My St. John’s colleague Marc DeGirolami has a post up at Mirror of Justice summarizing today’s European Court of Human Rights decision in Lautsi v. Italy.  The full decision is at the ECtHR’s website here.  At issue in the case was the display of crucifixes in Italian public school classrooms. In 2009, the ECtHR ruled against Italy’s display of the crucifixes, igniting a political firestorm across Catholic states in Europe.  Today’s 15-2 decision by the Grand Chamber of the court is issued following an 2010 acceptance by the Grand Chamber of referral by Italy. (Referral to the Grand Chamber operates sort of like an en banc appeal.) It reverses the earlier opinion, finding the display of the crosses is public schools fell within Italy’s “margin of appreciation” and is therefore not a violation of the European Convention of Human Rights. From Marc’s  post:

What [according to the court] is the meaning of the crucifix?  “[T]he crucifx is above all a religious symbol . . . . The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive[.]“  (66)  The Court therefore did not decide for itself whether the crucifix partook of an identitarian or cultural meaning independent of and in addition to its religious meaning.  But it accepted that the State (here Italy) believed that the crucifix was a symbol with multiple meanings, some of which were foundational as to its civic traditions, and…and here is the key…”the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State.”  (68)

The concept of the margin of appreciation, interestingly enough, in some ways is similar to the doctrine of subsidiarity (see Prof. Paolo Carozza’s excellent work here) and the concept was absolutely crucial to the Court’s judgment.  Because of the well-documented lack of consensus among and even within the European states, and because the crucifix was a “passive symbol” (compare the Folgero and Zengin cases out of Norway and Turkey, respectively — par. 71) whose purpose was not “indoctrination,” the decision whether to retain the crucifix fell within Italy’s margin of appreciation.  (70-72).

Now that the supporters of a no-fly zone over Libya have got the legal authority they required  — both international and domestic (I agree with Peter that the president does not need additional congressional authority to vote for and contribute to a UN SC action) — what comes next? Despite herculean efforts by the punditry to analogize the situation in Libya to Iraq, Kosovo, Bosnia, Sudan, Afghanistan, etc., the end game for this conflict seems to be more of a black hole than any in recent memory.  And the swiftness of this turn of events is pretty stunning.  President Obama’s State of the Union address at the end of January had no mention of Egypt, Tunisia, Bahrain, or Libya.  Just 45 days later, we have committed to an open-ended UN Chapter VII operation that authorizes “all means necessary” to protect the civilian population of Libya from its own government.  Outside of the response to the attacks of the 9/11, I can’t think of any time there has been so swift an enforcement action against a member state of the UN. And, in the case of Afghanistan post-9/11, the “government in exile”, not the Taliban, continued to hold the Afghan seat at the UN.  There are many observers, like Anne-Marie Slaughter, who believe the international community has been too slow in this case. But relative to past Chapter VII actions, this is lightening speed.

So, what next? The history of Chapter VII operations — and other non-UN authorized interventions like Kosovo and Iraq — tells us that lots can go badly wrong for the intervening powers at this stage.  Andrew Sullivan has usefully rounded up the reactions from the punditry here.  I share Marc Lynch’s sense of feeling conflicted, which he discusses here at Foreign Policy.   Lynch describes what it means for the no-fly to “succeed”:

The intervention is a high-stakes gamble. If it succeeds quickly, and Qaddafi’s regime crumbles as key figures jump ship in the face of its certain demise, then it could reverse the flagging fortunes of the Arab uprisings. Like the first Security Council resolution on Libya, it could send a powerful message that the use of brutal repression makes regime survival less rather than more likely. It would put real meat on the bones of the “Responsibility to Protect” and help create a new international norm. And it could align the U.S. and the international community with al-Jazeera and the aspirations of the Arab protest movement. I have heard from many protest leaders from other Arab countries that success in Libya would galvanize their efforts, and failure might crush their hopes.

The problem with even this rosiest view of success is that it doesn’t tell us what, beyond the end of Qaddafi’s regime, the end game is.  What does post-Qaddafi Libya look like? (Or, to frame it as a question I heard asked last week:  can you name three Libyans in public life other than Qaddafi or someone with the last name Qaddafi?)  Frederic Wehry has a useful primer up at Foreign Affairs on the Libyan political landscape and the likely make-up of the post-Qaddafi ruling class, which raises lots more questions about who would be in control.  And is there any historical precedent to suggest that the western powers leading the no-fly effort (with only a thin veneer of political cover from the Arab League)  would not be (a) drawn directly into and/or (b) held responsible for what happens next?  Who among the regional powers has the capacity to broker and, most importantly, keep some kind of post-conflict peace arrangement?  Military, economic, political, and administrative capacity matters in these sort of large-scale interventions, and interventions that take place before a workable peace agreement is in place are the least likely to succeed.  (Two 2005 Rand studies on UN- and US-led interventions documented the importance of settlements on the ground before stability and nation building operations can succeed.)

Even the idea that the intervention could establish a new “norm” for R2P and humanitarian intervention is on pretty shaky ground. In Libya’s neighborhood the bloody crackdown in Bahrain is being largely played down and the only intervention has been by the Saudis seeking to bolster the status quo rather than hasten a path to reform. Norms only solidify if they are broadly accepted and are seen as effective. So, if Qaddafi does go quickly? Lots of hard decisions to come about stabilization and nation building.  And if he doesn’t go quickly?  No norm setting, and lots of hard decisions ahead about the escalation of regional and international involvement.

Although I support the Security Council referral of the Libya situation to the ICC, I do not have any degree of confidence that the ICC referral has not altered Moammar Qaddafi’s negotiating or fighting posture at this time.  I have no idea whether Qaddafi’s state of mind (if you can even refer to it in normal psychology terms) has or has not been altered by the ICC referral.  And whether Qaddafi himself says it has been or not would obviously be completely unreliable. On the other hand, I don’t think there is anyone in a position to say with any degree of certainty that Qaddafi would indefinitely remain in power if the ICC had not been invoked.  We need to acknowledge that the threat of prosecution for past crimes does have some effect on individual behavior.  (And in the case of Qaddafi, effectively cut off the chance that he could seek exile in Venezuela, a state party to the ICC.)  But we also need to be honest that we really have no reliable way of knowing, ex ante, whether that effect will include a worsening of atrocities and crimes themselves.  Sadly, we won’t really know until we have reached some sort of end point in the current crisis.  And even then it will be difficult to make any reliable determinations of what the alternative outcomes might have been.

On this question of bargaining away justice for peace, there is one minor parallel with the crisis in the Balkans in the 1990s.  Before the international community could agree on meaningful intervention in Bosnia, it created the ICTY.  Many at the time saw this as a move to be seen as “doing something,” without committing troops or using force to end the war.  One effect of that move to “do something,” as I have written about here, was a kind of “tail wagging the dog” scenario where, because  the framework for prosecution of past atrocities was created before the more robust intervention and the final peace process took place, the idea of criminal prosecution became a non-negotiable.  The U.S. and other western powers were able to temporarily postpone the danger that they couldn’t negotiate with potential indictees by lending only anemic intelligence support to the ICTY until after the Dayton process was over.  Still, once the court was in place, it had to be factored into any peace process.  In some ways it was a useful bludgeon (keeping Karadzic and Mladic out of Dayton); in other ways it limited options that some of the mediators might have wished to have on the table.  One of the concerns many of us have about the ICC as a permanent institution was the danger that a prosecutor could open an investigation without coordination with the other actions of the international community.   Disconnecting criminal prosecution from peace processes and/or transitions to democratic removes some flexibility and tends to narrow options for a negotiated peace.   The ICC statute as currently drafted preserves a role for the Security Council, and in the case of Libya, the referral itself was passed unanimously by the Council.  This means the ICC case is already a part of the international response. In fact, this was precisely the sort of referral process the U.S. supported in 1998 at the negotiations over the Rome Statute and, for me, is the highest best use of an ICC that is now a permanent part of the international legal architecture.  The Security Council is a deeply flawed instrument to reflect the power and will of the international community, but it is the best one we have.

Almost three years have passed since the Supreme Court’s decision in Medellin v. Texas. The only remaining avenue to overturn Medellin and make the ICJ’s decision in Avena (holding that the US violated its obligations under the Consular Convention and ordering review of the cases) binding as domestic law — a federal statute — has not been passed.  Former State Department Legal Advisor John Bellinger has again made the case for Congress to pass an implementing statute in this op-ed in the Washington Post last week. Bellinger lays out the politics of getting a law passed to review the death row convictions at issue in Avena:

In contrast to the Bush administration, the Obama administration has made less visible efforts to comply with the World Court rulings. The White House has not asked Congress for legislation authorizing the president to order a review of the convictions of the remaining Mexican nationals, presumably because it is not popular to side with an international tribunal in favor of a group of convicted murderers. The next execution is scheduled for July.

Although Republicans might not be eager to cooperate with President Obama, legislators should craft a narrow law authorizing the president to comply with the World Court ruling. Even if they are skeptical of vague principles of international law, House Republicans should recognize that U.S. compliance with the Vienna Convention is vital. Members of Congress condemn other countries that fail to comply with their treaty obligations to the United States in cases of consular access and diplomatic immunity. But lawmakers cannot expect other countries to comply with their treaty obligations to us unless the United States observes its treaty obligations to them. Congress and the president must ensure that the United States observes the Vienna Convention not as a favor to foreigners but because it serves a “plainly compelling” national interest in protecting Americans who travel and American companies that operate in foreign countries.

To me this should be an easy call for Republicans and Democrats alike: an effective foreign policy requires the protection of the Consular Convention (not to mention the Diplomatic Convention — see, e.g., the Davis case in Pakistan.)  The recent evacuations of American citizens from Egypt and Libya demonstrate the importance of our consular presence oversees and the protection our consular work receives under international law.  We should be doing everything we can to ensure that we comply with the Convention as a way to underscore our commitment to consular protection.  But I don’t sense a whole lot of momentum here.  Do our readers have any additional insights into the current state of play?

According to the Washington Post, Covington and Burling has filed with the Department of Justice to represent Alassane Ouattara, the recognized winner of the presidential election in Cote d’Ivoire.  Why would a U.S. law firm be representing (pro bono no less!) a foreign politician? According to Covington’s international policy advisor, Alan Larson, the purpose was to make sure that ousted president Gbagbo — who, until recently, was represented (at top fees!) by Lanny Davis — did not improperly capture moneys to be paid to the government of Cote d’Ivoire:

“Our highest and best use is to be providing legal and strategic advice on the steps that need to be taken to make sure that he [Ouattara] is recognized for what he is, which is the elected, legitimate president of Cote d’Ivoire,” Larson said, using the French name for the country. “It’s very important in the big scheme of things to have the situation in Cote d’Ivoire come out right.”

No doubt Covington will be in a competitive position to get fee-based work from Ouattara’s government after it has been properly installed.

The papers filed with DoJ are required by the Foreign Agents Registration Act:

The rush to represent both sides in Ivory Coast underscores the lucrative but little-noticed world of overseas lobbying, in which U.S. firms sign contracts with foreign governments, leaders or companies to represent their interests. Under a long-standing law called the Foreign Agents Registration Act, U.S. firms are required to disclose the details of such contracts to the Justice Department, including payment schedules.

But such arrangements can prove uncomfortable if the clients become the focus of international controversy. Last week, for example, the Washington Media Group announced that it had severed ties with the collapsing regime in Tunisia amid reports of human rights abuses.

The process of Foreign Agent registration (i.e., becoming a lobbyist for foreign interests) is quite transparent.  You can search the DoJ database here.  Many of the registrants are lawyers, but a surprising number of names associated with some of the larger law and lobbying firms are former U.S. diplomats.

The American Branch of the International Law Association will be hosting its annual International Law Weekend in New York City, October 21-23.  The full program can be found here, and includes some great panels on a range of topics under the theme “International Law and Institutions: Advancing Justice, Security and Prosperity.”  (You might even see an OJ blogger or two!)  In addition to the scholarly discussion, the organizers have put together what looks to be a really terrific career program for students:

On Saturday, October 23rd, beginning at 2:00 pm, the American Branch will launch a half-day program of speakers, break-out sessions, and other events designed to help law students gather information about career paths in different areas of international law and to gauge the future demand for lawyers with expertise in different aspects of private and public international law. In addition to the American Branch, the following organizations are participating in this career program: the American Bar Association Section of International Law, the American Society of International Law, Debevoise & Plimpton LLP, EarthRights International, the Frederick K. Cox International Law Center at Case Western Reserve University, Freshfields Bruckhaus Deringer, Human Rights Watch, the International Law Students Association, Lawyers Committee on Nuclear Policy, Munger, Tolles & Olson LLP, New York Law School, the United Nations Office of Legal Affairs, Wayne State University Law School, and Willkie, Farr & Gallagher. For more information, click here.

You can register online here.

Our friend and OJ guest contributor Professor Greg Gordon passes along the following call for papers — for international law scholars and other subject areas for the Central Law Schools Association 2010 meeting. Full announcement after the jump:

The news out of The Hague today is the genocide convictions of Popovic and Beara, both of whom the ICTY trial chamber found to be key leaders of the Srbrenica massacre of 1995.  Each was sentenced to life imprisonment, among the longest sentences for the ICTY. Lesser convictions and sentences were handed down to five other former Bosnian Serb officials. Here’s the AP story and an excerpt from the ICTY news release:

Seven former high-ranking Bosnian Serb military and police officials were today convicted by Trial Chamber II of a range of crimes committed in 1995 in relation to the fall of the enclaves of Srebrenica and Žepa, eastern Bosnia and Herzegovina.

Vujadin Popović, the Chief of Security of the Drina Corps of the Bosnian Serb Army (VRS) and Ljubiša Beara, Chief of Security in the VRS Main staff were found guilty of genocide, extermination, murder and persecution and sentenced to life imprisonment. Drago Nikolić, the Chief of Security in the Zvornik Brigade, was found guilty of aiding and abetting genocide, extermination, murder and persecution and sentenced to 35 years’ imprisonment. Ljubomir Borovčanin, Deputy Commander of the Special Police Brigade of the police forces was convicted of aiding and abetting extermination, murder, persecution and forcible transfer (Judge Kwon dissenting) under Article 7(1) of the Statute and, as a superior, of murder as a crime against humanity and as a violation of the laws of customs of war under Article (3). He was sentenced to 17 years’ imprisonment. Radivoje Miletić, the Chief of the Administration for Operations and Training at the VRS Main Staff was found guilty of murder by majority, persecution and inhumane acts (forcible transfer). He was sentenced to 19 years’ imprisonment. Milan Gvero, the Assistant Commander for Moral, Legal and Religious Affairs of the VRS Main Staff, was found guilty of persecution and inhumane acts and acquitted of the two counts of murder and that of deportation. He was sentenced to 5 years’ imprisonment. Vinko Pandurević, Commander of the Zvornik Brigade, was found guilty of aiding and abetting murder (Judge Kwon dissenting), persecution and inhumane acts. He was acquitted of charges of genocide, extermination and deportation. He was sentenced to 13 years’ imprisonment.

Today’s judgement concerns the largest trial to date held before the Tribunal and deals with a wide range of crimes committed by the Bosnian Serb forces against Bosnian Muslims during and following the fall of the former UN protected zones of Srebrenica and Žepa in July 1995.

The full text of the court’s summary of the judgment is here.

The International Law Association’s 2010 Biennial Conference, “De Iure Humanitatis: Peace, Justice, and International Law” takes place August 15-20 in The Hague.  Early reduced-fee registration ends tomorrow, May 15. It looks to be great a program, hosted by the Dutch Branch of ILA, with some fun side events in and around The Hague.  (You may even see a couple of the OJ regulars in attendance!)  Here is a full description via Professor John Noyes, President of the American Branch of ILA:

Professor David Bosco has started a new blog focusing on international organizations, “Eye on IOs.” I like his subtitle — “A blog on the progress and pitfalls of international organizations.”  It reminds me of a chapter I wrote addressing “progress and paradox” in international security cooperation. (It is nice to have company as a moderate on questions of international institution building!)

Professor Bosco has  posted a comment on the Beth Simmons/Allison Danner study of ICC membership (“Credible Commitments”) published in the recent International Organization, in which they try to sort out the puzzle of why ICC membership is high among both peaceful “rule of law” states and conflict-prone states that lack strong rule of law. Bosco notes:

[Simmons and Danner's] explanation is that states that have experienced recent conflict are using ICC ratification as a way of signaling (mainly to a domestic audience) their commitment to ratchet down violence by, in essence, tying their own hands:

This exposure to prosecution by an independent international institution acts as an implicit promise by governments that they will foreswear particularly heinous military options, and it endows that promise with a credibility that such governments would otherwise lack.

It’s a fascinating conclusion and their argument is well supported. But I wonder if there isn’t an alternative explanation in many cases: that states at high-risk for ICC scrutiny have chosen to “appease” the ICC by joining and, in some cases, even referring themselves to the court (as the Democratic Republic of Congo and Uganda have done) rather than “confront” it by refusing to join. After all, as these countries well know, refusing to ratify the Rome Statute doesn’t immunize them; the Security Council can always expand the ICC’s jurisdiction to cover states not party to the statute, as it has done in the case of Sudan.

Professor Bosco’s alternative explanation sounds right — perhaps more so if measured against the relatively low short-term domestic political cost for conflict-prone states for joining an untested and slow (in comparison with alternative actions that could be taken) international institution.

Check out the full blog. And welcome to the blogosphere “Eye on IOs”!

The American Branch of the International Law Association has posted a call for panels for the 2010 International Law Weekend, which will take place in New York October 21-23. This year’s theme is “International Law and Institutions: Advancing Justice, Security and Prosperity.” ILW is always a fun event — with lots of student and NGO, IO and private practitioner participation.  Full call for proposals after the jump.