Wednesday, March 01, 2006

We've Moved!

We are now located at the new and improved Opinio Juris site:

We'll see you there...

Pope's Ash Wednesday Message Focuses on World Poverty

Pope Benedict XVI issued his Ash Wednesday sermon today and focused on development and world poverty. Here is an excerpt:
"Even in this era of global interdependence, it is clear that no economic, social, or political project can replace that gift of self to another through which charity is expressed. Those who act according to the logic of the Gospel live the faith as friendship with God Incarnate and, like Him, bear the burden of the material and spiritual needs of their neighbours.... [M]any forms of charitable work intended to promote development have arisen in the Church: hospitals, universities, professional formation schools, and small businesses. Such initiatives demonstrate the genuine humanitarian concern of those moved by the Gospel message, far in advance of other forms of social welfare. These charitable activities point out the way to achieve a globalization that is focused upon the true good of mankind and, hence, the path towards authentic peace. ... [T]he Church today considers it her duty to ask political leaders and those with economic and financial power to promote development based on respect for the dignity of every man and woman. An important litmus test for the success of their efforts is religious liberty, understood not simply as the freedom to proclaim and celebrate Christ, but also the opportunity to contribute to the building of a world enlivened by charity. These efforts have to include a recognition of the central role of authentic religious values in responding to man’s deepest concerns, and in supplying the ethical motivation for his personal and social responsibilities. These are the criteria by which Christians should assess the political programmes of their leaders."

Journalists and Self-Defense in Iraq

In the wake of the murder of al-Arabiya correspondent Atwar Bahjat and two of her colleagues, a journalist asked President Jalal Talabani to permit journalists working in Iraq to carry weapons in self-defense. "Send me an official request and I will approve it and inform concerned agencies to give you the right to carry arms," President Talabani replied.

The exchange prompted an immediate response from the International News Safety Institute, which urged journalists in Iraq to resist the urge to arm themselves. INSI believes that armed journalists would be less safe, not more:
"Journalists increasingly are being targeted in conflict largely because they have lost, in the eyes of certain elements, their status as neutral observers, INSI Director Rodney Pinder said. "If they bear arms they reinforce this misguided belief by placing themselves on one side or another. A journalist with a gun says some people in the situation I'm covering are my enemies and I am prepared to kill them if necessary. That is not the position of a neutral civilian."

Pinder also said that armed journalists would lose even the protection--"flimsy though it is"--afforded civilians in war by the Geneva Conventions. INSI said the 1977 Additional Protocol to the conventions demands that working journalists in conflict areas must be considered civilians, "provided they take no action adversely affecting their status as civilians."

"INSI and other organizations concerned with the safety of journalists in conflict believe that the bearing of arms would amount to that action," the group said.

Although it's easy to understand why in Iraq would want to carry arms in self-defense -- after all, 104 journalists and support staff have been killed there since the war began, the greatest media toll in modern times -- INSI's position seems pragmatically sound. Still, I question whether journalists would, in fact, forfeit the protection of the Geneva Conventions by carrying weapons, particularly if they only carried small arms and kept them concealed. Article 79 of Protocol I specifically provides that

[j]ournalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians... and shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians.
The question, then, is whether a civilian who carries a weapon in self-defense would be taking an "action adversely affecting their status as civilians." The answer appears to be "no." Under Article 13 of Protocol II, which elaborates and strengthens common Article 3's basic rules, "[c]ivilians shall enjoy the protection afford by this Part, unless and for such time as they take a direct part in hostilities." Carrying a weapon in self-defense would not qualify as taking a "direct part" in hostilities. As the Inter-American Commission on Human Rights has pointed out:

It is generally understood in humanitarian law that the phrase "direct participation in hostilities" means acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and material. Such participation also suggests a "direct causal relationship between the activity engaged in and harm done to the enemy at the time and place where the activity takes place."
This interpretation of common Article 3 and Protocol II is supported by Protocol I's treatment of individuals engaged in civil defense -- humanitarian tasks (medical treatment, firefighting, etc.) designed to protect civilians against the effects of hostilities. Article 65 of Protocol I specifically provides:
It shall also not be considered as an act harmful to the enemy that civilian defence personnel bear light individual weapons for the purpose of maintaining order or for self-defence. However, in areas where land fighting it taking place or is likely to take place, the Parties to the conflict shall undertake the appropriate measures to limit these weapons to handguns, such as pistols or revolvers, in order to assist in distinguishing between civil defence personnel and combatants. Although civil defence personnel bear other light individual weapons in such areas, they shall nevertheless be respected and protected as soon as they have been recognized as such.
Moreover, even if a journalist crossed the line between self-defense and acts harmful to the enemy, they would still not be subject to immediate attack by Iraqi insurgents or the military (Iraqi or US). According to paragraph 1 of Article 65:
The protection to which civilian civil defence organizations, their personnel, buildings, shelters and materiel are entitled shall not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.
Again, I am not suggesting that journalists in Iraq arm themselves. I much prefer the approach taken by Reporters Without Borders, which lends bulletproof jackets marked "PRESS" to freelance journalists working in war zones. But I don't believe that a journalist who carried a concealed handgun would forfeit her Geneva Convention protections -- even if she was forced to use it.

Comments by readers with greater expertise in the Conventions would be most appreciated.

Sarah Cleveland and "Our International Constitution"

Sarah Cleveland has just published a very significant article in the Yale Journal of International Law entitled "Our International Constitution." Cleveland is a great writer and her article is a pleasure to read, even though I sharply differ with her on the appropriateness of using international law to interpret constitutional guarantees (see my articles here, here and here).

Cleveland is an evolving constitutionalist and a strong proponent of the use of international law in constitutional interpretation. She offers a cornucopia of evidence of its historical use. She distinguishes between express references to international law (as with the treaty power or the war power), identifies subjects in which international law provides background principles (such as territoriality and sovereignty), and then highlights instances of its use in protecting or curtailing individual rights.

After canvassing the historical record her conclusions are that there is a longstanding tradition of resorting to international law, that the Court has treated that law as evolving, and sometimes it has even considered international law to be binding. She also recognizes that reference to international law has been opportunistic and has frequently resulted in the expansion of government power and the curtailment of individual rights.

But what really distinguishes Cleveland's article is her attempt to impose principled limits on the use of international law. She proposes guidelines for its use, including (1) the constitutional receptiveness to the international rule, (2) the universality of the international norm, (3) acceptance of the international rule by the United States, and (4) embracing international law limits that accompany international powers.

The article is interesting in that applying her principled approach, Cleveland offers only the faintest of praise for Roper and Lawrence. She describes Lawrence as raising "thorny questions regarding selectivity and cultural relevance." She could have gone further and simply stated that Lawrence does not comport with the universality principle. Instead she argues that Lawrence is consistent with a longstanding jurisprudential traditional of looking to Western European practices. But then when she turns to abortion she seems to more strictly enforce the rule of universality, and suggests a requirement of an international consensus, which she contends is lacking. Of course, you could make the counter-argument that there is no international consensus in favor of the practice at issue in Lawrence but there is a Western European consensus against the practice at issue in Roe.

As for Roper, Cleveland says that the U.S. failure to sign or ratify the U.N. Convention on the Rights of the Child was a "mixed factor" and that the ICCPR reservation on juvenile death penalty expressed a clear intent not to be bound by that treaty provision. She nonetheless argues that the United States is not a consistent objector of a customary international norm against juvenile death penalty. But by importing customary international and requiring the United States to be a consistent objector, she has essentially flipped the Eighth Amendment test -- which traditionally requires a national consensus that a practice has become cruel and unusual -- to a requirement of a national consensus to reject an international norm. She could have placed far greater emphasis on the U.S. reservation in the ICCPR, which guaranteed the right of the States to continue with the status quo, as underscoring that the United States has not accepted this norm. She could have just conceded that the United States has not accepted this international norm and that Roper did not represent a principled approach to the use of international law.

Whether you agree or disagree with Cleveland's article, you cannot ignore its importance. I seriously question the notion that an evolving Constitution should float with the shifting currents of international values. And I would have preferred a stronger application of her principles to Roper and Lawrence. But as a proponent of the practice, Cleveland deserves great credit for her bounded rationality in the use of international law to interpret our Constitution.

ICC Update

The following is a quick summary of the ICC's work to date, courtesy of the International Justice Tribune:
Since its creation in July 2002, the International Criminal Court (ICC) has received 1,732 pieces of communication about crimes committed in 139 countries.

According to the second summary published by the office of the prosecutor on February 10, 60% of the information came from individuals or groups in four countries: the United States, the United Kingdom, France and Germany. 80% of the claims were found to be manifestly outside [the court's] jurisdiction and were dismissed after initial review. The cases that received intensive analysis were categorized into 23 "situations". Ten were chosen, six rejected and seven are still under study. Of the 10 cases selected, 3 are currently being investigated (Democratic Republic of Congo, Uganda and Sudan), 5 are being analyzed (Central African Republic, Côte-d'Ivoire, and three others that remain confidential), and 2 were dismissed (Iraq and Venezuela). The prosecutor has publicly stated his reasons for rejecting the latter two. In Iraq, the alleged war crimes were not sufficiently severe. In the case of Venezuela, he was unable to determine whether the alleged crimes against humanity had been committed "as part of a widespread or systematic attack directed against any civilian population."

Tuesday, February 28, 2006

Arusha: Africa's Hague

The new African Court of Human and People's Rights, which was established as Africa's new regional international court, will sit in Arusha, Tanzania. This is not exactly a surprise. The International Criminal Tribunal for Rwanda already sits there and its mandate will expire in 2008, so it makes a lot of sense to take advantage of the existing infrastructure there. International criminal justice can be a non-trivial economic engine. Arusha is well on its way to becoming The Hague South.

U.S. Will Oppose New U.N. Human Rights Council

The U.S. government has announced that it will oppose the current proposal for a new Human Rights Council to take the place of the much-derided U.N. Commission on Human Rights. (The new proposal is here.) Although the U.S. has been pushing for a new Council, it is not happy with the current proposal, which would not guarantee the exclusion of countries with serious human rights abuses.

There are a lot of complicated policy issues and Anne Bayesky is right as usual on these things. One tedious legal issue: Can the U.S. block the new Council? The answer is no, because the new Council will be a subsidiary of the General Assembly pursuant to Article 22 of the U.N. Charter. The U.S. does not have a veto and, in fact, only has five votes in the GA, just like everyone else. So expect the U.S. to go down in flames next week if this comes to a vote.

Updates: Saddam Trial, Serbia and the EU, Hijacked Planes

Following up on my earlier posts about Saddam and Serbia:
  • Prosecutors at Saddam's trial introduced two important documents yesterday. The first is a memo from the Revolutionary Court, dated June 14, 1984, listing the names of 148 suspects that had been sentenced to death by hanging. The chief prosecutor, Jaafar al-Moussawi, said the signature on the memo was that of the court's head, Awad al-Bandar, one of Saddam's co-defendants. The second is a presidential order signed by Saddam approving all 148 death sentences. The sentences were passed after an "imaginary trial," al-Moussawi told the court. "None of the defendants were brought to court. Their statements were never recorded."
  • The European Union has given Serbia a one-month deadline to catch fugitive war criminals Ratko Mladic and Radovan Karadzic, the former President of the Serb Republic and its wartime leader. If Serbia fails to do so, the EU will suspend the next round of negotations on Serbia's membership, which is scheduled for early April.
Also, a follow-up to Julian's earlier post about the German court decision that prohibits shooting down a hijacked passenger plane:
  • The lower house of Russia's parliament has passed -- by a vote of 423 to 1 -- a new anti-terrorism bill that authorizes the military to shoot down a hijacked passenger plane if terrorists threaten to fly into a building or populated target. The bill now goes to the upper house, where it is likely to pass, and then to President Vladimir Putin, who is expected to sign it.

Nigerian Court Orders Shell to Pay $1.5 Billion

In what could turn out to be a very important ruling, a Nigerian court in Port Harcourt has ordered Royal Dutch Shell to pay $1.5 billion for the environmental damage its oil-refining activities have caused in the southern Niger delta region. CorpWatch:

Local residents began to experience health problems soon after Shell Oil company injected a million litres of a waste into an abandoned oil well in Erovie two years ago. Many who consumed crops or drank water from swamps in the area complained of vomiting, dizziness, stomach ache and cough. Within two months 93 people had died from this mysterious illness. Independent tests by two Nigerian universities and three other laboratories, conducted in the year after the health problems emerged, indicate that the substance was toxic. All the tests confirmed poisonous concentrations of lead, zinc and mercury in the dumped substance.

"The presence of heavy metals at above acceptable limits and the unusually high concentration of ions make the substance toxic. Therefore, if these substances were to infiltrate the underground water or aquifer, it would have serious environmental and health implications," says one of the reports.

The suit was filed by an group of local Ijaws after Shell ignored an order from the Nigerian senate to pay the money to the impoverished Ijaw community. Shell, which made a net profit in 2005 of $22.94 billion -- the highest full-year profit in British corporate history -- has appealed "on, among other grounds, the strength of independent expert advice, which demonstrates that there is no evidence to support the claims of the group." The company contends that the environmental damage was caused by sabotage of its oil refineries, relieving it of legal responsibility for the damage.

Shell is clearly fighting an uphill battle. Its sabotage claim is complicated not only by the senate order and by the recent decision ordering it to pay damages, but also by an earlier federal court decision that ordered it to immediately cease gas flaring. The earlier decision, issued by a federal court in Benin City, concluded that the flaring was a "violation of fundamental rights and dignity which was guaranteed under the constitution." Shell appealed the ruling and continued gas flaring, provoking a group of Ijaw locals suffering from severe respiratory ailments to file a second lawsuit last December.

UPDATE: Make sure to read Roger Alford's more detailed post on the decision here.

Case of the Month: Shell v. Ijaw Aborigines of Bayelsa State

My vote for the most important international law case of the month is Shell v. Ijaw Aborigines of Bayelsa State. The Federal High Court in Port Harcourt, Nigeria rendered its $1.5 billion dollar judgment against Shell on February 24, 2006. I have searched in vain for the text of the decision and will update the post once it becomes available. If you have a copy please let me know.

According to news reports, the case arose after the Nigerian Senate approved the fine in August 2004 after it was presented to the lower House of Representatives in 2003 and reviewed by an independent legal advisory panel set up by the lower house. Judge Okechukwu Okeke ruled that since both sides had agreed to go before the National Assembly, the order was binding on both sides.

In a press release, Shell stated that it "cannot comment until it has studied it in detail. However, SPDC believes that its appeal, which it has filed this afternoon, has strong grounds as independent expert advice demonstrates that there is no evidence to support the underlying claims. SPDC remains strongly committed to dialogue with the Ijaw people and all its other stakeholders."

The February decision follows an earlier decision by a Nigerian court on November 14, 2005 against Shell for environmental degradation. That decision is available here, together with a summary here. Included in the earlier judgment is the finding that Shell had violated the African Charter on Human and People's Rights, including Article 24 which provides that "All peoples shall have the right to a general satisfactory environment favorable to their development." It is an unusual example of communitarian international rights being enforced at the national level.

As reported here, the essence of that claim involved environmental degradation from gas flaring. "Gas is burned off in the Niger Delta because neither the major oil companies nor the NNPC has invested in facilities to convert the gas into commercial use. As the gas is pumped through the grid of oil pipelines that crisscross the Delta's mangrove swamps, agricultural fields, and even villages, it is flared at various stations, sending huge plumes of flame and smoke into the sky with a constant roar 24 hours a day, seven days a week. The practice, as well as the frequent oil spills that have degraded the Delta's fisheries, water and soil, not to mention its inhabitants' quality of life and health, has been the subject of vigorous protests by the minority populations in the Delta, beginning in the middle of the last century when Nigeria was still a British colony."

The claims of the Ijaw people were supported by environmental groups, particularly the Friends of the Earth and the Environmental Rights Action. A detailed report on these groups allegations against Shell is available here.

I have often wondered why claimants pursue human rights and environmental claims in the United States under the Alien Tort Statute if there are viable alternatives in the home forum. Without knowledge as to the quality of justice in Nigeria I do not presume that these courts necessarily provide an adequate alternative to pursue such claims (or guarantee due process for defendant corporations). But it is a significant development that a penalty of this magnitude has been imposed by a Nigerian court. One wonders if it may portend a new wave of human rights and environmental claims in non-traditional fora.

UPDATE: Kevin Jon Heller's near simultaneous post on the Nigerian judgment is here.

Conference on Federalism and Sovereignty at St. John's Law School

This Friday, March 3, 2006, St. John’s Law School will host a conference entitled Federalism Past, Federalism Future: A Constitutional Law Symposium. The full brochure is available here and the symposium papers will be published this spring in a 20th anniversary issue of the St. John’s Journal of Legal Commentary.

The Conference will have well-known Constitutional Law luminaries, such as Akhil Amar, Michael Dorf, and William VanAlstyne, but what may be of greatest interest to Opinio Juris readers will be a paper presented by (lesser-known but no less great) ConLaw scholar Tim Zick, one of my colleagues at St. John’s. Over a series of papers, Tim has been working at “unpacking” the concept of sovereignty, particularly in how we conceive of the sovereignty of states of the U.S. by analogy to the sovereignty of countries and also to individual rights (a recent article, entitled Are the States Sovereign?, is available here). He will present a paper at the conference entitled Active Sovereignty that will consider, among other things, the law and practice of states of the U.S. undertaking foreign relations.

It should be a very interesting day and I hope to see many of you there.

Federalism Past, Federalism Future:
A Constitutional Law Symposium

Friday, March 3, 2006

St. John’s University School of Law
8000 Utopia Parkway
Queens, NY 11439

9:30 Registration/breakfast reception

10:00 Opening Remarks

Mary C. Daly
Dean & John V. Brennan Chair of Law and Ethics, St. John’s University School of Law

10:05 Opening Lecture

"Federalism Over the Centuries: The State Constitutional Backdrop of the Federal Constitution"
Akhil Reed Amar
Southmayd Professor of Law, Yale Law School

10:30 Book Signing

America’s Constitution: A Biography (Random House, 2005)
Akhil Reed Amar

10:50 Panel I: Federalism Past: The Current State of the “Revolution”

"Facts on the Ground and Federalism in the Air:
The Solicitor General's Effort to Defend Federal Statutes During the Federalism Revival"

Barbara D. Underwood
Counsel to the United States Attorney, Eastern District of New York;
formerly both Principal Deputy Solicitor General of the United States and Acting Solicitor General of the United States

"Was the Recent Federalism Revival Really About the States?"
Preeta D. Bansal
Partner, Skadden, Arps, Slate, Meagher & Flom, LLP;
former Solicitor General of the State of New York

"On Winning Wars Without Fighting Battles: Rethinking the Supreme Court's Federalism Revival"
Neal Devins
Goodrich Professor of Law, Professor of Government &
Director, Institute of Bill of Rights Law, College of William & Mary, Marshall-Wythe School of Law

"The 'Federalism Five' as Supreme Court Nominees: Where Was the Federalism?"
John Q. Barrett
Professor, St. John’s University School of Law &
Elizabeth S. Lenna Fellow, Robert H. Jackson Center

12:15 Lunch

"A Journalist's Take on the Supreme Court"

Jeffrey Toobin
Staff Writer, The New Yorker; Senior Legal Analyst, CNN

1:30 Panel II: Federalism Future: the prospects for future revolutions

"Whose Ox Is Being Gored? When Attitudinalism Meets Federalism"
Michael C. Dorf
Michael I. Sovern Professor of Law, Columbia Law School

"Stop Federalism Before It Kills Again: Reflections on Hurricane Katrina"
Stephen M. Griffin
Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School

"A Brief Memorial Tribute to the Short-Lived Revival of Federalism Review in the Supreme Court"
William W. Van Alstyne
Lee Professor of Law, College of William & Mary, Marshall-Wythe School of Law

"Active Sovereignty"
Timothy Zick
Associate Professor, St. John’s University School of Law

3:10 Closing Reception

Delegating Sovereignty Conference at Duke Law School

Professor Curtis Bradley has put together a terrific conference at Duke Law School this week on Delegating Sovereignty. The presenters are leading law school and political science scholars. This is a topic that pops up in many contexts, including my own personal obsession with the ICJ (see my articles on the subject here and here) but also in many other contexts.

Free Trade Marches Southward to Colombia

The U.S. and Colombian governments have announced they have reached a bilateral free trade agreement. The USTR's announcement can be found here and a pdf summary of the agreement can be found here.

As the NYT points out, a U.S-Colombia Free Trade Agreement will be the largest U.S. free trade agreement in the Western Hemisphere south of Mexico. Moreover, with recently concluded agreements with Peru and earlier agreements with Chile, the U.S. is tantalizingly close to a new regional free trade agreement (assuming Ecuador can be pulled on board in the next few months, Bolivia is a hopeless case for now). As a geographic matter, a partial Free Trade of the Americas is coming into existence. The U.S. will have free trade deals stretching south through Mexico, Central America, Colombia, Ecuador, Peru and on to Chile.

The agreement is also interesting in its development of international dispute resolution mechanisms. Although the details have not been released, the summary suggests there will be an investment protection arbitration mechanism, probably modeled on NAFTA Chapter 11, which allow individual investors to drag governments directly into international arbitration tribuanls. Additionally, the agreement appears to build on previous dispute settlement mechanisms by directly incorporating labor and environmental provisions into the dispute settlement system and authorizing tribunals to impose monetary penalties for violations of commercial, labor, or environmental obligations. All you budding trade lawyers out there might want to start boning up on your Spanish.

Monday, February 27, 2006

The ICJ Tackles the Bosnian Genocide (About 13 Years Later)

Today, the ICJ opened public hearings in the long-anticipated case between Bosnia and Serbia over Serbia's alleged responsibility for genocide during the 1993-1999 Balkan wars. The ICJ has decided to make everything public and web-accessible. Hence, the opening argument of Bosnia's counsel is already available here.

This case has a long and torturous procedural history. It was first filed in 1993, and has been the subject of intermittent litigation for over 13 years. The basis of the ICJ's jurisdiction is Article IX of the Genocide Convention. The war is over and the International War Crimes Tribunal for the Former Yugoslavia has been prosecuting people for war crimes for over a decade now. So what is the point of this case now?

Although individuals have been held responsible, the focus of this case is state responsibility for genocide, which is a very different question. An ICJ judgment finding the government of Serbia committed genocide could have far reaching effects on long-term relations between the two states. Presumably, Bosnia and perhaps the international community could demand an apology and the payment of damages, etc. etc. So there might still be something at stake. Additionally, the ICJ might be able to provide useful and maybe authoritative interpretations of the Genocide Convention and its scope of state responsibility.

So this might be a useful and important case, certainly the most significant one the ICJ has faced in a long time. But the fact that the ICJ is considering the merits 13 years after the original fact reminds us that the role of an international court is, at best, remedial. It is almost never preventative nor can it provide much deterrence. Perhaps understanding the limits of international courts can help us appreciate the limited usefulness they have.

Report Leaked on Mexico's "Dirty War"

A report prepared for Mexico's President, Vicente Fox, has concluded that the Mexican government and military committed numerous crimes against humanity during its "scorched earth" campaign against alleged left-wing rebels between 1964 and 1982:

The draft report's authors write: "The authoritarian attitude with which the Mexican state wished to control social dissent created a spiral of violence which... led it to commit crimes against humanity, including genocide."

They say they base their findings partly on declassified military, police and interior ministry documents and list for the first time the names of officers allegedly involved in the abuses.

The report says that units detained or summarily executed men and boys in villages suspected of links to rebel leader Lucio Cabanas.

Detainees were forced to drink gasoline and tortured with beatings and electric shocks, it says.

Bodies of dozens of leftists were dumped in the Pacific Ocean during helicopter "death flights" from military bases in Acapulco and elsewhere.

President Fox established an office in 2002 to probe possible human rights violations under Presidents Diaz Ordaz (1964-70), Echeverria (1970-76) and Lopez Portillo (1976-82). The office presented the report last December to the special prosecutor investigating past abuses, Ignacio Carrillo Prieto, but he refused to release it, saying that it places too much blame on the military and understates the abuses committed by the rebels. He says a revised version will be published soon.

Human-rights groups in Mexico have criticized Carillo's refusal to make the report public. That criticism certainly has merit, but Carillo has taken his job seriously, doggedly pursuing charges againt Echeverria for his involvement in the worst abuses of the Dirty War. Carrillo initially brought charges against Echeverria for ordering the Falcons, a paramilitary force allegedly created by his political party, to massacre students in June, 1971 -- an event known as the "Corpus Christi massacre." Those charges were thrown out by the Mexican Supreme Court, which held that the 30-year statute of limitations for the charges had expired.

Carrillo then charged Echeverria with genocide -- a crime not subject to the 30-year limit -- in connection with an earlier massacre of students in 1968, days before the Olympic Games opened in Mexico City. As many as 300 people might have died when government agents hidden among regular soldiers opened fire on the students. A judge dismissed the charge last September, ruling that the massacre could not amount to genocide. Carrillo has appealed the judge's decision.

The leaked report is available at the invaluable National Security Archive, here.

FSIA and Attaching Assets of State Instrumentalities

The Supreme Court in the case of Ministry of Iran v. Elahi, rendered a rather insignificant decision last week regarding the FSIA and state instrumentalities. At issue was whether claimants could attach Iranian assets in the United States to satisfy various successful terrorism judgments. Problem was, the asset was an arbitral award in favor of the Iranian Ministry of Defense. The relevant provision at issue was Article 1610(b)(2) of the FSIA, which provides that "any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune from attachment." The Ninth Circuit held that the Ministry was an agency or instrumentality within the meaning of that provision.

Iran and the United States both argued that the Ministry is not an agency or instrumentality, but rather an integral part of the state itself, and therefore the property of the Ministry is not subject to attachment under 1610(b). The Supreme Court did not agree or disagree, but sent the case back to the Ninth Circuit for clarification of that question. "[I]n implicitly concluding that the Ministry was an 'agency or instrumentality' of the Republic of Iran within the meaning of § 1610(b), the Ninth Circuit either mistakenly relied on a concession by respondent [Elahi] that could not possibly bind petitioner [Ministry of Defense], or else erroneously presumed that there was no relevant distinction between a foreign state and its agencies or instrumentalities for purposes of that subsection." Of course, if the Ministry of Defense establishes that it is part of the state itself, and not an agency or instrumentality, then the terrorist victims lose their claim for attachment under 1610(b).

It is worth noting that these particular assets -- monies owed to the Ministry by virtue of an arbitral award -- were a rather unusual basis for attachment. Therefore many of the other grounds for attachment under Article 1610 that might typically be implicated were not. It is also worth noting that these claimants are only seeking to enforce the punitive damage component of the terrorist judgments. The compensatory component of the judgments were already paid directly by the United States, which will pursue reimbursement against Iran.

Sunday, February 26, 2006

A Taliban Ambassador Matriculates at Yale

The New York Times has a very unusual human interest piece about a former Taliban ambassador who is now a student at Yale. It is an extraordinarily long piece that strives mightily to put Sayed Rahmatullah Hashemi in the best positive light as a reformed member of the Taliban.

It includes an interesting discussion of a 2001 debate Rahmatullah had with Harold Koh on "The Taliban: Pros and Cons." Although it sounds like Koh clearly got the better of it, at one point in the debate Rahmatullah asked Koh, "Have you ever been to Afghanistan?" "No," Koh said. "Well, if you were my only source of information about the Taliban, I'd hate them too!"

I can't help but be unimpressed that Yale would admit such a person who held (holds?) the oppressive views of the Taliban government. Why would Yale admit such a person? Two reasons. One, a CBS correspondent named Mike Hoover had befriended him in Afghanistan and was pushing his cause. Second, apparently Yale is in competition with Harvard for such "special students" and Yale did not want to lose Rahmatullah to the competition. Imagine what the families of the many Yale alumni who perished on 9/11 would think of such a move.

Rahmatullah admits at the end of the article, "In some ways I'm the luckiest person in the world," he says. "I could have ended up in Guantánamo Bay. Instead I ended up at Yale."

Q & A with Abe Foxman

Great interview with Abraham Foxman of the Anti-Defamation League over at the Jerusalem Post. He discusses the Mohammad cartoons, Jewish-Christian relations, anti-Semitism, the movie Munich, and the threat of Iran. Here are a few highlights:

On Cartoons: "Humor definitely can play a useful role in exposing hypocrisy in controversial issues, particularly in getting young people to pay attention. The question is where to draw the line. Holocaust cartoons or a contest of such cartoons, in my view, clearly cross the line.... Ultimately, it still comes down to responsibility and the Holocaust is not a subject for humor. Even the movie "Life is Beautiful" which used humor, did it as a vehicle to protect the child from the reality around him rather than about the Holocaust itself."

On anti-Semitism: "Jews today, despite the severity of the problems, are not helpless and alone the way we were in the 30s and 40s. Many factors are different which enable us to act. The existence of Israel, the self-confidence of American Jews, the important leadership role of America in the world, the very different posture of the Vatican toward Jews, the spread of Holocaust education are among the reasons that enable organizations such as ADL to believe that progress has been made and that there are powerful vehicles to combat this evil."

On Iran: "We can’t afford not to take [Ahmadinejad] seriously. The combination of words and capability make Iran the greatest threat to the Jewish people since Hitler."

Read the whole thing.

Saturday, February 25, 2006

Grandmothers, Kiwi Gnomes, and Cocaine

On the lighter side of international law, a 52-year-old South African grandmother was arrested and charged with drug smuggling in New Zealand after Nigerians stuffed her suitcases with ceramic gnomes filled with cocaine. As reported here:
Crown prosecutor Bruce Northwood said the Crown did not deny it was a sad story but the woman must have known what she had got herself into.... [T]he woman claims her family were being threatened by a Nigerian drug lord called Peter, who wanted her daughter Lindy to work for him. She made a complaint to South African police, scared something would happen to her family. Her daughter was stopped in London in early 2004 "body packed" - carrying drugs. It was then that Martin embarked on a journey to find the man she believed was responsible for her daughter's situation. Mr Northwood said she was dealing with drug-runners in trying to find out what happened to her daughter. Martin said in statements that she wanted to find Peter and the Nigerians had told her that if she stuck with them they would help her find him. "I just want to look him in the face and ask him if it was his child how he would have felt," she said. Mr Northwood said the Nigerians might have been playing on her situation to get what they wanted but she must have known what was in her suitcase when she flew from South America to New Zealand bound for Brisbane. Mr Northwood said she was given false passports, stayed at a hotel where she saw women swallowing things and saying they were "testing their tummies". Her suitcase was changed by Nigerians and it became much heavier. The woman said the only thing the Nigerians had told her was there was something in the suitcase and she was expected to find it when she got to New Zealand. It was part of her "training". "There is a clear probability that she knew this was a drug-running outfit and what she was getting into," Mr Northwood said. "The accused is no fool. She knew the world she was stepping into for whatever reason."
I guess the book about grandmothers is correct. Grandmothers really are like snowflakes. No two are alike.

Fox News' Insightful Analysis of the Situation in Iraq

Friday, February 24, 2006

Are International Criminal Tribunals a Waste of Money?

The journal Foreign Policy has an interesting post on the cost of international criminal tribunals. I have to admit I had no idea they were so expensive. According to the article, "As of November 2005, the International Criminal Tribunal for Rwanda (ICTR) had handed down judgments for only 25 individuals. More than $1 billion has been spent on the tribunal so far, or about $40 million per judgment." For all my complaining about the ICJ's slowness, at least they aren't profligate with the relatively little money they do have.

You might say that ensuring punishment and the end to impunity is worth the $1 billion, but there is some point when even the end to impunity isn't worth it. Or, more accurately, justice is not actually being achieved if the cost is so high. There are cheaper alternatives, by the way. Rwanda could itself punish the perpetrators or, as the ICTR has started to do, the ICTR could outsource to other countries (as it has started doing)

Seth Weinberger at "Security Dilemmas" weighs in with more typically intelligent analysis here.

Customary International Law After Sosa

Another of the panels at the American Enterprise Institute conference last Tuesday dealt with customary international after Sosa v. Alvarez-Machain. The panel consisted of Julian Ku, David Moore, Beth Stephens, and myself, moderated by Jack Goldsmith.

Not surprisingly, the panelists had different views.Julian Ku advanced an argument that the President should exercise control over customary international law, in part because customary international law is based on state practice and because it is generally the executive who acts for the United States in establishing that practice. He suggested a rule of deference—perhaps even absolute deference—to the President’s interpretations of customary international law. One problem with this position, as Beth Stephens pointed out, is that it does not accord with what the Supreme Court actually did in Sosa. In the end, the Court agreed with the Bush Administration that brief arbitrary detentions do not violate any well-established norm of customary international law, but the Court engaged in its own analysis and showed no deference to the executive. There are at least two other objections. First, from an originalist point of view, the President had very little role to play in establishing the law of nations at the time of the Founding because that law rested on natural law rules deducible by courts rather than on state practice. Second, from a modern point of view, it is not only the practice of the United States that establishes customary international law, and unless the United States is a persistent objector during the creation of a new international law norm it will be bound by such a norm even if the President doesn’t like it.

David Moore, on the other hand, read Sosa as giving control over customary international law not to the executive but to Congress. Of course Congress has constitutional authority to “define and punish” offenses against the law of nations and is presumed also to be able to violate customary international law under the last-in-time rule. But Moore’s argument went beyond this, suggesting that the Sosa Court’s focus on congressional intent means that such intent should determine the extent to which customary international law is incorporated into the U.S. legal system more generally. Moore’s argument is original and provocative but in my view it misreads Sosa. First, it resurrects in somewhat different form the argument that the Supreme Court expressly rejected in Sosa—that Congress must expressly incorporate customary international law before courts may apply it. Second, it places too much reliance on the Sosa Court’s discussion of intent. In a case involving the interpretation of a statute, like the Alien Tort Statute, a focus on congressional intent is perfectly appropriate. That does not mean, however, that congressional intent has anything to say about the place of customary international law in the constitutional structure—its place under Article II’s take care clause, Article III’s grant of federal question jurisdiction, or Article VI’s supremacy clause, for example.

It was to those questions that I turned in my presentation, arguing that Sosa’s approach is to treat the incorporation of customary international law not in an all-or-nothing manner, but issue by issue, an interpretation I advanced in a previous article on Sosa. I argued that the original understanding was that the President is bound by customary international law under Article II, that cases arising under the law of nations are within the federal question grant of Article III, and (perhaps most controversially) that customary international law should bind the states under the supremacy clause.

Beth Stephens was the voice of reason and practicality. Among other things, she discussed Sosa’s impact on the corporate cases, arguing that the violations they allege are clearly actionable under Sosa. She also pointed out that the First Congress recognized both that private actors not acting under color of state law could violate some rules of the law of nations and that aiders and abettors of international law violations could be held liable. One such case, In re South African Apartheid Litigation, is currently pending before the Second Circuit and we will soon see if she is right.

YMCAs and OSHAs: The Foreign Policy Generational Gap

A recent survey by Pew highlights a notable generational gap on foreign policy perspectives. If you look at attitudes of the two extreme age groups that were surveyed -- those who are 18-29 and those who are 65+ -- the differences in foreign policy perspectives are stark. In fact, we have a tale of two Americas. Call them the YMCAs and the OSHAs: Young Militaristic Cosmopolitan Americans and Old Skeptical Historical Americans.

According to survey the younger generation are militaristic. They are far more likely to support military action in Iraq, and more comfortable authorizing use of force to maintain oil supplies, prevent famines, or restore law and order with failing governments. As the survey says, "it is older Americans, not young people, who typically show the greatest wariness about using military force." They also are more "cosmopolitan" in the sense that they have a stronger global perspective. They strongly favor the United Nations, are more willing to cede American power to other countries, are committed to compromise with allies, want to improve the living standards in developing nations, and favor free trade. "[Y]ounger age cohorts are not only more likely to be defenders of internatioanal agreements but also to express concern about the protection of innocents abroad.... [W]hile younger people believe America's best approach to foreign policy is through cooperation and compromise, they also see the use of military force as a tool in the foreign policy toolbox - a practical and tough-minded way to achieve a compassionate end."

At the other extreme, the oldest generation are skeptical of military force and appear to view the world through the prism of history. They are far more skeptical of the military action in Iraq, and are deeply wary of authorizing the use of force to maintain oil supplies, prevent famines, or restore law and order. They distrust the United Nations, are skeptical of free trade, and are far less likely to favor compromise with allies or ceding America's superpower status. They appear to have a stronger conception of duty, expressing more willingness to fight for our country, right or wrong. As the survey suggests, the oldest generation's views "are shaped by the events and experiences they share such as World War II, Vietnam, and the end of the Cold War."

Here is an edited version of some of the results:




Support War in Iraq (F’03)




Support Force to Maintain Oil Supply




Support Force to Prevent Famines




Support Force to Restore Order




Favorable View of United Nations (O’05)




Should Compromise on Foreign Policy




Should Accept Power Sharing




Support Free Trade




Improve Living Standards Abroad




Fight For Our Country Right or Wrong




Bolton and the Proposed UN Human Rights Council

The United Nations has released the text of its draft compromise on replacing the existing Human Rights Commission with a new Human Rights Council. Here are the key paragraphs:

OP7 ... the Human Rights Council shall consist of 47 Member States which shall be elected directly and individually by secret ballots by the majority of the members of the General Assembly. The membership shall be based on equitable geographic distribution and seats shall be distributed as follows among regional groups: Ahcan Group 13; Asian Group 13; Eastern European Group 6; GRULAC 8; WEOG 7. The members of the Council will serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms.

OP8 ... the membership in the Council shall be open to all Member States of the United Nations. When electing members of the Council, Member States shall take into account the candidates' contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto. The General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Human Rights Council that commits gross and systematic violations of human rights.

0P9 Members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, fully cooperate with the Council, and be reviewed under the universal periodic review mechanism during their term of membership.

OPlO The Council shall meet regularly throughout the year and schedule not fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks, and shall be able to hold special sessions when needed at the request of a Member of the Council with the support of one-third of the membership of the Council.

Although the new Council would be substantially better than the existing Commission -- it would meet more often and require periodic review of members states' human-rights practices -- the draft compromise has one glaring weakness: it does not require a 2/3 majority of the General Assembly for election to the Council, leaving open the possibility that serial human-rights abusers could continue to be elected.

Human Rights Watch and Amnesty International both support adopting the draft compromise, although they acknowledge its limitations. The U.S. is more disasstisifed-- and is threatening to re-open negotiations as a result. But as Scott Paul points out at Bolton Watch, the U.S. has only itself -- or, more precisely, its Ambassador, John Bolton -- to blame for the absence of the 2/3 majority requirement:

First, after Anne Patterson successfully included the 2/3 provision in the negotiating text for the September World Summit, Bolton blew the consensus apart by submitting 750 amendments to the text, many of them of questionable importance to U.S. foreign policy and also deeply offensive to developing countries.

Then, in December, Bolton proposed that the permanent five members of the Security Council should get permanent seats on the HRC. There were two problems with this idea. First, since that would mean China and Russia automatically get seats, it implied that the more interested in membership for itself than credible standards in general. Second, no other countries supported the idea. Instead of working towards achievable U.S. goals, Bolton squandered a fair amount of political capital by pushing this non-starter.

In recent weeks, Bolton still did not lobby for the 2/3 provision. Instead, he promoted his own worthless and unachievable proposal: that countries under Security Council sanction would not be allowed to serve. Today, that would exclude a whopping two countries, Sudan and Cote d’Ivoire, from the HRC. Even in the closing days, a united front with Europe in support of the 2/3 majority would probably have been enough to see it through. Secretary Rice was doing her best to advance the 2/3 provision in capitals around the world, and a little support in New York would have gone a long way.

These three were Bolton’s publicly acknowledged gaffes during this process, but there were many subtle failures, too. For example, over the last three months of 2005, when negotiations after the Summit were really taking shape, Bolton rarely bothered to show up. Instead, he spent his time railing against the UN’s shortcomings in the press and on the Hill, leaving Deputy Assistant Secretary of State Mark Lagon to hold down the fort. Lagon did well, but without high-level representation, the U.S. was seriously handicapped in the negotiations.

At this point, re-opening negotiations would most likely do more harm than good -- "death by 1,000 cuts," in the words of Kenneth Roth, the executive director of Human Rights Watch. So although the new Council would not be perfect, it may now be the best we can do. One thing is clear: the least acceptable option of all is a return to the status quo ante.

Thursday, February 23, 2006

Gender, War and Peace: Michigan State Law School Conference, Feb. 24

Michigan State Law School is sponsoring a symposium tomorrow, Feb. 24, on Gender, War and Peace: Women's Status in the Wake of Conflict. MSU Law has lined up a diverse and talented group of scholars and practioners in the areas of women's human rights, international law feminism and post-conflict justice. (I will be offering my take on the role of gender in formal peace processes.) The full schedule and list of participants is here. As always, if there are any OJ readers in the Lansing, MI area, do stop by.

Request for Hiring Information

In response to my post from last week, thanks to those who have submitted information on new and lateral international law professor hires. I have received numerous emails, but wanted to encourage anyone who has not yet sent information to email me and provide the new institutional affiliation, the name of the professor, specializations (if known), and the name of the former institution (or indicate "new professor" if applicable).

At the suggestion of one of the emails, I will post the information in mid-March as soon as the hiring season is over.

Institutionalizing the War on Terror

At the American Enterprise Institute on Tuesday a panel with diverse viewpoints—Kenneth Anderson, Morton Halperin, John Hutson, and Andrew McCarthy—expressed a remarkable consensus about the need for the President to go to Congress to establish the rules for a lasting “war on terror,” including such issues as intelligence gathering, detention, rendition, and the use of force short of war.

Kenneth Anderson warned that if the Bush Administration does not institutionalize the war on terror, that war will not outlast the Administration. Morton Halperin agreed, characterizing the Administration’s unilateralism as a “fundamental political misjudgment.”

John Hutson, a retired admiral and now dean of the Franklin Pierce Law Center, warned that if we are not careful we may lose the war on terror, and cautioned that “If we lose our soul . . . we ultimately will have lost the war on terror.” War is never a solution by itself, he said, but only buys time to develop other solutions, adding “we need to figure out why they hate us.” Andrew McCarthy replied that it doesn’t matter why they hate us, because knowing would not change our strategy or objective, which is to break the ability of radical Islam to project force.

John Yoo moderated the panel. Unfortunately he remained silent on the advisability of executive unilateralism in the war on terror, but you can buy his book.

Manzanar War Relocation Center

On February 19, 1942, a few weeks following Pearl Harbor, Franklin Roosevelt signed Executive Order 9066 authorizing the internment of Americans of Japanese ancestry. The purpose of the Order was to ensure the "successful prosecution of the war" which "requires every possible protection against espionage and against sabatoge." Pursuant to that order, 120,000 Japanese Americans were relocated to 10 internment camps throughout the United States.

Over the weekend I had occasion to take my children to visit one of those camps, the Manzanar War Relocation Center. It is a desperately desolate and isolated place near the Sierra Nevadas, with only one large auditorium left of what was once a bustling internment camp housing over 10,000 Japanese Americans. A historical map gives you an idea of what it was like during the war.

The short film was superb and perfectly illustrates the attempted normalcy within the confines of a prison atmosphere. Three stories from the film poignantly illustrated this paradox:
  • First, the children who went to school at Manzanar wanted to pledge allegiance to the United States flag at the start of class each morning. But there was no flag, so the teacher had the children draw American flags and post it in the corner of the school room. Each morning they would pledge allegiance to the children's drawings of the American flag.
  • Second, the Manzanar high school played local teams in high school football. Every game was a home game, for the "Manzanites" were not allowed to travel outside the camp.
  • Third, many Japanese Americans were committed to fighting for the United States in the Second World War. These volunteers established the 442nd Regimental Combat team, a Japanese American volunteer unit. One of those volunteers, Sadao Munemori, posthumously received the Medal of Honor for falling on a grenade and saving others in his regiment. His mother received the medal on his behalf from within the confines of the Manzanar internment camp.
If you are a professor or teacher you can contact the National Park Service (contact details here) for a teaching package that has wonderful information about the camp. It includes a reproduction of the camp newspaper, a timeline, historical material, and best of all, copies of 30 personal stories of individuals who were housed in the camp.

I forced myself to read all thirty stories. Here are two of my favorites. The first offers a glimpse of life in the camp.
Name: M. Nagano
Family Number: 1046
Address in Manzanar: 6-11-5

... The night of Dec. 7, 1941, the day Pearl Harbor was bombed, the FBI took my father in custody as a "dangerous enemy alien" and he consequently lost his business. I was 16 when Pearl Harbor was bombed, and the FBI took my father away.... There were eventually reports in the daily newspapers that the government would remove us from the West Coast. My younger brother was 14 and would not believe that it could happen to us, because we were American citizens.... My father had begun building a new home for us in October 1941. We moved into the house in January 1942 and lived there only two months before we had to leave for Manzanar. My mother was so upset that we packed all of our personal things in boxes and left everything.... We went by train and bus to Manzanar on April 2, 1942.... I had envisioned Manzanar as a camp of little white cottages for each family, like the cottages at Sequoia National Park where we had stayed during vacations. I can still vividly recall my dismay as we pulled into Manzanar off the highway at dusk and saw rows of black, tar-papered barracks ... our home for an indeterminate future. We were registered and then given canvas ticking bags.... We walked to our apartment which we were to share with another couple and their 2 year old son.... My younger brother and I spent our days walking around the perimeter of the camp, looking out at the highway and watching the cars go by and spending time with friends until school was finally established in October.... Our classrooms were in a whole block set aside for the school. We sat in the unheated rooms on the linoleum floor, with no furniture, no textbooks, or supplies at the beginning. I remember one day in particular when we were handed fliers with the Bill of Rights listed on Bill of Rights Day; it caused an angry exchange between the teacher and some of the students.
The second offers broader ruminations about the meaning of the Japanese internment camps for American democracy.
Name: S. Embrey
Family Number: 2614
Address in Manzanar: 20-3-1

... I think Manzanar should stand as a symbol of something that happened in America; had happened before and could happen again. It takes people who are aware of the past to make sure it doesn't get repeated in the future. But also, it's a strength of the American government and American democracy that we were given an apology and we were told that it was a mistake; that we were loyal citizens and law abiding parents and that it was not good for the government and American democracy to do this. We should all be vigilant. Liberty is something very precious we all need to work for and to strengthen. Telling the world that the government is willing to apologize, I think, indicates the strength of our democracy.