Author Archive for
Mark Movsesian

More on Incitement

by Mark Movsesian

Thanks to Professors Guiora and Cliteur, and my colleague and friend Chris Borgen, for their helpful responses to my posts. I find that I can agree with some important aspects of Prof. Cliteur’s most recent response. For example, he advocates a theoretical approach to the problem of religious terrorism – “a scholarly understanding of its nature” rather than the “judicial reactions” to it. Such an approach could be very fruitful. I agree with him that religious convictions can incite violence. As Weber – and, more recently, Huntington –recognized, religions can have profound, and profoundly different, social consequences. Some religious ideologies encourage violence and others do not; it would be very interesting to study religious ideologies empirically and see why, precisely, some rather than others pose a threat to liberal democracy. With respect, though, that is not the goal Prof. Guiora has set for himself in Freedom From Religion. Prof. Guiora does focus on the proper judicial reaction to terrorism and treats “religion” as a general category. I remain unconvinced that the religious/non-religious distinction is very helpful in that context. In any case, as I said in my last post, I don’t think it would be constitutionally permissible to treat extreme religious expression less favorably than extreme non-religious expression.

A word about Professor Guiora’s response to the thought experiment I proposed in my last post. I believe he begs the question when he responds by pointing out that the extremists who incited the murder of Yitzhak Rabin were religious, not ultra-nationalist. I understand that. My question is whether we can’t imagine a situation in which non-religious extremists incite followers to murder. Such a situation seems entirely possible to me. For example, in 2007, the Turkish-Armenian journalist Hrant Dink was murdered by an ultra-nationalist who was offended by Dink’s references to the Armenian Genocide. Dink had been prosecuted under a law criminalizing statements “insulting Turkishness”; this prosecution made him a target of ultra-nationalist groups who regularly issued death threats against him. Does it make a difference that the extremists who incited Dink’s murder were non-religious?

Let me close by saying thanks again to the folks at Opinio Juris for inviting me to this symposium. I have enjoyed this interchange and learned a lot.

Religious and Non-Religious Extremism

by Mark Movsesian

I thank Professors Guiora and Cliteur for their thoughtful interventions. As I see it, the basic distinction Prof. Guiora draws is between terrorism motivated by religious convictions – “religious terrorism” – and terrorism motivated by non-religious convictions – “non-religious terrorism.” Despite their arguments, though, I fear I am still not persuaded that this distinction is very helpful.

For instance, Prof. Guiora asserts that we should focus on religious terrorism for a practical reason: although non-religious terrorism was important in the past, terrorism today is of the religious variety. He’s right that much contemporary terrorism is religious in nature, maybe even most. But he minimizes the endurance of non-religious terrorism. I’ve already mentioned the Shining Path in Peru. Other examples include ETA in Spain, N17 and its splinter groups in Greece, the New People’s Army in the Philippines and the Tamil Tigers in Sri Lanka. None of these groups fits within the category of “religious terrorism,” and, while they are not as effective as they were, one can’t dismiss them as unimportant or merely relics. The Tamil Tigers, the group that invented suicide bombing, were defeated by the Sri Lankan military only last year.

As I understand him, Prof. Cliteur agrees with Prof. Guiora that religious terrorism is distinct from non-religious terrorism – and distinctly dangerous – because religion motivates violence in a way non-religion does not. Although important elements of the three monotheistic faiths encourage violence, he writes, atheism and secularism, in themselves, do not. It’s certainly true that some religious ideologies encourage violence, as I said in my last post. But some non-religious ideologies encourage violence as well, at least if one is to judge by the understanding of the movements that espouse them. Besides, does it really make a difference, practically speaking, if a group believes it must eliminate its opponents in order to instantiate God’s rule on earth rather than to achieve a workers’ paradise or a “homeland for our own kind”? In each case, the group is a threat to civil society that must be contained. For this reason, I would prefer a treatment of extremism full-stop, rather than extremism in the name of religion.

Finally, about extreme religious expression. Prof. Guiora gives the chilling example of the rabbis who incited the assassination of Yitzhak Rabin by reciting a pulsa denura outside his home. Prof. Guiora knows much more about the Israeli context than I, but let’s try a thought experiment. Suppose, instead of conducting a religious ritual, a group of ultra-nationalist Israelis gathered outside Rabin’s house with signs depicting him as a traitor and calling for his death. Isn’t it possible that some impressionable person could have been incited by these signs to murder the prime minister? Would that have been any less chilling? Again, what does the religious motive really add?

Perhaps we can discuss Prof. Guiora’s policy prescriptions in more detail in the next go-round. For now, I should just point out that any attempt to single out extreme religious expression, rather than extreme expression itself, would face serious problems under the American Constitution.

Is Religion Really That Bad?

by Mark Movsesian

Thanks to Opinio Juris for inviting me to comment on Professor Guiora’s new book. I look forward to the interchange with him and the other participants.

Professor Guiora deserves credit for tackling the very controversial and timely topic of religious terrorism. Much of what he says is thought-provoking. He tries to be fair and avoid “religion-bashing.” He concedes that religion can have beneficial as well as harmful social effects and cautions the state against over-reaching in response to religious speech.

Yet I must disagree with his central assertion that religion constitutes a uniquely dangerous threat to national security and public safety. For example, he writes that “religious extremists are fundamentally, philosophically, and existentially different from secular terrorists for they claim to be acting in the name of the divine.” I don’t know about “philosophically and existentially,” but, practically, there is not much difference between religious and secular terrorism. In the last century, atheist state terrorism murdered many millions and suppressed whole civilizations. Atheist ideology motivated much “non-governmental terrorism” as well, as in Peru (the Shining Path) and Germany (the Red Army Faction). Indeed, in terms of sheer numbers, secular terrorism has been dramatically more successful than its religious counterpart.

It doesn’t seem, then, that religiously-motivated terrorism is qualitatively more virulent than the secular variety. This shouldn’t be a surprise. Terrorism can be motivated by many factors. Some religious beliefs encourage terrorism, but so do some secular ideologies. The key thing is the terrorist psychology: the terrorist’s emotional conviction that his goals, whether in this world or the next, justify violence against the people who oppose him. Society obviously needs to defend itself against such violence and I agree with Professor Guiora that religiously-motivated violence shouldn’t get a free pass. (Who argues that it should?) But focusing on “religious” terrorism distorts the nature of the problem.

Professor Guiora’s assumption that religion is uniquely dangerous also causes him to say some unfortunate things. For example, he states that “society has historically – unjustifiably and blindly – granted religion immunity.” This assertion is not correct. It is not even close to correct. Historically, society has persecuted religious dissent. The freedom that religion enjoys in the West today is the result of centuries of struggle. In many parts of the world, governments continue to suppress religious liberty. A recent Pew study revealed that 70% of the world’s population lives in countries with high or very high levels of restrictions on religious freedom. Even in the United States, believers who seek religious exemptions from generally applicable laws face an uphill battle, and always have. Under the old Sherbert test, courts routinely rejected religion-based claims for exemptions, and the current Smith standard is of course less accommodating. On an objective view of reality, religious communities around the world are more often victims than victimizers, a fact of which the reader of Professor Guiora’s often provocative work might lose sight.

Some More Quick Thoughts on Medellin

by Mark Movsesian

[Mark Movsesian is the Frederick A. Whitney Professor of Contract Law at St. John's University School of Law.]

Thanks to Chris for inviting me to say a few quick words about today’s very significant decision.

Hooray for Dualism: Just as he did two years ago in Sanchez-Llamas, CJ Roberts endorsed a dualist approach to the judgments of international tribunals. Dualism teaches that international and domestic regimes are entirely independent; in the absence of a domestic act of incorporation, international judgments cannot serve as rules of decision in domestic courts. Because there was no valid act of incorporation in this case – the Court believed that the Bush Memorandum did not qualify – Avena did not bind American courts.

This approach is entirely sensible. As a formal matter, neither the Optional Protocol nor the UN Charter can fairly be read to provide for direct effect for ICJ judgments. The functional arguments for dualism are as strong as well. By reserving the final decision on international judgments to domestically accountable actors, dualism promotes legitimacy and avoids unnecessary friction between national and international bodies. Moreover, dualism actually increases the likelihood that nations will create international tribunals. If international judgments automatically bound domestic courts, without any further act on the part of domestic authorities, nations would be much more wary of signing up to international regimes.

The Foreign Judgments Analogy: The Court correctly dismissed the idea that enforcing the ICJ judgment would be effectively the same as enforcing a foreign court judgment or an international commercial arbitration award. While it’s true that domestic courts routinely enforce such rulings, foreign court judgments and ICA awards typically deal with commercial disputes that do not impinge on domestic public policy. Here, by contrast, the ICJ ordered the retrial of scores of defendants who had been convicted of serious crimes and indirectly questioned American policy on the death penalty. These are hardly the sort of issues that come up in the foreign-judgments and ICA contexts.

The End of the Road: For the last decade, the American international law academy has been pressing the Court to be more receptive to ICJ judgments. Ten years ago, in Breard, the Court held that a preliminary ICJ ruling merited only “respectful consideration.” Two years ago, in Sanchez-Llamas, the Court declined to treat a final ICJ judgment as binding precedent. And now the Court has ruled that ICJ judgments are not enforceable. For better or worse (on balance, I think it’s for better), it’s clear after this morning that the campaign to change the Court’s mind has failed. New justices might see things differently, of course — though it’s significant that even Stevens voted with the majority today. For now, though, it seems time to move on to other projects.

A Response: Sanchez-Llamas and the Value of ICJ Judgments

by Mark Movsesian

I thank Roger for his thoughtful comments. Roger himself has written a seminal article in this area, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675 (2003), and I’m grateful for his kind words about my work.

Let me try to address his points. First, I agree that Medellin addresses a narrower issue from Sanchez-Llamas: the enforcement of ICJ judgments rather than their precedential effect. As Roger says, the “foreign judgments” model fits Medellin better than it does Sanchez-Llamas. Because enforcing a judgment does not create systemic effects within a domestic regime, it is less problematic than granting a judgment precedential effect. I also agree that the US has an international-law obligation to comply with Avena under the Optional Protocol and the UN Charter. But if you accept dualism as the most plausible approach to ICJ judgments – as I do, for the reasons I explain in my piece – you have to ask another question. Is there a domestic-law obligation to enforce Avena? I’m not so sure that the treaties create such an obligation. (The President’s memorandum may do so, but I don’t understand Roger to be asking about that). You have to interpret treaties, like contracts, fairly and consistently with the background assumptions of the parties, and neither the Optional Protocol nor the UN Charter indicates that states were contemplating domestic-court enforcement when they signed on. Contrast, for example, the New York Convention on international commercial arbitration, which clearly contemplates domestic judicial enforcement of international arbitral awards.

Second, on Justice Ginsburg’s “middle way,” I don’t read her dissent quite the way Roger does. Justice Ginsburg’s point was not that a subsequent federal statute superseded the VCCR, but that there was no conflict between the ICJ’s judgment and US law in this case. According to Ginsburg, Avena barred a state from applying a procedural default rule only where the state’s actions themselves had precluded the defendant from raising his VCCR claims at trial. That was not the situation in Sanchez-Llamas – Oregon had done nothing to prevent the defendant from raising his VCCR claims at trial. So Oregon’s application of its procedural default rule did not violate the treaty, as the ICJ had interpreted the treaty. I think this was step-two, rather than step-one, under Roger’s analysis of Charming Betsy.

Finally, I do recognize that the Court has stated that the opinions of foreign courts are entitled to “considerable weight” in treaty interpretation. Perhaps, as the quote from Justice Scalia suggests, these statements mean that there’s a presumption in favor of deferring to foreign courts. But, as I discuss in the article, the Court does not always act as though such a presumption exists. Sometimes it defers to foreign-court interpretations and sometimes it does not. One could explain the Court’s decisions in dualist terms: the Court adopts the reasoning of foreign courts when it believes there are good reasons for doing so – promoting uniformity, for example – but goes its own way when it believes those reasons are lacking.

I hope to develop these points in a paper I’m presenting at a conference at Duke next semester. For now, I’d like to thank Roger again for his careful reading and his OJ colleagues for this fun blogging opportunity.

Judging International Judgments

by Mark Movsesian

I’m grateful to the folks at Opinio Juris and VJIL for this opportunity to introduce readers to my article and to Roger for offering to serve as commentator.

My article discusses the Court’s decision last year in Sanchez-Llamas v. Oregon. Sanchez-Llamas addressed the precedential effect of ICJ judgments in domestic courts. (By contrast, Medellin v. Texas, which the Court heard last week, involves the enforcement of ICJ judgments themselves). In the article, I show how the main opinions in Sanchez-Llamas mirror the debate about international tribunals, and the ICJ in particular, that has preoccupied the international-law academy for the last decade. The Court’s opinion adopts what I call a dualist approach to ICJ judgments. It holds that ICJ judgments have only “information value” for domestic courts – ICJ judgments can supply good arguments and helpful analysis, but they cannot influence the outcome of a case, the way domestic precedent can, by virtue of their status as judicial pronouncements. The dissent, by contrast, adopts the comity model, which teaches that American courts should presumptively defer to ICJ judgments – should give them presumptive “disposition value” – in the interests of justice and global uniformity.

I argue that the dualist approach is better than the comity model at balancing the advantages and disadvantages of international tribunals like the ICJ. The comity model draws support from inapposite regional analogies, both European and American, and fails to resolve the legitimacy problems of international tribunals. In rejecting the comity model, Sanchez-Llamas suggests that the American approach to international judgments will be a moderate and sensible one.