persons who shared a common criminal purpose” to commit various offenses triable by military commission. (Id.) The sole specification of the charge alleges a number of overt acts in furtherance of the “enterprise and conspiracy.” (Id.) On 24 April 2007, the Convening Authority referred amended charges (including Charge III) for trial by military commission. (See Referred Charges, Appellant’s Appx., Ex. J.)

On 11 January 2008, the defense moved to strike the “enterprise” language from Charge III as surplusage. (See Def. Mot., Appellant’s Appx., Ex. H.)1 On 4 April 2008, finding that the Secretary had gone “beyond the elements for conspiracy” in purporting to define conspiracy to include joining a criminal enterprise, the Military Judge concluded that the Secretary’s effort was “contrary to or inconsistent with” the MCA. The Military Judge therefore correctly ruled in favor of the defense and ordered the surplus “enterprise” language to be stricken from Charge III. (See Ruling on Def. Mot., D-019, Appellant’s Appx., Ex. F.)

Unlike in Hamdan, the government appealed the commission’s ruling. The Court of Military Commission Review (CMCR) rejected the appeal for procedural reasons instead of substantive ones — which is probably a good thing, because the CMCR has proven time and again that it cannot be trusted with substantive legal questions.

Guest Post: David J. R. Frakt on the Al-Bahlul Amicus Brief

by David Frakt

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense]

I write in response to the amicus brief submitted by “former government officials, military lawyers, and scholars of national security law” including my good friends Peter Margulies, Eric Jensen and several other esteemed and highly accomplished colleagues, discussed in Kevin Jon Heller’s excellent post.

In my mind, reasonable people can differ on whether conspiracy is a recognized crime under the international law of war, and whether the conviction violates the Ex Post Facto clause (parts I and II of the brief), although I tend to agree with the posts (here and here) by Kevin Jon Heller and by Steve Vladeck at lawfare. These issues are thoroughly covered in other briefs, so I will not address them here.  I write to address part III of the brief, titled:  “The Error In the Initial Conspiracy Charge Was Harmless Because Al Bahlul Had Fair Notice Of The Charges Against Him And An Adequate Opportunity To Prepare A Defense.”

The brief makes an important factual error.  The brief states at pp. 16-17 that Mr. Al Bahlul made “statements in trial in his capacity as his own defense counsel.”  It repeats the assertion that he was “Acting as his own counsel” or “Acting as his own defense counsel” multiple times, quoting from the transcript from a pretrial session on 24 September 2008.  Allow me to set the record straight.  I was Mr. al Bahlul’s defense counsel.  He did not represent himself at trial, and the assertion that he was acting as his own defense counsel at the 24 September 2008 hearing  is also inaccurate.

I was detailed as Mr. al Bahlul’s military defense counsel. (Tr. 4.AE012). At Mr. Al Bahlul’s arraignment on May 7, 2008, I requested that the trial judge, Col. Peter Brownback (USA), advise Mr. Al Bahlul of his right to represent himself. (Tr. 17).  Col. Brownback did so, and asked repeatedly if Mr. Al Bahlul wished to represent himself. (Tr. 17-19, 35, 37, 39). After extended discussion, Col. Brownback determined that Mr. Al Bahlul did desire to represent himself, granted the request and appointed me to serve as standby defense counsel. (Tr. 42).

Mr. Al Bahlul thus became the first military commission accused to be afforded the right of self-representation under the 2006 MCA.  However, this grant of his pro se request was to be very short-lived.  The day after the arraignment, May 8, 2008, the judge held an RMC 802 conference at my request. I wanted to clarify…

Events and Announcements: July 28, 2013

by An Hertogen

Announcements

  • From September 23-26, 2013, the British Institute of International and Comparative Law will be running a new four day programme called International Law in Practice. Led by many of the Institute’s leading researchers and practitioners, the course will provide a broad introduction to key issues in international and comparative law – from public to private and from commercial to human rights. Deadline for registration is August 16, 2013. More information is here.
  • Students for the Promotion of International Law  (SPIL), Mumbai, a chapter of ILSA, Chicago is organising its annual event, the 5th Government Law College International Law Summit 2014 from January 31 to February 2, 2014. The Summit includes two novel competitions, the Judgment Deliberation Competition and the Treaty Appreciation Competition, which were conceived within the portals of Government Law College, Mumbai.  The theme for this  edition of the Summit is International Investment Law. SPIL and Government Law College, Mumbai invite Law Colleges across the world  to participate in the Summit. More details are here.

Call for Papers

  • Yale Law School is hosting its 3rd Doctoral Scholarship Conference on December 6-7, 2013. This year’s conference sets out to explore the relationship between law and uncertainty. The conference is open to current doctoral candidates, both in law and law-related disciplines, and those who graduated during the previous academic year. The deadline for the submission of abstracts is August 15, 2013. More information is here.

The previous list of announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Thoughts on Peter Margulies’ Reply to My Criticism of the Amicus Brief (Updated)

by Kevin Jon Heller

Peter’s reply is posted at Lawfare, and it addresses both my criticisms (here and here) and Steve Vladeck’s (here). The reply is largely non-responsive to the points that I made in my posts; most of it is dedicated to establishing that the evidence presented at trial is sufficient to conclude that al-Bahlul participated in a JCE to commit 9/11 — and idea that I never contested.

There are, however, two basic problems with Peter’s argument. First, it is undeniable that the prosecution never legally proved the existence of a JCE to commit the various war crimes obliquely referenced in the conspiracy charge, because the commission was not instructed on the elements of JCE and — as the amicus brief admits — the commission was specifically and erroneously informed that it could convict al-Bahlul even if it did not believe a crime was completed. Moreover, as I pointed out in my last post, the prosecution specifically disclaimed reliance on JCE prior to trial. Whether the jury allegedly found enough facts from which enterprising scholars can cobble together a JCE is thus irrelevant.

Second, and perhaps even more important, Steve correctly points out in his post that JCE is not even an available mode of liability in a military commission. Here is the text of 10 USC 950q:

Any person punishable under this chapter who—

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or

(3) is a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof,<

is a principal.

The amicus brief’s analogical reasoning, therefore, is even more problematic than I described in my initial post. The brief not only wants the DC Circuit to affirm al-Bahlul’s conviction for a non-existent war crime on the basis of conspiracy’s resemblance to an uncharged mode of liability; it wants the DC Circuit to affirm al-Bahlul’s conviction for a non-existent war crime on the basis of conspiracy’s resemblance to an uncharged mode of liability that the government could not have used to prosecute al-Bahlul. If the government wanted to convict al-Bahlul of the uncharged war crimes obliquely referenced in the conspiracy charge (and remember, JCE is not a war crime; it is a means for holding a defendant responsible for war crimes perpetrated by others), it would have had to allege that he committed, aided, abetted, counseled, ordered, procured, or was responsible as a commander for them. It could not have alleged that he was responsible for them via JCE. So once again Peter’s argument about JCE is irrelevant.

Both problems are fatal to Peter’s argument (and the amicus brief’s) that the DC Circuit should uphold al-Bahlul’s conviction for a non-existent war crime on the ground that he participated in a JCE to commit the uncharged war crimes obliquely referenced in the conspiracy charge. But there are three other problems in Peter’s reply worth noting…

The Amicus Brief Urges Adoption of JCE — Which the Prosecution Repudiated!

by Kevin Jon Heller

As I noted in my first post, the amicus brief’s central argument is that it does not matter that al-Bahlul was convicted of a non-existent war crime — conspiracy as an inchoate offence — because (p. 13) “the defendant had adequate notice that he was charged with conspiracy as a mode of liability for a completed war crime and was offered a fair opportunity to put on a defense.” By “conspiracy as a mode of liability,” the brief means joint criminal enterprise (JCE); as it says, (p.7) “conspiracy as a mode of liability precisely tracks the elements of JCE.”

The amicus brief’s argument thus depends on the idea that al-Bahlul had “adequate notice” that he was being charged with war crimes on the basis of JCE. In my first post, I pointed out that the charge sheet did not mention JCE and that the military commission was never instructed on JCE. Having reviewed the trial record, I now realize why that’s the case: the prosecution specifically disclaimed reliance on JCE prior to trial. Here is the relevant exchange from the record (emphasis mine):

R. 109

20 MJ [COL GREGORY]: But for now, please announce in open court
21 the changes so that everyone can hear in both English and in Mr.
22 Bahlul’s language.
23 TC [MAJ COWHIG]: Sir, the government moves to amend Charge I

R. 110

1 and its Specification by striking the language beginning on the third
2 line of this specification.
3 MJ [COL GREGORY]: Wait one second. Do we have the Arabic
4 translation of the original charge for Mr. Bahlul to see, if he would
5 like, at this point?
6 [The accused commented briefly in Arabic, but his comment was not
7 directly translated into English.]
8 TC [MAJ COWHIG]: Your Honor, if we could ask the translator to
9 translate the statement of the accused.
10 MJ [COL GREGORY]: Yeah, I need that back in English, please.
11 ACC [MR. AL BAHLUL]: For now, I’m fine with what is going on in
12 court.
13 MJ [COL GREGORY]: Okay. You can proceed; but please make sure
14 he gets it in writing as soon as possible.
15 TC [MAJ COWHIG]: Yes, sir.
16 Striking the language, “join al Qaeda, an enterprise of
17 persons who share the common criminal purpose that involved, at least
18 in part, the commission or intended commission of one or more
19 substantive offenses triable by military commission and did.”
20 By striking the language in the second to last line of the
21 first page of the charge sheet, “the common criminal purpose of the
22 al Qaeda enterprise and of.”
23 [The court reporter signaled for the trial counsel to pause.]

The trial judge accepted the prosecution’s request — and did so specifically because both he and the prosecution agreed that deleting the reference to JCE from Charge 1 (the conspiracy count) was to al-Bahlul’s advantage (emphasis mine)…

FP Says the New York Times Aided the Enemy

by Kevin Jon Heller

Here is a paragraph you don’t often see in the mainstream American media:

The conviction of Manning, in other words, would also be a conviction of Bill Keller. Most importantly, if Manning is found guilty on the charge of aiding the enemy, it would strike a deep blow at the stated reason for the New York Times‘ existence. From the beginning, it was supposed to be a force for good, standing up for the little guy in the face of immense state power and terror. A court ruling that claims to prove that the New York Times in the pursuit of that goal in fact ended up aiding al Qaeda would hand a huge rhetorical victory to the Times‘ opponents.

Actually, you still haven’t seen that paragraph. The original, written by Elias Groll for FP.com, predictably mentions Julian Assange and WikiLeaks instead of Bill Keller and the New York Times. The author’s selective memory, however, is not surprising — it’s clear that the mainstream American media has collectively decided to pretend the New York Times did not publish documents leaked by Manning just as enthusiastically as WikiLeaks.

But it did. So if WikiLeaks “aided al Qaeda” by publishing leaked Manning documents (which nothing in Manning’s court-martial indicates, but whatever), the New York Times also aided al Qaeda. And if a Manning conviction means a WikiLeaks conviction, it means a Keller conviction, as well.

Just don’t lose any sleep waiting for the mainstream American media to note that fact.

Weekend Roundup: July 20-26, 2013

by An Hertogen

This week on Opinio Juris, we teamed up with the American Journal of International Law to bring you a discussion on the two lead articles in their latest issue. Jose Alvarez, the co-editor in chief of the AJIL, explained their decision to run this online symposium, and discussed what ties both articles together, despite their differences.

First up was Leila Sadat’s article, Crimes Against Humanity in the Modern Age, summarized here. In his comment, Darryl Robinson traced the history of academic discourse on the policy element and highlighted the most recent decision in Gbagbo. Elies van Sliedregt argued in favour of the humaneness side of humanity to give the concept of crimes against humanity a modern meaning. Leila’s response is here.

Eyal Benvenisti then introduced his article, Sovereigns as Trustees of Humanity, in which he tests the limits of the traditional concept of state sovereignty in light of the intensifying interdependence between states. Continue Reading…

NewSpace 2013 Panel on Legal Issues Concerning the Commercialization of Space

by Chris Borgen

The Space Frontier Foundation’s NewSpace 2013 conference is currently underway in Silicon Valley. The program description explains that:

The three day event will focus on the current, near term, and future potential and challenges of the emerging commercial space industry. People from throughout the space, advocacy and technology industries to those in startups, government and media bring their ideas for opening the high frontier making this conference a hotbed of innovation and partnership.

As we have discussed here before, the commercialization of space as well as new governmental initiatives present challenges to the existing framework of space law. The NewSpace conference will have a panel on space law issues and commercialization on Saturday at 2:00 pm (Pacific Daylight Time):

Sinking the Iceberg: The Current Legal Landscape of Utilization Rights in Space (And How We Can Change It)
While property rights here on Earth have been established for millennia, the legal landscape of space outside of Earth orbit is relatively undefined. The Outer Space Treaty, widely-ratified in 1967, explicitly forbids any government from appropriating the moon or other celestial bodies, which some claim prevents anyone using resources in space from doing so without sharing it with the entire world. However, very ambitious companies have already declared their intentions to use the resources of space for private gain, and the time has come to re-examine the laws of outer space utilization and property rights from a modern perspective. In this panel, we bring together some of the experts on how we could create a practical legal regime, and develop the technologies needed, to encourage and promote the utilization of resources beyond low-Earth orbit.

The whole conference, including the space law panel, will be videostreamed on the conference homepage.

For more on international law and the commercial space industry, see the Opinio Juris / Melbourne Journal of International Law discussion of Steven Freeland’s MJIL article “Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?” (1, 2, 3) and don’t forget the American Society of International Law’s new Space Law Interest Group.

An Additional Problem with the Al-Bahlul Amicus Brief (Updated)

by Kevin Jon Heller

On page 23, the amicus brief concludes that al-Bahlul’s “convictions should be affirmed.” Presumably, that means the brief is asking for the DC Circuit to affirm al-Bahlul’s conviction for conspiracy as an inchoate offence — that was the charge on the charge sheet, and that is the charge that was upheld by the military commission in its findings. (The other convictions were for solicitation, which is also an inchoate offence, and for material support for terrorism, which the DC Circuit has held is not a war crime for purposes of the military commissions. The amicus brief does not address material support.)

Here is the problem: the DC Circuit cannot uphold a conviction for conspiracy as an inchoate offence even if it accepts the amicus brief’s argument. The brief freely concedes (p. 5) that conspiracy as an inchoate offence is not a war crime under international law. Instead, it argues that the DC Circuit should convict al-Bahlul on the basis of conspiracy as a mode of liability instead of convicting him for conspiracy as an inchoate offence. But that would mean (if the DC Circuit agreed with the amicus brief) that al-Bahlul was not guilty of conspiracy, but was guilty of the war crimes described in the overt acts — presumably, those mentioned in the conspiracy count: Murder of Protected Persons, Attacking Civilians, Attacking Civilian Objects, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, and Terrorism. That is what a mode of liability does: it holds a defendant responsible for completed crimes. The defendant is not convicted of “conspiracy” or “joint criminal enterprise.”

The amicus brief, then, is not actually asking the DC Circuit to uphold al-Bahlul’s conviction for conspiracy as an inchoate crime. A court cannot convict a defendant of a crime that does not exist. What it is really asking the DC Circuit to do is replace his flawed conviction for conspiracy as an inchoate offence with convictions for multiple — and completely unrelated, from an elemental standpoint — war crimes.

That is, to put it mildly, a deeply problematic request. The amicus brief openly admits that “[t]he charge sheet contained an error, since it failed to allege a completed war crime” (p. 5) and that “the instruction on conspiracy in the instant case was erroneous, because it permitted the members of the commission to find the defendant guilty of conspiracy based on mere agreement, without a completed crime” (p. 20). Yet the brief still argues that those errors were “harmless,” even though — if it gets its way — al-Bahlul will be convicted of at least six completed war crimes instead of conspiracy as an inchoate offence.

Harmless error indeed!

UPDATE: Steve Vladeck expands on the points made in my two posts at Lawfare.

Wherein I Break Godwin’s Law in Relation to the New Al-Bahlul Amicus Brief

by Kevin Jon Heller

A group of scholars and former military lawyers, including a number of good friends, have filed an amicus brief that argues the DC Circuit should uphold al-Bahlul’s conviction by redescribing his conviction for conspiracy as an inchoate crime, which does not exist under international criminal law, as a conviction for completed war crimes via conspiracy as a “mode of liability,” which does exist under international criminal law. In their view, the fact that al-Bahlul was charged only with conspiracy as an inchoate offence is irrelevant, because (p. 13) “the defendant had adequate notice that he was charged with conspiracy a mode of liability for a completed war crime and was offered a fair opportunity to put on a defense.”

No, I am not unfairly describing the amicus brief. It really does argue that. And how, exactly, did al-Bahlul have “adequate notice” that he was being charged not with conspiracy as an inchoate crime, as alleged in the charge sheet, but with conspiracy as a mode of liability for a completed war crime, which was not alleged in the charge sheet? Well, because (p. 16) “[w]hile the Convening Authority in al-Bahlul’s case did not cite universally accepted war crimes such as aiding and abetting or conspiracy as a mode of liability for a war crime” — note that these are not actually war crimes; they are ways to hold individuals accountable for war crimes — “the list of overt acts attached to the charge sheet provided the defendant with adequate notice.” In other words, al-Bahlul should not have foolishly inferred that he was charged with conspiracy as an inchoate crime from the fact that the charge sheet pleaded conspiracy as an inchoate crime; what he should have done is look at the overt acts listed in support of conspiracy as an inchoate crime and figured out that, despite the charge itself, he was actually being charged with conspiracy as a mode of liability for the completed war crimes mentioned in the overt acts.

And, of course, al-Bahlul should have structured his defense accordingly. To be sure, the amicus brief acknowledges (p. 16) that “[t]he defendant offered no evidence” at trial to rebut the conspiracy charge. But that couldn’t possibly be because he believed that he was charged with conspiracy as an inchoate offence — as the charge sheet stated — and that conspiracy as an inchoate offence was not actually a war crime. No, al-Bahlul did know he was actually being charged with conspiracy as a mode of liability for the completed war crimes listed in the overt acts, because (p. 17) “the defendant readily acknowledged that he had committed the charged overt act of administering the bayat to Atta and al Jarrah.” Now, you might wonder why, if al-Bahlul knew he was actually being charged with conspiracy as a mode of liability for the completed war crimes listed in the overt acts, not conspiracy as an inchoate offence as alleged in the charge sheet, he would have admitted to committing the completed war crimes. Doesn’t his “confession” actually indicate that he believed he was charged not with the completed war crimes, but solely with conspiracy as an inchoate offence? I have no answer to that. You’ll have to ask the authors of the amicus brief.

It’s not worth going through all of the sources on which the amicus brief relies. But I do want to point out that the brief fundamentally misstates what Justice Stevens said in Hamdan vs. Rumsfeld (Hamdan I) about conspiracy…

AJIL Symposium: Sovereignty and Humanity

by José E. Alvarez

[José Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University School of Law and is the Co-Editor-in-Chief (along with Benedict Kingsbury) of the American Journal of International Law]

As the new co-editor in chief of the AJIL, I, along with my co-EIC, Benedict Kingsbury, are very grateful to Chris Borgen and Opinio Juris for hosting this on-line symposium on the Journal’s April 2013 issue.  We also thank the two authors, Eyal Benvenisti and Leila Sadat, for exposing themselves to this trial by fire.  It takes courage for scholars to expose themselves to instant and exceedingly public reactions by both the illustrious commentators solicited by Opinio Juris and readers encouraged to add instant posted comments.

The Benvenisti and Sadat pieces address core concerns of our discipline and the Journal is proud to have published these thoughtful contributions.  While strikingly different in approach and subject-matter, these articles raise provocative questions about what contemporary sovereignty means and how international law manages to serve the needs of states and the humans that live in them.  Both Benvenisti and Sadat are engaged in re-imaging the global rule of law as a tool to defend humanity rather than states as understood at the time of Hobbes or Bodin.  Benvenisti re-defines the hoary principle of self-determination, re-conceives of states’ responsibility to protect as a limiting not enabling concept, and transforms the reason-giving requirements found in administrative law into erga omnes obligations that states owe to each other.  Sadat uses her empirical findings on the work of international criminal courts to emphasize the need to go beyond the Nuremberg precedent to defend humanity from internecine atrocities that are often not dependent on organizational policies controlled by the state.  Both are working within recognizable legal positivist paradigms but both are also driven by normative aspirations to achieve progress through law, or as the centennial annual meeting of the ASIL put it, “a just world under law.”

This on-line symposium is the first (but hopefully not the last) for AJIL.  I hope that it is only one step in making the Journal more accessible and useful.  A quarterly and peer-reviewed publication like the Journal works under numerous constraints.  As our readers know, since nearly half of the Journal consists of sections devoted to coverage of international decisions, the contemporary practice of the U.S., and book reviews, we generally publish, at best, only two lead articles per issue.  Competing for those eight slots per year are the 600-800 submissions that we receive annually.  (At this mid-year mark, we are now reaching 300 submissions.)  Publishing the Journal also takes time.  Our double-blind peer review process for reviewing manuscripts requires considerable patience from those who submit articles to us and, in the usual case, considerable hard editing work even for those authors who secure an acceptance of publication.  While the over 100 year old Journal now competes with innumerable law reviews here and abroad, the gap between opportunities for print publication (particularly in a peer-reviewed journal) and the ever-rising numbers of members of Oscar Schachter’s “invisible college” has never been wider.  Today’s “college” is not an intimate society of individuals trained in a single mind set.  It is an ever expanding multitude of persons trained in diverse schools of thought and legal and non-legal disciplines, geographically disparate and often specializing in sub-fields that can no longer be defined as covering only “foreign affairs.”  While Benedict and I are attempting to make the Journal ever more reflective of the increasingly diverse “invisible college” (or should we say “invisible colleges”?) from around the world –as through our recent effort to solicit public submissions for an Agora on the Supreme Court’s Kiobel decision—inevitably, prospective AJIL authors will continue to receive more polite rejections than acceptances from us.  Web-based symposia such as this one are a great way to expand the conversation beyond the authors who make it to our print edition—to make sure that more of us have a voice in figuring out what makes a “sovereign” and what it means to serve “humanity.”

AJIL Symposium: Benvenisti response to Klabbers, McCrudden, Von Bogdandy and Schmalz

by Eyal Benvenisti

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]

I am grateful for the three incisive and insightful comments. Due to space limitations I will not be able to do justice to any of the comments in this response, but they will certainly help in my future work on this subject. I will use this brief response to clarify some parts of my argument and to situate the article in my broader research project.

To clarify my argument and hint at its potential significance I will use the pending case before the International Court of Justice concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The dispute focuses on Japan’s discretion to issue “special permits” for killing whales arguably for scientific research as provided by Article 8(1) of the International Convention for the Regulation of Whaling (1946). The said Article allows a member state to issue permits and impose conditions “as the Contracting Government thinks fit.” Japan interprets this obligation as a “good faith” obligation, arguing that neither the International Whaling Commission nor the ICJ “have power to approve or disapprove the issue of a special permit.” (Public seating, 4 July 2013, afternoon, verbatim record, p. 36 paras. 23-24). Australia argues, however, that Japan must demonstrate the scientific value of the permits because “Japan does not ‘own’ the whales it catches.” (Public seating, 10 July 2013, morning, verbatim record, p. 65 para. 23). As stated by Professor James Crawford, arguing for Australia: “In respect of resources in the international public domain, to recognize a wide margin of appreciation is, in effect, to allocate those resources to the exploiting State.” (id., para. 22). Given the global commons problem, continues Crawford, the Convention requires “a proper showing … that [research] proposals are genuinely motivated by scientific considerations and adapted appropriately to achieve scientific goals.” Moreover, Japan must “consider seriously” the views of the IWC and its subsidiary organs, otherwise the conclusion will be “that the project is not being carried out for the purposes of scientific research, but for some other purpose inconsistent with the Convention.” (id. at para. 26).

The trusteeship concept that I develop suggests that states are subject to rigorous accountability requirements not only with respect to their treatment of endangered migratory species, but also when they are using transboundary resources they share with a few other states, and even when they manage their “own” resources. For states do not fully “own” their “own” resources. Stated otherwise, following the German Basic Law concept of ownership (Article 14), “Ownership entails obligations. Its use shall also serve the public good.” As discussed in my article (at pp. 311-12), the same rationale applies with even greater force to states.

To some extent, such accountability obligations are minimal because they do not restrict the scope of sovereign discretion. If Australia is right, Japan would have to provide more data and expert analysis to prove the scientific basis for its decision to permit the killing of whales, and pay serious attention to the views of the IWC and others. But the ultimate decision would stay with Japan. Others may remain skeptical, and their suspicion may even have a stronger basis, but nothing more. This would be an “imperfect” obligation, in the sense that it would be a non-justiciable one; but an imperfect obligation is not necessarily an ineffective one, as anyone exposed to public shaming will appreciate.

The question whether the ICJ may question Japan’s explanation is a different and rather difficult one, which requires further deliberation. In my article I identified this as a question to be addressed at a later stage. Such an inquiry will have to assess the legitimate scope of review of national policymaking by external bodies such as international tribunals, in light of concerns with the impartiality of the judges, their competence to make better judgment calls than the reviewed sovereigns, and the potentially stifling impact of their interventions on domestic democratic processes. It may make sense, for example, for the reasons stated by Crawford, to authorize international tribunals to review national discretion when it applies to the use of migratory species but not to the management of domestic stocks.

This minimalist vision seems insufficient for von Bogdandy and Schmalz who want to “Push[] Benvenisti Further.” The opposite push comes from McCrudden who regards my position as “anything but ‘modest’ or ‘minimal’.” Continue Reading…

AJIL Symposium: Comment on Eyal Benvenisti, Sovereigns as Trustees of Humanity

by Christopher McCrudden

[Christopher McCrudden FBA is Professor of Human Rights and Equality Law, Queen’s University, Belfast, William W Cook Global Professor of Law, University of Michigan Law School, and Leverhulme Major Research Fellow (2011-2014). I am particularly grateful to Kathleen McCrudden who provided helpful comments on an earlier draft.]

Eyal Benvenisti asks how far, if at all, national sovereign states are under an obligation to take into account the effects of their internal decisions on those outside the boundaries of the state. We can consider his argument either at a very high level of abstraction, or test his (and our) intuitions by using a worked example of a practical problem that raises the issue he discusses. I prefer the latter approach.

An example

Over the past couple of years, there has been an intense debate in the United Kingdom over whether the UK should leave the European Convention on Human Rights; as part of this larger debate, there has also been a narrower debate over whether (and if so how) the UK should implement the decisions of the European Court of Human Rights on prisoner voting (an issue on which I have blogged earlier elsewhere).  The way in which both the broader and narrower debates are conducted have potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court on prisoner voting, or high-ranking members of the Government arguing that the UK should leave the Convention, has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states.

It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records.  It is another thing entirely where the British debate is transmitted to barely democratic European states with a debatable human rights record, and a weak commitment to constitutionalism. In the latter states, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimizing their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody.  Is the UK under an obligation to take into account the adverse effects that the British debate, and any decisions flowing from it, may have elsewhere?

There is, of course, both an empirical as well as a normative issue in play here.  For the purposes of this post, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, the UK ought to take these into account. It is at this point that Eyal Benvenisti’s article is powerfully relevant, since it addresses directly the morality (as well as the legality) of ignoring what economists call ‘externalities’ in domestic decision-making.  On what might we base an obligation (whether moral or legal) to ‘internalise’ these externalities, for example in the debate over the UK’s continuing membership of the ECHR, or whether to implement the ECtHR’s decisions?

Benvenisti’s argument

Continue Reading…

AJIL Symposium: On Medium and Message

by Jan Klabbers

[Jan Klabbers is Professor of International Organisations Law and Director of the Centre of Excellence in Global Governance Research at the University of Helsinki.]

Much of the more serious theoretical reflection in international law aims to bring apology and utopia in alignment. This may be structurally impossible, as Martti Koskenniemi suggested a quarter of a century ago, but aiming to bridge the gap between the two is nonetheless a laudable enterprise. Eyal Benvenisti’s recent contribution to the American Journal of International Law comes closer than many before him. Partly this is because, unlike many others, Benvenisti takes both apology and utopia seriously: he is realist and idealist rolled into one. For him, sovereignty is not a bad word but a respectable concept, providing the space for legitimate exercises of self-determination. At the same time, he is aware that with globalization, many sovereign states (as traditionally conceived) are no longer able fully to help and protect their citizens. Globalization erodes independence and thus undermines self-determination – hence, sovereignty needs to be reconceived in order to take non-citizens into account and, what is more, is indeed undergoing such a re-conceptualization in positive international law.

Benvenisti has written an excellent piece, in his customary lucid and thoughtful style. The paper contributes to global ethics in a fairly novel way by positing a combination of cosmopolitanism and parochialism that seems reasonable and workable; it therewith adds to other recent studies engaged in similar enterprises, albeit from different angles (think of Kok-Chor Tan’s Justice without Borders, or Toni Erskine’s Embedded Cosmopolitanism). It contributes to international law by demonstrating that international law as it currently stands can indeed be seen to offer support to such a novel re-conceptualization of sovereignty as trusteeship. I have only one major gripe with the article, and that is that it is too short. It is too short in two ways: it neither allows for the argument completely to unfold, nor does it allow for the empirical materials to be carefully discussed. These are both obviously restrictions stemming from the format of a journal article, so perhaps the thing to question is the popularity (well-nigh sanctity) of the format, or the link between medium and message: the medium dictates the message.

My first gripe relates to the space needed for normative argument. Continue Reading…

Weekday News Wrap: Thursday, July 25, 2013

by Jessica Dorsey

Eyal Benvenisti’s World Is Already Here (Even in the United States)

by Peter Spiro

Eyal Benvenisti’s excellent piece sets the stage for a substantial research agenda (hence the need for a major project to pursue its many possible applications). Benvenisti considers aspects of his trusteeship norm largely in the realm of international tribunals. There is also the possibility of direct internalization. I read the piece through the optic of US decisionmaking.

My first thought was, in effect, it’s not going to happen here. Take Benvenisti’s procedural duty to account for the interests of foreign stakeholders. That could readily map out in a cognate to the environmental impact statement, the longstanding requirement that the federal government analyze the environmental consequences of a broad range of government projects. The EIS process does not impose substantive constraints; it simply requires that environmental implications be brought to the table. By way of implementing the Benvenisti duty, the federal government could be required to undertake international impact statements for certain types of activity that are likely to have nontrivial impacts outside of the United States.

On the legislative side, one might imagine the emergence of practice under which Congress would invite foreign stakeholder testimony at legislative hearings, in something of the same way that committees will typically divvy up witness choices between the two parties. Committee reports could be required to assess the foreign impact of legislation in the the way that, for instance, Senate Standing Rules require reports to include cost estimates.

Neither kind of innovation sounds very plausible, though. The executive branch is loath to adopt extra bureaucratic requirements (which, even if only procedural, can result in significant administrative costs, direct and indirect). The locus of likely impacts would further complicate the adoption of some sort of IIS. Many executive branch activities with likely international impacts would be lodged in the Departments of State, Homeland Security, and Defense, activity that has historically been sheltered from such administrative requirements as the EIS and the Administrative Procedure Act. There is something cognitively dissonant about the concept of an International Impact Statement for, say, sanctions on Iran or the withdrawal of troops from Afghanistan.

It’s even less likely that Congress would adopt a practice under which foreign stakeholder interests became a routine part of legislative business. The costs wouldn’t be a hurdle so much as the culture is, one ostensibly resistant to foreign views. It’s part of sovereigntist dogma that the legislature represents the American people and only the American people, and that everything else is alien in an almost literal sense of the term.

So on first inspection the Benvenisti approach would not be very promisingly pressed in the US.

But scratching the surface only lightly, one can see that US decisionmaking already accounts for the interests of foreign stakeholders. Three agents — foreign corporations, foreign governments, and NGOs — do a pretty good job at making sure that foreign voices are heard in US decisionmaking.

Foreign corporations press their interests through lobbyists, an effective channel to the ears of both executive and legislative branch decisionmakers. Benvenisti recognizes the clout of foreign corporations, but only in the North/South context (at pages 303-04). That may present a possible pathology of trusteeship (multinationals dominating weak developing-country governments). But among developed states, it may be a part of the answer. Of course, even against the North/North landscape, lobbying is subject to all the ordinary pathologies of domestic governance, which Benvenisti acknowledges — lobbyists aren’t generally welcomed as the part of any answer. But their use is a way that foreign stakeholders can press their voices effectively within the imperfect confines of domestic governance.

Ditto for foreign governments, which also engage lobbyists in Washington. Foreign governments have always been a mouthpiece for foreign stakeholder interests. Historically it was through diplomatic channels only. Today, foreign governments work various channels on US policy. In addition to hiring lobbyists, they interact directly with decisionmakers at all levels. Where their interests are at stake, they try to advance them as political actors.

Finally, NGOs will take up other interests. On any issue implicating significant individual rights, it will almost always be the case that some NGO will adopt the cause — it’s a feature of the non-governmental ecosystem that empty niches get filled. Where such major NGOs as Human Rights Watch or NRDC pick up the ball, foreign stakeholders can be assured that their interests will be taken seriously in Washington.

There are issues of representativity in each context (not the least with NGOs). But that will always be the case in any context requiring agency relationships. Distortions tend to be self-correcting, as nonstate actors police state actors and each other. Some issues will have more traction with NGOs than others, but that typically reflects a judgment as to the probability of ultimate success (a problem corporations and foreign governments don’t have, since they are free to spend their money on losing causes).

There may also be questions about why these voices are being heard. When it comes to lobbyists material incentives are in play (though not directly, since foreign entities are barred from campaign contributions). With NGOs there may be votes at stakes from sympathetic domestic constituencies (a kind of proxy representation), though the kind of norms that Benvenisti articulates may also be in play, giving rise to a sense of proto-obligation among decisionmakers to consider foreign interests.

In any case, significant foreign constituencies are one way or another having their voices heard in domestic US institutions.

The Benvenisti program thus looks conservative rather than revolutionary. In Benvenisti’s apartment building of states, how could they not already be hearing each other, in the lobby and the hallways at least, if not through the walls? Of course, recognition is a major function of the development of international law, nudging holdouts and correcting anomalies, facilitating institutionalization. So the piece is a major contribution to the extent it systematizes and justifies developments that are taking hold on the ground in any event.

The ECJ’s New Appeal Judgment on Kadi

by Kristen Boon

Last week, the ECJ handed down its judgment on the Yassin Abdullah Kadi appeal, marking the end of a decade long legal battle involving the Security Council’s consolidated anti-terrorism lists, and their implementation in the EU.

The decision is available here.   As I noted in a post last fall, Kadi was delisted by the UN Ombudsperson in October of 2012, and so this judgment does not affect his status.

Instead, this appeal against the ECJ’s decision in Kadi II raises the issues of effective judicial protection and standard of judicial review.  In an earlier decision, the ECJ had already established that “Courts of the European Union … ensure review, in principle the full review, of the lawfulness of all Union acts … including review of such measures as are designed to give effect to resolutions adopted by the Security Council.” (Para. 97)  These rights include respect for the rights of the defense and the right to effective judicial protection.

What is notable about this latest decision is that:

  • The Court finds that judicial review is indispensable to ensure a fair balance between the maintenance of (i) international peace and (ii) international security (para.131), suggesting that Courts will play a role in the collective security going forward, particularly where fundamental rights are at stake.
  • Despite the improvements in the listing / delisting process represented by the creation of the UN Office of the Ombudsperson, the Court decides that UN processes do not “provide to the person whose name is listed on the Sanctions Committee Consolidated List … [with] the guarantee of effective judicial protection.” (133)
  • This decision may set a new standard for the review of Security Council acts in other fields.

Another notable aspect of the judgment is its emphasis on a high level of procedural and substantive review.  The ECJ stated that: Continue Reading…

AJIL Symposium: Pushing Benvenisti Further – International Sovereignty as a Relative Concept

by Armin von Bogdandy and Dana Schmalz

[Armin von Bogdandy is Director and Dana Schmalz is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law]

In another seminal piece, Eyal Benvenisti continues his well-balanced middle course between utopian cosmopolitan aspirations and resigned state pragmatism, this time by reconstructing contemporary sovereignty. Like many others, he considers the Westphalian model of state power to be neither an appropriate description of today’s world order nor a normatively appealing model for the future. Starting from an assessment of democratic deficits and dilemmas arising from limited space and resources, Benvenisti shows why a different conception of sovereignty is morally required. He then accomplishes a brilliant reconstruction of important court decisions and doctrinal evolutions that support his normative findings. Within this reconstruction, Benvenisti integrates a great variety of legal phenomena, ranging from a vessel’s right to innocent passage, to consultation duties in WTO-law, to the responsibility to protect.

These normative and legal reconstructions are impeccable, and we are sympathetic to the general thrust of Benvenisti’s argument. However, we suggest a more pluralist approach, mainly in two respects. For one, we would complement Benvenisti’s private law paradigm with a stronger focus on international public authority, which plays little role in his reconstruction. Depending on the subject matter and the institutions available, some issues might be resolved more effectively and inclusively through international institutions. At the same time and on a more basic level, we suggest construing the international sovereignty of a country in a more pluralist manner, taking into account its relevant constitutional law. We think that Benvenisti’s legal reconstruction can be thickened, in this way, while avoiding his problematic reliance on humanity as a source of public authority.

International sovereignty has changed from a founding concept to a functional concept: once, international sovereignty provided a point of closure where legal thinking could stop. Georg Jellinek perfectly captured this paradigm in 1882 when he stated that everything could be explained “through sovereignty and from sovereignty”. Today, as Benvenisti’s analysis shows, it is far better to conceive of international sovereignty functionally, so as to serve other principles, such as self-determination, human rights, or reasonable allocation of resources. Pushing Benvenisti’s reconstruction further, we propose that the functional concept should also be conceived as relative: The specific meaning of a state’s international sovereignty should be informed by its constitutional law and practice.

Benvenisti’s article perhaps presents the world in an overly uniform manner. To start with his fabulous image of the “small apartment in the densely packed high-rise”: Great as the picture is, it neglects huge differences between states. Sticking with the metaphor, we might say that some owners possess special voting rights in the owners’ association, have special access to the common property, and own a mansion out of town, to which they can escape when fed up with the neighbors. Others, by contrast, do not have such privileges, and still others have pooled their rights for common exercise. On a more legal note, the constitutional orders of China, Germany, or Lebanon enshrine deeply different understandings of the international order and the country’s place therein. A reconstructive proposal should take those differences into account. Accordingly,  international sovereignty could be informed by the respective constitutional openness towards common projects and willingness to recognize shared responsibility.

Yet, how can such relativization take place without endangering the autonomy of international law and the equality of states under international law? Continue Reading…

AJIL Symposium: Sovereigns as Trustees of Humanity

by Eyal Benvenisti

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]

We live in a shrinking world where interdependence between countries and communities is intensifying. This interdependence tests the limits of the traditional concept of sovereignty which crystallized at a time when distances between nations were large and cross-border externalities were rare; a time when peoples sought self-determination and self-sufficiency, justified by the perception of a perfect fit between the authors of the law and those subject to its rule. Nowadays sovereigns manage resources that are linked in many ways to resources that belong to others. They shape through daily regulatory decisions the life opportunities of foreigners in faraway countries, while the latter cannot participate meaningfully in those decisions either directly or through their governments. This reality questions the solipsistic vision of state sovereignty as the ultimate source of authority, a vision that yields outcomes that are inefficient, inequitable and undemocratic.

The misfit between the increasingly outdated and inadequate concept of sovereignty and pressing contemporary demands has led several scholars to explore more “globalist” visions, norms and institutions in lieu of state sovereignty. But one must not be too quick to endorse the demise of sovereignty and the transfer of state authority to global institutions. Sovereigns continue to be key venues for policy-making and for reviewing decisions made by global bodies. Precisely because sovereigns remain crucial global actors, their global role should be reflected in law: they must take on a “trusteeship” role that entails obligations towards all those potentially affected (negatively or positively) by their policies.

The first aim of my article is to provide a normative foundation for the claim that sovereigns should be regarded also as trustees of humanity rather than the trustees only of their own people. I present three distinct normative approaches for grounding the obligation of sovereigns to weigh other-regarding considerations: the right to self-determination whose exercise exclusively within national communities can actually undermine peoples’ ability to have their lives in their own hands; the obligation of national governments to recognize the equal moral worth of all individuals, and hence to justify why they treat non-nationals differently; and the obligation of the same governments to explain to others their exclusive use of portions of the earth, which inherently belongs to all. Each of these three interrelated grounds leads to the conclusion that sovereignty must be regarded as embedded in an encompassing global order that delineates not only states’ powers but also their obligations. These obligations essentially require sovereigns to exercise their authority in ways that take account of the interests of all individuals potentially affected by them either negatively or positively. While sovereigns may have good reasons to give priority to the interests of their citizens, they must nonetheless keep in mind the interests of those beyond their borders and, to some non-negligible degree, be accountable to them.

The article then identifies the minimal normative and procedural other-regarding obligations that arise from the trusteeship concept. My choice here is to focus on the minimal obligations is based on the pragmatic concern with the imposition of global burdens on states without safeguards that ensure appropriate space for preferential treatment of one’s own citizens and adequate mechanisms for burden-sharing among states. Obviously, the trustee sovereignty concept suggests that sovereigns have an obligation to mutually explore and develop the current system of sovereign states. But this exploration requires a separate discussion which is beyond the scope of the article.

The idea is therefore to explore the minimal obligations that apply to all branches of the sovereign state (legislatures, executives, and courts), regardless of whether other sovereigns reciprocate (although reciprocity or the lack thereof could be a relevant consideration when making the decision). These minimal obligations include the obligation to take the interests of foreigners into account when formulating and implementing policies; to provide voice in their decision-making processes to all those affected by their policies; and to accommodate foreign interests if doing so is costless to the state (or even to incur costs in cases of catastrophes). The article further suggests that these minimal obligations are already embedded in several doctrines of international law that delimit the rights of sovereigns, such as the general doctrine on abuse of rights or specific rights of passage through straits or through another state’s land.

This emphasis on minimal obligations that are primarily procedural is informed by the administrative law-based tradition, which takes decision-making processes seriously. This tradition puts faith in the power of voice of affected stakeholders and in the discipline of accountability of decision-makers. The assessment is that public participation and accountability are not only valuable intrinsically, but they also contribute to better informed, more efficient and also more egalitarian outcomes.

The invocation of “humanity” by sovereigns has too often served as mask to colonial and other types of illegitimate foreign intervention. The trusteeship concept as developed here is not susceptible to similar concerns. It is invoked not to justify intervention by one or several states in another state’s affairs (as, for example, the concept of responsibility to protect envisions), but just the opposite – it invites the foreigner to have voice in the sovereign’s decision-making processes. The minimal trusteeship obligations sets-forth a limiting set of obligations rather than an enabling one. Indeed, the main promise of the trusteeship concept lies in its limiting impact on powerful countries that shape the opportunities of individuals everywhere: global leadership generates global accountability obligations.

The article was written as a framing paper for the GlobalTrust research project that I direct at Tel Aviv University Faculty of Law. Initially funded by the Israeli Science Foundation (2010-2013), the project is now funded by a European Research Council Advanced Grant (2013-2018). The project will explore the historical and moral background of the state trusteeship concept, assess the specific obligations that states owe to foreigners stakeholders in different areas of international and constitutional law (investments and trade law, environment law, human rights law, international humanitarian law, etc.), and evaluate the possible institutional mechanisms (such as international and national courts) that could legitimize the external monitoring and review of states’ compliance with such other-regarding obligations.

Weekday News Wrap: Wednesday, July 24, 2013

by Jessica Dorsey

US Calls on Rwanda to Stop Supporting M23

by Kevin Jon Heller

Outside of Kigali, no one really doubts that the Rwandan government and military have financed, supplied, and at times even directed M23’s actions in the DRC. But it’s still nice to see the US government acknowledging that fact:

It is the first response by Washington to recent M23 clashes with Congolese government forces near Goma, the largest city in the DRC’s mineral-rich eastern region, but stayed clear of directly implicating Rwandan President Paul Kagame, a U.S. ally whose poverty-fighting programs are often heralded by donors.

“We call upon Rwanda to immediately end any support for the M23 (and) withdraw military personnel from eastern DRC,” State Department spokeswoman Jen Psaki said.

The call comes two days before U.S. Secretary of State John Kerry chairs a special session of the U.N. Security Council on Africa’s Great Lakes region.

M23 began taking parts of eastern Congo early last year, accusing the government of failing to honour a 2009 peace deal.

A U.N. report in June this year said the M23 recruited fighters in Rwanda with the aid of sympathetic Rwandan army officers, while elements of the Congolese army have cooperated with the Rwandan Hutu rebel group FDLR.

The report prompted the United States and European states to suspend military assistance to Kigali.

Psaki said the latest concerns over M23 follow credible evidence from Human Rights Watch that said the rebels were to blame for executions, rapes and forcible recruitment of men and boys while receiving support from Rwanda.

It’s a shame that the US didn’t specifically place blame on Kagame, whose close relationship with the US can be explained far more by his love of western multinationals than by his commitment to fighting poverty. But the US statement is still welcome.

AJIL Symposium: Sadat response to Robinson and van Sliedregt

by Leila Nadya Sadat

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law]

I found the comments of my colleagues very thoughtful and helpful to my own continuing engagement with the law in this area.  As Elies points out, sovereignty concerns are indeed central to the original conceptualization of crimes against humanity at Nuremberg, and remain a preoccupation of the Rome Statute that the ICC’s judges are charged with interpretation.  As she notes, this thread of the Kaul dissent is unobjectionable.  She then turns to the question of “human-ness” – the focus of the Rome Statute and indeed, all of modern international criminal law, on the protection of “humanity” as a second value embedded in Article 7 of the Rome Statute.  I agree with this, and with Darryl’s understanding of much of the chapeau element’s purpose being essentially jurisdictional in nature – a way of sorting out permissible and impermissible exercises of international jurisdiction that will keep cases that belong in national courts in those courts and cases that need to be adjudicated internationally at the ICC (or elsewhere).  Indeed, one of the most interesting developments in international criminal law has been the elaboration of a fairly clear framework for the elaboration of a set of jurisdictional principles – complementarity, gravity, the widespread or systematic nature of the harm, the victim or the harm caused some specific damage to an international interest (i.e., attacks on UN peacekeepers), the shocking nature of the harm, etc. – to sift cases properly before international criminal courts from those properly tried elsewhere.  These jurisdictional bases overlap, but they are, by and large, alternative, not cumulative or, in the Rome Statute system, are directed to admissibility rather than “jurisdiction” strictly speaking.  Certainly, by electing the formulation “state or organizational policy,” it seems that the drafters of the Rome Statute were suggesting that non-state actors, if they committed attacks upon civilians that were sufficiently widespread and systematic, could perpetrate the kinds of atrocity crimes the Rome Statute was adopted to address; which is why I believe the majority in the Kenya case had the better view.

Likewise, although I cannot comment on the Gbagbo decision as it is being appealed by the Prosecutor (assuming leave is given), I am grateful to Darryl for pointing out how the Majority exhibits the same trend I highlight in my article which is to disaggregate the statutory requirements and create new elements required to establish crimes against humanity not required by the Rome Statute.  As I note in Crimes Against Humanity in the Modern Age, one of the strangest of these is the requirement, first surfacing as a negative in obiter dictum, then apparently copied into other opinions as a new element, that the Prosecutor must identify what group – national, ethnic, religious, etc. — the civilians belong to in order to demonstrate the existence of an attack.  The introduction of this language into the Court’s case law is unfortunate.  It may be useful to describe the group to demonstrate a policy to attack all those of a certain ethnicity, but unless persecution or genocide is charged, the appurtenance (or not) of victims to a particular group is simply irrelevant to finding that attack upon civilians has been carried out.

Darryl’s comments made me wonder whether I completely support the reintroduction into the ICC Statute of the “state or organizational policy” requirement. Continue Reading…

AJIL Symposium: The Humaneness-side of Humanity – CAH’s Modern Meaning

by Elies van Sliedregt

[Elies van Sliedregt is the Dean and Professor of Criminal Law at VU University Amsterdam]

In this article Leila Sadat convincingly makes clear that CAH are central to international prosecutions. She points to the importance of CAH at the ICC with its potential to intervene in peace-time. Sadat underscores the importance of CAH as gap-filler; it provides for jurisdiction in the absence of an armed conflict and addresses discriminatory campaigns that do not qualify as genocide. The independent existence of CAH has become clearer over the years. CAH prosecutions capture key social harms and particular patterns of victimization, such as ethnic cleansing or sexual slavery. While CAH have gained importance as an independent category of crimes and according to Sadat “have emerged from the shadow of Nuremberg” (p. 336), we cannot ignore that CAH’s raison d’être is that of solving a jurisdictional problem. This goes back to the period before Nuremberg.

For centuries international law has recognized the enemy of all mankind, the hostis humani generis. Pirates, who had no allegiance to a state and who committed crimes beyond the jurisdictional control of States, were regarded as the enemy of all mankind. With the interests of ‘mankind’ affected, all nations had a right to fill a jurisdictional void and exercise (universal) jurisdiction. Similarly, the notion of ‘humanity’ justifies intervention by way of criminal law enforcement. When States fail to protect, or are engaged themselves in harm to the security and subsistence of their subjects, they forfeit their privileges as a sovereign entity; other States or an international court may step in. While both ‘mankind’ (for piracy) and ‘humanity’ (for CAH) provide a justification for intervening in domestic affairs, the underlying reasoning and interests differ. Piracy more directly harms the interests of a multitude of States; self-interest prompts the exercise of jurisdiction. CAH, on the other hand, can be confined to one country.  They affect the interests of other States in that they shock “the conscious of mankind” (UK prosecutor Shawcross in his opening statement in Nuremberg). They are so egregious that it is in the international community’s interest that they are punished. This is what Arendt meant when she referred to the Holocaust as “crimes against mankind committed on the body of the Jewish people”.

Viewing CAH through the prism of jurisdictional justification makes clear that sovereignty is a concern with CAH. For the international community to intervene, CAH must qualify as an international harm. They must shock the conscience of mankind. While this leaves pertinent questions unanswered, (is there a world community? with a common conscience?) it is clear that CAH must reach a level that distinguishes them from domestic crimes. The contextual elements of CAH, that crimes are committed as part of a widespread or systematic attack pursuant to a State or organizational policy, must ensure that this level is met.

Judge Kaul is sensitive to sovereignty concerns. In his dissenting opinion to the Article 15 Kenya Decision he opines that the policy element is a decisive, characteristic and indispensable feature of crimes against humanity; it distinguishes ordinary crimes from international crimes and should therefore be interpreted narrowly. Sadat criticizes Judge Kaul’s view for denying CAH’s modern meaning, as a residual category of crimes that protect human values, values the ICC was established to protect. ‘Organizational’ in Article 7(2)(a) should include non-State(-like) organizations.

What to think of this disagreement?  Continue Reading…

Weekday News Wrap: Tuesday, July 23, 2013

by Jessica Dorsey

AJIL Symposium: A Plea to Judges – Don’t Make the Policy Element Impossible

by Darryl Robinson

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

I am delighted to offer this comment on Leila Sadat’s excellent article on crimes against humanity in the modern age.  Her article makes several important contributions. I agree with her central normative point, which is that ICC jurisprudence has often been too restrictive and too demanding in its interpretation of the policy element.

If we trace the history of academic discourse around the policy element, we see that it has had gone through cycles of ascendance and decline.  For decades after Nuremberg, the policy element seemed fairly generally supported (see eg Keenan, Bassiouni).  In the nineties, following this tradition, it was recognized in the Tadic decision and the ICC Statute.  Around that time, however, the tide of academic opinion turned against it.  Most commentary grew quite skeptical. The nadir for the element was the ICTY’s about-face in Kunarac, which repudiated the element en passant in a highly controversial footnote. Recently, the element has enjoyed a scholarly resurgence, led by thoughtful pieces by Bill Schabas (here) and Claus Kress (here), advocating that a policy element is not only legally required but conceptually required, in order for the law of crimes against humanity to make sense.  I am in a very similar camp to these two scholars, in that I think that some form of policy element has doctrinal support and, more importantly, is conceptually essential. My only caveat was that the element was perhaps at times cast a bit too stringently.

Leila’s article is a leading and welcome example of the latest movement, which is a mildly corrective counter-movement, arguing for a modest threshold. Leila gives arguments based in customary law precedents for an inclusive concept of the type of ‘organization’ that may be behind a crimes against humanity.  In a similar direction, Gerhard Werle and Boris Burghardt give arguments based in the ordinary meaning of the term ‘organization’ (here), and Charles Jalloh has noted the possible Euro-centricism of a rigid concept of organization that does not regard tribal groups as a sufficient form of organization (here). I have also given arguments based in the theory underlying the element (here).  While I acknowledge that the narrower view, requiring a state-like entity, can also be supported by a principled theory (‘betrayal of the responsibility to protect’), I suggested that the essence of crimes against humanity may be humans acting collectively to harm humans.  The purpose of the policy element is simply to exclude the ‘normal’ crime patterns of individuals acting on their own initiatives.  This purpose is satisfied by a modest threshold, encompassing coordination by many types of organization.  I think Leila’s contrast of a ‘traditional’ and a ‘modern’ view of the dangers posed by organizations is another helpful contribution.

In this comment, I wish to expand upon Leila’s thesis, by highlighting the most recent confirmation decision in GbagboContinue Reading…

AJIL Symposium: Crimes Against Humanity in the Modern Age

by Leila Nadya Sadat

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law]

I am honored to participate in this Opinio Juris/AJIL forum discussion, and wish to thank, in advance, the editors for agreeing to host it, and Elies van Sliedregt and Darryl Robinson for agreeing to comment.

Crimes Against Humanity in the Modern Age emerged out of my leadership of the Crimes Against Humanity Initiative, a multi-year project undertaken by the Whitney R. Harris World Law Institute at Washington University School of Law, and directed by a Steering Committee of distinguished jurists, that, over the course of three years, examined the need for and assessed the feasibility of drafting a new convention for the prevention and punishment of crimes against humanity.  During our discussions it became clear that participants believed crimes against humanity (CAH) charges to be critically important to both international and domestic prosecutions of atrocity crimes, but there was little empirical data to support these intuitions.  I set out to systematically examine every case brought to the ad hoc international criminal tribunals to determine which charges were brought and which were successful in order to get a sense whether or not these could properly be labeled “crimes against humanity courts,” as some scholars have observed. In a second step, it seemed important to see how this analysis would play out at the International Criminal Court (ICC).  Tables 1-6 in the article summarize this data.

Collecting and sorting the data was difficult as indictments at the ad hoc tribunals were often amended, and appeals regularly set aside or added additional counts.  I am indebted to the Harris Institute staff members who assisted me, as well as my research assistants Sam Chaffin and Shishir Jani who pored through the information and reworked it time and time again.  The ICC presented a particular challenge as there are no “indictments” but a “document containing the charges” followed by a confirmation decision, making it sometimes difficult to assess what the charges are in a particular case.  However, based upon the information available on the websites of three of the tribunals – the International Criminal Tribunals for the former Yugoslavia and Rwanda (the ICTY and ICTR) and the Special Court for Sierra Leone (SCSL) – and the ICC, it was possible to ascertain overall prosecution and conviction rates for each of the core crimes.

Interestingly, the data suggested that war crimes counts dominated at the ICTY and SCSL, but CAH (and genocide) counts dominated at the ICTR.  Both the ICTY and the ICTR had conviction rates on CAH that were higher than the war crimes conviction rates; this was not true for the SCSL.   The pattern for cases involving armed conflicts remained relatively stable across all courts and tribunals (and situations at the ICC), and suggest about a 55-45 ratio of war crimes counts to CAH counts, except at the ICTR and for situations at the ICC in which only CAH have been charged.

At the ICTY, only two out of 161 defendants were charged solely with crimes against humanity, representing 1.2 percent of all accused.  At the ICTR, only two out of 90 defendants were charged solely with crimes against humanity, representing 2.2 percent of all accused.  This is in sharp contrast with the pattern at the ICC before which, at the time the article was written, 11 out of 30 accused were charged only with crimes against humanity in the Kenya, Libya and Côte d’Ivoire cases, representing a stunning 36.7 percent of all accused.

Turning to a more normative and qualitative assessment of the data, the article postulates that the increase in “CAH only” cases at the ICC is to be expected because the ICC is a permanent court, created prior to the onset of atrocities in many cases, that can intervene in times of peace, not only once war has begun.  This, in turn, suggests that David Scheffer’s intuition about peacetime atrocity crimes being “pre-cursors of genocide” may also be correct, although more research is required to fully explore this hypothesis.

The article painstakingly analyzes the ICC’s early jurisprudence on crimes against humanity, and concludes that there is some cause for concern.  Continue Reading…

American Journal of International Law Symposium Starts Today

by Chris Borgen

We are pleased to host the American Journal of International Law on-line symposium on the lead articles of the new issue of the AJIL, which were written by Leila Sadat (Washington University) and Eyal Benvenisti (Tel Aviv University).

Today and tomorrow there will be a discussion of Leila Sadat‘s article, Crimes Against Humanity in the Modern Age. The précis of her piece explains that:

This article analyzes the centrality of crimes against humanity prosecutions to the International Criminal Court’s fulfillment of its mandate to prevent and punish atrocities committed in strife-torn regions. Ad hoc international criminal tribunals established in several states will complete their work soon, leaving the Court as the sole functioning international criminal authority. But the Court’s jurisprudence since its 1998 founding raises serious concerns about its interpretation of, and willingness to fully utilize, the powers conferred by its jurisdictional statute.

Darryl Robinson (Queen’s University) and Elies van Sliedregt (VU University Amsterdam) will participate in the discussion of Leila’s article.

On July 24th and 25th the discussion will move to Eyal Benvenisti’s article, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders. The AJIL summary for that article states:

The concept of sovereignty crystallized in an era when distances were large, and self-sufficiency the aspiration. This view of sovereignty is no longer sustainable and yields inequitable, undemocratic consequences. This article argues that in a densely populated and deeply integrated world, sovereignty should be understood as also involving a trusteeship toward humanity at large. Sovereigns should be required to take into account other-regarding considerations when forming national policies that may have effects beyond their national jurisdictions, even absent specific treaty obligations.

Armin von Bogdandy and Dana Schmalz (Max Planck Institute for Comparative Public Law and International Law), Jan Klabbers (University of Helsinki), and Christopher McCrudden (Queen’s University Belfast) will comment on Eyal’s article.

As always, readers are welcome and encouraged to participate in the discussion via the comments section for each post.

We are very happy to be working with the editors of the American Journal of International Law on this symposium and look forward to the conversation.

Weekday News Wrap: Monday, July 22, 2013

by Jessica Dorsey

Guest Post: Jurisdictional Aspects of the Article 12(2) Rome Statute Vessel Provision: Some Thoughts on the Provision’s Dogma and Implementation in light of the Comoros Referral

by Solon Solomon and Jackson Nyamuya Maogoto

[Solon Solomon will join King’s College of London, Dickson Poon School of Law as of September 2013, and Jackson Nyamuya Maogoto is a Faculty member of the University of Manchester, School of Law.]

Much has already been written on the Comoros referral to the International Criminal Court (ICC) in light of the Mavi Marmara incident (EJIL:Talk!, Opinio Juris, Human Rights Blog and Dov Jacobs Blog). The referral while premised on a legal footing arguably has a second facet which is significant—political. It is as been noted elsewhere (EJIL:Talk!) that this was the first case where an African state referred a non-African state to the Court. The political parameter aside, the Comoros referral introduces two important doctrinal issues which pervade the discussions of this referral. These are article 12(2) of the Rome Statute regarding vessel jurisdiction and the legal discourse around the axiom that all State Parties can refer to the Court possible crimes perpetrated on the territory of a State Party. The authors’ assertion is that the two spectra have wider implications for future cases and thus their elaboration is essential in the realm of the Prosecutor’s response to the Comoros referral.

As far as jurisdiction is concerned, we add our voice to authors who have so far who have held this is asserted. (See EJIL:Talk!, Opinio Juris and Human Rights Blog-spot) In this particular piece we would like to argue that such an assertion is de lege lata and not necessarily the case de lege ferenda. The assertion of jurisdiction derives from article 12(2)’s grammatical reading. However it is imperative to bear in mind that since the Rome Statute is a negotiated treaty, it is subject to wider reflection other than the narrow confines of the black letter provision. In this regard we aver that as a treaty, the Vienna Convention on the Law of Treaties (VCLT) is at play and in this regard invite consideration that the treaty provisions as provided for in the VCLT should be read in their contextual and historical depth, including their negotiation history and the volition of the parties. As such, there are elements that accompany the Rome Statute provisions on vessel jurisdiction which while not embedded in the wording of the provision itself, still constitute part of its essence. The Rome Statute provision was drafted along the lines of article 91 of the UN Convention on the Law of the Sea (UNCLOS). The latter, echoing a strong jurisprudence and treaty tradition stipulates and favours the notion that there must be a genuine link between the flag state and the vessel. This genuine link requirement is critical. While in some instances judicial bodies may have appeared reluctant to assert it, the reason was not its denial, but judicial and academic fears that a strict diligence to the principle would eventually preclude the forging of any nationality bonds, a far worse scenario.

In the MV “Saiga” (No.2) case, the International Tribunal on Law of the Sea expressly stated that the role of the genuine link requirement is to secure more effective implementation of the duties of the flag state. UNCLOS does not envision an arrangement where states just confer nationality to ships and then are not at all engaged in their activities. Nationality is regarded as having a functional character. States try to protect social bonds of attachment against mere formal nationality imposed by the technicalities of law. This functional inquisition is evident in diverse fora. For example in the case of UN sanctions, such as those against Serbia and Iran, the relevant Security Council Resolutions considered the nationality of the vessel based on ownership or contract terms, regardless of the flag under which the ship may sail. (see UN SC Res 787 (1992) and UN SC Res 1929 (2010)). Essentially then, Article 91(1) of UNCLOS should be read in conjunction with article 94, in a way that the exercise of effective jurisdiction over the vessel constitutes one of the necessary conditions for granting nationality. It is thus too long a legal bow to draw that with embryonic jurisprudence on the subject, the ICC will have in mind previous positions and thus reflect on its article 12(2) vessel jurisdiction as not only encapsulating the straight line reading on flag jurisdiction but also the matter of a genuine link with the vessel particularly given the nature of its mandate.

In the case of Comoros, the Mavi Marmara was Comoros flagged just a week before the flotilla incident. Continue Reading…

Is Google News Editorializing?

by Kevin Jon Heller

As I was checking my news feeds on Google News, I came across this:

International Criminal Court

The snail photo is not actually part of the Washington Post article. So does that mean Google shares my concern with Libya’s endless stall tactics?

Weekend Roundup: July 13-19, 2013

by An Hertogen

This week on Opinio Juris, we continued our Emerging Voices symposium. Patricia Tarre Moser started the week with her proposal for the unilateral withholding of sovereign immunity as a countermeasure against jus cogens violations. Scott McKenzie wrote on the application of international water law principles to the simmering tension between Egypt and Ethiopia on the latter’s decision to dam the Nile. Daniel Seah wrote about implied conferrals in ASEAN. Tendayi Achiume argued in her post that efforts to combat xenophobia faced by refugees and migrants need to be more aware of the underlying socio-economic conditions. Chelsea Purvis pleaded for more engagement with African human rights law. The Emerging Voices symposium will take a one week break to make space for a symposium on the two lead articles in the latest issue of the American Journal of International Law, starting on Monday.

In a guest post, Ozan Varol argued why the Egyptian military’s ouster of President Morsi was not a democratic coup.

Kevin updated us on the latest twist in Libya’s efforts to avoid handing over Saif to the ICC. At least Crossing Lines is even more confused about the ICC’s jurisdiction, although Kevin admitted to finding this week’s episode quite interesting. Sometimes fiction can teach international lawyers something though, as Chris explored in this post on what political science fiction can bring to international law.

What isn’t science fiction though is the growing market in which hackers sell computer vulnerabilities they have discovered. Chris posted about the sometimes perverse incentives to regulate this market, particularly once governments get involved.

In other posts, Kevin accused the US of applying double standards on the prosecution of money laundering in support of terrorism, and described the Fourth Circuit’s decision in US v Sterling as the most compelling defense of WIkileaksKen wrote about the Supreme Court’s upcoming review of Bauman v. DaimlerChrysler, and the questions it raises for extraterritoriality; and Kristen posted about new scholarship on the legal implications of the Syrian conflict.

As always, Jessica provided you with weekday news wraps and we listed events and announcements.  Kevin also announced he is moving to SOAS in early 2014.

Finally, if you like our blog, we’d love for you to nominate us for the ABA’s 7th annual Blawg 100.

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

Fourth Circuit Endorses WikiLeaks

by Kevin Jon Heller

Well, not really. But that’s the unintended consequence of yesterday’s awful decision in US v. Sterling, in which the Fourth Circuit held that James Risen could not rely on journalist’s privilege to avoid testifying against James Sterling, whom the government believes leaked classified information to Risen. According the court, the government is entitled to Risen’s testimony, because he is the only “eyewitness” (a journalist receiving classified information) to the “crime” (leaking classified information to a journalist):

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.

If a journalist can be forced to testify against a whistleblower in a leak case because he “witnessed” the “crime,” there is only one solution for journalists who want to work with whistleblowers who expose government misconduct: obtain the information completely anonymously. If they do not know who provided the information, forcing them to testify will accomplish precisely nothing.

In other words, WikiLeaks. That is now the only viable model of investigative journalism, given Sterling‘s overt attack on freedom of the press.

Well done, Fourth Circuit. You’ve offered the most compelling defense of WikiLeaks to date.

Emerging Voices: Engaging with African Human Rights Law

by Chelsea Purvis

[Chelsea Purvis is the Robert L. Bernstein International Human Rights Fellow at Minority Rights Group International (MRG).  Opinions expressed here are her own and do not necessarily reflect those of MRG.]

The African region has long been perceived as a recipient, not a creator, of international human rights law.  But over the past decade, African institutions have enshrined emerging human rights norms in treaties and issued ground-breaking jurisprudence.  Africa should be recognized as a generator of innovative human rights law.  Human rights institutions outside the continent, however, have largely failed to engage with African-made human rights law.

An example of innovative African law-making is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which came into force in 2005.  The Maputo Protocol builds on existing women’s rights law: Like the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the Maputo Protocol obligates States parties to combat discrimination against women in all areas of life.  And like the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Maputo Protocol prohibits physical, sexual, and psychological violence against women.  But the Protocol goes further than these earlier treaties.  For the first time in any international instrument, it prohibits verbal and economic violence against women.

The Maputo Protocol contains notable protections for women’s reproductive rights, including an affirmative right to abortion in certain circumstances.  It also takes a conceptual leap forward in its treatment of culture and tradition.  Many sources of women’s rights law treat African cultures as uniformly negative for women. The Maputo Protocol, as Johanna Bond has argued, adopts the more nuanced approach advanced by scholars from the global South.  It recognizes the positive role culture can play in women’s lives but enshrines a woman’s right to shape her culture.  The Protocol also recognizes that certain culturally-authorized practices or beliefs are necessarily harmful to women—it prohibits, for example, female genital mutilation and exploitation in pornography.

Another ground-breaking source of African human rights law is a 2010 decision by the African Commission on Human and Peoples’ Rights.  Continue Reading…

ABA Seeking Nominations for 100 Best Legal Blogs of 2013

by Jessica Dorsey

The ABA Journal is seeking nominations for its annual list of the 100 best legal blogs. We can’t nominate Opinio Juris because you can’t nominate your own blog, but if you like our blog, find it useful or otherwise would like to spread the word, we’d be happy if you nominate us!

Readers interested in nominating a particular blog for the 7th annual Blawg 100 should use the ABA Journal’s blawg 100 amici form. More info about the Blawg 100 can also be found on that form.  The form asks anyone nominating a blog to provide a name, employer or law school, city, and e-mail address. They ask for this info to discourage the following:

• Bloggers who nominate their own blogs or nominate blogs to which they have previously contributed posts.
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The ABA Journal welcomes comments (up to 500 words) from readers who do not fall into the above categories.

Nominations must be submitted no later than 7:00 pm (ET) on Friday, August 9, 2013.

As always, we appreciate your readership and thank you for following us here at Opinio Juris.

Syria and New Scholarship in International Law

by Kristen Boon

The many tragedies that have unfolded in Syria and particularly, the failure of the international community to intervene in a prompt manner, have led to a series of new analyses on the scope and application of certain doctrines in international law.

Take for example, the argument made by Laurie Blank and Geoffry Corn, in their forthcoming Vanderbilt Journal of Transnational Law Article “Losing the Forest for the Trees: Syria, Law and the Pragmatics of Conflict Recognition” that the “elements” approach used in determining the existence of an armed conflict delayed the application of IHL in Syria by at least fifteen months, until the ICRC concluded a non-international armed conflict existed in July, 2012.

The upshot, according to the authors, was that the main goals of IHL were compromised because of an overly legalistic approach to determining the nature of the conflict.

Similarly, there was an interesting post on the IPI’s Global Observatory by Jérémie Labbé and Tilman Rodenhauser  that cross-border humanitarian assistance in rebel controlled areas should be permissible regardless of Syria’s consent, because Syria does not effectively control those areas.    Drawing on Article 3 and Additional Protocol II of the Geneva Conventions, which permits humanitarian agencies to offer their services in times of conflict, the authors argue that:

A progressive interpretation of international humanitarian law does not consider state consent as a strict legal requirement for the delivery of humanitarian relief into territories that are not under state control. Therefore, states willing to support organizations that engage in cross-border humanitarian relief into opposition-held territory in Syria could make a sound—if arguably quite progressive—legal argument in support of their position.

Information on the humanitarian response to the conflict is available here.

Stephan Talmon’s new article in the Chinese Journal of International Law broaches the important issue of recognition of opposition forces in Syria.  He writes:

State practice in the cases of Libya and Syria shows that for an opposition group to be recognized as the legitimate representative of a people constituting a State, four criteria must be fulfilled. The incumbent government of the State must have lost legitimacy and the opposition group must be representative, broad, and enjoy a reasonable prospect of permanence.

In international law, the representative of a people constituting a sovereign and independent State is, as a rule, the government of that State. A government need not be representative or democratically elected. International law accommodates despots, dictators and democrats alike. But, a government that turns against its own people, that uses heavy weapons, fighter aircraft and tanks to fire on its people, may lose its legitimacy. While international law does not yet provide any clear rules for the assessment of governmental legitimacy, the Libyan and Syrian situations show an emerging consensus that governments which use excessive force against their own population to secure their position lose their legitimacy and must or should go. 

This analysis raises the issue of control over territory in international law and invites us to think about what level of control is required, and what values are served by high or low thresholds in each instance.

Finally, there are a spate of new reports out about the situation in Syria.   Two which I have found particularly insightful are The Syrian Heartbreak by Peter Harling and Sarah Birke, and the International Crisis Group’s new report Syria’s Metastasizing Conflict.    

Have you read anything on the legal implications of the Syrian conflict you would recommend?  Please use the comments box to add to this list.

Appeals Chamber Rejects Libya’s Request to Suspend Transfer of Saif

by Kevin Jon Heller

In the wake of the Pre-Trial Chamber’s categorical rejection of Libya’s admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision:

24. Libya argues that implementation of the Impugned Decision would create an irreversible situation or one that would be very difficult to correct or would potentially defeat the purpose of the appeal. It argues that “[t]he purpose of the present appeal is to allow the Libyan domestic criminal process in respect of Mr. Gaddafi to continue to completion”. The Appeals Chamber finds, however, that the purpose of the appeal is for the Appeals Chamber to reach a decision pursuant to rule 158 (1) of the Rules of Procedure and Evidence, which provides that “[a]n Appeals Chamber which considers an appeal referred to in this section may confirm, reverse or amend the decision appealed”. The purpose is not to permit Libya to conduct its domestic criminal proceedings.

25. Second, Libya argues that transfer of Mr Gaddafi to the ICC “would undermine the domestic investigation concerning his individual culpability, as well as creating substantial impediments with regard to a wider prosecutorial strategy and Libya’s transitional justice policy as a whole”. It refers to, inter alia, the creation of an “irreversible situation” or “one that would be very difficult to correct and may be irreversible”.

26. The Appeals Chamber notes that, as far as national investigations are concerned, Libya is in a position to continue its investigations irrespective of the ongoing proceedings before the Court. The Appeals Chamber considers that it has not been provided with information as to why Mr Gaddafi’s transfer to the Court would prevent Libya from continuing with its investigations concerning him, in addition to any other investigations or prosecutions. The Appeals Chamber is not convinced by the reasons provided as to why surrender of Mr Gaddafi to the Court would produce the results alleged.

27. Having concluded that there is no reason to grant suspensive effect in this case, the Appeals Chamber recalls that Libya is currently obliged to surrender Mr Gaddafi to the Court.

The Appeals Chamber’s decision is plainly correct. The ICC would return Saif to Libya if Libya prevailed in its appeal of the Pre-Trial Chamber’s decision. But there is no chance whatsoever that Libya would transfer Saif to the ICC if Libya lost its appeal. So surrendering Saif to the Court would not create an “irreversible situation” with regard to the domestic prosecution. And as the Appeals Chamber notes, Libya would remain free to continue to build its case against Saif while he is in ICC custody.

Libya is now in something of a pickle. It has no intention of ever turning Saif over to the ICC, regardless of what the Court decides. At the same time, Libya would like to avoid openly flouting the Court’s authority, because doing so will harm its international reputation. But here’s the problem: it is far from clear whether the Appeals Chamber will be willing to consider Libya’s appeal if Libya simply ignores its decision. I wouldn’t think so. My guess — and certainly my hope — is that the Appeals Chamber would refer Libya’s misconduct to the Security Council and suspend consideration of Libya’s appeal pending Council action. And that could be a very long wait…

Emerging Voices: The Socio-Economics of Xenophobia

by Tendayi Achiume

[Tendayi Achiume is the Binder Teaching Fellow at the UCLA School of Law.]

According to the United Nations High Commissioner for Refugees (UNHCR), xenophobia is among the greatest contemporary challenges to the protection of refugees and other forced migrants globally. The May 2008 violent attacks against foreign nationals in South Africa are among the most striking contemporary manifestations of this problem. During a two-week period of violence, media reported door-to-door searches in townships and inner cities as inflamed crowds attempted to purge neighborhoods of foreign nationals they blamed for high rates of crime and job scarcity, among other things. These attacks left 62 dead, over 600 injured, and displaced more than 100,000 people—many of whose homes and property were looted in the process. Refugees were among the most severely affected. Although the scale and duration of the attacks in South Africa were remarkable, xenophobic discrimination is a serious problem in contexts as disparate as Greece, France, Ukraine, Israel, Libya and Egypt, where it threatens the lives and livelihoods of refugees and other forced migrants. In this post I briefly describe UNHCR’s response to this problem, which has focused on advocacy to punish hate crimes and to promote tolerance. While recognizing the importance of these measures, I argue that on their own they are inadequate. Engaging structural socio-economic concerns such as inequality and poverty is vital to successfully combating xenophobia, and must form a central part of UNHCR’s response.

International law does not define the term “xenophobia”. UNHCR posits that xenophobia may include “discrimination, incitement to discrimination, as well as acts of violence or incitement to violent acts on the grounds of race, colour, descent, or national or ethnic origin, including in combination with other grounds, such as religion, gender or disability.” In the last decade or so, UNHCR has undertaken a range of global policy and advocacy initiatives to combat xenophobic discrimination. The most comprehensive articulation of UNHCR’s policy points to the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) as the legal anchor at the international level for fighting xenophobic discrimination. In a forthcoming article in the Georgetown Journal of International Law’s Spring 2014 volume, I conduct a novel and in-depth analysis of UNHCR’s use of international human rights to fight xenophobic discrimination. But here I wish to highlight a pressing concern with the evolution of UNHCR’s policy in this area.

A review of UNHCR’s approach reveals two broad categories, both of which find firm support in ICERD. The first focuses on punishing perpetrators of discriminatory acts explicitly motivated by xenophobic prejudice. Examples include advocacy to promote and enforce hate crimes legislation, to monitor signs of prejudice, and to track and publicize hate crimes prosecutions. The second category of strategies focuses on the use of human rights education initiatives and public awareness campaigns to fight prejudice and promote tolerance and diversity.

Punishing perpetrators and promoting tolerance and diversity are important strategies for protecting refugees from xenophobia. But on their own, these strategies are unequal to their task. Continue Reading…

Weekday News Wrap: Thursday, July 18, 2013

by Jessica Dorsey

Political Science Fiction

by Chris Borgen

In his book Grand Strategies: Literature, Statecraft, and World Order, former diplomat and Yale professor Charles Hill argues that

The great matters of high politics, statecraft, and grand strategy are essential to the human condition and so necessarily are within the purview of great literature. Tolstoy’s War and Peace treats them directly. What has not been much recognized is that many literary works read and praised for insights on personal feelings, such as Jane Austen’s Emma, possess a dimension wholly apt for statecraft—in Emma’s case, the gathering and misanalysis of intelligence. (p.4)

Hill’s book is a treatment of the lessons in statecraft that one can glean from great literature. (However, note this criticism of Hill and his book.) If it “has not been much recognized” that those books can have lessons in statecraft, I’d like to propose that it has been even less recognized that there are some great insights to be learned from fantastic fiction. Science fiction, fantasy, speculative fiction, books described in this way are rarely described as “great literature.” And when they are, it is sometimes as if they are great despite the fact that they are fantastic. I will set that literary debate aside. Instead I want to focus squarely on what we as international lawyers and foreign policy wonks can glean from sci-fi.

Hill argues that:

1)Statecraft is protean, incessantly assuming different forms and presenting new predicaments beyond the ken of established methodologies; 2) some of the greatest classical texts—the Iliad, the Aeneid—deal with such challenges through their unboundedness, intertwining what would be later labeled as history, theology, psychology, literature, and philosophy before those modern disciplines were formalized; 3) literature, however, largely has remained unbounded, able to probe realms of statecraft which other disciplines have placed off–limits… (p.7)

This is all the more true with the realm of science fiction which probes areas that today are becoming science fact all too quickly: the expansion of the surveillance state (Hallo, Huxley! How do you do, Mr. Orwell?), cyberwarfare (Paging the U.S. Cybercommand: William Gibson would like his future back), and the use of drones (Are we waiting for Godot or for Skynet?). But science fiction is not just about technology, it can be a way to see the present from a new angle. It can be political science fiction and political science fiction at the same time.

What fiction can bring to international law has been on my mind a bit these last few weeks. The ongoing “revelations” about the massive surveillance program that modern technology enables our (and I’m sure, other) government to undertake has caused a “we are living in a sci-fi world” meme to pop-up more and more often in the main stream media. Last week, Christopher Warren blogged here about the relationship of international law to the humanities…

(Continue Reading)

Supreme Court to Review Bauman v. DaimlerChrysler

by Kenneth Anderson

About the same time (April 2013) that the US Supreme Court released its opinion in Kiobel v. Royal Dutch Petroleum, the Court also granted review of a Ninth Circuit case, Bauman v. DaimlerChrysler. Just ahead of the July 4th weekend, the Obama administration submitted what John Bellinger, in a lucid post over at Lawfare, describes as a “remarkably strong” amicus brief urging the Court to

reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler.  The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear.  The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”

The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel

held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act  (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States.  Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.

I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts.  My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different – what I’ve sometimes called the “law of the hegemon.”  That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration’s political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction.

But it also seems the Court is also generally on board with this pull-back.  As Bellinger says, many observers (me included) believe that

the Court would not have accepted the case unless it plans to reverse the Ninth Circuit.  Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.

I agree.  Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground – an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction. Continue Reading…

Emerging Voices: Implied Conferrals as Consequences of ASEAN’s International Legal Personality

by Daniel Seah

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.]

Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post.

IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty – I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy.

In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals. Continue Reading…

Weekday News Wrap: Wednesday, July 17, 2013

by Jessica Dorsey

Moving to SOAS

by Kevin Jon Heller

Yes, the twitter rumour is true: as of January 2014, I will be Professor of Criminal Law at the University of London, SOAS. (Formerly known as the School of Oriental and African Studies.) I am very excited about the move; SOAS is a superb law school with one of the most diverse and most interesting faculties in the world. It is also a law school in the midst of an exciting transition: SOAS as a whole is getting a new building in 2015, and I am one of seven new law hires, two at the professorial level, this year. The law school has justified ambitions of being every bit as good as UCL and the LSE; I hope I can play a role, however small, in helping SOAS realize those ambitions. And I look forward to being much closer geographically to the tribunals and to my many good friends and colleagues in Europe.

All that said, it is with considerable sadness that I leave Melbourne Law School. I have had the most amazing five years in Melbourne, and I will profoundly miss my colleagues and my students. I have been privileged to be part of one of the great international-law faculties in the world, and I will always sing Melbourne Law School’s praises to anyone who will listen. I also hope to remain formally affiliated in some way with the law school; what that affiliation will look like remains to be determined.

My thanks to Melbourne Law School for supporting me these past five years. And my thanks to SOAS for viewing me as part of the their next five years — and beyond.

Guest Post: Egypt’s Non-Democratic Coup d’Etat

by Ozan Varol

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.]

Since the Egyptian military ousted President Mohamed Morsi, various commentators have pondered whether the military’s actions fit within the framework I described in an article titled The Democratic Coup d’Etat, published last summer in the Harvard International Law Journal (see here, here, here, here, and here).  In this post, I will discuss whether Morsi’s ouster was a coup—the United States remains unwilling to use the magic word—and if so, whether it constitutes a “democratic coup.”  I will conclude the post by analyzing why the Turkish government stands largely alone among foreign governments in its staunch and vocal opposition to Morsi’s ouster.

Was Morsi’s ouster a coup?  The answer is yes.  Initially, there was arguably some room for legal interpretation, primarily because the academic literature is rife with competing definitions of a coup d’état. Under most definitions, however, Morsi’s ouster was a coup from the outset. For example, Samuel Huntington defines a coup as “the effort by a political coalition illegally to replace the existing governmental leaders by violence or the threat of violence.”  Likewise, Jonathan Powell and Clayton Thyne define coups as “overt attempts by the military or other elites within the state apparatus to unseat the sitting head of state using unconstitutional means.” The Egyptian military ousted a democratically elected president through the use of extra-legal and extra-constitutional means. That is surely a coup d’état under these definitions.

Under an alternative understanding, however, a coup occurs “when the military, or a section of the military, turns its coercive power against the apex of the state, establishes itself there, and the rest of the state takes its orders from the new regime.”  Charles Sampford, Coups d’Etat and Law, in Shaping Revolution 164 (E. Attwooll ed., 1991).  That is not precisely what happened in Egypt because the military established an interim government run by civilian, not military, leaders—a marked departure from the coup that deposed Hosni Mubarak in 2011 and replaced it with an interim government composed of military leaders (the Supreme Council of the Armed Forces or SCAF). Even under this alternative definition, however, Morsi’s ouster likely constitutes a coup since a constitutional declaration issued by the interim civilian President cited the military’s takeover statement as the basis of his own authority.  In other words, even though the military is not actively supervising the transition process as it did following Mubarak’s ouster, the military currently appears to be the ultimate source of governmental authority in Egypt.

Was the coup a “democratic coup”?  Continue Reading…

Emerging Voices: International Water Law – Preventing Conflict on the Nile

by Scott McKenzie

[Scott McKenzie is a lawyer in private practice.  His scholarship focuses on water policy in the context of sustainable development.]

The Nile River is currently one of the most contentious transboundary water hotspots.  As Ethiopia begins construction of the Grand Renaissance Dam (GERD), it forces Egypt and other basin states to re-examine how the Nile’s water is allocated.  This situation has the potential to result in conflict, but modern international water law can help these states settle their differences peacefully.  At the heart of water law are principles regarding the allocation and management of these resources.  These principles are designed to promote cooperation, prevent conflict, and provide needed stability.  The Nile is a timely case study to see how these principles can be applied.

The conflict over the Nile’s water pits the more developed downstream countries Egypt and Sudan against the still developing upstream countries including Ethiopia, Uganda, Kenya, Tanzania, Burundi, Rwanda, the Democratic Republic of Congo (DRC), Eritrea, and South Sudan. The downstream countries are almost completely dependent on the Nile’s water and have historically received a large portion of the Nile’s flow.  However, as the upstream countries begin to develop they need more water for their drinking water, agricultural irrigation, and hydropower production.

In June, Ethiopia began diverting a portion of the Nile as part of its plans for the construction of the GERD. Egypt was alarmed by this move because the GERD is a stunning size.  When complete, it will be the largest dam in Africa and have a generating capacity of 6,000 megawatts (the equivalent of 6 nuclear power plants).  Egypt is concerned that such a dam could reduce the amount of water it receives from the Nile, and because it is a signal that in the future the upstream countries will wield greater power over the Nile.

Neither Egypt or Ethiopia has gone to war over the Nile’s water, but both sides are engaging in a tremendous amount of saber-rattling.  For example, at a recent forum of Egyptian politicians, it was suggested that the country could sabotage dam construction though a covert military campaign.  Ethiopia has long been concerned about such a plot.  As former Prime Minister Meles Zenawi said he was not “worried that the Egyptians will suddenly invade Ethiopia … Nobody who has tried that has lived to tell the story.”

Governing this conflict are competing legal instruments, which also reflect the evolution of water law.  Continue Reading…

Weekday News Wrap: Tuesday, July 16, 2013

by Jessica Dorsey

How Dare Israel Put Its Interests Ahead of US Foreign Policy!

by Kevin Jon Heller

Ah, hypocrisy — thy name is the United States. First up, US anger at Israel for not supporting a lawsuit concerning allegations that the Bank of China laundered money for Hamas and Islamic Jihad:

Israeli Ambassador to the US Michael Oren was called back to Israel to take part in an emergency meeting convened this weekend by Prime Minister Benjamin Netanyahu so that Oren could pass on  messages sent by the US administration and Congress in the wake of tensions between the two countries.

The tensions and lightening visit stem from the US’s outrage at Israel’s decision to back out of their commitment to a terror prosecution involving the allegedly laundering monies for Hamas so that Netanyahu and his family could embark on their State visit to the country last May.

This weekend Nahum Barnea and Shimon Shiffer from Yedioth Ahronoth broke the story and revealed that the Chinese government threatened to cancel Netanyahu’s visit if Israel refused to promise that senior Israeli defense officials would refrain from testifying against the Bank of China in a federal court trial currently underway in New York.

According to the report, China conditioned Netanyahu’s visit on the demand the officials retract their promise to testify in the trial being led by the family of terror victim.

[snip]

The story has invoked the rage of the White House, a number of US congressmen and Jewish organizations active in the US who were flabbergasted by the decision to back out of a legal battle against the funding of international terror only in an attempt to prevent harm from coming to Netanyahu’s visit.

How dare Israel be so soft on terrorism! How could they think it’s okay not to support “a legal battle against the funding of international terror”?

Oh, wait:

It is a dark day for the rule of law. Federal and state authorities have chosen not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system. They also have not charged any top HSBC banker in the case, though it boggles the mind that a bank could launder money as HSBC did without anyone in a position of authority making culpable decisions.

[snip]

There is no doubt that the wrongdoing at HSBC was serious and pervasive. Several foreign banks have been fined in recent years for flouting United States sanctions against transferring money through American subsidiaries on behalf of clients in countries like Iran, Sudan and Cuba. HSBC’s actions were even more egregious. According to several law enforcement officials with knowledge of the inquiry, prosecutors found that, for years, HSBC had also moved tainted money from Mexican drug cartels and Saudi banks with ties to terrorist groups.

Those findings echo those of a Congressional report, issued in July, which said that between 2001 and 2010, HSBC exposed the American “financial system to money laundering and terrorist financing risks.” Prosecutors and Congressional investigators were also alarmed by indications that senior HSBC officials might have been complicit in the illegal activity and that the bank did not tighten its lax controls against money laundering even after repeated urgings from federal officials.

Apparently, only the United States has the right to put its economic interests ahead of the war on terror. Other countries just have to suck it up and do the right thing.

PS. Let’s also not lose sight of the double-standard at work regarding UK/US and Chinese banks. Next time you get angry that China doesn’t meekly accept direction from the State Department — cough, Edward Snowden, cough — you might want to keep that double standard in mind.

Regulating the Global Market of Zero-Day Exploits

by Chris Borgen

Nicole Perlroth and David E. Sanger describe in the July 14 New York Times the increasingly global trade in computer vulnerabilities. The recent growth of this hacker market has been fueled by purchases by the U.S. and other governments. Can this market be effectively regulated? And if it is eventually regulated, would it be for the wrong reasons?

Let’s take a step back. Let’s say there is some hacker, call him DarthBorgen, who seeks out holes in company firewalls, e-mail systems, online payment systems, cellphone operating systems, and so on. The most interesting hole to find is a “zero-day exploit,” a vulnerability that the company does not even know about. (“There are zero days between the vulnerability being discovered and the first attack.” ) If DarthBorgen is a “black hat” hacker he may use that exploit to steal from the company himself or he may sell it to a rival company what would use it in some illegal corporate espionage.

However, he may post the exploit to one of the hacker boards and as a means to burnish his reputation as a skilled hacker. His goal would not be to steal but to show off. Once he posts, the company would also probably learn of the exploit and they would patch it. Maybe, when a company was looking for a security specialist down the line, they might contact DarthBorgen, due to his formidable skills and reputation in the hacker community, and offer him a consulting fee. DarthBorgen might even become a computer security consultant who only tests a company’s systems at their request so that they may better understand their own vulnerabilities. (Maybe he changes his tag to ObiWanBorgen.)

Hackers started to increasingly go directly to companies where they found zero-day exploits and offering to sell their information to that company. This meant that exploits began to have a market value based on what the vulnerable company would be willing to pay for the information about the exploit.

At the crux of the Perlroth and Sanger article is how the arrival of government money has transformed the exploits market.

The U.S. government was an early mover in paying increasingly larger sums for exclusive access to exploits. And, importantly, while companies paid for exploits in their own system so that they may patch the holes, the U.S. government paid for exploits so that they could hack computers in intelligence operations or law enforcement investigations. Keep in mind that Internet Explorer and iPhones (to take two examples) are used all around the world by private citizens, governments, and companies.

Other governments followed suit. Perlroth and Sanger report that:

Israel, Britain, Russia, India and Brazil are some of the biggest spenders. North Korea is in the market, as are some Middle Eastern intelligence services. Countries in the Asian Pacific, including Malaysia and Singapore, are buying, too, according to the Center for Strategic and International Studies in Washington.

At a cyberconflict conference that we had at St. Johns in April, Christopher Soghoian of the ACLU spoke about the exploits market. In an interview for Sunday’s New York Times he said:

“The [company-funded] bounties pale in comparison to what the government pays.” The military establishment, he said, “created Frankenstein by feeding the market.”

The March 20 issue of The Economist had an article on the “digital arms trade” that included minimum prices for zero-day exploits for various programs. That article listed Internet Explorer exploits fetching at least $500,000, Windows 8 about $250,000, and iPhone 5 about $200,000 per exploit. The Times article quotes some lower prices, stating that “[t]he average flaw now sells from around $35,000 to $160,000.” Regardless of which figures are more accurate, all this government money is irrigating the hacker economy. Companies have sprung-up to take reap the benefits of the money being poured into the exploits market with a business model around finding exploits and then sending them to the highest bidder (often intelligence agencies).

The Times article noted a 2007 paper on the exploits market by Charlie Miller, a former NSA employee who was offered $80,000 by the U.S. government for a bug that he had found in Linux…

[Continue Reading]

Crossing Lines S01E05 (“Special Ops — Part 1”)

by Kevin Jon Heller

This week’s Crossing Lines is a two-parter involving the kidnapping of a Russian billionaire’s son, so I’ll have more to say next week. For now, just take a gander at this exchange, wherein the French detective explains — read: defends — her team’s jurisdiction:

Billionaire: “Who are you people, again?”

French Detective: “We work out of the International Criminal Court.”

Billionaire’s Wife: “Handling kidnappings?”

French Detective (irritated): “Handling cross-border crimes.”

Billionaire’s Wife: “I don’t understand. They took him across a border?”

French Detective (irritated at concept of show): “No, Madam. There was a similar kidnapping in Florence, several months ago.”

Okay, then. Say no more!

ADDENDUM: As I’ve mentioned before, this show simply should not have been set in the ICC. It’s just a useless distraction. And an unfortunate one — tonight’s episode was actually quite interesting…

Emerging Voices: Unilateral Withholding of Sovereign Immunity as a Counter-Measure Against Jus Cogens Violations — the Human Rights Answer to Ferrini

by Patricia Tarre Moser

[Patricia Tarre Moser is an Attorney at the Inter-American Court of Human Rights. The views expressed here are her own.]

The international law doctrine of sovereign immunity has proved to be a powerful obstacle to effective enforcement of international human rights.  Domestic and international courts have begun to carve out some exceptions to sovereign immunity in individual cases, but as the ICJ made clear in the Ferrini case, sovereign immunity continues to protect states from civil proceedings — even in cases where jus cogens violations take place. But what if a state, as a counter-measure, withheld sovereign immunity from another state that engages in a jus cogens violation?  In a recent article I propose that, in certain circumstances, for example a civil case brought in a State A for torture violations in State B, State A’s courts should be permitted to withhold sovereign immunity from State B as a form of countermeasure against State B.

The objective of the countermeasure must be to persuade the wrong-doing State to cease the violation and/or make reparations. The non-recognition of state immunity as a countermeasure could contribute towards this goal. Even if the hypothetical national court’s orders cannot be enforced against the wrong-doing State due to immunity from enforcement measures, the judgment itself serves as reparation to the victims.

Using torture as an example, my proposal works as follows: after the torture victim files a claim against the State B before a Court of State A, the latter has to undertake a prima facie analysis of whether the alleged victim was subjected to torture and whether the torture was attributable to State B. If so, State A’s Court has to determine whether the non-recognition of State B’s immunity would be proportionate to the injury and to the gravity of the violation that caused the injury.  Additionally, while assessing the proportionality of the measure, the Court would need to take into account the rights of all parties involved: the victim, the State A and State B.

Continue Reading…

Federalist Society Teleconference on a Cyber Jus Ad Bellum

by Duncan Hollis

For readers interested in cyber issues, I wanted to briefly note a Federalist Society Teleconference I was invited to participate in tomorrow at 2 pm (John Yoo is the other panelist).  The session is titled, “Attacks, Exploits and Intrusions: When Is a Cyber Incident an Act of War? What Responses Are Warranted?”

Generally, Federalist Society Telefora are open only to its members.  However, in this case, they’ve kindly invited interested readers of Opinio Juris to dial in as well.  For more details on the event, see here. The call-in number is 888-752-3232.

 

Weekday News Wrap: Monday, July 15, 2013

by Jessica Dorsey

Events and Announcements: July 14, 2013

by An Hertogen

Calls for Papers

  • The Netherlands Yearbook of International Law has issued a call for papers for its 2014 edition on the topic of Between Pragmatism and Predictability: Temporariness in International Law. Abstracts, between 300-500 words in length, should be sent to nyil [at] asser [dot] nl by August 15, 2013, accompanied by a short resume. Successful applicants will be informed by late August, and must submit their papers of around 8000 words by March 31, 2014. Any queries may be directed to the managing editor of the NYIL, Monika Ambrus. More information can be found here.
  • Students for the Promotion of International Law (SPIL), Mumbai is calling for papers from the student and legal fraternity, professors, practitioners  and scholars for its 5th Government Law College International Law Summit 2014 from January 31 to February 2, 2014. The Summit will be an amalgamation of lectures, panel discussion, two novel competitions and the Call for papers Competition. The papers should be on this edition’s theme, namely International Investment Law. The authors of the selected papers will get an opportunity to present their papers at the Summit, and will be published in the SPIL International Law Review 2014. More information can be found here.
  • In an attempt to facilitate legal studies, Students for the Promotion of International Law (SPIL), Mumbai also publishes a legal magazine called the ‘International Law Annual’, its yearly publication. The International Law Annual comprises literature on the myriad aspects of International Law through an engaging confluence of short articles, analytic works on landmark cases, interviews with legal luminaries on contemporary issues, discussions and analysis on international legislation, and book reviews. Accordingly, SPIL, Mumbai calls for short articles and essays from the student and legal fraternity, professors, practitioners and scholars across the wide spectrum of Public International Law. SPIL welcomes original academic work on contemporary developments in Public International Law in keeping with the following guidelines for publication in the International Law Annual, 2014. 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.

Events

  • The ICRC and ASIL’s Lieber Society on the Law of Armed Conflict are hosting an event celebrating the 150th anniversary of the ICRC and the Lieber Code, Tuesday, July 23, 2013, 3:00 p.m. at the American Red Cross historical building, 430 17th Street NW, Washington DC. The event features John Fabian Witt, author of Lincoln’s Code, and Brigadier General Tom Ayers, Assistant Judge Advocate General, U.S. Army, talking about the progression of the law of war over the past 150 years. Jennifer Daskal will moderate the panel discussion of the progression of the law of war over the past 150 years of the ICRC’s existence. RSVP: icrcevents [at] gmail [dot] com.

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

Weekend Roundup: July 6-12, 2013

by An Hertogen

This week on Opinio Juris, we kicked off our inaugural Emerging Voices symposium with a post by Christopher Warren on the disciplinary fragmentation between law and other areas of the humanities. Fragmentation between different investment regimes prompted Maninder Malli to argue for minilateral approaches in international investment law as a middle ground between atomized BITs and unattainable multilateral initiatives. In his post, Scott Robinson proposed an “Ottawa Process” to achieve an LGBTQ Treaty. Also on human rights, Ruvi Ziegler argued that the European Court of Human Rights has misapplied the ‘margin of appreciation’-doctrine in its decision on expats’ voting eligibility. Otto Spijkers and Arron Honniball rounded up the first week of the symposium with a post on global public participation in the development of the Sustainable Development Goals.

In our regular posts, Chris wrote on the overlapping interests around Okinawan independence and Duncan posted a link to the 2012 edition of the U.S. Department of State’s Digest of U.S. practice in international law. Immunity was the topic of two posts, one by Duncan on the costs of diplomatic immunity for host states, and one by Kristen with an update on the UN’s response to the complaint by Haiti Cholera victimsKevin marvelled again at the broad jurisdiction of the ICC, at least in Crossing Lines. He was also critical about an op-ed by Ken Roth on the specific direction requirement, which he said conflated different modes of participation.

Our bloggers have also been busy outside the blog: you can read more about Ken’s views on the UN in David Bosco’s interview with him and Brett Schaefer, and about Chris’ work in a report he co-authored on Managing Intractable Conflicts: Lessons from Moldova and Cyprus.

As always, Jessica provided weekday news wraps and we had our weekly listing of events and announcements Deborah also announced an event by the ICRC and the ASIL’s Lieber Society on 150 years of War Regulation.

Many thanks to our Emerging Voices participants, and have a nice weekend!

Haiti Cholera Update: The UN Doesn’t Budge

by Kristen Boon

Following the UN’s rejection of a demand for compensation for Haiti Cholera victims earlier this spring, the Institute for Justice and Democracy in Haiti challenged the interpretation and application of Article 29 of the Agreement on Privileges and Immunities, and formally requested a meeting with UN officials to discuss Petitioners’ claims.

The Plaintiffs asked for the UN to respond within 60 days.  That period ended on July 6, and sadly but perhaps unsurprisingly, the UN has not budged.  The UN responded to claimants, reiterating that the claims would involve a review of political and policy matters.  The other communication forthcoming during this period was a July 5 letter under the signature of Ban Ki-Moon to Maxine Waters, a Member of Congress.  This letter responds to a separate letter by Congresswoman Waters about the cholera epidemic, and reiterates that the UN has determined the claims are not receivable under Section 29 of the Agreement on Privileges and Immunities.

Criticism of the UN’s response to the Cholera claims has been widespread. As I noted in an earlier post, the reliance on Article 29, which distinguishes between public and private claims, is questionable.   In a recent paper on the topic, Professor Frederic Megret notes that one of the problems of the public / private distinction is that due to the “internal, confidential and unilateral” character of the review boards’ procedure the UN has never provided a clear definition of public or private.  A guide to UN practice is available here.

The lawyers for the plaintiffs state that they will now file a case against the UN in a domestic court.   I predict this will be an uphill battle.  Although the UN could and sometimes does waive its immunity under Section 2 of the Agreement on Privileges and Immunities, its posture thus far suggests it will not do so here.  Assuming the UN asserts its privileges and immunities as an affirmative defense before a domestic court, it will probably be successful   There are some decisions in which courts are amenable to limiting the immunities of IOs where there is no available forum, employment cases such as Waite and Kennedy are an example.   If a court were to follow the “no reasonable alternative” reasoning in the Haiti case, the plaintiffs might have a shot.

A recent case against the UN in the Netherlands involving the massacre at Srebrenica illustrates the strength of the UN’s privileges and immunities. In the Mothers of Srebrenica judgement, the Hague Court of Appeals affirmed the UN’s absolute immunity, but found the Dutch state responsible under international law.  This was a compelling set of facts to safeguard IO immunities to be sure:  a peacekeeping mission, the use of force, and an alternative respondent:  the Dutch state.

The takeaway, I believe, is that domestic courts will not provide a satisfactory alternative either. One mechanism that is available – at least in theory –  to the plaintiffs is a request for an ICJ advisory opinion under Article 30 of the Agreement, if someone else takes up the cause:

SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.

Under this provision, a UN organ could make the request, although again, this seems unlikely.

Emerging Voices: “We the Peoples” – Global Public Participation in the Formulation of the Sustainable Development Goals

by Otto Spijkers and Arron Honniball

[Otto Spijkers is Assistant Professor of Public International Law at Utrecht University and Arron Honniball is a Student of the LL.M. Public International Law at Utrecht University]

As the Millennium Development Goals (MDGs) approach their target date of 2015, the international community has begun developing post-2015 goals; the Sustainable Development Goals (SDGs). A number of concurrent work streams were established, including the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (HLP). It was emphasised throughout the resulting report of the HLP and at the launch event on May 30, 2013 that various global public consultations shaped that report and will continue to shape the SDGs development process.

In this post we wish to assess whether there is a meaningful opportunity for global public participation in the formulation of the SDGs. Are citizens, individually or organized, provided with an opportunity to influence the development, implementation and/or evaluation of the SDGs?

For international lawyers and political scientists, it is especially interesting to look at this “experiment” in global public participation. Are we witnessing the start of a new process of global policy-making, with global public consultation as one of its principal steps? Such process would proceed roughly as follows: First the UN conducts a global public consultation; then a group of experts use the results of the consultation as the basis for a comprehensive report, and this report is then the basis of a UN-led negotiation process, which will ultimately lead to commitments accepted by the community of States.

Continue Reading…

150 Years of War Regulation

by Deborah Pearlstein

ICRC and ASIL’s Lieber Society on the Law of Armed Conflict are hosting what looks to be a great event celebrating the 150th anniversary of the ICRC and the Lieber Code, Tuesday, July 23, 2013, 3:00 p.m. at the American Red Cross historical building, 430 17th Street NW, Washington DC. The event features John Fabian Witt, author of the terrific IHL history Lincoln’s Code, and Brigadier General Tom Ayers, Assistant Judge Advocate General, U.S. Army, talking about the progression of the law of war over the past 150 years. Jennifer Daskal will moderate the panel discussion of the progression of the law of war over the past 150 years of the ICRC’s existence. RSVP: icrcevents [at] gmail [dot] com.

The Costs of Diplomatic Immunity

by Duncan Hollis

International lawyers are used to explaining to skeptics the functional case for diplomatic immunity by emphasizing the benefits it provides.  Here’s the 5 second version: we want our diplomats to be able to communicate with their host States since the alternative to communication is often (and certainly used to be) conflict.  To ensure open communication we need diplomats who feel free to operate without fear of being coerced, pressured, extorted, etc., So, we grant diplomatic immunity to ensure freedom of communication and do so reciprocally as a check against abuses, with the only remedies being waiver or a declaration of persona non grata.

Of course, these benefits do not come without costs.  And the British Government at least has been keeping a ledger of such costs.  In particular, the City of London would like diplomatic missions to pay London’s congestion charges.  It looks like a large number of governments, including my own, have decided not to pay.  The running tally of unpaid charges? 67 million pounds!  That’s quite a sum, but, it doesn’t even attempt to monetize the costs of the criminal offenses committed (or alleged to have been committed) by diplomats.  Here’s how the BBC summarizes that sort of bad diplomatic behavior from 2012:

[T]he Foreign Office was informed of 12 “serious offences” committed by people with diplomatic immunity in 2012.

These are defined as offences which could carry 12 months or more in prison, as well as drink-driving and driving without insurance.

He said 10 of the alleged offences were driving-related, including six for drink-driving – three by Russians.

The non-driving offences alleged were abuse of a domestic worker and causing actual bodily harm.

In the “most serious” cases the UK asks foreign governments to waive immunity to allow prosecution, or to withdraw an accused diplomat.

About 22,500 people get diplomatic immunity in the UK and Mr Hague said “the majority” abide by UK law.

To my mind, none of this outweighs the substantial benefits of diplomatic discourse I referenced above.  Still, I do think it’s important to appreciate the costs of doing diplomacy.  What do others think — should governments have to pay congestion charges (let alone parking tickets?).  More importantly, is 12 serious offenses out of a population of 22,500 a good number or a bad one?  And if you think it’s bad one, is there a way to fix the diplomatic immunity cost-benefit calculus without throwing the whole system under the bus?

2012 U.S. Digest on International Law Now Available

by Duncan Hollis

Today, the U.S. Department of State released the 2012 edition of its Digest of U.S. practice in international law (for a brief history of these Digests see the accompanying press release here).  Under the editorship of CarrieLyn D. Guymon, the Digest addresses a number of key international legal developments from 2012, including the U.S. response to the crisis in Syria and the (failed) attempt to get Senate Advice and Consent to the Disabilities Convention and UNCLOS among other treaty action.  In addition, there was plenty of activity on the litigation and arbitration front:

U.S. government involvement in litigation and arbitration also contributed to the development of international law in 2012. In U.S. courts, the United States filed amicus briefs in two Hague Abduction Convention cases; opposed petitions for certiorari in two extradition cases; participated in litigation challenging the constitutionality of statutes implementing treaty obligations; and filed statements of interest and suggestions of immunity in several cases involving foreign sovereigns and heads of state. State and federal courts issued important decisions with international law implications, including: the Nevada Supreme Court’s remand of the death penalty case of Carlos Gutierrez due to the lack of consular assistance; the Fourth Circuit’s opinion that the definition of piracy under the law of nations is the definition contained in Article 15 of UNCLOS; and U.S. Supreme Court decisions that most of Arizona’s state immigration law provisions are preempted by federal law, and that only individuals—not corporations—can be liable under the Torture Victim Protection Act. The United States also made submissions to arbitral bodies, including a voluminous submission to the Iran-U.S. Claims Tribunal in Case B/1, several submissions to NAFTA and CAFTA tribunals, and submissions in arbitral proceedings initiated by the Republic of Ecuador against the United States which resulted in dismissal of Ecuador’s claims for lack of jurisdiction.

For a fuller summary of the Digest’s contents see here.  And go here if you want to see the Digest publication in its on-line form (chapter by chapter links are also available).

Emerging Voices: An “Ottawa Process” for an LGBTQ Treaty?

by Scott Robinson

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law]

In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”.

A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition.

At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption. Continue Reading…

Weekday News Wrap: Thursday, July 11, 2013

by Jessica Dorsey

Emerging Voices: Voting Rights of Expatriates in the European Court of Human Rights

by Ruvi Ziegler

[Reuven (Ruvi) Ziegler is a lecturer in law at the University of Reading School of Law.]

The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR)  to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). [57]). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), [59]), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, [102]).

The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), [61]) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), [82]) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits.

All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states – including members of the Council of Europe – impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.

Continue Reading…

Ken Roth Conflates Aiding/Abetting with Ordering and Instigation

by Kevin Jon Heller

I am a huge fan of Human Rights Watch’s Ken Roth, but his description of the specific-direction requirement in yesterday’s New York Times is not simply misleading, it’s flat-out wrong. Here are the relevant paragraphs of his op-ed (emphasis mine):

Aiding-and-abetting liability has long been understood to require proof beyond a reasonable doubt that the accused knew that his conduct had a substantial likelihood of aiding a crime and that the aid had a substantial effect. In its waning days, however, the tribunal has seized on cursory references in earlier cases to require a third element — that the accused “specifically directed” the crime.

This makes little practical sense. Officials who want to facilitate mass atrocities are rarely so dumb as to give explicit orders. Rather, they tend to proceed by indirection, giving aid to a criminal enterprise that is already in motion.

[snip]

The danger of the Perisic precedent is not merely theoretical. It could affect a separate tribunal that is considering whether to uphold the conviction of former President Charles Taylor of Liberia, who was convicted of aiding and abetting atrocities by Sierra Leone rebels. And the ruling undermines the ability of international criminal law to deter other leaders from similar murderous assistance — so long as they refrain from specifically directing the crimes that they assist. Russia’s and Iran’s assistance to Syria comes to mind.

The Yugoslav tribunal still has an opportunity to correct this damaging new doctrine. A separate panel of tribunal judges is considering a case against other officials charged with aiding and abetting atrocities from a distance. The tribunal should affirm — as other panels have done — that the accused does not have to give specific directions to commit crimes to be held criminally liable for aiding and abetting.

These statements fundamentally conflate aiding-and-abetting with two very different modes of participation: ordering and instigating. A perpetrator is guilty of ordering a crime when he instructs another person to commit that crime either intending it to be committed or knowing that there is a substantial likelihood it will be committed. A perpetrator is guilty of instigating a crime when he prompts another person to commit that crime either intending it to be committed or knowing that there is a substantial likelihood it will be committed. (The difference between the two is the status of the perpetrator: to be guilty of ordering, a perpetrator must have either informal or formal authority over the person he instructs to commit a crime). Aiding and abetting, by contrast, requires neither instruction nor prompting by the perpetrator. It simply requires a perpetrator provide assistance to another person knowing that the person will use the assistance to commit a crime.

I have no idea why Ken claims that the Appeals Chamber’s adoption of the “specific direction” requirement in Perisic requires a perpetrator to “give specific directions” to another person in order to be guilty of aiding and abetting a crime. It does nothing of the kind. Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. That is a fundamental difference — a perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the commission of that crime.

Reasonable people can disagree about the wisdom of the specific-direction requirement. Productive debate is impossible, however, when critics of the requirement claim that Perisic fundamentally transformed the nature of aiding and abetting. It did not.

Weekday News Wrap: Wednesday, July 10, 2013

by Jessica Dorsey

Managing Intractable Conflicts: Lessons from Moldova and Cyprus

by Chris Borgen

 

TRNC1

The Open Society Foundations, the Global Political Trends Center (GPoT) of the Istanbul Kultur University in collaboration with Moldova’s Foreign Policy Association and the East East Beyond Borders  Program of the Soros Foundation-Moldova recently completed a project comparing and contrasting the separatist conflicts over Northern Cyprus and Transnistria. The project team included policy experts from Turkey, Cyprus, Greece, Moldova, and me. My focus was on the international legal issues and I contributed a chapter focusing on Moldova. (Long-time readers of this blog may have read my analyses–such as this post–concerning the Transnistrian conflict.)

In preparation of the report, we met in June 2012 in Istanbul and in Northern Cyprus with policy experts and representatives of various parties. In September 2012 we reconvened and had meetings and interviews in Chisinau (Moldova’s capital) and in Transnistria.

The final report, Managing Intractable Conflicts: Lessons from Moldova and Cyprus, was recently published by GPoT and is available as a .pdf via this link.

 

David Bosco, AKA The Multilateralist, Interviews Brett Schaefer & Ken Anderson on the UN

by Kenneth Anderson

In the tooting my own horn department, the estimable David Bosco, who authors the outstanding “The Multilateralist” blog at Foreign Policy (and who is also my American University colleague in the School of International Service), conducted an interview a few weeks ago with the Heritage Foundation’s Brett Schaefer and me on the United Nations.  The idea was to ask how American conservatives – Brett and me – view UN-US relations these days.  Brett is the editor of a fine book, ConUNdrum: The Limits of the United Nations and the Search for Alternatives; I am the author of a 2012 book, Living With the UN: American Responsibilities and International Order.  The Multilateralist piece is a transcript – outstandingly edited by David Bosco, which is to say, Anderson sounds so smart! – titled, “Can Conservatives Reconcile with the United Nations?”  (The link is at the Foreign Policy.com website; free registration to access.)

 

Crossing Lines S01E04 (“Long-Haul Predators”)

by Kevin Jon Heller

We are now up to the fourth episode of Crossing Lines, the new NBC drama that features a team of detectives who work for the ICC. This episode, which concerns long-haul truckers who force families to hunt each other for sport, features a nice jurisdictional discussion after the team realizes that a German victim had been in Poland:

Irish guy: “I’d say that crosses borders.”

French guy (with frustrated look): “Yeah, but not ongoing. Okay?”

Yes! The ICC does indeed lack jurisdiction over long-haul truckers who force families to hunt each other for sport.

Alas, the team investigates anyway. In the helicopter the ICC was kind enough to give them. (Which is clearly fantastical, because if the ICC did have a helicopter, Moreno-Ocampo would have commandeered it.)

On the bright side, this is almost certainly the first time in the history of international criminal law that the perpetrators were long-haul truckers. Shades, perhaps, of Eichmann and his trains?

Emerging Voices: Minilateral Approaches to International Investment Agreements

by Maninder Malli

[Maninder Malli recently completed a LL.M. (International Legal Studies) at New York University and he is currently working with the Legal Vice Presidency of the World Bank in Washington, D.C.]

International investment law (IIL) is highly dynamic.  The lack of a broad multilateral agreement on investment coupled with the rapid rise of foreign direct investment (FDI) has led to the profusion of bilateral investment treaties (BITs) and, increasingly, minilateral arrangements between three or more geographically-proximate or otherwise like-minded States.  The ‘spaghetti bowl’ of international investment agreements is becoming further entangled with hundreds of minilateral arrangements, including free trade agreements (FTAs) with investment provisions, economic partnership agreements and regional agreements.

In many areas of international law, including international trade, States are abandoning glacial multilateral initiatives and opting for regional or sectoral approaches to solve global problems and coordinate mutually beneficial action.  Moses Naím suggests that the failure since the 1990s of most grand multilateral negotiations represents not only a perpetual lack of international consensus, but also a “flawed obsession with multilateralism as the panacea for all the world’s ills.”  Naím argues for a smarter, more targeted approach, by bringing to the relevant table “the smallest number of countries needed to have the largest possible impact on solving a particular problem.”  Francis Fukuyama, similarly, has advocated for “multi-multilateralism,” entailing a diversity of institutions and institutional forms to provide governance across a range of security, economic, environmental, and other issues.

In the context of IIL, the profusion of regional investment arrangements (such as the recent trilateral investment agreement between China, Japan and South Korea and the Mexico–Central America FTA) and the ongoing discussions for investment regulation in a Trans-Pacific Partnership (TPP) and a Transatlantic Trade and Investment Partnership (TTIP) are clear evidence of this minilateral trend.  As proposed in the TPP and TTIP, investment regulation is incorporated into broader economic arrangements which often include trade, intellectual property and regulatory coherence.  The Energy Charter Treaty (ECT) is a sectoral example of a minilateral treaty which entails investor protection.  States are clearly converting their strong bilateral economic and political relationships into minilateral arrangements to regulate FDI.

These initiatives, at least in part, reflect a desire of State parties to circumvent broader multilateral efforts that lack consensus on the precise standards of treatment of foreign investors and thus fail to achieve substantive common ground.  The OECD’s failed Multilateral Agreement on Investment in the late 1990s and the inability to advance the multilateral investment agenda within the World Trade Organization illustrate the challenge of crafting comprehensive general principles and specific treaty provisions which are responsive to the diverse and vacillating economic, social and political conditions of a large number of States.  In the IIL context, this is most clearly manifested in the dichotomy between (i) the desire of States to attract FDI and to be perceived as active participants in the liberal economic order, on one hand, and (ii) the need to retain regulatory flexibility and avoid plethoric investor-state arbitration, on the other.  The absence of complete and adequate multilateral investment rules was historically blamed on the discord between capital-supplying and capital-receiving nations.  This dichotomy is today no longer as simple, as an increasing number of countries are both capital suppliers and capital recipients, and the correlation between the two is ever-fluctuating.

I submit that greater attention should be paid to the potential for minilateral arrangements to better reflect modern State desires and ambitions for reciprocal FDI promotion and protection.  While the content of most investment agreements is remarkably similar, there are important deviations in the wording, application and interpretation of many substantive provisions.  Continue Reading…

Weekday News Wrap: Tuesday, July 9, 2013

by Jessica Dorsey

Okinawan Independence and Overlapping Interests

by Chris Borgen

My thanks to Brad Roth for pointing me to a recent New York Times article on activists in Okinawa seeking secession from Japan. Okinawa is part of the Ryukyu island chain. The Ryukyu Kingdom was an independent or semi-independent state until annexed by Japan and renamed the Okinawa Prefecture in 1879. It was occupied by the Allies in World War II and was administered by the U.S. from 1945 until 1972, when it was returned to Japan. (For more on the history of Ryukyu/ Okinawa, see, for example, John Michael Purves’ website.)

According to another article from Asahi Shimbun, arguments for independence are based on an “anti-reversion theory,” that was argued at the time of the U.S returning the islands to Japan in the early 1970’s. “The theory stated that it is an illusion to believe Okinawans can live a peaceful life under Japanese sovereignty.”

A thread running through the Times article is that although the independence movement has been, and is still, relatively small, it is now gaining more attention, getting some modest political traction, and is being taken more seriously than it has since the end of the U.S. administration of the islands.
Why? Because the secessionist movement is becoming increasingly relevant to both the U.S. and China. Consider the implication for U.S. military bases:

“Until now, you were mocked if you spoke of independence,” said one speaker, Kobun Higa, 71, a retired journalist whose book on the history of the tiny independence movement has become a hot seller online. “But independence may be the only real way to free ourselves from the American bases.”

Mr. Higa and other advocates admit that few islanders would actually seek independence for Okinawa, the southernmost Japanese island chain, which is home to 1.4 million residents and more than half of the 50,000 American troops and sailors based in Japan. But discontent with the heavy American presence and a growing perception that the central government is ignoring Okinawans’ pleas to reduce it have made an increasing number of islanders willing to at least flirt publicly with the idea of breaking apart in a way that local politicians and scholars say they have not seen in decades.

According to Asahi Shimbun, “Okinawa Prefecture accounts for only 0.6 percent of Japan’s landmass, but it hosts 74 percent of all U.S. military bases in the country.”

As for China, various activists for Okinawan statehood say that the independence movement:

still has the potential to complicate Japan’s unfolding contest with China for influence in the region.

That struggle expanded recently to include what appears to be a semiofficial campaign in China to question Japanese rule of Okinawa. Some analysts see the campaign as a ploy to strengthen China’s hand in a dispute over a smaller group of islands that has captured international headlines in recent months. Some Chinese scholars have called for exploiting the independence movement to say there are splits even in Japan over the legitimate ownership of islands annexed during Japan’s imperial expansion in the late 19th century, as Okinawa and the smaller island group were.

China/ Japan diplomacy concerning Okinawa is a topic that Julian has previously explored.

While independence movements may become part of geopolitical chess games, they tend to be motivated by much more local concerns. The relationship of Okinawa to the political leadership in Tokyo is clearly a major driving force for the independence movement. Even the U.S. base issue may be best understood less as a geopolitical question, but an issue of budget allocations within a state. According to Asahi Shimbun, one of the independence leaders decided to start his group

after he heard about a meeting of prefectural governors in 2010. At the meeting, Okinawa Governor Hirokazu Nakaima demanded that central and local governments significantly reduce Okinawa’s burden of hosting U.S. military bases, but almost no governors supported him.

“To achieve a breakthrough on the bases issue, discussions on the option of independence are necessary,” said Matsushima.

I’m not convinced that all politics is local, but secessionist movements usually are. Moreover, they often include very personal issues of identity.

According to the New York Times, there is renewed interest in the Okinawan language and in arguments claiming a distinct Okinawan ethnic identity. This reinvigoration of linguistic, cultural, and ethnic identity can drive secessionist claims, but they are also at times spurred on by calls for independence. (For a short history on language politics in Okinawa, see this.)

What I find especially interesting is this Venn diagram of overlapping interests and intents. Some calls for independence movement may actually be motivated by domestic budgetary politics. But this then overlaps with U.S. security concerns in Asia. And the existence of a secessionist claim also overlaps with China’s interest in the Senkaku/ Diaoyu Islands (See also, this.). And, lest we forget, there is probably a group of people that honestly believes that their national identity is being frustrated by being part of Japan.

That’s a lot of political interests converging on a few small islands. It will be interesting to see whether and how much the independence movement dissipates if Tokyo grants budgetary relief to Okinawa Prefecture. Stay tuned…

Emerging Voices: A View from Early Modern Cultural Studies on Fragmentation and the Law of Nations

by Christopher Warren

[Christopher Warren is an Assistant Professor of English at Carnegie Mellon University]

Disciplinarily, as my title suggests, I come from elsewhere.  But having travelled here to the shores of international law from my home in early modern cultural studies, I come in part to praise the fragmented landscape.

“Fragmentation” in recent legal discussions usually refers to “traditional international law [being] pushed aside by a mosaic of particular rules and institutions, each following its embedded preferences.” “An everyday international occurrence such as the transport of hazardous chemicals at sea,” as Martti Koskenniemi explains, can now be “narrate[d] as part of a different set of human pursuits, values, and priorities,” including trade law, transport law, environmental law, law of the sea, or human rights.

Koskenniemi’s account of jurisdictional and normative fragmentation usefully captures two main insights, first, that narrative—story—plays a critical and maybe increasing role on what is notably called the “international stage”; and secondly, that the stories we tell and the ways that we tell them have legal, social, economic, and political consequences. Robert Cover’s foundational essay Nomos and Narrative” (pdf) powerfully articulates such insights as well.

Disciplinary Fragmentation

My first interest here, however, is not normative fragmentation but a different though related kind of fragmentation, namely disciplinary fragmentation, specifically the present disconnect between international law and humanistic disciplines like literature and history. Fortunately, disciplinary fragmentation has left rough, jagged edges, and while I’m visiting here I want to take the opportunity to celebrate the craggy coastlines where we can still find evidence of international law’s connections with the humanities.

The present distance between international law and literary and cultural studies might make my participation in this forum surprising, but it’s also, I’d suggest, a fruitful way to think historically and methodologically about international law. Continue Reading…

Emerging Voices Symposium Starting Today

by An Hertogen

It’s been a few months in the making, but today we’re kicking off our inaugural Emerging Voices symposium. Until late August, we’ll bring you a wide variety of posts, all written by graduate students, junior practitioners and junior academics.

So watch this space if you want to read more about international law’s often forgotten connections with the humanities, expat voting rights under the ECHR, the allocation of the Nile’s water between the various basin states, or the legal status of forced marriage under the ICC Statute, to name just a few of the topics that will be covered.

Weekday News Wrap: Monday, July 8, 2013

by Jessica Dorsey

Events and Announcements: July 8, 2013

by Jessica Dorsey

Calls for Papers

Events

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 29-July 5, 2013

by An Hertogen

This week on Opinio Juris, Kevin posted how there will be no golden arches in the West Bank, kept track of the latest episode of Crossing Lines, and wondered about the anonymity of an ICTY witness whose name was made public by the ICTY.

Ken turned the spotlight back to the Chevron/Ecuador dispute. A Washington Post profile on the dispute led him to inquire about third-party litigation finance. He also pointed to Julian’s WSJ op-ed, with George Conway, on Chevron’s legal offensive.

Julian has been busy, he also posted an abstract of his paper on the lack of enforcement of ICSID rewards in China.

Peter marked Independence Day with a post on paths away from citizenship used by expat Americans burdened by FATCA filings.

Jessica returned from holiday with her weekday news wraps, and we also listed events and announcements.

Finally, a technical glitch is plaguing our e-mail updates, but we hope to have it resolved soon.

Have a nice weekend!

Julian Ku and George Conway on Chevron/Ecuador in Wall Street Journal

by Kenneth Anderson

Congratulations to Julian and his co-author, George Conway, on their op ed this morning in the Wall Street Journal, “When Corporate Defendants Go On Offense.”  I commented a few days ago here at OJ on a long profile in the Washington Post on the involvement of the DC lobbying-law firm Patton Boggs on the side of the plaintiffs in the dispute.  I’ll let Julian explain the take-aways, but I think this link is free and not behind the subscriber wall.

 

Weekday News Wrap: Thursday, July 4, 2013

by Jessica Dorsey

This July 4th, Exploring Paths Away From Citizenship

by Peter Spiro

As July 4th approaches, get ready for stock-in-trade accounts of uplifting naturalization ceremonies conducted in dignified settings and presided over by distinguished persons. That’s a nice thing for those who see citizenship through a traditional lens and who should be getting better value for an $800 naturalization fee (never mind that most naturalization ceremonies occur in DMV-like conditions in local Homeland Security offices).

What’s new this Independence Day is the growing number of US citizens who are looking to shed their citizenship. Until recently there hadn’t been much incentive to lose US citizenship (the burdens being negligible) and some reason to keep it (mostly, a passport and the right of entry into the US). But that has changed as non-resident citizens are hit with burdensome new tax filing requirements under the Foreign Account Tax Compliance Act (FATCA). For a growing number of external Americans, FATCA appears to have shifted the balance away from maintaining the citizenship tie.

There is only one clear-cut path to losing your US citizenship: through express formal renunciation at a US consular facility outside the United States. More are taking that route (Facebook co-founder Eduardo Saverin is a notable example). Renunciation involves multiple interviews, an oath, and a $450 filing fee. Renunciation can also implicate a hefty tax obligation. Individuals have to pay an exit tax on unrecognized capital gains (expatriation is treated as a tax event) and any back taxes owed (external citizens have always been required to file).

A more novel escape route (rediscovered, really) is through “relinquishment”. Under section 349 of the Nationality Act, naturalization in a foreign state will result in loss of US citizenship if accompanied by an intent to relinquish. In the past, it was the Government that asserted the existence of such intent. The Supreme Court constrained the practice in a series of mid-20th century decisions, and since 1990 at least, the State Department as a matter of administrative practice has assumed that an individual never intends to relinquish citizenship except where expressly renounced.

But now that there are reasons to lose citizenship, some will argue that, yes, in fact they did intend to relinquish citizenship when they naturalized elsewhere. The DC Circuit overturned the State Department’s refusal to accept such an argument (on somewhat anomalous grounds in a case involving naturalization under Israel’s Law of Return) in its decision last year in Fox v. Clinton.

For the moment, relinquishment triggers the same exit tax as renunciation – the IRS computes tax due as of the delivery of the notice of relinquishment, not the date of the expatriating act. I wonder if there isn’t a case against that, in support of backdating. In any event, relinquishment reduces bureaucratic hassle, eliminates the oath requirement (no good feeling there!), and saves the $450 fee, so I imagine its popularity will increase.

In the meantime, my correspondent on expatriate matters, the very well informed and thoughtful Victoria Ferauge (resident in Versailles), tells me that many nonresident US citizens are getting tax compliant precisely in order to cut the citizenship cord without the IRS getting in the way.

That’s too bad. The US is the only OECD country to tax non-resident citizens. Most are getting caught in a dragnet aimed at much bigger fish and the different problem of asset offshoring. Just as other countries are looking to cement ties with non-resident citizens, the US seems to be scaring its away. The better fix for all of this would be to roll back FATCA as it applies to ordinary Americans overseas, eliminating the need to become un-American. In the meantime, we will almost surely see more fellow citizens heading to the exits.

Weekday News Wrap: Wednesday, July 3, 2013

by Jessica Dorsey

Chevron Update/Profile in Washington Post

by Kenneth Anderson

We haven’t blogged recently here about the Chevron Ecuador case, but over the weekend the Washington Post carried a long analysis and profile by Business section reporter Steven Mufson on the state of play – focused particularly on a Washington insider part of the saga, the involvement of DC lobbying-law firm powerhouse, Patton Boggs.  Patton Boggs has been an adviser to the Ecuadorian plaintiffs since 2010; it is now being sued by Chevron, the defendant, on fraud charges. Mufson’s story is about the colorful characters, including the lawyers involved – but it is also about the business of financing lawsuits:

When Patton Boggs signed onto the Ecuador case in early 2010 at the suggestion of a hedge fund looking into financing the litigation, it wrote a memorandum titled “Invictus” — borrowing the title of a 19th-century poem that culminates with the famous lines “I am the master of my fate/I am the captain of my soul.” In it, Patton Boggs outlined a strategy to pursue international Chevron assets to enforce the $18.2 billion judgment, “with the ultimate goal of effecting a swift and favorable settlement.” But this case wasn’t like other sticky problems that Patton Boggs had solved by striking deals. “Tommy thought he and Chevron’s counsel could sit down and work this out,” a prominent Washington lawyer, who spoke on the condition of anonymity to protect his business relationships, said about firm titan Thomas Boggs.

It has not worked out that way – Chevron, as OJ readers know, has dug in and will not cut some kind of deal.  (Regular readers also know, full disclosure, that I think Chevron is right on the merits, but that’s not my interest here.)  Mufson is an outstanding business reporter, and this account is utterly fascinating – Chevron, Ecuador, rainforests, oil, all that aside – for its account of the business of financing lawsuits in US courts in return for a contingency fee – a share of the outcome of any gains.  That’s the reason for the reference to the hedge fund at the beginning; some hedge funds are deeply involved in this (rapidly evolving) business model:

How Patton Boggs ended up here is a tale of how the old boy network works in the elite legal world. And it involves an unusual niche — hedge funds that invest in complex litigation in the hope of sharing a big payday. In November 2009, a New York firm seeking financing for the Ecuadoran plaintiffs contacted Burford Capital, run by Christopher Bogart, a former general counsel of Time Warner and litigator at the white shoe firm of Cravath, Swaine & Moore. Burford is the world’s biggest institutional source of litigation financing, with a $300 million fund. Burford’s partners met Donziger, the plaintiffs’ dogged U.S. lawyer who needed fresh backing. Before investing, however, Burford wanted a “highly regarded U.S. litigation counsel” involved, according to a Bogart court filing. James E. Tyrrell Jr., a partner at the Newark office of Patton Boggs and a member of the firm’s executive committee, was the obvious choice ….

By early 2010, Patton Boggs was in. And that fall, Burford invested $4 million in the case, with plans for two further tranches of $5.5 million each. In return, it would get 5.545 percent of the settlement amount. Even if the settlement fell short of the billions expected, Burford would receive a minimum of $55.5 million, a handsome return on its investment. Bogart in his affidavit cited “our substantial confidence in Jim Tyrrell” and “our special relationship with and respect for Jim and Patton Boggs.”

A little more than a year later, the relationship had gone sour – in essence, Burford believed that it had been materially misled in representations made to it in exchange for funding.  However, the letter making that accusation was addressed to the plaintiffs’ lawyer, Steven Donziger and the Ecuadorian plaintiffs, not Patton Boggs, which had originally drafted the perhaps imprudently titled “Invictus” internal memo that analyzed the business opportunity presented by the litigation.

On Sept. 29, 2011, Burford sent Donziger and the Ecuadoran lawyers a letter complaining about omissions in the Invictus memo, though it did not address the letter to Patton Boggs. “We believe that you and particularly your U.S. representatives engaged in a multi-month scheme to deceive and defraud in order to secure desperately needed funding,” the letter said, “all the while concealing material information and misrepresenting critical facts in the fear that we would have walked away had we known the true state of affairs.”

The heart of Burford’s complaint was the Cabrera expert witness report on damages allegedly caused by Chevron (i.e., then-Texaco’s) operations in Ecuador; again, regular readers will recall (and those new to this can read an excellent summary in Mufson’s article) the controversies that have swirled around Cabrera’s report, the claims of improper influence and communications, etc.:

The gravity of the doubts surrounding the Cabrera report had not found its way into the 2010 Patton Boggs Invictus memo. There, Patton Boggs had dismissed Chevron’s “bluster” and “singular fixation” on the report. It said that Chevron had declined opportunities to provide Cabrera with information of its own. “The damage is plain to see,” the memo said, adding that Chevron “cannot undermine the soundness of plaintiffs’ science.” But as new details [casting doubt on the Cabrera memo] emerged, Burford’s partners grew upset and believed Tyrrell had deceived them. In his recent affidavit, Bogart attached notes of a January 2011 telephone conversation with Tyrrell, who said that Donziger “was a fool” and that Patton Boggs was “evaluating what to do.” But Tyrrell added, according to the notes, that it was “difficult to believe that no award of significant damages” would come about. Meanwhile Burford has sold its stake to still another private investor group, recouping its $4 million investment.

I’m not doing justice to Mufson’s account of the new twists and turns in the case.  But what I find most fascinating here is the intertwining of the rapidly growing business of speculative litigation financing, through essentially sale and resale of bits of the contingency fee, with a case with extraordinary political facts combined with an extraordinary amount of money at issue.

Question to readers: Are there other places in the world that allow this kind of third party financing of lawsuits?  I think of it as a peculiarly American practice, though I’m not expert in this area and might be quite wrong.  Added:  See my post (several) above re Julian op ed on this in the WSJ; also, a couple of informative comments to this post on the apparently burgeoning business of litigation finance in several places in the world.  Some good written materials, too – see comments and thanks to commenters.

Did the ICTY Just Reveal the Identity of an Anonymous Witness? (Updated)

by Kevin Jon Heller

Someone needs to explain this to me. The ICTY’s official Twitter account just tweeted the following:

A witness normally testifies “with facial and voice distortion” in order to prevent the defendant from knowing his or her identity. So here we have the ICTY tweeting the identity of a presumably anonymous witness. What gives?

(I should add that I don’t know why Erdemović would need to testify anonymously against Mladić. He’s been a witness in a number of ICTY trials.)

UPDATE: A few readers emailed to say that Erdemović is testifying with face and voice distortion not to keep his identity secret from Mladić, but to limit public knowledge of his identity. If so, the ICTY’s actions are still baffling — the public now knows precisely who is testifying!

Weekday News Wrap: Tuesday, July 2, 2013

by Jessica Dorsey

Housekeeping: E-mail updates

by An Hertogen

We have been experiencing a technical issue that stopped our daily e-mail updates from working. Our tech support is confident that they have found the cause, so normal service should resume shortly! We apologize for the inconvenience caused, and thank you for your patience.

Crossing Lines S01E03

by Kevin Jon Heller

Every week, for as long as the show survives, I’ll be blogging about Crossing Lines, the new NBC drama that features a team of detectives who work for the ICC. Today, my expert analysis of the second episode:

It’s about art thieves.

Really. It’s about art thieves.

I’m not kidding.

(And don’t get me started about how the team threatens to let a wounded man bleed to death if he doesn’t give them valuable information. Must have missed that provision in Art. 21(3) of the Rome Statute.)

Back again next week!

Weekday News Wrap: Monday, July 1, 2013

by Jessica Dorsey