Saturday, December 10, 2005

El-Baradei Nobel Lecture: Imagine a World

The text of Mohamed El-Baradei's Nobel Peace Prize Lecture is here. It is quite good. It is perhaps too utopian for my taste, but if any group deserves utopian license it is that category of individuals known as Nobel Peace laureates. We may have in El-Baradei a prophet of peace from (and for) the Arab world.

The speech is hopeful, cosmopolitan, poetic, tolerant, demanding, and imaginative. It does not target any one nation (i.e., the United States) for specific criticism. It does not attempt to address current events (i.e., the war in Iraq). Rather, it focuses on the broad sweep: globalization, intolerance, world poverty, and nuclear proliferation. It is far more expansive than you might expect from someone who has spent the last twenty years focused on a single theme. The essence of the speech is a call for the world to address root causes that create human strife. Best of all it uses simple language to convey profound ideas.

Here is the hopeful and eloquent conclusion:
Imagine what would happen if the nations of the world spent as much on development as on building the machines of war. Imagine a world where every human being would live in freedom and dignity. Imagine a world in which we would shed the same tears when a child dies in Darfur or Vancouver. Imagine a world where we would settle our differences through diplomacy and dialogue and not through bombs or bullets. Imagine if the only nuclear weapons remaining were the relics in our museums. Imagine the legacy we could leave to our children. Imagine that such a world is within our grasp.

Friday, December 09, 2005

Nobel Prizes and Power: The UN, International Law, and Hegemony, Part 2

As IAEA chief Mohamed ElBaradei is about to receive the Nobel Prize at the same time as he announces that the international community is losing patience with Iran's intransigence over its nuclear program, I'm prompted to continue thinking about the relationship between international law and US power. Now, it's true that the IAEA has had numerous successful instances of preventing nuclear proliferation. However, one has to distinguish between the easy cases, where states would prefer not to proliferate but feel pressured by the security dilemma to do so, and the hard ones, where states really do want nuclear weapons. Getting Brazil and Argentina to step back from their nuclear arms race, or convincing Ukraine and Kazakhstan to return their newly acquired nukes to Russia, while admirable and important efforts, are not the same as preventing an aggressive rogue state from proliferating. When the chips are down, as with Iraq (before the invasion), Iran, and North Korea, the IAEA's effort has been less than stellar.

There is a good chance that matters with Iran will come to a head. If Iran continues to refuse to give up its "right" to uranium enrichment and refuses the recent proposal to use fissile material enriched in Russia, what will the IAEA and the international community do? Will it be capable of enforcing its own rules and regulations and slap sanctions on a country that violates its clear commitments and duties under the Nuclear Non-Proliferation Treaty? The institutional structure of the UN means that any and all punitive actions to be imposed by the IAEA have to go through the Security Council where it subject to veto by, in this case, Russia. Even if sanctions are imposed, will the UN be able to keep them in place? As the oil-for-food scandal makes clear, sanctions create a powerful moral hazard by raising the price of goods and creating the opportunity for huge profits, encouraging defection and cheating.

Regardless of whether you agree with the logic of the invasion of Iraq, there is an important lesson there that is relevant to the problem of Iran. If the UN is unwilling or incapable of enforcing its own rules and international law, the US as global hegemon and police enforcer may take matters into its own hands. Iraq is not the only pertinent example: the NATO bombing of Serbia to protect the Kosovars is another example of the US (in cooperation with other actors) picking up the slack where the UN was incapable of living up to its ideals and laws. As I mentioned in part 1 of this post, hegemony and the willingness to use power outside of the framework of international law may be necessary for those laws to be enforced. If you don't think that the US should use force to enforce international law, how else can the law be respected?

The Madness of Mahmoud Ahmadinejah

In 1933, his first year as chancellor, Adolph Hitler began boycotting Jewish shops. By 1935 he deprived Jews of German citizenship. In early 1938, laws were passed restricting Jewish economic activity. In October 1938, thousands of Polish Jews were deported. Then, on the nights of November 9-10, 1938, a pogrom was unleashed on Jewish businesses as gangs of Nazi youth broke the windows of Jewish businesses and homes, burning synagogues and looting. Kristallnacht (“The Night of Broken Glass”), as it came to be known, was the defining moment for many when they realized the true madness that was Adolph Hitler. That night German theologian and political dissident Dietrich Bonhoeffer circled Psalm 74:8 in his Bible: “They said in their hearts, let us destroy them together: they have burned up all the synagogues of God in the land.” He wrote in the margin next to the passage, "10 November 1938."
There is a little-known man named Mahmoud Ahmadinejad who is now the President of Iran. If you are like most people, you probably have only the faintest clue who he is. If you don't know him, read this short but chilling biography.
On October 27, 2005--the closing day of Ramadan--this man, Mahmoud Ahmadinejad, called on Israel to be wiped off the face of the earth. The new Iranian President reportedly “repeated his call, from earlier in the week, for Israel to be annihilated, and the “Zionists” (i.e. Jews) exterminated, while several tens of thousands chanted anti-Semitic and anti-American slogans.” Following those remarks, Tony Blair responded “I felt a real sense of revulsion at those remarks … There has been a long time in which I've been answering questions on Iran with everyone saying to me 'tell us you're not going to do anything about Iran…. If they carry on like this, the question people are going to be asking us is, 'When are you going to do something about this,' because you imagine a state like that with an attitude like that having a nuclear weapon." EU leaders issued a joint statement that same day: "Calls for violence, and for the destruction of any state, are manifestly inconsistent with any claim to be a mature and responsible member of the international community." Israel is so alarmed with events in Iran that Netanyahu is now calling on Sharon to adopt the "Begin legacy," a reference to the 1981 bombing of Iraq's nuclear facility.
Yesterday, this man Ahmadinejad was reported to describe Israel as a “tumor” that should be removed to Europe. These were his words: "Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail. Although we don't accept this claim, if we suppose it is true, our question for the Europeans is: 'Is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?' "If the Europeans are honest they should give some of their provinces in Europe - like in Germany, Austria or other countries - to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it." Then Ahmadinejad said he will continue to develop nuclear power and that the West had no right to suspect Iran.
Thankfully, the reaction from world leaders was swift and strong. The United Nations, United States, France, Germany and Britain have all unequivocally rebuked Ahmadinejad, with Annan expressing shock, Merkel calling his words “totally unacceptable,” Jack Straw condemning them "unreservedly," and the State Department describing them as "appalling and reprehensible." But Ahmadinejad has refused to back down.
As we divert our gaze toward other concerns, we should not miss the momentous nature of current events in Iran. In the course of a few weeks, the Iranian President has called for the annihilation of Israel, denied the “claim” that millions of innocent Jews were killed in the Holocaust, and offered to support any Europeans who would work to relocate Israel. Thus, we have from the mouth of one man – the leader of a country seeking nuclear capability no less – a bold call for a new Holocaust and a flat denial that the original one ever occurred.
I am not given to hyperbole, but when is the defining moment that we realize the madness that is Mahmoud Ahmadinejad? I fear we should be circling that passage from Psalm 74 again: “They said in their hearts, let us destroy them together” and writing in the margin "8 December 2005."

Thursday, December 08, 2005

In Praise of Treaty Denunciations

What if contract law scholars never studied the end game? What if they offered little to no analysis of early contract termination, rescission, or frustration of purpose? What if the entire focus of contract law was on contract formation, performance and breach, and that any unilateral lawful attempts to avoid contractual obligations were looked at with a jaundiced eye? What if Holmes never stood up and freely admitted that getting out of contractual obligations actually may be a good and salutary thing for the effective functioning of our economic system?

In many respect that is the state of affairs in the study of international treaties. Larry Helfer has just published a wonderful article in Virginia Law Review that begins to fill that void. Helfer makes a convincing case that sometimes treaty denunciations may actually be a good thing for the effective functioning of the international legal system.

Entitled Exiting Treaties, available here and on SSRN here, the article addresses the subject of the lawful termination of treaties. As Helfer notes, “[g]iven the prevalent use and diverse design of denunciation and withdrawal clauses, it is surprising that the subject of exiting treaties has received so little attention in international law and international relations … scholarship.” (p. 1585). Indeed.

So what are exit clauses? “Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in intergovernmental organization. They do not require the consent or approval of other states and may often be effectuated simply by providing notice to the other parties.” (p. 1582). The Article discusses why exiting treaties is different – most importantly that it is lawful – and then offers some nice empirical analysis of the practice of treaty denunciations. (Peruse the tables on page 1603-1607 for a picture of denunciations in a nutshell).

But Helfer does not end there. After offering empirical analysis of treaty exit he then provides a theoretical basis to distinguish between treaty breach and treaty exit, offering “prescriptions for negotiators to structure denunciation and withdrawal clauses in ways that augment the cooperation-enhancing functions of exit while diminishing the incentives for unilateral opportunism.” (p. 1611). In short, Helfer thinks critically about how to structure exit options more thoughtfully into the process of treaty formation.

In his conclusion he offers this apt summary of why the article is important: “Although the possibility of unilateral denunciation and withdrawal may seem anathema to the successful functioning of international law, this Article suggests a strikingly different conclusion – that exit may sometimes enhance interstate cooperation.” (p. 1647).

Larry’s a friend and old classmate of mine so admittedly I am biased. But objectively speaking this article is definitely worth reading and taking quite seriously.

I may torture the Latin here, but perhaps the maxim should be amended to read: Pacta sunt servanda nisi exitus.

Red Cross Movements Adopt Red Crystal, Clearing Way for Israel to Join

In very welcome news on the humanitarian law front, the signatory states of the Geneva Conventions voted yesterday (98 in favor, 27 against, 10 abstentions) to adopt a Third Optional Protocol, adding the red crystal symbol to the red cross and red crescent as a permissible emblem. This clears the way for membership into the movement of Isreali relief agency Magen David Adom.

See full details at the ICRC website, here.

Wednesday, December 07, 2005

Rice Shifts U.S. Policy on Interrogation, and Gets No Credit

Secretary of State Condi Rice appears to have shifted or at least clarified U.S. administration policy over whether the Convention Against Torture's prohibition of "cruel, inhuman, and degrading" treatment extends to U.S. government personnel operating overseas. In a news conference with the Ukraine Premier, she stated (emphasis added):

As a matter of U.S. policy, the United States’ obligations under the CAT [United Nations Convention Against Torture], which prohibits, of course, cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.

Despite this statement, both this Washington Post article and this NYT piece suggest that Rice's statement has "raised questions" largely because she couches her statement "as a matter of policy." But so what? Because the Convention Against Torture is non-self executing, and because Congress had not (prior to the McCain Amendment) attempted to extend "CID" prohibitions overseas, then any decision to do so by the executive branch is plainly "a matter of policy." It is a matter of policy until or unless Congress decides to codify it as a matter of "law" (which it might do so in the McCain Amendment).

U.S. statutes implementing the Convention Against Torture (such as 18 U.S.C. § 2340A(a).) have only criminalized torture by U.S. personnel overseas, and not "cruel, inhuman and degrading" treatment. Article 16 of the CAT could be read in this limited way: "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. . . ." (emphasis added). Note also that the CAT Article 5 treats torture differently, requiring countries to establish jurisdiction over torture "[w]hen the alleged offender is a national of that State;" or "[w]hen the victim was a national of that State if that State considers it appropriate."

So Rice appears to have won an internal administration battle of "policy", which shouldn't be sniffed at by commentators. The U.S. government has unequivocally agreed to prohibit "CID" treatment by U.S. personnel overseas. This sounds like the right decision, at least as a matter of policy. No rendition policy is going to succeed without cooperation of foreign governments and accepting the prohibition on "cruel, inhumane, and degrading" treatment is politically necessary. I'm less sure this is required by U.S. treaty obligations, but that is now an academic question.

Where Have All the Treaties Gone?

The United States is currently bound by over 10,000 treaties and other international agreements. That’s a big number. But as Detlev Vagts noted seven years ago (subscription required), the United States has done a poor job of making these treaties publicly available. In terms of publications, the situation has only deteriorated in the interim. If you are hoping to find a hardbound print of a recent treaty in the United States Treaties series (UST), good luck. The last UST volume contains treaties from 1984. And even if you are willing to accept a pamphlet version from the Treaties and International Acts Series (TIAS), the most recent treaty text you will find dates from 1996. Of course, the Senate has recently begun posting treaties submitted to it by the President (see here and here), and various international organizations also tend to make multilateral treaties available online. Still, if you are looking for bilateral executive agreements, you frequently have to rely on (and pay for) unofficial, private sources (e.g., Hein Online, Lexis, Westlaw, Oceana).

Now, as someone who worked in the Treaty Office at the State Department for several years, I can attest that the publication lag was largely a resources problem – there was simply neither the money nor the personnel to keep up with a dramatic expansion in U.S. treaty-making. Still, the “lack of resources argument” was often a cold comfort for international lawyers trying to find “official” texts for purposes of research, citation to courts, etc. Moreover, to the extent one views these treaties as the “supreme Law of the Land” under Article VI and attendant Supreme Court caselaw, there is a serious notice problem when the public has no readily available way to access the contents of these instruments.

Fortunately technology (with a little push from Congress) seems poised to save the State Department from further criticism. In accordance with Section 7121 of P.L. 108-458, the State Department must now post online international agreements that it otherwise intends to publish in TIAS within 180 days of their entry into force. Nearly 1500 such agreements are now available, dating from 1998 to the present. You can find them here as part of the State Department’s “International Agreements Collection.”

This is good news for those of us who do treaty research on a regular basis. It may not make treaty-research any easier; there is still no “one stop shopping” for U.S. treaty texts. But it is certainly worth applauding that texts previously unavailable short of a phone call to Foggy Bottom can now be accessed online. And without appearing greedy, might I suggest it should serve as a precursor to putting all U.S. treaties and international agreements online at some point in a publicly available, official forum. Until then, happy treaty-hunting.

Pinochet and Precedent

A Chilean court has just stripped former dictator Augusto Pinochet of his immunity so that he may face human rights charges in the disappearances of 29 people. While this may be a good decision from the perspective of retributive justice (see my earlier post on this), it has some troubling implications for international politics. Not the least of which is the possibility of undermining the likelihood of striking bargains in order to secure the ceding of power by dictators in other countries in the future. Dictators who believe that they will face prosecution and punishment are much less likely to step down and allow a peaceful transtition than are dictators who believe they will enjoy a cushy life in exile, or at least the chance to live out their dotage without being dragged into the dock. Now, while it may be evident to all that Pinochet deserves to be punished for his crimes, is that worth perhaps prolonging the rule of other brutes in other countries?

The UN, International Law, and Hegemony; Part 1

Last week, US Ambassador to the United Nations John Bolton claimed that the UN was demonstrating its irrelevance by adopting several resolutions calling on Israel to withdraw from the West Bank and the Golan Heights. Bolton argued that the resolutions were undermining the real progress being made in the peace process, and only served to advance one narrow position and to alienate Israel.

For a scholar of IR, this demonstrates the fundamental problem with international law: the bodies charged with interpreting and enforcing the law have little to no ability to enforce it. While the UN is most capable of passing symbolic, non-binding statements and resolutions, when it comes to actually enforcing the dictates of international law, it has few teeth. Rwanda is left to slide into genocide, Sudan continues to allow the janjaweed to rape and pillage while sitting on the UN Human Rights Commission, UN peacekeepers stand by and allow the Serb army to massacre the inhabitants of Srebrenica, and Kosovo is only defended thanks to the good graces of NATO.

However, that is not to say that international law has no purposes or power. It does. But not in the sense that domestic law does. International law much resembles a domestic society with a judiciary and legislature, but no police force. There are bodies that can create law and interpret it, but not to arrest law-breakers and punish them. The power of international law rests mostly in the phenomenon of legitimacy. States that conform to international law develop a characteristic of legitimacy that makes it more likely that other states will cooperate on other issues in the future, which can contribute to the creation of a legalistic international community.

Such a community still needs a police force. Lately, the US has filled this role (although leaving enforcement up to a posse means that the law will be enforced capriciously), but there is a growing movement towards internationalizing the enforcement mechanism, such as in the ICC. But, so long as the international community lacks a communal understanding of justice, fairness, equity, interest, security, and all the other concepts that go into a common identity and legal understanding, it is impossible to imagine states ceding their sovereignty to an international body with enforcement powers. Even the enlightened, post-modern institution that is the EU is running into problems with efforts to enforce its deficit rules on France and Germany, or attempts to cut farm subsidies (which contributed to the rejection of the EU constitution by France).

So, perhaps hegemony is a good thing for international law. While it may be true that the US is so powerful that it can pick and choose which laws to follow and when, it also must be recognized that without US power, there would be even less compliance with international law than there is now. That's not to argue that US is fair in applying the law, or even always capable of solving every problem (as with N. Korea). But, when the US stays out, as it did in the early days of the Balkans crises or the initial stages of negotiations concerning the Iranian nuclear program, there is little hope for solving the really difficult problems. US hegemony may be the best guarantor of international law there is.

International Survey on Torture and Secret Interrogation

An international survey of nine countries reveals that in no surveyed country except two do a majority of respondents maintain that torture is never justified. A majority in four countries maintain that it rarely, sometimes, or often is justified. In response to the question, “How do you feel about the use of torture against suspected terrorists to obtain information” these were the results:

Never Justified: U.S. (36%), Canada (49%), Mexico (40%), S. Korea (10%), France (40%), Germany (48%), Italy (60%), Spain (54%), U.K. (48%).

Often, Sometimes, or Rarely Justified: U.S. (61%), Canada (49%), Mexico (49%), S. Korea (86%), France (57%), Germany (50%), Italy (37%), Spain (37%), U.K. (51%).

But when asked where U.S. interrogations (not torture) of suspected terrorists should occur, the overwhelming response in eight of the nine surveyed countries was not in my back yard. In response to the question “Would you support or oppose allowing the United States to secretly interrogate suspected terrorists in (Country) to try to obtain information about terrorist activities” these were the results:

Oppose: U.S. (32%), Canada (63%), Mexico (78%), S. Korea (71%), France (60%), Germany (60%), Italy (55%), Spain (66%), U.K. (62%).

What is remarkable is that there is stronger international opposition to the secret interrogation of terrorists by the United States abroad than there is to the occasional use of torture itself.

The survey is available here. An ABC news article on the survey is available here.

Secretary Rice, Torture, and the Meaning of Berlin

There are weeks when the irony level in the news is almost too much to bear. This is one of those weeks. In the city where the U.S. led and won the long battles against fascism and communist totalitarianism, a city that is now a vibrant center of democracy, the capital of one of the world’s largest economies and of hte most important U.S. policy partner in Europe, a city where Kennedy declared, “Ich bin ein Berliner" and where Reagan famously demanded, “Mr. Gorbachev, tear down this Wall,” the Secretary of State is reduced to this legalism:

“It is against U.S. law to be involved in torture or conspiracy to commit torture.”

For anyone who served in Berlin as a member of the American armed forces or, as I did, a diplomat, it is simply heartbreaking.

How did we come to this? It is too early to write the complete history of the legal opinions and policy decisions that led us to this sad, yet entirely avoidable, juncture. But let’s remember what the past Secretary of State and his legal adviser wrote in 2002 about why it is important to follow the path of international law, law that the U.S. itself had created over decades of practice:

*It has high costs in terms of negative international reaction, with immediate adverse consequences for the conduct of our foreign policy.
*It will undermine public support among critical allies, making military cooperation more difficult to sustain.
*Europeans and others will likely have legal problems with extradition and other forms of cooperation in law enforcement, including brining terrorists to justice.
*It may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops.
*It will make us more vulnerable to domestic and international legal challenges and deprive us of important legal options.

The renditions of terror suspects to black sites in Europe and to other countries, the capture of European citizens in European states and their transfer to Afghanistan and Guantanamo, the indefinite detention and yes, in some (how many?) cases, the mistreatment of detainees at the hands of U.S. military and intelligence personnel, have come to dominate the U.S.-European relationship. And will continue to do so for years to come, as criminal and civil investigations into U.S. policies and conduct go forward. It is more than a pity; it is to the detriment of many other bilateral and multilateral policy initiatives that are crucial to the security and safety of people on both sides of the Atlantic. What is the future of Kosovo? What about European commitments in Afghanistan? Will the U.S. ever be able to share with the Europeans the burden of training and security in Iraq? The second term was supposed to be the “diplomatic turn” for an administration that had disdained it in the first. But how can the State department feel unconstrained on the diplomatic front when it is faced not only with the deep reputational harm of the detention practices, but quite literally faced with the possibility that senior officials will be slapped with subpoenas or arrest warrants if they travel abroad?

The struggle against violent Islamic extremism (I leave to others to debate whether it is Islamo-fascism or Islamo-Bolshevism) will be with us for quite some time, perhaps our lifetimes. Like the two great struggles played out in Berlin in the 20th Century, this is one that the free world cannot lose. If the past two years of revelations – from Abu Ghraib to Guantanamo to the “mistake” of holding a German citizen without charge for nine months – has taught us anything, it is that how democratic states treat terror suspects matters a great deal in this struggle, just as it mattered in 1945 and 1989 how we dealt with the crimes of fascism and totalitarian communism. The spectacle at the Iraqi Special Tribunal yesterday of a victim of one of Saddam Hussein’s “rape rooms” being forced to concede that, unlike at Abu Ghraib under the U.S. occupation, no one used dogs on her or took photos of her, is sickening. But we can expect to see more of it. As Secretary of State Rice has said in another context, but which applies equally to the question of humane treatment of detainees and the battle to win respect for the rule of law:

“The terrorists only have to be right only once. We have to be right all the time.”

Jihad and International Law

While on the subject of Islamic radicalism, I thought it worthwhile to point you to an important article published by Professors Shaheen Sardar Ali and Javaid Rehman in Oxford's Journal of Conflict & Security Law entitled The Concept of Jihad in Islamic International Law.
Particularly important is the discussion of differing interpretations of jihad. The authors identify three current theories of jihad: (1) a permanent state of belligerence against non-believers; (2) jihad as just war and a state of self-exertion and passivity; and (3) the third way of coexistence, in which peace is the normal relationship between Islamic and non-Islamic states.

Regarding the first interpretation, the authors write: "According to this significantly popular interpretation, the totality of jihad ideology represents a religiously sanctioned aggressive war to propagate or defend the faith.... One proponent of this theory [argues] ... that ... 'The Muslims are, therefore, under a legal obligation to reduce non-Muslim communities to Islamic rule in order to achieve Islam's ultimate objective, namely the enforcement of God's law (the Sharia) over the entire world. The instrument by which the Islamic state is to carry out that objective is called the jihad (popularly known as the 'holy war') and is always just, if waged against the infidels and the enemies of the faith.'"

Regard the second interpretation, "the jihad ideology is exclusively one of self-exertion and peaceful co-existence.... [T]he advent of Islam (especially if compared with its historical epoch) brought forth a peaceful revolution. Islam set peace as the perfect social and legal ideal. War was strictly regulated and limited by compulsory legal rules based on sacred texts and equitable principles. Many Muslim scholars cite Quran and Hadith texts to put forward the argument that in the Islamic tradition (unlike popularly held belief), war is an aberration and a condition which may be resorted to only under unavoidable circumstances."

The authors espouse a third view. "It is submitted that the truth probably lies somewhere in the middle, and on a historical plane one might argue that Islamic doctrine of war changed course in keeping with imperatives of time and circumstances: A critical feature in this regard is the contextualising of jihad. Originating from the premise of peaceful propagation of the Islamic faith and resort to war only as a measure of self-defence, the doctrine went through a change when persecution of Muslims by the Makkans lead to their emigration to Madina. [J]ihad (in the sense of use of force) was established and permitted to protect Muslims and to ensure their right to practice their religion.... The 'age of coexistence' or the third age in Islamic international law coincides roughly with the formative stage of international law as we know it today. In the age of coexistence, which continues to this day, peace has come to be more widely recognised as the 'normal' relationship between the Islamic and non-Islamic states, and treaties of amity no longer need to be of fixed duration."
The article is quite useful in conceding that there is today a "significantly popular interpretation" of jihad in which Muslims are required to adopt a state of permanent belligerency with non-believers. It has always struck me as odd that many prominent Westerners simply ignore this strong strand of Islam that is so antithetical to international law. This approach is not an aberration, but one popular and accepted version of Islamic jihad. Having said that, it is quite encouraging that the authors identify competing notions of jihad that are compatible with international law.
We can only hope that in the ideological battle within Islam, the view that Muslims must permanently battle non-believers does not prevail.

An abstract of the article is available here. Full text requires a subscription.

Tuesday, December 06, 2005

Rice Offers Legal Defense of Rendition

As I mentioned earlier, U.S. Secretary of State Condi Rice is currently in Europe trying to build transatlantic ties, while at the same time fending off complaints about the CIA's activities in Europe. One of her statements defending the legality of "extraordinary renditions" is a useful pushback against the growing chorus of criticism against the CIA. She points out (and I think she's right) that renditions themselves are not a violation of international law. She also states, unequivocally, that the U.S. is not using renditions to countries where detainees are tortured.

Here is the key unequivocal part of her statement (emphasis added):

In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances.

Moreover, in accordance with the policy of this administration:
-- The United States has respected -- and will continue to respect -- the sovereignty of other countries.
-- The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.
-- The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured.
-- The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.

Of course, many folks may not believe her. (UPDATE:The relentless Marty Lederman, for instance, offers reasons to doubt her meaning here). But it means something when the U.S. Secretary of State goes on the record like this. It means that if there is bad stuff going on in the rendition process, and it becomes public, she and the administration will be in a bad position. But it also means that if this statement is accurate, then there is a huge uproar about renditions that is essentially about nothing.

Niall Ferguson on Islamo-Bolshevism

In this month's issue of Foreign Affairs, Niall Ferguson -- one of the best gifts Glasgow has bestowed upon the world in recent times -- has an interesting article entitled Sinking Globalization. Essentially the article presents a possible doomsday scenario that draws parallels between the perils of today and those of the 1910s. One aspect of his thesis that is particularly chilling is his comparison between Osama bin Laden and Vladimir Lenin:
It is a big mistake to think of al Qaeda as "Islamo-fascist" ... Al Qaeda's members are much more like "Islamo-Bolshevists," committed to revolution and a reordering of the world along anti-capitalist lines.
Like the Bolsheviks in 1914, these Islamist extremists are part of an underground sect, struggling to land more than the occasional big punch on the enemy. But what if they were to get control of a wealthy state, the way Lenin, Trotsky, and company did in 1917? How would the world look if there were an October Revolution in Saudi Arabia? True, some recent survey data suggest that ordinary Saudis are relatively moderate people by the standards of the Arab world. And high oil prices mean more shopping and fewer disgruntled youths. On the other hand, after what happened in Tehran in 1979, no one can rule out a second Islamist revolution. The Saudi royal family does not look like the kind of regime that will still be in business ten years from now. The only monarchies that survive in modern times are those that give power away.
But is Osama bin Laden really a modern-day Lenin? The comparison is less far-fetched than it seems.... In a proclamation to the world before the recent U.S. presidential election, bin Laden declared that his "policy [was] bleeding America to the point of bankruptcy." As he explained, "al Qaeda spent $500,000 on the [September 11 attacks], while America, in the incident and its aftermath, lost--according to the lowest estimate--more than $500 billion. Meaning that every dollar of al Qaeda defeated a million dollars, by the permission of Allah." Bin Laden went on to talk about the U.S. "economic deficit ... estimated to total more than a trillion dollars" and to make a somewhat uncharacteristic joke:
'[T]hose who say that al Qaeda has won against the administration in the White House or that the administration has lost in this war have not been precise, because when one scrutinizes the results, one cannot say that al Qaeda is the sole factor in achieving those spectacular gains. Rather, the policy of the White House that demands the opening of war fronts to keep busy their various corporations--whether they be working in the field of arms or oil or reconstruction--has helped al Qaeda to achieve these enormous results.'
Two things are noteworthy about bin Laden's quip: one, the classically Marxist assertion that the war in Iraq was motivated by capitalist economic interests; and two, the rather shrewd--and unfortunately accurate--argument that bin Laden has been getting help in "bleeding America to the point of bankruptcy" from the Bush administration's fiscal policy.
Much as I respect Ferguson, I just don't buy it. First, I seriously doubt Saudi Arabia is at risk of an Islamic Revolution akin to 1979 or an October Revolution akin to 1917. More likely it will succumb to a democratic transition akin to the Velvet Revolution of 1989, with the Muslim Brotherhood showing alarming strength.
Second, I seriously doubt the world will sit idly by and simply watch as Osama bin Laden rides into power in Riyadh on a donkey. Indeed, there is one person on earth that personifies evil incarnate in the American psyche. It is foolhardy to think the world will countenance a scenario with bin Laden in a position of Saudi leadership. Certain men rise to power and then display the full extent of their evil intentions. But it is another matter altogether to display to the world evil in full flower and then later have any hope of national leadership.
Third, I seriously question the use of anti-capitalist Bolshevik rhetoric to describe Islamic terrorism. Yes, al Qaeda is more than willing to use economic warfare to battle the United States. But that terrorist organization is far from being grounded on any economic thesis or capitalist antithesis. An Islamic restoration movement? Yes. An anti-Zionist movement and anti-American movement? Yes. But a genuine anti-capitalist movement one day led by a religious leader at the helm of a country that is the world's largest net oil exporter? No.
Fourth, I seriously question the proposition that the United States is on the verge of bankruptcy as a result of Osama bin Laden. Peruse this recent speech by Alan Greenspan on budget policy and one is left with three impressions: (1) The economy has delivered a solid performance in 2005; (2) defense and homeland security spending will not continue at current levels; and (3) long-term budget problems in the future are a function of changing demographics. The one great economic risk of terrorism, Greenspan has highlighted elsewhere, is that we take it too seriously and let it result in a change in our economic behavior. I am surprised Ferguson falls for bin Laden's specious argument that al Qaeda is bleeding America to the point of bankruptcy.

The CIA's War On Terrorism - Another Source of ATS Lawsuits?

As the fighting over the U.S. military's conduct of the war on terrorism, particularly its conduct in Guantanamo Bay, may be heading toward some resolution as a result of new legislation, attention is now turning to the CIA's activities in the war on terrorism.

The CIA certainly seems busy. Recently, an alleged Al Qaeda leader was mysteriously blown up in Pakistan, perhaps as a result of a CIA missile from an unmanned Predator aircraft. Meanwhile, the Washington Post has this long report on the CIA's system of "extraordinary rendition" and its alleged network of detention centers for suspected Al Qaeda members. The Post has also has this report on the CIA's alleged abduction of a radical Islamic cleric in Italy (misleading Italian authorities in the process). Moreover, Secretary Rice is being hounded in Europe with questions about CIA use of German airfields for its rendition policy and its "secret" prisons.

Intelligence activities are not, as far as I'm aware, generally regulated under formal international law e.g. through some international treaty. Of course, certain - in fact, many- activities engaged in by intelligence agencies plainly violate general principles of international law. Taking satellite photos, intercepting wireless communications, and old-fashioned human spying often violate another country's sovereignty. More seriously, intelligence agencies sometimes engage in targeted assassinations, abductions, and very severe interrogation techniques (tantamount to torture).

In the old days, the most important check on intelligence agencies like the CIA (other than domestic oversight) was the threat of retribution against their own agents from the other side. The CIA and KGB had a tacit agreement not to kill or torture agents they caught from the other side. I somehow doubt the CIA has any similar deal with Al Qaeda - as a result, all gloves are off.

But the rise of the Alien Tort Statute opens another avenue for checking the CIA. Those mistreated by the CIA can have their day in U.S. court and, for what is probably the first time, we may see CIA policies directly challenged under international law standards. For better or for worse, I foresee the CIA becoming the new defendant du jour in the ongoing litigation over the conduct of the war on terrorism.

Monday, December 05, 2005

Differing Conceptions of Justice

Hello! First, thanks to Julian and the rest of the Opinio Juris team for inviting me to guest blog here for a while. I'm very excited to represent the IR perspective, and hope that I can bring something interesting to the table.

I'd like to start off by addressing one of the more interesting and relevant questions: How is justice conceptualized in international politics and law? Waking up this morning, I'm greeted in the morning news by pictures of Saddam Hussein sitting in the dock. This amazing sight raises the question (or at least it does for me) as to what the purpose of the trial should be. At first glance, the question seems to have an easy answer: to provide justice. But that begs the question: What is justice? There are always different formulations of justice working simultaneously in any trial, and while these formulations may sometimes coincide, they do not always. For instance, procedural justice (the right to a fair trial, the right to be free from unwarranted search and seizure, etc.) can obviate the demands of retributive justice (vengence, punishment, etc.). Now, in a domestic society, where the risks any one person poses to the society as a whole are low, procedural justice tends to dominate. That is, when the established procedure is violated, a person goes free, even when it is clear that person may be guily and deserving of punishment (and no, I didn't say O.J.).

Which conception of justice should "win" out in Iraq? Should Hussein be given a fair trial at all costs, to demonstrate the superiority of the rule of law? Such an approach could go a long way to establishing the legitimacy of the Iraqi regime, and perhaps even to placating the Sunni part of the insurgency. However, if anyone can be judged guilty without trial, it must be Hussein. Would allowing him to walk free because a sufficient evidentiary chain linking him directly to massacres and genocide could not be established be "just?" Would it undermine the faith of the Shiites and Kurds that a government can protect them against a Baathist resurgence? Executuing Hussein (the likely outcome) will likely be a critical step in creating an emotional release valve that makes it possible for the Shiites and Kurds to move forward and permit the Sunnis to participate in the New Iraq.

The approach of the international community writ large seems to prefer the emphasis on procedural justice. I'm thinking not only of the pressure placed on Iraq to move the trial out of Iraq and perhaps even into an international tribunal, but also of the trial of Slobodan Milosevic. In its attempt to provide Milosevic with a fair trial, the ICTY has now dragged on for several years, and the end does not appear to be in sight (as Julian has previously pointed out). Many IR scholars believe that the odds are decent that Milosevic will walk, mainly because of the difficulty in proving the chain of command linking his orders directly to genocidal behavior or war crimes.

Is this really in the best interests of the international community, let alone the Iraqi people? I'm not so sure, and I don't know what the answer to this problem should be. However, it is clear that sometimes "justice" gets in the way of politics. Should Pinochet go on trial if it makes it less likely that future dictators will accept immunity agreements to step down and allow a democratic tradition? As for Hussein (and Milosevic as well), my sense is that is more important for Iraq, and for the international community, that he be punished for his crimes than he be provided procedural justice.

"Why Don't You Just Execute Us?"

An excerpt of a motion challenging the legitimacy of the tribunal is here:
“The Defense considers it their duty to point out at this juncture another peculiarity of this Trial which departs from the commonly recognized principles of modern jurisprudence. The Judges have been appointed exclusively by States which were the one party in this war. This one party to the proceeding is all in one: creator of the statute of the Tribunal and of the rules of law, prosecutor and judge. It used to be until now the common legal conception that this should not be so; just as the United States of America, … always demanded that neutrals, or neutrals and representatives of all parties, should be called to the Bench….”
But this motion was not filed by defense counsel for Saddam Hussein. No, this motion was filed in November 1945 by defense counsel near the beginning of the Nuremberg trial challenging the legitimacy of that tribunal.

Today, Saddam Hussein is trying the same approach. Here is a brief excerpt of the exchange at Hussein’s trial today:

Judge: ''Mr. Khalil, if you are going to leave the room, it will harm your client. The court will be obliged to appoint lawyers from the defense bureau.''

Saddam: ''The court is allowing the witness to speak, but it does not allow the defense lawyers to defend. Is this the justice?''

Judge: ''You will be heard.''

Al-Dulaimi: ''We will not stop until we receive the full answer to the question we are concerned with.''

Judge: ''We will give you enough time, regarding the refutation of the legitimacy of this court. This court is legitimate, legal and formed according to a law issued by the National Assembly.''

Saddam: ''Under the American occupation!''

Judge: ''No, and you are not allowed to speak.'

Saddam: ''How is it legitimate while it is the Americans who formed it?''

Al-Dulaimi: ''We will make presentations to you and refute the legitimacy of this court -- that was based on the unjust U.S. aggression -- verbally and then in writing.''

Then, after the judge called a recess, Saddam Hussein shouted, “Why don’t you just execute us?”

The tactic of challenging the legitimacy of the Nuremberg tribunal didn't work in 1945. Hopefully it won't work in calling into question the legitimacy of the Hussein trial in 2005.

Bringing Political Science to Opinio Juris: Introducing Guest-Blogger Seth Weinberger

Although those of us who blog here on a permanent basis come from a variety of perspectives, all of us are legal academics and no doubt our posts reflect the thinking of international lawyers.

But there are other ways of looking at international relations, of course, especially from the discipline of political science. That is why we at Opinio Juris are very pleased to have Professor Seth Weinberger, a scholar of international relations, as a guest blogger for the next few weeks. Professor Weinberger teaches courses on international relations, US foreign policy, international security, terrorism, and political philosophy at the University of Puget Sound. His most recent n article is entitled "Institutional Signaling and the Origins of the Cold War" in the journal Security Studies (Summer 2003). His current research focuses on the signaling applications of international legal negotiations. Before getting his doctorate in political science from Duke University, he worked for the Strategic Assessment Center of Science Applications International Corporation as a Defense Analyst, where he designed strategic war games and workshops on issues such as the proliferation of nuclear weapons, the future of the Air Force, robotics, and biotechnology.

Between Duncan and Seth, we are very lucky to have such accomplished guest-bloggers over the next few weeks. Welcome!

ATS Lawsuit Against Haitian Colonel Goes Forward

Last week the 11th Circuit issued a decision in Jean v. Dorelien, available here, authorizing the plaintiffs ATS and TVPA lawsuit against the Haitian Colonel Carl Dorélien to go forward. In 1993, Dorélien allegedly subjected the plaintiffs relative, Michel Pierre, to torture, arbitrary detention, and cruel, inhuman and degrading treatment. The 11th Circuit reversed the dismissal of the lawsuit by the district court.

The case is important for two reasons. First, it reaffirmed the equitable tolling of the statute of limitations in cases involving grave human rights abuses. "Congress acknowledged that plaintiffs face unique impediments such as reprisals from death squads and immunity of high-ranking government officials in bringing human rights litigation. Litigation will often not be possible until there has been a regime change in the plaintiff's country of origin, after which the plaintiff can investigate and compile evidence without fear of reprisals against him, his family and witnesses... The pattern and practice of torture, mass murder, intimidation and reprisals against perceived opponents of the government during the military regime in Haiti from 1991 to 1994 as alleged in [the] complaint clearly qualify as extraordinary circumstances...."

Second, it ruled that the plaintiffs were not required to exhaust available remedies in Haiti. It declined to apply the exhaustion of remedies requirement for ATS claims. As for their TVPA claims, the court found that defendants had not satisfied their burden of showing that plaintiffs had not exhausted available remedies under the TVPA. The facts are complicated because in November 2000 a Haitian tribunal found Dorélien responsible for the massacre the led to Pierre's death, but that since that time Dorélien has been freed from prison and returned to power. As such, this Haitian judgment is currently ineffective and unenforceable in Haiti.
In a bizarre twist in the story, this particular defendant is anything but judgment proof. While living in the United States in 1997 Dorélien won over $3.2 million in the Florida lottery. Part of this ATS litigation involves attempts by the plaintiffs to prevent Dorélien from shielding these assets from future attachment. A Florida state court has blocked the transfer of over $1 million of Dorélien's assets. Dorélien attempted to assign to a third party, LSC, his right to 13 additional payments of $159,000 in exchange for one-time payment of $1.3 million. Part of the plaintiffs' claim is that that transfer was fraudulent and a violation of state laws on the fradulent transfer of assets.
What is not clear is why the plaintiffs are still pursuing their ATS and TVPA claim given that, according to this report, the Haitian judgment has been enforced in the United States as a foreign money judgment and the plaintiffs are seeking to garnish Dorélien's assets pursuant to that judgment.

Sunday, December 04, 2005

International Relations Via The Onion

Lots of breaking international news over at The Onion. As reported here, a group named the Army of Martyrs has acquired a quarter kilogram of plutonium, but then its terrorist efforts were thwarted after they discovered that not a single member of the group had the necessary physics and engineering background to construct a thermonuclear device. In addition, in this piece the nation of Snakistan reportedly has broken off relations with Fritolaysia after the latter signed a fat-free trade agreement with the Yogurtslavian nation of Colombo. Next, there is a disturbing report of the CIA's use of black markers to conceal its activities. Finally, in this report on today in history, Sadat and Begin celebrate their 1979 Middle East peace accord at Studio 54 in New York.