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Next Week: The Tenth Anniversary of Opinio Juris!

by Chris Borgen

Just a quick heads-up that tomorrow, January 10th, is the Tenth Anniversary of Opinio Juris!

All next week we will have posts looking back on the first decade of the blog as well as on the decade in international law. And we will also have posts looking forward…

Thank you to everyone who has taken time to read or write anything posted on this forum. Your engagement and contributions is what transforms this from a “blog” into a conversation and a community.

So next week we’ll celebrate not the past, so much as our ongoing discussion!

Cliff Sloan on Closing Gitmo

by Deborah Pearlstein

In case you missed it Monday, departing U.S. State Department special envoy for closing Guantanamo had a sharp op-ed in the N.Y. Times, marking the administration’s recent successes at moving detainees out of the prison and urging that further progress be made. Among other things, Sloan highlights several “fundamental misconceptions” he believes are behind continuing opposition in Congress and elsewhere to steps necessary to close the facility, particularly the misconceptions that the recidivism rate is high and that all of the detainees there pose a continuing threat.

Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.) … Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.

In light of these statistics, those who argue against continuing transfers are indeed, as Sloan puts it, “constrained by an overabundance of caution.” As I’ve noted here before, and described in detail in a piece just out in the Cardozo Law Review, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end. Thanks to Sloan’s efforts and others, other countries are beginning to welcome former Gitmo detainees. But we have also returned prisoners to homelands still suffering violent political instability, particularly the post-World War European nations whose economic, political, and state security systems were essentially non-functional. We likewise returned prisoners who still harbored violent intentions toward the United States; in World War II, among the first prisoners we released were those Nazis whose enmity was “most hardened” against us (principally because they were not good sources of prisoner labor). And we released prisoners who had ideological allies with whom they could reaffiliate post-detention; we returned thousands of communist prisoners to communist nations at the height of a half-century long war that was “hot” (in Korea and against non-state groups in Vietnam) almost as often as it was cold.

In all of these conflicts, we calculated that any short term tactical risk we might bear by the release of a few individuals was outweighed by the long term strategic benefit to the United States of acting, and being seen to act, in a manner consistent with prevailing law. Sloan notes: “As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, ‘The greatest single action the United States can take to fight terrorism is to close Guantánamo.’” The strategic benefits here are clear. It’s as good a time as any to recall a little history and seize them.

Events and Announcements: December 21, 2014

by An Hertogen

Events

  • For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (University of Frankfurt), Stephan Schill (Max Planck Institute Heidelberg), and Christian J. Tams (University of Glasgow) – has been a forum for the discussion of conceptual issues of international investment law. The next workshop, to be held March 13-14, 2015, will explore the role of history in the interpretation and application of international investment law. It will cover a wide range of issues, from debates about investment law’s imperial origins to the drafting history of the World Bank’s ICSID Convention. The program is available here. As in previous years, the workshop will bring together academics and practitioners and provide them with a forum for open and frank exchanges. To register, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt (S [dot] Schimpf [at] jur [dot] uni-frankfurt.de) by February 28, 2015.

Calls for Papers

  • A call for papers has been issued for the International Criminal Justice Stream at the Socio-Legal Studies Association Annual Conference which takes place at the University of Warwick from March 31 – April 2, 2015. Submissions are invited on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would also be welcomed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Abstracts may only be submitted via the Easy Chair system, must be no longer than 300 words, include your title, name and institutional affiliation and your email address for correspondence. Successful papers will be published in a symposium; details of which will be available shortly. For an informal discussion please email the convenor, Anna Marie Brennan at Anna [dot] Marie [dot] Brennan [at] liverpool [dot] ac [dot] uk. The deadline for the submissions is Monday January 19, 2015.
  • The Graduate Institute in Geneva is convening a conference entitled ‘International Law and Time’ to take place in Geneva, Switzerland, from June 12–13, 2015, to explore the phenomena of time and change in international law. Abstracts are due by February 15, 2015. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Guest Post: Has the US just called for unilateral interpretation of multilateral obligations?

by Rick Lines and Damon Barrett

[Dr Rick Lines and Damon Barrett are the Chair and Director of the International Centre on Human Rights and Drug Policy, University of Essex]

These are interesting times for drug law reform, which, as it gathers pace, is asking important questions of international law. A UN General Assembly Special Session on Drugs is set for 2016 just as national reforms are challenging international treaties that form the bedrock of a global prohibition regime that has dominated since the turn of the twentieth century. States parties to the three UN drug control conventions must now confront the legal and political dilemmas this creates. This is the situation in which the US now finds itself following cannabis reforms in various states that are at odds with these treaties. The State Department has issued its official position in this regard, one that stretches and boundaries of interpretation and raises other serious questions for international law.

In an October statement Ambassador William Brownfield set out that position in the form of the ‘four pillar’ approach the United States will now follow in matters of international drug control. While the four pillars, set out below, have prompted much discussion and debate among those working on drug policy issues, attention among international lawyers has been rare. This is something of an important gap given the implications of what the US suggests:

  1. Respect the integrity of the existing UN drug control conventions.
  2. Accept flexible interpretation of those conventions.
  3. Tolerate different national drug policies…[and] accept the fact that some countries will have very strict drug approaches; other countries will legalise entire categories of drugs.
  4. Combat and resist criminal organisations, rather than punishing individual drug users

Internationally, the four pillars have emerged in the context of efforts, led primarily by Latin American States, to open discussions on the future of the international drug control regime, and look at alternatives to the current and destructive prohibitionist paradigm.  Domestically, it comes in the context of successful referenda to legally regulate cannabis in several US states.

Both of these are welcome developments. The international drug regime is long overdue for reform, and the cannabis referenda will produce many positive criminal justice, health and social outcomes in those US states adopting them. However, domestic cannabis law reform places the United States in a compromised position within the coming debates on the future shape of the international drug control regime.

(more…)

16 things to know about UN Sanctions

by Kristen Boon

The UN’s Department of Political Affairs recently published this list of “13 things to know about UN sanctions.”  If you scroll down on the link above, you’ll also see some great sanctions graphics.

United Nations Sanctions Primer

1. Since the creation of the United Nations, the Security Council has established 25 sanctions regimes. They have been used to support conflict resolution efforts, prevent the proliferation of nuclear and other weapons of mass destruction, and counter terrorism.

2. “UN sanctions have proved to be an effective complement to other Security Council instruments and actions. We know it is not perfect, but there is also no doubt that it works,” Under-Secretary-General Jeffrey Feltman told the 15-Member of the Council in the 25 November briefing.

3. There are currently 15 sanction regimes, the highest number in the history of the Organization.

4. UN sanctions are fairly economical. The total cost of supporting the 15 sanctions regimes is less than $30 million per year.

5. The first United Nations sanctions regime was established in 1966 when the Security Council imposed sanctions on Southern Rhodesia. By a vote of 11 to 0 – with four abstentions – the Council declared an international embargo on 90 per cent of Rhodesia’s exports, forbade the UN’s then 122 Member States (there are now 193) to sell oil, arms, motor vehicles or airplanes to Rhodesia.

6. The most recent sanctions were applied against Yemen this November. The UN Council ordered a freeze of all assets and a global travel ban on Saleh, the rebel group’s military commander, Abd al-Khaliq al-Huthi, and the Houthi’s second-in-command, Abdullah Yahya al Hakim.

7. In 1999, the Council established its first sanctions monitoring group on Angola.

8. There are now 11 monitoring groups, teams and panels with a total of 66 experts working in support of the Security Council and its sanctions committees.

9. Expert panels regularly cooperate with international organizations, such as INTERPOL, the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA) on issues related to travel bans, and with national authorities and the private sector on asset freezes.

10. DPA underscored in today’s briefing that UN sanctions are meant to be supportive not punitive. They are not meant to cripple states but to help them overcome instability, address massive human rights violations, curb illegal smuggling, and counter terrorism.

11. The DPA’s Security Council Affairs Division provides substantive and administrative support to the sanctions committees and expert panels; as well as engages the wider UN system in support of UN sanctions.

12. This year, among its other activities on sanctions, DPA let two missions on sanctions issues, one on the partial lifting of the arms embargo on Somalia and another on the termination of sanctions in Liberia. The aim was to strengthen these countries’ understanding of what the Council expects on sanctions issues and to enhance UN coordination on how the Organization can support implementation in these countries.

13. In 2006, the Secretary-General outlined four elements to improve the fairness and transparency of the sanctions procedures: the right to be informed; the right to be heard; the right to be reviewed by an affective review mechanism; and the need for periodic reviews, especially regarding the freezing of assets.

Let me add three things of my own:

14.   A recent UN high level review on sanctions took place between May – October 2014 (thus the reference to the 2006 document in #13 is a bit dated).  The background paper on the High Level Review website is well worth reading, as are the reports from the 3 working groups. See for example this briefing on Working Group 1, that included Security Council members.

15.   Technical assistance remains an important but controversial topic.   Australia proposed a resolution on technical assistance in November, 2014 but due to opposition by Russia, China and Argentina, the resolution was not put to a vote.   The basis of the opposition, as I understood it from statements during the Security Council session, was largely due to concern over an expansion of the Secretariat’s policy making role.   To put it differently, more technical assistance managed by the Secretariat might result in less Security Council authority.  Nonetheless, implementation gaps in sanctions remain a serious bar to sanctions effectiveness.  As sanctions become more sophisticated, so too do techniques of evasion, and for UN sanctions to be effective, there is no question that common ground will need to be identified to assist states, particularly, but not exclusively those states in whose territories individual and entities are targeted, neighboring states, and regional hegemons.

16.   There is growing support to expand the Ombudsperson’s jurisdiction to other sanctions regimes.  Currently, her office reviews delisting requests from the 1267 Al Qaida regime.   Individuals and entities listed under other regimes only have access to a focal point, who has far less powers.  If these proposals continue to gain momentum, there will be a significant improvement to the due process procedures noted above.  See an overview of developments in this debate here.

Do you have anything else to add to the list?  Please use the comments box to chime in.

Is the “Norm” Against Torture Dying (At Least in the U.S.)?

by Julian Ku

Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that “norms” against torture and assassination have died in the United States in the aftermath of the 9/11 attacks.  Kutz is not writing to support the CIA interrogation program or the US government’s use of assassination, but he does think that, as a descriptive matter, the rules against torture and assassination may be dead or dying in the U.S. He suggests that democracies have a limited ability to maintain commitment to these kinds of norms because of a democracy’s “sensitivity” to public mobilization.  Eric Posner has a typically interesting response to Kutz here.

I don’t know if the norm against torture is dead in the U.S., but I will say that the U.S. public appears completely unmoved by the release of the U.S. Senate Intelligence Committee’s very critical report on the CIA interrogation program.  A raft of new polls shows that the U.S. public’s support for an absolute ban on torture remains relatively low, while a majority, or perhaps a strong plurality, support the actual CIA program and methods that was so harshly criticized by the Senate Report.  See the WSJ/NBC poll here.  See the Pew Research Survey poll here.  We can quibble about the details, but those post-Senate Report polls show almost no change from pre-Senate Report polls.

I emphasize again that the U.S. public’s support for the CIA program does not in any way justify the legality or the morality of the program.  But the public’s failure to support a ban on torture, especially the absolute ban on torture embedded in international law and U.S. law, cannot be ignored either.  It suggests there is little chance of a prosecution over the CIA program, and it really poses a tough challenge for international lawyers. What should the response of international lawyers be when public opinion in a democracy refuses to support a central key rule of international law?  As Kutz’s paper suggests, this whole episode suggests widely accepted international law norms can be fragile, even (or especially) in liberal democracies.

 

Guest Post: Protecting Schools and Universities from Military Use

by Bede Sheppard

[Bede Sheppard is the deputy children’s rights director at Human Rights Watch, based in Barcelona]

At an event at the United Nations in Geneva this morning, the ambassadors of Norway and Argentina unveiled a set of six new “Guidelines” aimed at better protecting schools and universities from being used for military purposes during times of armed conflict. They are intended to respond to the practice of government forces and non-state armed groups converting schools and universities into bases or barracks, or using them as firing positions or places to cache weapons and ammunition.

This practice endangers students and teachers by turning their schools into targets for enemy attack. Students and teachers have been injured and killed in such attacks. It also exposes students to sexual violence, forced labor, and forced recruitment by the soldiers sharing their schools. Students must either stay at home and interrupt their education, or study alongside armed fighters while potentially in the line of fire.

The Guidelines urge all parties to armed conflict to refrain from using schools or universities for any purpose in support of the military effort, but state specifically that “functioning schools” should not be used, even if it is outside of normal school hours, or during the weekend or on school holidays. Schools that have been abandoned or evacuated because of the danger presented by the armed conflict should also not be used, except in circumstances in which fighting forces are presented with no viable alternative, and only as long as no choice is possible between such use of a school and another feasible method for obtaining a similar military advantage. The Guidelines reiterate the prohibition on destroying a school as a measure intended to deprive opposing parties of the ability to use them in the future, and provide guidance on how to respond if enemy forces are using a school, or if military forces are the only option for providing essential security in response to threats of an attack on a school.

Concerns about the negative consequences of where soldiers are accommodated—and resulting efforts to regulate their billeting—date back a long time. (more…)

Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal

by Julian Ku

The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea.  It is a little unclear exactly what Vietnam has filed.  According to its Ministry of Foreign Affairs website:

In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.

According to the South China Morning Post, the Vietnamese submission has three points.

1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.

I think this filing has much more political than legal significance.  As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal.  It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.

On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China.  I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course.   The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.

The Question of Prosecution

by Deborah Pearlstein

The 525-page executive summary of the torture report released this week, and the debate that has followed thus far, is in many respects so dense it is a struggle just to decide where to begin engaging. Having spent years of my life as a human rights lawyer working on precisely these issues – preparing reports on secret detentions, and indeed detainee deaths in U.S. custody, among other things – and having spent plenty of days in shock and horror at what we learned then, I had come to feel almost inured to new revelations. Power drill to the head? We’d seen that earlier. Detainee died of hypothermia having been left mostly naked in his dungeon-like cell? Knew that too. But beyond the important new detail about our treatment of detainees the report offers, it is for me the facts the report reveals about the level of fundamental professional incompetence giving rise to this program, and the extent of the CIA’s efforts to keep information about it from other parts of our own government – including the director of the FBI and two U.S. secretaries of state – that leaves me newly in awe. Among the many telling (and I believe unrefuted) passages of incompetence (p. 11 of the Report): “Numerous CIA officers had serious documented personal and professional problems – including histories of violence and records of abusive treatment of others- that should have called into question their suitability to participate” in the interrogation and detention program. More, the private psychologists CIA hired to develop, operate and assess its interrogation program lacked any “experience as an interrogator, knowledge of Al Qaida, background in counterterrorism, or any relevant cultural or linguistic expertise.” Even as I continue to work through the text of the report, it is clear that it should be required reading for all Americans.

For now, though, I want to begin with one of the questions the report raises that I find much more difficult to assess: whether and how those responsible for the acts of torture described in the report should be held accountable. (more…)

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

by Julian Ku

I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program.  In this post, I want to focus on an interesting data point coming out of this debate.  As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public.  This doesn’t mean that the CIA program was legal.   But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.

I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification.  (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”).  There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view.  This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.

For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law.  The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement.  In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture”  or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture.  Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.

However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view.  FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure.  It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.

Again, I am not claiming that public opinion should determine whether the CIA program was legal.  But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture.   This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program.  And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.

What We Fight About When We Fight About Torture

by Jens David Ohlin

Right now we are locked in a complex dispute over the claims in the SSCI Torture Report that the CIA’s torture program was ineffective (as well as illegal). Part of the dispute can be frustrating because I think we are conflating a number of more distinct questions when we ask whether the torture was effective or not. Consider the following article from John Yoo who says that the torture report should be confined to the “dustbin” of history because it is inaccurate. He claims that torturing the detainees helped the CIA find Osama Bin Laden plain and simple.

We need to be more precise in order to have this conversation. Effectiveness or ineffectiveness are actually cluster concepts composed of more specific elements. I will try to tease apart the components here (there are at least five).

First, there is the issue of whether the CIA received intelligence from torture. In evaluating the dueling claims from the SSCI report and the CIA, it seems clear to me that the CIA did receive some intelligence about Bin Laden’s courier from the detainees who were tortured. The real question is evaluating the significance of that intelligence as compared to the other data points in the overall intelligence assessment of the CIA. That’s a complicated question and simply asking whether or not the CIA received intelligence about the courier from the tortured detainees does not tell you anything about the significance of the information. For that you need to ask some different questions which I now elaborate.

Second, there is the question of whether that intelligence was also received from other sources. Even if the tortured detainees provided intelligence about the courier, the more relevant question is whether that information was also received from our sources. That makes a huge difference. The critics of the report (including the CIA) make it sound as if the information from the courier came exclusively from the tortured detainees, but in fact this might have been a situation of overdetermination. The CIA already knew about the courier. If they received the information again from a tortured detainee, it is literally true that they received intelligence from the tortured detainee but the significance of that information is substantially reduced (perhaps to zero).

Third, there is the question of whether the intelligence could have been received from a non-torture source, either by non-coercive interrogation or some non-interrogation method. This question is important because it is relevant to the issue of “unavoidability” that plats a part in the legal analysis of necessity. At least some of the information came from multiple sources including detainees who provided the information before they were tortured. This suggests that torturing the detainees was avoidable because there were other non-torture avenues available for the CIA to get the information. It is also important to ask — and not enough people are asking and discussing this — whether the CIA could have used methods other than interrogation to get information about the courier. Of course, this discussion is stymied by the fact that the public does not have access to CIA methods and practices, which are classified. But how can we determine that the torture was indeed “necessary” without making explicit reference to the lack of other avenues? Unfortunately the CIA does not discuss these other avenues, but they really need to if they want anyone to accept their conclusion that the torture was truly necessary.

Fourth, there is the question of whether the torture saved lives. This is a counterfactual question because it requires imagining a world without torture and asking which terrorist attacks would — and would not — have occurred. This is guess work. When the CIA and their surrogates argue that the torture saved lives, they are asking everyone to engage in a mighty big thought experiment and what the world would have looked liked if they had followed the legal prohibition against torture. This is closely connected to the issue of unavoidability but it really is a separate question. Did it save lives? I have no idea. But at the very least the SSCI report shows that the CIA has failed to make the case that it saved lives.

Fifth, there are the first-order normative questions that are allegedly separate from effectiveness entirely, i.e. regardless of the answers to (1)-(4), was tortured legally or morally appropriate? Obama says that torture is wrong but he refuses to say whether it was effective or not. But these questions are linked in an interesting way. If we are debating whether the necessity defense should apply to torture (which I’ve written about extensively), at least part of the analysis is whether the torture is unavoidable. If torture is ineffective and useless, then it is clearly avoidable and the necessity argument does not apply — regardless of the rest of the legal argument. Of course, there might be other moral and legal reasons to reject torture, but the application of the necessity argument seems central to me.

The present discussion in Washington, DC, is conflating all of these questions into one incoherent mess.

Alfred P. Rubin: The Best Professor I Ever Had

by Duncan Hollis

For those of us fortunate enough to end up with a career in international law, we all have our mentors, our guiding lights.  Mine was Professor Alfred P. Rubin of the Fletcher School.  He died last week.  I write to express my condolences to his family and friends and offer a few words on his influence on my life as well as the whole Fletcher community, where he taught for 30 years.  Simply put, I would not be an international lawyer — let alone a professor of international law — had Professor Rubin not pushed, encouraged, and inspired me onto my current path.  He was the best professor I ever saw grace a classroom.

Truth be told, when I arrived at Fletcher in the Fall of 1993, I had no expectations of a career in international law.  I had enjoyed studying it as an undergraduate at Bowdoin with Allen Springer (a former student of Professor Rubin as it turned out).  But I’d applied to Fletcher to study Japan, not law; I had four years of Japanese language classes under my belt and had just finished a summer internship in Osaka.  To complete my joint degree, however, I still needed four law-related courses. LAW 200: The International Legal Order looked interesting.  I was a bit wary of an early morning class 3 days a week, including Fridays, plus an unusual year-long course structure. Still, Rubin’s classes were legendary so I decided to take it during my first semester.

In what was a trademark for his contrarian demeanor, Professor Rubin started off our first class with a simple, but powerful, challenge — insisting that there is no such thing as human rights.  An Australian classmate took the bait, and responded that they must exist, to which Professor Rubin pushed back, asking if human rights existed as law or morality.  That generated a fairly intense discussion on what law “is”, who should decide the law’s contents and by what processes.  Fifty minutes later, I was hooked.  LAW 200 became my favorite class. I would actually wake up happy on class days, eager to see what the morning’s discussion might hold — the Trent Affair’s illumination of customary international law, the divine law origins of treaties (which I’ve made use of subsequently), or one of my favorite casesMortensen v. Peters. We wrestled with the (in)consistency of the ICJ’s approach to the South Africa question, the meaning of “genuine and effective links” for citizenship, plus older chestnuts like the Lotus case. Along the way, Professor Rubin moved us beyond doctrine to legal theory, asking us to work through various iterations of positivist and naturalist methods in original and neo-formulations.  We didn’t just read Hart, we went back to Kelsen (reading Kelsen being fairly atypical in American legal education).

The Spring semester brought piracy and thornier topics like recognition, succession, jurisdiction, and conflicts of law.  A few years later, Monroe Leigh (who along with Cynthia Lichtenstein were my other early mentors) took me on as his associate in part because I’d invoked the Fruehauf case from Rubin’s class to advise a client.  As the semester progressed, my classmates and I debated whether Professor Rubin’s tears in discussing the legality of the bombing of Hiroshima were real (they were) and marveled at how he cared about the “law” as a concept and detested hypocrisy in any form.  None of us will ever forget how Rubin ended the year — re-enacting the scene from A Man for All Seasons where Sir Thomas More responds to William Roper’s call for an arrest even if it means cutting a road through the law to get after the Devil:

Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, the laws all being flat? This country is planted thick with laws, from coast to coast, And if you cut them down, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Two decades later, I’m still trying to figure out Professor Rubin’s secret ingredient — the persistent Socratic dialogues, the deep dives into doctrine, the marshaling of legal theory in concrete cases, or that undeniable passion for his subject-matter. It may have been something as simple as his gentle voice — a slight hesitancy in speech with an ever-present inquisitive tone.  I confess that my study group spent hours imitating that voice (one of us who shall remain nameless with much success).  We did so without any sense of hostility or meanness — but rather as a mark of our affection for his teaching and our sense that his class was a shared experience.  And it was not by any means an easy one — the reading assignments were enormous with Rubin assuming we all knew the material so we could take the class discussion to a more critical level. I still have my notes (the only ones that I’ve kept). I was amazed to revisit them yesterday to see just how much we covered that year in history, doctrine and theory.  I’ve never had another class like it.

Beyond the classroom, Professor Rubin was a thoughtful adviser.  Conveniently located on the way to the cafeteria, his office door was always open.   He welcomed students in to ask questions about class or the oft-discussed career question – “So, exactly, how does one become an international lawyer?”  He never rushed students off (even if we’d interrupted one of his many Minesweeper computer games). I treasured those conversations, and the chance to soak in his knowledge, his experience, and his many, many books. I have a shelf-long collection of green volumes of the American Journal of International Law in my office today for no other reason than Rubin had one.  In later semesters our conversations deepened and I gained insights into key sources and research methods.  To this day, I’m reluctant to cite a secondary source when a primary one is at hand since I picture Professor Rubin watching over me and shaking his head, reminding me he expects nothing less.

I will always be most indebted to Professor Rubin for his willingness to go beyond advice to action. In the summer of 1994 I was (unhappily) a temporary secretary in Suffolk University’s physical plant. The job was in the sub-basement below the actual basement.  It was hard to see how this was going to advance my dreams of becoming an international lawyer until I got a call from Jeffrey Bates, a partner at Goodwin Proctor at the time.  Another former student of Rubin’s, he needed a legal clerk to do some research, and Professor Rubin had recommended me. Overnight, I transferred onto a large and intensive research project that laid the foundations for all that followed.  I have no doubts that the Goodwin clerkship made it possible for me to join Steptoe and Johnson as an associate, which in turn led me to the State Department, and eventually Temple Law.  All this from one recommendation by Professor Rubin (a recommendation I’d not even asked him to make).  Nor am I alone in this experience.  Generations of Fletcher students sought out the Rubin experience and found themselves entering the field of international law in one way or another. From that introductory class alone, four of us spent time in the Legal Adviser’s office at the U.S. Department of State; others ended up at the United Nations, in foreign ministries, and private practice.  At least three of us followed his path into the academy to teach international law.

Having been a member of international law’s “invisible college” for a few years, I know that Professor Rubin was regarded by other law professors as an academic, known for his work on piracy and unilateral declarations, and some ferocious commentary from the floor at the American Society’s Annual Meeting.  For my part, however, I choose to remember Professor Rubin as a teacher.  In later years, we kept in touch until his health began to fail.  He’d ask me to call him by his first name, Al.  I couldn’t do it.  He was and will always be my professor of international law.  A gentleman, a scholar, but above all a teacher.  May he rest in peace.