Saturday, February 12, 2005

John Bellinger Nominated to be State Department Legal Adviser

In a nomination that has been widely-expected, John B. Bellinger, III, formerly the legal adviser for the National Security Council under Condoleezza Rice, has been nominated to be the new Legal Adviser of the State Department, succeeding William Taft, IV.

According to a short bio available online, prior to joining the NSC, Bellinger was a counsel for national security matters in the criminal division of the Department of Justice from 1997 to 2001. Prior to that, he served as counsel to the Senate Select Committee on Intelligence (1996), as general counsel of the Commission on the Roles and Capabilities of the U.S. Intelligence Community (1995-96), and as special assistant to Central Intelligence Agency Director William H. Webster (1988-91). Before his government service, Bellinger practiced law with Wilmer, Cutler & Pickering in Washington, D.C. from 1991 to 1995.

Friday, February 11, 2005

Is Internationalism an End in Itself?

I should first thank Prof. Heller for adding his insightful comments to our blog. I hope to return the favor at his blog-home at the Yin Blog. Both he and Peggy have useful comments, although I think both are reading much more into my post than I myself intended (but I suppose that is my own fault).

In particular, I didn't mean to argue, as Peggy suggested, that "you cannot nonetheless argue ex ante that participation in a particular multilateral regime .... is on balance a good thing for the US . . ." Nor did I mean to argue, as Prof. Heller suggests, that "newspapers like the LAT don't have an equal right to criticize the U.S. for not doing so."

Let me try to explain. I am agnostic on whether global warming is a real problem (who to believe, Cato or the NRDC?) and I am also agnostic on whether Kyoto is the right mechanism for solving global warming, if global warming is as serious a problem as many believe. I do think that Peggy makes a far more persuasive case for international regulation of global warming than the LA Times piece, which seems to rely heavily on the notion that the Bush Administration and Republicans are in the pocket of the energy industry. That might be true to some degree, but I doubt it is any more true than the Democratic Party being merely the tools of teacher's unions and trial lawyers (maybe less).

In any event, my point is that the claim that we should join Kyoto because everyone else is joining it (and we should join the ICC because everyone else is joining it), etc, etc. is simply not very persuasive to me. My empirical claim is that this type of argument is also not very persuasive to those people who make decisions (including many on both sides of the partisan divide) or to those people who vote. Maybe I'm wrong, but I doubt it.

I think Prof. Heller's point is an interesting one. If you take as a given U.S. intransigience, then U.S. supporters of a particular international regime should actually push foreign countries and international institutions to take a tougher line with the U.S. I agree this is perfectly logical, but I doubt this is the best strategy. There is U.S. public support for certain kinds of international institutions, as Peggy points out in her WTO example. While there are pockets of "nationalists for nationalists' sake" folks (Prof. Heller's colleague Peter Spiro might call these people "sovereigntists"), I really believe most folks can be persuaded based on the merits of a particular international regime. Again, this is an empirical claim, but a very plausible one I think.

There is a deeper question lurking here. Why is the U.S. so reluctant to sign on to international regimes and to subject itself to international rules that really hurt? (1) Is it because of an influential and hawkish group of elite intellectuals (sometimes called neo-cons) has managed to achieve an iron grip on U.S. foreign policy? (2) Or is it because the majority of voters disapprove of such internationalist policies and elect officials who will represent that view? (3) Or is it simply the rational choice of U.S. decisionmakers that reflects the current power imbalance between the U.S. and the rest of the world? I have to say that I don't know what the answer is (except I'm pretty sure the first answer is not correct). But it is something worth exploring.

Internationalism, Multilateralism and Kyoto

Julian admits that he may be inferring too much when he criticizes the LA Times op-ed written by the NRDC in opposition to the Bush administration's decision to remain outside the Kyoto Protocol as a wrong-headed rejection of US national interest in favor of internationalism. I agree that Julian inferred too much. I am no expert on global warming, but it seems to me quite reasonable for the NRDC (which has some expertise on the subject) to take on Bush, Crichton and all the others questioning the science upon which the Koyoto Protocol is based. (The full text of the Kyoto treaty can be found here.)

But Julian raises the interesting question of whether it is useful to promote "internationalism" as a valuable in and of itself. Part of the problem is defining what we mean by internationalism. If by internationalism we simply mean reaping the benefits of participation in the international system (e.g., free trade, convertibility of currency, respect for nationality, predictability in the use of force, etc.) in exchange for, more or less, agreeing to certain obligations, than the US is by all accounts "internationalist." The enormous number of bilateral treaties in which the US participates are evidence of this "internationalism." And the best evidence of "internationalism" in the area of multilateral treaties is our participation in the WTO, in which the US voluntarily has signed up for multilateral regulation of vast areas of its own economy in exchange for the benefits of the free trade regime. Of course, the decision to do continue to participate in the WTO will be debated as a national political matter, and there may come a time when we decide -- through our own political process, subject to all its mechanisms for accountability -- to withdraw from the WTO and not participate. That is our right within the international system.

But to say that you cannot nonetheless argue ex ante that participation in a particular multilateral regime (such as the WTO or Kyoto) is on balance a good thing for the US seems unfair. We know from economic theory what the benefits of participating in free trade are, and we can make the case that being "internationalist" on trade is a good thing, without going through all the pluses and minuses of each individual food safety regulation or worker protection statute. Similarly, it is fair to argue that the science behind global warming demonstrates that cooperative, multilateral approaches will be most effective in solving the problem. The only thing lacking in this kind of ex ante analysis, as Julian implies, is the democratic accountability within the participating state. (This is why free trade internationalists have to take seriously the critiques of Ralph Nader, Pat Buchanan and, indeed, the NRDC.) In fact, NRDC knows this; the point of an op-ed in the LA Times, as opposed the the London Times, is to influence opinion in the US to put pressure on the corporations and politicians standing in opposition to Kyoto.

Kevin Heller is correct in his comment noting that the US has, historically, not concerned itself with how many other states have signed on to an agreement when debating the pros and cons of US participation (see, e.g., the League of Nations, the ICESCR). I don't think that is central to the argument the NRDC is trying to make here. (Although tossing in inaccurate statements that the US has taken the position the "Geneva Convention" [sic] should not bind the US was gratuitous and sloppy.) However inartfully, the NRDC is trying to make the argument that Kyoto is a set of rules that the US should sign onto because:
1) the problem of global warming is scientific fact;
2) reduction of greenhouse gases through Kyoto will help alleviate the problem;
3) the US is the largest producer of greenhouse gases;
4) a multilateral regime without the participation of the US will be ineffectual; and
5) by staying outside the regime, the US is angering the rest of the world, including close allies like the UK.

The fourth point is what makes a unilateral decision of the US not to participate in one or another international agreement different from, say, the decision of Luxembourg not to join. Our failure to participate can doom the agreement. It is the fifth point that, I think, sets up the false internationalist v. non-internationalist dichotomy. I happen to agree that our long-term foreign policy interests should take the views of the rest of the world into account for a host of practical reasons. It doesn't mean, however, that those views should be determinative of our action.

Why Internationalism Is Not Enough

Today's Los Angeles Times contains a predictable op-ed condemning the U.S. for failing to join the Kyoto treaty to reduce global warming, which will go into effect next Wednesday. In addition to attacking Bush, the Republicans, and Michael Crichton for being the stooges of the energy industry, the writer throws in this line, which is fast congealing into elite consensus:

The rules that apply to the rest of the world, the administration in effect is saying, need not apply to us. International agreements — whether they involve the International Criminal Court, the Kyoto Protocol or the Geneva Convention — should not be allowed to bind the hands of the most powerful nation on Earth. On that point, at least, the U.S. is consistent.

This argument suggests that the U.S. has a responsibility to join international organizations and submit to international law irrespective of (1) what it believes its national interests to be; and (2) what its democratically elected political institutions want it to do.

Maybe I am unfairly inferring too much from this line (as Chris suggested I did yesterday with respect to Samantha Power's piece), but I do think that this view of how the U.S. should conduct its foreign policy is endemic to many influential advocates, academics, and policymakers. Perhaps the better gloss is that U.S. interests are generally served by joining international organizations and legal systems.

Even in this new and improved form, I think this approach is either naive or unproven (or both). Even though I might agree with the author about joining a particular treaty system (say, the Geneva Convention and maybe Kyoto), I don't believe that it is always or even usually the case that the U.S (or any country) must do so. Is it always a good idea to create more domestic law and regulation on any subject regardless of the policy consequences? Why shouldn't such decisions be made on a case-by-case basis (through our normal democratic and constitutional processes)?

All of this suggests that lines about the U.S. "standing alone" and refusing to join the "rules that apply to the rest of the world" are a waste of time. If you want the U.S. to join the Kyoto Treaty, then stick to the policy arguments for doing so. But it is simply unpersuasive to me (and I think to many other people) to argue for that we should join because other countries have joined, an "Internationalism for Internationalism's Sake."

Thursday, February 10, 2005

Tortuous Definitions of Torture

Over at Slate, Peter Brooks (who holds a joint appointment in Law and English at UVA) has this post on the August 2002 Bybee torture memo . Brooks sees Bybee's failure to follow the "plain meaning" statutory interpretation guidelines reaffirmed by Chief Justice Rehnquist in LEOCAL v. Ashcroft, in which the Court noted that we construe statutory language "in its context and in light of the terms surrounding it," as:

[A] remarkable example of textual interpretation run amok—less "'lawyering as usual" than the work of some bizarre literary deconstructionist. And it's virtually impossible to read without wondering whether another casualty of this war on terror is the doctrine that words indeed mean what they say.

Of course, DoJ conceded the point that Bybee's statutory interpretation was flawed in the December 2004 memo to James Comey "withdrawing" the Bybee memo.

I wanted to respond to Julian's question that, if the allegations of torture at Gitmo are credible, why hasn't there been a serious call by leading politicians for investigations? The answer is undoubtedly complex -- and must surely include, in part, the political tone set by a President who refused to acknowledge that any senior officials should be held accountable for abuses that we do know took place. But the absence of outcry does not disprove that abuse tantamount to torture has taken place. Andrew Sullivan, in his recent essay that I mentioned here, raised the disturbing implications of the silence on the Hill and among the broader polity much more eloquently than I ever could:

But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ''evil'' might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.

American political polarization also contributed. Most of those who made the most fuss about these incidents - like Mark Danner or Seymour Hersh - were dedicated opponents of the war in the first place, and were eager to use this scandal to promote their agendas. Advocates of the war, especially those allied with the administration, kept relatively quiet, or attempted to belittle what had gone on, or made facile arguments that such things always occur in wartime. But it seems to me that those of us who are most committed to the Iraq intervention should be the most vociferous in highlighting these excrescences. Getting rid of this cancer within the system is essential to winning this war. I'm not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it's worth a thorough reassessment of rhetoric and war methods.

Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ''heroic'' protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

ICJ Watch: Germany Prevails Over Liechtenstein

From the department of obscure court decisions, the ICJ ruled today that it has no jurisdiction over a dispute between Liechtenstein and Germany over

decisions of Germany, in and after 1998, to treat certain property of Liechtenstein nationals as German assets having been ‘seized for the purposes of reparation or restitution, or as a result of the state of war’ - i.e., as a consequence of World War II -, without ensuring any compensation for the loss of that property to its owners, and to the detriment of Liechtenstein itself.

All courts have their obscure and tedious cases, and this appears to be one of ICJ's less exciting decisions ( although one of the assets was a Pieter van Laer painting and the total claim may have totalled a billion dollars).

The ICJ essentially dismissed the case for lack of jurisdiction. I have no opinion on whether that is correct, but I do wonder why it took the ICJ three-and-half years from the filing of the Application in June 2001 to reach what seems like a preliminary decision. Imagine if they had decided to go on to the merits!

Protesting Too Much About Samantha Power and the ICC

I think Julian doth protest too much about Samantha Power’s opinion piece in today’s New York Times.

First, a point of logic. Saying someone doesn’t know which they dislike more, A or B, is not the same as saying that person condones A or B. At no point in the piece would it be fair to say that Power even implied that the Bush Administration condoned genocide. To the contrary, she gives the Administration credit where credit is due:

"The Bush administration has been more forthright than any of the United Nations' 191 member states in denouncing the atrocities in Sudan - a fact that should shame European nations that pride themselves on their human rights pedigrees. The United States was the first to characterize the violence as genocide and the first, way back in June, to name potential perpetrators and call for punishment. It has also dismissed offers by the Sudanese government to conduct the trials at home, rightly recognizing that Khartoum is unlikely to prosecute crimes that it has ordered and committed."

However, she also takes it to task for where its actions do not match its rhetoric over the Sudan. There’s nothing wrong with that. I’m sympathetic to it since I made a similar point in an earlier post. The fact is, although there is consensus building for an ICC referral, the U.S. does not want to do that because, in the words of War Crimes Ambassador Pierre-Richard Prosper, “We don’t want to be party to legitimizing the ICC.” So, according to an Administration official, a main reason for not sending the Darfur issue to the ICC is not because an ad hoc would do a better job (an argument that Power does an excellent job in debunking) but because, essentially, we don’t like the ICC.

Moreover, regarding the torture in Abu Ghraib and the (ever increasing) allegations about Guantanamo, one should note that the reason the ICC prosecutor isn't investigating is because the prosecutor himself does not believe the ICC has jurisdcition over any of these claims. If the ICC actually was some out-of-control international tribunal, as the over-heated rhetoric of some of the its detractors suggests, the result would have been different.

The ICC, like any institution, is flawed. Moreover, as I’ve said before, I don’t think any international tribunal will stop the genocide (see also Peggy’s post). Nonethleless, a competent international tribunal can play an important part in securing the peace. It is important that the population in a transitional society believes that justice is being served (such as by a truth commission, an international tribunal, or the domestic courts). According to Power there is a hope in Darfur that those responsible for the killing will be put on the dock in the Hague. We could make that closer to becoming a reality as soon as we stop impeding a referral to the ICC. Doing so would be a step on the road to a sustainable peace. For the moment, though, the Bush Administration isn’t walking that road.

Germany Wisely Won't Prosecute Rumsfeld (Updated)

Common sense triumphed today when Germany announced it would not investigate allegations that Donald Rumsfeld committed war crimes. The NY-based Center for Constitutional Rights had filed a petition asking Germany to investigate on the theory that the U.S. authorities were incapable of investigating such claims due to a "continuing scheme of corruption". This remarkable (and dare I say it, wild) claim was supported by an affidavit from respected NY lawyer Scott Horton. But, if accepted, it would have been tantamount to saying that, because Bush won the election and still controls the government, the U.S. is incapable investigating alleged war crimes by its own officials. Germany wisely rejected this claim.

If CCR believes there is a torture coverup, why haven't they called on Congress to investigate or for the DOJ to investigate? Do they think that, for instance, Senators Richard Lugar and Joseph Biden, the leaders of the Foreign Relations Committee, are part of this "continuing scheme of corruption"?

UPDATE: CCR, not surprisingly, blasts this decision (in German) as politically motivated and vows to fight on.

Opposition to the ICC Equals Condoning Genocide?

Samantha Power, a tireless Pulitzer-Prize-winning advocate of more aggressive action by the United States to stop genocide and war crimes, offers her take on why the ICC would be more effective than an ad hoc tribunal (a topic we've been batting about here) in today's NYT. Count me as a skeptic of her claim that the ICC will deter war crimes appreciably more than an ad hoc tribunal, but then again, unlike Power, I haven't spent years reporting on conflicts in Bosnia, Rwanda, and now Sudan. But the most interesting aspect of her article is Power's obvious contempt for the Bush Administration, which undercuts her otherwise very persuasive piece.

In a very unfair (but effective) phrase, she accuses the Bush Administration of not being able to decide whether it dislikes "genocide" more than the ICC. This is unfair because she is equating opposition to the ICC with condoning genocide. The ICC may be great, but surely Power must concede there are some reasonable objections to the ICC and that one can still want to prosecute genocide while still opposing the ICC, even in Darfur.

Power also notes that the ICC has not "begun investigating the torture and murder carried out by American soldiers and contractors in Iraq or Guantanamo Bay" as an argument that the ICC doesn't threaten the U.S. The missing word here: "alleged." Like many in the human rights community, she takes as a given that U.S. policy in Guantanamo Bay has consisted of torture and abuse, but I think, at least with respect to Guantanamo Bay, that cannot be so lightly assumed just yet. The info trickling out of Gitmo has come from allegations in lawsuits that have not yet been confirmed, and from some info from FOIA requests that are piecemeal and incomplete. But Power's attitude that such allegations are enough for her to conclude that crimes of torture and abuse rising to the level of the ICC's consideration is more evidence of how quickly she will is willing to assume the worst of motives and intentions of this Administration.

In doing so, Power is playing to her audience of elite opinion and Bush-haters, but she is not convincing anyone else.

Wednesday, February 09, 2005

The Many Methods of International Legal Scholarship

The increasing use of empirical research in international legal scholarship is a good thing, as Julian noted. Empiricism (or at least an attempt at empiricism) brushes away the cobwebs of musty “givens” and unpacks old assumptions that have been tucked away. By bringing in new data to test academic doctrines, empiricism can do a good job helping theory be more descriptive of (and useful to) practice.

Rational choice theory, however, is merely one menu option among many theoretical world views on how to interpret the data that is generated. I think it is also a good thing that international lawyers are deploying the techniques of rational choice theory, but, as with other theories, it is only one particular approach, with its own set of assumptions and flaws.

For example, prior to publishing The Limits of International Law, Eric Posner and Jack Goldsmith wrote an article entitled A Theory of Customary International Law, which provided a game theoretic appraisal of customary international law. They found that much of what may has been considered customary international law may be no more than the opportunistic actions of states. In his article “Game Theory and International Law: A Response to Professors Goldsmith and Posner” (23 Michigan Journal of Int’l Law 143 (2001)), Mark Chinen, also applying game theory, came to a different set of conclusions, arguing, among other things, that although game theory can be used to explain why states do or do not cooperate, “game theory has nothing to say about whether customary international law is a valid theory of law.” Both articles used rational choice theory, yet in the hands of different authors, the results are quite different.

Similarly, Eric Posner and John Yoo used rational choice arguments as a basis for a critique of Anne-Marie Slaughter and Larry Helfer’s “Toward a Theory of Effective Supranational Adjudication.” Some of their results, though interesting, are counter-intuitive, such as their conclusion that it is preferable to have single arbitrators rather than the standard three-person panel. Their reasoning is that a single arbitrator is more susceptible to retaliation or sanction by the parties in the arbitration, therefore the arbitrator is incentivized to give a neutral judgment.

Perhaps this conclusion holds water theoretically; it flies in the face of the result of the choices of actors in the actual “arbitration market,” though. High-stakes commercial and public international arbitrations are usually multi-person panels. If we place a certain faith in the choices of actors in the market for arbitrations, then why do the rational choices of the actual market clash with Posner and Yoo’s prescription? Clearly, something else is at play, perhaps in the way in which rational choice theory is being deployed.

This is the crux of Slaughter and Helfer’s rejoinder. Among a wide variety of theoretical, methodological, and empirical critiques of Posner and Yoo’s article, they note a “selection bias” in which certain types of tribunals were under-represented, “omitted variable bias” in which crucial factors such as the subject matter that tribunals were able to hear and the power differential among states, were not taken into account.

And these criticisms don’t even consider the broader questions as to whether game theoretic models adequately model decision-making or whether they under-value key variables (ideology, emotion, misperception, among others). See William Poundstone’s The Prisoner’s Dilemma for a fascinating history of the uses and abuses of game theory in foreign policy decision-making.

All this debate over how rational choice theory may be applied to international law is, I think, quite healthy for international legal scholarship, but we should not let it obscure the variety of different analytic methods that exist. The Symposium on Method in International Law, published in 93 American Journal of International Law 291 (1999), and following, is an excellent survey of different methodological schools. (Available at JSTOR, subscription required). Theories from each school are then applied to a common problem so that readers can see how the different assumptions and foci of each methodology plays out over the course of analysis. Similarly, Oona Hathaway and Harold Koh’s new reader Foundations of International Law and Politics is a great place to explore the multiple intersections of international law and international relations theory. Selections include major articles on realism, institutionalism, and liberal theory, as well as on constructivism, legitimacy theory, and legal process theory. These perspectives are then applied to a series of topics ranging from international trade to human rights, environmental policy to humanitarian intervention, to name a few.

Taken together, the theoretical options and challenges to the academic international lawyer are broad and varied. Rational choice theory is a relatively new entrant and it has much promise and is exciting. It is another tool in the theoretical toolbox. With time, we will get a better sense of where it is useful and where it is less successful than other theories in analyzing international law. The Hathaway and Koh book and the AJIL Symposium are good places to survey some of the many other theoretical approaches.

Hussein's Trial Moving Forward

As an addendum to our previous discussion prosecutions and transitional societies (here and here), I note that the New York Times is reporting that the investigating judges of the Iraqi Special Tribunal will refer to the trial charges against Saddam and/or some of his senior aides in the coming weeks. The article gives a good overview of the process to come. The actual trials, which will follow procedures of civil law (as opposed to common law), will be before five judge panels and are expected to take a couple of months.

The statute of the Iraqi Special Tribunal can be found here.

Tuesday, February 08, 2005

Oil-for-Food Investigation: Lifting Diplomatic Immunity

Kofi Annan announced yesterday that he has suspended the two senior UN diplomats at the center of the Volcker Commission's Report on misconduct in the Iraq Oil-for-Food Program. The suspension appears to be the first step toward lifting diplomatic immunity, which Annan said he would do if facts support the bringing of criminal charges. Apart from the importance this investigation has to the issue of real accountability within the UN, which we have discussed previously here, here and here, it raises some interesting questions about diplomatic immunity. Why do UN diplomats have diplomatic immunity? And why does the Secretary General have sole discretion to lift it?

The notion that diplomatic emissaries representing foreign states should not be subject to the laws of the state to which they have been sent is one of the oldest and most central tenets of international law. The rationale is pretty obvious: allowing foreign diplomats to carry out their duties requires protection from political harassment through criminal prosecution or civil suits in foreign states. While the scope and terms of diplomatic immunity developed as part of of customary practice, it was codified in the Vienna Convention on Diplomatic Relations of 1961.

Like many international treaties and customs, the rules governing diplomatic and consular immunity are perfectly suited to enforcement through reciprocity. Thus, when state X decides for any reason to declare a diplomat from state Y "persona non grata" and expel her according to the terms of the Convention, state Y will often respond by a retaliatory declaration of "persona non grata" of a state X diplomat posted in state Y. This is usually enough to prevent undue harassment of diplomats who are simply doing their jobs. Real problems arise when diplomats are accused of crimes that even the sending state recognizes are outside the scope of one's diplomatic duties and the host state wants to prosecute, rather than let the diplomat return home. Fortunately, the protections of diplomatic and consular immunity are not entirely absolute, as this guidebook from the State Department explains. At the end of the day, the immunity belongs not to the individual diplomat, but to the state the diplomat represents. If the sending state has no interest in protecting the diplomat from prosecution, it may lift the immunity and let the diplomat fend for himself. (This is precisely what happened in 1997 when the government of Georgia lifted the immunity for a Georgian diplomat who was subsequently prosecuted and convicted of negligent homicide of a pedestrian in Washington DC.)

Applying the same rationale of diplomatic immunity to the United Nations, i.e., that UN diplomats need protection from arbitrary application of local law to do their jobs, certain designated employees of the UN operate with the protection of immunity under the Convention on Privileges and Immunities of the United Nations. The Convention specifically provides that:

The Secretary-General shall have the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of Justice and can be waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity.

If additional facts emerge that warrant crminal prosecution of the two officials (the current report only cites misconduct, not criminality), only the Secretary General is in a position to lift their diplomatic immunity. Here, Annan appears to be under sufficient pressure from UN member states that he is likely to live up to his word and lift immunity if it comes to that. Indeed, it would be hard to argue that keeping immunity in place would not prejudice the interests of the United Nations. Because the Secretary General's term is limited and depends on the nomination of the Security Council and the vote of the General Assembly, it seems to me sufficient that he has sole discretion to designate those protected by immunity and to lift that immunity when the facts warrant.

The broader issue of immunity for criminal acts by UN representatives-- particularly in conflict and post-conflict situations -- has prompted some debate. Military personnel assigned as peacekeepers generally remain under the jurisdiction of their sending state for any crimes committed while on duty (or, for war crimes and crimes against humanity, under the jurisdiction of the ICC). Other officials, for example UNIMIK and KFOR officials in Kosovo, generally have been granted immunity under the terms of their UN mandate, much to the consternation of certain human rights groups, who view immunity as an obstacle to prosecuting any "bad apples" assigned to these international missions.

Truth, Justice, and the Pragmatic Way

Julian describes the East Timorese decision to have a "Truth and Friendship Commission" as “another country's decision (like South Africa) to avoid 'justice' in favor of 'peace' (some might say 'impunity')." This characterization (at least of South Africa’s Truth Commission) is off the mark. The South African Truth and Reconciliation process did allow for prosecutions; essentially people who did bad acts could come clean before the Commission by a certain date or afterwards face prosecution. The potential indictees also knew that the Commission would be compiling more and more evidence from other people coming forward so, if they did not immunize themselves by confessing, they would be facing a prosecutor flush with evidence.

This is not impunity because there was politcal consensus in South Africa that getting as much of the truth out as possible (who was killed when and where) and having fewer, but more effective prosecutions, was a just result. It was not just about political peace but about the former oppressors having to sit there and, in public, confess to what they did. Given that this was what the majority of the public wanted, that is not impunity.

But what about East Timor? I didn’t immediately say that Julian's characterization was on or off the mark in that case because we need to see the actual design of the Truth Commission. There has been interesting work on the comparative design of truth commissions and you just can’t lump them all together, especially when trying to assess whether one decreased “justice” and increased “impunity.” The political climate, the desires of the public, and the structure and power of the Commission are all key variables. South Africa’s Commission is considered very successful and very difficult to replicate (due to the widespread public support); Haiti’s, by contrast, was almost completely dysfunctional (underfunded, underutilized, no real power at all).
The other point that Julian made that I wanted to point out was his argument that “in future conflicts, countries like East Timor probably won't have the option to forego prosecutions like it is choosing to here because it would be subject to the demands for prosecution by the International Criminal Court.” First of all, Article 17 does not need to be read to require domestic prosecution; at issue is whether the state in undertaking an “investigation or prosecution.” (The rest of the Article refers simply to domestic proceedings.)The ICC may step in if “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.” Thus, the ICC could only seek jurisdiction if the domestic proceeding is just an attempt to shield one or more persons from prosecution. That does not describe the South African truth commission.

Actually, ICC deference to truth commissions is an issue that is being carefully considered. (See here, here, and here.) Unsurprisingly, the issue of deference relates to assessing issues of the design of the commission and whether it is an actual attempt at conflict resolution or merely a sham undertaken to shield a criminal. As Professor James Crawford of the University of Cambridge has said in relation to Article 17:

"I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission."

Professor Crawford said that he expected that over time the ICC would develop criteria for deference. So, rather than Julian’s concern that the ICC will stifle Truth Commissions or his concerns that such Commissions just sign off on impunity, the ICC may play a role in the development of a set of “best practices” for truth commissions.

Fool proof? Of course not. But not as dire as Julian fears. And, pragmatically, not a bad idea.

East Timor Spurns an International Court

East Timor announced today that it has reached a tentative agreement with Indonesia to set up a Commission of Truth and Friendship to investigate human rights abuses and crimes committed during Indonesia's occupation of East Timor. While somewhat controversial among human rights groups who sought a Rwanda or Yugoslav-style ad hoc tribunal, the East Timorese foreign minister explained that:

We believe that the best form of justice for the victims is that the truth be acknowledged and that the perpetrators -- whether as individuals or collectively -- acknowledge their responsibility and fully cooperate with the commission.

If it sticks, this will mark another country's decision (like South Africa) to avoid "justice" in favor of "peace" (some might say "impunity"). Whether it is, as Chris might argue, a "sustainable peace" is another question. Interestingly, in future conflicts, countries like East Timor probably won't have the option to forego prosecutions like it is choosing to here because it would be subject to the demands for prosecution by the International Criminal Court, to which it is a party (the ICC doesn't have jurisdiction here because the war crimes occurred prior to its establishment).

Dirty Harry II: New Problems, New Rules

Comparing and contrasting the perils and opportunities that international lawyers see in the world with those of non-lawyer foreign policy specialists can be enlightening. At the very least, it can help keep international lawyers from entering into a cul-de-sac where they are more concerned with doctrinal paring than problem solving.

In an earlier post, I mentioned a recent article ("What Dirty Harry Can Teach the New Geneva Conventions") by Dr. Thomas Barnett, author of The Pentagon’s New Map. In this and in one or two subsequent posts, I want to unpack some of Barnett’s theories concerning emergent threats to national security and the “new rule sets” needed to respond to them in comparison to some concerns of international lawyers. I’ll begin here by comparing and contrasting how Barnett defines and considers “rules” with the practices of international lawyers (broadly speaking).

First and foremost, Barnett’s conception of “rule sets” is much broader than the legal rules that are the primary (though not only) concern of international lawyers. In The Pentagon’s New Map, he begins by simply calling rule sets “a collection of rules that delineates how some activity normally unfolds.” (p.9) He later defines rules as: “[a]ll the procedures, laws, treaties, rules of thumb, and conventional wisdom that seem to guide the actions of individuals, corporations, governments, and the international community at large.” (p.22)

Barnett is thus concerned with a very broad range of sources ranging from what would be more traditionally considered law (treaties, customary international law, etc.) to that which would not (strategic doctrines, standard operating procedures, etc.). Although broader than older definitions of “international law” as the law governing the relations between states, his conception of rules is similar in some respects to Phillip Jessup’s definition of transnational law (“[A]ll law which regulates actions or events that transcend national frontiers. Both public and private international law are included as are other rules which do not wholly fit into such standard categories.”) with some non-binding “soft law” added on.

Within this set of possible rules, though, Barnett’s focus may be a little different that that of an international lawyer. Although non-binding elements such as “soft law” are gaining increased attention, international lawyers still spend the majority of their efforts on drafting, analyzing and (hopefully) elucidating more traditional sources of law such as treaties, customary international law, and caselaw. Barnett, though definitely interested in treaties and (without using the formal term) customary international law, seems particularly concerned with strategic doctrine. The “legal” rules of most interest to him are the laws of armed conflict concerning the ability of a state to use military force (jus ad bellum).

Barnett’s strategic priorities are intertwined with the idea of certain rule sets being of national interest: “our strategic vision for national security needs to focus on growing the community of states that recognize a stable set of rules regarding war and peace.” (p.25) He further contends that “the emerging global conflict lies between those who want to see the world grow ever more connected and rule-bound and those who want to isolate large chunks of humanity from the globalization process so as to pursue very particular paths to ‘happiness.’” (p.32) He calls the set of like-minded states that have signed on to these rule sets the “Core” and the states that are the rogues, the revanchists, and the disconnected, the “Gap.” Barnett’s project is largely concerned with how to bring states out of the Gap and into the Core.

On one hand, international lawyers would be heartened that the assessment of this foreign policy analyst is that U.S. national security can be best enhanced by getting an ever-increasing number of states to sign on to certain “rule sets” (including, but not limited to, the sources of international law itself). What could be a source of interesting debate and discussion between international lawyers and foreign policy specialists is the process by which this transition from the Gap to the Core takes place.

Barnett argues that

America is not going back on any of [its] ideals. They all still apply in shades—inside the Core. Inside the Core we have achieved something awfully close to Kant’s perpetual peace—not just inside the Old Core [the U.S., Europe] but likewise inside the New Core of Russia and China. (p.169)

He later continues:

It’s not that America wants one rule for itself and another for the rest of the world, just that America needs special consideration for the security roles it undertakes inside the Gap. In effect, we don’t want fellow Core members applying their Kantian rule sets to our behavior inside the Hobbesian Gap.

He further explains the need for one set of rules to apply within the Core and another within the Gap.

This concern—how we get from the Core to the Gap will be the subject of my later posts. For now, a few notes concerning how some international lawyers may react to Barnett’s thesis as I’ve described it thus far:

Barnett’s conception of rule sets is more instrumentalist—ends driven—than how many international lawyers may talk about “law.” While “rule sets” and laws are both means to one or more ends (peace, stability, justice, etc.), the idea of law carries with it also the idea of “rights.” That is, choosing to follow or not follow a rule may be a strategic choice but for lawyers, breaking a law (such as, for example, the prohibition of torture) also involves denying a right that is intrinsic to an individual’s personhood. States also have certain rights, such as non-interference in domestic affairs except in certain extreme cases (genocide, etc.).

If Barnett does not distinguish between some rules (that are actually laws) and others (that are not) then his theory will be dissonant at various points with international law. (It is unclear whether or not he would separate his rule sets into such categories.) These divergences with accepted international law would particularly arise if there is one set of rules that apply within the Gap and another in the Core. While Barnett has stated that there needs to be laws that address problems such as torture, he has also written that the U.S. needs to have leeway in invading other countries in prosecuting the War on Terror. Which laws are worth saving (the proscription on torture) and which are not (some of the jus ad bellum rules) is an open question.

Moreover, explicit in Barnett’s analysis is the leadership role of the United States and the special treatment that it deserves. The relationship of hegemony to international law is one that has been of much interest to international lawyers and I will also consider that in a later post.

Barnett’s essay in Wired and his book provide a road-map for using “rule sets” to increase the zone of peace. Depending on how his theory is applied, though, one may inadvertently jettison law in favor of “rule sets.”

For another take on whether there need to be new rules for the evolving startegic landscape,, see the joint American Sociaty of International Law/ Council on Foreign Relations Roundtable on "Old Rules, New Threats."

I’ll return to these issues in later posts.

Pres. Bush's Budget and the WTO

Who says President Bush doesn't respect the judgments of international tribunals? While President Bush's "austerity" budget full of sweeping cuts is mostly a domestic story, two of his proposed cuts can be explained as an effort to bring the U.S. into compliance with WTO decisions.

First, and more obscurely, the budget calls for eliminating the so-called Byrd Amendment, a provision much hated by foreign companies because it transferred fees collected from foreign companies to their U.S. competitors. This provision had been declared a violation of WTO rules and President Bush's budget proposal is intended to bring the U.S. into compliance with that decision (as a bonus, the plan would also save the U.S. Treasury about $1.6 billion). Interestingly, President Bush is the one who wants to comply with the WTO ruling while Senator Byrd (a Democrat) is the one who is proposing that the U.S. refuse to comply.

Second, the budget plans serious cuts to U.S. agricultural subsidies, which would likely have been the target of negative WTO rulings in the future and certainly a major obstacle to the next round of WTO negotiations. President Bush's proposed cuts not only are drawing praise from abroad and from NGOs like Oxfam, but it also lays down the gauntlet for the E.U. to do the same.

International Legal Theory Gets Rational and Empirical

At first glance, the last thing international law scholarship needs is more theory. Yet, while there is plenty of IL theory, in some ways IL theory is relatively undeveloped. Most importantly, until recently, IL theory was unaffected by the rational-choice juggernaut that swept almost every other discipline, including IL's sister discipline of international relations.

But rational choice has arrived with a vengeance, as Eric Posner and Jack Goldsmith's recent book, The Limits of International Law, demonstrates in developing a rational choice approach to explaining both customary international law and treaties. Oona Hathaway, who comes to quite different conclusions about IL compliance than Eric Posner, also draws on rational choice assumptions in her most recent article Between Power and Principle: An Integrated Theory of International Law, although her theory "disaggregates" the state to focus on the importance of domestic institutions (a point Chris argued here).

Hathaway is also known for her reliance on empirical studies to buttress her claims, as Peggy explained here. The increasing importance of empirical methodologies can be illustrated in Andrew Guzman and Beth Simmons's recent article Power Plays & Capacity Constraints: The Selection of Defendants in WTO Disputes, which conducts an empirical study of WTO disputes to conclude that the "capacity" (e.g. the ability of a country to develop the trade litigation expertise) is more important than the relative poverty of the country in determining whether it will bring claims against more powerful and wealthy states in the WTO system.

In any event, it is hard to resist concluding that IL theory (at least in the U.S.) is trending inexorably toward rational choice assumptions, game theory models, and sophisticated empirical research.

Monday, February 07, 2005

Afghan War Crimes Survey

A report published last week by the Afghanistan Independent Human Rights Commission paints a bleak picture of the challenges facing post-conflict justice in that country. According to the report, 70 percent of survey respondents said they had been victims of what could be called a crime against humanity. Interestingly, however, only 40 percent of survey respondents favored prosecution of war criminals. Long-term peace and stability in Afghanistan require some form of justice. The question is what form it should take. The full text of the report can be found here.

Darfur, Rwanda and the Limits of International Human Rights Law

I wanted to return, briefly, to last week's discussion of Darfur. As Julian noted, the UN report concluded that, while crimes against humanity have occurred and should be referred to the ICC, the atrocities do not meet the definition of genocide under international law. Lay observers are scratching their heads over the legal distinction between certain criminal "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group" (from the Genocide Convention) and criminal acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack," (from the definition of crimes against humanity in the Rome Statute of the ICC) and how, as many international lawyers maintain, that distinction can possibly make a difference in terms of what the international community should do about it.

This technical distinction and the current squabbling over the ICC reference demonstrate the real limits of international law in the context of mass atrocities. Indeed, on the question of the Sudanese government's own obligations, the UN report tends to underscore the skeptical view that international law makes no difference in the behavior of bad regimes:

The Sudan is bound by a number of international treaties on human rights.
These include the International Covenant on Civil and Political Rights
(ICCPR), the International Covenant on Economic, Social and Cultural Rights
(ICESCR), the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Rights of the Child (CRC). The Sudan has signed, but not yet ratified, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. In contrast, the Sudan has not ratified the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the Convention on the Elimination of Discrimination Against Women. At regional level, the Sudan has ratified the African Charter on Human and Peoples’ Rights. As a State party to these various treaties, the Sudan is legally bound to respect, protect and fulfill the human rights of those within its jurisdiction.

So why, if Sudan is a party to all these treaties and the UN has concluded that violations of these obligations have taken place, is there any debate about what the rest of the international community should do? The international system is, at bottom, voluntary, and Sudan has voluntarily agreed to the most basic of human rights obligations. (And, on the question of genocide, most scholars agree that the illegality of genocide is one of the jus cogens norms in international law, i.e., an obligation which rises to the level of universality and can never be abrogated.) The simple answer to why bad regimes sign onto obligations they have no intention of meeting is that they can. Oona Hathaway in her excellent empirical examination of human rights treaties, Do Human Rights Treaties Make a Difference?, presents a framework for understanding why states sign, but do not comply with, human rights treaties, including the fact that rights abusive regimes may reap gains from the international community through mere accession to a treaty by appearing to "do the right thing." The harder question to answer is why the rest of the world lets them get away with it.

Rwanda, which was supposed to be the last "never again" moment for the African continent, offers some important lessons about this question. The central lessons of Rwanda have little to do with criminal prosecutions and everything to do with effective monitoring of warning signs of extreme social hatred, making sound international political decisions that apply coercive measures to perpetrators, and understanding the appropriate use of military interventions -- including effective rules of engagement in the midst of ongoing atrocities. In fact, Human Rights Watch, a great supporter of the ICC, published this list of the ten lessons learned about Rwanda; not one of them mentions prosecutions. The UN Report evaluating the Rwanda genocide was even more blunt: with a couple of thousand additional troops on the ground, and clearer rules of engagement, hundreds of thousands of lives could have been saved.

Viewed in light of the lessons of Rwanda, the ICC discussion about Darfur seems so clearly beside the point at this time. Darfur needs military intervention with teeth. There may be important legal reasons to preserve the distinction between genocide and other crimes against humanity. But it should not affect political responses to Darfur. As long as the Security Council is hamstrung because of obstacles thrown up by Russia and China -- both of whom have much to gain from their close relationships with the Khartoum regime -- the US and the EU should work together to bring about an effective non-UN-based military intervention.