The Washington Post is reporting that a State Department contractor has been charged with leaking defense information to Fox News:

A State Department contractor was indicted Friday by a federal grand jury in the District, becoming the latest target of a series of investigations into unauthorized government leaks to news organizations under the Obama administration.

Stephen Jin-Woo Kim, 43, then a senior adviser for intelligence on detail to the State Department’s arms control compliance bureau, was charged with disclosing national defense information in June 2009 to a national news organization, believed to be Fox News, and lying to the FBI. Kim pleaded not guilty before U.S. District Judge Colleen Kollar-Kotelly.

Although unnamed by the government, Fox News reporter James Rosen wrote a report posted June 11, 2009, saying that U.S. intelligence officials had warned that North Korea planned to respond to a new round of U.N. sanctions with another nuclear test. Rosen reported that the CIA warning was developed through sources inside North Korea.

According to the indictment, Kim disclosed “Top Secret-Sensitive Compartmented Information” that concerned the military capabilities of a foreign nation and intelligence “sources and/or methods,” which “could be used to the injury of the United States.”

I look forward to Marc Thiessen’s impassioned call for Fox News to be prosecuted for espionage and material support for terrorism!  After all, we won’t even have to extradite James Rosen.  (Although perhaps a drone strike would be easier.  Much less paperwork than drafting an indictment.)

Julian’s latest snide swipe at the ICC focuses on Bashir’s visit to Kenya, which he describes as a “slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant.”  Not surprisingly, Julian conveniently fails to mention the details of Bashir’s visit:

Sudanese President Omar al Bashir curiously flew in through Nairobi’s Wilson Airport, and not the traditional Jomo Kenyatta International Airport, The Standard On Sunday can report. And Kenya closed its airspace to facilitate President Bashir’s arrival and departure in a well co-ordinated and guarded operation known only to a few, sources said.

Prime Minister Raila Odinga was kept in the dark over the surprise visit, which has kicked off an international storm in view of President Bashir’s status as a wanted man at The Hague.

Security sources indicated that Bashir had negotiated his security and received guarantees before honouring Kenya’s invitation.

[snip]

He attended the national ceremony to promulgate the new Constitution but skipped the luncheon hosted at State House, Nairobi, by the President.

The Sudanese leader, whose arrival at Nairobi’s Uhuru Park in the company of Tourism Minister Najib Balala took Kenyans by surprise, has been indicted by the International Criminal Court (ICC) for allegedly perpetrating genocide and crimes against humanity in the country’s Darfur region.

So, Bashir snuck into Kenya without the Prime Minister’s knowledge, attended the Constitution ceremony, and then snuck out without attending the state luncheon.

Yep, that silly arrest warrant has had no effect whatsoever.  All heads of state sneak around behind the backs of their colleagues, don’t they?

So says a draft UN report that studied events in the Congo between 1993 and 2008:

An exhaustive U.N. investigation into the history of violence in the Democratic Republic of Congo has concluded that the Rwandan military and its allies carried out hundreds of large-scale killings of ethnic Hutu refugees during the 1990s that amounted to war crimes, crimes against humanity and possibly genocide, according to a confidential copy of the report.

The report - which runs 545 pages long and details crimes committed in Congo from March 1993 to June 2003 — represents the harshest U.N. account to date of the conduct of the ethnic Tutsi-dominated Rwandan government, which has largely been credited with liberating the country from the perpetrators of the 1994 Rwandan genocide.

Its release represents a political blow to Rwandan President Paul Kagame, who was re-elected president of his country this month in a landslide election victory that was marred by allegations of political repression against political opponents. His government denounced the U.N. findings as “immoral and unacceptable,” and Rwanda has sought to block the report’s release, according to U.N. sources.

The U.N. inquiry, which was conducted by a team from the U.N.’s Office of the High Commissioner for Human Rights, alleges that Rwanda and its military allies carried out systematic waves of well-planned, highly organized reprisal killings against Hutu refugees in the years after they fled across the border into eastern Zaire, now known as Congo, along with remnants of the former Rwandan military. It also notes that Rwanda’s ethnic Tutsi allies inside eastern Congo were also the target of mass killings and persecution.

The report documents more than 600 incidents of large-scale killings in Congo from March 1993 through June 2003, which it claims constitute war crimes and crimes against humanity. It notes that the “systematic and widespread attacks described in this report reveal a number of damning elements that, if proven, could be classified as crimes of genocide.”

Rwanda’s response — which includes threatening to stop cooperating with the UN, particularly with regard to peacekeeping — is predictable, given its long history of threatening to take its ball and go home whenever the international community dares criticize its (increasingly authoritarian) government.  But it will have a difficult time discrediting the head of the team that conducted the study and that authored the report, my friend Luc Cote, who spent four years as a prosecutor at the ICTR and three years as the chief prosecutor at the Special Court for Sierra Leone before taking over the UNHCHR mission.

Others have already commented on the leaked draft, so I will wait until the report itself is released to offer additional comments.  I did, however, want to respond to this statement in the Washington Post:

The report does not identify individuals believed responsible for the crimes documented in the report, naming only the armed group responsible for such crimes. But it noted that the U.N. High Commissioner for Human Rights, Navanethem (Navi) Pillay, would maintain a confidential database of alleged war criminals that could be used in the event that a court is set up to prosecute them.

There is, of course, a court that is already set up to prosecute at least some of the crimes mentioned in the report: the ICTR.  The tribunal has jurisdiction not only over crimes committed in Rwanda in 1994, but also over “Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994.” Any crime committed in the Congo during 1994 by a Rwandan citizen (which would include crimes committed by Congolese rebels in which a Rwandan citizen was complicit) is thus within the ICTR’s jurisdiction.

The ICTR has, to its great shame, continually turned a blind eye to crimes committed in Rwanda and the Congo by Kagame’s RPF forces.  Perhaps this report will finally spur it to action.

The report is here.  I have neither the time nor the stomach to fully engage with it, but I couldn’t let paragraph 82 pass without comment:

82. The United States is currently at war with Al Qaeda and its associated forces. President Obama has made clear that the United States is fully committed to complying with the Constitution and with all applicable domestic and international law, including the laws of war, in all aspects of this or any armed conflict. We start from the premise that there are no law-free zones, and that everyone is entitled to protection under law. In his Nobel Lecture, the President made clear that “[w]here force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct…[E]ven as we confront a vicious adversary that abides by no rules…the United States of America must remain a standard bearer in the conduct of war.”

This is the clearest statement I’ve found that the US believes — wrongly — that the global war on terror formally qualifies as armed conflict.  (Which is convenient, given the US’s intention to ramp up drone strikes against Al Qaeda in Yemen.)

I also had a nice chuckle at the idea that the US “start[s] from the premise that there are no law-free zones, and that everyone is entitled to protection under law.”  That will certainly be news to the three men (at least) the Obama administration transferred to Bagram so they would not have the right to file habeas petitions, a move recently endorsed by the D.C. Circuit in Al Maqaleh v. Gates.

So reports Reuters:

The Dutch prosecutor’s office said on Friday it would look into whether Dutch peacekeeping soldiers should face criminal charges over the 1995 massacre in the Bosnian town of Srebrenica.

About 8,000 Bosnian Muslim men and boys were killed at Srebrenica after Bosnian Serb forces overran the United Nations-protected enclave where Dutch troops were stationed to protect civilians.

The massacre eventually led to the fall of a Dutch government in 2002 after a damning report by the Dutch Institute for War Documentation into the events surroundings the killings.

The Netherlands has always said, however, that its troops were abandoned by the United Nations, which provided them no air support in the U.N.-designated “safe area”.

In a statement, the public prosecutor’s office said victims’ relatives last month requested an investigation into the massacre, adding a probe would take several months to complete.

It said it would decide whether to hold a full-fledged criminal investigation after completing initial inquiries.

This is an interesting development.  I blogged a few months ago about a Dutch court of appeals decision upholding the UN’s immunity from a civil lawsuit brought by relatives of the Bosnian Muslims killed at Srebrenica.  That was almost certainly the right decision, both legally and practically — forcing the UN to pay damages would only undermine its peacekeeping efforts, however flawed they may be.  A criminal prosecution, however, is a different animal.  On the one hand, the UN would not be directly affected by convictions, and there is no a priori reason why peacekeepers shouldn’t be held accountable for international crimes.  On the other hand, it is reasonable to wonder whether prosecuting peacekeepers for failing to keep the peace would deter states from contributing peacekeepers in the future.  (This situation is a bit different, given that we are talking Dutch peacekeepers being investigated by Dutch prosecutors. I can’t see that happening in the US or UK.)

The other issue, of course, is whether the Dutch peacekeepers really did aid and abet the crimes committed at Srebrenica.  The Reuters article quotes a professor at Utrecht University as saying that “the legal criteria for allegedly aiding and abetting genocide seem not fulfilled here. The mere fact that civilians were handed over to the Bosnian Serbs is not sufficient for criminal liability.”  True enough — the prosecution would also have to prove mens rea.  But the professor’s claim still seems a bit hasty: as Furundzija established long ago, aiding and abetting genocide does not require the defendant himself to possess the specific intent required by genocide; knowledge that the principal offender possesses that intent suffices.  Moreover, even if the peacekeepers did not know that the Bosnian Serb troops intended to commit genocide, they might have known that the troops intended to kill the Muslim men and boys, in which case they might have aided and abetted various war crimes and/or crimes against humanity.

I’ll be keeping an eye on the situation.

Dave has kindly sent another post on piracy.  Here it is.

Kevin graciously offered me the chance to respond to his contrasting reading of the logic of Judge Jackson’s decision dismissing the piracy charge. But since we both reach the same ultimate conclusion—that the correct legal definition of piracy should be that contained in the 1958 High Seas Treaty/1982 UN Convention on the Law of the Sea—I’m happy to let those readers with sufficient interest read the court’s opinion and decide which (if either) of us they agree with. It is a close call and Kevin may well have a better read on it. (I also share his concerns about the invalidity of Khadr’s charges, by the way).

What I think would be a more helpful contribution to this dialog would be to articulate why I think the definition of piracy matters on a larger scale. It probably doesn’t matter much in this case; Said and his comrades still face seven other federal charges and could very well end up with prison sentences tantamount to life terms even without the piracy charge. The real problem with this decision is its potential to weaken overall anti-piracy efforts off Somalia.

Let me first state that I don’t think I’m overly naïve. I have spent some time studying the history of piracy and the results of that inquiry are quite clear. Pirates have always been dependent on shore bases where they can recruit crews, outfit their vessels, and return to enjoy the fruits of their activity, either with the tacit approval of local government or in areas without functional authority. Although naval efforts afloat have been important, ultimately the eradication of pirates, whether based in past hotbeds in England, colonial America, the Caribbean, or South East Asia, was dependent upon the establishment of effective governmental authority ashore. So history tells us that the only permanent solution to Somali piracy will be the reestablishment of an effective Somali state.

In the interim, international naval and judicial efforts can at least endeavor to damp down the volume and provide some measure of deterrence. Naval operations face a daunting challenge. Pirates generally have not been definitively identified until they commence an attack, giving naval forces a very small window of opportunity to react. Once an attack is successful, the risk of harm to the now captive crew and damage to the vessel generally leads to the conclusion that non-forcible means (i.e., paying ransom) are the only prudent solution, and the prospects of interdicting successful pirates heading ashore after receiving their ransom are fairly remote. As a result, most captured Somali pirates are similarly situated to those at issue here—they have launched an ultimately unsuccessful attack. The treaty definition of piracy, which is not limited to robbery but includes “any illegal act of violence . . . committed for private ends” on the high seas by the crew of one vessel against another as well as “any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship” are logically sufficient to allow the invocation of universal piracy jurisdiction over participants in failed attacks. It also offers the potential, not yet actively employed, that armed individuals on small unregistered vessels lacking fishing gear and proximate to shipping lanes could be presumptively treated as pirates based on the language about operating a pirate ship. Eugene Kontorovich tells me that a similar presumption was a key element of 19^th century anti-slavery efforts, allowing the interdiction and seizure of vessels headed to Africa that were outfitted to carry slaves but had not yet taken onboard a human cargo.

Judge Jackson’s interpretation, requiring an actual robbery, eliminates not only the potential for preemption before an attack is launched but also piracy prosecutions for failed attacks. If this stands as the final U.S. legal interpretation, it becomes much more likely that regional countries like Kenya and the Seychelles will decline to accept pirates turned over by third countries, including particularly the United States, for prosecution. Any defense attorney worth his salt will insist that the U.S. position proves that international law still requires an actual robbery, current treaty language not withstanding.

I’m not suggesting that the U.S. should adopt a legal interpretation based on expediency, but rather that what I believe to be a truly erroneous decision, both as a matter of international and U.S. law, has potential consequences well beyond the scope of the cases at issue. If the government doesn’t get its act together and provide more coherent arguments on appeal, the U.S. Navy could find itself joining those other forces off Somalia treating pirates like trout; i.e., joining the “catch and release” program.

(While some acts beyond the definition of piracy can potentially be prosecuted under quasi-universal jurisdiction based on the Suppression of Unlawful Activity (SUA) Convention, the specific definitions found in that treaty would still exclude many attempted attacks – including ones on warships which are at issue in the two sets of Norfolk cases. While SUA is a deliberate effort to overcome problems in the international definition of piracy, it is primarily the “high seas,” “two vessel,” and “private ends” requirements that it addresses, responding to issues raised by cases like the Achille Lauro hijacking and not the Ashland incident.)

I have to respectfully disagree with Dave’s interpretation of Judge Jackson’s decision.  The decision is almost certainly incorrect from the standpoint of the law of nations; as Dave rightly points out, the definition of piracy in the High Seas Convention and in UNCLOS likely represents the customary standard.  But I think Judge Jackson’s decision makes complete sense given the US’s Alice-in-Wonderland approach to international law, whereby the Congress simply defines the “law of nations” as it pleases, no matter how idiosyncratic — read: wrong — that definition may be.  In other words, Said is the judicial cousin of the Military Commissions Act, which pretends that the “law of war” includes murder, conspiracy, and material support for terrorism in order to allow the US  to prosecute “terrorists” in military commissions instead of in civilian courts.

I have no problem with Dave’s syllogism, which I think accurately describes Judge Jackson’s decision.  My disagreement comes with this statement:

It would be relatively straightforward IF the 1819 statute (now 18 U.S.C. § 1651) stated the elements of the crime of piracy. Unfortunately it only refers to “piracy as defined by the law of nations.” Judge Jackson determines that the U.S. Supreme Court’s 1820 decision in U.S. v. Smith, upholding the validity of the 1819 statute while declaring that piracy is “robbery or forcible depredations . . . upon the sea” provides the applicable definition. While the court discusses subsequent cases and scholarship, it is dicta under the decision’s logic, and most sources simply refer back to Smith anyway.

I think that the “subsequent cases” are anything but dicta in the opinion.  Indeed, Judge Jackson’s holding depends on them.  Dave seems to believe that Jackson disagrees with the idea that “since the 1819 statute refers to the law of nations rather than to a specific definition of piracy, what logically ought to be locked in by the rule of interpretation the court relies upon is the reference to the law of nations, not the definition of piracy contained therein.” But I don’t think he does: although the judge states that he “must determine… what Congress meant by piracy as defined by the law of nations, as stated in sec. 1651 at its 1819 enactment,” he then immediately acknowledges that “since the statutory language of sec. 1651 is devoid of any guidance on the scope of piracy as defined by the law of nations, the Court must examine any relevant judicial decisions to answer this question” (p. 6).  Judge Jackson thus accepts that the object of his inquiry is how the law of nations defines piracy; he simply believes that the appropriate method of identifying that definition is to look at US judicial decisions on the subject.

Judge Jackson then proceeds to canvass the decisions themselves.  He begins with Smith, which essentially defines piracy as “robbery upon the seas.”  But he does not limit piracy to the Smith definition.  On the contrary, he specifically rejects the government’s argument that piracy is not limited to “robbery upon the seas” by insisting that “the discernible definition of piracy… under sec. 1651 has remained consistent and has reached a level of concrete consensus in United States law since 1820.”  He cites a number of federal decisions to that effect, such as the Sixth Circuit’s 2007 decision in Taveras, the Eleventh Circuit’s 2006 decision in Madera-Lopez, the 1841 Supreme Court decision in Schooner Amistad, and a bunch of other federal cases from the late 19th century.  All agree with Smith that the law of nations defines piracy as “robbery upon the seas.”

Again, this line of cases is almost certainly wrong.  But to describe all of the cases after Smith as dicta misses the fundamental problem with Judge Jackson’s decision: its animating assumption that “United States law since 1820″ accurately reflects the law of nations concerning piracy.  United States law since 1820 does not accurately reflect the law of nations, just as the Military Commissions Act does not accurately reflect the law of war.  By treating the US cases as a reliable proxy for the law of nations, therefore, Judge Jackson necessarily reached the wrong conclusion.

So, was Said wrongly decided?  The answer, paradoxically enough, is both yes and no.  As Dave notes, Judge Jackson should have relied on the High Seas Convention and UNCLOS instead of on Smith and its progeny for the definition of piracy.  So from a “real” law of nations perspective, the decision is clearly wrong.  But I think the decision is absolutely correct as a matter of US law, which has consistently assumed that the law of nations is more narrow than it actually is.  Indeed, as Judge Jackson points out (p. 12), because Congress specifically criminalized violent acts short of “robbery upon the seas” in 18 USC 1659, adopting a broader definition of piracy would effectively nullify that section.

In the end, then, I think the title of this post — “The Chickens Come Home to Roost” — is an accurate one.  If Congress wants to rely on international law (the law of nations, the law of war) to define domestic crimes, it needs to accept the fact that international law does not always take the position that the US wants.  When it comes to pirates and the law of nations, it does — the defendants in Said probably did commit an act of piracy, no matter what Smith and its progeny say.  But when it comes to “terrorists” and the law of war, it does not — murder, conspiracy, and material support are not war crimes, no matter what the Military Commissions Act says.  The US should not be able to make use of international law only when it is convenient, relying on it when it wants to sentence pirates to life imprisonment, ignoring it when it wants to avoid trying “terrorists” in civilian courts.  So forgive me if I find Judge Jackson’s decision in Said, incorrect though it may be, more than a little satisfying.

P.S.  Just to be clear, Dave has been one of the most intelligent critics of the Military Commissions (see the links on his homepage here), particularly concerning the crimes within its jurisdiction, so I am in no way implying that he endorses the misguided approach to the law of war on which they rely.  We also don’t disagree about piracy under the law of nations.  I am simply taking issue with his reading of Judge Jackson’s decision.

Foreign Policy has added a new blog to its roster that should be of interest to readers.  Here is the description of the blog, named The Multilateralist and run by David Bosco, an assistant professor at American University’s School of International Service and the author of the excellent Five to Rule Them All: The UN Security Council and the Making of the Modern World:

States need to work together, but they often aren’t sure how. Building an organization makes cooperation seem real — nothing says multilateralism like an international secretariat and a headquarters with a bunch of flags flying outside. The world now has a dizzying and often confusing array of these multilateral institutions. Sometimes clumsy and sluggish, they are still a critical part of the diplomatic ecosystem.

Multilateralism may be here to stay, but it isn’t always easy to understand. Layers of bureaucracy sometimes obscure important debates. Each international forum has its own history, traditions and procedures. Some of them are written: It takes nine votes to pass a U.N. Security Council resolution and 85 percent of votes for the International Monetary Fund to make key decisions. Other “rules” won’t be found in any document or treaty: The top job at the United Nations never goes to an American; the World Bank presidency always does.

Through reporting and analysis, The Multilateralist will help its readers navigate this world. It will work to decipher some of its hieroglyphics and to place new developments in a historical context. Whenever possible, it will give readers a view from the inside. Tips and reports from those in the trenches of multilateralism will be a regular feature.

Early posts have focused on, inter alia, the ICC and (not surprisingly) the Security Council.  David points out today that the 2012 Council may have more Great Powers than at any time in recent history, a possibility that he describes as “an interesting test run for how an altered Security Council might perform.”  I hope he’ll write more on the subject, because I remain skeptical that P-5 will ever accept more permanent members, especially countries that — like Germany and India — rival them economically.

In any case, check The Multilateralist out!

Omar Khadr’s trial began a couple of days ago at Guantanamo.  Here is what the prosecutor said in his opening statement:

This trial is about holding an Al Qaeda terrorist accountable for his actions and vindicating the laws of war.

Two small problems with this.  Throwing a grenade at U.S. soldiers is not an act of terrorism.  And four out of the five charges against Khadr — murder, attempted murder, conspiracy, and material support for terrorism — are not, in fact, violations of the laws of war.

Other than that, the prosecutor was spot on.

Two commenters on my previous post on Kagame’s increasing authoritarianism questioned whether Rwanda arrested Peter Erlinder because of his representation of defendants at the ICTR.  Fortuitously, Kate Gibson — my colleague on the Karadzic case and a defense attorney at the ICTR — has just published an ASIL Insight on the arrest that supports my claim.  Here is a taste (citations omitted):

On May 31, 2010, the ICTR sent a Note Verbale to the Rwandan authorities seeking clarification of whether Erlinder’s arrest was related to his mandate as an ICTR defense counsel.  Secondly, the ICTR spokesman announced that because Erlinder was not on an official mission in Rwanda as lead counsel for Major Ntabakuze, the ICTR did not have the “power or the vocation for giving lawyers any immunity in cases that are not related to the ICTR’s mandate.” Following this announcement, the Rwandan Prosecutor-General responded to the ICTR Note Verbale, predictably stating that Erlinder’s arrest was in no way connected to his assignment at the ICTR, thus clearing the way for his prosecution.

The ICTR’s hands-off approach became more difficult when, contrary to earlier public statements, the Rwandan authorities continued to link Erlinder’s arrest to his work as a defense counsel at the ICTR. On June 7, 2010, the High Court of Gasabo rendered a decision denying Erlinder’s request for provisional release. This decision focused on Erlinder’s academic writing, parts of which are critical of and impute criminal responsibility to members of the current regime in Rwanda for crimes committed in 1994. However, in summarizing the Prosecution’s submissions, the High Court referred on three occasions to statements made by the Rwandan prosecutors regarding the link between the alleged genocide denial and Erlinder’s pleadings as a defense counsel in the Military I case. For example, according to one statement, “during the Military I Trial at the ICTR, Carl Peter Erlinder denied and downplayed genocide. He managed to prove that genocide had not been planned nor executed by the military officials he was representing.” The Court itself concluded that Erlinder should “answer for his acts at the ICTR.”

To be clear, although it is unconscionable to persecute a defense attorney for representing a client, I think it would be equally offensive to arrest anyone for offering an account of the events of 1994 that differs from the Rwandan government’s official — and highly selective — narrative.  I’m sure there are true genocide deniers out there (there always are), but most of the counter-narratives that I’ve seen (including Erlinder’s academic writing) acknowledge the genocide but insist, rightly, that the RPF were themselves responsible for war crimes and crimes against humanity during the conflict.  Denying that Kagame is a saint is not the same as denying that genocide occurred.

P.S. With regard to Turyio’s point that laws criminalizing Holocaust denial are “generally accepted” — that may be true, but I don’t accept them.  I am completely opposed to such laws, which I believe turn pathetic figures like David Irving into martyrs and do far more harm than good.

P.P.S. Kathleen Doty has an excellent post on Kagame at IntLawGrrls.

Hell must have had central air conditioning installed, because I find myself in complete agreement with Ruth Wedgwood’s recent post at EJIL: Talk! on Paul Kagame’s rapid descent into authoritarianism.  Here is a snippet:

The West’s failure to address Tutsi violations of the laws of war has allowed Kagame to conclude, justifiably, that he can do nearly anything with impunity. He certainly hasn’t been intimidated by the observation of the U.N. Human Rights Committee in May 2009 that it was “concerned at the large number of persons, including women and children, reported to have been killed from 1994 onwards in the course of operations by the Rwanda Patriotic Army, and at the limited number of cases reported to have resulted in prosecution and punishment by the Rwandan courts.”

Nor has there been any penalty for Kagame’s destructive expedition into the Eastern Congo. The cross-border intervention gave the regime access to minerals ripe for extraction and valued in the hundreds of millions of dollars. Millions of civilians have been killed in the Eastern Congo conflict, and while Kagame was not the only culprit, his troops hardly quelled the violence.

At the same time, Kagame’s domestic critics have met with unfortunate fates. An outspoken political rival was recently shot and wounded in South Africa. A prominent newspaper editor was gunned down at the end of June, and the deputy president of the Democratic Green party was decapitated in July. Public meetings of rival parties have been banned. Kagame felt audacious enough to jail and threaten a 10-20 year sentence against an American lawyer and law professor—who hails from former Supreme Court Chief Justice Warren Burger’s alma mater in Minnesota—when he went to Rwanda to consult with one of Kagame’s political rivals.

Wedgwood’s post was written before the recent elections.  As she predicted, Kagame was elected by a majority — 93% — that “will impress even the modern grand viziers of Central Asia.”  (Side note: I love modern journalism, in which even the most obvious truths have to be qualified by attributing them to one side or another.  The Reuters article linked to above contains the following delicious quote: “Critics said the campaign playing field was uneven, with three would-be opposition candidates prevented from registering to contest the ballot.“  Critics said?  Does anyone other than Kagame believe that a campaign playing field can be even when opposition candidates are not allowed to participate in the process?)

Wedgwood discusses numerous other aspects of Kagame’s despotic reign, such as his invasions of the Congo, the murder of political opponents, the imprisonment of Peter Erlinder on charges of genocide denial (defined as representing a defendant accused by the ICTR of committing genocide), the sham that is gacaca, and the appointment of an indicted war criminal to Rwanda’s peacekeeping force in Darfur.

Wedgwood concludes by arguing that “the Obama team ought to take a close and critical look at its erstwhile friend in Africa,” because “[h]e is not what he seems.”  No, he isn’t.

Actually, I’m not, although I’m confident Labor will pull out the election.  But I’m endlessly fascinated by the fact that people place bets on the outcome of the election — and that the latest odds are treated as serious news by The Age, the best newspaper in Australia:

Labor has been the subject of a huge betting plunge on it winning the August 21 election.

Centrebet received a bet of $20,000 at 10am, immediately shortening Labor’s odds of winning. But this was trumped only 40 minutes later by a $40,000 wager and then another bet of $15,000.

More cash has since flowed Labor’s way this afternoon - including bets of $3000 and $5000 - seeing the odds of Julia Gillard becoming prime minister shorten from $1.62 to $1.51.

The betting agency’s analyst, Neil Evans, said nearly $200,000 had been wagered on the election today.

Almost all of the money had been for Labor, with the largest bet for the Coalition being only $2000.

Mr Evans said the bets had all been taken in the wake of Ms Gillard’s appearance on ABC’s Q&A program, where she appeared confident and forthright under tricky questioning.

The ABC this morning said last night’s Q&A drew more than 841,000 viewers, the show’s best-rating effort since it debuted in 2008.

[snip]

The betting surge had also followed prominent media reporting of an interview from former Labor leader Mark Latham, who accused Ms Gillard of patronising him and stroking his front.

The Coalition has now blown out to $2.54, Mr Evans said.

The opposition had originally been backed in at $2.27 over the weekend, its shortest price, after Ms Gillard was confronted by Mr Latham and endured an awkward get together with Kevin Rudd.

Frankly, I have no idea what any of this means.  But the whole betting thing is still kind of cool.

My friend Nancy Combs new book on international tribunals, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, has just been published by Cambridge University Press.  Here is the description:

Fact-finding Without Facts explores international criminal fact-finding - empirically, conceptually, and normatively. After reviewing thousands of pages of transcripts from various international criminal tribunals, the author reveals that international criminal trials are beset by numerous and severe fact-finding impediments that substantially impair the tribunals’ ability to determine who did what to whom. These fact-finding impediments have heretofore received virtually no publicity, let alone scholarly treatment, and they are deeply troubling not only because they raise grave concerns about the accuracy of the judgments currently being issued but because they can be expected to similarly impair the next generation of international trials that will be held at the International Criminal Court. After setting forth her empirical findings, the author considers their conceptual and normative implications. The author concludes that international criminal tribunals purport a fact-finding competence that they do not possess, and as a consequence, base their judgments on a less precise, more amorphous method of fact-finding than they publicly acknowledge. The book ends with an exploration of various normative questions, including the most foundational: whether the international tribunals’ fact-finding impediments fatally undermine the international criminal justice project.

I read the book in draft form and again after it was completed.  All I can say is this: it is one of the most important books ever written on international criminal law.  Full stop.  (That is essentially the blurb for the book that I submitted to CUP, at its request.  For some reason, they decided not to use it, which makes me sad.)

I could keep gushing, but what’s the point?  Just go read the book.

El Universal — along with other newspapers — is reporting that one of President Uribe’s final acts in office was to file a complaint with the ICC alleging that Hugo Chavez, the President of Venezuela, is responsible for permitting FARC guerrillas to use Venezuela as a staging area for crimes committed in Colombia:

Jaime Granados, the lawyer of Colombian outgoing president Álvaro Uribe, on August 6 filed a complaint against Venezuelan President Hugo Chávez at the International Criminal Court (ICC) and a lawsuit against the Bolivarian Republic of Venezuela at the Inter-American Commission on Human Rights (IACHR).

[snip]

“Indeed, today (August 6) I forwarded to the headquarters of the International Criminal Court in The Hague, to the office of Luis Moreno Ocampo, the court’s prosecutor, the relevant complaint, and we expect he to take action,” said Granados.

[snip]

This is a “complaint against the Head of State, Hugo Chávez, as a natural person, at the ICC, based on the Treaty of Rome, and the other one is a lawsuit filed with the Inter-American Commission on Human Rights against the Bolivarian Republic of Venezuela,” Granados explained.

Granados said that such human rights violations also have to do with the alleged presence of guerrillas of the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) in Venezuelan territory.

Both the lawsuit and the complaint are reportedly related to the fact that guerrillas are preparing terrorist acts while on Venezuelan soil for implementation in Colombia against people.

Uribe’s move came only hours before handing over power to president-elect Juan Manuel Santos. The decision threatens to stir further tensions with Chávez’s government, which broke diplomatic ties on 22 July after Colombia reported at the Organization of American States (OAS) the presence of guerrillas in Venezuela.

This is an interesting development, one that raises both substantive and procedural questions.  Substantively, on what basis does Colombia think Chavez is criminally responsible for FARC’s actions?  Soliciting or inducing?  Aiding and abetting?  Contributing to a group crime?  Aiding and abetting seems the most likely, given that Article 25(3)(c) singles out “providing the means” for the commission of a crime.  But that would require proof that Chavez is allowing FARC to set up camps in Venezuela “for the purpose of facilitating” FARC’s crimes — a very high standard.

The procedural questions, however, are even more interesting.  Most important, is this is a self-referral by the Colombian government?  It seems like it has to be — Article 25(3) criminalizes participating in a crime within the jurisdiction of the ICC, and here the relevant crimes have been and are being committed in Colombia, not in Venezuela.  Differently put, Colombia is not accusing Chavez of committing a crime in Venezuela; it is accusing Chavez of committing acts in Venezuela (permitting the camps to exist or perhaps even providing the camps) that make him responsible for crimes committed in Colombia.  So the Colombian government can refer Chavez to the Court only by self-referring the situation in Colombia.

That, of course, raises another question: what counts as a self-referral?  Presumably, the Colombian government only wants to refer Chavez to the Court; it doesn’t want to refer the situation in Colombia as a whole, because that would expose government officials and military leaders to prosecution as well as Chavez.  But, of course, a state can only refer situations to the Court, as the text of Article 14 of the Rome Statute makes inordinately clear.  So should the OTP treat the complaint as, in effect, a self-referral of the entire Colombian situation?  If it does, can Colombia “un-self-refer” the situation?  It seems like it should be able to do so, but we don’t let other self-referring states un-self-refer, no matter how much they might like to.  The only difference between, say, Uganda and Colombia would be that it took Uganda longer to regret its self-referral.  Moreover, permitting successive heads of state to use the ICC as a football is a very bad idea under any circumstances.

Unfortunately, the Rome Statute is silent on these issues.  Article 14 simply provides that “[a] State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”  And Rule 45 of the Rules of Procedure and Evidence is even less helpful, stating that “[a] referral of a situation to the Prosecutor shall be in writing.”  (Thanks, Rule 45.  A writing written by whom?  Saying what?  Does it have to be notarized, or will a fax from Kinkos do?)

Readers?  Your thoughts?

I’ve argued for the past couple of years that the ICC should open a formal investigation into the situation in Colombia, because it is a non-African situation that satisfies most, if not all, of my criteria for situational gravity: (1) crimes committed with government involvement; (2) systematic criminality; (3) socially alarming crimes such as enforced disappearance and torture.  Here is a snippet from a June 2009 report by the American NGOs Coalition for the International Criminal Court (AMICC):

In response to FARC attacks, landholders and drug dealers organized in 1997 their own force to free Colombia from left-wing guerrillas: the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC). It is comprised of several right-wing paramilitary groups, wealthy landowners, drug cartels and segments of the Colombian army. Just like the force they try to combat, they allegedly use terror tactics such as massacres, selective killings and threats, mainly against human rights defenders and trade union and other social movements’ leaders, journalists and members of Government. Over the past 10 years the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers.

Apparently Judge Garzon, now consulting with the ICC, agrees with me.  He recently suggested that, in light of Colombia’s failure to bring the perpetrators of such crimes to justice, the ICC is likely to step in:

Colombia’s inability to bring cases to court was the object of the Spaniard’s criticism. “There is a lack of the political and judicial coordination and resolve necessary to begin trials,” he said. Victims had suffered too much without seeing results, he added.

The judge said that if Colombian authorities are unable to start proceedings “the ICC will have to say something - there will be claims and the court will have to say something.”

Garzon was referring to the Colombian Justice and Peace law, which allows demobilized paramilitaries to receive a reduced sentence if they make a full confession of their crimes. More immediate actions are necessary, he claimed, even if it means resorting to “partial indictments” - a mechanism which allows the suspects to be tried on crimes that come to light as their confession proceeds, rather than waiting for a full admission to be made.

The law came into force in 2005. However, despite the participation of 4,600 demobilized paramilitaries and guerrillas, only two people have been sentenced.

I tend to agree with Garzon’s assessment of the Justice and Peace Law, as do many scholars who know far more about Colombia than I.  (See, for example, this excellent article by Jennifer Easterday at Berkeley.)  To be fair, though, others believe that the ICC does not need to intervene in Colombia, because its threats to do so have encouraged the Colombian judiciary to increase its efforts to combat impunity, an effect known as “positive complementarity.”  Here is the AMICC’s assessment…

Not surprisingly, the AU has condemned the ICC’s decision to issue an arrest warrant against Bashir for genocide.  Equally unsurprising, the new resolution seems to have been adopted with the same kind of back-room machinations that led to the AU’s previous resolution condemning the ICC:

Over the weekend, delegates from the AU countries reportedly fought a fierce battle that led to removing language that reiterates previous positions on granting immunity to Bashir in Africa and criticizing the ICC prosecutor Luis Moreno-Ocampo.

Bashir was indicted by the International Criminal Court (ICC) for war crimes in Darfur last year. This month the court added genocide to the charges, accusing him of orchestrating murders, rapes, and torture in the troubled western region.

The Sudanese leader himself has skipped this summit in retaliation to Museveni’s absence from his inauguration, according to Sudanese government sources who spoke to Reuters.

Some ICC states including South Africa along with Botswana and Uganda fought for the watered down resolution on ICC, while non-ICC countries such as Libya, Eritrea and Egypt wanted to maintain the hard-line approach.

However, the resolution on the ICC was changed on Tuesday to a more harsher version to the surprise of many observers who followed the summit closely and it remained unclear what happened behind the scenes at the final hours of the summit.

The text said that the summit “reiterates its decision that AU member states shall not cooperate with the ICC in the arrest and surrender of President al-Bashir of the Sudan.

The Sudan Tribune’s article — which is entitled, with remarkable forthrightness, “African Union Moves Aggressively to Shield Bashir from Prosecution” — leaves little doubt that the AU has absolutely no interest in bringing Bashir or any other African head of state (i.e., them) to justice.  (To its credit, South Africa has already announced that it will arrest Bashir if he enters the country.)  Here are some “highlights”:

The summit also expressed “concern over the conduct” of the ICC prosecutor and accused him “making egregiously unacceptable, rude and condescending statements on the case of President Omar Hassan al-Bashir of the Sudan and other situations in Africa.”

No, not rude and condescending statements!  How awful of the Prosecutor not to treat a mass murderer with kindness and respect.  Perhaps Scott Gration can give Bashir an extra portion of cookies, smiley faces, and gold stars to soothe his bruised ego…

[The following is a guest-post written by Ifeoma Ajunwa, a human-rights attorney who is beginning a PhD at Columbia University in the fall.  Our thanks to her for contributing -- KJH]

In April of 2007, as a representative for the NGO, Human Rights Advocates (HRA), I was privileged to attend the 4th session of the United Nations Human Rights Council in Geneva, Switzerland where I presented research before the Council regarding the various ongoing cases of the illicit transfer and dumping of toxic waste in developing nations. Among the cases I presented before the Council was the 2006 dumping of chemical waste in Abidjan, Ivory Coast by the Dutch company, Trafigura. The dumped toxic waste resulted in the death of at least 15 people and the hospitalization of thousands more. This past Friday, a Dutch judge ruled that Trafigura was responsible for the dumping and should be held accountable for the deaths. The judge also issued a fine of 1 million euros against Trafigura. The verdict was based in some part on the 2009 report of U.N.’s top expert on toxic waste, Okechukwu Ibeanu. Ibeanu’s report concluded that “there seems to be strong evidence that the reported deaths and adverse health consequences are related to the dumping of the waste from the Probo Koala” ship, which was chartered by Trafigura.

Human rights groups such as Amnesty International and The National Federation of Toxic Waste Victims in Ivory Coast have rightfully hailed the ruling as a victory. The outcome of this case will have far-reaching implications in ensuring the future corporate accountability of corporations that operate in a multinational manner. For one, the Trafigura case establishes firm precedence that multinational corporations may be brought to justice, in their home countries, for acts that were committed extra-territorially.

There are extant international law instruments that affirm the human right to a healthful environment. The Stockholm Declaration, adopted on June 16, 1972 was the first to explicitly recognize the right to a healthy environment. In 1990, the United Nations General Assembly once again stressed the need to ensure a healthy environment for the well-being of all. Several multi-lateral treaties or agreements have also sought to prohibit or limit the illicit dumping of toxic waste. Among those agreements are, the Aarhus Convention, the Basel Convention, The Ban Amendment, and the Bamako Convention. However, a major limiting characteristic of these instruments is that they only bind sovereign governments and not corporations. Therefore, these agreements may only be used to hold State actors responsible and do not apply to corporate entities (unless they act in a public service capacity).

The 2007 report I presented to the United Nations Human Rights Council proposed the extra-territorial application of environmental laws. At the very least, the Trafigura case indicates a means for immediate relief for victims of the dumping of toxic waste. Those victims should now directly bring a case against corporate entities in courts in the home country of the corporation.

The report also proposed a universal and enforceable declaration of corporate responsibility. Although the corporate code of conduct proposed by the U.N.’s Human Rights Sub-Commission in August 2003 is one good example of a starting point for stronger regulation of multinational corporations, the unfortunate fact is that current codes of corporate conduct, which are voluntary, are largely ineffective at deterring abuses. Following this case, the U.N. should continue to work towards formulating a code of corporate conduct that delineates environmental restrictions for corporate entities that operate in its member states and which would be also be endowed with enforcement mechanisms such as fines, loss of corporate charter, imprisonment and more. The abuse of the environment is a human rights abuse as it impacts the human rights to food, clean water and housing. The U.N. should continue to intensify its efforts to stem the illicit dumping of toxic waste and its detrimental impact on the environment.

[The following is a guest-post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Army's Office of the Judge Advocate General.  He is blogging in his personal capacity.]

The day ICC supporters and detractors alike hoped would come, albeit for very different reasons, arrived on Wednesday, July 21st — Sudanese President Omar Bashir publicly visited a State Party (Chad) to the Rome Statute for the first time since the ICC issued a warrant for his arrest on war crimes and crimes against humanity charges in March 2009. Perversely or tellingly depending on one’s perspective, the visit comes just over a week after a July 12th pre-trial chamber ruling which led to a second ICC arrest warrant being issued for Bashir, this time for genocide.

Dov Jacobs has an interesting discussion on whether Chad is legally obligated to arrest Bashir.  Jacobs argues that, contrary to media claims that the ICC warrant in and of itself requires Chad to arrest Bashir, the ICC must request Chad’s cooperation under art. 89 of the Rome Statute and that the request must, under art. 91, contain certain information, including the arrest warrant. Jacob notes that the Rome Statute does not link the art. 89(1) obligation to the warrant itself but that “States Parties shall…comply with requests for arrest and surrender” and that it’s unclear whether has requested Chad do so.

That such a lack of clarity on the mechanics of arrest under the Rome Statute may still exist in 2010, and with the number of fugitives whose arrest is still pending, is disconcerting. But Chad’s reticence is hardly due to not receiving a formal request from the Court. Chadian leaders openly welcomed Bashir with the Mayor of Chad’s capital city of N’djamena presenting him a key to the city.

If nothing else, Bashir’s visit should prompt clarification of States Parties’ obligations and the arrest and surrender process. [And what of the members of MINURCAT (United Nations Mission in the Central African Republic and Chad) currently in Chad? The MINURCAT website trumpets the mission's role in "protecting civilians, promotion of human rights, rule of law and regional peace". What if anything is MINURCAT's obligation with Bashir in Chad?]

Sadly, far from contradicting African Union policy, Chad’s flauntingly deliberate inaction seems in accordance with a 2009 AU resolution which stated that AU members “shall not cooperate” with the arrest and surrender of Bashir. The AU however is not a party to the Rome Statute. Chad is. Whether Chad has met its pacta sunt servanda obligations viz the Rome Statute or not, Bashir’s public presence in Chad, and AU tolerance (if not support), re-raises the question of how serious Africa is in supporting international criminal justice and ending impunity. Or, more unfortunately, perhaps it answers the question.

With an election scheduled for August 21, Prime Minister Julia Gillard and Opposition Leader Tony “Check Out My Speedo” Abbott were set to debate tomorrow night at 7:30 pm.  There was just one problem with that idea…

The debate would have clashed with the Grand Finale of Masterchef Australia.

So what did the political parties do?  They rescheduled the debate for 6:30 pm.

Smart move.  Julia vs. Tony or Adam vs. Callum?  I know which one I would have watched.

UPDATE: Julia and Adam win!

Dave Hoffman has a post today at Concurring Opinions reporting the results of an empirical study of how often law reviews have cited various blogs.  According to the study, blogs have been cited 5460 times since 2006, with the following blogs representing the top-10 in terms of citations:

• FindLaw’s Writ — 618 citations
• Volokh Conspiracy — 402
• SCOTUSBlog — 305
• Balkinization — 259
• Patently-O — 211
• Concurring Opinions — 162
• Sentencing Law and Policy — 160
• JURIST Paper Chase — 130
• PrawfsBlawg — 122
• The Becker-Posner Blog — 104

Opinio Juris has been cited 49 times, which makes us the 27th most-cited blog.  I think that’s pretty impressive, given how much more specialized we are than most of the blogs in the top-10 (and in the top-20).

The full Excel spreadsheet is available here.

P.S. My own search reveals 57 citations, which would place us 25th.