Last December, the U.S. Senate failed to give consent to U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Since the election hasn’t really changed the composition of the Senate all that much, I kind of thought this treaty was dead, or at least dormant, for a while here in the U.S.  Maybe not!

Groups opposed to US ratification of the CRPD are saying that the Senate Foreign Relations Committee will hold hearings on June 4 to discuss ratification of the treaty.  And the critics are ready. In the latest critique, Iain Murray and Geoffrey McClatchey argue that the CRPD really does go beyond what U.S. law requires under the American with Disabilities Act by suggesting all entities must give all individuals accommodations, whereas the ADA has a number of important exemptions.  I am not sure about this, and it seems like a fairly technical matter that could be interpreted narrowly or broadly. Since the CRPD would be non-self-executing, I am not sure this would be a huge problem for Congress, which could easily say that the ADA is enough to comply with the CRPD.

More problematically, the senators who offered their opposition last summer in the SFRC committee hearings are deeply troubled by the refusal of the Obama Administration to clarify that the language requiring equal treatment in the provision of “health care” for “sexual and reproductive health” in the CRPD’s Article 25 does not include abortion services. Again, I think the practical impact is fairly small, but I don’t fault senators who are pledged to oppose expansion of abortion services to be worried about this.  Senator Marco Rubio’s proposed “declaration” to attach to advice and consent would seem to solve this.

The United States understands that the phrase “sexual and reproductive health” in Article 25(a) of the Convention does not include abortion, and its use in that Article does not create any abortion rights, cannot be interpreted to constitute support, endorsement, or promotion of abortion, and in no way suggests that abortion should be promoted as a method of family planning.

I don’t see this is a big deal, but if it would remove one obstacle to ratification and get the necessary votes, I don’t see why CRPD proponents wouldn’t just agree to take this language on.

Overall, I do think critics of the CRPD are overstating the likelihood that the treaty will have a meaningful impact on U.S. law and policy.  There could be an impact, but the institutional protection is that any changes required by the CRPD will have to clear Congress in the form of another statute. This is a non-trivial institutional protection.  Sure, the Disabilities Committee will probably crank out some interpretations of the CRPD that the U.S. Congress will disagree with, but the chances of those interpretations seriously affecting U.S. law seem fairly small.

On the flip side, I also think the proponents of the CRPD are exaggerating its benefits.  It may have some small impact on the practice of foreign countries, but there is little evidence it would lead to wholesale changes in other countries either.

As I have argued before, the potential problems in this treaty are just not serious enough for me to get worked up about it.  On the other hand, the benefits are not exactly large enough to get excited about either. Still, the upcoming battle for the CRPD is a proxy for the entire U.S. attitude toward the various U.N. human rights treaties. So it matters, even if this particular treaty is not a big deal.

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

When assessing the legality of drone strikes, attention is often focused on the State that carries out the strike—usually the United States.  On May 8th, for example, the U.S. Congressional Progressive Caucus Peace and Security Taskforce held a hearing on the United States use of weaponized drones abroad and heard testimony that detailed specific incidents of civilian harm and encouraged transparency, after-action investigations, accountability, and greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.)

These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories.  This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal force outside an active battlefield” discussion) that has not received enough attention. Yet, it is worth exploring how the legal responsibilities of the consenting State interact with the notion of what I’ll call “transnational non-international armed conflict (NIAC) targeting.”

“Transnational NIAC targeting” occurs when a State, which is engaged in a NIAC in one country, targets with lethal force an enemy fighter who happens to be in another country.  Or, to quote John O. Brennan when he was Assistant to the President for Homeland Security and Counterterrorism, it is based on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.)

First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law…

I want to call readers’ attention to a remarkable new report on international criminal justice authored by Daniel McLaughlin, a former legal officer at the ECCC, for Fordham’s Leitner Center for International Law & Justice. As the introduction states, the report is an attempt — a very successful one — to visualize information about the criminal tribunals:

There is wide awareness, though little true understanding, of the work of the international criminal tribunals.

International prosecutions of high-ranking civilian and military leaders, including former heads of state, on charges of crimes against humanity, war crimes and genocide, represent for many the ultimate condemnation of these individuals’ past actions and a measure of their fall from power. Yet, despite the tribunals’ grasp on the popular imagination, they are the subject of significant  misconceptions and confusion. Much of the media coverage dedicated to their work remains superficial, at best, and largely muddles over key distinctions between various tribunals, past and present. Conversely, the more informed scholarship is largely confined to specialty publications that remain inaccessible to most. In truth, many lawyers and non-lawyers alike lack a clear understanding of the role and functioning of these increasingly-pivotal international institutions.

This publication seeks to redress this knowledge gap by providing well-researched and accessible information for those wishing to more fully understand the international criminal tribunals and the conflicts over which they have jurisdiction. An informed public is an engaged public — and the issues that animate these tribunals, including delivering justice for victims of some of the world’s worst atrocities, are too significant to be discussed solely by a small cadre of international criminal law specialists.

Notably, this publication was created in partnership with graphic and information designers so as to reach a broader public. The designers’ visualizations present information regarding the tribunals and their underlying conflicts in a direct and accessible manner to a wide range of viewers, including those without a legal background. Beyond this democratizing function, information visualization also serves to reveal important data and trends that might otherwise go unnoticed in a more conventional format. Ideally, the following information, which is current as of January 2013, would be integrated into a continually updated interactive webportal dedicated to engaging a global public on issues of international justice.

In sum, this publication aims to facilitate a broader discussion of the international criminal tribunals’ notable accomplishments, as well as ongoing shortcomings.

I can’t do the amazing graphics justice, so just click through and download the report for yourself! It’s a must read — a must look? — for anyone interested in the tribunals.

As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53Initiation of an investigation1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

…

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position…

Armenian-American groups are up in arms over the U.S. government’s decision to file an amicus brief against a California law allowing claims against insurance companies by “Armenian genocide victims.”  But they shouldn’t be. The law really involves an ongoing constitutional powers debate between the states and the federal government over foreign affairs, and the U.S. government is siding (not surprisingly) with its own powers.  What is more interesting about this case, in the wake of Kiobel, is how human rights groups will increasingly support state autonomy in foreign affairs (to allow human rights lawsuits) and how business and conservative groups will likely oppose it.

The California law had been struck down by a unanimous Ninth Circuit en banc panel on the grounds that it was preempted by federal government policies and constitutional powers over foreign affairs. The law extended a statute of limitations on insurance claims against insurance companies that do business in California for residents or non-residents who are found to be “Armenian genocide victims.”  Both the district court and the initial appellate court panel had found at least some parts of the law could survive a federal preemption challenge (as Roger described here), so the unanimous en banc panel decision was quite surprising.

The Solicitor General’s brief focuses mostly on the “field preemption” theory developed most recently in the U.S. Supreme Court’s decision in American Ins Association v. Garamendi. Field preemption describes a conflict between a state’s actions and the federal government’s “field”, such as foreign affairs.  Conflict preemption focuses on the idea that the federal government has made an express legal determination with which the state law conflicts (e.g. through a statute or treaty, or maybe an “executive foreign policy”). Where the federal government’s policy on the Armenian genocide is a fairly complex muddle, I don’t think there is much of a case for conflict preemption.

As Peter noted yesterday, the recent tragedies in Bangladesh factories have resulted in a major breakthrough with the signing of the Accord on Fire and Building Safety in Bangladesh. Thus far, leading retailers such as H&M, Marks & Spencer, Tesco, Sainsbury’s, Benetton, and Calvin Klein are on board. Notably absent from the list are leading U.S. retailers such as Wal-Mart and Gap.

As noted in my previous post, I have been arguing for years that international arbitration could serve as an important procedural tool for promoting human rights in global supply chains. I applaud the commitment of these retailers to join with leading labor rights groups and enter into a binding agreement to improve working conditions in Bangladesh factories.

I do take issue with the drafting of the arbitration agreement, which clearly could have benefited from a quick review by a lawyer with international arbitration experience. Here’s the relevant language:

Any dispute between the parties to, and arising under, the terms of this Agreement shall first be presented to and decided by the SC [seven-member Steering Committee], which shall decide the dispute by majority vote of the SC within a maximum of 21 days of a petition being filed by one of the parties. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. Any arbitration award shall be enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), where applicable. The process for binding arbitration, including, but not limited to, the allocation of costs relating to any arbitration and the process for selection of the Arbitrator, shall be governed by the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006).

Note the peculiarities. There is no governing law clause, no arbitration seat, and no arbitration rules. If a party refuses to arbitrate, there will be no obvious court for the petitioner to file a motion to compel arbitration. Instead the arbitration proceedings are to be governed by the UNCITRAL Model Law on International Commercial Arbitration as a sort of free-floating “anational” governing clause. I suppose that makes the UNCITRAL Model Law the chosen arbitration rules, but I’ve never seen the Model Law function in this fashion. If that’s what the clause does, then any court where an action is brought can compel arbitration and the arbitral panel will be empowered to fill in most of the gaps, including determining the arbitration seat, the governing law, and the scope of its jurisdiction (See Articles 8, 16, 20, 28). Not ideal, but it may do the trick.

Second, the arbitration clause has a peculiar scope. Only disputes “arising under” the Agreement are subject to arbitration, apparently limiting the scope to breach of contract and excluding disputes relating to third-party injuries that relate to the agreement. The scope appears to be further limited by the fact that arbitration is an appellate function only, which may mean that the arbitral tribunal is limited to reviewing legal or factual errors of the Steering Committee.

Third, there is a question as to whether decisions of the Steering Committee are subject to enforcement pursuant to the New York Convention. It appears that only the arbitration awards rendered following an appeal of the Steering Committee decision are subject to such enforcement. This may mean that an appeal is necessary simply to create a binding mechanism for enforcing the parties’ obligations.

My hunch is that despite these errors, if a dispute arises from this agreement the parties will muddle through and find a way to make the dispute resolution clause work. Perhaps in the near term they can clarify these ambiguities when they develop the Implementation Plan mandated by the agreement.

So it’s probably not a pathological arbitration clause, but it could have benefited from a good scrubbing.

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

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.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Yousuf v. Samantar, the U.S. Court of Appeals for the Fourth Circuit held that a former Somali official was not entitled to official act immunity for alleged violations of jus cogens norms. In a recent post, Professor Ingrid Wuerth takes issue with that conclusion, arguing that state practice and ICJ jurisprudence establish that allegations of jus cogens violations “do not generally deprive conduct of its ‘official’ nature for immunity purposes.”

As I have previously explained, all immunity doctrines involve three basic questions: (1) who is covered, (2) what is covered, and (3) whether there is an exception. For example, head of state immunity (a status-based immunity) generally applies only to sitting heads of state, heads of government and foreign ministers, covers all acts (even purely private ones), and is not subject to a jus cogens exception. See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). On the other hand, official act immunity (a conduct-based immunity) applies to lower level officials and to former officials, covers only acts taken in an official capacity, and may or may not be subject to a jus cogens exception.

In a recent article, Pinochet’s Legacy Reassessed, 106 Am. J. Int’l L. 731 (2012), Ingrid looks exhaustively at the third question in the context of official act immunity, concluding that state practice does not support a jus cogens exception to such immunity. That conclusion may or may not be correct—recent state practice including Samantar and the decision of the Swiss Federal Criminal Court in Nezzar may cast some doubt—but I will assume for present purposes that it is correct. Ingrid’s AJIL article did not, however, focus the same attention on the question of what constitutes an official act to which immunity attaches in the first place. Instead, she simply assumed that the second and third questions were the same. See id. at 732 n.9. In her recent post and in an interesting article on the Nezzar case, Ingrid answers the “what acts” question by adopting what one might call the “atributability theory” of official act immunity—that any act attributable to the state for purposes of state responsibility must be deemed an “official act” for purposes of conduct-based immunity. The problem is that there is no general and consistent practice of states supporting that position.

That is not to say that there is no authority at all in support of the attributability theory. The former rapporteur of the ILC’s project on the immunity of state officials from foreign jurisdiction adopted this theory in paragraph 24 of his Second Report. But his assertion has proved very controversial at the ILC and is flatly contradicted by another final ILC report, the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that…

Ever since my friends at Wronging Rights flagged the upcoming NBC series Crossing Lines, which is about an ICC police unit, I’ve been scouring the internet for more information about what will no doubt be an absolute train-wreck of a TV show. Tonight I found this:

Set in exotic locations around Europe, “Crossing Lines” follows a disgraced New York cop, played by William Fichtner, who finds redemption after joining an international police unit based at the Intl. Criminal Court in the Hague that investigates cross-border crimes and hunts down brutal criminals.

[snip]

“Fans of procedural crime shows will feel very much at home with this new team, but at the same time, the global setting will add a color and flavor to the show that will take audiences on a new and exciting ride.

“Crime has gone global like everything else in our lives and now there is a weekly procedural that dives into this world. At the end of the day, we’re all frightened and concerned about the same things and problems no longer tend to stay regionally contained for too long anymore.”

The series will tackle topical crimes and illicit global trades such as plutonium poisonings, serial killings, kidnappings, human trafficking and drug smuggling, added Bauer.

Where to begin? First, the ICC doesn’t have a police force, international or otherwise. (Perhaps the show should have been set in the OTP — which at least has investigators.) Second, international crimes do not have to be transnational. (Which is the whole point of genocide and crimes against humanity.) Third, the ICC does not have jurisdiction over poisonings (except in armed conflict), serial killing (unless its like Srebrenica), kidnappings (unless they’re like during the Dirty War), or drug smuggling (sorry, Trinidad & Tobago). Fourth, and finally, it will be a very chilly day in the bad place when the ICC investigates a crime committed in Europe.

Other than that, the show sounds completely accurate.

The Kenyan government has asked the Security Council to pass a resolution deferring the prosecution of Uhuru Kenyatta and William Ruto, the newly-elected President and Deputy President of Kenya. That’s not surprising; the Kenyan government has been doing everything in its power to undermine the ICC. What is surprising, though, is that Ruto has explicitly disavowed the request:

Through lawyer Karim Khan, Ruto says that the application neither represents government policy nor his personal wishes. In an interview with Capital FM News, Khan says that his client never had input in the application.

“His Excellency the Deputy President would like to dissociate himself with the application by ambassador Macharia Kamau as it does not represent his desire. He was never consulted in the making of the application and not in the presentation.

He said that Ruto who was sworn into office last month was committed to upholding the Constitution which included respect for independent institutions.

Khan said that President Uhuru Kenyatta – also indicted by the ICC – had also given his word on honoring international obligations.

Khan reiterated that the United Nations Security Council had no power to terminate proceedings saying that the ICC was an independent court. He said that it is only the ICC judges could make a decision on the termination of the cases or otherwise as the court, which he said had independent judges fully seized of the matter.

“The application is a distraction from the reality which is that no institution can interfere with the independence of the court. The judges have sworn an oath and they are the only ones who can make a decision on the matter,” he said.

He maintained that Ruto who had cooperated with the court since he was named among the suspects who have the greatest culpability in the 2007/08 post poll chaos will continue to cooperate with the court until he is vindicated.

Khan is wrong, of course, when he says that the Security Council cannot terminate the case. Article 16 of the Rome Statute gives the Security Council just that power — although it would have to pass a new deferral resolution each year, because Article 16 limits individual deferrals to 12-month increments.

That aside, Ruto’s statement raises some interesting questions. First, if Kenyatta agrees with Ruto, how can the “Kenyan government” be asking the Security Council to intervene? Reports indicate that the request was signed by Kenya’s ambassador to the UN — who presumably works for Kenyatta and Ruto. So it would seem that Kenyatta and Ruto would be well within their rights to withdraw the request. Does their failure to do so indicate that, in fact, Kenyatta and Ruto are not actually on the same page?

Second, why has Ruto disavowed the request? Color me skeptical that his opposition is motivated by a principled belief in the authority and legitimacy of international organizations. More likely, he simply believes that he is unlikely to be convicted — a not unreasonable assumption, given the many problems that have plagued, and continue to plague, the Kenya cases. If Ruto is confident of acquittal, his opposition to deferring the prosecution makes perfect sense: he will have much more freedom to operate as an acquitted war criminal than as an accused one. (See, e.g., Omar al-Bashir.)

We’ll see how this plays out.

UPDATE: Kenya’s Attorney General has now also disavowed the request. What is this, a UN Ambassador gone rogue?

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.