Archive for
January, 2015

The CIA Violated the Terrorist Bombing Convention

by Kevin Jon Heller

The Washington Post has a long article today about how Mossad and the CIA collaborated to blow up Hezbollah’s chief of international operations in 2008. Here are the key paragraphs:

On Feb. 12, 2008, Imad Mughniyah, Hezbollah’s international operations chief, walked on a quiet nighttime street in Damascus after dinner at a nearby restaurant. Not far away, a team of CIA spotters in the Syrian capital was tracking his movements.

As Mughniyah approached a parked SUV, a bomb planted in a spare tire on the back of the vehicle exploded, sending a burst of shrapnel across a tight radius. He was killed instantly.

The device was triggered remotely from Tel Aviv by agents with Mossad, the Israeli foreign intelligence service, who were in communication with the operatives on the ground in Damascus. “The way it was set up, the U.S. could object and call it off, but it could not execute,” said a former U.S. intelligence official.

The United States helped build the bomb, the former official said, and tested it repeatedly at a CIA facility in North Carolina to ensure the potential blast area was contained and would not result in collateral damage.

“We probably blew up 25 bombs to make sure we got it right,” the former official said.

The extraordinarily close cooperation between the U.S. and Israeli intelligence services suggested the importance of the target — a man who over the years had been implicated in some of Hezbollah’s most spectacular terrorist attacks, including those against the U.S. Embassy in Beirut and the Israeli Embassy in Argentina.

The United States has never acknowledged participation in the killing of Mughniyah, which Hezbollah blamed on Israel. Until now, there has been little detail about the joint operation by the CIA and Mossad to kill him, how the car bombing was planned or the exact U.S. role. With the exception of the 2011 killing of Osama bin Laden, the mission marked one of the most high-risk covert actions by the United States in recent years.

The article touches on the legality of Mughniyah’s killing, with the US arguing that it was a lawful act of self-defense under Art. 51 of the UN Charter and Mary Ellen O’Connell claiming that it was perfidy. Regular readers will anticipate my skepticism toward the former claim, and there is simply no support in IHL for the latter claim. Perfidy is an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Mossad and the CIA did nothing of the kind.

Mossad and the CIA did, however, violate the International Convention for the Suppression of Terrorist Bombings, which Israel ratified on 10 February 2003 and the US ratified on 26 June 2002. I don’t want to dwell on Mossad in this post; the analysis is the same as the one I provided here with regard to its assassination of Iranian nuclear scientists. Instead, I want to focus on the US’s complicity in Mughniyah’s death.

To begin with, there is no question that the bombing itself qualifies as a prohibited act of terrorism under the Terrorist Bombing Convention. Here is the relevant definition, Art. 2(1):

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

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

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

Mughniyah’s killing satisfies this definition. The attack involved an “explosive device” and it was clearly intended to “cause death.” It also took place on a public street, which qualifies as a “place of public use” under Article 1(5) of the Terrorist Bombing Convention. Article 1(5) defines a place of public use as “those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally.”

The CIA was also complicit in that prohibited act of terrorism, pursuant to Art. 2(3):

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

The language of Art. 2(3) easily encompasses the CIA’s involvement in Mughniyah’s death, given that the US admits the CIA built the bomb, helped track Mughniyah’s movements, and had the power to call off the attack.

The US will no doubt object to this analysis by arguing that the Terrorist Bombing Convention is intended to apply to bombings by terrorists, not bombings of terrorists. That objection would be valid had the US military been involved in the operation instead of the CIA. Justifiably or not, Article 19(2) of the Convention specifically permits acts that would otherwise qualify as terrorist bombing when they are committed by the military forces of a state:

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

The CIA, however, does not qualify as the US’s “military forces” under the Terrorist Bombing Convention. Art. 1(4) specifically defines “military forces of a State” as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.” The second provision does not apply, because there is no evidence the CIA was acting under the “formal command, control and responsibility” of the military when it participated in Mughniyah’s killing. And neither does the first provision: although there is no question that the CIA contributes to the US’s “national defence or security,” it is not an “armed force” under US “internal law.” According to 10 USC § 101, “[t]he term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.”

The bottom line: the CIA committed an act of terrorism — actual terrorism, not figurative terrorism — when it participated in blowing up Mughniyah. The US military has the right to kill terrorists with bombs; the CIA does not. There is no doctrine of “close enough” in the Terrorist Bombing Convention.

Weekend Roundup: January 24-31, 2015

by Jessica Dorsey

This week on Opinio Juris saw Deborah note the publication of current Guantanamo detainee Mohammedou Slahi’s diary and her review that appeared in the Washington Post about it. Peter offered further commentary on his first post on John Boehner’s invitation to Benjamin Netanyahu to address the US Congress, specifically in terms of what the invitation says about constitutional change.

Though he never met him in person, Julian noted the passing of Dr. Luke T. Lee, and paid homage to him and his treatise on Consular Law and Practice.

In light of the hostage situation between ISIS and Jordan/Japan, Jens weighed in on hostages and human dignity. Jens also reported on yesterday’s decision at the ICTY Appeals Chamber, upholding genocide charges in the case of The Prosecutor v. Popovic et al. related to the massacre at Srebrenica in July, 1995.

Duncan highlighted his newest paper, this time he’s written An Intersubjective Treaty Power and a guest post came in from Nimrod Karin, responding to Kevin’s critique of his Just Security posts (here and here), about whether Palestine’s joining the ICC amounted to “lawfare.”

And finally, I updated you on the weekly news and also offered the events and announcements post.

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

ICTY upholds Genocide Convictions in Srebrenica Case

by Jens David Ohlin

Today, the ICTY Appeals Chamber affirmed genocide convictions in the Srebrenica case, Prosecutor v. Popović et al. The full Appeals Chamber judgment is here.  The PDF document is 792 pages (including a few short dissents), which is long-ish but certainly not extraordinary by ICTY judgment standards.

In my opinion, the most critical part of the judgment relates to the connection between the defendants, their Joint Criminal Enterprise (JCE), and the perpetrators who actually performed the killings. As you will recall, back in the old days when the JCE doctrine was first brought to fruition in the Tadic case, the assumption was that the court would convict defendants who were part of the same JCE as the perpetrators who performed the actual killings. Later ICTY judgments “de-linked” leadership-level defendants from the relevant physical perpetrators and held that a conviction for JCE did not require that the defendants and the perpetrators were part of the same JCE. This opened up a big question: what link between the defendants and the perpetrators was required in order to convict under the JCE doctrine? Furthermore, what doctrine would justify imposing liability on the defendants when the JCE doctrine was insufficient by itself to establish the link between the defendants and the physical perpetrators. What standard would be used to evaluate the required link?  I was hoping that the Popović judgment would resolve these questions definitively, but it does not appear to have done so.

Here is the relevant paragraphs in the judgment regarding one set of killings:

1065. The Appeals Chamber observes that the Trial Chamber considered that the fact that killings occurred in July 1995, after the fall of Srebrenica, and that the victims were Bosnian Muslim men from Srebrenica, were sufficient to link the Trnovo killings to the common purpose of the JCE to Murder. The Prosecution correctly points out that the principal perpetrator of a given crime need not be a member of the JCE and that it must be determined whether the crime in question forms part of the common purpose. The Appeals Chamber reiterates that: to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The Appeals Chamber does not consider the Trial Chamber’s finding to satisfy this requirement. The Appeals Chamber, Judge Niang dissenting, therefore finds that the Trial Chamber’s failure to further elaborate on this link amounts to a failure to provide a reasoned opinion. In view of the Trial Chamber’s error of law, the Appeals Chamber will consider whether the factual findings in the Trial Judgement as a whole would allow a reasonable trier of fact to establish a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1066. Although insufficient on their own to establish a link, the Appeals Chamber notes that the Trnovo killings share certain features with other crimes committed in furtherance of the common plan, namely that the victims were Bosnian Muslim men from Srebrenica, the killings occurred “in July 1995, after the fall of Srebrenica”, and the victims were lined up and shot with automatic rifles.

1067. As previously discussed, one way to establish the required link would be to demonstrate that in the lead up to the Trnovo killings, the Scorpions Unit co-operated with the VRS, either directly or through the MUP forces, with respect to the custody or control of the prisoners killed in Trnovo. In this regard, the Prosecution asserts it is reasonable to infer that the Bosnian Muslim men killed in Trnovo were captured by or surrendered to the BSF who then handed them over to the Scorpions Unit. The Appeals Chamber observes, however, that the Trial Chamber, having considered and rejected similar arguments, concluded that “₣ağny inference that there was coordination with the VRS Main Staff is speculation”. In reaching this conclusion, the Trial Chamber rejected the Prosecution’s arguments that: (1) the Bosnian Muslim men were arrested in the Drina Corps’ zone of responsibility; (2) the logistics of their transport would have required VRS Main Staff involvement; and (3) the Scorpions Unit would have been unable to take any actions without orders from the BSF and the MUP in Trnovo. The Trial Chamber also took into consideration that it was not presented with evidence: (1) indicating that the six men were detained in the Drina Corps’ zone of responsibility; (2) shedding light on the men’s journey from Srebrenica to the Trnovo area; or (3) indicating that there was any VRS Main Staff involvement in the six men coming into the custody of the Scorpions Unit. The Appeals Chamber is not persuaded that the Trial Chamber’s conclusion – that to infer co-ordination between the Scorpions Unit and the VRS Main Staff would be speculative – is undermined by either the evidence that the six Trnovo victims were last seen along the route of the column between Bratunac and Nova Kasaba, or that other Bosnian Muslim men from the column were captured by or surrendered to the BSF stationed along the Bratunac-Konjevi} Polje Road.

1068. In submitting that the Scorpions Unit and MUP forces were closely co-ordinated during the relevant time period, the Prosecution relies on evidence that demonstrates that: (1) the Scorpions Unit was deployed in Trnovo from late June through at least the end of July 1995; (2) on 1 July 1995, Borovcanin reported on activities on the Trnovo battlefield, including on an attack involving the Scorpions Unit; (3) Borovcanin was in Trnovo on the Sarajevo front until he was resubordinated on 10 July 1995; (4) a mixed company of joint Republic of Serbian Krajina (“RSK”), Serbian and RS MUP forces was among the units under Borovcanin’s command when he was resubordinated and that during the night of 10 July 1995 this mixed company was to withdraw from the Trnovo battlefield and assemble in front of the Public Security Station (“SJB”) in Bratunac by noon the following day; and (5) upon arrival in Bratunac, Borovcanin was to report to Krstic.3113 This circumstantial evidence suggests that Borovcanin worked with the Scorpions Unit and the VRS Sarajevo-Romanija Corps while he was in Trnovo. However, when considered alongside the Trial Chamber’s finding that the only evidence about the whereabouts of the mixed company of joint RSK, Serbian, and RS MUP forces after re-subordination was that they did not arrive in Bratunac,the Appeals Chamber is not persuaded that the only reasonable inference available was that Borovcanin continued to co-ordinate with the Scorpions Unit after he was re-subordinated on 10 July 1995. The Appeals Chamber further emphasises that the killings were committed in Trnovo, which although only 150 kilometres from Zvornik, falls within the area of responsibility of the Sarajevo-Romanija Corps, rather than the area of responsibility of the Drina Corps like the other crimes. Finally, with respect to the Prosecution’s argument that the BSF continued to search for ABiH soldiers and to capture and kill smaller groups of Bosnian Muslim men fleeing from Srebrenica even after the mass killings were complete, the Appeals Chamber considers that although it demonstrates the continued implementation of the murder operation, it is of limited relevance in showing a link between the Scorpions Unit and a JCE member. The Appeals Chamber, Judge Niang dissenting, therefore considers that a reasonable trier of fact could not have established a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1069. In light of these considerations, the Appeals Chamber, Judge Niang dissenting, considers that a reasonable trier of fact could not have concluded that the members of the JCE were responsible for the Trnovo killings. The Appeals Chamber, Judge Niang dissenting, therefore grants in part Beara’s ground of appeal 17 and Popovic’s appeal in this regard, and reverses their convictions under the following counts to the extent they concern the Trnovo killings: Count 1 (genocide); Count 3 (extermination as a crime against humanity); Count 5 (murder as a violation of the laws or customs of war); and Count 6 (persecution as a crime against humanity).

I do not have an opinion regarding the sufficiency of the evidence and whether the Appeals Chamber should have imputed the killings to the defendants in this case. Rather, I am concerned that the Appeals Chamber did not do enough to establish a particular standard or doctrine to “re-link” perpetrators with killings performed by individuals outside of the JCE. There is nothing close to a standard announced here, but rather the Chamber simply reasserts that there must be some connection in order to justify the imputation. Well yes, but what criminal law doctrine structures that imputation? To me it’s a bit like saying that a defendant in a criminal trial can be punished for someone else’s killing as long as there was some coordination between them, but without specifying whether the defendant is an accomplice, conspirator, instigator, or whatever.

The Chamber performs a fact-intensive inquiry into the matter without any particular doctrine or mode of liability to aid the analysis. It does say that cooperation or coordination would be “one way to establish the link,” and that there was insufficient evidence of such cooperation or coordination in this case. OK, but does that mean that a link could be established in some other way? And if so, what is the overall Dogmatik justification for imputing the criminal actions of non-members to members of the JCE?

Again, I’m not objecting to the result in this case, but rather questioning whether the Appeals Chamber has answered the necessary doctrinal questions and whether they have given sufficient guidance to further Trial Chambers. The results here seem decidedly fact-dependent and, shall we say, under-theorized. 

An Intersubjective Treaty Power

by Duncan Hollis

Ian Henderson may be mad at me.  He asked for fewer posts on foreign relations.  But he also asked for more posts on treaties.  I have a new paper up that tackles both topics — An Intersubjective Treaty Power.  For those of you who are interested in such things, here’s the abstract:

Does the Constitution require that U.S. treaties address matters of international concern? For decades, conventional wisdom answered that question negatively; The Restatement (Third) of U.S. Foreign Relations Law dismissed the very existence of an international concern test. In Bond v. United States, however, three Justices – Alito, Thomas, and Scalia – insisted on its existence, pushing the issue into the foreground of foreign relations law.

This article analyzes whether the Constitution contains an international concern test and what contours it has. I argue that Justices Alito, Scalia and Thomas are correct – and the Restatement (Third) was wrong – on the test’s existence. Various modalities of constitutional interpretation – original meaning, historical practice, doctrine, structure, and prudence – offer evidence supporting some version of an international concern test. But I part ways with the Justices on how the test works. They and other proponents have tended to look for static or objective criteria to divide appropriate “international” matters from impermissible “purely domestic” ones.

In contrast, I argue that the international concern test is intersubjective. U.S. treaties can only be formed (or ratified, implemented, or applied) where the relevant actors at each stage (e.g., States in forming a treaty, the President and the Senate in ratifying it) share a belief that its subject-matter is international. Absent that understanding, the treaty will not be formed (or ratified, or implemented, or applied). Such views may coincide or divide depending on the context. Thus, the Supreme Court could agree that the Chemical Weapons Convention generally addressed a matter of international concern, even if they also agreed that the prosecution of Ms. Bond did not. Nor are these understandings fixed; issues need not be “purely” domestic (or international) for all time. Some topics such as human rights were once understood by States (and the President and the Senate) to be inappropriate subjects for treaty-making, but are now believed to be an essential aspect of international relations. Other topics such as Native American relations were once subject to extensive treaty treatment, but are now no longer accepted as appropriate subjects for U.S. treaties.

This article thus answers one of the longest running questions of U.S. foreign relations law. It confirms the existence of an international concern test, but locates its operation within the treaty process rather than in an externally-imposed laundry list of topics or criteria. In doing so, it provides an explanatory lens for a U.S. treaty practice that many label incoherent and suggests a need for more research on what conditions generate intersubjectivity (or its absence).

 

Hostages and Human Dignity

by Jens David Ohlin

News reports indicate that Jordan is engaged in frantic negotiations with the Islamic State (ISIS) over a proposed hostage swap. Jordan is apparently willing to turn over a prisoner, would-be suicide bomber Sajida al-Rishawi, in exchange for ISIS releasing both a Jordanian air force pilot and a Japanese captive. For reasons that aren’t entirely clear, the deal appears to have collapsed.

Earlier video appeared to show that another Japanese hostage was murdered by ISIS–a development that provoked shock and outrage in Japan. ISIS hostage-takers had earlier demanded $200 million from the Japanese government in exchange for releasing the two Japanese nationals. Although Japan is not militarily engaged in the armed conflict against ISIS, the terrorist organization said that its actions were motivated by the financial assistance that Japan had pledged to the regional effort, though Japan clarified that the financial assistance was for non-military efforts. Unfortunately, that clarification did not dissuade ISIS from continuing to threaten the life of the remaining hostage.

It is unclear what policy Japan is following regarding negotiating with ISIS generally and paying ransom demands specifically.

The United States and Britain have explicit policies against paying ransom to ISIS or other terrorist organizations. Consequently, while many captives from other European countries have been released after their governments paid ransoms to ISIS, several U.S. and British hostages have been brutally beheaded because their governments refused to negotiate or give money to ISIS to win their release. This has caused anguish for the families of the hostages.

In this post, I don’t want to address the normative question of whether it is best (morally or strategically) to pay a ransom. Of course, paying the ransom wins the release of the individual hostage. However, it also emboldens and encourages ISIS and other terrorists to perpetrate more kidnappings. It is precisely for this reason that the U.S. refuses to negotiate and pay money to ISIS.  The ransom payments are bankrolling the ISIS war in Iraq and Syria. So the European countries that are paying the ransoms are providing (indirectly and under duress) the resources for ISIS to fight the military coalition that is trying to stop them from carving its caliphate out of the territory of Iraq and Syria.

Rather, I want to ask the descriptive question of why most European governments are willing to pay the ransoms while the U.S. and Britain will not.  Both sides of this issue understand the pragmatic consequences. So why the different conclusions?

I have spent a long time thinking of the question and the only answer i can find is: human dignity. The U.S. and British position sacrifices the interests of the individual hostage in order to serve a larger social goal: denying ISIS the financial resources to continue its military campaign. This is a consequentialist calculation. The problem is that it is not so good for the individual hostage.

European governments care about the lives of the hostages and are willing to save them, even though they know that saving them will make the overall situation worse, both for the global community as well as their own citizens will inevitably be taken hostage again. But they are unwilling to balance away the interests of the hostage for some larger societal interest. This preservation of, and respect for, human dignity is deeply entrenched in some European legal cultures. For example, article 1 of the German Constitution says that human life is inviolable and cannot be balanced away. Utilitarian balancing is impermissible as a matter of constitutional law if it violates the human dignity of the individual, who is entitled to moral and legal respect. This means that the life of the hostage cannot be subordinated to the global interests that are advanced by the policy of non-negotiation.

Of course, one caveat here. The cause of the hostage’s peril stems from an outside agent (ISIS), not the government. So the government is not directly harming the hostage by not paying the ransom. This makes the situation much different from the German Airliner case, where the German courts concluded that authorizing the shooting down of a hijacked airliner would be unconstitutional because it would violate the human dignity of the innocent passengers. In that situation, the passengers would have been killed by the German government, while in the case of the hostages, their deaths would be caused by ISIS, not their own government. This is a relevant difference, both morally and legally.

That being said, I still think that, as a descriptive matter, the commitment to human dignity and moral individualism is at play in the background here. For some European governments, as well as their domestic populations exerting political pressure on them, the interests of individual citizens cannot be dismissed simply because a larger social policy requires doing something different. For some European governments, that social policy sounds particularly cold because it indirectly ends up condemning the individual hostages. The question is why these governments think this result would be cold. And I think the reason why is because the commitment to Kantian dignity is more deeply engrained in some legal cultures than others.

 

RIP, Luke T. Lee, Expert on Consular Law

by Julian Ku

I never met the late Luke T. Lee, but his work, Consular Law and Practice, was one of the first treatises on “practical” international law I ever encountered. As a young student intern in the U.S. State Department, I remember going to his book again and again as I tried to figure out exactly what would happen to a U.S. consular official who got into a car accident in Jerusalem but whose consular status was never properly recognized by the government of Israel (There is a memo I wrote on this subject somewhere in the bowels of the State Department that may or may not ever have been read).  Lee’s work was not breathtakingly complex or sophisticated, but it was clear, careful, and comprehensive on the questions it set for itself. Works like Consular Law and Practice are not the only purpose of writing legal scholarship, but it is a purpose that is still worth celebrating.  RIP.

More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change)

by Peter Spiro

My earlier post on whether John Boehner’s invitation to Benjamin Netanyahu seems to have triggered a little in-house conservative disagreement on the issue (or at least Weekly Standard’s Adam J. White is giving me credit for that). Mike Ramsey and David Bernstein come out against the invite’s constitutionality here and here; White argues in favor.

As I left off my first post, the question is appropriately raised but I think ultimately the Boehner move will go down as policy stupid but constitutionally legitimate. Appropriately raised because the invitation seems so patently at odds with a “one voice”/”sole organ” approach to foreign relations. Nice to have Mike Ramsey to confirm that the Founding generation wouldn’t have bought in (though Ryan Scoville dissents on the historical record here). But it would have provoked a huge controversy in the 20th century as well — see the much more informal interaction between Jim Wright and the Sandinistas during the Reagan years. Imagine if Wright had invited Sandinista leader Daniel Ortega to address Congress. I think a lot of folks would have deployed constitutional objections to that.

But just because it may have been unconstitutional then doesn’t mean it’s unconstitutional now.

The fact that it was left to a niche blogger to raise the constitutional question this time around pretty much proves the fact that this is now water under the constitutional bridge. There’s no way to put the lid on direct communication between members of Congress and foreign government officials. So much for “one voice.” One has to assume such communications are now dense. Making the jump from lots of behind-the-scenes contact to more formal actions like the Boehner invitation looks small. One might even argue that it is transparency enhancing. Better to play the institutional cards openly than hide them under the table. (Adam White highlights similar activity on the part of the courts, including the increasing amicus practice of foreign states. That practice would have raised a lot of eyebrows as recently as a couple of decades ago, especially on domestic issues; it’s now pretty routine.)

So the episode is a nice illustration of how changes in context can change constitutional understandings. Assuming the constitutional debate on the Boehner move remains restricted to a side conversation among constitutional scholars, it will supply a good precedent for similar moves on Congress’ part in the future. The practice then becomes constitutionally entrenched, accepted by all relevant actors. Any earlier understandings (including ones dating back to the founding) are overtaken by events. Th Constitution necessarily adapts to the world in which it has to operate.

Weekly News Wrap: Monday, January 26, 2015

by Jessica Dorsey

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

Africa

  • Top Ugandan rebel commander Dominic Ongwen is due to make his first appearance at the International Criminal Court (ICC) in The Hague today to face war crimes charges.
  • United Nations experts warned that Sudan’s remote western territories could become a breeding ground for radical Islamists as violence in the country’s conflict-torn Darfur region rages at an alarming level.
  • Boko Haram has launched a major offensive in Nigeria’s northeastern city of Maiduguri and the town of Monguno, engaging in fierce battles with the military.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Conservative Prime Minister Tony Abbott has awarded Australia’s highest honor to Prince Philip, husband of Queen Elizabeth, sparking a barrage of criticism across the country on its national day of celebration. The award grated with republicans who want to sever ties with Britain and appoint an Australian president.
  • Australia called on Indonesia on Friday to reconsider its decision to execute two Australians convicted of drug offences, a move that is likely to strain already fragile ties between the two neighbors.
  • The United States has agreed that Australian David Hicks, jailed on terrorism charges for five years at Guantanamo, is innocent, his lawyer said on Friday.

UN/World

  • A new round of U.N. talks between rival Libyan factions will take place in Geneva on Monday, the United Nations said, even as gunmen kidnapped the deputy foreign minister of the recognised government.
  • The World Health Organisation (WHO) has admitted that the Ebola outbreak in West Africa revealed “inadequacies and shortcomings” in how it responds to crises.

Current Guantanamo Detainee Publishes Diary

by Deborah Pearlstein

While I’ve no insights into why the government finally permitted current Guantanamo detainee Mohammedou Slahi to publish the diary he hand wrote in English back in 2005, several years into his captivity, published it now is, subject to relatively minor redaction. The diary is a remarkable read in many respects; my longer take and a summary of Slahi’s account can be found in my review for the Washington Post this past week. Slahi, a Mauritanian national who holds a degree in electrical engineering, describes brutal beatings and other forms of torture not only in detention while in Jordan, but also at length at Guantanamo itself. A federal district court in Washington ruled in 2010 that Slahi’s petition for habeas corpus be granted; on appeal, that decision was remanded (for the application of a different standard of who can be considered “part of” Al Qaeda), and there it continues to sit. Diary publication notwithstanding, Slahi remains at Guantanamo today.

Guest Post: A Response to Kevin Jon Heller

by Nimrod Karin

[Nimrod Karin is a J.S.D. candidate at New York University School of Law. From 2006 to 2012 he served as a legal adviser to the Israel Defense Forces at the International Law Department of the Military Advocate General’s Corps’ HQ, and from 2012 to 2013 he was the Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations.]

Thanks so much for the kind words, Kevin, and even more so for the interesting push-back. I confess that a reader of an early draft of my post cautioned me against using the term “lawfare,” although for different reasons than those Kevin noted. Now I realize I should’ve given this comment more thought, but at the same time I’m very pleased to have helped generate the side-discussion over Kevin’s use of the term “bravery,” which is fascinating in itself.

In my original post I wrote that “lawfare” is a Palestinian prerogative, and therefore I clearly think that it’s both politically and legally legitimate, and so I can’t think that it has such negative connotations as Kevin apparently thinks I do. In fact, I did mean “lawfare” in the sense Kevin’s discussants (Dov, el roam, and Mendieta) are using it: “lawfare” as strategic utilization of the law, which for me isn’t negative but rather value-neutral, and this is why in the post I contrasted it with “the quest for justice” or “embracing the law.” Strategy is simply neither of those, just as it isn’t “good” or “bad” – Strategy is only successful or unsuccessful. And as my original post indicated, to me the only plausible strategic role for the ICC in the Israeli-Palestinian conflict is as “the (legal) straw that broke the camel’s (political) back”. Only time will tell whether this is in fact a successful strategy for the Palestinians.

As with most strategies, this latest Palestinian move carries risk, not only of failing but also of backfiring, exactly as Dov put it. And this is what Kevin apparently deems to be “bravery,” and that’s because (1) the ICC process is uncontrollable and (2) it is likely to implicate Hamas as well. At first blush I thought that in this context Kevin’s use of “bravery” stands for selfless, non-strategic risk-taking, on behalf of some higher or noble cause. This would mean Kevin does see the Palestinian ICC bid as primarily driven by “justice” or “rule of law” considerations, in which case Kevin and I substantively disagree. However now I think that Kevin’s using “bravery” in its dictionary form, i.e. doing something incredibly risky (for whatever reason), perhaps even unreasonably dangerous given the possible reward, and maybe even a “Samson Option” type of last resort (as melodramatic as it may sound). I think this meaning of “bravery” conforms to the value-neutral charchter of the “lawfare” definition, which means Kevin and I agree on the principle, and then we can ask whether the Palestinian move is strategically sound given the well-known thinness of the line separating bravery and stupidity.

The question therefore becomes just how risky the Palestinian ICC bid really is, and how risky the Palestinians thought it was when they made it, and we can only speculate with regard to both of these questions. My educated guess here is that the ICC bid isn’t that much of a risk for the Palestinians, or at least that it’s not perceived as such by the Palestinians, least of all by the relevant decision-makers, i.e. Abbas and his concentric power circles of PA-PLO-Fatah. I think that by now it’s more than obvious that for that side of the Palestinian internal conflict the best possible scenario is an international cop stepping in to take care of Hamas. If Hamas leaders ever get indicted by the ICC, Abbas would be finally free of the whole unity charade, and at absolutely no internal political cost for him, because Abbas wouldn’t face the dilemma of whether or not to extradite suspects or accept external investigation – Abbas has no de facto authority or control whatsoever over either the suspects or the actual “scene(s) of the crime(s)”. This means that the “Abbas side” is not only strategically superior in this respect, but a free-rider; and as I mention in the post, this might not have been so easy for the “Abbas side,” if the new ad hoc declaration had stuck to the July 1, 2002 date for retroactive temporal jurisdiction – because this might have put some PA/PLO/Fatah leaders in the path of the ICC due to their activities during the Second Intifada.

The way I see it, the only real backfire risk for the (relevant) Palestinians comes from Israel, where possibilities are endless when it comes to overreaction. I can’t tell of course if the Palestinians are simply dismissive of this risk, or if they’re fully aware and think the possible reward outweighs the risk (perhaps only in the cynical sense of cutting off the nose to spite the face), or if the Palestinians are realistic with respect to both risk and reward, but also truly desperate, as el roam seems to think. I guess that it’s a mix of all three.

Events and Announcements: January 25, 2015

by Jessica Dorsey

Call for papers

  • International Colloquium – Current Issues of Agricultural Law in a Global Perspective, Scuola Superiore Sant’Anna Pisa, September 17-18, 2015. The Scuola Superiore Sant’Anna and the Institute of Law, Politics and Sustainability are pleased to announce the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective. The Colloquium is intended to be an opportunity for Post Docs and Ph.D Candidates to present and discuss their research results and methodological approaches in a supportive environment. The aim is to build a community of early career researchers interested in agricultural law and its intersections with other legal areas. We welcome both theoretical and empirical papers as well as studies on issues at the local, regional and international levels. The main topics include: Natural Resources and Environmental Protection at the cross-roads with Agricultural Law; Agricultural models and People’s Rights; Agri-Food Production: Tradition and Technologies; International Trade Agreements, Investment Law and Agriculture. Those interested should submit a short CV and 400 word abstract to colloquium [at] sssup [dot] it no later than April 3, 2015. For full details, including information about application processes, please see the official Call for Papers

Announcements

  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) Herzliya would like to invite you to next session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, January 28, 2015, 18:30 in room C110 (Arazi-Ofer Building, 2nd floor) at the IDC. In this session Adv. Efrat Bergman-Sapir, the Director of the Legal Department of the Public Committee Against Torture in Israel will discuss: Torture under the Protection of the Law? From HCJ to CIA (following the release of the U.S. Senate Torture Report). Following the presentation, there will be an open round table discussion. Please note that the session will be conducted in Hebrew. The meeting is free and open to the public. If you wish to attend the meeting please register in advance via forum [at] alma-ihl [dot] org.

Our previous events and announcements post 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: January 17-23, 2015

by An Hertogen

This week on Opinio Juris, we hosted a symposium on International Law as Behavior, following a workshop at the University of Georgia in late 2014. Elena Baylis discussed the methodological, theoretical and conceptual questions that need to be grappled with when studying international law as behavior, while Galit Sarfaty provided insights from anthropology for the study of international law behavior. More specific issues were dealt with in posts by Jean Galbraith, who reflected on the use of deadlines in international law, Tim Meyer, who described instances of epistemic cooperation as a way of encouraging states to coordinate their behavior, and Harlan Cohen, who addressed the puzzling phenomenon of precedent in international law. Tomer Broude applied behavioural theory to the ongoing negotiations on the Trade in Services Agreement (TiSA), and Harlan Cohen closed the symposium with reflections on the agenda for the study of international law as behavior.

The Palestinian ratification of the Rome Statute and its article 12(3) declaration was the subject of extensive commentary. Kevin disagreed with Nimrod Karin’s posts on Just Security that these steps amount to “lawfare”. He also argued why an investigation into Arafat’s death would be problematic. The issues of settlements in the West Bank was discussed in Ido Rosenzweig’s guest post and by Kevin who explained why the Palestinian Authority cannot use an ICC investigation as leverage to freeze settlement construction.

Foreign affairs law issues came up in Peter’s discussion of the constitutionality of Boehner’s invite to Netanyahu in light of precedents where the Logan Act was invoked, Julian’s argument that President Obama needs congressional approval to lift the trade embargo on Cuba, and Julian’s analysis whether a US-Iranian nuclear deal should take the form of an article II treaty with its requirement of congressional approval.

In other posts,  Fox News came under fire from Kevin for its report on Paris’ “no-go” zones and from Deborah over its factual inaccuracies in reports on Muslims in the UK and France. Kristen updated us on the Haiti Cholera case where the SDNY upheld the UN’s immunity, and Kevin posted a youtube video of a protest song on Australia’s detention centre on Manus Island

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

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

No, Going to the ICC Is Not “Lawfare” by Palestine

by Kevin Jon Heller

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

Does President Obama Need Congress’s Approval to Sign a Nuclear Deal with Iran? Can Congress Force Him to Get Their Approval?

by Julian Ku

The fight between President Obama and Congress over Cuba policy is nothing compared the brewing struggle over a U.S.-Iran agreement over Iran’s nuclear program. I noticed this little foreign affairs law nugget today from the WSJ’s report of this ongoing struggle (emphasis added):

In the Senate, Mr. Menendez, of New Jersey, is co-author of a bill that seeks to impose new, escalating sanctions on Tehran if negotiators fail to conclude an agreement limiting Iran’s nuclear program before the end of June, the diplomatic deadline.

A second piece of legislation, promoted by the committee’s new chairman, Sen. Bob Corker (R., Tenn.), seeks to give Congress the power to either approve or reject any nuclear agreement reached with Tehran.

Senior administration officials who testified before the committee said the White House would oppose both bills.

Deputy Secretary of State Antony Blinken said the White House doesn’t view an agreement with Iran as a treaty that requires Senate approval, but a matter of “executive prerogative.”

In general, I think the President has broad discretion under U.S. statutes to impose or lift sanctions on Iran, and although I haven’t looked at the Iran sanctions in detail, I bet the President has broad powers to waive sanctions without going back to Congress. The White House is certainly acting like that’s the case, although the devil is in the details.

The Haunting “I Cannot Recall (Ballad of Manus Island)”

by Kevin Jon Heller

Not surprisingly given where I perch on the political spectrum, I love protest songs. One of my favourite jogging playlists is a disparate collection of classics — Buffalo Springfield’s “For What It’s Worth,” Barry McGuire’s “Eve of Destruction,” Country Joe and the Fish’s “I Feel Like I’m Fixin to Die Rag,” Paul Revere and the Raiders’ “Indian Reservation,” Phil Och’s “I Ain’t Marching Anymore” (the greatest anti-war song ever), and a bunch of others.

I’ve now added a new song to my playlist: Peter Joseph Head’s “I Cannot Recall (Ballad of Manus Island),” a very unusual jazz/spoken-word hybrid about Australia’s horrific detention centre in Papua New Guinea. Manus Island has been much in the news lately, because the refugees detained there have gone on a hunger strike — and tried to kill themselves by swallowing razor blades and laundry detergent — to protest their confinement and living conditions. Here is the YouTube video; the spoken words seem to be based on the transcript of a lawsuit involving the detention centre:

You can read about the Melbourne-based Head here, and you can find a higher-quality recording of the song here. I’ve embedded the YouTube video so readers can see images of Manus Island.

Listen. Read. Learn.

Protest.

H/T: Bianca Dillon.

Is Boehner’s Netanyahu Invite Unconstitutional?

by Peter Spiro

John Boehner has invited Bibi Netanyahu to address Congress. There’s a modern tradition of foreign leaders appearing before the legislature (list here). I’m willing to bet that every single one of those appearances was pre-cleared with the State Department or White House in advance.

I’m no student of Middle East politics, but it’s seems pretty clear that the the White House and the congressional GOP leadership are at loggerheads on US policy here and that the Boehner invitation is meant to advance the GOP (and Israeli) position on Iran. In the past, when members of Congress have gone freelance on foreign policy there’s been a tradition of waving around of the Logan Act, which provides:

Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

It happened most prominently when Jim Wright played footsie with Nicaragua’s Sandinista regime in the 1980s. It was suggested as a problem as recently as 2007 when Nancy Pelosi visited Syria against Bush Administration wishes. As conservative commentator Bob Turner argued in a Wall Street Journal op-ed (“Illegal Diplomacy“):

consider this statement by Albert Gallatin, the future Secretary of the Treasury under President Thomas Jefferson, who was wary of centralized government: “it would be extremely improper for a member of this House to enter into any correspondence with the French Republic . . . As we are not at war with France, an offence of this kind would not be high treason, yet it would be as criminal an act, as if we were at war . . . .” Indeed, the offense is greater when the usurpation of the president’s constitutional authority is done by a member of the legislature — all the more so by a Speaker of the House — because it violates not just statutory law but constitutes a usurpation of the powers of a separate branch and a breach of the oath of office Ms. Pelosi took to support the Constitution.

No intent here to compare Netanyahu and Assad, but the logic of presidential control applies in both cases. (This isn’t about actual prosecution under the Logan Act. No one is ever actually prosecuted under the measure; it’s more a focal point for highlighting structural aspects of foreign relations.) In both cases, presidential powers are “embarrassed” in the terms of Curtiss-Wright. Will the Wall Street Journal take Boehner to task for his move? Somehow I doubt it. (For that matter how could constitutional originalists square this with the Framers’ intent? No head of a foreign state appears to have addressed Congress prior to 1919.)

The White House has called the Boehner move a breach of protocol. If this were happening beyond the political anomalies of the Middle East, I wonder if it might be using some stronger language. In any case the episode will set a precedent for congressional bypass of executive branch foreign policy in interacting, fairly formally, with foreign government leaders. (Will the Speaker host something like a state dinner for Bibi?)

Mind you, I’m not sure it’s a bad precedent (again, leaving aside policy particulars of the ME situation). It’s a fact of life that governmental components are now semi-autonomous foreign policy players in a way that would have been unimaginable in the 18th century. The constitutional custom, norms, “protocols” — whatever you want to call them — are catching up to those realities. Presidents will just have to learn to deal with the new tools of foreign policy dissent.

UPDATE: More thoughts from me on this here. On the originalism point, don’t take it from me, take it from Mike Ramsey, easily the leading expert on originalism in the context of foreign affairs. The VC’s David Bernstein, a consistent Israel/Netanyahu/GOP backer, is also on board in thinking there is a constitutional problem.

Guest Post: The Palestinian Accession to the Rome Statute and the Question of the Settlements

by Ido Rosenzweig

[Adv. Ido Rosenzweig is the chairman of ALMA –Association for the Promotion of International Humanitarian Law; Director of Research – Terror, Belligerency and Cyber at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa; and a PhD candidate at the Hebrew University of Jerusalem.]

Recently the Palestinians submitted (for the second time) a declaration accepting the jurisdiction of the International Criminal Court (ICC) in accordance with article 12(3) of the Rome Statute, thus providing jurisdiction to the International Criminal Court over their territory starting with June 13th, 2014. This was conducted alongside the Palestinian accession to the Rome Statute. That act was described as a political storm, a very aggressive and game changing move by the Palestinians who decided to throw their most important card into the game. That move gave rise to many different questions about its legality and the possible legal and political implications for Israel. In this short comment I address some of these issues and provide my own point of view on them.

What’s at stake here? Currently the ICC has jurisdiction over three types of crimes – war crimes, crimes against humanity, and genocide. It could be argued that with regard to most crime allegations Israel will have the option of raising the complementarity argument in accordance with article (article 17(1)(a) of the Rome Statute). Israel will most likely base her complementarity argument on the outcomes of the 2nd Turkel Report and the ongoing investigation process. However, even if the Israeli complementarity claim stands, there’s still one issue which complementarity won’t resolve, and that’s the settlements.

Where’s the problem? The wording of article 8(2)(b)(viii) goes:

“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;”

There’s a legitimate argument claiming that the settlements and more precisely, the government’s support of the settlements and the transfer of people from Israel to the West Bank, are strictly prohibited and amount to war crimes under the Rome Statute article (“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”). Moreover, since the Israeli High Court of Justice ruled that the Israeli policy regarding the settlements is not justiciable (for example see HCJ 4481/91 Bargil v. GoI), it seems that in this case Israel could be considered as “unwilling and unable” to exercise its jurisdiction with regard to the settlements (or some aspects of that policy).

Will the ICC investigate the Settlements? This question brings us to the other barriers of the ICC admissibility (besides complementarity). The first barrier is gravity (article 17(1)(d)) – the ICC will only deal with severe violations. The interpretations assigned to the population transfer prohibition vary in such way that some from a prohibition to forcibly deport local population into occupied territory, which probably doesn’t include the Israeli settlements in the West Bank, to other interpretations which could include the situation of the settlements.

Another barrier is the territorial jurisdiction of the Palestinians over the settlements. In their recent 12(3) declaration, the Palestinians provided jurisdiction to the court over “the Occupied Palestinian territory, including East Jerusalem“. However, it’s not legally clear over what territory the Palestinian are allowed to provide jurisdiction to the ICC. This is due to the fact that there’s no clear decision or ruling about what constitutes the territory of the Palestinians. In fact, the November 29th, 2012 General Assembly’s resolution 67/19 clearly stated that the issues of the Palestine refugees, Jerusalem, settlements, borders, security and water need to be resolved via negotiations. This can lead to three very important conclusions – (a) It is unclear if the territory where the settlements are located is under Palestinian jurisdiction and therefore if such jurisdiction can be granted to the ICC; and (b) since the very same resolution provided the Palestinians with the upgraded status also left the resolution of borders and settlements to negotiations, it is unclear if the ICC would be allowed to resolve such sensitive political questions through criminal procedures; (c) finally, it can also be argued that by leaving the settlements issue to negotiations, the international community doesn’t regard the transfer of population as a severe act which meets the gravity threshold that was mentioned above.

What’s next? This is where things get even more complicated. Since the questions of the borders and territory are important, they need to be resolved somehow. In my view there are (at least) six potential and interesting ways for these questions to be resolved:

  • Another General Assembly resolution clarifying the situation and thus changing the requirement for negotiations in order to resolve those issues. I think that if the Palestinians were able to achieve that in the first place they would have done so. Therefore it seems that there won’t be a majority in the General Assembly for such a resolution.
  • Security Council resolution on this issue. This is the most farfetched option, as it was the refusal of the Security Council to adopt a relevant resolution that led to the Palestinian Accession to begin with.
  • Decision of the ICC with regard to its jurisdiction. While this could be the main road in this context – letting the ICC prosecutor and after that the Judges, decide on the Court’s jurisdiction, it’s a well known fact that the ICC doesn’t operate rapidly and I believe that the Palestinians won’t be willing to sit down and wait until the ICC issues a decision on that topic.
  • Advisory opinion of the International Court of Justice (ICJ) is probably the Palestinian’s next move. While it’s not a “win-win” situation for the Palestinians as the ICJ might decide against their claim for jurisdiction over the settlements’ territory, it is definitely a “win-no lose” situation where they can gain with a decision in their favor or remain in the same situation as they are now if the ICJ rules against their claim for jurisdiction.
  • The Human Rights Committee, the professional body charged with the implementation and interpretation of the International Covenant on Civil and Political Rights which the Palestinians joined in their first round of ratification of treaties. When the Palestinians come before the committee, one of the decisions the committee will have to make will relate to the treaty’s territorial applicability, and to that end, the committee will have to decide whether Palestinian territory includes the settlements. I doubt that the professional committee will desire to deal with such a hot political and diplomat potato, and anyway, such a review is not scheduled for the upcoming year.
  • Lastly, as was suggested here by my good friend and colleague, Sigall Horovitz, Israel has also the option of joining to the Rome Statute and submitting a declaration under article 124 with an attempt to gain a delay of seven years with regard to the ICC’s jurisdiction over any allegation of war crimes committed by Israel.

It seems that the already complicated Israeli-Palestinian situation just got more complicated, and while it’s unclear what the outcome will be, I’m just not sure that outcome of the Palestinian move was as aggressive as it seemed at first glance. The question of the settlements is obviously broader than the discussion presented above, and in this short comment I presented my thoughts on one specific aspect related to them following the recent developments.

Does President Obama Need Congress to Lift the Embargo on Cuba? Yes.

by Julian Ku

It looks like a big showdown is brewing between the President and Congress over Cuba policy (Here comes 2016 presidential candidate Rubio!).  Some legal commentators have argued, however, that President Obama already has the legal authority to lift all or most of the Cuba embargo without any further action by Congress.  Robert Muse, a lawyer whose practice is all about Cuba sanctions law, has stated that the President has very broad discretion to lift most of the restrictions on trade with Cuba without further congressional action. Is he right?

I am not Cuba sanctions law expert, so it is possible I am missing something.  Since the bulk of the Cuba sanctions are found in regulations issued by the Treasury Department’s Office of Foreign Assets Control pursuant to the Trading with the Enemy Act, it would seem like President Obama could indeed lift those sanctions by simply withdrawing those regulations.  The TWEA has never been read to require sanctions, and President Carter lifted similar sanctions on China without Congress in 1979.

On the other hand, Congress has also enacted two Cuba-specific statutes: the Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091 (“Helms Burton). The latter appears to codify” the OFAC regulations on Cuba that were initially issued under the TWEA. See Section 102(h) (“Codification of Economic Embargo.– The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of this Act.”).  Section 204 in turn “authorizes” the President to lift sanctions only after submitting a determination to Congress that a transitional government in Cuba exists and that the lifting of sanctions will contribute “to the stable foundation for democratic government.” There is also the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211, which imposes further limitations on financial transactions with Cuba and allows no Presidential waiver.

It is worth noting that President Clinton expressed some reservations about the impact of Section 102(h) when he signed the Helms-Burton Act, stating that it”could be read to impose overly rigid constraints on the implementation of our foreign policy.” But Clinton didn’t suggest imposing conditions on when the President could lift sanctions actually violated the Constitution.  Since I assume Congress is the source of the authority to impose sanctions in the first place, it seems reasonable that Congress could impose conditions on when those sanctions can be lifted.  Any argument that those conditions themselves are unconstitutional would be a remarkably aggressive legal argument.

So I don’t think the calls from some quarters for a unilateral lifting of the embargo on Cuba is supportable as a legal matter.  In fact, there are good reasons to doubt the legality of the loosening of sanctions already announced by OFAC.  In any event, there will be lots of legal skirmishing over the next few months on this front. It will be interesting to see if President Obama ever pulls out the “presidentialist” card and tries to argue some of these sanctions laws violate his constitutional authority.  I would doubt it, but then again I never thought he would engage in a separate war in Iraq and Syria with ISIS and change US immigration law without Congress either.

 

International Law as Behavior Symposium: An Agenda

by Harlan Cohen

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

What is the study of “International Law as Behavior”?  At the workshop in November, Elena Baylis, Tomer Broude, Galit Sarfaty, Jean Galbraith, and Tim Meyer (whose chapters/presentations were described earlier) were joined by Kathryn Sikkink, who presented on the role of agency in constructivism, Ron Levi and Sungjoon Cho, who drew upon sociology to study the “fields” of international criminal law and international human rights practice and the social structure of the WTO, respectively, Adam Chilton, who presented on the potential of experimental methods for studying human rights, and Anne van Aaken, who explored behavioral law and economics’ implications for international legal theory.  What, if anything, binds these ten projects together?  Are there lessons to be learned about how these projects and methods can fit together into some greater whole?  These will be topics discussed in the book arising out of this project, but for now, a few thoughts on ways forward.

It can be tempting to see these projects as puzzle pieces, which when assembled in the correct order, reveal a larger picture of the international order. Each brings its own insights: Rational choice sets up testable, generalizable hypotheses about how states might interact given express assumptions about state behavior. Sociology, anthropology, and behavioral law and economics can test those hypotheses against real world scenarios, explaining why specific situations diverge from those expectations, whether as a result of social structures, culture, or human psychology. Experimental methods can help identify the actual preferences of international actors. Constructivist accounts can build upon sociology, anthropology, and psychology to explain where state preferences come from and how they change. Focused primarily on different, overlapping units of analysis—individual actors, the communities in which they practice, the culture in which their embedded, the states on behalf of whom they act, and the larger structures in which those states are embedded, these approaches might seem like natural complements—snapshots taken from one angle, which when spliced together might provide a panoramic view of the international system. Together, these accounts might provide a more complex account of the different processes, preferences, beliefs, and incentives that might drive the vast array of actors who operate in international law, whether grass-root activists, transnational norm advocates, technocratic experts, politicians, bureaucratic careerists, or diplomats. Where these levers converge or diverge may help explain both the emergence of consensus over rules and continued contestation. Successful strategies for achieving particular international goals will flip all the right switches.

But imagining all of these accounts as different harmonies converging in one glorious tune is too simplistic and overly optimistic; Continue Reading…

International Law as Behavior Symposium: Playing the Negotiated Choice Architecture Game – Negative/Positive Listing in Services Trade Agreements

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

How do negotiators of international treaty regimes engage with the ‘choice architecture’ inherent in the treaties they design? Are they aware of their own susceptibility to cognitive biases and do they take into account the behavioral weaknesses of their counterparts and constituencies? Jean Galbraith’s excellent study on human rights treaty flexibility cast light on this question, very neatly demonstrating on the basis of quantitative research that opt-in/opt-out provisions in treaties have significantly differential effects on subsequent choices. In a paper I am writing with Dr. Shai Moses (a former negotiator and affiliated with the Université de Genève) for a forthcoming handbook on trade in services (edited by Martin Roy and Pierre Sauvé), we explore the behavioral dynamics of negotiated choice architecture in the context of international services trade liberalization, and in particular in the ongoing negotiations towards a plurilateral Trade in Services Agreement (TiSA). Here are some of our initial observations on what seems to be going on in Geneva, from a behavioral perspective.

Negative/Positive Listing in Services Liberalization: The Rational Choice Puzzle

Continue Reading…

SDNY Finds UN Immune in Haiti Cholera Case

by Kristen Boon

In an 8 page decision handed down on January 9, Judge Paul Oetken found that the UN is immune in Delama Georges et. al v. UN, the so-called “Haiti Cholera case.” The decision is available at: http://www.ijdh.org/2015/01/projects/united-states-district-court-southern-district-of-new-york/ The finding that the UN is immune rests on two points: first, that the UN did not expressly waive its immunity under the Convention on Privileges and Immunities, and second, that any alleged inadequacy with the UN’s failure to offer a mode of settlement did not trump the requirement for express waiver. Relying on Brzak v. UN, Judge Oetken wrote:

“The Second Circuit’s decision in Brzak v. United Nations requires that Plaintiffs’ suit against the UN be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(h)(3). In Brzak, the Second Circuit unequivocally held that “[a]s the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless ‘it has expressly waived its immunity.’” 597 F.3d at 112 (quoting CPIUN art. II, § 2). Here, no party contends that the UN has expressly waived its immunity. (Statement of Interest at 6 (“In this case, there has been no express waiver. To the contrary, the UN has repeatedly asserted its immunity.”).); (Dkt. No. 43, at 1 (“Waiver is not at issue here.”).) Accordingly, under the clear holding of Brzak, the UN is immune from Plaintiffs’ suit. In addition, MINUSTAH, as a subsidiary body of the UN, is also immune from suit.   … …. “nothing in the text of the CPIUN suggests that the absolute immunity of section 2 is conditioned on the UN’s providing the alternative modes of settlement contemplated by section 29. See Tachiona v. United States, 386 F.3d 205, 216 (2d Cir. 2004) (“When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used.” (internal quotation marks omitted) (interpreting the CPIUN)). As the Second Circuit held in Brzak, the language of section 2 of the CPIUN is clear, absolute, and does not refer to section 29: the UN is immune from suit unless it expressly waives its immunity.”

Although a decision upholding the UN’s immunity has always been predicted, the spirited hearing on the UN’s privileges and immunities in October provided an opportunity to explore other ways to frame the issue.   In particular, Judge Oetken’s analysis of the language of the treaty (the UN shall provide an appropriate mode of settlement) suggested that effective dispute resolution in private law matters was not a matter of discretion.

The ruling here is consistent with other recent mass torts challenges against the UN, for example, the Mothers of Srebrenica case in the Netherlands where the UN’s absolute immunity was upheld following the massacre of 1996. Nonetheless, two important distinctions with the Srebrenica case are apparent. First, an alternative was available: proceedings against the Dutch state have been successful in at least one case so far.  Second, the Srebrenica cases clearly involved questions of operational necessity which are typically considered public or policy matters.  Under the CPIUN, the UN is not under an obligation to provide appropriate modes of settlement if the matter is not of a private law nature.

The plaintiffs have indicated that they will appeal the ruling.   Meanwhile, two related actions are pending in US district courts.

International Law as Behavior Symposium: The Sociology of International Precedent

by Harlan Cohen

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

The Precedent Puzzle

Every year, the Jessup team at the University of Georgia comes to me for a crash course in international law, and every year, I carefully explain to them that they can’t simply argue from precedents (as they would in their other moot court competitions), even precedents from the International Court of Justice, because precedent is not a source of law in international law as it is in domestic law. Nonetheless, I tell them—they, and their opponents, and the judges, will argue from precedent, from the ICJ and beyond, just as everyone in international law does. The trick, I tell them, is to be able explain why the supposedly irrelevant really is relevant.

This is emblematic. On the one hand, we are taught that as a matter of doctrine, judicial decisions construing international law are not in and of themselves law; they are not generally binding on future parties in future cases, even before the same tribunal. On the other hand, we also know that precedent is ubiquitous—from international arbitration, to international criminal law, to international human rights, precedents are argued and applied.

It’s not just that courts and tribunals cite their own precedent. On the contrary, courts and tribunals regularly cite the decisions of other unrelated ones: The precedents from one regional body are argued to others; precedents from human rights courts are argued to investment tribunals; precedents from ad hoc criminal tribunals are applied to domestic civil judgments. Nor is this phenomenon limited to arguments from, to, or in the shadow of international tribunals. The invocation of tribunal decisions as precedent has become part of the fabric of international legal discourse, structuring everyday arguments over the meaning of international law rules even far outside the shadow of any court. Russian and Crimean political leaders invoke the ICJ’s Advisory Opinion on Kosovo’s declaration of independence as precedent for the legality of Crimea’s secession and absorption into Russia. Advocacy groups like Human Rights Watch invoke ICTY decisions in open letters to governments on the legality of tactics used to fight terrorist groups. Academics invoke ICJ decisions in debates over the legality of the use of force against non-state actors. And perhaps most surprisingly, the Department of Justice responds to decisions of the ICTY, European Court of Human Rights, and the U.N. Committee Against Torture in internal, confidential government memoranda. Together with other interpretations of international law by expert committees, by international organizations, or by states, these decisions vie for status as authoritative statements of what international law requires.

But if this puzzling phenomenon is ubiquitous and even widely recognized, it has nonetheless, remained largely unexplained. Why, in the absence of any doctrinal requirement (in some cases, even permission), do some interpretations of international law by some courts, tribunals, or other bodies take on the force of precedent? Why do some interpretations come to be seen as authoritative, allowing some actors to wield them and forcing others to respond?

Continue Reading…

International Law as Behavior Symposium: Studying International Law as Behavior

by Elena Baylis

[Elena Baylis is Associate Professor of Law at the University of Pittsburgh]

In my role as commentator for the in-person symposium that preceded this online symposium, I took on the task of identifying common themes among the symposium papers. This essay focuses on a few of the ideas drawn from the papers as a whole.

Treating international law as behavior engenders several kinds of complexity centered on a set of classic epistemological questions: what do we know and how do we know it? By using theoretical and methodological approaches drawn from sociology, anthropology, international relations, and other disciplines, we can observe aspects of international legal behavior that are not accessible through traditional legal analysis. The symposium participants describe international legal actions such as development of expertise, engagement with deadlines, and epistemic cooperation, by a wide variety of actors, including individuals, institutions, organizations, states and divisions thereof, and networks and communities. Even apart from the value of the analysis developed to explain and categorize this behavior, there is some satisfaction simply in exposing these many actors and modes of action to our view. However, doing so requires grappling with difficult methodological, theoretical, and conceptual questions.

Continue Reading…

Why the Palestinian Authority Should Avoid Arafat’s Death

by Kevin Jon Heller

So this is a well-intentioned but problematic idea:

The Palestinians want the International Criminal Court (ICC) to launch an investigation into the death of Yasser Arafat, a senior Fatah official announced on Sunday.

Jamal Muheissen, member of the Fatah Central Committee, claimed that Israel was responsible for the death of Arafat, who died in November 2004.

“This file will be presented to the International Criminal Court,” Muheissen told the Palestinian Shms News Agency. “We want to bring the Israeli occupation to trial for every crime it committed against our people.”

[snip]

Arafat, who signed the 1993 Oslo interim peace accords with Israel but then led an uprising after subsequent talks broke down in 2000, died aged 75.

His death came four weeks after he fell ill following a meal, suffering from vomiting and stomach pains, in his Ramallah compound while surrounded by Israeli tanks.

To begin with, even if the Court had jurisdiction, it is unlikely that the OTP would investigate Arafat’s death. There are indeed significant questions about his death, and it would not surprise me if Israel is responsible for it. But the case is far from clear, and the OTP would be hard-pressed to investigate it effectively. So the OTP would almost certainly choose — if it ever opened a formal investigation into the situation in Palestine, which I continue to strongly doubt — to focus on much more obvious crimes committed by Palestine and Israel.

The jurisdictional issue, however, is the real kicker. Arafat died in 2004, so in principle his death is within the ICC’s temporal jurisdiction. And unlike my friend Dov Jacobs, I don’t think Palestine is categorically prohibited from accepting the Court’s jurisdiction earlier than 13 June 2014 through a second Art. 12(3) declaration. But does Palestine really want to force the Court to determine whether it was a state in 2004? The first declaration was very smart — although the judges will still have to decide at some point on Palestinian statehood, the fact that the declaration does not purport to accept jurisdiction prior to UNGA Resolution 67/19 makes it very unlikely the judges will second-guess the OTP. All bets would be off, though, with a second declaration that looked back to 2004. There would be no conflict between the judiciary and the OTP if the judges refused to conclude that Palestine was a state when Arafat died; on the contrary, the OTP seems to believe that Palestine was not a state — at least for purposes of ICC membership — until the UNGA upgraded its status. Moreover, the judges can’t exactly relish having to determine not only when Palestine became a state, but also the proper test for making that determination. So we can expect them to take a very conservative approach to Palestinian statehood.

There is little question that the case for Palestine’s statehood has received a significant boost by its membership in the ICC. The last thing Palestine should do now is risk undoing all of its good work by pushing the Court to investigate an unclear event committed more than a decade ago.

International Law as Behaviour Symposium: Epistemic Cooperation

by Tim Meyer

[Tim Meyer is an Associate Professor of Law at the University of Georgia School of Law.]

For the last several decades, the central problem in much institutionalist scholarship has been how to design what I refer to as credible commitment regimes. Such regimes establish, or create fora in which states can later establish, substantive rules of conduct to coordinate state behavior across an increasingly wide range of issues. On the assumption that rational, self-interested states will cheat on these conduct rules if it is in their interest to do so, credible commitment regimes also create enforcement mechanisms to alter state incentives. Monitoring, verification, and dispute resolution mechanisms publicize violations, authorize retaliation, and in some instances award monetary damages. For example, the WTO agreements establish rules on the kinds of limits states may place on international trade. The WTO also creates the Dispute Settlement Body, which serves as a vehicle to further clarify the content of those rules, publicize violations, and reduce the cost of retaliation by defining when it is legally permissible.

Below the radar, however, a class of international agreements have emerged that seek to coordinate state behavior through the production and regulation of information, rather than the creation of credible commitments. Following a robust literature on epistemic communities, I refer to these international regimes as epistemic institutions or epistemic agreements, and the phenomenon as epistemic cooperation. In its purest form, epistemic cooperation does not legally require states to take action on the regulated issue. Instead, it merely requires them to produce and share information with each other. The aim is to encourage states to coordinate their activities based on this information, rather than based on a legal rule made credible through international institutions.

Examples of epistemic institutions that work in this way abound. Continue Reading…

International Law as Behavior Symposium: TIME’S UP – Deadlines as Behavior in International Law

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School]

One mechanism through which international law regulates the behavior of states and other actors is deadlines.   Although little studied, deadlines appear throughout international law, especially in treaty regimes. Drawing on a future book chapter, in this post I describe some of the roles played by deadlines in international law. I also consider what insights research on the use of deadlines in domestic contexts might have for good and bad ways to use deadlines in international law.

Uses of Deadlines in International Law

Deadlines occur throughout international legal practice. We find them in the negotiation of treaties; in relation to the signature and ratification of treaties; in the provisions of treaties; in exchanges among nations and other actors regarding international legal obligations; and in the functioning of international organizations and tribunals.

Deadlines can have quite different international legal effects. Some deadlines are purely political, such as many deadlines in negotiations. Other deadlines set limits on access to legal opportunities, like the date a treaty closes for signature. Still other deadlines mark the legal boundary between compliance and non-compliance with obligations under international law, such as substantive or reporting deadlines written into treaties.

For examples of these different kinds of deadlines, consider the Chemical Weapons Convention. Negotiating deadlines were used during its creation. Its entry-into-force date served as the date that the Convention closed for signature, triggering several last-minute signatures. This date also served as a symbolic deadline that galvanized the advice-and-consent process in the U.S. Senate. The content of the Convention itself is also laden with deadlines. To take one prominent example, the Convention requires parties to complete destruction of their chemical weapons within ten years of the Convention’s entry into force – with the possibility of an additional extension of up to five years. The United States and Russia have overshot this deadline and are therefore in violation of their obligations. Finally, deadlines feature in the work of the international organization created by the Chemical Weapons Convention (the OPCW), as with its recent use of deadlines in relation to Syria.

As this example suggests, deadlines can prove hugely important to international law. Yet they have received little attention for legal scholars. Given how integral deadlines can be to the functioning of treaty regimes, it is important to think about they can be best deployed.

Deadlines and Behavior: Some Insights from Domestic Research

Although deadlines have received little study in international law, scholars have studied deadlines in lots of other contexts. As examples, consider the following findings:  Continue Reading…

International Law as Behavior Symposium: Toward an Anthropology of International Law

by Galit A. Sarfaty

[Galit A. Sarfaty is the Canada Research Chair in Global Economic Governance and Assistant Professor at the Faculty of Law, University of British Columbia]

With the growing importance of global legal institutions, new forms of global law, and transnational social movements around legal issues, anthropologists are studying the multiplicity of sites where international law operates. Scholars have examined the practices of international courts and tribunals and their conceptions of justice in relation to those of local communities. They have studied the global impact of law-oriented nongovernmental organizations on postcolonial consciousness. They have also analyzed the production of international treaties by transnational elites and their localization and translation on the ground. Given the critical need to uncover how international law is produced and operates in practice, legal scholars can gain insights from anthropological literature and adopt ethnographic tools in their own analysis. As I will outline below, anthropology offers unique insights in understanding international law behavior.

What is an Anthropological Approach to International Law

Anthropological theory and methods enables the study of how international law operates in practice, from how it is produced on a global scale to its localization on the micro-level. Through ethnographic research, anthropologists analyze individual actions, systems of meaning, power dynamics, and the political and economic contexts that shape the operation of international law. They recognize disjunctures between how laws are written and how they are implemented on the ground, as well as further variations in how they affect different communities. In the context of Harold Koh’s transnational legal process theory of norm compliance, an anthropological approach sheds light on the norm emergence and internalization phases by which international norms penetrate domestic legal systems on the local level.

Ethnographic research involves case-oriented study, including long-term fieldwork and in-depth interviews. In the context of studying international law, fieldwork is frequently multi-sited to allow researchers to analyze such phenomena as the transnational circulation of global norms and local settings where multiple legal orders intersect—or what scholars call “global legal pluralism.” By tracking the flow of laws, institutions, people, and ideas across locales and jurisdictions, multi-sited “deterritorialized” ethnography is a useful tool in the study of international law.

Anthropological research aims at answering a question rather than testing a hypothesis. Unlike other methods, it is not based on prior assumptions or models. Rather, hypotheses and theories emerge from the data, and are constantly evaluated and adjusted as the research progresses. Interviews are usually unstructured or semi-structured with open-ended questions developed in response to observations and ongoing analysis. The questions are designed to seek respondents’ interpretations of what is happening and allow them to describe problems, policy solutions, and their rationales in their own words.

What Anthropologists of International Law Study

While there are numerous areas of focus for anthropologists of international law, I will very briefly highlight a few important ones here: (i) the cultures of international organizations and international tribunals; (ii) the transnational circulation and localization of international legal norms; and (iii) the knowledge practices and technologies of governance in international law.

The Cultures of International Organizations and International Tribunals

Continue Reading…

International Law as Behavior Symposium: An Introduction

by Harlan Cohen

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

This past November, the University of Georgia School of Law and the ASIL International Legal Theory Interest Group convened a book workshop on “International Law as Behavior,” at Tillar House, ASIL’s headquarters in Washington, DC. The workshop brought together scholars working in variety of different fields, including anthropology, behavioral law and economics, constructivist international relations theory, organizations theory, rational choice, social psychology, and sociology, to discuss how these approaches might best be applied to the study of international law, how these approaches can complement each other, the opportunities and challenges of working across these fields, and the development of a common language and tools to study how international actors actually behave. Participants included Anne van Aaken (University of St. Gallen), Elena Baylis (University of Pittsburgh School of Law), Tomer Broude (Hebrew University Faculty of Law), Adam Chilton (University of Chicago School of Law), Sungjoon Cho (IIT Chicago-Kent College of Law), Jean Galbraith (University of Pennsylvania Law School), Ron Levi (University of Toronto Global Affairs and Sociology), Tim Meyer (University of Georgia School of Law), Galit Sarfaty (University of British Columbia Faculty of Law), and Kathryn Sikkink (Harvard Kennedy School). A book based on presentations at the workshop that I will be editing will follow.

The workshop and book arise out of an intuition that there is more international legal scholars can learn from sophisticated work on legal behavior developing in other disciplines and more that scholars drawing on those disciplines can learn from each other. International law and legal scholars have long borrowed from a variety of disciplines to help understand the functioning of the international system. Important work on international law, including work of the New Haven and English Schools, has drawn on Law & Society, Anthropology, Constructivism, Linguistics, and Sociology. Drawing on international relations and economics, scholars have invoked principles of rational design to explain the shape of international agreements and international organizations and the choice between hard and soft law. Economic analysis has helped explain cooperation and compliance. Most recently, international law scholars have begun to draw insights from behavioral law and economics and psychology.

Instead of informing and enriching each other, however, these varied approaches have often developed in parallel and isolation, siloed off from the insights of the others. Drawing from distinct fields with their own languages and methods, scholars pursuing these approaches have often ended up talking past each other – if they spoke to each other at all. (There are obviously exceptions to these trends, including contributors to this project; readers of these posts know who you are.) The goal of this workshop and the edited volume to follow is to begin to bridge those gaps and foster the conversation between methods and approaches that might form the foundation for a study of international law as behavior. How do international actors actually behave and what drives their behavior? How and when is their rationality bounded by psychology? How do they operate as members of groups and recipients of culture? How do they write and follow organizational scripts? Dialogue between these approaches should only help to enrich all of them, suggesting new paths, blindspots, and even wrong-turns for each. Some of these methods will fit together well; others, whether because of initial assumptions or research styles and demands, may not. And, different approaches may have an advantage depending on the specific questions about international behavior being asked. But it is exactly these questions that we hope to explore.

Over the next few days, Galit Sarfaty, Jean Galbraith, Tim Meyer, Elena Baylis, Tomer Broude and I hope to give you a flavor of the presentations and conversations at the November workshop. Thank you to Opinio Juris for allowing us to showcase some of this project here. We look forward to hearing your thoughts and to kicking off Opinio Juris’ tenth year in style!

Weekly News Wrap: Monday, January 19, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • A delegation of US congressional Democrats began a three-day visit to Cuba to discuss expectations for the normalisation of relations between the United States and the island nation.

UN/World

Never Thought I’d See the Day

by Deborah Pearlstein

Picking up on Kevin’s post about Fox News’ reporting on the terrorist threat (or something) in Europe, it’s worth noting that in addition to reporting that multiple areas of Paris were now “no go” zones, Fox also reported “poll results” purporting to show that 69% of Muslims in France support ISIS; and an ‘expert’s’ assertion that Birmingham, England is a “totally Muslim city where non-Muslims don’t go in.” Fox competitor CNN is, naturally, all over it. The factual inaccuracies eventually got so bad that after trying to correct them item by item, Fox eventually surrendered (so to speak), issuing a general apology to “the people of France and England.” Diplomacy in action.

Events and announcements: January 18, 2014

by An Hertogen

Calls for applications

  • The 11th Annual Conference of the European Society of International Law will take place in Oslo, Norway, from September 10-12, 2015.  The conference will be hosted by the PluriCourts Center on the Legitimate Roles on the Judiciary in the Global Order, University of Oslo. Entitled “The Judicialization of International Law – A Mixed Blessing?”, the conference will address the international law aspects of the increased judicialization from an interdisciplinary perspective. The conference will feature plenary sessions with invited speakers, and a number of agorae with speakers selected on the basis of a call for papers and agora proposals. The event will also offer poster sessions for early career scholars following a call for posters.  The deadline for the submission of abstracts and proposals is January 31, 2015. More information is available here.
  • The fourth Max Planck Masterclass in International Law will take place at the Max Planck Institute in Heidelberg, Germany, from May 4-6, 2015. Professor Emmanuelle Tourme-Jouannet (Sciences Po, Paris)  will hold the class on the topic of “Global Justice and the Purpose of International Law”. During those three days, participants will discuss with Professor Tourme-Jouannet aspects of her work, including “What is a Fair international Society?” (2013) and “The Liberal-Welfarist Law of Nations” (2012). For more information see the call for participants.
  • Koç University Law School, Boston College Law School and the International Society of Public Law invite submissions for a full-day workshop on unamendable constitutional provisions, to be held on the campus of Koç University Law School in Istanbul on Tuesday, June 9, 2015. Submissions are invited from scholars of all ranks, including doctoral students on any subject related to unamendability, including both formal and informal forms. The convenors intend to publish the papers in an edited book or in a special issu e of a law journal. Interested scholars should email an abstract by March 15, 2015 to judy [dot] yi [at] bc [dot] edu on the understanding that the abstract will form the basis of the pre-workshop draft to be submitted by May 15, 2015. Scholars should identify their submission with the following subject line: “Koç University—Abstract Submission—Unamendability.” More information is available here.
  • The Graduate Institute is looking to hire promising scholars at the rank of Assistant Professor in INTERNATIONAL LAW with a specialisation in one of the following fields: International Economic Law / Protection of Human Dignity / International Environmental Law / Transnational Law. For more information, candidates are encouraged to consult the Institute’s website.
  • The Hebrew University of Jerusalem and the Freie Universität Berlin are now accepting applications for the second round of Doctoral and Post-Doctoral fellowships in the joint 3-year interdisciplinary Doctoral Program “Human Rights under Pressure – Ethics, Law and Politics” (HR-UP), funded by the German Research Foundation (DFG) and the Einstein Foundation Berlin. HR-UP offers young researchers a unique opportunity to conduct cutting-edge research on the most pressing contemporary challenges for human rights, including issues arising from crises and emergencies, globalization and diversity. Doctoral researchers admitted to the program will receive competitive fellowships and mobility funds for research terms at the partner university. They will be jointly supervised by senior researchers from Germany and Israel, and participate in both jointly and locally held courses, including a two-week introductory intensive course in Jerusalem, joint interdisciplinary colloquia, research ‘master-classes’, and three annual summer schools in Berlin. The program also includes two post-doctoral positions (one in each university). The deadline for applications is January 27th, 2015. For further information, and to apply, please visit  www.hr-up.net.
  • The Peace and Justice Initiative (PJI) is pleased to announce its call for applications for a funded fellowship for projects designed to enhance the implementation of the Rome Statute of the International Criminal Court (ICC) and/or internships in international criminal law. It is envisioned that the fellowship recipient will undertake an internship or visiting professional position at one of the international courts/tribunals in The Hague or undertake a project related to the promotion or enhancement of international criminal law in domestic jurisdictions. The fellowship will run for a duration of 6 months and will involve funding sufficient for the successful applicant to carry out their internship or project. Further information about the fellowship can be found here and is subject to conditions. An application form can be accessed here. Applications are to be received via email by 28 February 2015 at info [at] peaceandjusticeinitiative [dot] org.

Announcements

  • TDM Journal has published a new issue on Dispute Resolution from a Corporate Perspective. This TDM special edited by Kai-Uwe Karl (General Electric), Abhijit Mukhopadhyay (Hinduja Group) and Heba Hazzaa (Cairo University) brings the corporate voice to the debate about reforming alternative dispute resolution and effective conflict management.

Our previous events and announcements post 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. 

Unfortunately, the ICC Doesn’t Work the Way Palestine Wants It To

by Kevin Jon Heller

According to this report in the Times of Israel, the Palestinian Authority would be willing to forego the ICC if Israel agreed to freeze its settlement activity:

RAMALLAH — A senior Palestinian official said Sunday that the first subject to be brought before the International Criminal Court at The Hague in the Palestinian Authority’s legal campaign against Israel would be settlement construction.

The official told The Times of Israel that land seizures in occupied territory constituted a clear violation of international law. Still, he noted that the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction, and added that the Palestinian Authority had conveyed to Israel an official message to that effect, through Jordan and Egypt.

Unfortunately, the Rome Statute does not allow Palestine to pursue this kind of bargaining strategy. To begin with, now that Palestine has submitted an Article 12(3) declaration and ratified the Rome Statute, the Palestinian Authority (PA) has no say in what, if anything, the OTP decides to investigate. If the OTP wants to investigate only Hamas’s rocket attacks, it can. If it wants to investigate only Israeli and Palestinian crimes in Gaza, ignoring the settlements entirely, it can. If it wants to investigate the settlements but only after dealing with all of the crimes in Gaza, it can. The PA needs to understand that. If it wanted to ensure that the OTP investigated settlements, it needed to avoid ratifying the Rome Statute and submit an Article 12(3) declaration that was limited to the West Bank. I don’t think the OTP would have acted on such a declaration, but that route would have at least limited the OTP to accepting or rejecting the PA’s terms — the OTP would not have had jurisdiction to examine events in Gaza. Once Palestine ratified the Rome Statute, however, it lost even that limited control. Now investigative and prosecutorial decisions are in the hands of the OTP.

For similar reasons, the PA could not “withdraw… the appeal to the ICC” if Israel froze the settlements. The OTP could investigate and prosecute settlement-related activity even if the PA was completely opposed to it doing so. (Just as Israel’s opposition to the Court is legally irrelevant.) The PA could not even prevent the OTP from investigating settlement activity by immediately withdrawing from the ICC — its Article 12(3) declaration would still be in effect, and Palestine would remain a member of the Court for another year. At best such a dramatic act would simply force the OTP to make investigative decisions more quickly.

The ICC might have been an effective bargaining chip with Israel (and Israel’s client state, the US) before the PA submitted the Article 12(3) declaration and ratified the Rome Statute. Once the PA took those steps, though, its leverage ended. Now the fate of the investigation into the situation in Palestine lies solely in the hands of the OTP.

Make Sure to Bring This Visual Aid When You Navigate to the Louvre

by Kevin Jon Heller

Sorry, Lonely Planet, there’s a new travel sheriff in town: Fox News. Witness this map, created by a guest on Fox & Friends to illustrate the eight “no-go” zones — areas under de facto Muslim control — in Paris (out of 741 in France itself):

thefaceofamanwhoknowswhathestalkingabout

Peterson, a former Air Force pilot, went on to describe Paris as “pretty scary” and compared it to Afghanistan, Iraq, and Kashmir. And the Fox & Friends host — an animatronic human being, model name “Elisabeth Hasselbeck” — simply nodded her head knowingly throughout his presentation.

To be fair, this kind of willful ignorance does have an upside: it makes people who watch Fox News much less likely to visit Paris. That’s good for all of us. In fact, the more Fox News viewers think of Europe in general as some kind of 70s-style Soviet hellhole, the better.

(Another upside: I’m supposed to be in Paris in a couple of months. After I get my traditional falafel on the Rue des Rosiers, I’m adding “conflict journalist” to my CV.)

H/T: Richard Metzger at Dangerous Minds. Make sure to read his post to see the hysterically funny French reaction to Peterson’s segment.

Weekend Roundup: January 17, 2015

by Jessica Dorsey

This week, we celebrated Opinio Juris’ 10th anniversary, with our permabloggers weighing in with their thoughts on the last decade of blogging. Julian kicked the discussion off with how the legal blogosphere has changed over the last ten years. Roger reflected on blogging and the marketplace of ideas. In Peter’s musings, he explored the evolution of international law as well as the role blogging has played and will play in the future. Duncan shared nine realizations that he has made over the last decade through blogging and teaching. Making international law no longer the invisible college but visible and accessible was at the heart of Peggy’s contribution.

Chris asked about the must-reads and key scholarly texts in international law over the last decade. Through tracing her own journey into international law, Deborah thanked Opinio Juris and the readers for the conversation. Kevin reflected on how blogging enhanced his career, and helped him to develop into the nicer, kinder blog version of himself he is today. Jens touched on the real-world impact blogging can and does have, while hoping for a continued discourse. Kristin capped the joviality off by wishing the blog a happy birthday and looking forward to the continued discussion.

Other contributions of note this week were two guest posts. The first from Rebecca Hamilton posed the question: When should the ICC call it quits? The second, by Oliver Windridge, was a great overview of the activities of the African Court of Human and Peoples’ Rights from 2014.

Duncan congratulated Dean Andrew Guzman on his new appointment at USC’s Gould School of Law and Kevin pondered the case of Roger Ver and whether renouncing US citizenship for “selfish economic reasons” makes you a bad person. And as usual, I wrapped up the week’s headlines and posted Events and Announcements.

Thanks for following us this week, and over the last decade. We’re very grateful to you readers for being part of the development of Opinio Juris and hope that the conversation continues far into the future.

Happy Birthday OJ!

by Kristen Boon

Although I’ve only been a regular OJ blogger for two years now, I feel like I’ve known OJ since it was born.

Chris Borgen, Julian Ku and I have been friends since we all worked together at Debevoise and Plimpton in New York years ago.  Over the years I’ve gotten to know Peggy, Roger, Ken, Deborah, Duncan, and at least by email, all the others! I was extremely honored when Chris invited me to join the crew in 2012. Chris, I owe you a big thanks for this incredible opportunity.  One of my most professionally rewarding occupations is to be part of this conversation, as Deborah puts it, about international law today.

I have used blogging in a variety of ways over the last 2 years. I’ve used it as a vehicle to test ideas see here and here on topics related to the Security Council. I’ve used it to report on recent developments, for example, my many posts on the Haiti Cholera case against the UN. I’ve also used it as a venue for opinion pieces on subjects of current concern, whether on academic topics close to my heart like Jus Post Bellum or newsworthy international law developments, including a post here on the relationship between sanctions and the 2013 deal with Iran, a post here on Bashir’s interest in coming to the 2013 General Assembly, and the East China Sea dispute available here.   Each type of blogging brings its own rewards, and puts one in contact with different networks of academics, practitioners, journalists, and observers, from around the world.

Blogging has also prompted me to follow subjects I’m interested in – like the UN – in greater detail, and to watch and report on the ebbs and flows of debates and developments with a better trained eye.  Over the past two years in particular, I’ve participated in a number of UN projects, including the recently concluded High Level Review on Sanctions.   During this period, there has been a well-known hardening of relations between the Western Powers and Russia, which has affected the Council’s ability to act decisively on many recent issues.  In addition, China’s rising influence on matters of international law remains an important development institutionally, and with regards to state practice generally.  In parallel to this period of power shifts, stresses from the outside seem to have multiplied: chronic underfunding, the advent of mass torts cases against the UN, the communications revolution, the creation of more flexible, new bodies.  Many of these themes are recalled in Frederic Megret’s terrific essay on the Cholera Case available here.

And yet, as Francesco Mancini perceptively writes, rumors of the UN’s death have been greatly exaggerated.    The UN recently turned 69, and it currently has 16 current peacekeeping operations, including robust peacekeeping missions in which peacekeepers are given an offensive mandate.  Although it shows it age in some ways – take for example the almost defunct Trusteeship Council – if is catching up on many other fronts – I think here of efforts to improve due process in sanctions listings –  and ahead of the curve on many others, including measures to combat terrorism.   Major reviews on peacekeeping and political missions, as well as the UN’s peacebuilding architecture, are planned for 2015.  These reviews will present an opportunity for stocktaking and goal setting in two of the UN’s most important fields, for the next decade.

As I look ahead to the next period of blogging, I hope these developments will be something we can discuss and debate together on OJ.  Thanks to all for the opportunity to be part of this enterprise.

Does Renouncing US Citizenship Make You a Bad Person?

by Kevin Jon Heller

Josh Marshall at Talking Points Memo certainly thinks so:

Which brings us back to Roger Ver, variously known as a “Bitcoin entrepreneur” or the “Bitcoin Jesus.” Ver is now a citizen of Federation of Saint Kitts and Nevis. He was so excited about avoiding taxes that as soon as he became a Nevisian he set up yet another start up that would allow you to use bitcoins to buy a Saint Kitts and Nevis passport so you too could avoid US taxes. Alas, it folded after a few months, apparently because the St Kitts government disavowed it.

Unlike Facebook billionaire Eduardo Saverin who renounced his citizenship to avoid US taxes back in 2012, I don’t get the impression that Ver is remotely that rich. He may be worth a few or even many millions of dollars. But he does not seem remotely in the category of 100s of millions, let alone billions. In any case, now he wants a visa to return to the US to speak at a Bitcoin conference this weekend in Miami. But the US has repeatedly denied his requests. And he’s extremely upset at “the tyrants [who] won’t allow me to attend #CES2015, #TNABC or anything in the US.”

Here’s Roger with his “Borders are Imaginary Lines” t-shirt he wore for his appointment at the US Embassy Barbados to apply for a Visa. He even seems to be selling these shirts as a way people can express their opposition to the tyranny that is keeping him from visiting the US.

As I’ve written before, I don’t think American citizens who renounce their citizenship for tax purposes should be allowed to return to the country ever, except possibly under highly extenuating circumstances. Ver is upset that he cannot ditch his US citizenship to live in a tax haven that is – let’s be frank – under the de facto US security and economic umbrella and come back whenever he wants to hang out or hawk bitcoins.

Ver seems like a rather loathsome fellow, but I do not understand Marshall’s position. Why should renouncing citizenship for selfish economic reasons bar someone from entering the US for life? Paying taxes is the price of citizenship; if you don’t pay taxes, you obviously should not receive the benefits that being an American citizen provides. But if you are willing to give up the benefits of American citizenship, why should the reason for renouncing your citizenship matter? Why should you never be able to set foot in the US again? (Especially given that like everyone who spends time in the US, you will still have to pay sales taxes when you’re there.)

In other words, I don’t see any reason why a former citizen should be treated differently than any other foreigner when applying for a visa. Or, perhaps more precisely, I don’t see any legitimate reason. Marshall’s position seems to rest on the problematic idea that being a US citizen is so inherently wonderful that only a terrible person would voluntarily renounce his citizenship for economic reasons. To me, that’s American exceptionalism of the worst kind.

PS: Does any other country have an equivalent to 8 USC 1182, which automatically excludes former citizens who renounced citizenship for economic reasons? Professor Spiro?

Law Blogging as Law Making

by Jens David Ohlin

For 10 years, Opinio Juris has served as a forum for short-form legal scholarship. Many posts were short and simple, quickly flagging a particular development or issue and bringing it to the attention of international lawyers across the globe. But other posts were far more in depth, analyzing a complex legal issue with great subtlety and persuasion. What strikes me about the longer posts is that they often read like mini-articles, enhancing and enriching legal scholarship with shorter articles that might not–or could not–be explored in regular law review articles. Producing legal scholarship on a daily blog allows for an immediate impact that would be impossible in a law review or law journal with a 6-month (or even 2-month) publication cycle.

Opinio Juris posts have been cited in many law review articles. A simple search for opniojuris.org in any law review database will pull up hundreds of examples of law review blog posts that are now cited as scholarship alongside treaties, cases, and more conventional articles. Opinio Juris postings also impact the daily practice of law in important and urgent cases. To name just one well-known and recent example, Kevin Heller wrote about the U.S. drone strike against Anwar al-Awlaki and queried whether it violated the federal murder statute. It was widely reported that Kevin’s post prompted the Office of the Legal Counsel in the Justice Department to substantially revise their draft memo regarding the lawfulness of targeting al-Awlaki. If that isn’t real-world impact, I don’t know what is.

I like to use blog posts, on Opinio Juris and elsewhere, to sound out ideas that eventually make it into law review articles. It’s often easy to sketch out the basic contours of an argument and see what kind of reaction it generates. Then, when it comes time to render the argument in article form for a law review, one already knows which aspects of the argument will generate the most push-back and will require a stronger defense. In many cases one can predict this in advance, but in other situations the audience reaction is genuinely surprising and counter-intuitive. In this way, law blogging improves legal scholarship.

For most of the last 10 years, I’ve been a reader of Opinio Juris, not a blogger. My migration from the former to the latter is relatively recent. Ten years from now, I hope we are looking back on another decade of compelling and intense discourse.

A Career, in Blogging

by Kevin Jon Heller

I published my first post on Opinio Juris on February 10, 2006. That was almost nine years ago, and although I do not have exact figures, I estimate that I’ve written around 1,800 posts and close to a million words on the blog since. And my lifetime numbers are actually even a bit higher — beginning in August 2004, I blogged for a while with my friend Tung Yin, who teaches at Lewis & Clark. (You can find my first posts ever, if you are so inclined, here.) I only joined the University of Georgia as an assistant professor in June 2004 — which means that I have been a blogger for all but two months of my academic life.

I had no idea when I joined Opinio Juris that I would still be plugging away nine years later. I didn’t even set out to join it. It just kind of happened, as so many good things do. I stumbled across the blog in my first year at Georgia, was instantly outraged by Julian’s posts on the Iraq war, and started leaving long and often somewhat intemperate comments on the blog. (I know, you’re shocked.) This went on for a while, until Peggy finally wrote to me and asked if I wanted to guest-blog for a couple of weeks. I thought that sounded like fun, so I pre-wrote a few posts and off I went. I must not have been too tendentious in those early posts, because not long after my guest-stint ended, Peggy, Chris, and Julian (to his credit!) asked me to join permanently.

I said yes without hesitation — against the wishes of my Dean, and against the advice of most of my senior colleagues. It wasn’t that they didn’t take blogs seriously. (I’m not sure what they thought of them.) But they all agreed that blogging so early in my career was a terrible idea, because it would distract me from more traditional scholarship. Their opposition only motivated me further: if everyone was against it, I figured, blogging had to be a good idea. And the rest, as they say…

As I tell anyone who asks, that was the best professional decision I ever made. Blogging did not — and has never — undermined my “ordinary” scholarly productivity. Quite the opposite. I have always used blogging to ease into traditional writing; churning out a short post gets me going. There’s a reason Sartre mentioned the writer’s blank page as the quintessential example of existential nausea; ain’t nothing going on that page unless the writer puts it there. So writing begets more writing for me — not less.

And then there is the exposure…

Thanks for the Conversation, OJ

by Deborah Pearlstein

When Peter Spiro wrote to ask me back in 2007 whether I might be interested in writing a response to then-State Department Legal Adviser John Bellinger’s posts on the blog, Opinio Juris, I had two nearly simultaneous reactions: (1) The U.S. State Department Legal Adviser was writing on a blog?!; and (2) Yes.

I am, as I take it Duncan once was, a pathetically late adopter of new technologies – gadgets and forms of communication alike. Blame it I suppose on being the offspring of a physicist father and journalist mother, but peer-reviewed scholarship and old fashioned investigative reporting were – still are for me – the standard bearing pillars of thought and current events. How I now find myself writing scholarship for a field still substantially without peer reviewed journals is perhaps best left for another discussion. How I find myself writing on a blog is easier to explain: it’s where a conversation we all needed to have about law and security in the new world was happening.

That the conversation was happening on a blog primarily about international law admittedly gave me some cause for hesitation when Chris asked me to become a regular contributor the following year. I had gone to law school to study civil rights and U.S. constitutional law. True, I had studied some international law, with the lovely Detlev Vagts, who we lost not too long ago. But the subject seemed to involve far more about ancient maritime incidents than suited my taste. Yes, there were (even then) human rights treaties on the books. But they seemed to me then of little instrumental value to one aiming to tackle injustice (an immodest aspiration) here in the United States.

I was just past clerking when September 11 happened, and not far into practice when it became clear the United States’ response to those attacks would be the most important thing to happen to constitutional law in my lifetime. It soon became equally clear that pulling out my old international law books, and mastering all I hadn’t gotten the first time around and more, would be a necessity if I hoped to grapple seriously with the rights impact of U.S. uses of force, detention, interrogation, trial, and more. The law of armed conflict quickly became a central area of professional focus for me, as my practice shifted from an excess of pro bono constitutional law cases to full time work for a human rights NGO.

Yet even in the midst of that practice, it still seemed presumptuous to consider myself part of the field of international law, a field that I fear still carries more than its share of barriers to entry for law students, lawyers and non-international law faculty alike. Too many of the “real” international lawyers and scholars I knew had a bad habit of assuming vast amounts of background knowledge, and of using field-specific jargon of the worst, Latinate kind. Too few made careful enough distinctions between the law that is binding and law that is hortatory. Between the law as it is and the law as we might wish it to be. There was a lot of underbrush to sort through.

Not that there wasn’t blame to go around; there was deep ignorance of international law even among folks who should know better. International relations theorists who didn’t recognize a distinction between their criticisms of particular international institutions and the substance of international law. Law professors who had never contemplated any difference between comparative law and international law. A leading political scientist who, on hearing that I taught both constitutional law and international law, expressed amazement at teaching in such “opposite” fields – the one being hard core LAW-law, the other being (something like) a Hogwarts text on witchcraft and wizardry. And far too many American policymakers who think “international” law means someone else’s law, rather than (as is often the case) commitments we ourselves agreed to undertake.

Of all the terrible effects of 9/11 and the U.S. response to it, I like to think one of the few beneficial effects – certainly among the most ironic – is that it has brought far greater awareness of international law to a new generation of students, practitioners and scholars. My strong sense – someone should do a less impressionistic survey – is that courses in U.S. law schools in relevant areas of international law, including the law of armed conflict and human rights law, have proliferated in recent years. Federal cases in those fields certainly have, along with federal judges’ exposure to them. And that has made a forum like OJ more in demand, and more essential to the discussion, than ever.

I can’t quite say everyone’s talking about international law now. But I probably need to start admitting that at least on occasion, I am. Thanks to OJ – and all of you – for the great conversation.

What Are International Law’s “Must Reads” from the Past Decade?

by Chris Borgen

In a comment to a recent post, Patrick O’Donnell noted a post from the first year of Opinio Juris in which I had taken a crack at starting a list of the “must reads “of international law. I wanted to get a discussion going over what should be the key scholarly texts in our field. Opinio Juris readers made significant contributions and suggestions to the list.

Returning to this discussion, are there any “must reads” that we should add from the last ten years: articles, books, blog posts? What were the any earlier texts that we missed?

As Peter mentioned in his post, international law is constantly expanding breadth and drilling down in depth, such that there are now relatively few generalists. It may be that the moment has passed where one person could have have deep expertise across the whole of the field.

I wonder if the “must reads” on international law will be less and less about “international law” in general, but rather be deep dives into a particular substantive areas. My guess is that as international law itself is flowering, the list of “must read” texts is also growing as there are important texts across an ever-widening spectrum of international legal theory and practice. But now some (perhaps most?) of the “must reads” might not be “must reads” for everybody, but for anybody interested in a certain area of our profession.

If you have any suggestions as to “must reads,” either generalist texts or in a particular sub-field, please let us know in the comments to this post or via Twitter to @Chris_Borgen and @OpinioJuris with the hashtag #OJ10 (we may then post them in the comments section to the post).

I have a few initial (and non-exhaustive) suggestions from the last decade. They are texts that I return to time and again for their perspectives and insights. With the following selections to start things off (as well as the original list from 2005), I look forward to any other suggestions the Opinio Juris community may have!

General Texts or Treatises

James Crawford, The Creation of States in International Law (Oxford 2d ed. 2006)  A remarkable compendium of analysis of the international law of statehood and sovereignty.

James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge 2002). This should have been on the original list back in 2005. A key reference to an important project in international law.

Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (.pdf) (13 April 2006) UN Doc A/CN.4/L.682 and the accompanying Analytical Study (.pdf). Much the this post is built on the assumption that international law is expanding, becoming more institutionally complex, and deepening. But is the proliferation of law and institutions also leading to legal fragmentation? This has been a much-debated topic since at least the 1990’s. The ILC’s report, finalized by Martti Koskenniemi and the related study, have been much-debated and remain key resources in thinking-through this important topic.

The Oxford Guide to Treaties (Duncan Hollis, ed.) (Oxford 2012) At the risk of being accused of cheering for the home team, I want to note this volume that Duncan edited because it is a particularly significant contribution to the law of treaties, with 25 essays by many of the leading scholars and practitioners in the field as well as a sort of “bird-watcher’s guide” with examples of treaty clauses. (Truth in advertizing, I have a short piece in this book. No, my own chapter is not a “must read.”)

Legal History

The Oxford Handbook of the History of International Law (Bardo Fassbender and Anne Peters, eds) (Oxford 2012). A deep survey of the history of international law in and across countries and cultures. It goes beyond international legal history as European history and widens the focus to encompass comparative legal histories and how different international legal traditions encounter and interact with each other. Plus a section of legal biographies. A fascinating and much-needed resource.

 

Opinio Juris and the Not-So-Invisible College of International Law

by Peggy McGuinness

When Chris, Julian and I started our modest “conversation” about international law ten year ago, we were not universally praised.  Nor were we instantly accepted.  Who did we think we were, we pre-tenure punks just starting out in this field? And what were people to make of this short-form, internet-based content?  As Chris noted, we really didn’t know what we were doing or where things were going. (In fact, I distinctly remember admiring Roger for his confidence that we were on the right track and that this blogging thing would have legs!)   What Chris, Julian and I did recognize, from the very first days and weeks of the blog, was that we were creating a community.  And that mattered.

When we started, international law was, and on many U.S. law faculties still is, a “niche” area (which is just a polite way of saying that many U.S. law professors find international law esoteric at best, and irrelevant or dangerous at worst).  As Peter rightly notes, international law has mostly “made it.”  But a decade ago, at many U.S. law schools there was just one “internationalist” professor who carried the load of both public and private international law courses.  Long before Facebook, Twitter and Linked-In, Opinio Juris became a “connector” for many of us “lone wolf” international law professors scattered throughout the U.S. Through Opinio Juris we got to know scholars around the U.S. and the globe – friendships and collaborations that existed through the comments section, through email relationships, and, on occasion, an offer or invitation to guest blog.  Along the way, we upended what the late Oscar Schachter referred to as the “invisible college” of international law.  As part of the broader trend of flattening and democratizing the marketplace of academic and policy ideas that technology has made possible, OJ has contributed to making the invisible college not only visible, but accessible.  In 2005, there was almost no other place for a grad or law student to join a comment thread that included professors and government practitioners.  There was almost no other place for a student or junior scholar to have a short opinion essay placed – with almost no time lag and a relatively light editorial hand — to be read by the world.

Our very long list of guest bloggers includes many names that have gone on to found their own international law blogs – some of which endured, some of which morphed into other entities, all of which enriched the conversation and expanded the community.  We always welcomed and supported the emergence of the new blogs because they brought even more voices to the discussion and added structures within this virtual college of international law scholars.  We also partnered with student-edited international law journals to host discussions of articles published in the “old media” as a way of linking slower paced student-edited scholarship to a timely online discussion with multiple commentators.   And it has been wonderful to see some of those student editors join us in the academy in the interim years.  Perhaps most surprisingly, our community grew to include government lawyers and diplomats on the front line of vitally important policy and legal questions.

Ten years is a long time in any “start up.”  But as Opinio Juris enters its mature years, my hope is that the OJ community of contributors, readers, commentators and guests continues to grow in a spirit of dialogue, collaboration and fellowship.

From Strawberries to Sony Pictures

by Duncan Hollis

One of my first posts with Opinio Juris remains one of my all time favorites — Strawberries versus Skin Cancer.  Looking back, that post marked a transition point for me as a scholar and an academic; in it, I began to allow myself to think more critically about my former employer, the U.S. State Department, even as I remained loyal to its employees and their mission. Certainly, the post benefited from my work on the Montreal Protocol while I was in the Legal Adviser’s office, but I also began to feel free to call out U.S. non-compliance where I saw it (and to flag the politically motivated rationales that lay behind it).  At the time, I figured this sort of post would typify my new academic self — detailed doctrinal analysis of specific treaty regimes especially in the environmental arena.

As it turns out, my assumption proved only half right.  True, I’ve ended up spending a lot of time thinking about treaties and their alternatives; it remains a core focus for my blogging and scholarship. But along the way, blogging also brought new lessons and served as a catalyst for my career in ways that I could never have anticipated in 2005.  What follows are nine takeaways from my blogging these last nine years:

1) Somehow I became a scholar of cyberspace, particularly questions of how to govern over (and within) this medium.  For those who have known me for a while, this is pretty surprising.  Until 2007, I openly described myself as a Luddite; my only claim to cyber-expertise was my (small) role in negotiating the final clauses of the Cybercrime Convention.  Today, I still can’t code, but I do think the experience of blogging gave me enough self-confidence to take advantage of opportunities that came my way to opine on how international law translates into cyberspace and offer some new ideas for dealing with cyber insecurity.

2) People find cyberspace issues really interesting; I had multiple friends and family ask me if I was going to blog about the Sony Pictures Hack (I didn’t).  In contrast, no one ever asks me to blog about treaties.  This makes me a little sad sometimes.

3) I love treaties; I like blogging about treaties, hosting symposia on treaties and treaty interpretation, drafting lists of the best treaties, and calling out those (e..g, the Supreme Court) that seem willfully ignorant of treaty terminology and processes.

4) International lawyer humor is not a thing, despite my semi-regular efforts to make it a thing.

5) International lawyers love underdog efforts to create a new state, especially if it’s a small pacific island.

6) I can never blog more than once a week, and I remain in awe of those who toss off daily blog posts (cough, Kevin, cough).  At least once each year, I’ve made a resolution to blog more.  But don’t hold your breath; I seem to be slowing down the pace of my blogging rather than speeding it up of late.

7) Major writers and Hollywood producers need international law consultants. For those of them reading this, e-mail me.  We still need to talk.

8) Opinio Juris has helped make the “invisible college” more collegial.  I’ve met so many people through blogging and credit it for starting several friendships that formed here on-line or via some in-person conversation about my blogging.  Meanwhile, Opinio Juris has become a place where we can opine on the state of the profession; celebrate our champions, and mourn the passing of our giants.

9) Blog in haste, regret at leisure.

Being a law professor can be an isolating experience, but Opinio Juris has done so much to make me feel part of a larger community; it’s made me appreciate that, whatever our substantive disagreements, there is among my co-bloggers and so many of our readers a passion for international law (both its potential and its pitfalls).

Let me close with a thank you to those readers that actually care about treaties (or cyberspace for that matter).  It’s your interest and dedication that make this enterprise worthwhile and what keeps me doing it (even if I don’t do it enough — see comment 6).  You’ve helped make this blog what it is and you offer the promise of it continuing to grow and flourish in depth and breadth for years to come.

International Law Ten Years Later — On the Ground and In the Academy

by Peter Spiro

You know you’ve reached a certain age when you start saying, “I remember when. . .”

Well, I remember when international law was considered a legal chimera and an academic backwater. Policymakers would take it into account in only a limited set of circumstances, and then usually only where it was consistent with other agendas. In law schools it was ghettoized: schools understood they needed one member of the faculty to cover international law courses, but at many it was only one. Among the international relations theorists, international law was the target of ridicule (“epiphenomenal,” delivered with a heavy dollop of condescension).

Things had begun to change around the time that I joined the blog in 2006. One sign of change was a new wave of entry-level international law faculty, among whom Chris, Peggy, and Julian prominently counted. International law felt like the academic equivalent of a start-up, and Opinio Juris was there, helping to build the community of international law academics (something reflected in our impressive list of alumni guest contributors). There was a time when it was required reading among IL scholars. The blog helped demonstrate international law’s relevance on a day-in, day-out basis.

In those early years, I felt like blogging here was part of that cause – to prove the reality of international law against a stolid cohort of non-believers, both in and outside of the academy. It wasn’t advocacy in the traditional sense; international law doesn’t always point to progressive (or otherwise “correct”) results. (In any case, one of OJ’s virtues is its ideological diversity.) More in the way of advocacy for the discipline, at a point at which its respectability was still contested.

Today, there’s no longer any real need to engage in that kind of promotional activity. I don’t feel like I have to do the sort of cheerleading that I engaged in my early years here. International law has left its Ice Age behind. It is now arguably the center of the action, both on the ground and in the academy, as it comes to touch every area of law. It is in its take-off phase. Foundations are being built that will have consequences for generations to come. There’s still a tremendous level of instability. Some institutions now in their infancy will crash and burn. But others will survive. Things happening today will be studied by future generations, even if they aren’t necessarily very high-profile in the contemporary imagination. Some institution-builders anonymously at work today will be celebrated only long after they are dead.

The accelerated growth isn’t all upside, even leaving aside the inevitable missteps and false starts that are part of any take-off. In the “be careful what you wish for” department, international law has grown to the point where it’s no longer a unified field. It’s a lot of fields that are starting to go their own way. The number of international law generalists is dwindling; it’s impossible to keep up with developments in fields as diverse as those in domestic law. The level of specialization now makes it tough to talk across specialties. It’s like your first cousins — you have a recent common ancestor and probably spent some time together in your youth, but may more recently have drifted apart. The next generation will likely as not be strangers.

That’s presents a challenge for a blog that remains generalist in orientation. There are times when the debates in the weeds aren’t worth following if it’s not your particular area. Appealing to the larger community gets more difficult.

I’m also old enough to remember when blogging was new (not so old!). As Julian points out, it has changed – much more serious now, less of the breezy sort of pointers and back-and-forth chatter, much of which has moved to Twitter (which itself has started to get more serious). The emergence of other international law-oriented blogs (Just Security and Lawfare in particular) is a testament to that seriousness, as well as another data point evidencing the robust state of the field. In any case it’s been fun to be a part of a project that has seen these things through.

Blogging and the Marketplace of Ideas

by Roger Alford

marketplace of ideasI started blogging at Opinio Juris in June 2005. My first post was a postcard from India. Since that time I have published over 1,000 posts. During that same ten-year period I have also published dozens of articles and a few books. In light of that background, I thought I would use Opinio Juris’ ten-year anniversary to reflect on the state of law blogging within the legal academy.

In the early days, law blogging was controversial. Many serious scholars were wary of blogging. Crusty established professors at elite schools saw little point in it, and untenured professors were intrigued but nervous. The sweet spot were young newly-tenured (or soon-to-be tenured) professors at reputable non-elite schools eager to build their brand and willing to embrace the medium despite the risks. Chris Borgen, Julian Ku, and Peggy McGuinness seized the opportunity and were the first-movers in the international law blog space.

As soon as I started reading Opinio Juris I knew I wanted to become a permanent contributor. Why? Because professors are in the marketplace of ideas, and blogging presented a whole new medium to sell our ideas. If a scholar is serious about the marketplace of ideas, it is not enough to simply produce a great product. One also has to promote that product in a thoughtful, respectful manner. This is no easy task.

So exactly how does one sell ideas? In the old days, promoting one’s scholarship required an inordinate amount of time speaking at conferences. At those conferences we would spend ten hours of travel time in order present for twenty minutes about an article that we had been working on for fifty-two weeks. If we were lucky, there would be about a hundred people in the audience. The incremental payoff was meager, but with enough effort a scholar could build a reputation.

Blogging completely changed the equation. Now a scholar can spend two hours summarizing an idea, post that summary on a blog, and reach an audience of thousands. That audience is not clustered in a particular geographic region, but is spread throughout the world. That audience is not required to listen to your ideas because they are second-year law review staffers, but they eagerly seek out your ideas because they are sincerely interested in what you have to say. Conferences continue to have their place, but the cost-benefit analysis favors blogging.

After over a decade of experience, the payoff is now clear. There is no doubt that blogging promotes scholarship. Consider law schools where there are well-known, reputable scholars who routinely blog. Where do they rank on SSRN downloads? Invariably law professors who blog are near the top of their respective faculty download rankings. At law schools where there are well-known law professor bloggers—schools like Chicago, Georgetown, UCLA, Alabama, Notre Dame, Ohio State, BYU, George Mason, Temple, Pepperdine, Case Western, American, San Diego, Hofstra, and South Texas—again and again we see permanent bloggers are at or near the top for all time SSRN downloads for their respective faculty.

I seriously doubt that the quality of the scholarship of law professor bloggers is uniformly better than that of their colleagues who do not blog. But there is almost no question that law professors who blog have a distinct advantage when it comes to promoting their scholarship. If I write a blog post and make a passing reference to a recent article, (see, e.g., here and here) there is the distinct possibility that of the thousands who read the post, a significant minority will read the article linked in that post. If I write a blog post specifically about a recent article, I can almost guarantee a download bounce.

As others will discuss during this anniversary symposium, blogging serves many useful purposes. But one undeniable benefit is to provide a platform for law professors to promote their scholarship.

Scholarship is not about producing great ideas. It is about producing great ideas and communicating those ideas to the broader world. Some law professors have embraced a medium that gives them a megaphone to share their ideas. Other brilliant scholars choose to produce great scholarship and forego the opportunity to promote it.

Opinio Juris has carved out a unique place in the international legal academy where we actively promote the ideas of the permanent contributors, and others who reach out to us and use this space to share their ideas.

How the Legal Blogosphere Has Changed After Ten Years of Opinio Juris

by Julian Ku

I want to mark our Opinio Juris anniversary with some musings on how the legal blogosphere has changed in the decade since Chris, Peggy, and I launched this site. When we began, there was already a pretty robust universe of legal blogs.  But law blogs were still pretty much hobbies rather than serious professional publications.  Chris, Peggy and I were writing for each other and our friends,and the blog may have seemed more like a convenient forum for long-distance communication.

In the early days, it was enough to simply link to stories and articles in corners of the internet that most mainstream papers wouldn’t have noticed.  I remember linking to reports of Iraq’s accession to the ICC, way before most news media reported on it.  I developed an early ongoing obsession with the legal battle over Japan’s whaling practices, way before reality TV and the ICJ case made it mainstream news.   Sometimes, we would take random shots at celebrities for their lack of understanding of international legal issues but mostly just to try to get attention.  I challenged Angelina Jolie, for instance, to rethink her support for international criminal justice (and I have some reliable sources tell me she actually read the post at some point). I think Opinio Juris still can serve an important news function for specialized stories most people don’t care about, although much of that has been taken over by our fabulous Twitter account.

Blogs today, especially law blogs, have become much more professional and serious.  The great advantage of law blogs is that they provide a way for detailed legal analysis to reach the public and policy-making worlds directly and immediately.  A judge at the International Court of Justice,an attorney-adviser in the U.S. State or Justice Department, and a journalist can find useful detailed legal analysis with very little effort (and all have at various points).  Journalists in particular can and have used law blogs as a quick and dirty way to canvass expert opinion on whatever legal issue their stories are intersecting. For instance, a recent Vox explainer was able to draw on our blog and others to discuss the legality of military action in Syria.   Law blogs are surprisingly important and influential, and I could not have predicted that in 2005.

For academics like us, Opinio Juris is a way for us to apply our professional analysis to current events in a way that was simply not possible before law blogs.  To be sure, some of our analysis was incorrect or mistaken (I managed to declare various ICJ judges dead when they were very much alive), but much of it became part of the larger public conversation.  For me, the blog has always challenged me to link my academic ideas to real-world events, and I am always grateful for that outlet.

I am also grateful that non-American readers continue to find our musings useful and interesting.  We remain a resolutely Americanist/ America-centered blog, but I think that actually is part of our utility to non-American readers.  We offer a certain perspective of what American academics think about international legal issues, and a particular insight into U.S.-law-heavy topics that impact the world (like the war on terrorism and the Alien Tort Statute).

But at the heart of the blog, and what continues to motivate me to write, is the chance to “talk” with my co-bloggers, guest-bloggers, and readers about things that my neighbors (or even my colleagues) find tedious or boring or over-technical.  I am curious about the world, and I cherish the existence of an online community to share this exploration with. Thanks for reading, and I hope continuing to read, for the next decade (at least!).

Celebrating Ten Years of Opinio Juris (!)

by Chris Borgen

It may be hard to believe, but this week Opinio Juris is celebrating its tenth anniversary. In a placeholder post prior to our commencing regular blogging, Peggy, Julian, and I had explained:

Our modest goal is to share with our readers a variety of perspectives on the role of international law in the U.S. and around the globe and to stimulate discussion within the community of international law scholars and practitioners. We will include useful links to other important on-line sources of information on international law.

We started blogging on January 10, 2005. On that first day we bantered with each other about UN reform (see 1, 2, 3), a topic that would come up time and again in the following years. Rereading some of my early posts makes me smile… and wince.  Although we were making it up as we went along, we were finding our voice. Ten years ago there was barely a blogosphere, let alone a legal blogosphere.

We knew we wanted this site to be a forum where people with a broad spectrum of views could discuss, argue, and analyze a wide range of topics related to international law. But if you want an interesting and informative conversation, then you better have interesting and informed discussants and editors. And so over the years Roger, Kevin, Duncan, Peter, Ken, Deborah, Kristen, and Jens joined the masthead, and An and Jessica joined as Assistant Editors.

However, the real reason this site has thrived is the thousands of people in the Opinio Juris community who are not on the masthead.  Each person who has submitted a guest post, participated in a symposium, taken the time to read a post, or added a comment to a post has made Opinio Juris the ongoing discussion that we hoped it would be.

Day in, day out, for a decade we have all participated in a conversation that has ranged over important topics, humorous observations, technical analyses, and politically fractious debates. It is a discussion that includes anyone who has taken a moment to read or write anything on the site. Thank you.

In our first week of blogging we had perhaps a couple of hundred visits (and I think a large number of those hits came from repeated visits by our relatives). But the conversation has grown not only through our expanding masthead but with hundreds of guest bloggers, over 9,000 posts,and nearly 26,000 comments.  We have tens of thousands of readers each month and a total of over five million visits (according to our platform’s counter).

Again, thank you. We are constantly learning from our co-bloggers, our guest bloggers, and commenters. These last ten years have brought much more than we ever expected and we are very grateful.

In the coming days we will post about the past ten years of international law as well as where it may be going. We will also point out some memorable moments from the first decade of Opinio Juris.

You can also follow us on Twitter, @OpinioJuris (we will use the hashtag #OJ10 for topics related to the anniversary).

We look forward to our continuing conversation…

 

 

Weekly News Wrap: Monday, January 12, 2015

by Jessica Dorsey

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

Africa

  • A girl perhaps no more than 10 years old detonated powerful explosives concealed under her veil at a crowded northern Nigeria market on Saturday, killing as many as 20 people and wounding many more. On Sunday, at least six people were killed after two suspected child suicide bombers blew themselves up in a market in northeast Nigeria, witnesses say, in the second attack involving young girls strapped with explosives.
  • The United Nations Security Council backed plans by Democratic Republic of the Congo and U.N. peacekeepers to begin a military campaign to “neutralize” a Rwandan rebel group in the country’s rugged eastern provinces.

Middle East and Northern Africa

  • The chief prosecutor of the International Criminal Court may be close to opening an initial investigation into last summer’s Gaza war.
  • Iran’s supreme leader Ayatollah Ali Khamenei told Venezuela’s president on Saturday he backed coordinated action between Tehran and Caracas to reverse a rapid fall in global oil prices which he described as a “political ploy hatched by common enemies”.
  • American-led forces launched 12 air strikes against Islamic State militants in Syria since Friday, all but one of them near the contested city of Kobani, the U.S. military said.
  • Reports have surfaced that a U.S.-led coalition airstrike killed at least 50 Syrian civilians late last month when it targeted a headquarters of Islamic State extremists in northern Syria, according to an eyewitness and a Syrian opposition human rights organization.

Asia

Europe

  • Two gunmen forced their way into and opened fire in the Paris headquarters of satirical magazine Charlie Hebdo, killing twelve, including staff and two police officers, and wounding eleven, four of them seriously. The gunmen escaped but a day later they were shot dead as they fled a warehouse where they had hostages north of Paris, firing at police. World leaders including Muslim and Jewish statesmen linked arms to lead more than a million French citizens through Paris in an unprecedented march to pay tribute to victims of Islamist militant attacks.
  • These attacks may fuel rising anti-immigration movements around Europe and inflame a “culture war” about the place of religion and ethnic identity in society. Over the weekend, a German newspaper in the northern port city of Hamburg that reprinted caricatures of Prophet Muhammad from the French satirical magazine Charlie Hebdo was the target of an arson attack, according to police and the offices of Le Soir, a Belgian newspaper that republished cartoons from the French satirical magazine Charlie Hebdo, were evacuated on Sunday after receiving an anonymous bomb threat, its staff said. Hackers claiming to be with the group Anonymous say they have hacked a jihadist website in retaliation for the terror attack on French satirical magazine Charlie Hebdo.
  • Transsexuals, transvestites and others thought to have what Russia considers to be “sexual disorders” have been barred from driving in the country for “medical reasons” under new road safety regulations.

Americas

  • More than a decade after a series of shootings and bombings in the Jerusalem area, a trial is slated this week in New York to determine whether the Palestine Liberation Organization and Palestinian Authority should pay up to $1 billion to victims.
  • Egyptian-born imam Abu Hamza al-Masri has been sentenced to life in prison after being found guilty of terrorism charges last year.

UN/World

  • The United Nations is immune from a lawsuit seeking compensation for victims of a deadly cholera outbreak in Haiti, a US judge said in dismissing a case that government lawyers said could open international body to an onslaught of litigation.
  • Hundreds of civilians were massacred in two separate incidents in South Sudan last year in which victims were targeted for their ethnicity, nationality or political views, possibly amounting to war crimes, the United Nations said in a report on Friday.

Congratulations to Dean Andrew Guzman

by Duncan Hollis

I’m pleased to note that Andrew Guzman is leaving Berkeley Law to become Dean of USC’s Gould School of Law (see here for the USC announcement, and here for Berkeley’s take).

Andrew’s a renowned scholar of international law, with major works on international trade, regulation, investment and public international law, including some seminal work on using rationale choice theory to explain the international legal order.  I’m deeply indebted to his scholarship on bilateral investment treaties (this one in particular) and soft law for influencing my own work.  Plus, to top it all off, he’s found time over the years to guest blog for us a few times.

Congratulations to Andrew — it’ll be good to have another international lawyer in a major leadership position in U.S. legal education.

Events and Announcements: January 11, 2015

by Jessica Dorsey

Events

  • On Wednesday, 28 January 2015, the International Humanitarian and Criminal Law Platform of the T.M.C. Asser Instituut and PAX are hosting the launch of the report: ‘Unacceptable Risk: Use of explosive weapons in populated areas through the lens of three cases before the ICTY’ at 7:00 in the evening at the T.M.C. Asser Instituut in The Hague. More information can be found here. To register, please send an e-mail with your name, organisation and affiliation to conferencemanager [at] asser [dot] nl
  • The Wilson Center will host a panel on Wednesday, 26 February 2015 to examine practical suggestions for reform of the current system of resolving international investment treaty disputes. The increase in cases against States and their challenge to public policy measures has generated a strong debate, usually framed by complaints about a perceived lack of legitimacy, consistency and predictability. While some ideas have been proposed for improvement, there has never before been a book systematically focusing on constructive paths forward. The new volume launched with this panel discussion features 38 chapters by almost 50 leading contributors, all offering concrete proposals to improve the ISDS system for the 21st century. Registration begins at 8:30 am. More information can be found here.

Calls for Papers

  • The programme chairs of the 9th Pan-European Conference on International Relations invite paper, panel, and roundtable proposals for submission to any of the 64 sections on the 2015 programme. All sections welcome individual paper proposals, and most welcome panel/roundtable proposals as well – please contact section chairs to inquire about this. Each 105-minute panel/roundtable should comprise five papers/presenters plus a discussant who will also act as panel/roundtable chair. Proposals (with abstracts of 200 words maximum) must be submitted no later than 15th January 2015, via the online submission system: www.conftool.pro/paneuropean2015 . More information about the conference can be found here.
  • Professor Ole Kristian Fauchald and Postdoctoral Fellow Daniel Behn of PluriCourts invite scholars to submit paper proposals papers for a roundtable discussion on measuring judicial responses to legitimacy crises that a number of international courts and tribunals have experienced in recent years, during the ESIL Conference, 10-12 September. The deadline is 25 January. More information about the call can be found here, and the conference, here.
  • The Palestine Yearbook of International Law is now inviting submissions of scholarly articles for publication for its next volume, XVIII (2015). Unlike recent years, this upcoming volume will not be based on a specific theme. Therefore, the editors encourage the submission of scholarly pieces of relevance to public international law and Palestine. The Yearbook is edited at Birzeit University’s Institute of Law (Birzeit, Palestine), and published by Martinus Nijhoff Publishers (The Hague, The Netherlands). The Editor-in-Chief of the Yearbook is Mr. Ardi Imseis. At this stage, the Institute of Law will be accepting abstracts for review. Abstracts should include a working title, with a preliminary outline of the author’s legal arguments, along with a CV. Prospective authors should express interest by e-mailing the Assistant Editor of the Yearbook, Ms. Reem Al-Botmeh and sending an abstract of the suggested paper as indicated above, along with the prospective author’s CV. The abstract of under 750 words should be submitted by 15 February 2015. Notification of decisions will be provided 1 March 2015.For more information, please contact Ms. Reem Al-Botmeh, the Assistant Editor of the Yearbook, at rbotmeh [at] gmail [dot] com or alternatively, you may communicate directly with Mr. Ardi Imseis at AImseis [at] hotmail [dot] com. More information can be found here.
  • The Utrecht Journal of International and European Law is issuing a Call for Papers on ‘General Issues’ within International and European law. The Board of Editors invites submissions addressing any aspect of International and/or European law. All types of manuscripts, from socio-legal to legal technical to comparative, will be considered for publication. The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online via our website and should conform to the journal style guide (See here for full details). Utrecht Journal has a word limit of 15,000 words including footnotes. For further information please consult our website or email us at utrechtjournal [at] urios [dot] org. Deadline for submissions is 30 April 2015.

Announcements

  • Vol 6, No 1 (2014) of Trade, Law and Development (Special Issue: Trade & Climate Change) has been published. This issue is a Special issue on Trade and Climate Change. It is the eleventh in series, and also commemorates the sixth anniversary year of Trade, Law and Development. More information can be found here.

Our previous events and announcements post 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. 

Guest Post: 2014 at The African Court on Human and Peoples Rights–a Year in Review

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international human rights and international criminal law, currently based in The Hague, Netherlands. He is founder of the blog The ACtHPR Monitor, on twitter @acthpr_monitor. In June 2014 Oliver was one of five non-African lawyers to be appointed to the Court’s inaugural List of Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of any organisation affiliated to the author.]

Many readers will be familiar with the African Court on Human and Peoples Rights. For those who are not the Court was established by the African Union to hear cases relating to alleged violations of the African Charter on Human and Peoples Rights (Charter) and other international human rights instruments. The Court is based is in Arusha, Tanzania and is separate to the African Commission on Human and Peoples Rights. What follows is a summary of the Court’s activity in 2014.

March: the Court’s 32nd Ordinary Session

At its 32nd Ordinary Session, the Court conducted the public hearing in Konate v. Burkina Faso. The Applicant, working as editor of the weekly newspaper L’Ouraganin, published two articles which lead to his convicted for defamation, public insult and insulting a magistrate. He was sentenced to twelve months imprisonment and handed large fines. The Applicant argued that his conviction and punishment contravened his right to freedom of expression as protected under Article 9 of the Charter and Article 19 of the International Covenant on Civil and Political Rights.

The Court also rendered three judgments. The first, Zongo and others v. Burkina Faso, related to the alleged assassination of Norbert Zongo an investigative journalist and Director of the weekly paper l’Indépendent and three colleagues in December 1998. The Applicant argued that following the alleged assassination the local authorities had failed to mount a proper investigation and failed to act with due diligence in seeking, trying and judging those involved in the death of Zongo and his companions. In only the second case to be decided on its merits, the Court found that Burkina Faso had indeed failed to take measures to ensure the Applicants right to be heard by a competent national court, therefore violating articles 1, 7, 9(2) of the Charter and Article 66 of the ECOWAS Treaty. Reparations are to be decided after further submissions from the parties.

The second and third cases, Omary and others v. Tanzania involving an application by former East African Commission employees who had not received promised reparations, pension and severance benefits when the then East African Community was disbanded in 1984, and Chacha v. Tanzania, concerning the Applicant’s alleged unlawful arrest, detention, charging and imprisonment contrary to Tanzanian laws, were both declared inadmissible due to the Applicant’s failure to exhaust local remedies.

The Court also considered its first application for interpretation and review of a previous Judgment. In June 2013 the Court had found the case of Mkandawire v. Malawi inadmissible due to the Applicant’s failure to exhaust local remedies. The Applicant made an application to the Court for review and interpretation of the Judgement. The Court ruled that the application for interpretation could not be entertained because “interpretation” as found in the Protocol and rules of the Court can only be sought for the purposes of executing a judgement. Since the case was dismissed due to non-exhaustion of local remedies there was no judgement to interpret. As to the application to review, the Court found the application inaccurately cited key paragraphs of its earlier judgement which were the subject of the review application. In addition evidence provided by the Applicant which he argued was new was known to him at the time the Court handed down its judgement and was therefore neither new or evidence.

June: movement toward the African Court of Justice and Human Rights

The Court, or at least the future guise of the Court, came into the spotlight in June after the African Union met in Malabo, Equatorial Guinea where it adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. (Incidentally, Equatorial Guinea has not signed the Protocol establishing the existing Court).

This Protocol has been the subject of much comment and debate, in particular for its amendment to Article 46A bis of the Protocol on the Statute of the Court which imparts immunity against criminal charges for acting heads of state or government and other senior state officials. We also learned a little more of the new court’s ambitious proposed structure consisting of a “general” chamber handling trade issues and conflict between states, a “human rights chamber” handling work similar to the current Court and “criminal chamber”. For more comment on the immunity amendment see Paul Bradfield’s piece here, and Mark Kersten’s piece here. A press conference by Legal Counsel for the African Union Vincent Nmehielle on the new court, including the issue of immunity, can be seen here. Please note that the press conference does not start until about 6 minutes in, so best to skip forward.

June: Mtikila ruling on reparations

Also in June, the Court rendered its first ever ruling on reparations in Mtikila v. Tanzania. The case centered on Tanzanian laws that require candidates running for local government, parliamentary and presidential elections to be members of a registered political party, effectively barring independent candidates. In June 2013 the Court delivered its judgment, unanimously finding Tanzania’s ban on independent candidates had violated the Applicant’s Article 10 and 13(1) Charter rights and, by majority, that the same ban violated the Applicant’s Article 2 and 3 Charter rights. The judgment can be read here. My summary and analysis of the case can be seen here.

The issue of reparations was postponed in order that both parties could make additional submissions. In its ruling the Court found there exists a fundamental principle of international law that where a violation of an “international obligation” causes harm, there entails an obligation to provide adequate reparation which the Court should follow and is reflected in Article 27(1) of the Court’s Protocol. The Court found that applying this principle, pecuniary and non-pecuniary damages and legal expenses were capable of being awarded by the Court, but that the Applicant had failed to provide evidence of a link between the damages and expenses claimed and the claim itself.

In addition, the Court also examined Tanzania’a compliance with the June 2013 judgment noting that in Tanzania’s reply to damages it continued to maintain that the judgment was wrong, since the law in Tanzania prohibits independent candidates from running for election. The Court expressed its “concern” at this line of argument which was compounded by Tanzania’s failure to report to the Court on the measures it is taking to comply with the Judgment. Consequently, it ordered that within six months Tanzania should: (i) publish the official English translation translated into Kiswahili at Tanzania’s expense and publish in both English and Kiswahili once in the official gazette and once in a national newspaper; and (ii) publish the Judgment it its entirety in English on an official website and remain available for one year. The Court ordered that nine months from the ruling Tanzania should submit to the Court a report ion the above measures. Continue Reading…

Guest Post: When Should the ICC Call It Quits?

by Rebecca Hamilton

[Rebecca Hamilton is an Associate in Law at Columbia Law School, and author of Fighting for Darfur.]

The close of 2014 continued to bring bleak news for civilians in Darfur. As fighting in Sudan’s beleaguered western region increased, the UN looked to reduce its peacekeeping presence there. And this on the heels of the ICC Prosecutor, Fatou Bensouda, telling the Council that in the absence of any commitment from them to enforce the Darfur warrants, the Court would be suspending its investigative activities.

As Kevin has already noted, Bensouda’s statement is a depressing insight into the moribund state of ICC-Security Council relations (not to mention another blow for survivors of the conflict). Yet as he also observed, it is heartening to see the Prosecutor laying the blame for the lack of arrests squarely where it belongs. For too long the Council has used its Darfur referral to outsource the problem to the ICC in lieu of taking meaningful steps itself.

Beyond the immediate implications for Darfuris, the ICC, or the Security Council however, there is a broader question triggered by Bensouda’s statement, and one that commentators are yet to pay attention to: Under what conditions should the ICC Office of the Prosecutor stop its activities in a given situation?

Both academics and practitioners have spent the first decade of the Court’s existence focused largely on issues related to the OTP’s commencement of activities in new situations. But as I argue in a forthcoming article in N.Y.U. J. Int’l L. & Pol., attention now needs to be directed to the question of what principles might guide the end of its operations. Given that Bensouda’s statement marks the first time an ICC Prosecutor has publicly discussed any halt to the OTP’s activities, it is worth closely scrutinizing the rationale upon which her decision is based, and considering some of the implications should the same rationale be used consistently as the basis for the temporary or permanent cessation of OTP operations in other situations.

Good faith and cooperation

Bensouda’s statement to the Council is worth reading in its entirety as a striking example of straightforward truth-telling in a setting so often filled with obfuscating diplomatic language. But in terms of using the statement to extract criteria the OTP could use to decide whether to stop its activities in other situations, there are a few key excerpts to focus on.

The Prosecutor is clearly frustrated by the lack of arrest warrant enforcement, stating that “What is needed is a dramatic shift in this council’s approach to arresting Darfur suspects.” But her concerns also seem to extend more broadly.

“In the almost 10 years that my Office has been reporting to the Council, no strategic recommendation has ever been provided to my Office, and neither have there been any discussions resulting in concrete solutions to the problems we face in the Darfur situation.”

It seems reasonable to assume that her reference to “the problems we face” includes not only the lack of arrest warrant enforcement, but also the lack of cooperation and denial of access that has plagued the Court’s Darfur investigation. As Sarah Nouwen details in her excellent book on the ICC and complementarity, the Sudanese government has refused all communications with the Court since the first Darfur warrants were issued back in 2007.

Of particular note in the above excerpt is the focus on effort, in addition to results. The Prosecutor is seeking warrant enforcement and “concrete solutions.” Yet in bemoaning the absence of even recommendations by the Council to the Court, she also seems to suggest that a good faith effort by the Council to work with the Court throughout the duration of its Darfur investigation would have gone a long way toward convincing the OTP to continue its activities in the situation. Continue Reading…

Holiday Roundup: December 20, 2014 – January 9, 2015

by An Hertogen

This holiday season, we trust Santa was still as safe as back in 1961 and that nobody received a lump of coal. We found some time to post, so if you were too busy to visit our blog, here is what you missed.

Kevin posted about a virtual roundtable on David Bosco’s “Rough Justice” in which he participated over at H-Diplo, and linked to his new essay on the use and abuse of analogy in IHL. Deborah agreed with Cliff Sloan on the closing of Guantanamo. Catherine Harwood wrote about the UN HRC inquiry into human rights violations in North Korea and Larry Backer commented on the recent normalisation of US-Cuban relations.

Finally, I listed the events and announcements and Jessica wrapped up the international law news (1, 2).

Watch this space next week as we mark our tenth anniversary!

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

Next Week: The Tenth Anniversary of Opinio Juris!

by Chris Borgen

Just a quick heads-up that tomorrow, January 10th, is the Tenth Anniversary of Opinio Juris!

All next week we will have posts looking back on the first decade of the blog as well as on the decade in international law. And we will also have posts looking forward…

Thank you to everyone who has taken time to read or write anything posted on this forum. Your engagement and contributions is what transforms this from a “blog” into a conversation and a community.

So next week we’ll celebrate not the past, so much as our ongoing discussion!

New Essay: The Use and Abuse of Analogy in IHL

by Kevin Jon Heller

I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ’s own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled “The Use and Abuse of Analogy in IHL,” and here is the abstract:

It is a truism to say that conventional international humanitarian law (IHL) regulates international armed conflict (IAC) far more extensively than non-international armed conflict (NIAC). In IAC, conventional IHL authorizes both targeting and detention and carefully circumscribes their use. In NIAC, by contrast, conventional IHL is silent on the authorization for targeting and detention and imposes only rudimentary limits on when individuals may be targeted or detained.

Like nature, however, international law abhors a vacuum. Many of the gaps in the conventional IHL of NIAC have been slowly filled by custom; the ICRC has concluded that 138 of the 161 customary rules of IHL now apply in both IAC and NIAC – nearly 86%. As a result, it is now common for scholars to claim that, with the notorious exceptions of the combatant’s privilege and POW status, very few critical differences remain between IAC and NIAC concerning the applicable rules of IHL.

From a positivist perspective, the gradual harmonization of IAC and NIAC through convention and custom is unproblematic, because both are formal sources of international law. Since 9/11, however, the United States has consistently taken the position that certain IAC-based rules of IHL can be applied in NIAC via a third method: analogy. The U.S. has argued, for example, that it can target members of any organized armed group that would qualify under IAC rules as a “co-belligerent” of al-Qaeda.

In assessing the legitimacy of such analogies, it is tempting to focus on whether it makes sense to apply a particular IAC rule in NIAC. Is the Haqqani Network’s relationship with al-Qaeda really equivalent to Italy’s relationship with Nazi Germany? Emphasizing the substantive “fit” between IAC and NIAC, however, simply obscures a more fundamental question: where does the U.S.’s authority to analogize between IAC and NIAC come from?

That is a critical question, for two reasons. First, targeting and detention potentially violate the human rights of the individuals they affect. As the International Law Commission has noted, it is not enough for targeting or detention to qualify as a legitimate act of self-defence under Art. 51 of the UN Charter; that targeting or detention must also be consistent with either IHL or international human rights law (IHRL), depending on which legal regime applies. Second, because all of the targeting and detention activities that occur in the NIAC between the U.S. and al-Qaeda take place extraterritorially, each U.S. use of force and each capture operation potentially violates the sovereignty of the state on whose territory it takes place.

Put more simply, by relying on analogized rules of IHL to justify expanded targeting and detention of al-Qaeda, the U.S. potentially runs afoul of a number of prohibitive rules of international law: the principle of non-intervention; the prohibition on the use of force; and IHRL prohibitions on the arbitrary deprivation of life and liberty. What, then, is the legal basis for those analogies?

This chapter’s answer is straightforward: nothing. There is no basis in international law for taking rules of IHL that exist as a matter of convention and custom only in IAC and applying them in NIAC by analogy – which means that the U.S. is systematically violating international law by relying on those analogized rules to target and detain extraterritorially.

I am very rarely happy with essays when I finish them, but I’m quite happy with this one. I’m sure many people will disagree with it, and I’ve likely made plenty of mistakes. But I think the essay addresses a number of difficult issues in IHL/IHRL that deserve further discussion. If I can provoke debate, I’ll be happy.

As always, comments, criticisms, and ad hominem attacks are welcome.

PS:  I should note that the essay was inspired by, and provides a response to, my friend Ryan Goodman’s excellent 2009 article in AJIL, “The Detention of Civilians in Armed Conflict” (pdf here). I highly recommend reading his article before reading my essay.

Cliff Sloan on Closing Gitmo

by Deborah Pearlstein

In case you missed it Monday, departing U.S. State Department special envoy for closing Guantanamo had a sharp op-ed in the N.Y. Times, marking the administration’s recent successes at moving detainees out of the prison and urging that further progress be made. Among other things, Sloan highlights several “fundamental misconceptions” he believes are behind continuing opposition in Congress and elsewhere to steps necessary to close the facility, particularly the misconceptions that the recidivism rate is high and that all of the detainees there pose a continuing threat.

Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.) … Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.

In light of these statistics, those who argue against continuing transfers are indeed, as Sloan puts it, “constrained by an overabundance of caution.” As I’ve noted here before, and described in detail in a piece just out in the Cardozo Law Review, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end. Thanks to Sloan’s efforts and others, other countries are beginning to welcome former Gitmo detainees. But we have also returned prisoners to homelands still suffering violent political instability, particularly the post-World War European nations whose economic, political, and state security systems were essentially non-functional. We likewise returned prisoners who still harbored violent intentions toward the United States; in World War II, among the first prisoners we released were those Nazis whose enmity was “most hardened” against us (principally because they were not good sources of prisoner labor). And we released prisoners who had ideological allies with whom they could reaffiliate post-detention; we returned thousands of communist prisoners to communist nations at the height of a half-century long war that was “hot” (in Korea and against non-state groups in Vietnam) almost as often as it was cold.

In all of these conflicts, we calculated that any short term tactical risk we might bear by the release of a few individuals was outweighed by the long term strategic benefit to the United States of acting, and being seen to act, in a manner consistent with prevailing law. Sloan notes: “As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, ‘The greatest single action the United States can take to fight terrorism is to close Guantánamo.’” The strategic benefits here are clear. It’s as good a time as any to recall a little history and seize them.

Guest Post: On Cuban Normalization

by Larry Cata Backer

[Larry Catá Backer is W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs at Penn State Law.]

On December 17, 2014, the Presidents of the United States of America and of the Republic of Cuba announced an intention to move toward the normalization of relations between their countries. The two statements reflected the quite distinct conceptual frameworks from which they originated, and the aspirations and tastes of the elites whose approvals were a necessary predicate for such action. These frameworks can coexist unchanged only in the abstract, and are well reflected in the Presidential statements. Yet both views are so distorted by their own ideological self-references that each continues to evidence both the self-destructiveness and the irrelevance that has marked the policy of each against the other since the early 1960s.

Cuba remains fixated on the history ending moment of the triumph of its revolution of January 1, 1959, which marked not only the sweeping away of the old order, but also the installation of a new order that required no further improvement. The Revolution required defense and protection, not development or implementation. One can follow the rhetoric and policy of the Cuban Communist Party (CCP) since the 1960s as one long arc of efforts to maintain, protect and sustain a status quo set on that day that marked the moment of the triumph of the Revolution. This “freeze-time” conceptual baseline also characterized certain elements of the Cuban-American community for whom Cuba ceased to exist in time from the moment of the flight of the Batista regime. Cuba, politically at least, never moved from a revolutionary to a post-revolutionary society. Its state and party apparatus, unlike those of China and Vietnam, never transitioned from revolutionary to party in power. This Cuban policy of defensiveness is as much reflected in its state constitution as it is in the subtext of President Raul Castro’s speech announcing normalization. Its cultural, economic and social dimensions are deeply stamped onto Cuban society and governmental policy.

It is here that Cuba has been its own worst enemy. Its culture is tethered to January 1959 (and tourists seem to enjoy this museum experience even as younger generations of Cubans chafe at the institutional manipulations that force them to sterile reproduction especially for the benefit of tourists). Its economic model is tethered as well to the central planning system of Eastern European satellites of the 1970s. The CCP appears to have become no more than the caretakers of an ideological museum; its bureaucracy, still substantially loyal to Fidel Castro’s brand of European Stalinism, now has become a more potent enemy of Cuban reform than anything hurled at Cuba by the U.S. or by U.S. public intellectuals and politicians now arrayed against normalization. This is no idle supposition. The Cuban legal and administrative system appears to be moving toward rules based standards. But it is applied only through the exercise of discretionary authority. Every action requires application, review and permission. Substantial legal reform will be necessary before many of the benefits of normalization may be realized. Cuba’s hostility to global markets, and to the framework of globalization, will continue to hamper efforts to plug into global finance and commerce even without the impediments of the U.S. Embargo. Until the CCP cease fighting their revolution and start governing forward Cuba will continue to face problems that normalization will not solve.

For its part, the US remains fixated on the vapors of an old imperial project from 1898. That old imperial project is augmented by the perversities of a strain of elite Cuban-American policy orientation that is also fixated on January 1, 1959, which has become a part of the ossified mixture of policy premises that have marked U.S. thinking about Cuba since the early 1960s. Like their Cuban counterparts, some influential Cuban American elites have frozen Cuban policy to that revolutionary magic moment. References to the now nearly mythological Cuban Republic before 1959 serve as a touchstone for plans that are grounded in teasing out variations of “what-ifs” all projected from 1959 and on erasing the events between then and now. Even as Cuban American culture, interests, sensibilities and tastes change, the structures of Cuban American policy remain stuck in “restoration” sensibilities. That restoration-centered view dovetails nicely with the ideologically driven foreign policy predilections of the United States, and its cold war era ideological internationalism. For the U.S., that still means regime change. We are told that the reason for the change in policy is that the embargo had not worked. We are not told that the U.S. has abandoned the objective—indeed, President Obama’s statement made the point quite clearly that the opposite is true. American citizens, businesses, and civil society, are now encouraged to descend on the Republic, with the sense that these interactions themselves will produce movement toward change. Yet that is precisely what the Cuban state fears most. That element of control of the internal choices of a nation that the United States has sought to own, control or manage since the mid 19th century, provides a troubling foundation for normalization. But it is not surprising. Still, for the U.S., the benefits of normalization may have little to do with Cuba itself. For the President, it represents another point of confrontation with his Republican Party adversaries. Along with changes to immigration, normalization serves as a provocation to his political rivals and a dare to challenge his actions either by legislation or in the courts. In either case, the differences between the political parties can be more sharply drawn for the upcoming presidential elections and the Republican Party painted as obstructionist. U.S. business may remain wary as long as the 1960s expropriation claims remain unresolved. Yet they will be warier of Cuba’s current inability to finance its transactions than by past business wrongs.

This is not to minimize the importance of the changes to come. The influx of people from the U.S. will restore a balance of interaction cut off in the early 1960s. The influx of goods, brought in the suitcases of thousands of travellers, will effectively create secondary and wholesale markets for goods (though distorted by the technologies of import on a micro scale) that the Cuban bureaucracy had been able to resist even as Raul Castro sought a more vigorous approach to economic reform in 2011. Miami may continue to serve as the thought and culture leader for the greater Cuban community, including those in Cuba, though now that cultural relationship will be more open and may run more effectively in two directions. Cultural exchanges will drive development of the arts in both states in new directions with less connection with a preservationist ideal. Normalization will put U.S. relations with its Latin American neighbors on a sounder footing. It will liberate U.S. policy from the burden of Cuba as the US. seeks to deal with major Latin American states. It might reduce the impact of the socialist regional trading block. For Cuba, normalization brings the possibility of stability during transition. It might stem the tide, now about 1,000 able bodied persons a day, from a nation whose demographic profile looks more like that of Japan than of a developing state. And it will provide hard currency and goods for secondary markets that Cuba needs badly. And it may provide the discipline of markets to Cuba without threatening the core socialist premises on which the state is now organized (this last point to the chagrin of many in the United States). But mostly, perhaps, it will permit Cuba to develop as it chooses, however much that may conflict with the interests of others, without fear of direct U.S. threat.

However, the changes that normalization might bring will come despite rather than because of changes in public policy. Cuba and the U.S. remain their own worst enemies in the process. Powerful internal forces in both states may well derail the move. Normalization threatens, for both, the foundations of their foreign and domestic policies relative to the other. It will require Cuban-U.S. relations to move back into time and beyond the asphyxiating grip of January 1959. Cuba will have to undertake the difficult task of reshaping its political culture so that it becomes forward moving again, even within the parameters of Marxist-Leninist organization. That may require dismantling its antiquated economic system in favor of something more sustainable. The United States will have the equally difficult task of reducing its interference in the internal affairs of its neighbor. The U.S. might do better to pursue the pragmatic business of business rather than the business of regime change in its relations with Cuba. With a maturing architecture of business and human rights, developed out of the U.N. Human Rights Council, conformity to international norms in its economic activities might serve as a better venue for developing human rights based behaviors than the ideologically driven mania for photo-op elections that seems to have fouled U.S. foreign policy these last several decades.   Undertaken slowly, in measured and rational steps, it may be possible to make good the small promise set out in the normalization messages of both Presidents.

Weekly News Wrap: Monday, January 5, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

H-Diplo Roundtable on David Bosco’s “Rough Justice”

by Kevin Jon Heller

H-Diplo, part of H-Net, recently hosted a virtual roundtable on David Bosco’s excellent book Rough Justice:The International Criminal Court in a World of Power Politics, published by Oxford last year. Erik Vroeten introduced the roundtable, and Sam Moyn, David Kaye, and I submitted reviews. David then wrote a response. Here is a snippet from Erik’s introduction:

It is my pleasure to introduce the distinguished and diverse set of reviewers of this timely and important book. Samuel Moyn embeds Bosco’s book in a longer history of the tensions between power and justice. If international justice is not impartial, then it loses its legitimacy. Yet, powerful states have always had incentives to interfere with individual exercises of justice and they rarely fail to act on these temptations.  The ICC, despite all its normative appeal, has been unable to break this pattern.

David Kaye lauds Bosco for the clarity of his exposition and for treating the intersection between idealism and power politics “with great modesty and insight, and without a hint of dogma.” Yet, Kaye also finds that in evaluating the ICC we must look beyond power politics. Questions about the way the ICC has had more subtle influences on how national, subnational, and international actors conceive of justice-related issues are not answered in this book. Looking at such questions may lead to a different and more nuanced perspective about the role of the ICC in international affairs.

Kevin Jon Heller praises Bosco for writing “[..] a history of a complex international organization that is eminently readable yet does not sacrifice analytic rigor.” He especially appreciates the “deceptively simple theoretical structure,” which characterizes the relationship between the Court and powerful states. Yet, Heller also has some pointed criticisms. Most notably, he believes that Bosco underplays the failings of Luis Moreno-Ocampo as the Chief Prosecutor of the ICC. He also takes issue with some historical assessments. At times, Heller argues, Bosco understates the agency of the Court. For example, Moreno-Ocampo was under no obligation to accept the Security Council’s terms on Libya. At other times, Bosco oversells what the Office of the Prosecutor (OTP) might have done. It is really not up to the OTP to lobby in pursuit of referrals against non-member states.

I share the reviewers’ praise for the analytical clarity of the book. From the perspective of my discipline, international relations, I hope it will contribute to more subtle understandings of how power affects the workings of international institutions. But, as the reviews show, there are also important lessons for historians and lawyers. As in his previous volume,), David Bosco has given us a book that has the distinguished qualities of being clear, interesting, and persuasive.

The roundtable is well worth your time. You can download a PDF of all the contributions here.