Evelyne Schmid, a lecturer in law at Bangor University in Wales, has taken it upon herself to convert the 2,499 page non-searchable PDF into a searchable (but, alas, still 2,499 pages) text file. She has made the file available here. We all owe her our thanks!

Readers will recall that I followed the progress of my book on the Nuremberg Military Tribunals on the blog, from proposal to finished project. I received a great deal of positive feedback on those posts, as well as some very useful feedback on the project itself. (Also a couple of complaints that I was just being narcissistic, but you can’t please everyone.) So I thought I would do the same thing with my next book, which I will start working on full-time in a few months. Its somewhat pretentious title is A Genealogy of International Criminal Law, and it will be published by Oxford University Press in 2014 or early 2015. I can’t say enough good things about publishing my first book with OUP — John Louth, Merel Alstein, and their crew were an absolute pleasure to work with. They were unfailingly helpful, supportive, and (above all) understanding. As long as they were willing to have me, I wasn’t going to even consider a different press.

The new book hopes to provide the first comprehensive historical-theoretical study of the process of international criminalization.  Here is the introduction to the proposal I submitted to OUP:

It is an article of faith among international criminal law scholars that certain acts are directly criminalized by international law.  We no longer speak, as Georg Schwarzenberger once did, of “internationally prescribed municipal criminal law” or “internationally authorized municipal criminal law.”  Instead, we talk about “international crimes” – aggression, war crimes, crimes against humanity, genocide.  And we have a 63-page treaty, the Rome Statute, that not only defines those crimes, but also explains how individuals can be held criminally responsible for their commission and specifies the defences that they can raise when accused of them.  There is thus no longer any real doubt that international criminal law exists in the “strict” or “true” or “material” sense.

Needless to say, it matters whether an act is criminal under international law or under domestic law.  Because we now have “international crimes,” not simply municipal crimes that are prescribed or authorized by international law, defendants accused of such crimes cannot argue that their actions were legal under domestic law or were taken in their official capacity, entitling them to immunity from prosecution.  In the words of the Nuremberg Tribunal:

Individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.

Nor is that all.  Because there are international crimes, international law permits, and sometimes even requires, states to prosecute them no matter where, by whom, or against whom they are committed – conditional universal jurisdiction.  Because there are international crimes, states are likely obligated to prosecute or extradite suspects in their custody who commit them – aut dedere, aut judicare.  And, of course, because there are international crimes, there are international criminal tribunals that have the authority to prosecute them.

Despite the importance of the “international” in the concept of an “international crime,” scholars have almost completely ignored the mechanics of the international criminalization process.  What does it mean to say that an act is directly criminalized by international law?  How does that transposition of the municipal to the international occur?  One looks almost in vain for answers to these questions in the scholarly literature.  No book-length analysis of international criminalization exists, and the number of articles dedicated specifically to that issue can be counted on two hands – the most notable examples being Georg Schwarzenberger’s “The Problem of an International Criminal Law,” published in 1950, and Robert Cryer’s superb “The Doctrinal Foundations of International Criminalization,” published in 2008.

This book will fill that lacuna…

So reports ABC News (and multiple other news outlets):

The man who ran Libya’s extensive spy network and was considered one of the closest confidants of ex-leader Moammar Gadhafi was indicted in Mauritania on Monday and transferred to a public jail, according to a justice official.

Abdullah al-Senoussi, Libya’s former head of intelligence, is wanted by the International Criminal Court, as well as by France and Libya for crimes allegedly committed during his time at Gadhafi’s side.

The judge in Mauritania is indicting al-Senoussi on a technicality, after the ex-spy chief tried to enter Mauritania disguised as a Tuareg chieftain, said the official who requested anonymity because he is not authorized to speak to the press.

On the run since the fall of Tripoli last year, al-Senoussi attempted to enter the Nouakchott airport in March on a fake Malian passport, after boarding a flight from Morocco. He attempted to cross the passport control wearing the elaborate headdress and the flowing robes associated with the Tuareg nomads, an ethnic group that was closely allied with Gadhafi and who live in the band of countries including Mali located at the base of the Sahara Desert.

That’s my basic reaction to the release of the full judgment in the Taylor trial, which checks in at an utterly absurd 2,499 pages.  (The judgment is downloadable, assuming you have a very fancy computer, here.)  2,499 pages is clearly a new record for a judgment of an international tribunal, especially in a case with one defendant.  By way of comparison: the IMT judgment, which concerned 24 defendants, is little more than 100 pages, while all twelve NMT judgments, which concerned 185 defendants, run a little more than 3,000 pages.

I will have more to say after I’ve had time to read (some of) the judgment in detail, but I have one concern worth mentioning now: namely, my worry that the length of the judgment will have a direct impact on the length of Taylor’s sentence — an impact unrelated to the facts found by the Trial Chamber, the nature of the crimes of Taylor was convicted, and the mode of participation on which his convictions are based (aiding and abetting and planning, both forms of accessorial liability).  My initial and somewhat impressionistic sense is that Taylor deserves a sentence between 30 and 35 years, given (1) that the SCSL’s longest sentences to date have been 50 and 52 years, and (2) that the defendants who received those sentences were convicted as principals, not accessories.  That assessment puts me squarely in the middle of the experts I’ve informally polled about what they think Taylor’s sentence should be — some have gone as high as 40, others have gone as low as 25.  All agree, however, that the 80-year sentence requested by the prosecution would be completely disproportionate in light of the SCSL’s previous sentences.  It is nevertheless difficult to imagine the Trial Chamber imposing such a “lenient” sentence on a defendant whose judgment — for him alone — is almost 2,500 pages long.  The sheer mass of the judgment would seem to require a longer sentence, even if that sentence would be inconsistent with the facts and law found by the Trial Chamber.  I hope I’m wrong about that; I hope the judges will be able to separate the amount of work that has gone into the judgment from their objective assessment of Taylor’s culpability.  But I fear the former will bleed into the latter.  After all, judges are not machines.

We’ll see.

Earlier today, Russia called on the ICC to investigate possible war crimes committed by NATO forces during its bombing campaign in Libya:

The International Criminal Court should look into all cases of NATO airstrikes in Libya that resulted in civilian deaths, the Russian Foreign Ministry said.

“We welcome the decision of ICC Prosecutor Luis Moreno-Ocampo to consider alleged violations of international humanitarian law,” Foreign Ministry human rights spokesman Konstantin Dolgov said in a statement posted on the ministry’s Web site. “We presume that the ICC will consider all cases of NATO bombing that caused civilian casualties.”

The issue of civilian casualties during the NATO Libyan campaign last year had been raised at the U.N. Security Council and the U.N. Council on Human Rights, RIA Novosti reported Friday.

“An impartial international investigation into the effects of NATO airstrikes during Operation United Defender in Libya is necessary to prevent such tragedies in the future,” the statement said.

David Bosco rightly points out at The Multilateralist that the practical likelihood of the ICC taking Russia up on its request is “vanishingly small” — international tribunals have consistently refused to investigate crimes committed by Western powers (the ICTY regarding Kosovo; the ICC itself regarding Iraq).  David also claims, however, that the ICC would be legally precluded from investigating crimes committed by nationals of non-member NATO states (such as the U.S.) by paragraph 6 of S.C. Res. 1970, which purports to exempt such individuals from the ICC’s jurisdiction…

As readers know, Dapo Akande, Jens Ohlin, and I have been having a friendly debate over whether Article 95 of the Rome Statute requires Libya to surrender Saif to the ICC pending the Pre-Trial Chamber’s resolution of its admissibility challenge.  (See here and here.)  Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.

The motions are a study in contrasts.  The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court.  It’s a very underwhelming motion, and I don’t say that simply because I disagree with it.  Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.

The OPCD’s motion, by contrast, is 19 pages and offers a variety of very strong arguments in defense of its position that Libya must surrender Saif prior to resolution of its admissibility challenge.  The first section of the motion not only tracks my arguments very closely, it specifically cites the Opinio Juris post in which I argued that Article 89(2) actually supports a surrender obligation under Article 95, because the OTP’s interpretation renders Article 89(2) mere surplusage.  (An Article 89(2) postponement depends upon on Article 19 admissibility challenge, which is what supposedly triggers an Article 95 postponement.)  The motion also spends a good deal of time arguing that permitting postponement of Saif’s surrender would undermine the ICC’s ability to ensure that Libya lives up to its obligation to cooperate with the ICC under S.C. Res. 1970, because the Court will be powerless to force Libya to surrender Saif should it reject Libya’s admissibility challenge. I made a similar argument in my posts, and I continue to believe that the ICC should not be put in a position where it has to resolve Libya’s admissibility challenge even though it knows full well that Libya will simply ignore an adverse decision.

Interested readers will definitely want to check out both motions.

My recent post on PhDs calling themselves “Dr.” led one of my e-friends, Martin Holterman, to remind me that I had promised to post about my dissertation defense — called a “viva” in the Netherlands — at Leiden University last year.  The viva was one of the greatest academic experiences of my life, so I’m happy to rectify my omission.

I’ll begin with a confession: I didn’t take the viva particularly seriously at first.  I knew I wouldn’t fail (any dissertation committee worth its salt will deal with problems long before a student defends); my dissertation was a version of my book on the Nuremberg Military Tribunals, which was under contract with Oxford University Press; and of course I already had a permanent academic position at Melbourne.  So I really just wanted to get the viva over with so I could put the diploma on my office wall.

My casual attitude didn’t last long — only until I began to put on my tuxedo, complete with tails, in the room in which candidates change.  My interlocutors for the viva, kindly known as “the opposition committee,” was changing on the other side of the room.  The solemnity of the occasion finally penetrated my thick skull — this was my rite de passage into an academic tradition that had been taking place in Europe for centuries…

Jose Rodriguez, the former CIA officer who describes the Bush administration’s systematic torture regime as people “putting their big boy pants on” and who personally destroyed 92 videotapes documenting the waterboarding of Khalid Sheikh Mohammed and Abu Zubaydah because “out of context they would make us look terrible,” has an op-ed for CNN today complaining about media coverage of the 9/11 military commission.  The best line:

It is good that these terrorists are now facing justice, but in the reporting of the case, it would be helpful if the media didn’t help them with their propaganda mission by unquestioningly repeating false information about their detention.

So the person responsible for intentionally destroying the best evidence of the conditions of the defendants’ detention is now complaining about reporters providing “false information” regarding the defendants’ conditions of detention.

You just can’t make this stuff up.

More follies from the Khalid Sheikh Mohammed military commission:

The video and audio feed from the war court at Guantanamo Bay is on a time delay so as to prevent accidental or deliberate disclosure of classified information during proceedings. As Khalid Sheik Mohammed and the other alleged 9/11 plotters were being arraigned last Saturday, the feed abruptly cut out.

Reporters and observers heard only white noise for a few moments because a military security officer censored one of the defense attorneys, Air Force Capt. Michael Schwartz, after Schwartz alluded to the torture of his client. Just before the military cut the feed, Schwartz used the phrase “big boy pants” to refer to torture, mockingly adopting the euphemism employed by former CIA official Jose Rodriguez in an interview two weeks ago.

Because fairness means pretending that you didn’t torture one of the defendants 183 times in a month.

There is a friendly debate going on at Prawfsblawg about whether people who have PhDs or JSDs in law are entitled to refer to themselves as “Dr. so-and-so.”  Skepticism seems to be the order of the day; here are quotes from Paul Horwitz and Jeff Yates, respectively:

Although I think there’s a good deal to be said for obtaining JSDs or Ph.D’s in law, we might think about whether that trend represents a similar claim to authority and respect for law as an academic discipline; and if those folks start demanding to be called “Doctor,” we’ll know something’s up.

[I]s it appropriate to refer to yourself as “doctor” if you have a Juris Doctorate? A Ph.D.? This seems to bring up a number of concerns  — Who “earned” it? Is it misleading? Why do people need such titles anyway?

This debate is indicative of the insularity of American and Canadian legal academia.  Outside of the U.S. and Canada (and I’m not even sure about Canada), no one would ever question the right of someone who has PhD in law to call himself or herself “Dr.”.  Nor would anyone outside of the U.S. or Canada ever question whether law is an academic discipline.  If anything, the debate speaks to a certain professional insecurity in North America, where law school is professionalized in a way that it is not in most other countries, including English-speaking ones like the UK and Australia.  Not that I in any way blame North American legal academics, especially those in the U.S.: insecurity about whether law is an academic discipline is natural in a legal environment in which there is constant pressure on academics to produce “useful” — i.e., “non-academic” — scholarship.  If I felt disciplinary pressure to produce pedantic scholarship of immediate practical use to lawyers and judges, I’d probably begin to question whether law was an academic discipline, as well.  Fortunately, there are hundreds of American and Canadian legal scholars who resist that pressure and produce superb “academic” legal scholarship that not only increases our understanding of law as an intellectual discipline, but enriches legal practice, as well.  (You don’t have to be Derrida to know that the academic/practical binary is an unstable one.)

I also fail to see why JSDs should not call themselves “Dr.”, assuming that they have produced a dissertation that is equivalent to the one required by traditional PhD programs in law (80,000-120,000 words, the size of an average book).  I suppose it’s possible that JSD requirements are lower at some U.S. law schools, but that is certainly not true across the board.  My colleague Kirsty Gover — “Dr. Kirsty Gover,” according to her Melbourne name-plate — completed her JSD at NYU, and her brilliant dissertation on tribal constitutionalism was recently published by Oxford University Press.  She is every bit the doctor of law that a PhD in law is.

Finally, I’d like to turn the “Dr.” debate around and ask why Assistant Professors and Associate Professors in the U.S. and Canada (to say nothing of adjuncts and non-tenure-track legal instructors) should be entitled to call themselves “Professor.”  That is, of course, a uniquely North American phenomenon — in most other countries, particularly in the common-law world, “Professor” is a title reserved for scholars who have reached the pinnacle of legal academia, normally after years if not decades of work.  In such countries, it would be the height of arrogance for a lecturer in law to call himself “Professor” — something I’ve learned the hard way as I’ve had to adjust to being called “Dr. Heller,” “Mr. Heller” (before I obtained my PhD), or simply “Kevin” instead of “Professor Heller,” my title as a brand-new Assistant Professor at the University of Georgia.  At Melbourne, not even Associate Professors, a title that itself indicates substantial distinction in the field, call themselves “Professor.”  Unless you are a full professor, you’re a lecturer.  So isn’t the American and Canadian practice of title inflation simply questionable North American exceptionalism?

Readers –  North American and non-North American?

So reports Mark Kersten in a blockbuster post at Justice in Conflict.  You have to read the whole thing; here is a taste:

While haggling between the ICC and Libya’s National Transitional Council (NTC) over the fate of Saif al-Islam Gaddafi and Abdullah al-Senussi continues, Libya quietly, but controversially, passed a blanket amnesty for pro-Revolution rebels.

According to Lawyers for Justice in Libya (LFJL), under ‘Law 38′, amnesty will be granted for any “acts made necessary by the 17 February revolution” and for the revolution’s “success or protection”. Earlier, reports suggested that the amnesty law was being drafted in order to appease Libya’s tribal leaders who presumably fear anti-Gaddafi rebels being held accountable for human rights violations committed during the uprising.

It is no secret that both sides of the conflict committed atrocities. In this context, it is notable that the need for amnesty is in itself an acknowledgement that crimes occurred – otherwise there would be no need for an amnesty in the first place.

Notably, the amnesty law was passed along with ‘Law 37′, which forbids “praising or glorifying Gaddafi, his regime, his ideas or his sons”. Rather precariously, the law claims that Libya is still in a state of war and allows for the imposition of a life sentence on anyone who “harms the state” in glorifying the Gaddafi regime. While, to my knowledge, Western states have remained entirely silent on the subject, LFJL and Amnesty International have harshly condemned the legislation, suggesting that they harken back to the brutal and draconian laws that restricted the freedoms of Libyans under Gaddafi.

Mark provides invaluable analysis of the new law, distinguishing between “good” amnesties and “bad amnesties” and pointing out that, by any measure, this is one of the bad ones. He also rightly adds, referring to Libya’s pending admissibility challenge at the ICC, that “Judges aren’t politically blind. They may not be able to rule that Libya is unable or unwilling to try Saif or Senussi on the basis of the country’s commitment, or lack thereof, to trying other perpetrators, but it certainly doesn’t give a good impression.”  I’d simply add that the amnesty foregrounds the importance of the OTP not limiting its Libya investigation to members of Gaddafi’s regime; it must also be willing to prosecute high-ranking rebel commanders who are responsible for serious international crimes during the revolution.  Recall what the Commission of Inquiry concluded in its most recent report:

The Commission further concluded that the thuwar (anti-Qadhafi forces) committed serious violations, including war crimes and breaches of international human rights law, the latter continuing at the time of the present report. The Commission found these violations to include unlawful killing, arbitrary arrest, torture, enforced disappearance, indiscriminate attacks, and pillage. It found in particular that the thuwar are targeting the Tawergha and other communities.

As the amnesty law makes clear, when it comes to accountability for the new Libyan government, it’s the ICC or nothing.

Things are getting ugly at the ICC.  The Office of Public Counsel for the Defence, which has been appointed to protect Saif Gaddafi’s interests at the Court, has now moved to disqualify Moreno-Ocampo from Saif’s case on the ground that he “lacks the requisite impartiality to direct the investigations and prosecutions” because of his “repeated failure to respect the presumption of innocence and rights of the defendant under the Statute, and an objective appearance that [he] is affiliated with both the political cause and legal positions of the NTC government” (paras. 28, 29).  The motion is very long; here, I think, are the critical paragraphs:

39. On various occasions throughout the proceedings, the Prosecutor has given high profile media interviews in which he has described Mr. Gaddafi, without any qualification, as “lying”, having committed a “crime against humanity”, being “‘involved in the recruitment of soldiers from outside”, “personally hiring people […] financing the operations”, being “ready to crush the demonstration”, and “involved in the operation to kill the civilians on the street”, ‘threatening people’, and having personally committed crimes with his own hands through the execution of persons.

43. In many press statements, there is also no clear demarcation between the position of the ICC Prosecutor, and that of the Libyan authorities. For example, the Prosecutor has stated that “They will show they are able to prosecute Saif (al-Islam Gadhafi), who they believe is today the face of the old regime.” […]The rebellion in Libya started as a fight for justice, so they want to show they can do justice in the Saif case”. In so doing, the Prosecutor appears to endorse the narrative that firstly, the rebellion was a ‘fight for justice’, and secondly, that the present Libyan government is an extension of this rebellion, and ‘fight for justice’.

44.Subsequently, the Prosecutor observed that “it was critical for Libyans who fought against the injustices of the Gaddafi regime to now show they could “respect justice for a person like Saif.” Again, the Prosecutor appears to identify the current Libyan government and judiciary with the rebels, and to endorse their cause by describing it as a fight against “the injustices of the Gaddafi regime”. The phrase ‘a person like Saif’, in this context, appears to situate the defendant within his general description of the ‘injustices of the Gaddafi regime’.

48. Although there have been calls to investigate allegations of grave detention related violations allegedly committed by the Thuwar in Misrata, the Prosecutor did not indicate that he would investigate such allegations, instead appearing to excuse the plight of the thousands of detained persons (some of whom are alleged to have been tortured) as being ‘complicated’, on the basis that these persons were potentially responsible for crimes. Although the investigation had just commenced, the Prosecutor announced that he would focus on high level officials, who are outside of Libya (many whom, are potential Defence witnesses, seeking asylum from the Libyan government).

54. The Prosecutor has also repeatedly stated that if the case is referred back, the ICC would not monitor the fairness of the proceedings in Libya which appears to be abrogating the responsibility of the Prosecution to ascertain whether, during the course of proceedings in Libya, new facts may have arisen, which negate the initial finding of inadmissibility. Given that the Defence does not have the right to invoke Article 19(10) of the Statute, any potential abrogation of this responsibility can be extremely deleterious to the rights of the defendant.

I have mixed feelings about the motion…