War, Law, and Consistency

In discussing the Iraq War, many apologists for the Administration have picked up and discarded doctrines, methods of interpretation, and justifications, with alarming speed and with little concern for consistency. At the end of the day, if international legal rules concerning warfare are something they consider important, then they will have to enunciate a coherent view of what those rules are and where they came from.

That hasn’t happened yet, although Julian’s most recent posts made some observations that I would like to consider further.

Julian’s opening points can be essentially boiled down to this: international law matters in places like the U.K. because of enforcement concerns (such as through the ICC) or in Germany because of domestic political concerns. He then continues:

But the legality question matters far less in the U.S. because the domestic legality of the Iraq War is essentially undisputed (Congress authorized it, etc. etc.). The international legality of the Iraq War appears to have absolutely zero political significance (just ask John Kerry). Obviously, many people oppose the war, but the legality of the war is far from the most important reason they oppose the war.

This conflates legality with political expediency. Sure, U.S. political leaders may not worry much about international legality because American voters largely do not, but that in no way makes the U.S. action legal. Moreover, simply because the President met domestic legal standards for invading Iraq does not absolve the U.S. from its responsibilities under international law, responsibilities that we largely drafted at the birth of the U.N.

The next part of Julian’s argument is interesting for the way that it is a double-edged sword. He writes:

I am always struck by how formalist international lawyers can get sometimes with respect to interpreting the law governing the use of force. I wish sometimes they would be just as formalist with domestic constitutional and statutory law (where is that right of abortion in the Constitution anyway?)

As my comments to Julian’s earlier post point out, I am shocked by how conservatives jettison any aspect of textualism, originalism, or formalism the minute they discuss issues of international law and the use of force. All of a sudden we need not be so concerned with what treaties say and what framers meant but instead we should accept that there are “new rules” that are somewhere out there (even though no one else but the lawyers from the Office of Legal Counsel seem to be able to perceive them).

That is not “purposive” interpretation or viewing the Charter as a “living” text; it is, rather, tortured interpretation.

Take the idea that resolutions from either 1990 or 1991 could somehow justify the current Iraq War. The key resolutions, Resolution 678 from 1990 and 687 from 1991 are instructive in what each does or does not say.

Where in the 1990 resolution, or in any of the resolutions it cites to, is there anything about the authorization of the use of force to sweep Iraq for WMDs? Where is there anything besides specific resolutions concerning ousting Iraq from Kuwait? What Resolution 678 does have, though, is a grant of the ability to use force (an authorization “to use all necessary means”) to uphold Resolution 660 (the ousting of Iraq from Kuwait).

As for Resolution 687 from 1991, there are mentions of WMDs and missile capabilities but there is no operative language that authorizes the use of force. Not only is there no “all necessary means” language, there is an explicit catalogue of the means of implementing the language on WMDs. The method of implementation? Weapons inspections. If there was a consensus for “all necessary means” language it would have been there; such consensus did not exist (as has been reiterated constantly by members of the Security Council in the run-up to the current war) and so the language wasn’t there. You can’t use the language from the 1990 resolution because it is explicitly tied to ousting Iraq from Kuwait.

If anyone thinks that we should read these resolutions as authorizing the current war, then I would pose to them the question as to whether they would use such loose interpretational standards in domestic statutory construction (I wouldn’t).

As for Kosovo, as I have written before, I do not think there is consensus on humanitarian intervention and I, personally, do not see the NATO bombing of Serbia as one that was legal under norms of international law. I think the most honest analysis of this came from Professor Tom Franck of NYU who said that while we may view the act as morally legitimate (protecting an oppressed population), we cannot say that under the current set of norms it was legal. That means one of two things—either going forward we chould change the rules, or states that continue to act in this way face potential state responsibility. (I would note that there was an ICJ case by Serbia against the NATO countries, but it was dismissed in the jurisdictional phase, without a finding on the merits.)

Why can’t those who support the Iraq War take a similar approach? Why can’t they say we are acting because we think this is something that we must do, even if it is illegal. We will act and we will face the legal repercussions of our actions squarely because we do not want to take the rules of armed conflict and interpret them away into absurdities. We will act in this way because the world is a better place with these rules than without these rules.

That is an argument that I could respect. I may disagree with factual issues concerning the threat of Iraq (no WMDs), but, legally (and morally) speaking, that would be a position that at least would be consistent.

But consistency is in short order these days in Washington.

The Relevance of the Iraq War's Legality (cont'd)

Thanks everyone for commenting here. Although I have to run to class, I can't resist a quick response.

I think international law matters, even for the use of force, but what is interesting is why it matters. It obviously matters more in the UK, where the PM felt he couldn't act without legal authorization and where UK soldiers could be subject to the jurisdiction of the ICC.

Legality also matters because many foreign governments care a lot about legality. I would suggest that some of these foreign governments are selective about what kind of international legality they care about (France and Russia come to mind) but there are countries like Germany (that is to say, modern Germany) who can authentically claim to set their foreign policy on use of force within the framework of IL. They no doubt would have opposed the war whether or not it was "legal" but I don't discount that countries like Germany really believe that the international legality matters.

But the legality question matters far less in the U.S. because the domestic legality of the Iraq War is essentially undisputed (Congress authorized it, etc. etc.). The international legality of the Iraq War appears to have absolutely zero political significance (just ask John Kerry). Obviously, many people oppose the war, but the legality of the war is far from the most important reason they oppose the war.

Because it hasn't really mattered as a matter of U.S. law or policy, the discussion of the legality of the Iraq War is far less developed than it is in the UK. Specifically, the U.S. government ha not had to seriously defend the legality of the Iraq War.

I suppose most U.S. international lawyers would say it violates the UN Charter, but I do think there are real counterarguments. I am always struck by how formalist international lawyers can get sometimes with respect to interpreting the law governing the use of force. I wish sometimes they would be just as formalist with domestic constitutional and statutory law (where is that right of abortion in the Constitution anyway?) Is Chris absolutely sure what the intent of the Sec'y Council was at the various points during the Iraq crisis (in particular, with respect to the 1991 resolutions)? I suppose we can say: all parties now say they never authorized it, but what about at the time? If Iraq had breached any part of the 1991 resolutions ending the Gulf War, is Chris sure that no action could be taken in response?

In any case, there is that looming question of Kosovo. I just don't buy the post-hoc rationalizations for the rather aggressive use of military force there (that would be bombing Serbia into submission, than occupying an entire province indefinitely). In that case, there wasn't even a plausible claim of UN authorization and I am unsure why the use of NATO made everyone feel better. NATO openly stated it was not acting in self-defense. Sure, there was a humanitarian exception. Uh, where is that in the UN Charter exactly? Why isn't that the product of "tortured interpretation"? So why can't John Yoo and others say that there is the "suspected WMD" exception to the UN Charter? Sounds good to me and if you took a vote, I am sure it would get much more support.

Look, Kosovo may have been a good war and Iraq a bad one. But the "legality" is just not all that clear in either case. And international lawyers lose even more credibility among other lawyers and non-lawyers, I think, when they insist (like Sands does) that the Iraq War is obviously and blatantly illegal.

The Domestic Enforceability of ICJ Judgments (The WSJ Weighs In)

Today's Wall Street Journal has an interesting, essentially right, but somewhat overbroad editorial ($) on the upcoming Medellin case before the Supreme Court. Medellin, most of you no doubt recall, will consider the domestic legal effect of an International Court of Justice judgment finding the U.S. in violation of its treaty obligations under the Vienna Convention on Consular Relations. In particular, the ICJ has ordered the U.S. to provide review and reconsideration for foreigners (particularly Mexicans) who were convicted of capital crimes and sentenced to death but whose initial arrest violated their treaty obligations.

The Journal rightly identifies the core issue, which is not whether the U.S. violated the treaty (it did) nor whether it is bound by the treaty (it is). Rather,

[t]he danger here lies in the remedy. Letting the ICJ tell Texas how to run its courts would move the U.S. in the direction of the European Union, which has a supernational legal system to which national courts must bow. Not far down the line would be an ICJ ruling declaring the death penalty illegal and ordering Texas to get rid of capital punishment.

I think there is some truth to this conclusion, but it is overbroad. Is the Journal arguing that the ICJ could never tell Texas"how to run its courts" because this would automatically turn us into the EU? Does the Journal believe this slow transformation is happening when U.S. courts conform their interpretations of treaties to comply with NAFTA rulings (which is arguably more analogous to how the EU system go started anyway)?

My own view coincides with the views set forth in an amicus brief in Medellin that will appear on Monday signed by a number of law professors (including me). Let me just say here (without giving away the argument) that the real question is not whether an international court could ever have direct authority over domestic courts (they might in some circumstances), but whether the treatymakers (the President and the Senate) intended for that to happen when the ratified the Vienna Convention and whether Congress has agreed to allow such direct judicial enforcement. As the brief on Monday will explain (drafted by the estimable Paul Stephan at UVA), for a variety of reasons, this is almost certainly not the case for Medellin or any other foreigners seeking enforcement of ICJ interpretations of the Vienna Convention.

The Journal editorial also reveals that there is a battle going on between the State Department and the Justice Department over whether the U.S. government should also file a brief in support of Texas. This is actually a more interesting question in many ways. The U.S. has said it has an obligation to comply with ICJ judgments (if for no other reason because it wants other countries to do the same). Although compliance does not necessarily mean judicial compliance, it would be odd for the U.S. executive to fulfill its international duty to comply with an ICJ judgment by filing a brief in support of Texas, which presumably does not want to comply with the ICJ judgment.

One way to square this circle would be for the U.S. government to file a brief saying: "We believe the ICJ judgment is valid, binding, and it is our duty (as the United States) to comply. But we (meaning the executive) will take care of compliance through non judicial mechanisms and we agree with Texas that there is no authority for this court to order compliance with the ICJ judgment here. " I've explained in my past writings that the traditional mechanism for compliance would be for the President to call up the Governor of Texas and ask him to halt the execution or at least order a new hearing to consider whether the treaty violations made a difference in the conviction and/or sentence. Call me crazy, but I think this would do it and I don't see why, at that point, foreign countries could continue to complain.

Will they? I'm not as well-plugged in as the Journal or other much better known law profs. We'll have to see on Monday.

World Health Organization Watch: Today Tobacco, Tomorrow All Pharmas?

The World Health Organization is surely one international organization folks from all political stripes can support, no? Well, maybe...unless you are a fan of tobacco and/or the protection of IP rights for pharmaceutical companies.

On Monday, the WHO Framework Convention on Tobacco Control will go into effect. The Convention requires state parties to ensure tobacco sold in their countries have strong warnings and that advertising is limited or prohibited. The United States signed, not surprisingly, because it appears that the U.S. will have do very little to comply with this treaty given its already stringent controls on tobacco. Any non-smoker who has hung out in a Paris cafe, however, will wonder at France's audacity in signing. Still, can a world ban on tobacco be far behind?

Meanwhile, a coalition of non-governmental groups formally petitioned WHO to initiate a treaty to create Kyoto-style regulation of pharmaceuticals. According to the FT,

Member states should pledge to invest a percentage of their gross domestic product in medical innovation, and would be allowed to trade "credits" with others through a mechanism similar to that in the Kyoto protocol designed to reduce environmental emissions.

They should also consider redirecting funding away from a traditional model based on intellectual property protection, and encourage the use of open sourcing to stimulate the sharing of information among medical researchers.

A working draft can be found here. The basic idea is to try to shift the way pharmaceuticals are developed away from large corporations who acquire IP rights and who are able to then extract huge profits toward an "open source" government supported system. I strongly doubt this could be more efficient or more effective than the current system at developing new drugs, although it may end up making drugs cheaper and more accessible. Still, this is a very ambitious treaty, but my guess is that it is yet another global governance initiative that the U.S. will not be signing up for anytime soon.

Missouri Law School Symposium on Judging: Blackmun's Internationalist Legacy

Out here at the University of Missouri-Columbia we are hosting a symposium this weekend (Feb. 25-26), "Reflections on Judging: A Discussion Following the Release of the Blackmun Papers." The line-up of speakers includes judges (Duane Benton, 8th Circuit, Colleen McMahon, SDNY), scholars (Suzanna Sherry, Dan Farber, Ellen Deason, Ted Ruger, Greg Sisk, Larry Wrightsman, Joseph Kobylka, Chris Wells, Martha Dragich, Richard Reuben) and at least one Supreme Court watcher, Tony Mauro, discussing Blackmun's legacy, what we mean by judging, and what makes for "good" or "bad" judges. Full details are here. For those interested in watching, the panel on Saturday morning is scheduled to be taped by C-Span.

One aspect of Blackmun's legacy that goes largely overlooked -- and about which yours truly will be commenting on Saturday morning -- is the extent to which he was one of the Court's strongest "internationalists." In the context of judging, the term "internationalist" is generally applied to those who not only take seriously the need for efficiency in transnational business relations (See, e.g., Blackmun's majority opinion in Mitsubishi v. Soler) and our treaty obligations (See Blackmun's dissents in Alvarez-Machain and Sale v. Haitian Centers Council) , but also find space in constitutional jurisprudence for customary international law and the opinion of other courts on matters such as the death penalty. For a summary of how Blackmun thought the Court should treat international law and the "Opinions of Mankind," see his short essay, The Supreme Court and the Law of Nations, reprinted in the 1994 Yale Law Journal. I will blog more on this following the symposium.

Hegemony and International Law

Professor Geoff Manne of Lewis and Clark has written an interesting response to my previous post. The text of my post and his comment can be found here.

He begins by stating:
…hegemony IS internationalism, and thank god we're the hegemon. I don't say that out of some banal, jingoistic patriotism. I say that because in a (relatively) anarchical world, it ain't "international law" calling the shots, it's the guy with the big stick.

Professor Manne is correct in stating that hegemony is a form of internationalism. However, it sits on a continuity of many forms of internationalism ranging from empire, through multilateralism, and all the way to some sort of supranationalism where sovereignty is all but stripped away. Assuming for the sake of argument that globalization means that the U.S. needs some form of internationalist policy as opposed to isolationism, this leads to two questions: (a) is hegemony the form of internationalism that best suits our interests, and (b) if so, are we practicing hegemony in a manner that best suits our interests.

As I see it, (a) is academic because, for the time being, we are the hegemon: the U.S. sets the tone for international institutions and norms through its statements, its funding priorities, and through other state practice. So I want to go directly to (b): are we doing this in a strategically sound manner. And here, I would say that the answer as of late would be “No.” And my answer here relates to my caveat in (a), that we are the hegemon, for the time being.

Hegemony fades. Ask Venice; ask Spain; ask the United Kingdom. The overweening power that the U.S. has today will not last forever, and probably not for our lifetimes. This is not to relegate the future U.S. to minor power status or to claim that the U.S. is in absolute decline, but it recognizes that other powers—the E.U. and China and, to a lesser extent, Brazil, Iran, and Japan—will increasingly be rule makers as opposed to rule takers due to their increasing economic, political, and military strength relative to the U.S. And I deliberately put the strengths in that order, because in day to day affairs, it isn’t military strength that’s key, but economic power and political persuasion. We’re not going to bomb India into stopping software piracy or fire off some cruise missiles to open the EU to U.S. agricultural products.

So, if hegemony inevitably wanes, we should use our power now to define a system that will protect our interests in the long run. This is the difference between wise hegemony and predatory hegemony. Or, as Robert Keohane would ask, what type of institutions are we setting up for the period “After Hegemony?”

This is where many conservatives get it wrong. Due to knee-jerk anti-multilateralism, they miss the opportunities that we have in building institutions that ensconce our values in the international system. This was the genius of Dean Acheson and the other “wise men” architects of the UN and this is why Feith’s do-it-yourself attitude is poor strategic thinking. Wise hegemony uses multilateralism (and international institutions in particular) to secure the hegemon’s interests for the period after hegemony.

Professor Manne continues by stating that my

…argument rests on the assumption that the UN actually enforces, and that all other states follow, international law. It is the dream. But it isn't reality. States do whatever they want whenever they can.

Here, he not only misconstrues my argument, but the logic of multilateralism as a whole. I argue for the wisdom of using international institutions precisely because “states do whatever they want whenever they can.” Multilateralism, properly constructed, winnows the leeway of states doing “whatever they want.” If we build the institutions in a manner that reflects our values and interests, then we constrain states from doing things we don’t like (proliferate nuclear weapons, stifle trade) and promote behavior that we value.

Some conservatives like to use the UN and the use of force as the example proving that multilateralism doesn’t work. This is a straw man argument and it is more than a bit tiresome. The UN is comprised of dozens of departments and agencies covering as many issue areas. Moreover, there is a wide variety of other international institutions, global and regional, covering a multitude of issues. Oft-times conservatives (and liberals) complain about these institutions—the IMF, the World Bank, and the WTO come to mind—being too powerful, not too weak.

But let’s get back to this “states do whatever they want” argument. The WTO, for example, is clearly effective in its enforcement and states generally follow its rules (we sure do). So the issue isn’t multilateralism per se, but institutional design.

But this focus on enforcement measures misses the greater power of international institutions—the ability to frame the terms of debate. Let’s take the hard case: matters of national security. At first blush one may say that compliance with the UN Charter on issues of non-aggression is low, but it is by no means nonexistent. Rather, the Charter sets terms of debate, the expectations of what is or is not acceptable, and plays a role in the shaming of states that don’t follow its rules. The norms of the UN were effectively used by the previous Bush Administration in 1991 to rally a large coalition to push Saddam Hussein out of Kuwait. If the UN really was irrelevant, then why did the current President spend so much time with Security Council debates? Note that in circumventing the UN process we now have a war that is perceived by much of the world as illegitimate and unnecessary (where are those WMDs?) and we are largely going it alone, spilling our blood and spending our treasure because our actions are viewed as being outside of acceptable norms.

Multilateralism matters. We can use it to our advantage or we can ignore it at our own risk. We can build or reform institutions that help us but we cannot simply act as if we can go it alone. As Dr. Thomas Barnett had put it, Dirty Harry has to come clean, set aside vigilatism, and build lasting institutions if he wants a sustainable peace. (See also here and here.)

Professor Manne’s closing point is instructive about how some conservatives miss the point:

But we need not fully despair for lost liberalism. As Robert Kagan points out, liberalism has two, sometimes competing elements: 1) a reliance on rules and 2) the promulgation of liberalism (which is to say, intolerance for illiberalism). … the US, liberal stalwart hegemon that it is, is actively engaging in the latter…

And if the liberals would just realize that number 1 is impossible, but 1 out of 2 ain't bad -- we'd all be on the same page.

Liberalism (in the classic sense that Prof. Manne uses it here) is inherently rule-based. It is meaningless to say we have liberalism without some reliance on rules. How else would we have fair trade or a respect for sovereignty or the protection of individual rights (to property, to life, to political freedoms) if you did not rely on mutually agreed upon rules? The U.S. can’t enforce these norms everywhere or even in enough places that would make the world a secure place, even if only secure enough for our own national interest.

If liberalism matters, then rules matter. You can’t get (2) in any long-term sense without building up a respect for the rules in (1). And if conservatives would just realize that (2) is impossible in the long run without (1), then we’d all be on the same page.

Mexico Genocide Indictment Barred by Statute of Limitations

Mexico's highest court ruled yesterday that a 30 year statute of limitations nullified the indictment of one of its former presidents on charges of genocide. This appears to be another case (like the recent Bolivia indictment) raising the question of whether genocide can apply to a government's attack on a group of protesters (this time 45 deaths occurred and its not obvious whether an ethnic group was involved) but I'm also struck by another interesting legal aspect of the case.

Apparently, Mexico's prosecutors claimed that the ratification of the Genocide Convention in 2002 required Mexican courts to lift any statute of limitations on charges of genocide. But the Mexico court held that the "interpretation" attached by Mexico upon acceding to the convention allows Mexico to continue to apply the statute of limitations to genocide charges. This is a controversial practice in the U.S. as well because the U.S. has attached similar declarations (though not with respect to statute of limitations) to all of the major human rights treaties it has ratified (for a defense of this U.S. practice, see here). It is interesting that Mexican courts, like U.S. courts, have sided with the domestic lawmakers (the Mexican government) over the international ones on this tricky question.

Does the Legality of the Iraq War Matter?

Although the legality of the Iraq War under international law has been a subject of some interest among academic international lawyers, there is not much evidence that this question troubled American decisionmakers (does anyone remember John Kerry complaining about the legality of the Iraq War?). But the U.K. is another matter.

The “illegality” of the Iraq War has been used as a defense to criminal charges by protestors who broke into a UK military base. Moreover, the legality of the Iraq War could be important to UK soldiers charged by the new ICC (to which the UK is a party). For this reason Prof. Phillippe Sands’ new book, Lawless World, which its publisher describes as a “coruscating account of how the Bush and Blair administrations are breaking the law and trying to rewrite the rules ” governing the use of military force under international law is making waves in the UK.

This excerpt in the Guardian charges that the UK’s Attorney General, Lord Goldsmith, who is supposed to give independent legal advice to the UK Government, was leaned on by the U.S. and Tony Blair’s political advisors to deem the Iraq War legal under international law. Tory opposition leaders are already calling for a release of this legal advice and a parliamentary investigation.

This is a complicated issue. So I’m generally unpersuaded by polemics (like Sands’ book seems to be) suggesting the illegality of the Iraq War was such an easy question. (see this defense of the legality of the war here in the American Journal of International Law by the ubiquitous John Yoo). I’m similarly unsure about the Kosovo intervention, despite Peggy’s attempts to justify it here. I can’t help thinking that the only reason Kosovo is uncontroversial and the Iraq War remains controversial (among international lawyers) is that most international lawyers supported Kosovo but opposed Iraq on policy grounds. Put another way, do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal? I don’t.

Putting all this aside, for U.S. lawyers, the most interesting tidbit from Sands’ book is about future Legal Adviser of the State Department John Bellinger. Sands writes:

On February 11 2003, Lord Goldsmith met with John Bellinger III, legal adviser to the White House's national security council. The meeting took place in the White House. An official told me later: "I met with Mr Bellinger and he said: 'We had trouble with your attorney; we got him there eventually.'"

Sounds like a good guy.

Israel takes on the ICJ (Updated)

Israel's State's Attorney Office has issued a report rejecting the International Court of Justice's advisory opinion that Israel's construction of a wall dividing Israelis and Palestinians violated international law. The opinion held that:

The ruling last year by the International Court of Justice on the separation fence between Israel and the Palestinians was based on erroneous and outdated information...

The Israeli State Attorney's Office concluded that:

The lack of a factual infrastructure and the superficiality of the analysis constitute a substantial blow to the legal validity of the international court's adamant findings and the legitimacy of its conclusions.

I don't have the 170 page report (nor do I plan to read it, even if it is in English) but if there really are factual errors in the ICJ's analysis, this is yet another reason the ICJ should have avoided issuing an advisory opinion here, where the facts (e.g. where the wall went and who owns which territories) are enormously important.

UPDATE: The factual mistake in the ICJ's decision, according to the Israeli Ministry of Foreign Affairs sounds substantial.

According to the state prosecution, the judges assumed that the fence would annex 16 percent of the West Bank to Israel, whereas the actual fence route authorized by Attorney General Menachem Mazuz only includes 3.3 percent of the West Bank. Furthermore, the state argued, Mazuz's approved route did not include three enclaves that would have pushed the fence deep into West Bank territory in the areas of the Ariel, Ma'aleh Adumim, as well as around the Gush Etzion bloc, located south of Jerusalem.

Whoops!

Douglas Feith and the Law of the Jungle

So Douglas Feith doesn’t mind setting aside sovereignty at times. Other countries’ sovereignty, that is. And when the U.S. decides it should be set aside, without having to resort to U.N. approval.

This is not internationalism, it’s just hegemony. By saying that Feith and the international law community may not have that many differences, Julian’s post makes a mole-hill out of a mountain.

Feith walks an impossibly fine line: he speaks of the “U.S. devotion to a well-ordered world of sovereign states” but also of the need to set aside sovereignty when there is a risk to international security. The problem is who gets to decide that a risk warranting such an extreme act exists.

Since sovereignty is at the core of the international system, the system is designed to protect state sovereignty and place the burden on those who wish to pierce it. Thus, while international law may have much to say about human rights, it is still reticent on the topic of military intervention in order to protect human rights. Such military excursions, riding roughshod over a state’s sovereignty, must be approved by the U.N. Security Council. That is the mechanism drawn up by the U.S. at the founding of the U.N. and it is still the consensus of the international community but it is not what Feith seemingly envisions as part of the new rules.

Perhaps Feith doesn’t want the U.S. to be burdened by having to get Security Council approval. While there may be extreme examples that may warrant intervening without U.N. authorization, he hasn’t shown that this has been a problem in the post-Cold War world (the Iraq example is not persuasive in this regards). Should we toss out the U.S. designed U.N. mechanism for Feith’s do-it-yourself approach in deciding when sovereignty should be set aside?

When assessing a proposed rule, it is usually a good idea to consider what would happen if someone else acts on the basis of this new rule. China, perhaps fearful of new Taiwanese military acquisitions upsetting the distribution of power in the Pacific, uses this new “rule of the road” to pre-emptively strike Taiwan (which to them isn’t even really a state anyway). India gets worried over Pakistani proliferation and, citing this new rule of the road, decides an immediate bombing campaign is in order. Perhaps Iran decides Israel’s nuclear capability, coupled with the intransigent “Palestinian Question” destabilizes the region too much. Pick a scenario. Under Feith’s rule, any of these actions could be justifiable, if not legal.

One may argue that, no, Feith meant only “good” states (human rights respecting, democratic) could employ this rule against “evil” states (terrorist supporting, rights abusing). But of course the problem is that one man’s terrorist is another man’s freedom fighter and each of these states sees itself as good and the other as evil. And, in Feith’s formulation, there is no recourse to the decision of the international community as a whole; there is no external check. (A coalition of the willing is no check.) In a do-it-yourself system everyone can claim to be good and argue that the other is evil and just do it.

The problem with Feith’s rule is that it fosters what he fears: a world of aggression and instability. Arguing that the U.S. can set aside another state’s sovereignty at will (regardless as to whether it has some allies on board) opens a Pandora’s Box for other states claiming the same right. This is not a rule of the road, it is the law of the jungle.

The U.N. isn’t perfect, but it’s definitely better than that.

Can Killing 60 People Constitute Genocide?

An email asks about the Bolivia genocide indictment:

"Why would you think that the repression of 60 people over natural gas would constitute genocide? You're the lawyer -- tell me."

I take it that the email is skeptical that genocide could occur where only 60 people were killed and where the purpose of the repression was to promote natural gas development. These are both good points and I certainly didn't mean to opine on the merits of the indictment. I am neither an expert on the Genocide Convention (Peggy, Chris, help??) nor am I familiar with the facts of the case in Bolivia, but, as the email points out, I am a lawyer.

So let's go to Article II of the Genocide Convention:

[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group

Under the text of the Article II, by ordering the killing of 60 Bolivian Indians (as I believe the case in Bolivia charges), the ex-President's actions could be found to meet Article II(a). But the real core of the Article is to prohibit actions with the intent to destroy a national, ethnic, racial, or religious group. No minimum number of deaths would be needed to constitute genocide, but, for obvious reasons, it would be easier to prove "intent to destroy, in whole or in part" a group if the alleged genocide was aimed at a large proportion of that group.

I suppose that the case in Bolivia might try to bring in the natural gas development plans as part of the intent to destroy the Indian group and the repression and killings as only one incident in a larger plan. This seems possible, but ultimately, it seems implausible to me that this could be proven with any certainty.

Still, while "genocide" is an international crime, countries like Bolivia may have defined the crime differently. The indictment here is brought in Bolivian court and there is no requirement under the Genocide Convention (I don't think) to limit the strictness of the Genocide definition.

The real practical lawyering here will turn, as I suggested, on the question of extradition from the U.S. The U.S. has agreed in the Genocide Convention not to refuse extradition of individuals charged with genocide (as defined in the Convention). Presumably, the ex-President will try to argue that this whole indictment is simply a "political offense" for which the U.S. is not obligated to extradite. And here, he might usefully attack the Bolivia indictment on the grounds the email suggests: that this is not a plausible allegation of genocide under the Convention. This decision thus will ultimately be made by the U.S. government, which apparently has not even noticed this indictment has occurred (scroll down for the State Dept Spokesman's non-response to the question).

Wyoming Meets International Law

One of the things I've grown to love about blogging are the random little stories you come across on the internet that you would have never found before. This amusing account of Wyoming Senator Mike Enzi's town meeting back at home in Casper, Wyoming that should remind high-minded international lawyers that international institutions aren't all that popular back (literally) on the ranch. Among the questions posed to Sen. Enzi by his constituents:

Judy McCullough of the Powder River Basin Resource Council asked if Congress would be voting to remain in the World Trade Organization, because she heard that the renewal comes up every five years.

The WTO, she said, overrides the U.S. Constitution.

Likewise Maureen Emrich asked about the Law of the Sea Treaty, which she said would turn over U.S. sovereignty to the United Nations.

Maybe this little exchange goes some of the way toward explaining to baffled foreigners some of the more anti-internationalist tendencies of U.S. foreign policy?

ICC Watch: A Delicate Situation in Uganda

Ugandan peace mediators are continuing to complain about the ICC's interference in their efforts to broker a peace treaty. As Reuters reports:

Uganda has offered amnesty to Lord's Resistance Army (LRA) rebels, but the prospect of indictments by the international court has stopped some top commanders surrendering, along with hundreds of children they have kidnapped during the conflict, mediators said on Tuesday.

"The International Criminal Court (ICC) just wants to prove itself at the cost of peace, and they seem not to care," leading mediator Betty Bigombe told Reuters. "I have told the prosecutor that the moment they issue arrest warrants, I will stop the peace process."

As I pointed out here, this is the first test of the ICC Prosecutor's political judgment. Like it or not, an investigation here would have serious political consequences and needs a careful handling. As the U.S. has argued all along, the ICC needs to make political as well as legal decisions. Choosing between going forward with arrest warrants here and backing off to try to preserve a peace agreement is just such a decision.

Debating the Domestic Enforcement of ICJ Judgments

The Supreme Court is poised to consider the domestic legal effect of a decision of the International Court of Justice in Medellin v. Dretke (set for argument in March). The Columbia Law Federalist Society and the Columbia Journal on Transnational Law held a talk yesterday between Professors Curtis Bradley (of UVA and now Duke) and Lori Fisler Damrosch (of Columbia) which was live-blogged by a devoted (and unbelievably fast typing) law student. Prof. Bradley recently left the State Department's Legal Adviser's Office and Prof. Damrosch has filed an amicus brief in the case arguing that U.S. courts are required to enforce the ICJ's judgment so both know as much about this topic as anyone.

This is a complicated issue and I have many, many thoughts on this topic, in fact way too many for this blog post. For now, let me point you to my work on this question here and here . Additionally, this brief summary by Prof. Bradley provides a good way of thinking about this question.

Douglas Feith Explains the "Rules of the Road"

Card-carrying "neocon" Douglas Feith, the Undersecretary of Defense for Policy (a position in some ways analogous to Stephen Krasner's position), delivered an important address to the Council on Foreign Relations last week. In it, he offers a re-definition of sovereignty subordinated to liberal values that Krasner may or may not agree with. He stated:

As the enormities of genocide and other acts of gross inhumanity perturbed established ideas about international law, weapons of mass destruction now challenge statesmen of the civilized world. Even a small and poor state may now be in a position to produce the means to cause devastation to other people -- damage far beyond the ability of such a state ever to remedy or recompense.

The world has decided that sovereignty shouldn't protect a government perpetrating large-scale crimes against humanity within its own borders. Before us all now hangs the question of how long-standing ideas about sovereignty can be squared with the dangers of biological or nuclear weapons. Should governments with troubling records of aggression, support for terrorism, human rights abuses and the like be allowed to invoke sovereign rights to protect their development of catastrophic weapons that threaten the sovereign rights of others in the world? This is a question for which there is no simple, objective answer.

He then goes on:

To contemplate that question is to come to understand why the United States cannot possibly win the war on terrorism by military means alone -- or by itself alone. The United States can win the war -- it can defeat terrorist extremism as a threat to our way of life as a free and open society -- only through cooperation with allies and partners around the world.

Finally, he sums up:

Our nation's most basic interest is to protect the freedom of the American people--our ability to govern ourselves under the constitution. The sovereignty of the United States is another way of referring to this freedom. The United States strengthens its national security when it promotes a well-ordered world of sovereign states: a world in which states respect one another's rights to choose how they want to live; a world in which states do not commit aggression and have governments that can and do control their own territory; a world in which states have governments that are responsible and obey, as it were, the rules of the road.

If you substitute "human rights" for "weapons of mass destruction" and "international law" for "the rules of the road", I think you have a vision of global order not all that far from mainstream internationalists. Perhaps the biggest difference, which isn't addressed in this speech, is that Feith does not see international institutions as the central or even basic mechanism for promoting this liberal vision. Rather, it will be the U.S. working as "partners" with other like-minded sovereign states. Still, as a matter of basic principles, this vision shares more with the Bush Administration's critics in the international law / human rights community that those folks probably want to admit.

Conservatives and International Law

Last week, a U.N. committee adopted a resolution recommending the General Assembly adopt a declaration against human cloning. The resolution grew out of an earlier proposal by Italy (supported by the Bush Administration) for an international convention to ban human cloning. I don’t have anymore to say about the merits of banning human cloning by international treaty than I do about the merits of reducing global warming. But I do think this kind of conservative activism on the international scene reveals a tension in the modern American conservative movement over that movement's attitude toward international law and institutions.

A number of conservative pro-life NGOs, using tactics pioneered by their liberal counterparts, worked hard to get the U.N. to support a ban, and although there is apparently little prospect of an international treaty, such a treaty was the logical and avowed goal of the NGOs’ advocacy at the UN. Contrary to Bradford Short’s implication, even a declaration of the U.N. General Assembly that human cloning should be prohibited could constitute evidence (maybe even strong evidence) of customary international law. So here is an example of conservatives trying to harness the international law and institutions for their particular policy goals.

The conservative NGOs’ activism sparked an interesting exchange at the Corner between those who takes the traditional, “we should not legitimize the U.N.” view, and those who take the “why not get the U.N. to do something right for a change” view And this reveals an important question for conservatives:

Should conservatives oppose all expansion of international law and institutions on principle (say because they threaten U.S. sovereignty) or should they simply oppose those particular international laws and institutions that they believe represent bad public or moral policy?

In other words, should conservatives adopt the flip side of the kneejerk “internationalism for internationalism’s” sake view that I criticized here? In my view, kneejerk “sovereignty for sovereignty’s sake” is no more persuasive than kneejerk internationalism. Conservatives might have some predispositions against certain international institutions, sort of in the way they might have suspicion of the federal government vs. the states. But even conservatives need to take international law and international institutions seriously and to consider endorsing particular international mechanisms on a case by case basis. This might mean yes to the WTO, but no to Kyoto. But it cannot mean "no" for no other reason than it involves joining an international institution or complying with international law.

The conservative movement's recent mobilization against ratification of the Law of the Sea Treaty is beginning to show signs of this kneejerk sovereigntism. While I do think there are plausible policy arguments against the Law of the Sea, I do not believe "losing sovereignty" is one of them. This type of argument is Pat Buchananesque, and I would be disappointed if conservative publications like NR head down this same path.

Bolivia Indicts Ex-President for Genocide

Bolivia has indicted its ex-President Sanchez de Lozada for genocide, apparently due to his responsbility for the deaths of some 60 Bolivians protesting plans to develop and export natural gas. Lozoda is apparently living in the U.S. but there seems no basis for the U.S. to reject extradition under this 1996 extradition treaty with Bolivia. If these charges are for real, perhaps Illinois Wesleyan University will retract the honorary degree they conferred on Sanchez de Lozada?

US Troops in Iraq: Likely out of Reach of the ICC

Julian asks the intriguing question, if the interim Iraqi government has joined the ICC, will that expose US troops to potential investigation and/or prosecution for past and future conduct? The short answer is probably not. There are several reasons. First, under the ICC statute, if Iraq is a state party (and it's not clear from the brief statement reported in the press last week whether that is the case) the Court only has jurisdiction over conduct in Iraqi territory beginning on the date it becomes a party. The only exception would be if Iraq were to sign a "special declaration" agreeing to the jurisdiction of the Court beginning on July 1, 2002, the date the ICC came into force.

Second, the US may be de facto exempt as the result of a SOFA (Status of Forces Agreement) between it and the Iraqi government. At the time of the hand-over of sovereignty in June 2004, there was some discussion about the terms of such a SOFA, though I haven’t seen discussion that it was actually concluded. If there is a SOFA, under Art. 98(2) of the ICC statute, the Court would not be permitted to proceed with a request for surrendering US troops to the Court, as such a request would require Iraq to violate the terms of an international agreement. (This is why Julian referred to it as an "Art. 98 agreement".)

Third, the US may also be protected from prosecution by the terms of the multinational force, which is currently operating in Iraq under Chapter VII authority of the Security Council. Art. 16 of the ICC statute prohibits the Court from proceeding in any matter where the Security Council has requested it (for up to 12 months) not to proceed. The Security Council has in the past adopted two blanket resolutions (Res. 1422 (2002) and Res. 1487 (2003)) calling on the ICC not to exercise jurisdiction in any UN operation under Chapter VII. The US withdrew its attempt to extend these resolutions last summer after it become clear other permanent members threatened a veto. However, the US might still be able to argue that the terms of the MNF deployment described in Res. 1546 and the letters from the US and Iraqi representatives accompanying that resolution (including the statement in the US letter that the MNF operate in a framework “in which the contributing states have responsibility for exercising jurisdiction over their personnel”) meet the requirement of Art. 16 and preclude ICC jurisdiction.

Finally, Art. 17 of the ICC statute requires “complementarity.” That means if a local or national investigation or prosecution of the conduct at issue is taking place, the Court is prohibited from exercising its jurisdiction. The only exception is where the state is “unwilling of unable” to exercise the jurisdiction. The US military investigations into and subsequent prosecutions of abuses at Abu Ghraib under the Uniform Code of Military Justice, for example, would likely trigger Art. 17 and halt effective jurisdiction of the ICC.

U.S. Concludes CAFTA Environmental Side Agreements

The U.S. announced Friday that it has concluded the Environmental Cooperation Agreement supplementing the environmental provisions of the Dominican Republic-Central American Free Trade Agreement (DR-CAFTA). Unlike other environmental side agreements, this agreement establishes a permanent Environmental Cooperation Commission composed of permanent representatives from the environmental agencies of each country. Moreover, in a nod toward criticisms of lack of transparency, the Commission will hold public hearings of its meetings and seek input from private businesses and organizations.

Is this all window-dressing? Maybe. But it does represent two important trends for these kinds of trade agreements: more and more public disclosure of internal decisionmaking and increased reliance on agency-to-agency administrative cooperation.

UN Refugee Chief Resignation: Accountability at Work?

UN High Commissioner for Refugees Ruud Lubbers resigned his post over the weekend, after the London Independent (sub. req'd) last week released details of an internal UN investigation into allegations made by a senior female UN official that Lubbers had sexually harassed her. Lubbers continues to deny the allegations, but Kofi Annan appears to have accepted Lubbers' resignation after conferring with legal counsel. Although Annan himself had rejected the findings of the internal report, completed in July 2004, it apparently includes detailed statements by other women who had claimed to be harassed and subject to intimidation and fear of retaliation by Lubbers. Just as troubling, the report also noted that Lubbers attempted to abuse his authority to influence the outcome of the investigation.

Given the details of the report, Lubbers' resignation appears to be the right thing for the UN. But it shouldn't end here. The UN should share the results of the investigation and take whatever disciplinary or legal steps are available to send a message that the international organization charged with upholding human dignity takes seriously the dignity of women in the workplace.

Spain Approves EU Constitution

77% of Spanish voters approved the EU Constitution in a referendum yesterday, in the first of at several national referenda to be held across the continent to approve the new charter. The Constitution must be ratified by all 25 EU member states by November 2006 in order to go into effect. TransAtlantic Assembly has this post linking to domestic debates around Europe on the constitutional process.