Archive for
December, 2014

JFK: Keeping the World Safe for Santa

by Kevin Jon Heller

Courtesy of Chris Moody, here is an actual letter written by John F. Kennedy in 1961 to a little girl in Michigan:


Santa Claus has always seemed a bit communist to me. More of the Vietnamese or Chinese nationalist variety, I guess.

Happy holidays, everyone!

Guest Post: Accountability Impact or Impasse? The Curious Case of the North Korean Inquiry

by Catherine Harwood

[Catherine Harwood is a PhD candidate at the Grotius Centre for International Legal Studies at Leiden University]

After over a decade of reports alerting the UN Human Rights Council (HRC) to serious human rights violations in the Democratic People’s Republic of Korea (North Korea), in March 2013 the Council decided to establish an international commission of inquiry to investigate those allegations and to ensure “full accountability, in particular where these violations may amount to crimes against humanity”. Denied access to North Korea, the Commission travelled to several countries to hear from victims and witnesses. In a strong commitment to transparency, the Commission held public hearings and made many testimonies and exhibits available online. A year later, its report recorded a litany of serious human right abuses. The Commission found reasonable grounds to believe that North Korea had committed serious human rights violations and that many senior officials had committed crimes against humanity [para. 1225]. It issued a host of recommendations, including that the Security Council refer North Korea, a non-state party to the Rome Statute, to the International Criminal Court (ICC).

Although the Commission dissolved upon the delivery of its report, its accountability recommendations reverberated beyond the HRC and have remained on the intergovernmental diplomatic agenda. This contribution discusses some interesting features of the Commission’s findings and tracks the consequences of its report – some of which have been curious and unexpected – before offering some thoughts as to the impact of the inquiry in relation to the goal of ensuring accountability.

Continue Reading…

Weekly News Wrap: Monday, December 22, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


Middle East and Northern Africa





Events and Announcements: December 21, 2014

by An Hertogen


  • For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (University of Frankfurt), Stephan Schill (Max Planck Institute Heidelberg), and Christian J. Tams (University of Glasgow) – has been a forum for the discussion of conceptual issues of international investment law. The next workshop, to be held March 13-14, 2015, will explore the role of history in the interpretation and application of international investment law. It will cover a wide range of issues, from debates about investment law’s imperial origins to the drafting history of the World Bank’s ICSID Convention. The program is available here. As in previous years, the workshop will bring together academics and practitioners and provide them with a forum for open and frank exchanges. To register, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt (S [dot] Schimpf [at] jur [dot] by February 28, 2015.

Calls for Papers

  • A call for papers has been issued for the International Criminal Justice Stream at the Socio-Legal Studies Association Annual Conference which takes place at the University of Warwick from March 31 – April 2, 2015. Submissions are invited on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would also be welcomed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Abstracts may only be submitted via the Easy Chair system, must be no longer than 300 words, include your title, name and institutional affiliation and your email address for correspondence. Successful papers will be published in a symposium; details of which will be available shortly. For an informal discussion please email the convenor, Anna Marie Brennan at Anna [dot] Marie [dot] Brennan [at] liverpool [dot] ac [dot] uk. The deadline for the submissions is Monday January 19, 2015.
  • The Graduate Institute in Geneva is convening a conference entitled ‘International Law and Time’ to take place in Geneva, Switzerland, from June 12–13, 2015, to explore the phenomena of time and change in international law. Abstracts are due by February 15, 2015. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: December 13-19, 2014

by An Hertogen

This week on Opinio Juris, our regular bloggers touched on a variety of topics again with Kevin rejecting Ashley Deeks’ evidence that the international response to ISIS supports the “unwilling or unable” test under article 51 UN Charter and Kristen expanding the UN’s list of 13 things to know about UN sanctions to 16. Prompted by Christopher Kutz’ essay, Julian asked whether the norm against torture is indeed dying in the US.

In guest posts this week, Bede Sheppard discussed new guidelines to protect schools and universities from military use during armed conflict, and Rick Lines and Damon Barrett pointed to an interesting question of international law posed by the US’ four pillar approach to international drug control.

Finally, Kevin welcomed Points of Order to the blogosphere and, as every week, you could count on Jessica to wrap up the international news headlines and list the events and announcements.

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

Guest Post: Has the US just called for unilateral interpretation of multilateral obligations?

by Rick Lines, Damon Barrett and Patrick Gallahue

[Dr Rick Lines and Damon Barrett are the Chair and Director of the International Centre on Human Rights and Drug Policy, University of Essex]

These are interesting times for drug law reform, which, as it gathers pace, is asking important questions of international law. A UN General Assembly Special Session on Drugs is set for 2016 just as national reforms are challenging international treaties that form the bedrock of a global prohibition regime that has dominated since the turn of the twentieth century. States parties to the three UN drug control conventions must now confront the legal and political dilemmas this creates. This is the situation in which the US now finds itself following cannabis reforms in various states that are at odds with these treaties. The State Department has issued its official position in this regard, one that stretches and boundaries of interpretation and raises other serious questions for international law.

In an October statement Ambassador William Brownfield set out that position in the form of the ‘four pillar’ approach the United States will now follow in matters of international drug control. While the four pillars, set out below, have prompted much discussion and debate among those working on drug policy issues, attention among international lawyers has been rare. This is something of an important gap given the implications of what the US suggests:

  1. Respect the integrity of the existing UN drug control conventions.
  2. Accept flexible interpretation of those conventions.
  3. Tolerate different national drug policies…[and] accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs.
  4. Combat and resist criminal organisations, rather than punishing individual drug users

Internationally, the four pillars have emerged in the context of efforts, led primarily by Latin American States, to open discussions on the future of the international drug control regime, and look at alternatives to the current and destructive prohibitionist paradigm.  Domestically, it comes in the context of successful referenda to legally regulate cannabis in several US states.

Both of these are welcome developments. The international drug regime is long overdue for reform, and the cannabis referenda will produce many positive criminal justice, health and social outcomes in those US states adopting them. However, domestic cannabis law reform places the United States in a compromised position within the coming debates on the future shape of the international drug control regime.

Continue Reading…

16 things to know about UN Sanctions

by Kristen Boon

The UN’s Department of Political Affairs recently published this list of “13 things to know about UN sanctions.”  If you scroll down on the link above, you’ll also see some great sanctions graphics.

United Nations Sanctions Primer

1. Since the creation of the United Nations, the Security Council has established 25 sanctions regimes. They have been used to support conflict resolution efforts, prevent the proliferation of nuclear and other weapons of mass destruction, and counter terrorism.

2. “UN sanctions have proved to be an effective complement to other Security Council instruments and actions. We know it is not perfect, but there is also no doubt that it works,” Under-Secretary-General Jeffrey Feltman told the 15-Member of the Council in the 25 November briefing.

3. There are currently 15 sanction regimes, the highest number in the history of the Organization.

4. UN sanctions are fairly economical. The total cost of supporting the 15 sanctions regimes is less than $30 million per year.

5. The first United Nations sanctions regime was established in 1966 when the Security Council imposed sanctions on Southern Rhodesia. By a vote of 11 to 0 – with four abstentions – the Council declared an international embargo on 90 per cent of Rhodesia’s exports, forbade the UN’s then 122 Member States (there are now 193) to sell oil, arms, motor vehicles or airplanes to Rhodesia.

6. The most recent sanctions were applied against Yemen this November. The UN Council ordered a freeze of all assets and a global travel ban on Saleh, the rebel group’s military commander, Abd al-Khaliq al-Huthi, and the Houthi’s second-in-command, Abdullah Yahya al Hakim.

7. In 1999, the Council established its first sanctions monitoring group on Angola.

8. There are now 11 monitoring groups, teams and panels with a total of 66 experts working in support of the Security Council and its sanctions committees.

9. Expert panels regularly cooperate with international organizations, such as INTERPOL, the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA) on issues related to travel bans, and with national authorities and the private sector on asset freezes.

10. DPA underscored in today’s briefing that UN sanctions are meant to be supportive not punitive. They are not meant to cripple states but to help them overcome instability, address massive human rights violations, curb illegal smuggling, and counter terrorism.

11. The DPA’s Security Council Affairs Division provides substantive and administrative support to the sanctions committees and expert panels; as well as engages the wider UN system in support of UN sanctions.

12. This year, among its other activities on sanctions, DPA let two missions on sanctions issues, one on the partial lifting of the arms embargo on Somalia and another on the termination of sanctions in Liberia. The aim was to strengthen these countries’ understanding of what the Council expects on sanctions issues and to enhance UN coordination on how the Organization can support implementation in these countries.

13. In 2006, the Secretary-General outlined four elements to improve the fairness and transparency of the sanctions procedures: the right to be informed; the right to be heard; the right to be reviewed by an affective review mechanism; and the need for periodic reviews, especially regarding the freezing of assets.

Let me add three things of my own:

14.   A recent UN high level review on sanctions took place between May – October 2014 (thus the reference to the 2006 document in #13 is a bit dated).  The background paper on the High Level Review website is well worth reading, as are the reports from the 3 working groups. See for example this briefing on Working Group 1, that included Security Council members.

15.   Technical assistance remains an important but controversial topic.   Australia proposed a resolution on technical assistance in November, 2014 but due to opposition by Russia, China and Argentina, the resolution was not put to a vote.   The basis of the opposition, as I understood it from statements during the Security Council session, was largely due to concern over an expansion of the Secretariat’s policy making role.   To put it differently, more technical assistance managed by the Secretariat might result in less Security Council authority.  Nonetheless, implementation gaps in sanctions remain a serious bar to sanctions effectiveness.  As sanctions become more sophisticated, so too do techniques of evasion, and for UN sanctions to be effective, there is no question that common ground will need to be identified to assist states, particularly, but not exclusively those states in whose territories individual and entities are targeted, neighboring states, and regional hegemons.

16.   There is growing support to expand the Ombudsperson’s jurisdiction to other sanctions regimes.  Currently, her office reviews delisting requests from the 1267 Al Qaida regime.   Individuals and entities listed under other regimes only have access to a focal point, who has far less powers.  If these proposals continue to gain momentum, there will be a significant improvement to the due process procedures noted above.  See an overview of developments in this debate here.

Do you have anything else to add to the list?  Please use the comments box to chime in.

Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.


Guest Post: Protecting Schools and Universities from Military Use

by Bede Sheppard

[Bede Sheppard is the deputy children’s rights director at Human Rights Watch, based in Barcelona]

At an event at the United Nations in Geneva this morning, the ambassadors of Norway and Argentina unveiled a set of six new “Guidelines” aimed at better protecting schools and universities from being used for military purposes during times of armed conflict. They are intended to respond to the practice of government forces and non-state armed groups converting schools and universities into bases or barracks, or using them as firing positions or places to cache weapons and ammunition.

This practice endangers students and teachers by turning their schools into targets for enemy attack. Students and teachers have been injured and killed in such attacks. It also exposes students to sexual violence, forced labor, and forced recruitment by the soldiers sharing their schools. Students must either stay at home and interrupt their education, or study alongside armed fighters while potentially in the line of fire.

The Guidelines urge all parties to armed conflict to refrain from using schools or universities for any purpose in support of the military effort, but state specifically that “functioning schools” should not be used, even if it is outside of normal school hours, or during the weekend or on school holidays. Schools that have been abandoned or evacuated because of the danger presented by the armed conflict should also not be used, except in circumstances in which fighting forces are presented with no viable alternative, and only as long as no choice is possible between such use of a school and another feasible method for obtaining a similar military advantage. The Guidelines reiterate the prohibition on destroying a school as a measure intended to deprive opposing parties of the ability to use them in the future, and provide guidance on how to respond if enemy forces are using a school, or if military forces are the only option for providing essential security in response to threats of an attack on a school.

Concerns about the negative consequences of where soldiers are accommodated—and resulting efforts to regulate their billeting—date back a long time. Continue Reading…

Welcome to the Blogosphere, Points of Order!

by Kevin Jon Heller

The new blog, which will focus on “multilateralism, international organizations, and world order” — no small task there! — includes Friends-of-OJ David Bosco and David Kaye, as well as my SOAS colleague Leslie Vinjamuri. Here is the complete contributor list:

  • David Bosco is an assistant professor at American University’s School of International Service and a contributing editor at Foreign Policy magazine.
  • Martin Edwards is associate professor at Seton Hall University and director of the Center for United Nations and Global Governance Studies.
  • David Kaye is clinical professor of law at the School of Law, University of California-Irvine. He was appointed special rapporteur for the promotion and protection of the right to freedom of opinion and expression by the UN Human Rights Council.
  • Cymie Payne is assistant professor at Rutgers University, focusing on international and environmental law.
  • Ted Piccone is a senior fellow with the Project on International Order and Strategy and Latin America Initiative in the Foreign Policy Program at the Brookings Institution.
  • Oliver Stuenkel is assistant professor at the Getúlio Vargas Foundation (FGV) in São Paulo, where he coordinates the São Paulo branch of the School of History and Social Science (CPDOC) and the executive program in International Relations
  • Leslie Vinjamuri is co-director of the Centre for the International Politics of Conflict, Rights and Justice and associate professor at the School of Oriental and African Studies (SOAS), University of London.  She is an Associate Fellow in the US Programme at Chatham House, the Royal Institute for International Affairs.

Recent posts address climate finance, Brasilian foreign policy, the IMF, and the ICC’s preliminary examination in Afghanistan. All of the writing is very high quality, so make sure to check Points of Order out!

Weekly News Wrap: Monday, December 15, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


Middle East and Northern Africa

  • Palestinian officials are to present a draft resolution to the UN Security Council seeking a two-year deadline for Israel to end its occupation, an official has said.
  • The UN Security Council has called for a “swift and transparent investigation” after a Palestinian minister died during a confrontation with Israeli soldiers.






Events and Announcements: December 14, 2014

by Jessica Dorsey


  • The International Humanitarian and Criminal Law Platform of the T.M.C. Asser Instituut and the Kalshoven-Gieskes Forum on International Humanitarian Law of the Grotius Centre for International Legal Studies of Leiden University cordially invite you to attend the launch of the book: ‘Nuclear Weapons Under International Law’  taking place Wednesday, 17 December in The Hague. Please find more information here.

Calls for Papers

  • The McCoubrey Centre for International Law of the University of Hull Law School is hosting on 2 & 3 July 2015 its 2nd conference for research students and early career scholars. The conference’s title is “Making International Custom More Tangible”, and the keynote speech will be given by Sir Michael Wood, the Special Rapporteur of the International Law Commission on the Formation and Evidence of Customary International Law. The principal aims of the McCoubrey Centre Conference are to promote wider debate on the issues being addressed by the ILC, to stimulate research on customary law by younger academics, and to contribute to a wider understanding of the foundations and function of customary international law in the 21st century. All panels will be chaired by leading academics, who will be invited to comment on the papers. Selected papers will appear in a volume edited by the McCoubrey Centre for International Law. Interested participants should provide an abstract of no more than 500 words by 15 February 2015. Abstracts shall be uploaded on the conference’s webpage. Speakers will be informed of acceptance of their papers by 6 March 2015.


  • The International Committee of the Red Cross (ICRC) has launched its Online Training Centre, a collection of e-learning modules on international humanitarian law and other areas of the ICRC’s work. These online training courses are available to anyone as self-paced courses, free of charge. For more information, please visit the website here.
  • As we have announced previously, the ICRC also has recently launched the online version of the casebook, How Does Law Protect in WarThis new online reference platform in IHL features:
    • Regular updates with new case studies on contemporary armed conflicts
    • An comprehensive IHL outline composed of 14 different themes
    • More than 350 case studies covering past and contemporary armed conflicts
    • More than 20 model IHL courses and pedagogical resources for IHL lecturers
    • More than 300 terms and notions referenced in the online index “A to Z”
    • Full online navigation between theory and practice through internal links and search engine

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information. 

Do Attacks on ISIS in Syria Justify the “Unwilling or Unable” Test?

by Kevin Jon Heller

Almost three years ago to the day, I critiqued an article by Ashley Deeks that argued the right of self-defence under Art. 51 of the UN Charter extends to situations in which states are “unwilling or unable” to prevent non-state actors from using their territory to launch armed attacks. As I noted in my post, Deeks herself admitted that she had “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom).”

When Deeks wrote her article, ISIS did not yet exist — and the US and other states had not started attacking ISIS in Syria. It is not surprising, therefore, that Deeks is now relying on the international response to ISIS to argue, in the words of a new post at Lawfare, that “the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine.”

There is no question that the US believes the “unwilling or unable” test is consistent with Art. 51. As Jens noted a few months ago, the US officially invoked the test with regard to ISIS and the Khorasan Group in a letter to the Security Council. Moreover, the UK seems to agree with the US: according to Deeks, the UK submitted a similar Art. 51 letter to the Security Council, stating that it supports international efforts to defend Iraq “by striking ISIL sites and military strongholds in Syria” — a position that, in her view,”implicitly adopts the ‘unwilling or unable’ test.”

Deeks does not provide a link to the UK letter, but I have little doubt she is characterizing the UK’s position accurately. I have significant issues, though, with the rest of her post, which argues that three other factors related to the international response to ISIS support the “unwilling or unable” test. Let’s go in order. Here is Deeks’ first argument:

[S]tates such as Jordan, Bahrain, Qatar, and the UAE, which also have undertaken airstrikes in Syria, presumably are relying on the same legal theory as the United States and UK.  (That said, those states have not proffered clear statements about their legal theories.)

There are two problems with this claim. To begin with, even if the four states are relying on “unwilling or unable” to justify their attacks on ISIS in Syria, they have not said so publicly — which means that their actions cannot qualify as opinio juris in support of the test. The publicity requirement is Customary Law 101.

More importantly, though, and pace Deeks, it is actually exceptionally unlikely that these states support the “unwilling or unable” test. All four are members of the Non-Aligned Movement (NAM), which has consistently rejected the test, most notably in response to Turkey’s cross-border attacks on the PKK in Iraq (see Ruys at p. 431):

We strongly condemn the repeated actions of Turkish armed forces violating the territorial integrity of Iraq under the pretext of fighting guerrilla elements hiding inside Iraqi territory. … We also reject the so-called ‘hot pursuit’ measures adopted by Turkey to justify such actions that are abhorrent to international law and to the norms of practice amongst States.

To be sure, Jordan, Bahrain, Qatar, and the UAE have not rejected the “unwilling or unable” test since 9/11 — the statement by NAM above was made in 2000. But there is little reason to believe that their understanding of Art. 51 has fundamentally changed over the past decade. On the contrary, all four are also members of the Arab League, and in 2006 the Arab League formally rejected the “unwilling or unable” test in the context of Israel’s attacks on Hezbollah in Lebanon (see Ruys at p. 453).

Here is Deeks’ second argument:

Iraq vocally has supported strikes within Syria.

This is not surprising, given that ISIS is using Syria as a base for attacks on Iraq. But does Iraq’s support for airstrikes on ISIS in Syria count as opinio juris in favour of the “unwilling or unable” test? I doubt it. After all, not only is Iraq a member of the Arab League, it consistently denounced Turkey’s attacks on PKK bases in its territory between 2007 and 2008 as inconsistent with its sovereignty (see Ruys at p. 461). Iraq’s attitude toward the “unwilling or unable” test thus seems driven exclusively by political opportunism; there is no indication that it considers the test to represent customary international law.

Here is Deeks third argument:

Syria itself has not objected to these intrusions into its territory.

This factor seriously complicates Deeks’ argument. Another word for “not objecting” is “consenting.” And if Syria is consenting to attacks on ISIS in its territory, it is problematic to simply assume — as Deeks does — that all such attacks provide evidence in favour of the “unwilling or unable” test. The US and UK may not want to rely on Syrian consent to justify their attacks. But it seems likely that Jordan, Bahrain, Qatar, and the UAE are relying on Syrian consent rather than Syrian unwillingness or inability to justify their attacks on ISIS in Syria — particularly given their traditional narrow understanding of Art. 51.

Finally, it is important to note what Deeks says immediately after claiming that “[i]In view of these developments, the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine”:

Whether other European states ultimately commit to airstrikes in Syria will be informative; to date, states such as France, Denmark, and Belgium only have provided support to strikes against ISIS within Iraq, not Syria.

This is an important admission, because it means that a member of P-5 and two other important Western states have suggested they are not comfortable with using the “unwilling or unable” test to justify attacks on ISIS in Syria.

So, to recap: the US and UK clearly support the “unwilling or unable” test; Jordan, Bahrain, Qatar, and the UAE are likely basing their willingness to attack ISIS in Syria on Syrian consent; Iraq has a completely opportunistic approach to the “unwilling or unable” test; and France, Denmark, and Belgium seem to reject the test, even if they have not done so explicitly.

And yet we are supposed to believe that the “unwilling or unable” test “is starting to seem less controversial and better settled as doctrine”?

Weekend Roundup: December 6-12, 2014

by Jessica Dorsey

Looking back at the week that was, Opinio Juris bloggers covered a number of news-related issues. Several provided commentary on the release of the US Senate’s Torture Report. Prior to its release, Kevin expressed disbelief at a post by ACLU Director Anthony Romero urging blanket amnesty for those responsible for torture, and as soon as it became available, Jens announced the report’s availability and his first thoughts here, before discussing what we really fight about when we talk about torture here.

Deborah examined the question of prosecution in response to allegations in the report, and Roger posted on the report as a truth and reconciliation commission, akin to his research on the transitional justice process post-apartheid in South Africa. Finally, Julian weighed in analyzing a recent trend that the US public does not necessarily agree with international law’s absolute ban on torture.

In other news, after the ICC dropped the case against Kenya’s Uhuru Kenyatta, Julian posed the provocative question whether this might spell the end for the ICC. Additionally, Kevin flagged the OTP’s decision to suspend the investigation into alleged crimes in Darfur, troubled by the seemingly politically laden relationship between the Court and the UN Security Council.

Julian also called attention to China’s “position paper” released ahead of its December 15th filing deadline in the situation between China and the Philippines before the UNCLOS arbitral tribunal. He also pointed to his more in-depth analysis of why the Philippines arbitration is doomed to fail (spoiler alert: it’s due to a mistake by the Philippines in employing a “lawfare strategy” forcing China before the arbitral tribunal), notwithstanding Vietnam’s support of the Philippines’ position. Finally in sea-worthy news, Julian pointed to the newest (sci-fi) development for the US Navy in the Persian Gulf: the planned deployment of laser cannons.

Rounding out the contributions from our regular bloggers, Duncan paid homage to his mentor, the late Professor Alfred P. Rubin, referring to him as the best professor he has ever had.

We posted Eric Sigmund’s guest contribution, a response to Kevin’s previous questioning of why US courts don’t understand IHL, remarking that the courts’ misunderstanding of IHL is deeper than you’d think.

Finally, I wrapped up the week’s news and listed events and announcements.

Thanks go out to our guest contributor and have a nice weekend!

OTP Suspends Darfur Investigation

by Kevin Jon Heller

This is quite big news, and I hope it doesn’t get lost in the welter of voices discussing the collapse of the Kenyatta prosecution. Here is a snippet from the Washington Post:

The prosecutor for the International Criminal Court told the U.N. Security Council on Friday she is stopping her investigations in Sudan’s chaotic Darfur region for now because no one has been brought to justice in a decade and the council has done little or nothing to help.

Darfur’s situation is deteriorating and the brutality of crimes is increasing, but there have been no discussions with the council for “concrete solutions,” Fatou Bensouda said. She demanded a new approach.

Darfur was the council’s first referral to the ICC, which is seen as a court of last resort for genocide, war crimes and crimes against humanity.


“It is becoming increasingly difficult for me to appear before you and purport to be updating you when all I am doing is repeating the same things I have said over and over again,” Bensouda told the council, which has been divided on how to press Sudan for cooperation. This was the 20th time the prosecutor has briefed the council on Darfur.

“Given this council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases,” Bensouda said.

It’s never good news when any OTP investigation falters, but it’s particularly disturbing in the context of the first Security Council referral to the ICC. Unfortunately, as many have noted (Mark Kersten, Dov Jacobs, me), the Security Council has an unfortunate tendency to treat the ICC like a political football — referring a situation to the Court when it needs to appear concerned about mass atrocity, then abandoning it when an attention-challenged international community has moved on to a different situation. Darfur is a perfect example of that troubling dynamic.

There is, however, a silver lining to the OTP’s decision to suspend the Darfur investigation: it indicates that Fatou Bensouda is getting tired of being Charlie Brown to the Security Council’s Lucy. I’m quite certain the Security Council would have preferred the Darfur investigation to continue ad infinitum: as long as the OTP is trying to investigate, the ICC will get the lion’s share of the blame for the failure to get Bashir. Now Bensouda has cleverly shifted the terrain, making it clear that the problem is the Security Council, not the ICC. Whether the Security Council will care is an open question — but at least Bensouda will take some of the heat off the ICC regarding Darfur. The last thing the Court needs now is additional bad publicity…

Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal

by Julian Ku

The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea.  It is a little unclear exactly what Vietnam has filed.  According to its Ministry of Foreign Affairs website:

In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.

According to the South China Morning Post, the Vietnamese submission has three points.

1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.

I think this filing has much more political than legal significance.  As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal.  It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.

On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China.  I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course.   The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.

The Question of Prosecution

by Deborah Pearlstein

The 525-page executive summary of the torture report released this week, and the debate that has followed thus far, is in many respects so dense it is a struggle just to decide where to begin engaging. Having spent years of my life as a human rights lawyer working on precisely these issues – preparing reports on secret detentions, and indeed detainee deaths in U.S. custody, among other things – and having spent plenty of days in shock and horror at what we learned then, I had come to feel almost inured to new revelations. Power drill to the head? We’d seen that earlier. Detainee died of hypothermia having been left mostly naked in his dungeon-like cell? Knew that too. But beyond the important new detail about our treatment of detainees the report offers, it is for me the facts the report reveals about the level of fundamental professional incompetence giving rise to this program, and the extent of the CIA’s efforts to keep information about it from other parts of our own government – including the director of the FBI and two U.S. secretaries of state – that leaves me newly in awe. Among the many telling (and I believe unrefuted) passages of incompetence (p. 11 of the Report): “Numerous CIA officers had serious documented personal and professional problems – including histories of violence and records of abusive treatment of others- that should have called into question their suitability to participate” in the interrogation and detention program. More, the private psychologists CIA hired to develop, operate and assess its interrogation program lacked any “experience as an interrogator, knowledge of Al Qaida, background in counterterrorism, or any relevant cultural or linguistic expertise.” Even as I continue to work through the text of the report, it is clear that it should be required reading for all Americans.

For now, though, I want to begin with one of the questions the report raises that I find much more difficult to assess: whether and how those responsible for the acts of torture described in the report should be held accountable. Continue Reading…

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

by Julian Ku

I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program.  In this post, I want to focus on an interesting data point coming out of this debate.  As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public.  This doesn’t mean that the CIA program was legal.   But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.

I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification.  (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”).  There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view.  This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.

For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law.  The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement.  In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture”  or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture.  Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.

However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view. points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure.  It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.

Again, I am not claiming that public opinion should determine whether the CIA program was legal.  But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture.   This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program.  And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.

Why the Philippines’ Arbitration Against China is Doomed to Fail

by Julian Ku

Over at The National Interest, I have an essay considering the strategic implications of the Philippines arbitration claim against China.  I argue that the Philippines made a mistake by trying to force China into an arbitration under the UN Convention on the Law of the Sea, and that their “lawfare” strategy is probably going to backfire.

Due in part to domestic pressures for a robust nationalism in defense of all territorial claims, China has not yet reached the point where arbitration seems like a reasonable way to settle its maritime disputes.  And since it has now spent months denouncing the Philippines arbitration as illegal and illegitimate in its domestic press and internationally, it will be even harder to accept any form of international dispute resolution in the future.

This is why the Philippines’ effort to force China to accept arbitration now is doomed to fail and will probably backfire. The Philippines will be in no stronger position vis-à-vis China than it was before the arbitration, even if it wins an award.  Meanwhile, the overall credibility and effectiveness of the UNCLOS dispute resolution system will be called into question.  And the U.S. goal of a China that “abides by and reinforces” international law and norms will be even farther off.


The Senate Torture Report as a Truth Commission

by Roger Alford

It so happens that I have been researching the South African Truth and Reconciliation Commission at the same time that the Senate has published an alarming report of abuse and torture committed by Americans in the name of national security. Without equating South African apartheid with the Bush Administration’s policies and practices, I thought that a few insights from the South African TRC are worth highlighting.

First, the Senate Report is a transition point for the United States. Following early revelations of torture, we have had a decade of obfuscation, but now we are moving in the direction of truth-telling. Whatever one thinks of it, the Senate’s actions represent a type of truth commission. Flawed and partisan, but nonetheless a truth commission. Of course, the South African TRC was not simply a truth commission, but also a commission committed to reconciliation and prosecution of key perpetrators. The next step for the United States will be to consider whether and how we approach the next stage in this sad saga, which will involve questions of reconciliation and responsibility.

Second, while the Senate Report has focused on the question of efficacy, we should first and foremost recognize that information released yesterday underscores the moral failure of those who committed unspeakable acts of torture. It will take some time, but we must come to accept that the acts committed in the name of protecting our nation have weakened it. Our standing in the world has been irretrievably diminished. A poem by Desmond Tutu, head of the South African TRC, which he read during the opening session of the TRC in 1996, bears repeating:

The world is wept.
Blood and pain seep into our listening; into our wounded souls.
The sound of your sobbing is my own weeping;
Your wet handkerchief my pillow for a past so exhausted it cannot rest–not yet.
Speak, weep, look, listen, for us all.
Oh, people of the silent hidden past,
let your stories scatter seeds into our lonely frightened winds.
Sow more, until the stillness of this land can soften, can dare to hope and smile and sing;
Until the ghosts can dance unshackled, until our lives can know your sorrows and be healed.

Third, regardless of whether there are prosecutions, at some point those responsible for the policies that led to torture will be invited to apologize. If the South African TRC is any guide, they will refuse. During the South African TRC, in the kindest way possible Desmond Tutu invited former Prime Minister P.W. Botha to apologize. Tutu said to Botha:

I speak on behalf of people who have suffered grievously as a result of policies that we carried out by governments, including the government that he headed. I want to appeal to him. I want to appeal to him to take a chance … to say that he may not himself even have intended the suffering…. He may not have given orders or authorised anything…. I am just saying that the government that he headed caused many of our people deep, deep anguish and pain and suffering…. If Mr. Botha was able to say: I am sorry that the policies of my government caused you pain. Just that. Can he bring himself to say I am sorry that the policies of my government caused you so much pain? That would be a tremendous thing and I appeal to him.

Botha heard this appeal in a court of law, and sat there unmoved and unresponsive. Later, former Prime Minister F.W. de Klerk–the one responsible for freeing Nelson Mandela and setting South Africa on a path toward democracy–was also asked to apologize. He admitted that there were “bad apples” and that security forces committed acts of murder, torture, rape, and assault. But he denied that his administration ever directly or indirectly authorised such actions. Tutu said of de Klerk:

To say I did not know… I find that hard to understand. I have … got to say that I sat there and I was close to tears. I feel sorry for him. I am devastated. [For him] to make an impassioned apology … and then to negate it. All that is required is to say that ‘we believed in this policy but it is a policy that brought about all of this suffering. It is a policy that killed people. Not by accident, deliberately. It was planned.’

His failure to apologize permanently altered Tutu’s estimation of de Klerk.

He would have gone down in history as a truly great South African statesman… What a great man he would have been…. He is a very bright lawyer who qualifies his answers carefully to protect his position, but in doing this he has steadily eroded his stature, becoming in the process a small man, lacking magnanimity and generosity of spirit.

So this is where we are. We are beginning to understand the truth of what happened. Our souls are heavy as we learn of the silent, hidden past. Eventually we will pursue more than just truth. We will discuss a formal truth and reconciliation commission, and will investigate who and how to prosecute the perpetrators of torture. We will hope upon hope for a sincere apology from statesmen, but have little confidence that one will be forthcoming.

What We Fight About When We Fight About Torture

by Jens David Ohlin

Right now we are locked in a complex dispute over the claims in the SSCI Torture Report that the CIA’s torture program was ineffective (as well as illegal). Part of the dispute can be frustrating because I think we are conflating a number of more distinct questions when we ask whether the torture was effective or not. Consider the following article from John Yoo who says that the torture report should be confined to the “dustbin” of history because it is inaccurate. He claims that torturing the detainees helped the CIA find Osama Bin Laden plain and simple.

We need to be more precise in order to have this conversation. Effectiveness or ineffectiveness are actually cluster concepts composed of more specific elements. I will try to tease apart the components here (there are at least five).

First, there is the issue of whether the CIA received intelligence from torture. In evaluating the dueling claims from the SSCI report and the CIA, it seems clear to me that the CIA did receive some intelligence about Bin Laden’s courier from the detainees who were tortured. The real question is evaluating the significance of that intelligence as compared to the other data points in the overall intelligence assessment of the CIA. That’s a complicated question and simply asking whether or not the CIA received intelligence about the courier from the tortured detainees does not tell you anything about the significance of the information. For that you need to ask some different questions which I now elaborate.

Second, there is the question of whether that intelligence was also received from other sources. Even if the tortured detainees provided intelligence about the courier, the more relevant question is whether that information was also received from our sources. That makes a huge difference. The critics of the report (including the CIA) make it sound as if the information from the courier came exclusively from the tortured detainees, but in fact this might have been a situation of overdetermination. The CIA already knew about the courier. If they received the information again from a tortured detainee, it is literally true that they received intelligence from the tortured detainee but the significance of that information is substantially reduced (perhaps to zero).

Third, there is the question of whether the intelligence could have been received from a non-torture source, either by non-coercive interrogation or some non-interrogation method. This question is important because it is relevant to the issue of “unavoidability” that plats a part in the legal analysis of necessity. At least some of the information came from multiple sources including detainees who provided the information before they were tortured. This suggests that torturing the detainees was avoidable because there were other non-torture avenues available for the CIA to get the information. It is also important to ask — and not enough people are asking and discussing this — whether the CIA could have used methods other than interrogation to get information about the courier. Of course, this discussion is stymied by the fact that the public does not have access to CIA methods and practices, which are classified. But how can we determine that the torture was indeed “necessary” without making explicit reference to the lack of other avenues? Unfortunately the CIA does not discuss these other avenues, but they really need to if they want anyone to accept their conclusion that the torture was truly necessary.

Fourth, there is the question of whether the torture saved lives. This is a counterfactual question because it requires imagining a world without torture and asking which terrorist attacks would — and would not — have occurred. This is guess work. When the CIA and their surrogates argue that the torture saved lives, they are asking everyone to engage in a mighty big thought experiment and what the world would have looked liked if they had followed the legal prohibition against torture. This is closely connected to the issue of unavoidability but it really is a separate question. Did it save lives? I have no idea. But at the very least the SSCI report shows that the CIA has failed to make the case that it saved lives.

Fifth, there are the first-order normative questions that are allegedly separate from effectiveness entirely, i.e. regardless of the answers to (1)-(4), was tortured legally or morally appropriate? Obama says that torture is wrong but he refuses to say whether it was effective or not. But these questions are linked in an interesting way. If we are debating whether the necessity defense should apply to torture (which I’ve written about extensively), at least part of the analysis is whether the torture is unavoidable. If torture is ineffective and useless, then it is clearly avoidable and the necessity argument does not apply — regardless of the rest of the legal argument. Of course, there might be other moral and legal reasons to reject torture, but the application of the necessity argument seems central to me.

The present discussion in Washington, DC, is conflating all of these questions into one incoherent mess.

Star Wars, Indeed: US Navy Will Deploy Its First (Hopefully Legal) Laser Cannons to Persian Gulf

by Julian Ku

It looks like the US Navy is going to go ahead and start deploying its new laser cannons to the Persian Gulf next year, according to this Washington Post report.  The Navy has been developing this weapon for years as a cheaper alternative to missiles for attacking smaller targets, especially drones (My 2005 self is still kind of amazed at my 2014 self for writing this last sentence in all seriousness and not as part of a science fiction fantasy).  But you have to watch this video…

Is there any legal limitation on this new weapon?  Well, the Navy is planning to limit it to self-defense for now, according to this WSJ($) report.

“We have the authorities right now to use it in self-defense,” Adm. Klunder said. “If someone was coming to harm the USS Ponce, we could use this laser system on that threat and we would intend to do so.”

The U.S. is also party to the Protocol on Blinding Laser Weapons, ratified by the U.S. back in 2008.  The Protocol limits the U.S. Navy’s lasers in this way:

Article 1

It is prohibited to employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices. The High Contracting Parties shall not transfer such weapons to any State or non-State entity.

The scope of this provision is limited by Article 3, which appears to allow blinding via lasers if it is an incidental or collateral effect.

Article 3

Blinding as an incidental or collateral effect of the legitimate military employment of laser systems, including laser systems used against optical equipment, is not covered by the prohibition of this Protocol.

This would seem to give the US Navy enough room to use its laser cannons, which are not intended just to blind, but to actually destroy targets (take a look at that video one more time).  Still, it is possible that blinding would be one of its effects, since it is intended to be used against small targets, including small boat attacks favored by Iran.  Soldiers in these open boats could be “blinded” by a laser attack, and Article 2 requires the U.S. to take all feasible precautions to avoid the incidence of permanent blindness to unenhanced vision.” Still, I think Article 3 is enough cover for the U.S. Navy to justify its use in combat.  And just in case, the U.S. added a declaration upon accession:

“It is the understanding of the United States of America with respect to Article 2 that any decision by any military commander, military personnel, or any other person responsible for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”

Star Wars is here, and no treaty is going to stop it….



Alfred P. Rubin: The Best Professor I Ever Had

by Duncan Hollis

For those of us fortunate enough to end up with a career in international law, we all have our mentors, our guiding lights.  Mine was Professor Alfred P. Rubin of the Fletcher School.  He died last week.  I write to express my condolences to his family and friends and offer a few words on his influence on my life as well as the whole Fletcher community, where he taught for 30 years.  Simply put, I would not be an international lawyer — let alone a professor of international law — had Professor Rubin not pushed, encouraged, and inspired me onto my current path.  He was the best professor I ever saw grace a classroom.

Truth be told, when I arrived at Fletcher in the Fall of 1993, I had no expectations of a career in international law.  I had enjoyed studying it as an undergraduate at Bowdoin with Allen Springer (a former student of Professor Rubin as it turned out).  But I’d applied to Fletcher to study Japan, not law; I had four years of Japanese language classes under my belt and had just finished a summer internship in Osaka.  To complete my joint degree, however, I still needed four law-related courses. LAW 200: The International Legal Order looked interesting.  I was a bit wary of an early morning class 3 days a week, including Fridays, plus an unusual year-long course structure. Still, Rubin’s classes were legendary so I decided to take it during my first semester.

In what was a trademark for his contrarian demeanor, Professor Rubin started off our first class with a simple, but powerful, challenge — insisting that there is no such thing as human rights.  An Australian classmate took the bait, and responded that they must exist, to which Professor Rubin pushed back, asking if human rights existed as law or morality.  That generated a fairly intense discussion on what law “is”, who should decide the law’s contents and by what processes.  Fifty minutes later, I was hooked.  LAW 200 became my favorite class. I would actually wake up happy on class days, eager to see what the morning’s discussion might hold — the Trent Affair’s illumination of customary international law, the divine law origins of treaties (which I’ve made use of subsequently), or one of my favorite casesMortensen v. Peters. We wrestled with the (in)consistency of the ICJ’s approach to the South Africa question, the meaning of “genuine and effective links” for citizenship, plus older chestnuts like the Lotus case. Along the way, Professor Rubin moved us beyond doctrine to legal theory, asking us to work through various iterations of positivist and naturalist methods in original and neo-formulations.  We didn’t just read Hart, we went back to Kelsen (reading Kelsen being fairly atypical in American legal education).

The Spring semester brought piracy and thornier topics like recognition, succession, jurisdiction, and conflicts of law.  A few years later, Monroe Leigh (who along with Cynthia Lichtenstein were my other early mentors) took me on as his associate in part because I’d invoked the Fruehauf case from Rubin’s class to advise a client.  As the semester progressed, my classmates and I debated whether Professor Rubin’s tears in discussing the legality of the bombing of Hiroshima were real (they were) and marveled at how he cared about the “law” as a concept and detested hypocrisy in any form.  None of us will ever forget how Rubin ended the year — re-enacting the scene from A Man for All Seasons where Sir Thomas More responds to William Roper’s call for an arrest even if it means cutting a road through the law to get after the Devil:

Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, the laws all being flat? This country is planted thick with laws, from coast to coast, And if you cut them down, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Two decades later, I’m still trying to figure out Professor Rubin’s secret ingredient — the persistent Socratic dialogues, the deep dives into doctrine, the marshaling of legal theory in concrete cases, or that undeniable passion for his subject-matter. It may have been something as simple as his gentle voice — a slight hesitancy in speech with an ever-present inquisitive tone.  I confess that my study group spent hours imitating that voice (one of us who shall remain nameless with much success).  We did so without any sense of hostility or meanness — but rather as a mark of our affection for his teaching and our sense that his class was a shared experience.  And it was not by any means an easy one — the reading assignments were enormous with Rubin assuming we all knew the material so we could take the class discussion to a more critical level. I still have my notes (the only ones that I’ve kept). I was amazed to revisit them yesterday to see just how much we covered that year in history, doctrine and theory.  I’ve never had another class like it.

Beyond the classroom, Professor Rubin was a thoughtful adviser.  Conveniently located on the way to the cafeteria, his office door was always open.   He welcomed students in to ask questions about class or the oft-discussed career question – “So, exactly, how does one become an international lawyer?”  He never rushed students off (even if we’d interrupted one of his many Minesweeper computer games). I treasured those conversations, and the chance to soak in his knowledge, his experience, and his many, many books. I have a shelf-long collection of green volumes of the American Journal of International Law in my office today for no other reason than Rubin had one.  In later semesters our conversations deepened and I gained insights into key sources and research methods.  To this day, I’m reluctant to cite a secondary source when a primary one is at hand since I picture Professor Rubin watching over me and shaking his head, reminding me he expects nothing less.

I will always be most indebted to Professor Rubin for his willingness to go beyond advice to action. In the summer of 1994 I was (unhappily) a temporary secretary in Suffolk University’s physical plant. The job was in the sub-basement below the actual basement.  It was hard to see how this was going to advance my dreams of becoming an international lawyer until I got a call from Jeffrey Bates, a partner at Goodwin Proctor at the time.  Another former student of Rubin’s, he needed a legal clerk to do some research, and Professor Rubin had recommended me. Overnight, I transferred onto a large and intensive research project that laid the foundations for all that followed.  I have no doubts that the Goodwin clerkship made it possible for me to join Steptoe and Johnson as an associate, which in turn led me to the State Department, and eventually Temple Law.  All this from one recommendation by Professor Rubin (a recommendation I’d not even asked him to make).  Nor am I alone in this experience.  Generations of Fletcher students sought out the Rubin experience and found themselves entering the field of international law in one way or another. From that introductory class alone, four of us spent time in the Legal Adviser’s office at the U.S. Department of State; others ended up at the United Nations, in foreign ministries, and private practice.  At least three of us followed his path into the academy to teach international law.

Having been a member of international law’s “invisible college” for a few years, I know that Professor Rubin was regarded by other law professors as an academic, known for his work on piracy and unilateral declarations, and some ferocious commentary from the floor at the American Society’s Annual Meeting.  For my part, however, I choose to remember Professor Rubin as a teacher.  In later years, we kept in touch until his health began to fail.  He’d ask me to call him by his first name, Al.  I couldn’t do it.  He was and will always be my professor of international law.  A gentleman, a scholar, but above all a teacher.  May he rest in peace.

The Senate Torture Report

by Jens David Ohlin

At long last, the Senate Select Committee on Intelligence has released the executive “summary” of its report into torture conducted by the CIA. The report is available here.

Here are some first reactions.

The nature and conditions of the interrogations are indeed horrendous. The report specifically concludes that the CIA interrogations were harsher than previously recognized and the report’s allegations certainly back up this finding. Not only did CIA officers use waterboarding more often than was generally known, but other techniques were brutal. I found it shocking that one detainee was shackled to the floor of a cold facility for so long that he died of hypothermia. The report describes the COBALT black site as a “dungeon.”

Some detainees were subject to “rectal rehydration or rectal feeding without documented medical necessity.” The report is hedging a bit by including the phrase “documented.” If the procedures were medically necessary that’s one thing. But if they were not necessary and performed without the consent of the detainee, then they constituted an assault and arguably a sexual assault.

Parts of the report could be used as an apology for the Office of the Legal Counsel in the Justice Department, which authored the torture memos. The report focuses on the fact that the CIA misled the White House and other executive agencies over the nature of the interrogations and the usefulness of the intelligence gleaned from these sessions. The OLC argued that the necessity defense could exculpate CIA officers accused of unlawfully committing torture because the torture was “necessary to save lives.” According to the Senate report, the torture program saved no lives whatsoever, so the OLC argument on necessity was essentially based on a lie. But the report seems to fault the CIA for this, since the OLC opinion was based on the information it received from the CIA. Although clearly the CIA should be criticized if they provided inaccurate information, the report makes it sound as if the OLC was duped by the CIA — which I find highly unlikely. In any event, there are plenty of problems with the OLC’s legal work even if you assume (which I don’t) that torture can yield actionable and reliable intelligence.

Finally, the report documents the use of trained psychologists who were called in to design and oversee aspects of the interrogation program. There has been a lot of scrutiny in the psychology profession over whether this type of work was appropriate for psychologists. The report documents that the design was based on the concept of “learned helplessness” or the idea that detainees would eventually become so compliant out of a sense of helplessness that they would start assisting their interrogators. This is a fiction and a fanciful one at that. It strikes me as pseudo-science (as applied to interrogational torture). The psychologists formed a corporation to provide these services to the CIA on an outsourced basis and were paid $81 million.

The ACLU Endorses Blanket Amnesty for Torture

by Kevin Jon Heller

I am very rarely shocked, but that was my response to yesterday’s editorial in the New York Times by Anthony Romero — the Executive Director of the ACLU — arguing that Obama should pre-emptively pardon all of the high-ranking officials responsible for the Bush administration’s systematic torture regime at Guantanamo Bay, Bagram, Abu Ghraib, various Eastern European black sites, etc. Here is a painful snippet:

Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. Addington, John C. Yoo and Jay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.


The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

I struggle to discern even the basic logic of this argument. I guess the key is that “[p]ardons would make clear that crimes were committed,” the idea being that you can’t pardon someone for doing something legal. But Romero’s argument has an obvious fatal flaw: “pre-emptive pardons” might make clear that Obama believes Bush administration officials committed torture, but they would say nothing about whether the Bush administration officials themselves believe they did. Romero is not calling for a South-African-style Truth and Reconciliation Commission that would condition amnesty on confession of wrongdoing; he wants to skip the confession part and go right to the amnesty. And the Bush administration’s torturers continue to believe that they did nothing wrong. To the contrary, they still cling to their puerile belief that they were the true patriots, Ubermenschen willing to do what lesser men and women wouldn’t to save the US from the existential threat of terrorism. No amount of evidence will pierce the veil of their self-delusion — and no pardon will have any effect whatsoever on their own perceived righteousness.

That Romero fails to see this is baffling enough. But I’m flabbergasted by his assertion that a blanket amnesty for torture — the correct description of his proposal — is necessary to make clear “that future architects and perpetrators should beware.” Beware what? Not prosecution, unless we are naive enough to believe that there is deterrent value in saying to the Bush administration’s torturers, “okay, we’re giving you a free pass for your international and domestic crimes this time — but next time will be a different story.” I’m sure future Bushes, Cheneys, Rices, Rumsfelds, Yoos, and Bybees will be positively quaking in their boots.

It’s also important to note something that Romero completely fails to address in his editorial — the message blanket amnesty for torture would send to the rest of the world. It’s bad enough that the US portrays itself as a champion of human rights abroad while it simply ignores its obligations under the Torture Convention. But there is a significant difference between lacking the political will to prosecute the Bush administration’s torturers and having the political will to offer them a blanket amnesty. If Obama “pre-emptively pardons” those who committed torture, how could the US ever criticise another government that decides to choose “peace” over justice? Some states in the world can at least plausibly argue that amnestying the previous regime’s crimes is necessary to avoid political destabilisation and future conflict. But the US is not one of them. Republicans and Democrats will not start killing each other if Obama does not pardon the Bush administration’s torturers. Ted Cruz will not lead a convoy of tanks emblazoned with the Texas flag on Washington.

But if Obama does issue Romero’s pardons, you can guarantee that future government officials will turn once again to torture the first time it seems “necessary” to counter a serious threat to the Republic. (Such as ISIS, which will no doubt be exploding Ebola-ridden suicide bombs in downtown Chicago any day now.) That’s the logic of criminality, at least when the crimes are perpetrated by the powerful — impunity simply emboldens them further. Give them an inch, they will take Iraq.

The bottom line is this: you want to make clear that torture is wrong, that torturers are criminals, and that future torturers should beware? You don’t offer blanket amnesty to the Bush administration officials who systematically tortured.

You prosecute them.

Guest Post: The Courts’ Misunderstanding of IHL is Deeper than You Think – A Response to Kevin Jon Heller

by Eric Sigmund

[Eric C. Sigmund is a legal advisor for the international humanitarian law program at the American Red Cross.  He is a 2012 graduate of Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs at Syracuse University.  All opinions expressed in this article are solely those of the author and should not be attributed to the American Red Cross.]

Recently, Kevin Jon Heller published a short piece on Opinion Juris entitled Why Can’t US Courts Understand IHL?  The piece, which addresses Al Warafi v. Obama, suggests that the United States District Court for the District of Columbia, as well as the D.C. Circuit Court of Appeals misunderstood and misapplied international humanitarian law as it denied Al Warafi’s habeas petition.  Heller, who seems both exasperated by the misapplication of the law but also sobered by the inevitability of this fact, posits that the Courts ignore clear language governing whether Al Warafi’s was required to carry or wear official identification demonstrating that he was protected as “medical personnel exclusively engaged in the search for, or the collection, or treatment of the wounded or sick, or in the prevention of disease…” as provided in Article 24 of the First Geneva Convention of 1949 (GC I).  While noteworthy, it is Michael Schmitt’s short comment to the post which raises a bigger question about the misapplication of the law and suggests that the Courts weren’t looking in the right place to begin with.

A more comprehensive description of the facts of the case can be found elsewhere but I’ll recap a few to provide context.  Mukhtar Yahia Naji Al Warafi was detained shortly after the invasion of Afghanistan by U.S. and Coalition forces in October 2001.  The U.S. government claimed that Al Warafi was a member of the Taliban who served on the frontlines against the Northern Alliance.  Al Warafi denied this claim, contending that he only provided medical assistance to wounded fighters.  Citing Article 24 and other supporting articles of GC I, petitioner Al Warafi argued that his prolonged detention was unlawful since he was exclusively engaged in the provision of medical care at the time of the invasion and therefore should have been repatriated upon capture.

At first glance, Al Warafi’s reliance on Article 24 seems misplaced as this provision is only applicable in situations of international armed conflict.  Common Article 2, which governs the application of the Geneva Conventions of 1949, states that the treaties are applicable to conflicts between High Contracting Parties or to situations of occupation.  While Afghanistan was a High Contracting Party to the Conventions at the time of the US invasion, the Taliban had not been recognized as the legitimate governing authority of the country.  As a result, the coalition invasion of Afghanistan did not amount to an international armed conflict since force was being directed against a non-state actor even though al-Qaeda and the Taliban were located in a foreign territory and the Taliban exerted control over much of the country.  Accordingly, the status and protections afforded to members of a nation’s armed forces during international armed conflict were not available to members of the Taliban regime.

Assuming for the sake of argument that the legitimacy of the Taliban’s rule was in question, Article 13 of GC I may come into play.  Specifically, Article 13(3) establishes protective status for “[m]embers of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.” This article mirrors the language in Article 4 of the Third Geneva Convention of 1949 (GC III) which is an authoritative list of persons who receive combatant immunity and/or prisoner of war status once captured.

While an analysis of this rule would not be used as a basis to classify the conflict, the Commentary to this provision reveals that the framers of the Conventions declined to extend combatant status to groups like the Taliban.  The Conference of Government Experts sought to limit the scope of this clause to prevent “any abusive interpretation which might have led to the formation of armed bands such as the “Great Companies””. The Commentary further notes that the “provision must be interpreted, in the first place, in the light of the actual case which motivated its drafting — that of the forces of General de Gaulle which were under the authority of the French National Liberation Committee”.  It concludes that only those forces which resemble the armed forces of a state Party to the conflict, which are recognized by third party states, and which assume obligations of the government subject to the Conventions may gain belligerent rights and protections afforded to members of the national armed forces.  None of these conditions were met by the Taliban.

The appeal of Al Warafi’s argument is easy to see.  Those who fall into one of the categories enumerated in Article 24 are provided a unique status of “retained personnel”.  Upon capture, such persons should be repatriated unless they are needed to provide medical care to prisoners of war and only for such time as their services are necessary.   With regards to those falling within the purview of Article 24 “repatriation is the rule; retention the exception [p.53]”.

Unfortunately for Al Warafi, the Commentary to Article 24, as well as Army Regulation 190-8 §3-15, specifies that only medical personnel of the armed forces of a nation are entitled to this protection.  Therefore, while the lack of proper identification is not dispositive as to whether Al Warafi was exclusively engaged in the provision of medical aid, the issue becomes moot as the Taliban lacked the proper authority to issue the credentials necessary for Al Warafi to obtain protection under Article 24.  Continue Reading…

So Ukraine May Sue Russia for Violating Anti-Terrorism Financing Convention

by Julian Ku

Things are not going well for Ukraine these days as Russia has managed to solidify its control over Crimea and is continuing support for breakaway regions in Eastern Ukraine. It is very hard to justify the legality of Russia’s actions, so it is not surprising that Ukraine is looking for any and all international fora to sue Russia.

As usual, the great challenge is to find an international court with jurisdiction. Ukraine has added a bunch of new cases to the already crowded Russia docket of the European Court of Human Rights. But I had been wondering how Ukraine planned to bring Russia to other courts like the International Court of Justice since Russia has not accepted the compulsory jurisdiction of that court.

Well, according to this report, it looks like Russia has accepted the compulsory jurisdiction of ICJ for disputes under the International Convention for the Suppression of the Financing of Terrorism.   Article 24(1) of the Convention states:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Although Russia could have avoided jurisdiction under paragraph 2 (as the United States did), Russia did not do so. So Russia could face an ICJ case, which I imagine it will ignore.  But I am not sure it could brazenly claim the ICJ lacked jurisdiction, so it will be interesting to see whether Russia decides to litigate (and maybe even file counterclaims)?

Is the Kenyatta Case the End for the ICC?

by Julian Ku

I haven’t had time to comment on the collapse of the ICC Kenyatta prosecution last week.  But friend of blog and Northwestern University law professor Eugene Kontorovich has some interesting thoughts over at National Review.  Read the whole thing, but suffice to say, Eugene thinks this is pretty big body blow to the whole idea that the ICC can be an effective institution at deterring international atrocities.  Not that it is exactly shocking that a head of state accused of atrocities would use every lever in his tool box to block his own prosecution.

In his requiem for the ICC, Eugene writes:

The ICC was born of a Whiggish belief that in the 21st century, a shared commitment to law could end impunity; that telecommunication makes people care more empathetically about distant tragedies; that bad guys will act like Western democratic leaders; and that impartial international bureaucrats could evenhandedly prosecute both sides.

The Kenyatta case reminds us that the alternative to victor’s justice is not super-neutral international justice, but rather no justice.


Weekly News Wrap: Monday, December 8, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


  • The International Criminal Court has withdrawn charges of crimes against humanity against Kenyan President Uhuru Kenyatta, a decision met with mixed reaction.
  • Suspected rebels stabbed and hacked to death at least a dozen people in a village in northeastern Democratic Republic of Congo on Saturday, a local government official said, in the latest in a series of attacks on civilians.
  • Kenya’s police squads have admitted for the first time to carrying out extrajudicial killings. Speaking to Al Jazeera’s Investigative Unit, the officers discussed their involvement in the Kenyan government’s assassination program targeting suspected Muslim radicals.
  • Nigeria detained a Russian cargo plane and its French-speaking crew on Saturday after it made an unauthorised landing in the northern city of Kano with military hardware bound for neighbouring Chad, a security source said.

Middle East and Northern Africa


  • China’s foreign ministry rebuked the U.S. Congress on Monday after legislators passed a bill allowing the sale of second-hand warships to Taiwan, the self-ruled island which Beijing claims as a renegade province.
  • The United States will keep up to 1,000 more soldiers than previously planned in Afghanistan into next year, outgoing U.S. Defense Secretary Chuck Hagel said on Saturday, in a recognition of the still formidable challenge from Taliban insurgents.





China Manages to File (and Not File) a Legal Brief in the Philippines Arbitration

by Julian Ku

The UNCLOS arbitral tribunal formed to hear a dispute brought by the Philippines against China has set December 15 as a deadline for China to submit a legal brief or memorial. As most of our readers know, China has steadfastly refused to even participate in the arbitral process. It has not selected any arbitrators and it did not attend the first hearing last spring. I (like most observers) expected China to ignore the December 15 deadline as well.

Although it looks like China will not file a formal legal memorial, it released yesterday a long, tightly argued “position paper” that looks a lot like a formal legal memorial (at least on the question of the tribunal’s jurisdiction).   So China is going to essentially file a jurisdictional objection (since the tribunal will surely read this paper) without having to file a formal legal brief.

It’s the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

As a legal document, the position paper is very well done and is the best legal analysis of the jurisdictional issues in the Philippines arbitration I have seen coming out of China, and certainly from the Chinese government. Granted, the Philippines have not released their own memorial so I haven’t had the chance to read their side. Essentially, China has three arguments against jurisdiction:

  • The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;

  • China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;

  • Even assuming,arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes,inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;

What is good about the position paper is that offers careful and credible legal analysis and avoids (for the most part) the annoying official propaganda tone that is the bane of every China-analyst.  I haven’t had the time to go through the paper with any great detail, so I will offer more detailed analysis at a future time. I will just say for now that I am most skeptical of China’s second argument: that the “Philippines has breached its obligation under international law” by failing to settle this dispute via negotiations. While China has usefully offered facts to explain how the Philippines has not really fulfilled its obligations to negotiate, I just don’t think the Declaration of Conduct China is relying upon can be interpreted to bar any and all UNCLOS arbitrations indefinitely, as China would seem to have it.

But there is a lot here to chew on.   I will try to share more of my thoughts when I’ve had time think about this paper more carefully. And I’m sure the Philippines will be tempted to release at least the jurisdictional portion of their brief as well. I hope they do, since the public reaction to their legal arguments will be just as important as any ruling the tribunal makes.

Events and Announcements: December 7, 2014

by Jessica Dorsey


  • The Centre of Excellence for International Courts (iCourts) and PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order is hosting a high-level summer school for PhD students working on international law and with a special interest in interdisciplinary studies of international law and its social and political context. We particularly welcome students and scholars who are writing up a PhD thesis that involves an interdisciplinary study of one or more international courts. More information can be found here.

Calls for Papers

  • Are you interested in attending an all-expense paid 3 week summer program on Human Rights and Humanitarian Law taught by over 39 world-renowned practitioners and academics at American University Washington College of Law? Well, now is your chance! Submit an essay to the Human Rights Essay Award Competition and you could be the lucky winner to receive a scholarship to attend the 2015 Program of Advanced Studies in Human Rights and Humanitarian Law. This year’s topic is “Transitional Justice, International Human Rights and Humanitarian Law” and the deadline to submit is February 1, 2015. Participants have the flexibility to choose any subject related to the assigned topic. The best articles may be published in the American University International Law Review. This annual competition sponsored by the Academy on Human Rights and Humanitarian Law seeks to stimulate the production of scholarly work in international human rights law. The Academy will grant two Awards, one for the best article in English and one for the best article in Spanish. The Award in each case will consist of: a scholarship to the Academy’s Program of Advanced Studies, travel expenses to Washington D.C., housing at the university dorms and a per diem for living expenses. For detailed guidelines about the award please visit the website here or contact the organizers at: hracademy [at] wcl [dot] american [dot] edu
  • TDM has announced a special issue on “Dealing with Diversity in International Arbitration.” This Special Issue will analyse discrimination and diversity in international arbitration. It will examine new trends, developments, and challenges in the use of practitioners from different geographical, ethnic/racial, religious backgrounds as well as of different genders in international arbitration, whether as counsel or tribunal members. This special issue will be edited by Professor Rashda Rana SC (Barrister, Arbitrator at 39 Essex Street Chambers, President ArbitralWomen) and Louise Barrington (Independent Arbitrator and Director Aculex Transnational Inc) with the assistance of the Edition Committee including Karen Mills (Partner Karim Syah Indonesia) and Gabrielle Nater Bass (Partner Homburger Switzerland) (for more information, click here). Publication is expected in July 2015. Proposals for papers should be submitted to the editors by 30 January 2015.


  • The International Commission of Jurists has released the 88th edition of the E-Bulletin on counter-terrorism and human rights. It covers highlights from Africa & Middle East, Americas, Asia and Pacific, Europe & Commonwealth of Independent States as well as from international and regional organizations (UN & EU).
  • The deadline for the Fourth Annual Junior Faculty Forum for International Law—of December 15, 2014—is fast approaching. Further information can be found here about the fourth Forum, which will be convened at the European University Institute in Florence in June 2015 by Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and JHH Weiler (EUI).
  • The Academy on Human Rights and Humanitarian Law is pleased to announce that the Program of Advanced Studies on Human Rights and Humanitarian Law is now accepting applicationsThe program will take place from May 26 to June 12, 2015. This Program offers 18 courses in English and Spanish lectured by over 39 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 150 participants from more than 25 different countries and with different levels of professional experience. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission on Human Rights and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance for lawyers, law students and HR professionals of any country, ABA Credits for U.S. students and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. The application form for this program will be available here. For more information please contact the organizers at: hracademy [at] wcl [dot] american [dot] edu.
  • The GlobalTrust research project at Tel Aviv University Faculty of Law studies the extent to which states that exercise regulatory functions should take into account the interests and preferences of foreign individuals and communities located outside their boundaries. Participants in this project explore the possible moral and legal grounds for requiring states to take other-regarding considerations into account and the institutional mechanisms that could legitimize the external review of states’ compliance with such obligations.Funded by a European Research Council Advanced Grant, the project offers three types of fellowships: post-doctoral, doctoral and short-term visiting fellowships. Application deadline (for the academic year of 2015-2016): 1 February, 2015. More information can be found here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information. 

Weekend Roundup: November 30-December 5, 2014

by An Hertogen

This week on Opinio Juris, Roger commented on Joel Trachtman’s article on customary international law, which attracted a lot of debate from our readers in the comments.

Kevin lamented US Courts’ insufficient understanding of IHL and wondered if Paddington would prefer Australia’s Christmas Island. He also responded to Ryan Vogel’s post on Lawfare on the OTP’s Afghanistan’s investigation.

Julian explained why he does not fully agree with Eric Posner’s view on international human rights law clinics and asked whether the Supreme Court implicitly reversed Kiobel’s corporate liability holding.

Finally, Jessica wrapped up the international news headlines and listed events and announcements.

Have a nice weekend!

Did the Supreme Court Implicitly Reverse Kiobel’s Corporate Liability Holding?

by Julian Ku

Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits.  That decision, which was the original basis for the Supreme Court’s consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court in the U.S. has followed it.  The Supreme Court was initially going to review that original Kiobel decision, but then decided Kiobel on other grounds, namely, that the presumption against extraterritoriality applies to claims brought under the Alien Tort Statute.  In recent cases, ATS plaintiffs have raised questions about the viability of the original Kiobel corporate liability holding. Did the Supreme Court leave that question open or had it reversed the lower court’s corporate liability decision sub silentio?

The argument that the Kiobel corporate liability holding no longer stands has two parts.  First, a plain reading of the Supreme Court’s Kiobel decision turns up language suggesting that corporations could be liable under the Alien Tort Statute.  In the majority opinion, Chief Justice Roberts stated that ““[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices [to displace the presumption against extraterritorial application].”  The argument here is that although “mere corporate presence” is not enough, corporations with other, deeper connections might displace the presumption against extraterritoriality. (Since the Court in other places explicitly stated it was not reaching the corporate liability question, I am skeptical of this argument).

Second, and more persuasively, you might argue that because the Supreme Court dismissed the Kiobel case on the grounds that the presumption against extraterritoriality applied to the Alien Tort Statute and that the presumption only applies if the court has reached the merits (e.g. whether the statute applies to the facts at hand).  Because the corporate liability defense was a jurisdictional ruling, this line of reasoning goes, then the Supreme Court must have implicitly found that it had jurisdiction over corporations in order to dismiss the case on the merits.

This second argument has some force to it (it was previewed in our insta-symposium last spring), and it was accepted by Judge Shira Scheindlin in a separate New York district court ATS case even though she ended up dismissing that case on other grounds.   It looks like the plaintiffs in another ATS case, Jesner v. Arab Bank, will get the appeals court to consider the issue as well, according to this NY Law Journal write up of oral argument in that case.

I think it is unlikely that the panel will conclude that the Kiobel corporate liability holding has been implicitly reversed, but I do think there is enough of an argument here to attract review of the full en banc Second Circuit. The tricky part here is that the ATS is itself a “jurisdictional” statute, and as the Supreme Court in Kiobel acknowledged, the presumption against extraterritoriality doesn’t typically apply to jurisdictional statutes.  So the Kiobel presumption is a little different and its application to causes of action that can be brought under the ATS is not exactly the same as when the standard presumption against extraterritoriality is applied to a regular non-jurisdictional statute. But it is unclear whether it is different enough to matter.

I am still coming to my own point of view on this issue. I don’t think the defendants in Jesner really addressed this issue effectively in their brief, but it is a complex issue.  At the very least, I think it will be resolved in the near future by the Second Circuit, either by this panel or by the full court. Corporate liability under the Alien Tort Statute is not quite a dead issue, but ti will take some time to figure out how alive it is.

The OTP’s Afghanistan Investigation: A Response to Vogel

by Kevin Jon Heller

As a number of commentators have recently noted, the latest report on the OTP’s preliminary-examination activities indicates that the OTP is specifically considering whether US forces are responsible for war crimes relating to detainee treatment in Afghanistan — something it only hinted at in its 2013 report. Here are the relevant statements (pp. 22-23):

94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.

I highly recommend the posts by David Bosco at Multilateralist and Ryan Goodman at Just Security on the OTP’s report. But I have reservations about Ryan Vogel’s post at Lawfare. Although Vogel makes some good points about the political implications of the OTP’s decision to investigate US actions, his legal criticisms of the OTP are based on a problematic understanding of how gravity and complementarity function in the Rome Statute.

First, there is this claim:

Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

It is not completely clear what Vogel’s objection is, but it’s likely one of two things: (1) he does not believe US actions in Afghanistan qualify as torture; or (2) he does not believe any acts of torture the US did commit are collectively serious enough to justify a formal OTP investigation.The first objection is irrelevant: whether acts qualify as torture is for the ICC to decide, not the US. The second objection is more serious, but is based on a misunderstanding of the difference between situational gravity and case gravity…

Eric Posner’s Not Completely Wrong Critique of International Human Rights Law Clinics

by Julian Ku

[I posted this last week, or I thought I did, but somehow it ended up staying hidden in the bowels of OJ’s archives. So although it is a little late, I am posting this again today.  -Julian]

As is his wont, U. Chicago law professor Eric Posner has hit a nerve with his recent Chronicle of Higher Education essay criticizing the value of international human rights law clinics at many law schools.  As part of his larger critique of international human rights law in general, Posner argues that most international human rights law school clinics “engage in a bewildering array of programs and strategies that have little in common but a left-wing orientation.”   Many (maybe most) of these clinics, Posner argues, engage in wide-ranging left-wing political advocacy with no particular focus on training students with legal skills. Crucial to his argument is that, unlike regular domestic law clinics, international human rights law is such a fuzzy unsettled and undeveloped area of law that there are few concrete legal skills that are teachable in such clinics.

His essay has drawn a sharp reaction (of course) from those who are involved in these clinics.  Most prominently, Sital Kalantry, the founder of a new international human rights clinics at U. Chicago Law itself, argues that Posner doesn’t understand what such clinics do and, in any event, his attack on clinics rests entirely on his (misguided) attack on international human rights law itself.

As always, I am sympathetic to Posner’s views here and admire his willingness to take on yet another sacred cow.   But even I think his attack on international human rights clinics sweeps a bit too broadly.  Under his view of the role of clinics and legal education, narrowly focused clinics would satisfy his standard.  My law school (Hofstra) has a just such a clinic focused on asylum hearings in deportation proceedings within the US immigration law system. Students learn a great deal about how to handle real clients, draft legal papers, and make arguments, before mostly administrative law judges.  But since asylum claims almost always require invocation of international as well as domestic law standards in order to determine whether asylum should be granted, it is also sort of an international human rights law clinic.

I do agree with Posner that it is possible that some international human rights law clinics, like that at my alma mater Yale, have extremely broad mandates to pretty much do anything from filing briefs in domestic litigation and suing their former alums, to lobbying city councils to adopt human rights standards to issuing reports on international law. And these clinics are very close to pure political advocacy groups. But these more ambitious clinics are probably inspired by freestanding non-governmental organizations like Human Rights First or Human Rights Watch, whose lawyers also engage in  broad range of non-lawyering political advocacy.  And they also are within the orbit of the larger universe of UN-affiliated NGOs and UN human rights institutions.  Should law students really be training to do the same type of stuff? I think this depends on the particular situation of the law school and the goals of its students.  I think a narrower clinic is probably better in most cases, but I am not ready to say that it would never be appropriate to have a broad-based international human rights law clinic, and that there would never be any useful legal education occurring in that clinic.

But I think Posner’s critique reminds us that international human rights law clinics are outside the traditional box of law school clinics, and that they do risk becoming a platform for pure political advocacy (and training students in pure political advocacy).  That is something that I agree is undesirable, and I am glad that his critics don’t dispute that point.  Even international human rights law clinics deserve scrutiny and to be held to the same standards as other law school clinics.

Law schools need to make hard assessments about whether such clinics are worth it for their students, and perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training (like a political asylum clinic, etc.).  Posner asks the right questions, even if I think his final answer is not quite right.

Would Paddington Prefer Christmas Island?

by Kevin Jon Heller

I’m sure most of us will go see the live-action movie version of PADDINGTON, which recently hit the big screen. And we will do so, of course, because we are interested in what Paddington’s residence status says about the UK’s harsh immigration laws. Fortunately, Colin Yeo has prepared a nice primer for us at the Free Movement blog, run by the excellent Garden Court Chambers. Here’s a snippet:

Paddington stows away and deliberately avoids the immigration authorities on arrival. He is in formal legal terms an illegal entrant and as such commits a criminal offence under section 24 of the Immigration Act 1971. It is an offence punishable by up to six months in prison. If or when detected by the authorities it is more likely he would simply be removed back to Peru than that he would be prosecuted, though. To avoid that fate he would need to make out a legal basis to stay.

Incidentally, for offering a home to Paddington — or harbouring him, as the Home Office would have it — Mr and Mrs Brown could potentially face prosecution under section 25 of the Immigration Act 1971, entitled “Assisting unlawful immigration to member State”.

Yeo goes on to explain why Paddington will have a difficult time justifying his illegal entry into the UK — and will probably end up in a poorly-run private detention centre. (Do I hear sequel? Perhaps it could be entitled PADDINGTON MAKES A NEW FRIEND.)

It could be worse, though. Paddington could’ve tried to sneak into Australia. If he had, he’d likely be sent to the ironically-named Christmas Island, Oz’s very own prison camp.

Weekly News Wrap: Monday, December 1, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


Middle East and Northern Africa




  • The UN Committee on Torture has released its concluding observations on Sweden, Ukraine, Venezuela, Australia, Burundi, USA, Croatia and Kazakhstan.
  • Argentina has charged HSBC with aiding more than 4,000 clients to evade taxes by stashing their money in secret Swiss bank accounts, the country’s AFIP tax authority said on Thursday.
  • Colombia’s main rebel group has freed army General Ruben Dario Alzate, who was captured two weeks ago. President Juan Manuel Santos tweeted the general and his two companions had been released by the FARC to the ICRC and representatives of Cuba and Norway and they were in good condition.