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General

19 May

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.]  Yes, this is another post on foreign official immunity, prompted in part by the Fourth Circuit’s decision in Samantar.  It responds to Professor Bill Dodge’s post here and contributes to the growing blog commentary on this topic summarized in my earlier post here.  I am grateful to Opinio Juris for hosting this discussion. In this post, I focus on just one issue.  The Fourth Circuit’s decision in Samantar reasoned that jus cogens violations are not “private acts” but instead can constitute “official conduct” that comes within the scope of foreign official immunity.  Bill disagrees, arguing that conduct violating jus cogens can never be official for immunity purposes, but is instead always private.  Facts on the ground, State practice, and the purposes of immunity all suggest that the Fourth Circuit was correct. As other commentators have emphasized, the perpetrators of human rights abuses do not generally operate privately, but instead “through the position and rank they occupy.”  It is their official position which allows them to “order, instigate, or aid and abet or culpably tolerate or condone such crimes as genocide or crimes against humanity or grave breaches of the Geneva Conventions.”  (Antonio Cassese, at 868).  Thus even for many people who strongly favor accountability in international fora (like the late Professor Cassese), it is hard to view jus cogens as somehow inherently private; one might call this a flies-in-the-face-of-reality argument.  (Dapo Akande & Sangeeta Shah, at 832 (further citation omitted)).  The House of Lords itself – in an opinion directly counter to Bill’s position –rejected the argument that jus cogens violations are not official acts for immunity purposes. Jones v. Saudi Arabia ¶ 19 (Lord Bingham) (“I think it is difficult to accept that torture cannot be a governmental or official act..”) id. at ¶ 85 (rejecting “the argument that torture or some other contravention of a jus cogens cannot attract immunity ratione materiae because it cannot be an official act.”) (Lord Hoffman). What State practice does support the not-official-acts argument? 
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18 May

This week on Opinio Juris, Kevin was surprised by an unexpected dissenter in Kenya's request to the Security Council to terminate the ICC's Kenya cases. He also analysed whether the ICC has jurisdiction over Israel's attack on the Mavi Marmara and particularly whether the flotilla attack qualifies as a "situation". He followed up with a post asking why the Comoros are represented...

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16 May

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)...

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16 May

The UN General Assembly has voted to pass a resolution condemning the Syrian government for human rights violations and call for a transitional government. International donors pledged 3.25 billion euros ($4.22 billion) to help Mali recover from a conflict with al Qaeda-linked Islamists. A suicide bomber in a car targeted two vehicles carrying foreign forces in Kabul, Afghanistan. Three people were killed when...

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15 May

The Japanese military's forced prostitution of Asian women before and during World War II was necessary to "maintain discipline" in the ranks and provide rest for soldiers, an outspoken nationalist mayor has said. Russia has ordered the expulsion of an alleged CIA agent working undercover at the US embassy who was discovered with a large stash of money trying to recruit a Russian...

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14 May

UN Special Rapporteur Richard Falk urged Israel to stop construction of a highway that would cut off the local roads of Palestinian community Beit Safafa. A Swiss court is trying Belgians and Czechs in one of the biggest money laundering scandals dating back to central Europe's post-communist privatization boom. Major U.S. retailers including Gap Inc. declined to endorse an accord on Bangladesh building and fire...

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13 May

Former Guatemalan dictator Efrain Rios Montt was found guilty of genocide, torture and rape of 1,771 indigenous Ixil Mayans during his rule in 1982-1983. Bangladeshi authorities have arrested Jamaat-e-Islami party leader AKM Yusuf on charges of crimes against humanity allegedly committed during the 1971 Bangladesh Liberation War. Taiwan's government has issued a 72-hour ultimatum to the Philippines' government, demanding an apology over the...

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11 May

This week on Opinio Juris, the discussion of Kiobel continued with guest posts by Jordan Wells asking whether corporate liability is jurisdictional, and Anthony Colangelo arguing that Kiobel actually contradicts Morrison - the case on which it is supposedly based. Kevin asked whether the Al Shimari  v. CACI case could be a model for post-Kiobel ATS cases. We also returned to last week's discussion of the...

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10 May

I am delighted to announce that Tim Meyer and I will be co-chairing the 2013 ASIL Research forum.   I hope many of our readers will send in abstracts for this terrific conference.  The deadline for proposals is June 14.  Here is the call: The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research...

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10 May

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.] I explained in a previous post why I think extending the presumption against extraterritoriality to causes of action crafted by forum law is strange. But there may be another (bigger?) problem with Kiobel’s application of the presumption to the Alien Tort Statute—namely, it appears to contradict Morrison v. National Australia Bank—the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. As readers will recall, Morrison applied the presumption against extraterritoriality to the principal antifraud provision of the Securities Exchange Act. As the Court in Kiobel itself, as well as many commentators (myself included) have observed, the presumption against extraterritoriality has traditionally applied only to what are generally referred to as “conduct-regulating” rules. These are rules that govern primary conduct and are easily classified under the category of jurisdiction to prescribe or prescriptive jurisdiction. Yet as the Court in Kiobel also explained, the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Indeed the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the conduct-regulating rule under the statute comes from international law. And since international law applies everywhere, the presumption against extraterritoriality has no application to conduct-regulating rules of decision under the ATS. The Court appeared to accept this view, noted that the ATS was “strictly jurisdictional,” and then decided to apply the presumption anyway. In so doing, the Court explained that “to rebut the presumption, the ATS would need to evince a clear indication of extraterritoriality,” which the ATS failed to do. Here’s the problem.  
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09 May

Another clothing factory has caught fire in Bangladesh, killing eight; this news comes after a recent factory collapse with a death toll now over 900, with both tragedies putting international safety standards in the spotlight.  In other Bangladesh news, the war crimes tribunal is poised to hand down its fourth verdict today over a senior member of the Jamaat-e-Islami political party;...

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