Tomorrow, as part of its Leading Figures in International Dispute Resolution Series, the ASIL’s International Courts and Tribunals Interest Group (ICTIG) will host a talk by Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) to discuss the ICSID system for settling investor-state disputes.

The event details are as follows:

ASIL Headquarters, Tillar House
2223 Massachusetts Avenue, NW
Washington DC 20008
January 17, 2012
6:00 PM – 7:30 PM (Reception immediately following)

 You can register for the event via this page. Registration is free for ASIL Members and $20.00 for non-members.

The choice of book reviewer might be surprising but the result, unfortunately, is not.  Yoo reviews two books: David Scheffer’s memoir All the Missing Souls  and William Shawcross’ Justice and the Enemy. Scheffer’s book details his time working on war crimes issues, ultimately as the Ambassador at Large on War Crimes, in President Clinton’s State Department. (Disclosure: we hope to have Scheffer guest blog with us sometimes in the next couple of months about his book.) Shawcross’s book, as Yoo describes it, ”asks whether diplomats and specialists in international affairs, among whose number Mr. Scheffer must be counted, have any realistic alternative to the Bush administration’s strategy of using the military to detain, try or kill terrorists.”

OK, that’s a pretty provocative opening.  Yoo is an interesting choice to review a book on war crimes tribunals since his professional career has been about skepticism towards such tribunals. Hhe’s also an interesting choice to review a book about the Bush era policies that he played a part in defining. So, I thought’ I’d review his review, so to speak.

Aftert the shot-across-the-bow opening, Yoo has some eloquent passages (invoking Lincoln) and interesting observations about how interstate wars are decreasing but intrastate conflicts are becoming all the bloodier. As he starts in on Scheffer’s book, though, the critique is what you’d expect: an argument against the efficacy of international criminal tribunals.  Fair enough (although keep in mind  the book is billed as “a personal history” ). But then the review transforms and seems to be less and less about the books and more and more about the Bush administration (which Yoo was a part of).  And especially about how it was misunderstood. Yoo uses Shawcross’ arguments to criticize Scheffer and, implicitly, rehabilitate his own image. After indicting Scheffer for not doing enough to stop genocide in Rwanda, he goes on to write:

Mr. Scheffer tries to spice up this combination of diplomatic detail and depressing passivity with a stray attack on the Bush administration’s approach to world affairs after 9/11—the war on terror, as it was once known. With precious little analysis, he claims that the Bush administration destroyed America’s leading human-rights position, though naturally he fails to mention the Obama administration’s decision to continue, and even expand, many of the U.S. policies adopted in the wake of the attacks.

We get the sense that this review is most interested in going once more around the track on the Bush Administration’s record. By contrast to Scheffer,

Mr. Shawcross describes how left-wing groups, with the cooperation of gullible journalists, spread outright lies about conditions at Guantanamo Bay, about American detention and interrogation policy, and about the trials of terrorist leaders…

America’s response to 9/11 caused outrage among intellectuals precisely because it proved so successful: preventing further attacks on the United States, eliminating Osama bin Laden and the al Qaedaleadership, and beginning the overthrow of vicious authoritarian regimes in the Middle East. The Bush administration rejected the ineffectual internationalnetwork of activists, rights groups and courts in favor of a robust unilateral response that drew upon the traditional sources of state power, including diplomacy, economic sanctions and military force.

Funny thing is, I don’t know who supposedly argued that the U.S. must never act unilaterally or that force and sanctions are not key tools in statecraft. (I haven’t heard anyone make those claims.) That was not what the major Bush-era arguments were about. They were about torture and legal black holes and unilateralism for its own sake. They were also about recognizing the possibility that engaging (rather than running from) international institutions can actually broaden America’s options.  Addressing these actual issues might have made for an interesting essay.

Picking John Yoo to review a book about war crimes tribunals is a provocative choice. I wonder why the editors at the WSJ did it.  But the result was not so much thought-provoking as almost exactly what one would have expected. And that, as far as editorial decision-making goes, is an opportunity lost.

Well, not really today, but it was about twenty years ago that what we now call (incorrectly, at times) the “frozen conflicts”– the separatist conflicts in Georgia, Azerbaijan, and Moldova– weren’t  frozen but were actually brushfire wars before settling into stalemates. Long-time readers of this blog may remember my interest in these conflicts, starting with the ongoing conflict in Moldova over the separatist region Transnistria and moving on to include the other conflicts, including the fight over South Ossetia.

This Friday, Columbia University’s Harriman Institute for Russian, Eurasian and East European Studies will host a conference called “Frozen Conflicts Twenty Years After the Fall of the Soviet Union.” Here’s the short description:

Two decades after the collapse of the Soviet Union the conflicts in Abkhazia, Nagorno Karabakh, South Ossetia and Transnistria remain unresolved and their dynamics continue to impact political stability, state-building and great power competition in the former Soviet Union. Over the last years, the international community’s strategy for addressing them has varied significantly. By bringing together leading scholars, policy analysts, and NGO representatives from Europe, the United States and Eurasia to discuss these issues we hope to provide an opportunity to reflect on the last twenty years and to think about possible steps forward.

The conference program is available as a pdf here. I’ll be one of the panelists on the 11:15 panel  and I will be speaking about the uses and abuses of international legal arguments in attempts to resolve separatist conflicts. If any Opinio Juris readers attend, please say hello!

Suzanne Nossel, who was until recently a Deputy Assistant Secretary of State for International Organizations and is currently a Visiting Senior Fellow for Global Governance at the Council of Foreign Relations, has been named the new Executive Director of Amnesty International USA. (I should note that Suzanne is an old friend.)  Here’s part of what the Amnesty press release said:

Most recently, Nossel served as Deputy Assistant Secretary of State for International Organizations, where she was responsible for multilateral human rights, humanitarian affairs, women’s issues, public diplomacy, press and Congressional relations. In that capacity, Nossel played a leading role in U.S. engagement at the U.N. Human Rights Council, including the initiation of human rights resolutions on Iran, Syria, Libya, Cote d’Ivoire, freedom of association and freedom of expression. Prior to that, she served as Chief Operating Officer of Human Rights Watch. Nossel previously served as deputy to the Ambassador for U.N. Management and Reform at the U.S. Mission to the United Nations. She has also worked as a vice president at Bertelsmann Media Worldwide and The Wall Street Journal and as a management consultant at McKinsey & Company. She is a graduate of Harvard College and Harvard Law School and has been a fellow and scholar at the Century Foundation, the Center for American Progress and the Council on Foreign Relations.

Besides these accomplishments, Suzanne is also known for popularizing the term “smart power” in a 2004 Foreign Affairs article (see also this). And she was an early entrant in the international relations blogosphere, founding Democracy Arsenal.  As for next steps, the Amnesty International release states that:

Nossel will use her extensive and varied skills and experience to shape Amnesty International’s work in mobilizing the United States on behalf of human rights issues at home and abroad. AIUSA partners with and defends activists in the Middle East and North Africa who are bravely demanding their rights; Amnesty is also at the forefront of advocacy on critical human rights issues in the United States – including immigration, health care, the death penalty, corporate abuses, and respect for civil liberties in the context of national security

An excellent choice for helming Amnesty; I think she will do great things there. Congratulations, Suzanne!

Professor Sean Murphy of GW Law has been elected to the ILC. The press release from GW begins:

Today, Professor Sean Murphy was elected by the United Nations General Assembly to the International Law Commission (ILC). The Commission consists of 34 distinguished legal scholars, practitioners, and government officials from around the world who are elected to serve for five-year terms. Created in 1948, the objective of the ILC is to codify and progressively develop international law through restatements of the law, studies of legal topics, and draft treaties.

“I am thrilled at the opportunity to serve on the ILC,” said Professor Murphy after his election. “It’s a terrific opportunity to contribute an American perspective to the Commission’s work, drawing on my experiences as both an academic and practitioner.”.

Sean is a excellent addition to the ILC. A lawyer’s lawyer with an impressive background as a government attorney, advocate, and scholar. The press release notes:

Before joining the Law School faculty in 1998, Professor Murphy served as the Legal Counselor of the U.S. Embassy in The Hague, arguing several cases before the International Court of Justice and representing the U.S. government in matters before the International Criminal Tribunal for the former Yugoslavia, the Permanent Court of Arbitration, and The Hague Conference on Private International Law. He also served as U.S. Agent to the Iran-U.S. Claims Tribunal, arguing cases on behalf of the U.S. government and providing advice to U.S. nationals appearing before that tribunal. Between 1987 and 1995, he served in the U.S. Department of State Office of the Legal Adviser, primarily advising on matters relating to international environmental law, international claims, and military affairs. Since leaving U.S. State Department, Professor Murphy has continued to represent numerous governments before international courts and tribunals. Professor Murphy has published widely, including a general treatise on Principles of International Law and casebooks on international law and on U.S. foreign relations law.

A great choice. Congratulations!

For those in NYC tomorrow, I wanted to note that NYU Law is hosting what promises to be an informative experts’ meeting tomorrow on the International Criminal Court.  Here’s the event description:

How best to assure the independence of the ICC Prosecutor

Friday, Nov. 11th from 6-7:30 p.m.

NYU School of Law,  Lipton Hall, Faculty Club, 108 West 3rd Street, New York, New York

The independence of the Court as a whole and of the Prosecution in particular, is the cornerstone of the system of justice established by the Rome Statute. By establishing the proprio motu powers of the Prosecutor to open an investigation subject to judicial review, the Rome Statute created a new autonomous actor in the international scene. The hope was to ensure that the requirements of justice would prevail over political decisions in accordance with the rule of law.

The Rome drafters sought to make sure that the Court’s intervention, including decisions to indict and prosecute, would be based on legal, not political, criteria. To this end, the Rome Statute authorizes the Prosecutor to identify situations to be investigated in accordance with the legal requisites established by Article 53, subject only to the oversight of the ICC’s judges. In an effort to guarantee prosecutorial independence, Article 42 of the Statute further stipulates that the entire Office of the Prosecutor shall act independently as a separate organ of the Court and that the members of that Office shall not be subject to instruction from external sources.

The Assembly of States Parties (ASP) has recognized the significance of maintaining prosecutorial independence. At its last session, it stressed its respect “for the judicial independence of the Court and its commitment to ensuring respect for and the implementation of its judicial decisions.”

The Office’s independence is an important contributor to the legitimacy of the Court as a whole. Some of the Prosecutor’s and the Court’s decisions have created tensions or confronted certain political agendas, most notably in the case against Sudanese President Al Bashir. However the Prosecutor and Court decisions generally have been supported by States and relevant actors. But challenges to the Office’s independence remain.. It is evident that the Court’s and the Prosecutor’s vaulted independence can be jeopardized indirectly, as through the denial of resources, mismanagement, or even efforts to impose oversight.

In its upcoming session in December 2011, the Assembly of States Parties will select a new Prosecutor and define aspects of the institutional framework of the Court, including oversight mechanisms. NYU is convening an expert meeting to discuss theses issues and their relevance to the independence of the Court and Prosecutor’s Office.

Public Program
Professor José E. Alvarez (NYU School of Law): Moderator
ICC Prosecutor Luis Moreno-Ocampo on the experience of the first Prosecutor
Professor Héctor Olásolo (Utrecht University) on the relations between the ASP, the subsidiary bodies and the Court
Ambassador Christian Wenaweser on the role of the President of the ASP vis-à-vis the ICC Prosecutor

Questions and Answers from the floor, time permitting.

On Thursday evening I was on a panel at International Law Weekend on the evolving nature of sovereignty. Sean Murphy gave a presentation on how social networking technology may affect sovereignty, but also how “Twitter revolution” claims have been overblown. As it turns out, we are a few days away from a whole conference on this question, sponsored by (among others) the Ford FoundGoogle, Facebook,

Cory Doctorow writes over at boingboing that:

Next week marks the inaugural Silicon Valley Human Rights Conference (AKA Rightscon) in San Francisco. This event will explore the role that technology plays in the expansion — or elimination — of human rights and the ways that technologists and high-tech firms can either help or harm humanity. In an age when American companies supply “deep packet inspection” technology to the Iranian government so that Iran’s secret police can figure out whom to brutally murder (to cite just one example among many), this is an important question.

At the Rightscon site, the organizers explain:

We’ve seen the exciting role communication technologies companies and social media platforms played in enabling people to challenge and topple authoritarian regimes in the Middle East and North Africa. We’ve also seen the explosion of online activity and social networking here in the US and in markets across Europe, Asia and Africa. It’s time to celebrate the power of technology as a force for good!

Yet while the communication technologies have undoubtedly had a net positive impact on our global community, it has also, for example, enabled certain governments in their efforts to quash personal freedoms and disrupt social movements striving for reform. It is not the first time that technology has been used effectively and simultaneously for participation and exclusion, for revolution and repression, but the dramatic events unfolding in the Middle East and beyond have raised many questions about the rights and responsibilities of the technology sector globally and the relationship between corporations, governments and end-users – both here and abroad.

The goal of the conference is

to explore the following issues, which we hope will advance our collective understanding and ensure that we are prepared for the future:

Identifying and complying with human rights

Navigating issues of legal jurisdiction in a borderless virtual world

Emerging threats from the perspective of civil society

Government relations: how to front load a sustainable user and human rights agenda

Internet security, encryption, anonymity, and privacy by design.

There are fifteen (!) workshops, as well as other roundtables, with topics including: Forging New territory: Implementing the UN Guiding Principles on Human Rights and Business in the Technology Sector; Frontline lessons from other sectors: Learning what works in human rights (What are some of the lessons from apparel, computer hardware, and other industries that can be applied to the technology sector?); and Understanding government relations and navigating legal jurisdiction in a borderless world. The full agenda is here.

If any Opinio Juris readers attend, please let us know what you think of the conference!

David Cortright, the policy director of the Kroc Institute for International PeaceStudies at Notre Dame has posted an article to CNN.com looking at the prospect of the wide-spread proliferation of drone warfare. He begins:

Drone technology is spreading rapidly. As many as 50 countries are developing or purchasing these systems, including China, Russia, India, Pakistan, and Iran.

Even non-state actors are involved. Hezbollah reportedly has deployed an Iranian-designed drone. Iran is developing a new drone aircraft with a range of more than 600 miles. These systems are used mostly for surveillance, but it is not difficult to equip the aircraft with missiles and bombs…

After discussing the risks of proliferation and the problem of mistaking a startegy of drone strikes for counterterrorism policy, he turns to the legal issues:

Many important legal questions have been raised about drone strikes. The U.S. government arguably has legal authority to conduct military operations in Afghanistan, based on the original congressional authorization adopted after 9/11. It is questionable, however, whether this authority extends to Pakistan, a country that is supposedly an ally of the United States. Nor do we have legal authority to launch military strikes in Yemen, Somalia and other countries where the United States is not officially engaged in armed hostilities.

Force may be used by soldiers against combatants in legally authorized armed conflicts, but this right does not extend to civilians. The U.S. covert counterterrorism drone campaign is managed and operated by the CIA, an agency notorious for its past policy failures and violations of the law. Those who are conducting these raids operate in secret beyond the restraints of military discipline and are not subject to the Uniform Code of Military Justice.

Well, there are lost of issues that get blended in here. Most interesting, I think, is the CIA’s management of drone strikes. In just about anything the Agency does, the question of adequate legal oversight persists. Why use the CIA as opposed to one of the armed forces?  While I am more willing than Cortright to include drones as part of our counterterrorism/ warfighting tactics, that does not mean that the CIA should be be in charge as opposed to one of the armed services. Or am I missing something?

David Bosco has an essay at Foreign Policy arguing that the current financial and security crises, rather than weakening international intitutions, are strengthening them.  In short, there are so few options, that leaders are turning to international organizations and relying on them. But there may also be a more fundamental shift that is occurring in international economic policymaking:

…it’s also possible that we have reached the point at which the world is more centripetal than centrifugal. The messy, halting, and fragmented project of global governance may have advanced far enough now that conflict, crisis, and the intense pressure of events lead not to the flying apart or hollowing out of existing institutions but to their consolidation. When crises hit, policymakers are pulled toward more international governance rather than less — sometimes in spite of themselves. The reality of interdependence may finally have insinuated itself into the instincts of policymakers.

This centripetal dynamic, it’s important to acknowledge, does not reflect particularly strong performances by existing institutions…

Bosco argues that the state behavior on issues of international security is also becoming more centripetal than centrifugal. He explains that, John Bolton notwitshatnding, the closing years of the Bush Administration were some of the busiest for the Security Council in terms of managing international conflicts.

Moreover,

The case is even stronger that the 9/11 security shock pushed the NATO alliance toward greater reach and authority… The experience has turned an alliance that had been focused on Europe and its environs into one that thinks globally.

Whether this turn to international institutions will be an effective strategy for addressing these policy dilemmas remains to be seen. Bosco closes with a warning:

And make no mistake: A centripetal world is not necessarily a better or more harmonious one. But it’s one in which policymakers instinctively reach for solutions that involve and rely on international institutions. This is a victory for those who have long argued that institutionalized cooperation is the only path forward. But it’s also a daunting challenge. More reliance and authority for these institutions will mean much more public scrutiny. The days when international organizations could work quietly in the shadows are ending.

How could I have missed this? According the Guardian:

The principality of Liechtenstein has decided to make itself available to private clients, from $70,000 (£43,000) a night, complete with customised street signs and temporary currency…

Since then they have woken up to the marketing opportunities of their mountainous landscape. The price tag includes accommodation for 150 people, although the 35,000 inhabitants would remain. Any personal touches, such as an individual logo created out of candle wax or a customised medieval procession, come at an extra, undisclosed cost.

Upon arrival in Liechtenstein, visitors would be presented with the symbolic key to the state, followed by wine tasting at the estate of the head of state, Prince Hans-Adam II. Other options include tobogganing, fireworks and horse-drawn carriage rides through the capital Vaduz.

At first I thought: “My own nation-state for only $70 K a night? I’m in!” (Not that I have the money, but that’s sort of beside the point.) But then I looked again at the list of what you get and it comes down to a spa weekend with a bunch of friends with some monopoly money with your face on it. Where are all the aspects of sovereignty that you hear so much about?  (A carriage ride? Please. How about an airborne assault?)  It’s like being told you can rent a car but are not allowed to take any right turns and you have to drive 15 miles per hour.

In this case, I don’t think you get to do anything seriosuly fun like nationalize industries, mess with currency markets, or get all crazy at the UN. I don’t even think sabre-rattling is allowed. Actually, I don’t think Liechtenstein has any sabres.   Now if you could rent North Korea for a day….

Hat tip: io9

As well as John Dehn, whom Peggy has previously welcomed, we would like to welcome Michael Scharf to guest blogging with us for the next couple of weeks. Mike is probably well-known to many of our readers, especially those with an interest in international criminal law. He is the John Deaver Drinko-Baker & Hosftetler Professor of Law and director of the Frederick K. Cox International Law Center at Case-Western Reserve School of Law. Mike is also a co-founder and a Managing Director of the Public International Law and Policy Group (PILPG) . He directs PILPG’s War Crimes Prosecution Practice Area. Previously, during the elder Bush and Clinton Administrations, Mike served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations Human Rights Commission. During a sabbatical in 2008, he served as Special Assistant to the Prosecutor of the Cambodia Genocide Tribunal.

Among many other books and articles, Mike is the author of  “The International Criminal Tribunal for Rwanda” which was awarded the American Society of International Law’s Certificate of Merit for outstanding book in 1999, and “Enemy of the State: The Trial and Execution of Saddam Hussein,” which won the International Association of Penal Law’s book of the year award for 2009 . His latest book is “Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser” (Cambridge University Press, 2010).

We look forward to Mike’s contributions to Opinio Juris!

Read the Harry Potter books and/or seen all the movies?  Concerned about the post-conflict issues after the end of the War with Osama bin Laden Voldemort? The folks at Foreign Policy have got your back, tying together recent articles on post-conflict studies with the Harry Potter universe. (Warning: Spoilers!) Who knew Hogsmeade and Kandahar could have so much in common?