Saturday, July 16, 2005

Ku Retreats to an Undisclosed Location

My blogging will be very light over the next two weeks as my wife and I retreat to a more or less undisclosed foreign location. We'll see whether I can stay away for long...

Sandra Day O'Connor: Chief Diplomat

It looks like Justice O'Connor is not going to slow down much in retirement. As this article notes, she spent last week attending a conference of the Central and Eastern European Legal Initative (CEELI) in Istanbul. Apparently, Justice O'Connor is passionate about building and promoting independent judiciaries in the former Eastern Bloc and Soviet Union. Interestingly, she herself apparently first gained notice from former Chief Justice Burger by attending an international conference in the UK way back when. So the Court is not only losing an associate justice, but probably its "Chief Diplomat" as well.

D.C. Circuit Upholds Military Commissions

As I predicted back in April, a panel of the D.C. Circuit unanimously rejected constitutional and treaty-based challenges to a trial of alleged terrorists by military commission. The decision reversed a lower court's finding that the whole military commission system is a violation of the Geneva Convention. The D.C. Circuit's key holdings:

  • The Sept 11 Resolution for the Authorization of the Use of Force, combined with prior statutory authority, authorizes the President to try detainees in military commissions.
  • The 1949 Geneva Conventions are not judicially enforceable in federal court.
  • Even if they did apply, Hamdan (the detainee) would not qualify for protections as a prisoner of war nor would he find protection in Common Article III because he is an unlawful enemy combatant.
  • The Court also held that any judicial remedies, if they exist, must occur after the petitioner has exhausted his military remedies
  • Finally, the court holds that military commissions do not violate the Uniform Code of Military Justice.

The first two holdings are by far the most important. By tethering the military commissions to the September 11 Resolution, the D.C. Circuit avoids all the talk of presidential unilateralism by shifting responsibility to Congress. Moreover, by finding the Geneva Conventions judicially unenforceable, the Court has dispensed with all the nitty gritty battles over what those conventions require.

I think the first statutory authorization point is very strong and should withstand appeal. But the question of the judicial enforceability of the Geneva Convention is quite complicated. The Court here relied heavily on a previous Supreme Court's reading of an earlier version of the conventions. This holding may prove vulnerable on appeal, although I think it will be ultimately upheld.

Suppose the D.C. Circuit is upheld on appeal? Can we live with this result? Well, I can. We are not talking about torture here folks. Rather, the question is what kind of procedures will be granted to detainees charged with committing terrorism or war crimes. The Administration would have wide, but not unlimited, discretion to carry out military commission trials. This seems like a sensible result to me. At least there is an effort to punish the detainees rather than just hold (and maybe abuse) them.

Friday, July 15, 2005

Japan v. China: Why Not the ICJ?

This week Japan granted undersea gas drilling rights to an area also claimed by China. This is a separate dispute from Japan's attempt to convert a rock into a Tokyo address. But it is another serious irritant in what is an increasingly contentious and dangerous relationship.

Why can't Japan and China agree to submit their dispute to the ICJ like Benin and Niger did? The dispute should be resolvable under principles derived from the UN Convention for the Law of the Sea.

I think the answer is that the two countries don't really trust outside institutions like the ICJ to resolve matters that are very important to them. Again, this is odd. Note that both Japan and China have had judges serving on the ICJ whereas Niger and Benin have not. But maybe familiarity breeds contempt?

Thursday, July 14, 2005

Srebrenica: Justice, Peace and Reconciliation

The papers this week have been filled with discussions of the ten-year anniversary of the Serb massacre at Srebrenica. Two articles well worth reading are Christopher Hitchen's post at Slate, and this one in the Economist (sub. req'd). I also read with great interest the comments to Julian's post on the broader question of deterrence and international criminal law. While some (like Professor Rosa Brooks) may look back on the past ten years as marking progress in bringing criminals to account for atrocities and crimes against humanity, an equal case can be made that the decade has represented abject failure -- of both law and policy.

Srebrenica was a nadir for lawyers, for the United Nations, the EU and the entire international community precisely because the massacre took place under the harsh light of publicity (remember when the war in Bosnia led the news almost every night?), within a UN-mandated and NATO-protected "safehaven," during a UN-mandated peacekeeping operation. It is also important to recall that it took place when the ICTY had already been created and was finally gaining some momentum in its early investigations and indictments. (Admittedly, more robust intelligence cooperation from the US and UK came later.) There was, in other words, a court with jurisdiction over the territory, actors and the crimes that would take place in Srbrenica. But it didn't make a difference. Despite an engaged international community, a court with jurisdiction to prosecute crimes, troops on the ground with a mandate to protect the very people at risk, it happened. In Europe.

And, as Hitchens points out, the shame that we all share does not end there. The two men responsible -- Radovan Kradic and Ratko Mladic -- are still at large. In Europe. Hiding, as it were, in plain sight. How can anyone claim victory for the idea (or ideal) of prosecution in this case? If the European supporters of the ICC really believe in prosecution, there should be a daily drumbeat of pressure on Serbia and Bosnia and on the EU, whose troops took over the Bosnia peacekeeping mission from NATO last year.

Part of the explanation for why these atrocities continue to happen lies outside politics and law. International human rights and criminal lawyers have begun to look beyond strict international legal doctrine to take into account the unique psychological and sociological conditions in which mass atrocities take place. In the cases of Rwanda and Bosnia, studies have demonstrated that conditions for mass murder can be created. And if conditions can be created, they can be monitored by the international community for the purpose of preventing future acts.

As we have discussed on several occasions on this blog, I share Julian's general skepticism that international criminal law is a deterrent of the types of crimes it is designed to prosecute. To be fair, as some of the comments to his post note, the deterrence argument has largely been abandoned in debates over the ICC. Retributive justice, truth telling, and political reconciliation are additional values that can be promoted through prosecution. But sometimes the latter two values are better promoted through non-prosecutorial mechanisms (truth commissions, peace agreements, institutional power-sharing, post-conflict education). Retribution is often all that is left.

Srebrenica offers some important lessons for international dispute resolution as well. It was, arguably, the nadir of the Srebrenica massacre (taken together with the 1994 Rwandan genocide) that finally jolted the US and, most important, the Europeans, to real military intervention to end the war in Bosnia. It certainly altered the terms of the broader debate over military interventionism in cases of mass atrocity -- bringing together the neocon interventionists with the liberal humanitarian interventionists. The memory of Srebrenica loomed large when Kosovo started to unravel in 1998-99; those arguing against intervention at that stage had little moral ground to stand on. But memory is short within the international community. International human rights and humanitarian law place individual life at the center; international politics do not. Conflict prevention, like liberty, requires eternal vigilance. As I have argued in the cases of Darfur and Uganda, prosecution should not be used as a way to excuse effective outside engagement in conflict resolution.

But neither intervention nor prosecution address the most vexing problem: Long-term peace and reconciliation. Some of the comments have noted that the ICC is intended to assist and complement national legal processes. Accepting that the ICC (and the ICTY and ICTR) can have an impact by developing jurisprudence from which national courts can borrow, how else does an international prosecution contribute to peace and justice? Japan and Germany are still grappling with their own histories in very real ways that affect their societies, culture and domestic and international politics. Where will Bosnia, Rwanda and Kosovo be in 50 years?

Wednesday, July 13, 2005

Should the U.S. Transfer Control of the Internet to the U.N.?

While some (mostly right-wing) groups continue to worry about the transfer of "sovereignty " to the UN in treaties like that for the Law of the Sea Treaty, there is a far more important international struggle afoot: control of the internet.

As CNET reports, a recent meeting of the U.N.'s Working Group on Internet Governance turned into a gripe-session where various emerging powers like China and Brazil explained that they are getting fed up with U.S. control of Internet addresses. The U.S. government controls root addresses and a non-profit private entity ICANN controls actual addresses. China, Brazil, and other developing countries have called for ending U.S. dominance and transferring internet governance into a UN framework.

It would be easy to dismiss these calls as ridiculous. If the UN can't administer its own internal matters, how could it regulate the internet? But I can understand why it would annoy various countries that the master file for root addresses sits in some computer in the U.S. Commerce Department.

But international regulations are not the answer here. Rather, control of the internet is a classic coordination problem best handled by a central administrative body, such as the International Telecommunications Union. But there is really no need to fold internet regulation into the already byzantine UN bureaucracy.

Nationalist-type might ask: why bother? As long as the U.S. remains in control, what is the big deal? As the article points out, however, countries like China do have some recourse: They can create their own root addresses and create a fragmented internet. Both the U.S. and China have strong reasons to work together to avoid such a situation. But some sort of compromise is probably necessary in the long term.

Tuesday, July 12, 2005

More on the Effectiveness of International Criminal Justice

I just wanted to thank those readers who have added very thoughtful comments to my post on deterrence and international criminal justice here. For those of you who haven't seen the comments, I hope you find time to take a look and maybe drop a few comments yourself.

ICJ Watch: Niger Wins (Sort of)

A Chamber of the ICJ issued a decision today (only the summary is available so far) in the long-running border dispute between Niger and Benin. The Court awarded Niger 16 out of 25 disputed islands, including the largest island, lying in the Niger River on the border between the two countries. The two countries have been squabbling over the islands, sometimes in violent clashes, since they both gained independence from France in 1960. Compliance seems assured because both countries have already announced they will comply.

This case is a great example of the ICJ acting in its classic role as a special arbitration commission. Both Benin and Niger agreed in 2002 to submit this dispute to the ICJ by special agreement rather than by simply acceding to the compulsory jurisdiction of the Court. Moreover, each country appointed one member of the 5-member chamber (not surprisingly, the Benin-appointed judge dissented on almost the whole judgment). By sending it to a chamber, the two countries also probably saved themselves some time as the ICJ managed to issue its decision about three years after the initial case was filed.

The Court's decision is highly technical and it draws heavily on traditional international law governing boundaries. In particular, it follows the somewhat controversial principle of uti possidetis juris, whose “primary aim" (according to the Court) "is . . . securing respect for the territorial boundaries at the moment when independence is achieved”. In other words, this principle instructs international lawyers to respect the boundaries largely created by the colonial administrations rather than attempting to go back to pre-colonial claims. It's somewhat controversial because, of course, the colonial boundaries were often drawn for colonial administrative purposes rather than as a reflection of pre-existing cultural, political, or geographic units.

Applying this basic principle, and digging through lots of historical documents from France's colonial administration, the Court decided to draw the boundary at the river's most navigable channel, because that was where the local authorities (e.g. French colonial administrators) seemed to draw the line in the past. Of course, the full judgment is a lot more complicated than that, but this is the gist of the decision from what I can tell.

I think this is another example of how international law and international courts can be very useful. Although the moral attractiveness of using French colonial practice to draw a line between two sovereign states is somewhat questionable, it is usually better to have some rule rather than no rule. Moreover, the ICJ served a very useful purpose here, providing a relatively speedy and effective resolution of an international dispute that seems acceptable to both sides.

Diplomatic Deadbeats: New York City Collects Back Taxes on UN Missions

Sometimes, international law wanders far afield from questions of international criminal justice and basic human rights. Sometimes, it is just about collecting some money. Case in point: the City of New York has apparently won a judgment in federal court clearing the way for it to collect a total of $25 million in back taxes from the governments of India and Mongolia. The taxes are owed on two properties in New York City used to house staff at the governments' U.N. missions.

The decision for the court here is simply whether the two governments have sovereign immunity under the Foreign Sovereign Immunities Act. The court ruled that an exception to sovereign immunity applied where "rights . . . in immovable property in the United States are in issue." (28 U.S.C. §1605(a)(4)).

Interestingly, the two governments did not argue that they have immunity from taxes under either the Vienna Convention for Diplomatic Relations or the U.N. Headquarters Agreement. I'm not familiar enough with those treaties to know if some further protections might exist, but I believe those protections extend only to the ambassador-level (and neither of the properties house ambassadors to the UN).

There probably isn't anything profoundly important going on here. Just a run-of-the-mill dispute that international law, in this case in the form of a federal statute, provides a sensible rule of decision.

Sunday, July 10, 2005

Does International Criminal Justice Deter Criminals?

UVA lawprof Rosa Brooks has a measured op-ed in Sunday's LA Times surveying the progress of efforts to prosecute serious violations of international human rights on the 10th anniversary of the massacre at Srebenica. Unlike some advocates of international criminal justice, Prof. Brooks is restrained in her claims for the benefits of international tribunals like the International Criminal Court. Even so, her justification for expanding the scope and powers of international criminal courts has some problems. She writes:

But though it's only a distant second-best to preventing atrocities, punishing perpetrators is still important. It acknowledges the suffering of the victims and in the long run could help deter future abuses by forcing the bad guys to ask themselves if the abuses are worth it, given the increasing likelihood of ending up in jail somewhere down the line.

I don't doubt there are many good reasons to punish perpetrators
who have committed serious abuses and that, in some cases, international institutions are necessary to carry out this punishment. But I don't think Prof. Brooks, or any other scholarly supporter of the ICC, has bothered to offer support for her claim that international punishments create a "deterrent" to future abuses by other potential perpetrators.

The strength of the deterrence effect of certain kinds of criminal punishment is very difficult to determine. But, as many of the same human rights advocates have pointed out in battles over the use of the death penalty, it is possible, and even probable, that the threat of capital punishment does not deter many criminals from committing murders or other serious crimes. So isn't it plausible that potential war criminals will not be deterred in any meaningful way by international courts? This is not to say we shouldn't punish war criminals or execute murderers. It just means that it is possible, or even likely, that such punishments will have little if any deterrence effect.
Why does this matter? Because much of the argument between the U.S. and supporters of the ICC rests on the deterrence rather than the retribution rationale. The U.S. supports international criminal courts set up to punish specific sets of crimes occurring in a particular place. The ICC is a permanent court with wide jurisdiction. The main superiority of the ICC is that it supposedly creates a deterrence effect that ad hoc courts set up after the fact (as in Yugoslavia and Rwanda) cannot.
But if there is not much of a deterrence effect, why shouldn't we rely on ad hoc criminal tribunals, as the U.S. has suggested?