Author Archive for
Peggy McGuinness

Harold Koh to Guest Blog on Legality of Osama Bin Laden Killing

by Peggy McGuinness

As discussions over the legality of the May 1 killing of Osama Bin Laden by U.S. forces heated up and international law and law of war experts provided a range of potential arguments for and against the lawfulness of U.S. action, we thought it would help public discussion to present the official U.S. position on the legal dimensions of the raid and killing.  We are delighted to announce that the Legal Adviser to the U.S. State Department, Harold Hongju Koh, has accepted our invitation to address these issues and that he will be guest blogging with us tomorrow, May 19.

As many of our regular readers know, Koh came to the position of Legal Adviser in 2009 with a wealth of experience and deep expertise as a leading scholar in international law, a former Assistant Secretary of State for Human Rights, Democracy and Labor, and Dean of the Yale Law School.  We are honored to host him on Opinio Juris and look forward to what is sure to be a lively follow up discussion here and elsewhere.  I should note that Koh’s predecessor, John Bellinger, guest blogged with Opinio Juris in 2007, to address a range of questions relating to the U.S. legal policies on detention and counter-terrorism and the power of the president to interpret international law.  The opportunity to hear from the current Legal Adviser continues an important tradition of dialogue between government lawyers, the academy, and the general public.  It also represents the kind of transparency of legal policy necessary to effective and accountable governance in these challenging times.

Council of Europe Calls on Congress to Pass Avena Implementation Law

by Peggy McGuinness

The Council of Europe continues to monitor death penalty practices around the world and call out friendly states that fall short of full abolition.  Last week the Council passed a resolution (full text here) reiterating its support for abolition and calling on Belarus (as a potential member state), Japan and the U.S. to join the consensus of democratic, human rights regarding states by abolishing the death penalty.  Most interesting was the resolution’s focus on implementation of the ICJ’s Avena decision (Mexico v. United States) as a dimension of abolition. I have long argued that the Avena case and the domestic line of cases related to Avena were centrally about U.S. exceptionalism on the death penalty, and this resolution demonstrates that, at least from the European perspective, the death penalty is at the heart of the Consular Convention controversy.  It seems highly unlikely, however, that the U.S. Congress will respond to the Council’s suggestion.  Indeed, it’s perhaps more likely that a push from Europe that focuses on the death penalty will alienate some lawmakers. An approach emphasizing the value of enforcing the Consular Convention in all cases — as argued by John Bellinger — is more likely to win over Congress.

From the Council’s Resolution 1807:

1.       The Parliamentary Assembly reiterates its principled opposition to the death penalty in any circumstances. It takes pride in its successful contribution to ridding almost all of Europe of this inhuman and degrading punishment, by having made abolition of the death penalty a condition for accession to the Council of Europe.


4.       As regards the United States of America, the Assembly:

    4.1.       congratulates those American states which have recently abolished the death penalty (in particular, New Mexico, New Jersey and New York State) and invites others, as well as the federal jurisdiction, to follow their lead;

    4.2. regrets that the arbitrary and discriminatory application of the death penalty in the United States and the public scandals surrounding the different methods of execution in use (lethal injection, electric chair, firing squad) have stained the reputation of this country, which its friends expect to be a beacon for human rights;

    4.3. considers that, particularly in the present time of budgetary constraints, scarce resources are better used to improve crime prevention and to increase the rate of clearance of serious crimes rather than to fight protracted legal battles in order to put to death individual perpetrators.

5.       Also, as regards the Avena (Mexico v. United States of America) judgment of the International Court of Justice, the Assembly urges that:

    5.1. the federal legislature pass legislation enabling those Mexican nationals condemned to death without having been provided with the consular assistance mandated by the Vienna Convention on Consular Relations to be retried following the correct procedures;

5.2. all judicial authorities in the United States be given the possibility to ensure that in future foreign nationals who may be subjected to the death penalty are provided with appropriate consular assistance, in compliance with the international obligations of the United States under the Vienna Convention.

International Law Association Regional Conference Meeting in Taipei: Registration Open Until May 10

by Peggy McGuinness

Our friends at the International Law Association pass along the following registration information for the upcoming Asia-Pacific Conference in Taipei, which features a terrific line-up of speakersi:

The 2011 International Law Association (ILA) Asia-Pacific Regional Conference will take place in Taipei, Taiwan from May 29 to June 1, 2011. The conference theme is “Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges.”

The keynote speakers are Judge Helmut Tuerk (Vice President, International Tribunal for the Law of the Sea, ITLOS) and Professor David Caron (President, American Society of International Law). Other speakers include President Ying-jeou Ma (President, Republic of China), Lord Mance (Justice, Supreme Court of the United Kingdom), Professor Nicolaas Schrijver (President, International Law Association), Judges Albert Hoffmann, Jin-Hyun Paik and Shunji Yanai of the ITLOS, scholars and government legal advisors from various ILA branches. The ILA Research Committee on Recognition and Non-Recognition will also convene at the conference.

The tentative conference program is available at The registration deadline is May 10, 2011.

State Department Releases 2010 Human Rights Report

by Peggy McGuinness

On Friday, the State Department issued the 2010 Country Reports on Human Rights Practices, a mandatory report to the United States Congress on human rights conditions around the globe.  This link to the full report is here,  the remarks of Secretary Clinton is here, and a very useful q and a with Mike Posner, Assistant Secretary for Democracy, Human Rights and Labor is here.   If you are wondering why the report cannot be downloaded as one neat pdf file, it weighs in at over 7,000 printed pages!  The Department also announced the launching of a new, separate web portal for human rights reporting,

As part of our mission to update statecraft for the 21st century, today I’m also pleased to announce the launch of our new website,* This site will offer one-stop shopping for information about global human rights from across the United States Government. It will pull together reports, statements, and current updates from around the world. It will be searchable and it will be safe. You won’t need to register to use it. We hope this will make it easier for citizens, scholars, NGOs, and international organizations to find the information they need to hold governments accountable.

I will be posting more on the human rights reporting process in the weeks to come, but I would point out for now that it is a very interesting development in the global human rights project that the U.S. State Department has become–as the new website amply demonstrates–a central repository for reporting on human rights protection globally.  But with the advent of the Universal Periodic Review process at the UN Human Rights Council, it is not the only one.  Of course, not everyone is so enthusiastic about the State Department’s self-appointment as global arbiter.  The Chinese government, while engaging in one of its worst crackdowns against human rights lawyers and political activists in recent memory, managed to find time to issue its own report on human rights conditions in the U.S.:

In the United States, the violation of citizens’ civil and political rights by the government is severe, said the report.

Citizen’s privacy has been undermined. More than 6,600 travelers had been subject to electronic device searches between October 1, 2008 and June 2, 2010, nearly half of them American citizens, said the report, citing figures released by the American Civil Liberties Union (ACLU) in September 2010.

The report said abuse of violence and torturing suspects to get confession is serious in the US law enforcement, and “wrongful conviction occurred quite often.”

While advocating Internet freedom, the US in fact imposes fairly strict restriction on cyberspace, said the report.

The United States applies double standards on Internet freedom by requesting unrestricted “Internet freedom” in other countries, which becomes an important diplomatic tool for the US to impose pressure and seek hegemony, and imposing strict restriction within its own territory, the report said.

The US regards itself as “the beacon of democracy.” However, its democracy is largely based on money, the report said.

According to media report in 2010, US House and Senate candidates shattered fundraising records for a midterm election, taking in more than $1.5 billion as of October 24. The midterm election, held in November 2010, finally cost $3.98 billion, the most expensive in the US history.

More less-than-enthusiastic reactions to the US report can be found here (Bangladesh) and here (Russia).

* Great domain name, but searchability is not yet optimal.

Call for Proposals, International Law Weekend 2011

by Peggy McGuinness

The American Branch of the International Law Association has a call for panel proposals for International Law Weekend 2011, which takes place October 20-22 in New York City.  The theme of this year’s ILW is “International Law and National Politics.” The call for proposals can be found here, and includes the following information about submissions, which are due to the organizers by Wednesday, May 4:

This year’s three-day conference will explore the intersection of international rules and norms and domestic politics and policymaking. To what extent do international standards influence the application and interpretation of national law including complimentary or countervailing policies sought by domestic policymakers, non-governmental actors and/or civil society? Expert panels and discussion sessions will examine these and other issues with regard to such diverse areas as human rights and humanitarian intervention, national security, immigration, trade, labor, health care and the environment.

The Co-Chairs of ILW 2011 are Professor Martin S. Flaherty, Professor of Law and Co-Director of the Leitner Center for International Law and Justice at Fordham Law School, mflaherty17 [at] yahoo [dot] com, Sahra Diament of the United Nations Office of Legal Affairs, diament [at] un [dot] org, and Jill Schmieder Hereau, Program Coordinator at the International Law Students Association, jshereau [at] ilsa [dot] org. [Donald Donovan of Debevoise and Plimpton has also
joined as a co-chair.]

The Co-Chairs invite proposals for panels for ILW 2011. Please submit proposals by email to each of the Co-Chairs no later than Wednesday, May 4, 2011. The proposals should be structured for 90-minute panels, and should include a formal title, a brief description of the subjects to be covered (no more than 75 words), and the names, titles, and affiliations of the panel chair and three or four likely speakers. The proposals should also describe the format envisaged (point-counterpoint, roundtable, or other). One of the objectives of ILW 2011 is to promote a dialogue among scholars and practitioners from across the legal spectrum, so whenever possible, panels should include presentations of divergent views.

On a related note, students, faculty, and practitioners who are not already members of ABILA should consider joining.  In addition to access to ABILA publications, membership entitles you to special rates at ILW and the biennial ILA meetings.  Members of the ILA are also actively involved in drafting projects and studies along with the 45 other state associations.  Our friend Ruth Wedgwood is the current President of ABILA and passes along the following exciting information about ILA membership:

The studies of the ILA are enormously influential — see, for example, Maurice Mendelsohn’s study on Customary International Law, which has been widely cited by courts, including the International Court of Justice, and in the academic literature, with the unique authority of a group founded in 1873, that has truly international membership and international exchanges of views.

Over 25 members of the American Branch of the ILA have recently served on these international committees, including Professor Barbara Stark as chair of the ILA International Family Law committee, Christina Cerna of the ILA International Human Rights committee, Professor Linda Silberman as a U.S. member of the ILA International Civil Litigation committee, Professor Jim Naziger as chair of the Cultural Heritage Law committee.  and Coalter G. Lathrop as rapporteur of the Law of the Sea Baselines. Women have played a major role in the organization, with Professor Christine Chinkin of the London School of Economics as the current headquarters director of studies, Professor Catherine Kessedjian of the University of Paris as chair of the International Civil Litigation committee, and Professor Laurence Boisson de Chazournes of the Unversity of Geneva as co-chair of the Practice and Procedure of International Tribunals committee — alongside such eminent male-persons as former UK legal adviser Franklin Berman as chair of the Soft Law and International Investment Committee, and Professor Nicolaas J. Schrijver and Kamal Hossain as co-chairs of the UN Reform Committee.

There are also study committees of the American Branch itself, and its studies are published both in the biennial proceedings of the Branch and will soon be published on the web as well.  The American Branch director of studies is currently Professor Andrea Bjorklund of the University of California at Davis.

It’s a value-proposition, with lots of opportunity to break outside the bubble of American views of international Law.  Besides, the next Biennial ILA meeting in August 2012 is in Sofia, the pearl of the Black Sea.  The 2014 meeting is in Japan, and the 2016 meeting will be in Washington, D.C.

For more information, contact Ruth Wedgwood, at rwedgwood [at] jhu [dot] edu, or visit the American Branch web site at  Membership is $70 for new members for the first two years, which is divided between the American Branch and the London headquarters which supports the study activities.  See  For those who are able, the Branch also welcomes sustaining members at $200 per year.

ASIL Teaching International Law Interest Group: May 6 Conference at Pace Law School

by Peggy McGuinness

I am happy to pass along the following announcement for the forthcoming conference at Pace Law School on the use of empirical methods in teaching and writing about international law. Early registration closes this Wednesday, April 6. Here is the message from interest group co-chairs Cindy Galway Buys and Tom McDonnell:

The Teaching International Law Interest Group of the American Society of International Law is again holding a conference on International Law Teaching, this year at Pace University School of Law in White Plains, N.Y., on Friday, May 6. The conference is being co-sponsored by the American Branch of the International Law Association.

The theme is a little different from our Fall 2009 conference at Hofstra. We are focusing on getting both students and faculty involved in empirical research, historical research, Web 2.0, and experiential learning. Beth Simmons of Harvard is one of the country’s leading empiricists in the field of international law; she will be speaking along with Jordan Paust, Houston; Sital Kalantry, Cornell; Julian Ku, Hofstra; Peggy McGuinness, St. John’s; Tom Lee, Fordham; among other distinguished speakers. Anthony VanDuzer, from Ottawa University Faculty of Law, will be discussing his course on NAFTA, which he co-taught with a U.S. law professor and a Mexican law professor, using Skype to bring professors and students together from the three countries simultaneously. Robert Van Lierop, former UN ambassador and currently with the UN in Darfur, will be discussing the externship program he supervises with law students assisting island countries at the United Nations.

For more information and to register, visit this link.

We think it will be a stimulating conference; we hope you can join us.

Best regards,

Cindy Galway Buys and Tom McDonnell

Co-Chairs, Teaching International Law Interest Group,
American Society of International Law

Have You Worked in a Post-Conflict Justice Setting?

by Peggy McGuinness

Have you worked on post-conflict justice issues? Have you been part of a rule of law project in a conflict zone?  If so, you may be of help to our colleague Professor Elena Baylis (Univ. of Pittsburgh), who is working on a really terrific empirical project on post-conflict justice.  Here is the information from Elena which includes eligibility to win a $100 to spend at

If you have ever worked in the field of post-conflict justice, including work on post-conflict rule of law and/or work on post-conflict accountability for atrocities, you are invited to participate in an anonymous survey: (English) or (French).  The survey will take about 15 minutes to complete.

By participating in this study, you will help us understand the role played by people’s work and career choices in shaping the field of post-conflict justice.  This is the first study to focus on the people involved in post-conflict justice work, rather than on institutions and processes, so it is a great opportunity to add to our understanding of the field by sharing your experiences.

As thanks for participating in the survey, you will be eligible to win a $100 gift card.  One of every 25 participants in the survey will win.  At the end of the survey, you will be given access to a report with the survey results thus far, so that you can see how your answers compare to those of others working on post-conflict justice issues.  You will also be given the chance to request a copy of the final report of this research study and to volunteer for a follow-up interview if you wish.

The survey is anonymous.  All individual responses are confidential and will be kept secure, and the data from the survey will be reported only in the aggregate.  There are no foreseeable risks to you from participating in this research project, and the only benefit offered is the chance at winning a gift card. Your participation is voluntary and you may withdraw at any time. This research study is being conducted by Elena Baylis, Associate Professor, University of Pittsburgh School of Law, ebaylis [at] pitt [dot] edu.

Please feel free to forward this invitation to your post-conflict justice colleagues and friends.  Thank you for your time and support!

Opinio Juris at ASIL: Cocktail Hour at 7:00 pm, March 24

by Peggy McGuinness

Greetings from Washington, where several OJ bloggers are attending the American Society of International Law Annual Meeting.  Congratulations to the meeting co-chairs and organizing committee for putting together a terrific program.  If you are attending the meeting or in Washington, please stop by The Bar at the Ritz-Carlton for an informal gathering of the OJ team at 7:00 pm tonight, March 24.  It’ll be great to see our friends and readers!

Warren Christopher

by Peggy McGuinness

I was deeply saddened to hear of Warren Christopher’s passing this weekend. He was one of the last lawyer-statesmen of his generation within the Democratic party establishment – a veteran of World War II, with service in the Johnson and Carter administrations before being named Secretary of State by President Clinton. Jim Fallows’ has a lovely tribute here, which honors the local Southern California roots of Christopher’s public service and his engagement on the national and international scene. I had the honor to work as a junior assistant to Christopher during the first year of the Clinton administration, and came to admire him tremendously as a lawyer, statesman and mentor.

The press corps was not terribly forgiving of Christopher in those first months, which were marked by American hesitancy and perceived inconsistencies in approaches to the war in the Balkans (Christopher was initially reluctant to commit troops to the region), the attack on US Army Rangers in Somalia, and later the genocide in Rwanda. Many have faulted Christopher for not playing a stronger hand in guiding the young, inexperienced president through those rough foreign policy waters. In part, Christopher bore the brunt of the blame because he was the most visible face of a policy in disarray. I learned important lessons about the fickle nature of press coverage and the pressures of Washington politics in those first few months, and was constantly impressed by Christopher’s ability to remain focused on the job at hand and by his sheer energy and doggedness in shouldering the considerable burdens of the job. (He was in his late 60s when he took the position, which is remarkable in itself.)  Working with Christopher and the attorneys he had brought with him from O’Melveny – including his then-Chief of Staff and Obama National Security Adviser Tom Donilon – offered a new window on problem solving and negotiation. Lawyers and career diplomats have much in common, but they come up through different training and apprenticeships, a difference which is reflected in their styles and methods of problem solving.

As many have observed over the years (including Christopher himself, who was refreshingly self-aware), he possessed neither a sparkling public persona, nor a compelling public speaking style. The latter was a major point of frustration for his speech writers and aides. He was, as Jim Fallows noted, the opposite personality type of the late Richard Holbrooke – with whom he crafted the 1995 Dayton Accords to end the war in Bosnia. Indeed, their opposite characteristics – Christopher was taciturn and discreet, where Holbrooke was flamboyant and constantly schmoozing counterparts and the press – served as useful complements in that process. Christopher’s diplomacy was in the model of the quiet, back-room negotiator which had made him a successful corporate lawyer.  He said on more than one occasion that he was most proud of his own leadership of the quiet negotiation that led to the safe return of the U.S. hostages from Iran under the terms of the Algiers Accords.

He was unfailingly gracious and impeccable in dress and manner, known for his bespoke suits and ever-present pocket squares. I remember warmly his meeting with my family when they took a tour of the State Department; my father was both shocked and thrilled that the Secretary of State would take the time to meet them. On another occasion, en route to Capitol Hill to testify, I was carrying the briefing books and sitting in the tiny “jump seat” of the Secretary’s limousine. As he was being briefed by Tom Donilon, the Secretary quietly leaned over and gently adjusted the collar of my suit jacket, which was askew. There was something quite charming in that small gesture. When I made my own transition from the diplomatic corps to the law, Christopher was supportive and encouraging of a career path with a foot in both law and diplomacy. He believed in balancing service to country, to the profession, and to the community, and he leaves an impressive legacy in each. His was a model of the life well lived. My deep condolences to his family. 

DeGirolami on the ECtHR decision in Lautsi v. Italy: Display of Crucifixes within “Margin of Appreciation”

by Peggy McGuinness

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).

Libya No-Fly Operation: What Comes Next?

by Peggy McGuinness

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.

The Libya Crisis and the ICC

by Peggy McGuinness

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.