Saturday, April 02, 2005

Security Council Resolution Referring the Darfur Situation to the ICC

The text of the resolution, as well as a summary statements of Security Council members on the resolution, is here.

The resolution passed 11-0-4. The four abstentions were Algeria, Brazil, China, and the U.S. The technique of not necesarily supporting something but not preventing it either by abstaining has been a technique that has become more common in the Post-Cold War Security Council.

The resolution was enacted under Chapter VII on the UN Charter, the section of the Charter concenring breaches of peace and sucurity, and consequently could require states to comply with the resolutions amndates. The text of the resolution was parsed by various speakers at this weekend's Annual Meeting of the American Society of International Law. While it is clear that the resoltuin required Sudan and other parties to the conflict to cooperate, it is unlikely that third paty states (such as the U.S.) are actually required to do anything. Note, in particular, the wording of operative paragraph 2 (I have emphasized certain words:

“2. Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

The contrast of saying Sudan shall do something while other satets are simply urged was quite possibly one of the key bargaining points. Regardless as to whether third party states are required to cooperate, one would hope that they would, as successful prosecutions are in everyone's (including the U.S.'s) interest (well, except perhaps for those Sudanese who committed genocide or war crimes...).

Now that the ICC has received an important referral from the Security Council, it will need to show that it is up to the task of taking on such big cases. And let us hope it gets the cooperation it will need to achieve a just result.

Thursday, March 31, 2005

US Agrees to Darfur Referral to ICC (?!)

Suzanne Nossel at DemocracyArsenal has posted a news report stating that the US has agreed to let the ICC handle the trials of the crimes in Darfur. An ICC referral is a topic that we here at Opinio Juris have debated at length. See here, here, and here for only three examples (other links our within these previous posts). Following is the news report, as spotted by Democracy Arsenal. As the report states, this deal has not yet been officially announced; we'll see what happens when the time comes for public announcement.

Washington will let ICC hold Darfur trials: report

Last Updated Wed, 30 Mar 2005 23:45:07 EST
CBC News

WASHINGTON - The United States has agreed to let the International Criminal Court try people accused of committing war crimes in Sudan's Darfur region, a news report says.

Washington had strongly opposed holding the trials at the UN court in TheHague, but agreed to a compromise on Wednesday, the Associated Press reported, citing officials from the administration of President George W.Bush.

The United States doesn't support the court because it says it fears political enemies might launch frivolous or politically motivated prosecutions against U.S. citizens.

The officials, who asked not to be named because the deal hasn't been made public, told the news agency the compromise includes guarantees that the ICC could not prosecute Americans deployed in Sudan.

The compromise marked the latest development in drawn-out efforts by the Security Council to deal with the crisis in Darfur.

Fighting between government-backed militias and rebels has killed about 180,000 in the region. As many as 350,000 people may have died of pneumonia, diarrhea and malnutrition and more than 1.2 million have been driven from their villages in the past 18 months alone.

Human-rights groups and other observers - including former U.S. secretaryof state Colin Powell - have condemned the violence as genocide.Many have urged the UN to deploy a peacekeeping force to quell the world's worst humanitarian crisis.

But discussions at the UN's Security Council have repeatedly been stalledby political wrangling, as the deaths continue.On March 29, the Security Council voted to impose a travel ban and freezeassets of people who commit atrocities in Darfur.

A few days earlier, it unanimously approved a resolution to send 10,000 peacekeepers to southern Sudan - but the troops won't be going to Darfur.

Opinio Juris Converges on Washington D.C.

It looks like Opinio Juris will be temporarily moving to Washington D.C. over the next few days, more specifically the Loews L'Enfant Plaza Hotel where the annual meeting of the American Society of International Law is being held. If you see one of us there, don't be shy about pulling us aside and telling us how wonderful you think this blog is. We (or at least I) might be flattered enough to buy you a drink.

Cambodia Moves to Prosecute Khmer Rouge

This week Cambodia moved closer to setting up an international tribunal to try war crimes committed by the notorious Khmer Rouge regime. The genocide of Pol Pot and his associates has been documented by numerous groups, most notably by Yale's Cambodian Genocide Program. More wrangling over funding and structure of the tribunal remains, but it will likely be a "hybrid" tribunal with both Cambodian and international judges located in the Hague. One interesting question: why does Cambodia need an international tribunal at all here? Is it because of local politics or is it because the international community has an interest due to the scale of the crimes?

More U.N. Sex Scandals

The head of the U.N.'s Electoral Assistance Division is being accused of permitting or creating an "abusive" environment full of sexual innuendo and intimidation in a recent preliminary report commissioned by the U.N. Sounds like fairly standard hostile workplace environment claims, except the U.N. is not subject to U.S. sexual harassment laws. Indeed, it is unclear exactly what laws would govern such complaints, which is in a way unfair to the accused as well because they don't exactly know what rules they are operating under.

Wednesday, March 30, 2005

Private v. Public Internationalism

Julian's earlier post about his experiences at the Vis International Arbitration Moot competition got me thinking about the rather strained ways in which international lawyers continue to cling to distinctions between private and public interactions, a reflection of an unnecessarily rigid "private v. Public" jurisprudence. (Okay, I will admit his post also got me thinking about my semester in Vienna as an undergrad...But that is another story.) These distinctions between private and public transborder discourse have become less and less meaningful in the past few decades. (In some respects, it is a development that could be viewed as "going backward" to a time when the distinction mattered very little in the discourse between nations and their citizens.) I suppose there is a way you can distinguish the value of two law students from private law schools in different countries from sharing beers and two government lawyers, or -- gasp! --two supreme court justices sharing that same cross-cultural beer. But it is a distinction without a difference. When I, for example, as an employee of the state of Missouri engage in a professional exchange with a colleague at a public university in Australia, is that a public or private act? Is the university of Missouri summer program in South Africa (done with Univ. of Western Cape, also a state-funded university) a government-to-government program? I would extend Julian's praise of the Vis program to these kinds of exchanges. I and our our students gain from them, whether the subject being discussed is how to structure public welfare benefits or private contracting rules.

It is certainly the case that a great deal of the work of multilateral institutions is to facilitate the international flow of capital, goods and human beings (WTO, ITU, UNHCR, ICAO, etc.), all of which could be construed as both "private" and "public" law matters in that they involve rule making for individuals, corporations , governments and international institutions. It is therefore quite limiting to say that governments acting in cooperation with one another internationally should be doing so only to the extent that it facilitates private acts. A lawyer on the staff of ICAO, for example, is as likely to have contacts with FAA agency officials as she is to have contacts with United Airlines, or with a state-owned airline. As we interact with one another, we not only learn new things and gain critical distance on our own legal system, the process of interaction itself creates networks --whether you want to call them "transnational networks" or "epistemic communities"-- through which new norms of behavior emerge. That is what legal internationalism looks like, whatever the label.

New Progressive/Democrat Foreign Policy Blog

There is an excellent new foreign policy blog called Democracy Arsenal that is focused not only on current issues in international affairs but also on elucidating a progressive foreign policy. The bloggers have experience in government service, political campaigns, NGOs, and private enterprise. I know one of the writers, Suzanne Nossel, I think her writing is incisive and intelligent. See her recent column on liberal internationalism at the Center for American Progress website or her article in Foreign Affairs as a couple of good examples of her work.

More generally, I like Heather Hurlburt’s post on ten steps to get the Democratic Party back on the map on foreign policy and I think that’s a good place to start to get a sense of what Democracy Arsenal is about.

Welcome to the Blogosphere!

Tuesday, March 29, 2005

Oil-for-Food Update: Annan Exonerated Though Accountability Still an Issue

In its Second Interim Report, the Volcker Commission has exonerated Kofi Annan of any wrongdoing in relation to the award of a $10 million dollar contract to Cotecna, a Swiss company that employed his son, although he report does question Annan's handling of the affair. The BBC report is here.

According to CNN:

"There is no evidence that the selection of Cotecna in 1998 was subject to any affirmative or improper influence of the secretary-general in the bidding or selection process," a statement accompanying the report said.

"Based on the record and lack of evidence of impropriety, it is the finding of the committee that Cotecna was awarded the contract in 1998 on the ground that it was the lowest bidder."

But the report found that Annan's son, Kojo, deliberately tried to conceal his relationship with Cotecna.

"After the media disclosed in January 1999 his relationship with Cotecna, Kojo Annan actively participated in efforts by Cotecna to conceal the true nature of its continuing relationship with him," the statement said. "He also intentionally deceived the secretary-general about this continuing financial relationship."

It added, "Significant questions remain about Kojo Annan's actions during the fall of 1998 as well as the integrity of his business and financial dealings with respect to the oil-for-food program.

The UN was criticized for being lax in not asking Cotecna to submit a bid that would have shown the financial strains on the company at the time. The Volcker Commission also found that there was improper shredding of documents by Secretary General Annan’s chief of staff, after Annan had ordered documents to be preserved.

Which goes to show that the UN is like any other large organization, such as a government or a corporation: it is susceptible to abuse by its insiders. What comfort we can take from this, though, is the sense that the UN is cleaning house and increasing the levels of accountability that should be expected from it.

On the topic of accountability, more generally, see this post from Suzanne Nossel at DemocracyArsenal on responding to the UN sex scandal.

Hotel Guantanamo? Detainees Can Check Out, but They Can Never Leave

My ubiquitous colleague Eric Freedman, who has in the past 10 days testified on the Terry Schiavo case before Congress and consulted in the Medellin case, passes along this info about yet another one of his cases. Judge Henry H. Kennedy of the D.C. federal district court has granted a preliminary injunction preventing the Defense Department from transferring a group of 13 Yemeni nationals (whom he represents along with Covington and Burling) being detained in Guantanamo Bay until their habeas claims are fully resolved in federal court. It may seem odd that the lawyers for the Yemenis are trying to STOP the U.S. government from transferring them OUT of Gitmo, but the fear is that they will be abused or tortured in their home countries.

If anything, this order is a reflection of just how much the U.S. executive branch has lost credibility with the federal courts. The Defense Department offered sworn statements by high-level officials pledging that the U.S. government would not transfer detainees to places where they would not be treated humanely. This was not good enough for the federal judge, who held that allowing the transfer of detainees would extinguish their right in habeas to challenge their executive detention.

So the Defense Department is pretty much stuck. It is unclear under current law how long it can continue to detain aliens at Guantanamo. But it is now clear that under current law, they will not be given the discretion to clear out Guantanamo either.

The full order from Judge Harold Kennedy follows below:

GEORGE W. BUSH, et al.,
Civil Action 04-1254 (HHK)

For the reasons stated in the court’s memorandum docketed this same day, it is this 29th
day of March, 2005, hereby

ORDERED, that Petitioners’ motion for a preliminary injunction is GRANTED; and it
is further

ORDERED, that Respondents shall provide Petitioners’ counsel and the court with 30
days’ notice prior to transporting or removing any of Petitioners from Guantánamo Bay Naval
Base; and it is further

ORDERED, that this order shall remain in effect until the final resolution of Petitioners’
habeas claims unless otherwise modified or dissolved.

Henry H. Kennedy, Jr.
United States District Judge

More Uninformed Predictions On Medellin

Having failed to motivate myself to get down to D.C. for oral argument in Medellin, and being too cheap to shell out the money for an instant transcript, I will have to content myself with reviewing the several very interesting press accounts of the argument at SCOTUSBlog, Slate,, and the NYT. All of these accounts seem to agree that the Justices’ questions reflect no consensus on what to do with what is becoming a very procedurally messy case.

All of these accounts, however, do suggest that the Justices are not thrilled with the idea of staying the case while the state court proceeds, preferring either the “DIG” the case (dismiss, cert being improvidently granted) or reaching the merits of the case. This means maybe I was wrong in thinking that Texas was gambling by opposing the stay motion. Ordinarily, courts don’t like to reach out to decide cases with complex and difficult cases raising important constitutional issues if those cases could be decided elsewhere. This is why Medellin’s stay motion seemed like a sensible strategy. But this is the Supreme Court of the United States. Deciding complex constitutional cases that they don’t have to decide and that might otherwise be left to the states or Congress is exactly what this (or any) Supreme Court loves to do.

My initial view, after the Government’s brief was filed, was that the Court would dismiss the case and avoid the constitutional and statutory interpretation dilemmas raised by the parties in this case. The various accounts from yesterday do not lead me to change my initial prediction and also suggest strongly that no stay will be issued. The only question now seems to be whether the Court will “DIG” the case or whether they will reach out and decide the merits. Although I would prefer the Court to reach the merits and adopt the views of Texas, the U.S., and the brief of the Seven Law Professors (and perhaps cite articles by some of those brilliant professors) that treaty claims cannot be the basis for a COA giving federal appellate jurisdiction, it seems like “digging” the case is the most responsible thing for the Court to do here.

UPDATE: My colleague Eric Freedman, who knows everything there is to know about these sorts of things, points out that the Court has another option besides the ones discussed above. They could G.V.R. (grant-vacate-remand) the case back to either the Fifth Circuit or the federal district court in light of the U.S.G.'s intervention. Unlike "digging" the case, this would vacate the Fifth Circuit's opinion in this case.

The only problem with this option is that it is not at all clear if the Fifth Circuit's opinion in this case is wrong, even in light of the S.G.'s brief and the President's executive order. So vacating that opinion may not be what the court wants to do if they want to remain agnostic on whether or not there is indeed a federal judicial remedy for Medellin here. On the flip side, "digging" the case would essentially leave in place a decision going the other way on the question of a federal judicial remedy.

So maybe they should reach the merits after all...

UPDATE No. 2: I've changed the last sentence of the original post to correct a misstatement I made that Carlos Vazquez pointed out to me. No one is arguing there is not federal habeas jurisdiction at all, for a treaty based claim (that was my original misstatement), rather that federal statutes now limit appeals from federal district courts to constitutional rather than statutory and treaty based claims. A small but important difference.

Monday, March 28, 2005

Does International Law Threaten the U.S.?

Professor Barry Carter of Georgetown University Law Center recently posted onto the American Society of International Law’s listserve that the 2005 National Defense Strategy, undersigned by Secretary of Defense Rumsfeld states the following in the section assessing America’s vulnerabilities:

Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”
(At page 5 under “Our Vulnerabilities.”)

While one can take this statement as an observation that international dispute resolution is effective and that it is more likely to be used by militarily weak states than by militarily strong states, I have my doubts as to whether that was the sum and substance of what the DOD was trying to convey. Rather, the cataloguing of international fora and judicial processes along with terrorism is probably a fair indicator of the views of at least some in the current Admistration on international law dispute resolution.

As I’ve said before, this knee-jerk anti-internationalism causes missed opportunities: international institutions are neither good nor bad, per se, but they can be effectively designed and managed to further our national interest (as well as the interests of other like-minded states).

This Administration seems to be particularly hostile to international dispute settlement (wave good-bye to the Consular Relations Optional Protocol) and, to a slightly lesser extent, to multilateralism in general. Regarding Admisitration views on multilateralism, I do note that the National Defense Strategy lists other states wanting to join "our system of alliances and partnerships" as an opportunity. Faint praise, but perhaps some recognition of the uses of multilateralism. Hostility to internationalism as a strategy is short-sighted. But actually listing international legal processes along with terrorism as a vulnerability is a sad comment on the current state of affairs.

Medellin’s Day in Court

Today, the Supreme Court finally hears oral argument in the Medellin case. I don’t have much more to add than what SCOTUSBlog has reported here, but it strikes me that Texas is again in a very difficult position, mostly because of their own high-risk litigation strategy and also because of Medellin’s clever and effective approach.

By filing a motion to stay the proceedings until it pursues its remedies in Texas court, Medellin has put itself in the position of being the reasonable party seeking to pursue its remedies as provided by the ICJ and now the executive branch in state court. Texas is in the odd position of making arguments about the federal judicial enforceability of the ICJ order that may not matter because even if Texas wins, a Texas court might still require Texas to comply with the President’s order in a subsequent proceeding. So they might very well be wasting the Court’s time. And that can never be a good position for an advocate before the Court.

I say all of this even though I think Texas is right that there is no judicial enforceability of the ICJ order. But the strongest element of its case against judicial enforceability is precisely the argument it doesn’t want to make: that no judicial enforceability is necessary because the Executive will enforce the order.

I would be shocked if the Supreme Court reaches out to decide this case in the face of Medellin’s desire to go back to state courts and the Executive’s intervention to take responsibility for enforcing the ICJ order. If the Court nonetheless plows ahead, it would be a remarkable (and in my view ridiculous) assertion of judicial control over foreign policy not in the absence of executive action but in the face of it.

Viennese Internationalism

Readers of my skeptical blog posts on internationalism (here and here) might be surprised and amused that I spent the past week in the heart of Old Europe at a classically internationalist confab: the Willem C. Vis International Arbitration Moot Competition. The Vis Moot draws students and lawyers from 47 different countries to Vienna to participate in arbitration “moots” involving problems applying the United Nations Convention on Contracts for the International Sale of Goods (CISG). But despite my anti-internationalist proclivities, I had a great time in Vienna that was only partly related to the rather embarrassing amounts of bier and bratwurst I consumed.

Indeed, the Vis Moot reminds me the ways in which internationalism can and should matter. My students can and do benefit from making arguments against and before foreign lawyers because they learn how to communicate effectively across legal/cultural boundaries. The Vis Moot simulates a dispute between companies in two foreign countries who agree to have their dispute resolved under the CISG (an international treaty) and before a private arbitration tribunal. My students must draft briefs drawing on these international sources aimed toward a panel of arbitrators with diverse national and professional backgrounds. Even if they never practice before non-Americans again, this type of advocacy training is, in my humble opinion, enormously valuable because it challenges U.S. law students to think outside the box of the Federal Reporter and the Federal Rules of Civil Procedure and develop more flexible and adaptable advocacy skills.

But even beyond the actual competition, the Vis Moot is famous for its intense nightly socializing to all hours of the morning. The opportunity to meet with lawyers and law students from five continents is quite an experience, but the opportunity to down tequila shots with German and Australian lawyers at three in the morning is quite another (this is of course a purely hypothetical example which I did not necessarily partake in). This social experience reminds me of how much lawyers from widely different backgrounds still share in common and how it is possible to build personal and professional relationships across these national and cultural borders. And these kinds of relationships (even the drinking) are fundamental to the development of an international bar of lawyers practicing in the field of private international law, that is to say, private business transactions taking place across international borders. The Vis Moot is, in a sense, training the next generation of this international bar expanding the roster of lawyers beyond Western Europe and the U.S to include Asia, Latin America, and Eastern Europe.

This sort of “private internationalism” is probably inevitable but it is also, in my view, highly welcome. Internationalism, in its most attractive sense, is about the interaction of private individuals and groups across borders rather than governments. The goals and aspirations of private individuals should drive greater international cooperation rather than the other way around. The role of governments and international organizations is to facilitate these kinds of private interactions. The creation of an international bar of private lawyers specializing in private international transactions is just one part of this process of international private interactions, but it is a fascinating and important one.