In association with the International Commission of Jurists

Targeted Killings Symposium: Craig Martin Comments on “Targeting Co-Belligerents” by Jens David Ohlin

04 Jun

[Craig Martin is Associate Professor of Law at Washburn University School of Law, and author of another of the chapters in Targeted Killings]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Jens Ohlin’s chapter in Targeted Killings, “Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument. Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing. Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into...

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03 Jun

I want to congratulate my friend Andrew Cayley, the Chief International Co-Prosecutor of the ECCC and a barrister at London's Doughty Street Chambers, on being named QC in England.  Given the constant turmoil that has roiled the ECCC over the past year, the news is a welcome (re-)affirmation of Andrew's legal ability.  The ECCC is lucky to have him....

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03 Jun

Calls for Papers The 2012 Critical Legal Conference takes place in Stockholm between September 14-16, 2012. Paper proposals on International Law, Genocide and Imperialism: The Colonial Origins of Human Rights? are due on 15 June 2012. The American Society of International Law has issued a call for papers for its 107th Annual Meeting in April 2013. Proposals need to be submitted online by June 22, 2012. Upcoming...

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02 Jun

The Pre-Trial Chamber has held that Article 95 of the Rome Statute applies to requests for surrender, thereby agreeing with Dapo and Jens and disagreeing with me. It's a poorly reasoned decision, giving a completely counterintuitive reading to the "such evidence" language in the article (pretending that the clause in question doesn't actually contain the word "such") and ignoring all...

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01 Jun

[Stephen G.A. Pitel is Associate Professor at Western University, Faculty of Law] On May 30, 2012, residents of Ecuador started an action in the Ontario Superior Court of Justice seeking to enforce a judgment in their favour of an Ecuadorian court against Chevron.  The amount of the judgment is a staggering $18 billion.  Chevron has announced that it will resist the enforcement litigation in Ontario. Under Ontario’s common law, confirmed relatively recently by the Supreme Court of Canada in Beals v Saldanha, the test for whether a court will enforce a foreign judgment ordering the payment of money has three requirements.  First, the judgment must be final.  Second, the court granting the judgment must have had jurisdiction on a particular basis.  This is sometimes called jurisdiction in the international sense or jurisdictional competence.  Third, the judgment must be for a fixed sum of money and not a tax or penalty.  In general see Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws at 159-73. On the first requirement, a judgment is considered to be final even though there is time remaining within which to launch an appeal or an appeal has in fact been launched (as is the case here): Nouvion v Freeman (1889), 15 App Cas 1 (HL) at 10-11 and 13.  However, in such a situation it is relatively straightforward for the defendant in the enforcement proceedings to obtain a stay of the action on the basis that the court should await the results of the appeal.  It would seem likely that Chevron could have the Ontario proceedings stayed pending the results of the appeal in Ecuador.  Even if the enforcement proceedings are stayed, starting them can still have advantages to the plaintiff.  The stay does not stop the plaintiff attempting to obtain a Mareva injunction to freeze assets or other forms of interlocutory relief.
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31 May

[Jason Webb Yackee is an Assistant Professor of Law at the University of Wisconsin School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. It’s a pleasure to receive such thoughtful (and in Professor Wong’s case, humorous) feedback on my short VJIL Essay, and I greatly appreciate their engagement with the piece. I intended the Essay to be provocative but not absurd in its policy recommendations. My main suggestion (that states should think seriously about incorporating “corruption defense” in their investment treaties) is, I think, not inconsistent with the views of either commenter. Neither is my more basic suggestion, which is that even in the absence of corruption-specific BIT language, the fact of an investor’s involvement in public corruption related to its investment is likely to be of legal relevance to the investor’s ability to fully access the procedural and substantive protections of BITs. In other words, I think that we would all probably agree that there is already a viable “corruption defense,” and also that it might be useful to better specify the contours of the defense through explicitly corruption-related treaty language. Where we primarily differ is on the desirable contours of the defense. My scheme is self-consciously pro-state. It imposes serious consequences on the investor who engages in corruption. It is, as Professor Bjorklund accurately points out, supply-side in its focus, just as are the U.S. Foreign Corrupt Practices Act and its non-U.S. equivalents. This supply-side focus bothers Professors Wong and Bjorklund. It seems unfair to them to exclusively punish investors when corruption, by its nature, takes two to tango. It doesn’t bother me as much to sanction one partner and not the other. My premise — unstated in the essay, I admit — is that the supplier of corruption (here, the investor) is probably in some meaningful sense the “least cost avoider” of corruption. The tort law equivalent is a liability regime that places the full cost of compliance on the person who throws a banana peel on the sidewalk, rather than on the inobservant pedestrian who slips on it and falls. My sense (and it is just that at this point) is that it is comparatively difficult for developing countries already afflicted with corruption to prevent it, let alone to eradicate it. It is hard for states to monitor and control the actions of their agents, or to adjust incentive structures to discourage corruption. In contrast, corporations have an advantage in implementing effective training and compliance programs, in disciplining corporate actors who violate corruption laws, and in rewarding those who abide by corporate anti-corruption policy. Indeed, corporations are already spending heavily to implement effective corruption-prevention programs in order to avoid violations of or liability under the US and UK anti-bribery statutes, the penalties for violation of which can be immense. I would suggest, in effect, that the BIT regime should piggyback on these efforts by imposing on companies whose compliance systems fail the additional cost of the loss of their BIT privileges, rather than insisting that the high-cost avoider — the state — be expected to successfully duplicate the already expensive anti-corruption investments of multinational corporations.
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31 May

[Jarrod Wong is an Associate Professor of Law at the University of the Pacific McGeorge School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. This intriguing Essay by Jason Yackee proposes that host states may well have a corruption defense against claims brought by investors under bilateral investment treaties (BITs) based on underlying investment contracts that, while facially unobjectionable, have been procured by bribing public officials. The argument extrapolates nicely from the denial of claims in an arbitration, decided in 1963 by Judge Lagergren, involving a politically well-connected Argentine seeking to enforce a “commission” contract guaranteeing some percentage of state contracts awarded by Argentina to the foreign investor, and in the World Duty Free ICSID case, in which the investor sought compensation for expropriation by Kenya of a concession acquired by bribing the then President of Kenya. While neither claim arose under BITs, both were denied on grounds of violating international public policy, which one --- or least these tribunals --- might conceivably extend to BIT claims. However, I wondered whether Yackee, in his determination to clear a path to the promised land, sufficiently acknowledges the perils on the road. For instance, neither tribunal above was expressly authorized to apply international law; indeed, ICSID tribunals --- which determine many BIT claims --- are to apply “applicable” international law only “in the absence of [the parties’ agreement on applicable law].” While noting this fact, Yackee was prepared to interpret the willingness of both tribunals to invoke (with how much deliberation?) international law as indicating an inherent authority to do so, rather than question the assumption. All the more troubling when the supposed “rule” of international law applied is of the nebulous variety conveniently labeled “international public policy.” (The wry among us might freshly inquire as to how this description differentiates other international law rules.) Shouldn’t we require such policy to crystallize into something akin to customary international law before permitting its application under these tenuous circumstances? Further, should the host state bear no responsibility when a state official accepts the bribe and is equally culpable? The World Duty Free tribunal neglected to weigh this fact in the context of international public policy, although it considered the issue under applicable national laws, only to hide behind Latin maxims ---- the in pari delicto and ex turpi causa principles --- in refusing to calibrate the equities more precisely. (Really? The President of Kenya walks off with $2 million, and the best the Tribunal’s got is a dead language?) Would the World Duty Free outcome not perversely incentivize host states to encourage bribery behind dummy anticorruption legislation since this gives license to flout BIT obligations?
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31 May

[Andrea K. Bjorklund is currently the Visiting Professor (Guest of the L. Yves Fortier Chair in International Commercial Arbitration), McGill University Faculty of Law; she is also a Professor of Law at the University of California, Davis. Daniel Litwin is a B.C.L./LL.B. Candidate, McGill University Faculty of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this series of discussions. We are very happy to participate. Jason Yackee’s Essay takes what might be described as an orthodox position on corruption. It rests on a long line of international commercial arbitration precedents whose focus has consistently been on the “supply” side of corruption and not on its “demand” side. (We are grateful to McGill student David Rapps for this nomenclature). This focus on the “bribe payer” (supply side) is reminiscent of the approach taken by the US Foreign Corrupt Practices Act and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Professor Yackee adopts this same focus in suggesting that an investor’s corrupt or fraudulent behavior should prevent it from taking advantage of the protections afforded by any applicable investment treaty. Yet experience in the fight against drug trafficking suggests that seeking to limit supply without eradicating demand will never be successful. The UK apparently takes this view: its recently-adopted Bribery Act penalizes both bribing (supply side) and receiving bribes (demand side). The same even-handed approach to fighting corruption is present in the anti-bribery laws of Germany and of China. We too believe that if both an investor and a host state engage in corrupt behavior, sanctioning both is the best way to achieve the goal of eradicating corruption that has animated the international community (at varying levels of enthusiasm) for the past several decades. Like Professor Yackee, we agree with the position taken by the tribunal in World Duty Free v. Republic of Kenya that corruption is properly viewed as a violation of transnational public policy or truly international public policy. We cannot, however, agree with his refusal to adopt a balanced approach that would proportionally ascribe blame to all parties involved in a corrupt exchange. Penalizing only the party actively committing the wrong is reminiscent of the approach taken in the investor misconduct cases cited by Professor Yackee. But in both Inceysa Vallisoletana S.L. v. Republic of El Salvador and Plama Consortium Ltd. v. Republic of Bulgaria the investors were guilty of misrepresentation, a unilateral offense involving a single guilty party. Since corruption is normally bilateral, any parallels between cases involving misrepresentation and corruption should be properly nuanced.
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30 May

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron's far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and...

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30 May

So reports The Guardian: Liberia's former president, Charles Taylor, has been sentenced to 50 years in jail for being "in a class of his own" when committing war crimes during the long-running civil war in neighbouring Sierra Leone. Judges at a UN-backed tribunal in The Hague said his leadership role and exploitation of the conflict to extract so-called "blood diamonds" meant he...

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