Be careful what you wish for:

The leaders at the African Union (AU) summit in Addis Ababa asked the chairperson of the pan-African body to consider moving the case of Sudanese president Omer Hassan al-Bashir before the International Court of Justice (ICJ) for an opinion

…

Today the Xinhua news agency reported that the AU leaders affirmed that the ICC has no legal powers to remove the immunity that international law grants to state officials who are not parties to the Rome Statute.

They asked the AU Commission to consider seeking advice from the ICJ regarding the immunity of state officials under international law.

Dapo Akande has been all over this issue. He thinks that Bashir does not have immunity, but he does not think this is an easy or clear case and depends on the Security Council’s powers more than on general customary international law.  I have a hard time imagining  the ICJ rulling in favor of the AU here, but it would not be a simple or slam-dunk opinion against immunity either.

I don’t know how credible this report is:

WikiLeaks may soon take a page from 1960s-era British pirate radio broadcasters and move operations offshore. Financial backers of embattled WikiLeaks founder Julian Assange are reportedly in the market for a boat that would maintain the watchdog site’s servers in international waters to avoid U.S. legal authorities, according to FoxNews.com.

I also don’t know how useful moving offshore would be for Wikileaks. While it would escape certain laws by operating in international waters (like Swedish laws against rape?), it would not escape many of the laws it has been worried about (like US espionage laws which are not limited to pure territorial jurisdiction).  Moreover, operating in international waters makes it easier, not harder, for another nation to detain Wikileaks people and property, since no territorial sovereignty is being violated by such a detention.  Obviously, the ship would be flagged in some country, but as a practical matter, it simply wouldn’t be much of a barrier to attempts to seize it.  I don’t think my analysis would change very much even if it was operated in one of the “Principality of Sealand,” which is not a recognized state (and has no chance of becoming a recognized state).  So, a dumb move all around for Wikileaks.

France has turned down the ICTY’s request that it detain and turn over a former ICTY spokeswoman who has been sentenced to a week in prison for contempt of that court.

PARIS — France refused Monday to carry out an arrest mandate from the Yugoslav war crimes tribunal against a French journalist convicted of contempt for revealing confidential information about the tribunal’s work.

The nation’s chief Foreign Ministry spokesman, Bernard Valero, said France’s accords with the International Criminal Tribunal for the former Yugoslavia require it to carry out mandates against those accused of “serious crimes” but not offenses against the court itself, such as Florence Hartmann’s contempt conviction.

I don’t know any of the details of France’s agreements with the ICTY, but this certainly sounds like the right result.  I don’t think the Security Council Resolutions obligate states to cooperate with the ICTY on matters besides serious violations of international humanitarian law, unless there is some other provision I am not aware of. An interesting legal question, though, nonetheless.

Big things are afoot in Europe, especially as the United Kingdom inches further and further away from European institutions.  The U.K.’s refusal to join the recent fiscal reform plan has gotten all the headlines, but I hadn’t realized that the U.K. is also embroiled in an ongoing battle of wills with the European Court of Human Rights over that Court’s order that the UK enfranchise its felons. In addition to continuing to resist implementing that decision, the U.K. is taking its opportunity as president of the Council of Europe to push big reforms of the ECtHR.

Ministers hope to win big changes to the way the Court operates during Britain’s six-month spell in the rotating chairmanship of the 47-strong Council of Europe, which lasts until May. A leaked document, setting out reform plans agreed jointly by the UK and Swiss governments, says: “Urgent action is needed in order to avoid further damage to the reputation and effectiveness of the convention system.”

It accuses the Court of interfering with issues “that do not need to be dealt with at the European level” and says it must “address growing public and political concern” about the way it functions.

Pointing to a backlog of 160,000 cases, the report says many of them are “hopeless” and that the court is used as a last resort by those whose cases have been rejected – rightly – in their own country.

Of course, the UK Independent has no further details on what exactly this secret reform plan is. But dissatisfaction with the ECtHR appears to be growing in the U.K. and some real reform may come out of this.

I am doubtful the ICJ will be able to ultimately settle this ongoing border dispute, but both countries seem to be relying on the ICJ to resolve this matter. Nicaragua filed an action Wednesday against Costa Rica, alleging:

In its Application, Nicaragua claims inter alia that “Costa Rica’s unilateral actions . . . threaten to destroy the San Juan de Nicaragua River and its fragile ecosystem, including the adjacent biosphere reserves and internationally protected wetlands that depend upon the clean and uninterrupted flow of the River for their survival”.

Costa Rica had earlier filed an ICJ action against Nicaragua over roughly the same border dispute. So it is interesting that both sides are now involved in separate, related ICJ litigation.  Is there an ICJ procedure for consolidation? Seems a good opportunity for it.

What is fascinating about this lawsuit is the focus on getting the “legal advice” as opposed to simply information about the targeted killings policy.

The New York Times has filed a lawsuit against the Department of Justice charging that the government failed to release information under the Freedom of Information Act on records surrounding questions of the legality of targeted killing, especially as it relates to American citizens.

…

“Given questions surrounding the legality of the practice under both U.S. and international law, notable legal scholars, human rights activists, and current and former government officials have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American Citizens,” the lawsuit contends.

I don’t know enough about FOIA law to say much, but I think it will be some tough sledding for the NYTimes to get internal legal advice. Why doesn’t someone just leak it?  It’s been done before.

Ah, the 2012 National Defense Authorization Act… has any defense spending bill had so much defense-related legal policy embedded in it?  In addition to all the very important stuff about military detentions, it turns out the NDAA also authorizes the U.S. military to engage in offensive cyber-attacks (h/t Gary Schmitt).

Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, allies and interests.

The act further clarifies that such actions should be subject to the

(1) the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflict; and (2) the War Powers Resolution.

It is hard to figure out (as Schmitt notes) what the point of this is, since it seems to confirm that the US military has the authority to do what it already has the authority to do (kind of like detaining enemy combatants, actually). I suppose it actually might restrain a more aggressive use of offense cyber-attacks, since it constrains it by limiting it to the “law of armed conflict.”  I am also a bit baffled as to how the War Powers resolution would limit such attacks. 

The larger issue here about the 2012 NDAA is that its controversial provisions do nothing more than confirm (at least in most cases) pre-existing legal authority: e.g. to conduct the war on Al-Qaeda, to detain enemy combatants outside of the civilian system, to try them in military commissions, and to conduct offensive cyber-attacks.   I suppose it is annoying to critics of these policies to see them embedded into statute, but will it have any serious practical difference in the conduct of U.S. government policy? It is hard to see.

Yes, at least according to this account by Douglas Gillis in Foreign Policy, the ECCC has been nearly a complete and utter failure (and a waste of money).  The main problem seems to be, according to the article, incompetent international judges (or at least one shady German judge). Obviously, the U.N. Secretariat, which was managing this tribunal, seems to have screwed things up.

NEW YORK/PHNOM PENH, Cambodia — In the evening hours of a sweltering Friday at the end of April, a team of U.N. lawyers in Cambodia alerted Secretary-General Ban Ki-moon to a crisis at a tribunal built to serve the millions of victims of the Khmer Rouge, arguably the most important court functioning in the world today.That day, the lawyers’ bosses — a judge from Germany and a prominent Cambodian appeals judge — had shut down an investigation of two  Khmer Rouge military leaders for war crimes and crimes against humanity before it had even really begun.

“It is our duty to notify you that we consider, as a matter of law and procedure, that the co-investigating judges did not conduct a genuine, impartial or effective investigation and as such did not discharge their legal obligation to ascertain the truth,” the lawyers wrote. “In our view, the decision to close the investigation at this stage breaches international standards of justice, fairness and due process of law.”

The families of countless victims in the case would be denied justice. The leaders of Pol Pot’s navy and air force — accused among other crimes of eliminating more than 4,500 of their subordinates — would never be held to account for their alleged involvement in torture, executions and forced labor.

And this would undoubtedly appear to have been done under pressure from the Cambodian government, which had publicly announced that the case, as well as another larger investigation, was not “allowed.”

The team told Ban that it was writing “to seek your guidance on how to proceed in these circumstances.”

In the seven months since the letter was written, the United Nations has not offered a substantive answer to these problems. Indeed, as matters continued to worsen, officials at headquarters in New York determined that their hands were tied, leaving matters to deteriorate to the point of scandal.

Not exactly, especially since the “blockade”, is based on Argentina’s claim to sovereignty over the Falkland Islands.  Still, depending on where the vessels were “boarded”, (e.g. in the alleged EEZ?), there might be some problem here. In any event, something like economic harassment seems to be going on.

Argentina looks like it is going to do a full court press, both diplomatically and otherwise, to pressure the UK into talks on the Falklands’ future. And I think it has a good chance of working.

These are not the best of days for Greece, and even relatively small matters, like their ongoing dispute with Macedonia over the name “Macedonia” is going against them.

Greece was wrong to block Macedonia’s bid to join Nato in 2008 because of a row over its name, the International Court of Justice has ruled.

It said Athens should have abided by a 1995 deal not to block Macedonian applications if made under the name Former Yugoslav Republic of Macedonia.

The full judgment is here. Then again, since there are no remedies ordered except the declaration that Greece breached its agreement, I suppose this will hardly cause (more) riots in Athens.

Following up on Dan Bodansky’s excellent post, and our interesting discussion here on MEAs, I wanted to point readers to this useful report from Durban by Reason’s science correspondent Ronald Bailey.  Bailey has a very useful breakdown on why China’s supposed shift on its views on a new climate change treaty is really meaningless. Here is his summary of China’s “breakthrough” position:

So here’s what China apparently wants the rest of the world to do: (1) agree that China’s greenhouse gas targets can be different from those imposed on rich countries, (2) agree that for the next 9 years rich countries will continue to cut their greenhouse gas emissions under the Kyoto Protocol while China’s continue to grow, (3) agree that no negotiations take place on targets until a scientific review is finished in 2015, and (4) agree that rich countries begin showering poor countries with $100 billion in climate reparations annually. If the rich countries will just do that, China will consent to begin negotiating some kind of “legally binding” treaty after 2020. Frankly, with these preconditions, it seems that China’s current position actually remains pretty much what it has always been: It will accept legally binding limits on its greenhouse gas emissions when Hell freezes over.

My general view is that critical book reviews are much more interesting than positive ones (unless it is of my own book, that is).  And so I read with great interest George Mason Law Professor Jeremy Rabkin’s takedown of Kathryn Sikkink’s new book “The Justice Cascade: How Human Rights Prosecutions are Changing World Politics.”  The Sikkink book argues, through an empirical study, that human rights prosecutions are having an important effect on changing international politics.  Rabkin’s criticism of the Sikkink “Justice Cascade” thesis, especially her choice of data and her odd method of counting, seems pretty powerful. Here is a small excerpt:

[Sikkink] offers “data” that purport to demonstrate that human rights prosecutions have been continuously increasing and generating worldwide improvements in the protection of human rights. One way she skews the data and her accompanying historical narratives is by starting her “count” (and her accounts) in the mid-1970s, when the collapse of authoritarian regimes in Greece and Portugal led to prosecutions of their top officials under the democratic governments that succeeded them. 

Sikkink’s choice of time period allows her to simply disregard the prosecutions of top officials in many European countries after World War II, such as the de Gaulle government’s swift prosecution of former President Philippe Pétain and his Vichy Prime Minister Pierre Laval. Further back, the restored Bourbon government had prosecuted some of Napoleon’s marshals, as the first French Republic had prosecuted the royal family and their top officials in the 1790s and as English rebels a century earlier had tried Charles I and members of his court. Even the attempted prosecution of President Bill Clinton, which took place in her restricted time period, disappears without a trace from Sikkink’s account. A look at earlier history would have reminded readers (or Sikkink) that such prosecutions have had their ups and downs in the past.

The second thing Sikkink does to make her cascade look more unstoppable is to gloss over the distinction between successor regimes trying their predecessors and outside states (or outside tribunals) asserting criminal jurisdiction over officials in other countries (for actions taken in those other countries). While the former is in no way a novelty of recent decades, the latter is very much so. It’s not that Sikkink is unaware of international factors. She traces one “stream” leading to her “cascade” back to the Nuremberg and Tokyo war crimes tribunals and another to international human rights treaties, “culminating”, she says, in the Statute of the International Criminal Court in 1998. But by her account, it all seems to have flowed into one common cascade in the new century.

Finally, Sikkink offers a data set based on a quite unusual way of counting. Instead of counting the number of convictions or even indictments, she counts the number of years in which human rights prosecutions were “ongoing” in each country. By this way of counting, de Gaulle’s swift reckoning with Vichy officials—which swept up several thousand collaborators—would count as a one or a two, while years of torpid legal fencing in Chilean courts, resulting in barely a handful of convictions, would count for ten times as much. Even then, to trust Sikkink’s data, you must rely on the tabulations of “human rights records” compiled by her research assistants from Amnesty International reports and other sources, whose reliability (or actual methodology) this volume does not assess. 

The review goes on to discuss, much more positively,  Ellen Lutz’s and Caitlin Reiger’s new book Prosecuting Heads of State.  But it is his critical take that stands out, and is worth considering.