Saturday, January 29, 2005
Friday, January 28, 2005
Torts over Torture
What we don't know -- about the full extent of the United States' abuse and/or torture of detainees and rendition of detainees to third countries -- is a lot. For this reason, I have specifically avoided weighing in on some of the broader questions about compliance with the Torture Convention, at least until I have read the government reports on this question. Of those who have followed the available primary reporting more closely, Andrew Sullivan has been a consistent voice of sanity, reason and yes, morality, on the abuse questions. (And he supported the Iraq invasion.) His excellent review of the Schlesinger report and Mark Danner's book in last Sunday's NY Times Book Review is a must read for anyone contemplating the political and moral implications of the abuse scandals. (He also has an on-line q and a here.) I also find convincing Marty Lederman's cogent and compelling analysis from which he concludes, based on what little information is currently available, violations of law have occurred.
With that as background, I have a few specific thoughts in response to your post on lawsuits by former Guantanamo and Abu Ghraib detainees.
1) "Strangely enough,"? It appears to me not at all strange, but rather quite predictable that the United States and certain officials are finding themselves subject to tort suits alleging violations of international law. After all, the government itself has provided mounting evidence – including guilty pleas and convictions of the perpetrators -- that, in fact, these violations have occurred. And my guess is that the government will quietly settle at least some of these suits; a sympathetic jury may not be required.
2) Do you think it is at all relevant to any legal or political analysis that the individuals who are alleging abuse “were really innocent?” The Torture Convention defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The US Torture Statute (18 USC 2340) is similar:
“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
At no place in either the convention or statute does it state that these protections apply only to those who are “really innocent.” That's the point. Governments are not permitted to torture people on the grounds that they are bad guys or evil-doers. Even the infamous Bybee Memo did not try to make this distinction. Are you arguing, notwithstanding the law, that only "innocent" victims of abuse should be awarded civil damages? Or are you making an implicit political or moral argument in favor of abusing those that are not "really innocent"?
3) In an earlier post discussing the Acree case, you argued that the existence or non-existence of civil remedies for abuse of American POWs is likely to have little effect on how we (or our enemies) conduct ourselves in war. I tend to agree with that. So what is different here that leads you to conclude that the availability of civil remedies for abused detainees will have an "effect on an aggressive war on terrorism?"
Guantanamo Bay: Boon for Plaintiffs’ Lawyers?
I'm not a supporter of these sorts of lawsuits due to their effect on an aggressive war on terrorism. But I do recognize that if detainees and suspected terrorists are willing to subject themselves to the discovery process of the U.S. civil litigation system, this does increase the likelihood that those individuals were really innocent. Certainly, these four individuals, if their claims of torture are true, have a great case under the Alien Tort Statute against the U.S. government or U.S. officials (although finding a sympathetic jury might be somewhat difficult).
International Law Conferences, Coast to Coast
Seriously, anytime folks like Judge Rosalyn Higgins of the ICJ, Louis Henkin, John Yoo, and Beth Stephens gather, it is worth listening to what they have to say. I plan to post from the conference throughout the day.
Thursday, January 27, 2005
Commemorating the Holocaust
As Robert Kennedy often said, "We can do better."
"The Jewish witness that I am speaks of my people's suffering as a
warning....He sounds the alarm to prevent these tragedies from being done to others. And yes, I am convinced if the world had listened to those of us who tried to speak, we may have prevented Darfur, Cambodia, Bosnia and, naturally, Rwanda."
Wednesday, January 26, 2005
Self-Interest and Compliance
Theories of compliance can fill a bookshelf, and debates on the topic will not soon end, but my answer here will be a brief gut-reaction. (By the way, an excellent introduction to this field of scholarship is William Bradford’s annotated bibliography on international law and compliance.) As to why states comply in the face of self-interest, my best guess is that there are at least two different compliance mechanisms that operate in countries that have separate and independent executives and judiciaries. (And I note that I do think the domestic structures of states affect their proclivity to comply to international law, but I'll leave that for another post.)
The first method of compliance concerns executive decision-making. Here the tendency, as in the case of Australia, is to weigh the costs of non-compliance versus the costs of compliance. Not submitting to an ICJ ruling on East Timor is likely to lead to few consequences; taking part in the case and losing may lead to significant embarrassment in an area that is especially sensitive. Thus, the executive decides not to comply. By contrast, take the United States’ decision to comply with the WTO ruling that the U.S. tax code had unfair provisions concerning the tax status of foreign subsidiaries of U.S. companies. The President (and Congress) either had to seek changes to the tax code or face sanctions through the WTO system. The President (and Congress) chose to change the tax code. The cost of non-compliance—trade sanctions with potentially significant economic effects—outweighed the cost of compliance—some companies being upset.
These are the "hard cases" when it comes to compliance with international law because the mode of reasoning and decision-making is not primarily legal, but political (or diplomatic). In this form of decision making, the question of compliance is driven by an analysis of power: which is more daunting-- the cost if I do not comply or if I do comply? To survive such a query, international legal mechanisms need to exhibit credible means of enforcement (trade sanctions, diplomatic ostracization, etc).
But this is not the whole story on compliance. Another mechanism driving compliance is the effect of decision-making by national judiciaries. Best set out in Harold Koh’s version of Transnational Legal Process, this argues that the process of adjudicating and interpreting international norms in domestic courts and other domestic fora leads to an internalization of those norms in the domestic legal and political culture of a state. Of particualr interest here, Anne-Marie Slaughter has analyzed how domestic and international judiciaries interact. In a recent paper co-authored with Larry Helfer, Slaughter and Helfer showed how the interaction of domestic and international tribunals can lead to more effective "supranational" tribunals (tribunals such as the European Court of Human Rights that allow litigation between a states and indivduals).
In these cases, the decision-makers, usually judges, apply a more legalistic mode of reasoning. Whether they choose, for example, to write decisions that comply with international obligations is based not so much on the effective threat of sanction but on the internalization of those norms into the judiciary itself (of course, internalization of such norms by the executive would also assist compliance).
So, why is it that we see compliance by states that we know tend to act out of self-interest? Maybe because sometimes they view it in their self-interest to comply and sometimes because their decision-makers have been acculturated to believe it is the normatively "right" thing to do. And, I am sure there are many other reasons states may choose to comply or not to comply. I set these out, though, as two independent mechanisms promoting compliance.
The International Court of Justice and the Australian Open?
What's the lesson from all of this? One might be that even nice, international law-abiding countries like Australia (as opposed to not very nice ones like the U.S., at least in the eyes of many international lawyers) are not willing to have international tribunals assert jurisdiction when it comes to things they really care about. France, for instance, withdrew its acceptance once New Zealand tried to use the ICJ to block its nuclear test plans.
All of this self-interested state behavior may or may not be a good thing. But it is hardly behavior unique to the United States.
Resources for International Legal Research
According to the EISIL website:
ASIL’s goal is to ensure, through EISIL, that web searchers can easily locate the highest quality primary materials, authoritative web sites and helpful research guides to international law on the Internet. To this end, EISIL has been designed as an open database of authenticated primary and other materials across the breadth of international law, which until now have been scattered in libraries, archives and specialized web sites.
EISIL’s collection covers the following topics:
General International Law
States & Groups of States
Inidviduals and Groups
International Air, Space & Water
International Environmental Law
International Economic Law
International Human Rights
International Criminal Law
Communications & Transport
Use of Force
International Dispute Settlement
Private International Law
This leads me to a more general concern about international legal pedagogy: that although U.S. law students may take a doctrinal course in international law, at the end of their three years of law school they still have relatively little idea how to actually research this stuff. Consider if we taught Constitutional Law, but students didn’t know how to find Supreme Court cases or Congressional statutes.
In addressing this concern, resources such as EISIL and the ASIL’s guide to Electronic Resources in International Law, as well as the other research guides that are out there (such as George Washington International Law Review's Guide to International Legal Research) , are more important than ever.
Tuesday, January 25, 2005
Vanderbilt International Law Roundtable Jan. 28-29
Friday January 28, 2005
8:30-9:40 am Paper author: David Luban (Georgetown)
Paper title: Liberalism and the Unpleasant Question of Torture
Commentator: David Sloss (St. Louis)
9: 45-10:55 am Paper author: Rosa Brooks (Virginia)
Paper title: Failed States, or the State as Failure?
Commentator: Allison Danner
11:15-12:25 pm Paper author: Judith Kelley (Duke)
Paper title: The Role of Material and Non-Material Factors in State Behavior: Article 98 Agreements as a Quasi-Experiment
Commentator: Madeline Morris (Duke)
1:30-2:40 pm Paper author: William Aceves (Cal Western)
Paper title: Predicting Chaos? Strategic Planning in International Human Rights
Commentator: Greg Fox (Wayne State)
3:00-4:10 pm Paper author: Leila Sadat (Washington University)
Paper title: Exile, Amnesty and International Law
Commentator: David Wippman (Cornell)
Saturday January 29, 2004
8:30-9:40 am Paper author: Beth Simmons (Harvard)
Paper title: Theorizing Treaty Commitments
Commentator: Larry Helfer (Vanderbilt)
9: 45-10:55 am Paper author: Allison Danner (Vanderbilt)
Paper title: Prosecuting War and Terrorism: Lessons from the Tokyo Tribunal
Commentator: Bill Bradford (Indiana)
11:15-12:25 pm Paper author: Laura Dickinson (Connecticut)
Paper title: Privatizing the International: International Law and the Problem of Accountability in an Era of Governmental Contracts
Commentator: Mark Drumbl (Washington & Lee)
Goldsmith, ICC and Darfur
Goldsmith says that “even though criminal courts have done little to bring reconciliation to Rwanda or the former Yugoslavia,” or even “deter future crimes,” it is nevertheless “possible that the concrete threat of an ICC prosecution could temper the killings in Darfur without adversely affecting the recent peace deal…” While he seems to recognize that this is a pretty shaky hypothesis, he nonetheless supports referring the Darfur case as a more “effective policy.” I'm not sure I agree. After all, there is no evidence that the existence of the ad hoc tribunal for former Yugoslavia did much to temper Milosevic’s atrocities in Srebrenica in 1995 or Kosovo in 1998-1999. In fact, there is something to the argument that the continuing violations only underscored the marginalization and “unreality” of international humanitarian law in the context of ongoing conflict. Agreeing to prosecutions is often a way of states to defer – or fail to act on – their actual legal obligations under the Genocide Convention. International lawyers should not let them off the hook so easily.
At the end, my difference with Goldsmith may be about timing and sequencing. And I may be underestimating the value of the ICC chip in diplomacy with Europe. But to me, the better policy for the US would be to support and lead a real international coalition to stop the genocide in its tracks -- serious sanctions, serious commitment to military intervention -- and promote a process toward political reconciliation. Part of that process may include a later agreement to prosecute perpetrators, or it may include some other approach to truth and reconciliation. But let’s stop the killing first.
Tsunami Aid and International Law
In Sri Lanka, Human Rights Watch reports that children orphaned by the tsunami may now be facing forced conscription into the LTTE (Tamil Tigers), whose 2002 ceasefire with the Sri Lankan government appeared to be weakening in the weeks before the tsunami hit. And recent reports that American-based Christian aid groups are preaching the gospel while delivering assistance have renewed concerns about the appropriate role of religion in humanitarian operations.
None of this is new or surprising. For years those in the humanitarian aid community have struggled with this central dilemma of international aid work: what should we do when the altruistic goal of helping people clashes with other norms of international law? For example, what do you do if a repressive host government limits or places conditions on access to the people and areas affected by a disaster? Is there a danger that aid and assistance delivered by military personnel rather than civilians will be seen as non-neutral, or a part of a government's war effort? What if you have reason to believe that your aid will go only to those civilians who support the government, and not to villages thought to be supportive of the rebel groups? Or that your assistance will go to rebel groups who will use it to fight the war? Or that it is conditioned on affiliation of one or another religious group?
Last week, ASIL published this useful primer on the rules governing disaster assistance written by David Fidler. He notes that what law exists is not terribly helpful:
While the scientific community has responded quickly to develop better detection methods and information sharing to prepare for future tsunamis, the aid community is only just starting to ask the questions. I will be following this issue over the coming weeks and months.
In 2000, the International Federation of the Red Cross and Red Crescent Societies (International Federation) argued that, despite the existence of some treaty law relating to disaster relief:
At the core is a yawning gap. There is no definite, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance. No systematic attempt has been made to pull together the disparate threads of existing law to formalize customary law or to expand and develop the law in new ways. . . . There are no universal rules that facilitate secure, effective international assistance, and many relief efforts have been hampered as a result.
Ku and Yoo on the Alien Tort Statute
In this article, John and I consider the U.S. Supreme Court's recent decision interpreting the ATS to permit federal courts to continue to recognize causes of action under international law by alien plaintiffs. Rather than reinvent the formalist wheel by plumbing more of the textual, structural, or historical questions about the ATS, we take a functional approach and consider whether the Court's interpretation of the ATS, which relies heavily on the federal courts, is the best way to achieve the purpose behind the ATS. We conclude that, from a functional perspective, the Executive Branch is best positioned to determine how and whether to adopt rules of customary international law on behalf of the U.S. We propose that treating customary international law as state common law, subject to federal preemption by the President, is the best way to maintain a judicial role in the development of customary international law while allowing the institution with the most expertise over foreign affairs, the Executive, to maintain control over national policy.
Monday, January 24, 2005
International Law Colloquia
Religion and Human Rights
Following is an excerpt (footnotes omitted) from the Preface of the Human Rights Watch essay entitled "Religion and the Human Rights Movement":
"Fifty years after its proclamation," writes Michael Ignatieff, "the Universal Declaration of Human Rights has become the sacred text of what Elie Wiesel has called a 'worldwide secular religion.'" The growth of the human rights movement has given it the confidence to take on controversial issues and extend the promise of the Universal Declaration on Human Rights (UDHR) in areas that it had previously neglected.
This "new frontier," however, is colliding with the "return of the religious" in many societies, with what French political scientist Gilles Kepel has called "God's Revenge," featuring the reassertion of more dogmatic or conservative forms of beliefs inside and outside of mainstream religious denominations.
While it would be inappropriate for the human rights community to advocate for or against any system of religious belief or ideology and wrong to judge or interpret the principles of any religion or faith, it would be equally mistaken for the human rights groups to turn away from human rights violations or appeals for discrimination made in the name of religious principle or law.
Defining how to engage with religious communities thus has become one of the major challenges for the human rights movement. To paraphrase Ignatieff, human rights cannot truly go global unless it goes deeply local, unless it addresses plural philosophies and beliefs that sometimes collide with or appear to resist its appeal to universal norms. If international human rights standards have a claim to universality their relevance must be demonstrated in all contexts, and especially where religion determines state behavior.
This essay argues that the human rights movement needs to be able to provide clearer answers to the hard questions presented by the demands of believers and by religious organizations seeking direct political influence.
Blog of Interest: The TransAtlantic Assembly
Moreover, for an international organization that many see as too powerful, it is run on a fairly shoestring budget. According to Bhagwati, the WTO's annual budget of $100 million means the organization cannot even fund its own studies of the effect of its trade rules. (As a crude point of comparison, the UN's budget for 2004-2005 will exceed $3 billion).
As the WTO considers how to reform itself, the race is on to be the new WTO director general, who will be chosen sometime in the next four months. According to some news reports, Pascal Lamy of France, until very recently the European Union's trade commissioner, is the leading candidate to replace current WTO chief Supachai Panitchpakdi of Thailand. Other candidates who will apparently appear before a special session of the WTO's general council include Luiz-Felipe de Seixas Correa of Brazil, Jayen Cuttaree of Mauritius and Carlos Perez del Castillo of Uruguay. Something to keep an eye in coming months.
Goldsmith Comes Out for an ICC referral
Asia and International Law
This is why Francis Fukuyama's latest essay in Foreign Affairs ($) is so interesting. Perhaps oddly for a card-carrying neoconservative, he is calling for the U.S. to, among other things, push for the creation of some sort of multilateral organization for East Asia. Not that this would solve everything and of course this would not be an Asian Union of any sort, but Fukuyama thinks such an organization could usefully deflect coming conflicts over North Korea and Taiwan. Maybe, maybe not, but if Fukuyama's advice is taken, public international lawyers will have a whole new set of institutions to build in the near future.
Sunday, January 23, 2005
Blogs on EU Law and Politics
As we come across other blogs and resources of interest, we'll pass them on to you...
More on Breyer v. Scalia
I am surprised that no one picked up on this comment by Breyer:
BREYER: I said, "If here I have a human being called a judge in a different country dealing with a similar problem, why don't I read what he says if it's similar enough? Maybe I'll learn something." To which the congressman said, "Fine. Read it. Just don't cite it." (Laughter.) I thought, "All right."
Look, let me be a little bit more frank, that in some of these countries there are institutions, courts that are trying to make their way in societies that didn't used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They're having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don't we cite them occasionally? They will then go to some of their legislators and others and say, "See, the Supreme Court of the United States cites us." That might give them a leg up, even if we just say it's an interesting example. So, you see, it shows we read their opinions. That's important. Then he says, "Well, write them a letter." (Laughter.) I thought I wasn't making much headway. He had a point. And the point is the point that Justice Scalia has made. How do we know we can keep this under control? How do we know we cite both side? How do we know we looked for everything? Well, I'd say that kind of a problem arises with any sort of citation. A judge can do what he's supposed to do, or not. And we hope they do what they're supposed to do. Would I try to refer to both sides? Of course I would." (emphasis Tillman's)
Was he [Breyer] advocating a foreign policy for the Supreme Court? What did he mean by a leg up? A leg up on whom? Do we get to debate which nations should or should not get noticed by the Supreme Court?
Personally, I was not so much astounded by Associate Justice Breyer's statement -- as the lack of any response by his colleague Associate Justice Scalia, the moderator -- Professor Anderson, or any one in the audience. I nearly fell out of my seat. You can write that up too. As I indicate below -- I am not one who is in principle against citing foreign law or authority, even beyond English law (the step-child of Justice Scalia's jurisprudence).
Nixon-Era Antiterrorism Panel Documents
Giuliani’s testimony, as well as that of others, concerned the need to relax legal and bureaucratic restrictions on intelligence gathering. Concerning airline security, one White House memo noted that the Committee was generating good ideas but if the airlines were asked to absorb the cost, they would scream “bloody murder.” A subsequent memo from the International Air Transport Association stated that protection from terrorism was the responsibility of the “host government” not the individual airlines.
On the international front, Secretary of State Kissinger told President Ford in early 1975 that the mood in the UN General Assembly was such that there could be no useful initiatives on terrorism. It is interesting to note that since that time the majority of the “Terrorism Conventions” were ratified, providing the “prosecute-or-extradite" regime which is the legal backbone for international antiterrorist efforts on acts ranging from hijacking and piracy to (most recently) the financing of terrorist activities and organization. So perhaps things do change, after all.