Eight Oscar nominations and accolades at the Museum of Tolerance — not a bad week for Mr. Tarantino:

Last night at a special community screening at The Simon Wiesenthal Center Museum of Tolerance, internationally renowned rabbi Marvin Hier addressed the film’s growing cultural significance among a panel that included Tarantino, ‘Basterds’ producer Lawrence Bender, actor Eli Roth and media entrepreneur Dan Adler, who organized the evening in honor of his recently deceased father Mayer Michael Adler, a survivor of the Auschwitz concentration camp.

“Let me explain why I think it was a great idea to sponsor this film,” Hier said, addressing concerns from Holocaust survivors who were troubled by some of the film’s subject matter. “Not every film on the second World War has to be about the Holocaust.”

No one would argue that “Inglourious Basterds” is a traditional Holocaust movie, but it does presume a sophisticated knowledge of the Holocaust in order to grasp its emotional impact. Hier, who is an Oscar-winning filmmaker himself, said that historical accuracy is not a necessity in harnessing the power of cinematic fantasy. “This [film] has a certain release factor,” he said. “If only we would have been privileged to see the Nazis defeated early on; imagine that they were all gathered in a theater and we didn’t have to roll the clock until 1945 to find out that 6 million Jews plus millions of other individuals were killed by an insane man named Adolf Hitler.”

For many Jews, including Hier, the fact that ‘Basterds’ permits not only historical revisionism but also deep seeded Jewish revenge is psychologically satisfying. “I find it to be quite exciting,” Hier said. “The plot I thought was quite ingenious.” Though he did point out that there were, historically, several failed attempts on Hitler’s life, so the idea of an assassination mission is not implausible. Hier also spoke of Pinchas Rosenbaum, the son of a rabbi whose family was killed in Auschwitz and who successfully infiltrated the SS to avenge them.

I know this is not a uniform reaction — many Jews, particularly here in Melbourne, thought that the film made light of Hitler and the Holocaust.  Readers are no doubt aware that I rarely like Holocaust movies.  But I loved Inglourious Basterds, for the same reasons as Rabbi Hier.

I’m just starting to write the “Aftermath” chapter of my book, which discusses the gradual erosion of the US’s commitment to the war-crimes program following the end of the NMT.  The villain in the story is John J. McCloy, the High Commissioner of Germany — who in addition to setting nearly all of the NMT convicted free by the early 1950s, was also one of the US officials who had turned down Jewish requests to bomb Auschwitz on the ground that doing so was “impracticable” and would divert necessary resources from “decisive operations elsewhere.”  Recent research indicates that, contrary to McCloy’s position, Allied bombers could have reached Auschwitz and the rail lines leading to the camp any time after June 1944 — and that an attack could have considerably slowed the killing process, saving perhaps some 400,000 Hungarian Jews.

If only McCloy and the other US officials had shown Tarantino’s creativity…

I intend to closely follow the reactions to the Appeals Chamber’s decision on the genocide charges against Bashir.  The pushback has already begun in a predictable place: the Making Sense of Darfur blog, which has led the charge against the arrest warrant. The post itself, in which David Barsoum asks “what is the ICC really after in Sudan?”, is not particularly noteworthy, because the answer is straightforward: accountability for a mass murderer who has done everything he could for nearly two decades to prevent any kind of peace that would threaten his regime.  More interesting — and more troubling — is Alex de Waal’s comment to Barsoum’s post.  He writes:

This episode at the ICC is somewhat bizarre. In March last year, the pre-trial chamber issued the arrest warrant that the Prosecutor had requested. This made Pres. Bashir into a fugitive from justice. The crimes for which he is charged are no less heinous than genocide. Any additional charges added subsequently make absolutely no difference to that reality. The Prosecutor’s decision to appeal against the exclusion of the genocide charges, while perfectly permissible in law, served only the purpose of satisfying the personal or political ambition of the Prosecutor. If the ICC ever succeeds in getting Pres. Bashir in Court, the Prosecutor can then add whatever charges he believes are warranted by the evidence. Insisting on them at this stage is a political act.

None of Alex’s claims are compelling…

As I predicted, the Appeals Chamber has rejected the Pre-Trial Chamber’s interpretation of the “reasonable grounds” standard:

Appeals judges said the court was wrong to conclude in March that there was insufficient evidence to merit charging al-Bashir with three genocide counts. Instead, it had charged him with seven counts of war crimes and crimes against humanity for allegedly orchestrating a campaign of murder, torture, rape and forced expulsions in Darfur province.

The standard of proof the court sought for genocide charges “was higher and more demanding than what is required” in its statutes, appellate judge Erkki Kourula of Finland said Wednesday.

The decision likely paves the way for al-Bashir to be indicted with humanity’s worst crime - attempting to wipe out entire ethnic groups in the war-ravaged province.

I will have much more to say about the decision soon.  The decision is available here.

POSTSCRIPT: I’m glad the Appeals Chamber reached the correct conclusion, but it’s absurd that it took them nearly eight months to issue an 18-page decision (13 of which are simply background).  This was — at least from a legal perspective — an easy issue.  The AC should not have kept the OTP, Bashir, and the rest of the world hanging so long.

I want to offer two thoughts on Glennon’s article, which — though I am generally skeptical of the ICC’s attempts to define the crime — I find anything but convincing.  The first has to do with his central thesis: that the Special Working Group on the Crime of Aggression’s proposed definition of aggression “would constitute a crime in blank prose — one that would run afoul of basic international human rights norms and domestic guarantees of due process in its disregard of the international principle of legality and related U.S. constitutional prohibitions against vague and retroactive criminal punishment” (p. 72).  Readers should be skeptical of that thesis for many reasons, but one reason looms particularly large — Glennon does not even mention, much less discuss, the SWG’s proposed elements of the crime of aggression.  The Elements of Crimes were adopted precisely to minimize nullum crimen problems with the definitions of crimes in the Rome Statute, and they remain perhaps the most positive legacy of the US’s involvement in the establishment of the ICC.

The SWG has debated the elements of the crime of aggression for a number of years.  The most recent formulation was distributed in a 28 May 2009 non-paper by the Chairman:

Article 8 bis
Crime of aggression

Introduction
1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.
2. As a result of Element 4, there is no requirement to prove that the perpetrator has made a legal evaluation as to the inconsistency with the Charter of the United Nations of the use of armed force by the State.
3. With respect to Elements 5 and 6, the term “manifest” is an objective qualification.
4. As a result of Element 6, there is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation.

Elements
1. The perpetrator planned, prepared, initiated or executed an act of aggression.
2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.
3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.
4. The perpetrator was aware of the factual circumstances establishing the inconsistency of the use of armed force by the State with the Charter of the United Nations.
5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.
6. The perpetrator was aware of the factual circumstances establishing such a manifest violation of the Charter of the United Nations.

Glennon may very well believe that these elements do not cure the crime’s supposed nullem crimen problems.  I might even be sympathetic to his critique — I’ve made my problems with the proposed elements known to the Australian delegation to the SWG.  But I cannot see how anyone can claim that the crime of aggression is impermissibly vague without even addressing the proposed elements.  Indeed, it appears that Glennon does not even realize that they exist.  How else do we explain his statement that “[p]otential defendants have a right to know the specific elements of a crime before their conduct occurs — not when they are charged or tried, after a consensus has finally emerged” (p. 111-12)?

If you haven’t seen this already, you should. The eight-minute video shows the winner of Ukraine’s Got Talent, 24-year-old Kseniya Simonova, dramatizing the effect of Operation Barbarossa on the Ukraine through a series of drawings on an illuminated sand table. It is absolutely mesmerizing — beautiful, disturbing, moving. As you will see, many members of the audience were in tears. So was I when I watched it.

Hat-Tip: My mom.

The Trial Chamber has granted certification to appeal its decision upholding the Registry’s selection of Richard Harvey as stand-by counsel. Here are the relevant paragraphs:

10. With regard to the first limb that must be met before certification to appeal can be granted under Rule 73(B) of the Rules, the Chamber notes that the Decision Denying Motion to Vacate concerned the process by which the Registrar appointed Richard Harvey, and in that Decision, the Chamber found that if the Registrar’s decision was flawed and/or illegal because he had not followed the proper procedure, this would inevitably affect the Accused’s fair trial rights and thus the propriety of the procedure was a matter that goes to the fairness of his trial. For the same reasons, with regard to the Application, the Chamber is of the view that as the procedural propriety of the Registrar’s decision-making process may impact upon the Accused’s rights, the Decision Denying Motion to Vacate involves an issue that would significantly affect the fair conduct of the proceedings or the outcome of the trial.

11. With regard to the second limb of Rule 73(B), the Chamber notes that the trial is set to resume on 1 March 2010. The role and functions of Richard Harvey at that time remain to be seen and are dependent on the Accused’s behaviour. However, as there is a possibility that Richard Harvey may be required to represent the interests of the Accused at trial, it is clearly desirable for the matter of the propriety of his appointment by the Registrar to be resolved immediately, and not at the end of the trial when it may raise the prospect of a re-trial. Therefore, the Chamber is satisfied that an immediate resolution by the Appeals Chamber of the validity of the manner in which Richard Harvey was appointed may materially advance the proceedings.

I’m delighted the Trial Chamber has finally been convinced that our challenge is not premature simply because Harvey has not yet been appointed actual counsel.  As we have been pointing out for weeks, it makes no sense to appoint stand-by counsel who could not be appointed actual counsel.  So it is in everyone’s interest to resolve the issue now.

The certification decision is here.  My post explaining — ad nauseum — why the Trial Chamber’s original decision is flawed can be found here.  I will post our appeal brief as soon as it is filed.

Motions for certification to appeal are strange creatures.  I’m not sure why the judges thought it would be a good idea to require the parties to ask the Trial Chamber for permission to appeal its own decisions.  But at least the judges did the right thing here and certified our appeal.  I’m rarely optimistic about our motions, but I can’t see how the Appeals Chamber can possibly endorse the Registry’s jerry-rigged selection of Harvey and the Trial Chamber’s hear-no-evil, see-no-evil “review” of that selection.

I’ve been writing Chapter 3 of my book on the Nuremberg Military Tribunals, which traces the evolution of the Office of the Chief of Counsel’s trial program — how it selected the twelve cases, why it abandoned others, which suspects it included and which it excluded.  It’s a fun chapter to write, both because no one has ever done it and because it gives rare insight into the thought processes of Telford Taylor and the other prosecutors.

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  According to the program, there were three definite defendants in the trial: Max Amann, the President of the Reich Press Chamber; Arthur Axmann, Schirach’s successor as Reich Youth Leader; and Otto Dietrich, Chief of the Press Division of the Ministry of Propaganda.  Schmitt, who was described as a “university professor and propagandist,” was then included with five others as potential defendants: Hartmann Lauterbacher, a District Commander in the Hitler Youth; Dr. Gustav School, Reich Leader of Students and Lecturers; Helmut Sundermann, Press Chief and Chief of Staff in the Press Chamber, Werner Zachintisch, from the Science, Education, and Popular Culture Division (of the Ministry of Propaganda?); Bernard Rust, the Minister of Education; and Herman Muhs, the Minister of Church Affairs.

At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.  Indeed, the Propaganda and Education case had by then been merged with the Government Administration case (whose key defendant was Hermann Lammers, President of the Reichschancery) and only Amann, Axmann, Dietrich, and School remained suspects.

Although there is nothing in the OCC’s records that explains why Schmitt was eliminated from consideration, Joseph Bendersky, a historian at Virginia Commonwealth University, has argued that Schmitt’s repeated interrogation by Robert Kempner, a German-Jewish refugee who was one of the OCC’s most notorious prosecutors, simply failed to uncover anything particularly incriminating…

My friend and IntLawGrrl contributor Beth van Schaack has asked me to post the following call for papers:

Call for Papers: Women & International Criminal Law

Special Issue of the International Criminal Law Review

Dedicated to Judge Patricia M. Wald

The International Criminal Law Review invites submissions for its 2010 special issue entitled “Women and International Criminal Law,” to be guest-edited by Diane Marie Amann, University of California, Davis, School of Law; Jaya Ramji-Nogales, Temple University Beasley School of Law; and Beth Van Schaack, University of Santa Clara School of Law. The Special Issue is dedicated to Judge Patricia M. Wald, a pathbreaker in international criminal law who has served as Chief Judge for the U.S. Court of Appeals for the District of Columbia Circuit, a Judge on the International Criminal Tribunal for the Former Yugoslavia, a member of the Iraq Intelligence Commission, Co-Chair of the American Society of International Law Task Force on the International Criminal Court, and Chair of the Board of Directors of the Open Society Justice Initiative.

This special issue is devoted to the topic of women and international criminal law. The majority of the articles have been solicited from prominent academics and practitioners in the field of international criminal law and feminist jurisprudence, such as Justice Ruth Bader Ginsburg, Prof. Jenny Martinez, Dean Martha Minow, Prof. David Luban, Prof. Leila Nadya Sadat, Prof. Naomi Cahn, and Lucy Reed. The editors have also reserved several slots for submissions in response to this call to papers. Submissions should be inspired by this theme statement…

The entire call for papers is below.  It sounds like a great conference.  I actually just finished writing the section of my book on women prosecutors at the Nuremberg Military Tribunals.  Unlike the IMT, at which not a single woman spoke for any of the Allies, more than a dozen women played significant roles in the NMT trials — a tribute to Telford Taylor’s progressiveness.  Indeed, only five of the twelve trials did not involve a woman prosecutor: Pohl, Flick, Hostage, Einsatzgruppen, and High Command.  Three women appeared in Farben, and Cecelia Goetz was an Associate Counsel in Krupp, a position that involved supervising six male prosecutors.

I have a scholarship question for our readers, particularly those who have been article editors on a law review.  On three separate occasions recently, I have seen CVs that identify a particular publication as a “lead article.”  I always assumed that the order of articles in a non-thematic issue of a law review was more or less random — or at least not non-random enough to infer that the law-review considered the first article to be better or more important than those that followed. Am I mistaken in that assumption?  I hope I am, because a number of my articles have appeared first, so I’d like to start bragging…

Thoughts?

I have just been informed that Sir Ian Brownlie, one of the true legends of international law, has died in a car crash in Egypt.  I have no other information, as it has apparently not been reported yet.

Tremendously sad news.  I’m sure we will have much more information in the coming days.

Last year, as I was reading an early draft of the agenda for the ICC’s Review Conference in 2010, I asked myself what I would change about the Rome Statute if I was King of the Assembly of States Parties.  My answer was that I would amend Article 17, the complementarity provision, to make a case admissible if a national proceeding did not provide the defendant with due process — an issue I had written about before.  (You can find the essay here, if you’re interested.)

I then wondered what other ICL scholars would change if they were given the opportunity.  So I asked 14 of them.  Their answers, in the form of short essays between 3,000 and 6,000 words, have now been published in a special double-issue of New Criminal Law Review, a journal of which I am an Associate Editor.  Here is the combined table of contents of Volume 12, Issue 3 and Issue 4:

Kevin Jon Heller, Introduction

Neil Boister, Treaty Crimes, International Criminal Court?

Roger S. Clark, Building on Article 8(2)(b)(xx) of the Rome Statute: Weapons and Methods of Warfare

Robert Cryer, Royalism and the King: Article 21 and the Politics of Sources

Jens David Ohlin, Joint Criminal Confusion

Elies van Sliedregt, Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense

Mohamed Elewa Badar, Dolus Eventualis and the Rome Statute Without It?

Olympia Bekou, A Case for Review of Article 88, ICC Statute: Strengthening a Forgotten Provision

Ilias Bantekas, The Need to Amend Article 12 of the ICC Statute: Remedying the Effects of Multilateral Treaties upon Third Parties

Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship?

Hector Olasolo, Systematic and Casuistic Approaches to the Role of Victims in Criminal Proceedings Before the International Criminal Court

Michael Bohlander, Pride and Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts

Kai Ambos, Confidential Investigations vs. Disclosure Obligations: The Lubanga Case and National Law

Alexander Zahar, International Court and Private Citizen

Goran Sluiter, “I Beg You, Please Come Testify” — The Problematic Absence of Subpoena Powers at the ICC

At the risk of sounding immodest, I think the collection is a must-read for anyone interested in the ICC. My thanks to the contributors for their fantastic essays!

I rarely agree with our colleagues at the Volokh Conspiracy, but I think Jonathan Adler is right on the mark when he describes the TSA’s security measures as “political theater.”  It’s all about creating the illusion of safety, not actual safety.  An erstwhile terrorist needs more than 100ml of a particular liquid to make a bomb? Let’s hope he’s not smart enough to divide the liquid in two…

On a personal note, I returned to Melbourne yesterday from Los Angeles.  The radio warned international travelers to arrive at LAX earlier than normal, because of the enhanced security the TSA was adopting in the wake of the incident on the flight from Amsterdam to Detroit, so I sucked it up and arrived three hours early.  (I usually arrive two, because I have premium check in.  One of the perks of everything being thousands of miles away from Australia — oodles of frequent-flyer miles.)  It took me a grand total of seven minutes to get from the curb outside the terminal to the gate.  Security was nowhere to be found — there weren’t even LAPD officers at the normal checkpoint on the road that leads to the departure level.  No one asked me if I had packed my own bags or whether they had been in my control.  I breezed through the metal detectors even though I had forgotten to remove two bottles of liquid, one of which was larger than 100ml, from my bag.  And the TSA officer at the metal detector didn’t even ask for my boarding card.

The most amusing “enhanced security” measure has to be not allowing air shows on international flights — the program in the in-flight entertainment that tracks the plane’s progress and tells you how long until arrival.  Apparently, the TSA thinks that the air shows will help terrorists determine the best time to do something untoward on the plane.  Because, you know, now they will have no idea when the plane is landing — not from the steward’s announcement on the intercom that breakfast will be served 90 minutes before final descent, and certainly not from the captain’s announcement that the plane is starting its landing run.  Without the air show, it’s like teleporting — you take off, and then all of a sudden you’re there!

I feel safer already.

The Trial Chamber has — completely unsurprisingly — rejected Dr. Karadzic’s motion challenging Richard Harvey’s appointment as stand-by counsel.  As I explained in a previous post, that challenge was based on three grounds: (1) Harvey’s appointment violates Article 21(4) of the ICTY Statute, which provides that a defendant has the right “to communicate with counsel of his own choosing” and “to defend himself in person or through legal assistance of his own choosing”; (2) Harvey’s appointment violated two provisions of the Registry’s own “Directive on Assignment of Counsel,” one pertaining to assignment of the defendant’s chosen counsel, the other governing conflicts of interest; and (3) Harvey’s appointment violated the Appeals Chamber’s statement in Seselj that “the Rule 44 list of counsel should be provided… and [the defendant] should be permitted to select standby counsel from that list.”

In this post, I want to focus on the TC’s rejection of the second and third argument.  Before turning to the merits of the TC’s decision, though, I want to point out once again the troubling pettiness that the TC continues to exhibit toward both Dr. Karadzic and the Appeals Chamber regarding the expression “Rule 44 list of counsel.”  As the quote above indicates, the AC coined that expression in Seselj; that’s why Dr. Karadzic has used the expression in his motions.  Everyone knows what the AC meant — it was referring to the list of counsel who satisfy the substantive requirements of Rule 44.  Yet the TC feels that it is necessary to remind the AC and Dr. Karadzic that, taken ridiculously literally, the expression “Rule 44 list” is inaccurate:

[N]othing in Rules 44 or 45 of the Rules leads the Chamber to the conclusion that there is such a thing as a “Rule 44 list.”  Instead, these Rules clearly provide that a list of counsel is to be kept in accordance with Rule 45(B).  This view is also held by the Registrar.

The TC then proceeds to insert a “[sic]” when either Dr. Karadzic or the Appeals Chamber uses the expression “Rule 44 list.”  (See para. 35 for the latter, where the TC inserts a “[sic]” twice!)

This may seem like a small matter, but it is indicative of the TC’s dismissive approach to the AC’s jurisprudence on self-representation.  The TC may disagree with that jurisprudence, but it remains bound by it.  And it is worth remembering that it was precisely the same kind of dismissiveness by the TC toward the AC that led to Seselj becoming such a procedural nightmare.  The TC is free to mock Dr. Karadzic all it wants, however unseemly such mocking may be.  But the TC needs to take the AC seriously, even if doing so requires it to reach conclusions it doesn’t like.

Now let’s look at the substance of the TC’s decision…

B. Don Taylor, a former legal officer at the ICTY and a good friend, has argued in the comments to a recent post that although Dr. Karadzic’s criticisms of the procedure the Registry used to appoint Harvey may well have merit, Dr. Karadzic’s request for certification to appeal the Rule 44 issue did not adequately raise the issue.  I disagree with Don, but I think reasonable minds can disagree; it probably would have been better if the motion — written, of course, during the period in which the defence team was not receiving funding from the Registry — had specifically explained why the Trial Chamber’s failure satisfied the interlocutory-appeal requirements of Rule 73(B).

As Don speculated in his comment, the request for certification was written and filed before the Registry appointed Harvey from its hand-selected list of five barristers.  Dr. Karadzic has now filed a motion in the Trial Chamber challenging the procedure the Registry used to select Harvey. That procedure was deficient in at least three ways…

Charles Johnson, founder of the conservative blog Little Green Footballs, has announced that he has parted ways with the right-wing in the US.  His list of ten reasons is remarkable for its honesty and its perspicacity:

1. Support for fascists, both in America (see: Pat Buchanan, Robert Stacy McCain, etc.) and in Europe (see: Vlaams Belang, BNP, SIOE, Pat Buchanan, etc.)

2. Support for bigotry, hatred, and white supremacism (see: Pat Buchanan, Ann Coulter, Robert Stacy McCain, Lew Rockwell, etc.)

3. Support for throwing women back into the Dark Ages, and general religious fanaticism (see: Operation Rescue, anti-abortion groups, James Dobson, Pat Robertson, Tony Perkins, the entire religious right, etc.)

4. Support for anti-science bad craziness (see: creationism, climate change denialism, Sarah Palin, Michele Bachmann, James Inhofe, etc.)

5. Support for homophobic bigotry (see: Sarah Palin, Dobson, the entire religious right, etc.)

6. Support for anti-government lunacy (see: tea parties, militias, Fox News, Glenn Beck, etc.)

7. Support for conspiracy theories and hate speech (see: Alex Jones, Rush Limbaugh, Glenn Beck, Birthers, creationists, climate deniers, etc.)

8. A right-wing blogosphere that is almost universally dominated by raging hate speech (see: Hot Air, Free Republic, Ace of Spades, etc.)

9. Anti-Islamic bigotry that goes far beyond simply criticizing radical Islam, into support for fascism, violence, and genocide (see: Pamela Geller, Robert Spencer, etc.)

10. Hatred for President Obama that goes far beyond simply criticizing his policies, into racism, hate speech, and bizarre conspiracy theories (see: witch doctor pictures, tea parties, Birthers, Michelle Malkin, Fox News, World Net Daily, Newsmax, and every other right wing source)

And much, much more. The American right wing has gone off the rails, into the bushes, and off the cliff.

I won’t be going over the cliff with them.

My politics are pretty obviously left, but I have always had genuine respect for traditional conservatives and libertarians — particularly the latter.  It’s sad that people like Johnson are such a dying breed.

ADDENDUM: Proving his point, various right-wing bloggers “respond” to Johnson here, here, here, here, here…

Americans who defend the legality of the invasion of Iraq almost invariably point to the fact that Britain’s Attorney General, Lord Goldsmith, also approved the invasion.  That argument has always been questionable; rumours have long circulated that Lord Goldsmith did not believe that the invasion was legal, but was pressured by Downing Street into approving it anyway.

According to an explosive new report the by Daily Mail, hardly a lefty newspaper, that is exactly what happened.  And there’s even written proof that Lord Goldsmith told Blair that invading Iraq would be illegal:

The Mail on Sunday can disclose that Attorney General Lord Goldsmith wrote the letter to Mr Blair in July 2002 - a full eight months before the war - telling him that deposing Saddam Hussein was a blatant breach of international law.

It was intended to make Mr. Blair call off the invasion, but he ignored it.  Instead, a panicking Mr Blair issued instructions to gag Lord Goldsmith, banned him from attending cabinet meetings and ordered a cover-up to stop the public finding out.

He even concealed the bombshell information from his own Cabinet, fearing it would spark an anti-war revolt…

I criticize the Registry regularly, so it’s important to acknowledge when it does something right.  I blogged a couple of weeks ago about the Registry’s indefensible position that Dr. Karadzic’s trial had not started, so the defence team was not entitled to any funding until the trial “began” in March.  The Registry has now reversed its decision and approved 250 hours per month of funding for the defence team during the hiatus.  The defence team has thus abandoned its boycott and is again working on Dr. Karadzic’s behalf.

According to news reports, the Trial Chamber justifies its refusal to certify appeal on the ground that it “considers the indictee’s motion to be unclear, because it is not clear which aspects of the decision he wants to appeal.”  In case you haven’t read our motion for yourself, here is what it says in para. 9, specifically citing to Seselj:

Dr. Karadzic cannot help but note that the Trial Chamber’s decision is flawed in several respects, including failing to support its conclusion, seemingly picked out of thin air, that a 3 1/2 month period would be adequate time for stand-by counsel to be prepared for trial in a case of this magnitude and complexity, and in its failure to direct the Registrar to provide him with the Rule 44 list from which he can select the standby counsel as required by Appeals Chamber jurisprudence.

Yep, that’s very unclear.

Even more ridiculous is the Trial Chamber’s claim that Dr. Karadzic “wrongly described the issue as ‘imposing’ or ‘assigning’ a counsel… however, in the case, the Chamber has still not imposed a counsel.”  Apparently, the Trial Chamber believes that the defence team doesn’t understand the difference between assigning stand-by counsel and appointing actual counsel.  That idea seems to be based on the title of Dr. Karadzic’s motion, “Application for certification to appeal decision on appointment of counsel and order on further trial proceedings” — after all, para. 9 of the motion clearly indicates that Dr. Karadzic is challenging the procedure used by the Registry to appoint “standby counsel.”  And why does the title of the motion refer to “appointment of counsel” instead of “appointment of stand-by counsel”?  Perhaps it’s because the Trial Chamber’s decision instructing the Registry to appoint stand-by counsel is entitled “Decision on Appointment of Counsel and Order on Further Trial Proceedings,” or because the Tribunal has entitled the Registry’s decision appointing Harvey as stand-by counsel “Decision by Registrar [re appointment of counsel].”  I guess that means the Trial Chamber doesn’t understand the difference between assigning stand-by counsel and appointing actual counsel either!

The appealed Trial Chamber decision did two things, and two things only: it instructed the Registry to appoint stand-by counsel, and it adjourned the trial until 1 March 2010 to allow stand-by counsel time to prepare.  Dr. Karadzic filed a motion requesting certification to appeal the Trial Chamber’s “decision on appointment of counsel and order on further trial proceedings” in which he argued (para. 9) that the Trial Chamber’s instruction to the Registry was inconsistent with binding Appeals Chamber jurisprudence and that the Trial Chamber did not adequately explain its choice of a 1 March 2010 trial date.  And now the Trial Chamber has the audacity to claim it cannot figure out what Dr. Karadzic is trying to appeal.

To say that the Trial Chamber has misread the request for certification to appeal is an understatement.  And people accuse Dr. Karadzic of being obtuse!

UPDATED: The Tribunal has now made the decision publicly available.  You can find it here.  It’s revealing that the Trial Chamber claims not to know what Dr. Karadzic wants to appeal, yet has no problem dismissing — almost completely without explanation, as I note in the comments below regarding the Rule 44 issue — the two conclusions that Dr. Karadzic challenged.

The Nation has just published an extensive article documenting the “secret war” Blackwater employees have been conducting in Pakistan.  The opening grafs:

At a covert forward operating base run by the US Joint Special Operations Command (JSOC) in the Pakistani port city of Karachi, members of an elite division of Blackwater are at the center of a secret program in which they plan targeted assassinations of suspected Taliban and Al Qaeda operatives, “snatch and grabs” of high-value targets and other sensitive action inside and outside Pakistan, an investigation by The Nation has found. The Blackwater operatives also assist in gathering intelligence and help run a secret US military drone bombing campaign that runs parallel to the well-documented CIA predator strikes, according to a well-placed source within the US military intelligence apparatus.

The source, who has worked on covert US military programs for years, including in Afghanistan and Pakistan, has direct knowledge of Blackwater’s involvement. He spoke to The Nation on condition of anonymity because the program is classified. The source said that the program is so “compartmentalized” that senior figures within the Obama administration and the US military chain of command may not be aware of its existence.

The entire article is disturbing, but I was particularly struck by the article’s claim that Blackwater assassins have been posing as aid workers in order to maximize their effectiveness:

According to the source, Blackwater has effectively marketed itself as a company whose operatives have “conducted lethal direct action missions and now, for a price, you can have your own planning cell. JSOC just ate that up,” he said, adding, “They have a sizable force in Pakistan–not for any nefarious purpose if you really want to look at it that way–but to support a legitimate contract that’s classified for JSOC.” Blackwater’s Pakistan JSOC contracts are secret and are therefore shielded from public oversight, he said. The source is not sure when the arrangement with JSOC began, but he says that a spin-off of Blackwater SELECT “was issued a no-bid contract for support to shooters for a JSOC Task Force and they kept extending it.” Some of the Blackwater personnel, he said, work undercover as aid workers. “Nobody even gives them a second thought.”

If this is true, the Blackwater employees are almost certainly engaged in acts of perfidy, defined by Article 37 of the First Additional Protocol as “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”  Feigning civilian status is a prototypical example of perfidy.

Blackwater’s pefidious acts could qualify as two different war crimes, depending on where, when, and against whom the assassinations were committed…

As I note in my post above, Change.org has launched an ambitious new blog, War and Peace.  A sampling of recent posts, to give readers a taste of what the blog — which obviously has a broad mandate! — covers: “IRA Splinter Faction Nostalgic for the Old Belfast”; “Hey, Russian Media, There Is No ‘Number War’ in Bosnia-Herzegovina”; “Is the Afghan Government Serious About Fighting Corruption? Are We?”

The blog is co-authored by Daniel J. Gerstle and Una Vera.  I don’t know Daniel, but I’ve been reading Una’s work for a long time.  She is, without question, one of the most knowledgeable and interesting bloggers I know, particularly when it comes to the Balkans and Afghanistan.

Read War and Peace!