Saturday, December 24, 2005

Presidential Wiretapping - Not Such an Easy Legal Question

My travelling during the past two weeks has prevented me from blogging. Luckily, our intrepid guest bloggers Duncan and Seth have filled in wonderfully, along with our Opinio Juris regulars.

Although I have enjoyed reading posts from both Duncan and Seth (and I hate to start a fight on Christmas Eve), I have to disagree with some of Seth's analysis of the presidential wiretapping flap. In blogosphere time, I realize I am very, very late to the fray, but better late than never. To sum up my views briefly (because this is a long post): I think the legality of the presidential wiretapping program is a much harder question than Seth and other critics have suggested. It is almost certainly constitutional. The only question is whether it violates a federal statute.

(1) The President has inherent constitutional power to conduct "foreign signals intelligence" or foreign wiretapping.
Although there is no specific text in the Constitution authorizing presidential spying, and (as far as I know) there is no specific congressional statute, there is little doubt that the President's broad foreign affairs powers permit him to engage in purely foreign intelligence gathering. In other words, even without congressional authorization, the President has the constitutional authority to authorize agencies like the CIA or the National Security Agency to monitor foreign telephone calls and other electronic communications.

(2) The Fourth Amendment almost certainly does not constrain Presidential wiretapping abroad and even wiretapping of cross-border wiretapping
The Fourth Amendment is the main constitutional protection against unreasonable governmental searches and seizures. The Fourth Amendment has not been applied strictly to border searches, even of U.S. citizens, so it seems unlikely that it would apply to cross-border wiretapping, even if one party is a U.S. citizen. The Supreme Court has also held that the Fourth Amendment does not apply completely to U.S. actions overseas, even if the evidence seized in violation of the Fourth Amendment is used in U.S. court.

(3) The Foreign Surveillance Intelligence Act is the only legal limitation on the President's cross-border wiretapping program
There is only one serious criticism of the legality of the wiretapping program: that it violates the Foreign Surveillance Intelligence Act, a federal statute. Those critics have a very strong argument, as Seth and others have explained. The FSIA is a fairly comprehensive act and the Administration has already admitted that its program does not comply with the FSIA. The Administration's defense is based on two arguments: (1) Congress has authorized the wiretapping program in its authorization of the use of military force; (2) The President has a fundamental Commander in Chief power to engage in cross-border signals intelligence.

Unlike Seth and other critics, I think these arguments are both relatively persuasive, although I admit that this is a close question and a court could easily find the President in the wrong here. But they could also go the other way. Here's why:

(4) The Authorization for the Use of Military Force (AUMF) has been interpreted broadly by the Supreme Court and it is also phrased very broadly.

The Supreme Court's decision in Hamdi v. Rumsfeld upheld the indefinite detention of a U.S. citizen on the basis of the September 11 AUMF. It relied on the AUMF's broad language authorizing the President to take necessary and appropriate force against those responsible for the September 11 attacks, Al Qaeda, and their allies. This force included detention without probable cause or any rights other than a limited due process right to challenge their designation. The theory was that the AUMF authorized the President to exercise all fundamental powers incident to warfare in carrying out the resolution, and this included detention as an enemy combatant.

In my mind, it is hardly implausible that a President authorized to detain enemy combatants is also authorized to engage in cross border signals intelligence, which implicates far less serious individual liberty interests than detaining someone as an enemy combatant. Moreover, this power is far more likely to fall within the core of the President's power as Commander in Chief.

Some have pointed to to 50 U.S.C. s 1811 , which limits Presidential surveillance of "foreign intelligence information" to a mere 15 days after a declaration of war. If the statute gives the President 15 days after a declaration of war, one might argue, than how could the AUMF give broader authorization??

(5) The AUMF might actually give broader powers to the President than a Declaration of War

As a structural matter, the AUMF is indistinguishable from a war declaration, with both requiring the assent of both houses of Congress. Moreover, as a textual matter, the AUMF does give the President more explicit authority (e.g. "necessary and proper") than a typical declaration of war. So it does strike me that there is a plausible argument that the AUMF granted the President more authority than a typical declaration of war would have. In other words, the President gets what Justice O'Connor called the "fundamental incidents" of war but also gets the broad authority to combat those allied with the Sept 11 attacks.

o o o

Is there any limit to what I think the current AUMF authorizes? I think if the facts reveal the program was not really seeking to wiretap suspected terrorists linked to Sept. 11 or AlQaeda, then the program is more likely in violation of the statute. If, for instance, the President was wiretapping his political enemies, than that is a plain violation and probably an impeachable offense. But there is nothing like that even alleged so far.

The functional problem, though, is how to interpret and cabin the AUMF to keep it from being a blank check to the President. I agree this is a problem, although not an insurmountable one. Congress can obviously amend the AUMF or even withdraw it. It can amend the FISA to plainly prohibit the President's activities here. I just don't think Congress has spoken plainly here (whatever Tom Daschle says, btw, because after the fact statements by legislators are almost always irrelevant to interpreting a statute). The AUMF, as it is currently drafted and as it is currently interpreted, can and probably does provide legal authority for the president's wiretapping program.

Friday, December 23, 2005

Separation of Powers and the War on Terror

An Italian Judge today issued a European Arrest Warrant for 22 individuals alleged to have been involved in a CIA abduction of a Muslim cleric in Italy in 2002. Osama Mustafa Hassan was purportedly seized by CIA agents on February 17, 2003 in Milan, without permission from Italian authorities, and sent to Egypt for questioning. Mr. Hassan later alleged being tortured through electrical shock treatments in the interrogations. An earlier Italian arrest warrant had already been issued against the 22 suspects, so today’s action is significant largely because it extends from Italy to all 25 European Union Member States the geographic scope within which these individuals could be detained.

Yesterday, the Fourth Circuit Court of Appeals rejected the Department of Justice’s request to transfer "enemy combatant" Jose Padilla from military to civilian custody to face criminal charges for participating in a terrorist organization. The Court expressed concern that DOJ ‘s criminal case no longer referenced the allegations that Mr. Padilla had taken up arms against the United States in Afghanistan and had been plotting to blow up buildings in the United States with a "dirty bomb" – allegations on which the Fourth Circuit had relied in upholding Mr. Padilla’s detention as an enemy combatant. The court suggested that the government’s actions left "the impression that Padilla may have been held for these years, even if justifiably, by mistake." The court’s opinion also questioned whether the transfer was motivated by an effort to ensure the Fourth Circuit’s earlier decisions concerning Padilla would not be reviewed by the U.S. Supreme Court.

What do these two cases have in common? They both reflect the increased willingness of courts to check executive power, whether here in the United States or abroad. The Italian judge in the Hassan case is operating without support from Italy’s Executive Branch; the Italian Justice Minister called the judge a "leftist militant" and Prime Minister Berlusconi, a close U.S. ally, said he saw no basis for the abduction case. Similarly, the Fourth Circuit, which until now had been noted for its deference to U.S. Executive interests, has become a significant roadblock to the Executive Branch’s prosecution of Mr. Padilla. Although only anecdotal evidence, both cases suggest that the deference accorded Executive officials to combat terrorism, which was nearly absolute in the immediate aftermath of 9/11, is now seriously on the wane.

Nor is the judiciary the only governmental actor stepping in to check Executive authority. In recent weeks here in the United States we’ve witnessed the McCain Amendment, Congressional resistance to renewing the Patriot Act (with Congress giving it only a one month extension as of yesterday), and Congressional inquiries into Presidential authorization of domestic wiretapping outside of the Foreign Intelligence Surveillance Act (FISA). Similarly, in Europe, the European Parliament has announced its own investigation into allegations that the United States operated secret prisons in EU Member States for high-value terrorism suspects.

Of course, the Executive continues to have considerable authority both here and abroad when it comes to issues involving foreign affairs. In the Hassan case, for example, the Italian Government appears unwilling to request the extradition of the 22 suspects, notwithstanding the judge’s arrest warrants. And in the Padilla case, the Executive Branch hinted that it might go ahead and transfer Padilla to Miami, irrespective of the Fourth Circuit’s opinion, on the ground that it did not need judicial approval for the transfer after all.

Whether the Executive will ultimately prevail in these cases is open to question, but clearly we are leaving the initial post 9/11 period behind, and with it the notion of near absolute judicial and legislative deference to executive power. Future efforts to combat terrorism will require governments to consider the views and positions of all their branches. This may make it harder for the Executive Branch to act in future cases, and we can debate whether that will benefit terrorists. But to the extent future Executive actions are taken with the support or outright approval of their judicial or legislative branches, those actions are likely to have greater support and legitimacy that we have witnessed of late.

Domestic Spying and Executive Power Redux

In an earlier post, I wrote that the language of the 2001 resolution authorizing President Bush to use force against al Qaeda and international terrorism did not specifically cede power over the domestic arena. Thus, the use of the NSA to monitor the conversations of US citizens in this country without going through the FISA courts was likely both illegal and unconstitutional and could certainly not be justified under Senate Joint Resolution 23.

It turns out that the Bush Administration must have been aware of this problem, as it asked Congress to specifically grant power to prosecute the war on terror domestically. In an op-ed in today's Washington Post, former Senator Tom Daschle (who was Senate Majority leader during 9/11 and the passage of SJR 23) writes that "minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text." If Daschle's accout is accurate, this is a clear indication that the Bush Administration believed that the resolution as drafted was too narrow for its purposes and would not permit domestic activity, such as intelligence operations against US citizens.

In a concurring opinion to Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson wrote that the ability of the president to expand his powers depended on the relationship between the desired action and Congress. When Congress has authorized the president to act, the president stands on the most firm legal and constitutional ground. If Congress has been silent, the president has a good case for action, and the question becomes more of a political one. But when Congress has expressly denied the president a particular power, any action to assume that power is highly suspect. Given that the Bush Administration asked for the ability to prosecute the war on terror domestically and was rebuffed, it seems that the question of use of the National Security Agency to spy on US citizens domestically falls into the third category. I am now even more convinced that, as I concluded in the first post on this matter, that this action by President Bush was both illegal and unconstitutional.

Opinio Juris: Over 100,000 Served

This morning we had our 100,000th visit to Opinio Juris. Peggy, Roger, Julian and I want to thank everyone for reading and returning to our site and especially for taking part in the discussions. We can’t believe that in less than a year there would be 100,000 visits to a site that focuses on our discussions on international law and politics.

In the last year we’ve added a new blogger (Roger), had guests join us (Duncan and Seth, currently), started an interview series, and, in general, tried to bring up some interesting points about foreign policy and international law every day of the year. We try to present ideologically diverse views and engage in a real discussion on timely (and not-so-timely) topics. We hope you have as much fun here as we do.

While today marks our 100,000th visit, next month will be our one year anniversary and we have a few significant changes that we plan on rolling out then. I’ll leave that for the anniversary.

And, as always, if you have suggestions as to how we can improve this site, please contact one (or all) of us. And, if you like what we are doing, please tell your friends and colleagues about Opinio Juris.

Thanks, and we will try to make the next 100,000 visits even better.

The Global Perils of Christmas

In real news worthy of The Onion, here are a few stories circulating around the globe on the perils of Christmas:

1. In Paisley, Scotland a gang of youth attacked Santa at a shopping mall. The Santa Claus, a.k.a. Malky Watret, used his bag as a shield and a Christmas tree as a sword to fend off the attackers. Santa said of the ordeal, "They were calling me a fraud and a fake. If it had happened on the street I might have acted differently - I'd have given them a few choice words, but you can't do that dressed as Santa." (Link).

2. But the tables were turned in New Zealand. Forty drunken Santas described by Auckland police as an organized group of village idiots vandalized, smashed beer bottles, and attacked security staff. (Link). Police have requested tips from the public on any person wearing a red coat, red pants, red hat, black boots, and a large black belt.

3. In Leicestershire, England teachers who receive gifts from students must keep a detailed list of all presents they receive. Anything above a bar of chocolate or bottle of wine must be registered. According to a city councilman, the purpose of the Yuletide log is that "there be no suggestion that by taking the gift, preferential treatment should be received by the giver." (Link). Teachers' pets in England reportedly will take drastic measures to increase their chances of receiving high marks. Gifts received have included red "Hello Kitty" knickers, a pillow case, a pasta brooch, and a dead pheasant. (Link).

4. In Burundi, the government is imposing fines of $50 (six months salary) or two-year jail terms if you are caught cutting down a Christmas tree. The environmental ministry reported that the country had lost enough of its forest cover and could not afford any more trees to be cut down. The ministry encouraged residents to use artificial trees. (Link).

5. Christmas came early in the village of Carvin, France. It seems that 50 Euro notes were inadvertently put in the ATM slot meant for 20 Euro notes. The ATM malfunction caused a rush on the ATM machine until the police sealed off the area. The bad news is that all clients were tracked by the computer and the bank is demanding reimbursement. (Link).
6. In Coventry, England buying the wrong gift will result in a fine for anti-social behavior. If you purchase a mini-motorcycle you face arrest and a penalty of 5,000 pounds and an ASB citation. (Link).

7. In Rhode Island the official state Christmas tree fell victim to the state's strict new fire code. "With the new fire code, we're supposed to spray it, and apparently the spray killed it," said Governor Donald Carcieri. Under state law, Christmas trees are "flammable vegetation" that must be treated with fire retardant, even if it kills them. (Link).

8. In Warwickshire, England thieves stole 40 Christmas turkeys from a truck outside the Belfry Hotel. The authorities encouraged anyone offered cheap meat to call the Warwickshire police immediately. (Link). Meanwhile in Lincolnshire, thieves stole an eight-foot inflatable Santa, several snowmen from a garden and even the bulbs from the town Christmas tree. (Link). Police have warned residents in the neighboring town of Whoville to keep on the look out for any suspicious-looking characters.

9. In Gwynnedd, Wales, Santa has apologized for a pub stop after a Christmas parade. Witnesses reported that Santa's float stopped outside the pub, whereupon Santa jumped off, entered the pub, and took off his beard in full view of children. One child who witnessed Santa with a pint said his belief in the real Santa was unwavering. "I saw his ears, and they were pointy, so I knew he wasn't a proper Santa. I guess he was one of the elves helping out." (Link).

10. And finally, in Bethlehem strikers stormed city hall and the rooftop overlooking Manger Square in a labor dispute with the Palestinian Authority. The strikers expressed frustration with lack of pay. (Link). No word if the grievance also concerned the centuries-old difficulty with housing shortages in and around the little town of Bethlehem.

Thursday, December 22, 2005

UN Reform and the Future of International Law

In yesterday's New York Times, we find an article in which UN Secretary-General Kofi Annan bemoans the difficult year the UN has had in 2005. In particular, Annan gripes about the difficulties in creating a new Human Rights Council that will not have to seat notorious human rights violators like Sudan, the grueling ordeal of the oil-for-food scandal, and the problems the UN is having in passing its budget. Relatedly, in today's Times, we read that while talks between the EU-3 and Iran about Iran's nuclear program are resuming, there is little hope for significant progress. The main obstacles here are the resistance of Russia and China to referring the matter to the UN Security Council and, of course, Iran's insistence on its right to develop an indigenous nuclear program that includes enrichment technology.

The common thread, and the largest problem in the development of meaningful and effective international law, is the problem of sovereignty. The UN was created in the aftermath of World War II with two main purposes: the prevention of large-scale inter-state conflict and the protection and promotion of state sovereignty (especially in the wake of the demise of the European colonial powers). Now, however, the purpose of the UN is changing. Inter-state war is no longer perceived as the primary threat to international security, in a large part due to the overwhelming dominance of American military and political hegemony. "Human security" issues like human rights and the prevention of genocide have risen on the security hierarchy, and the "hard" security issues that do exist, like terrorism or proliferation, have a much larger intra-state dimension to them. The problem is that the UN is not well suited to dealing with internal issues. If Russia and China refuse to allow the IAEA to refer Iran to the Security Council, the UN will be unable to act. If enough developing countries resist making membership on UN committees like the Human Rights Council contingent on meeting certain standards (and it's also likely that Russia and China would object as well), the UN will be unable to act.

What can be done to make international law more credible, enforceable, and relevant? In the short- to near-future, it's almost impossible to imagine any serious reform transforming the UN into a body capable of handling these kind of issues. While some people may dream of a truly international body that can enforce international law, perhaps it may be time to give that dream up. International law is at its best when it works through inducements (like the WTO) rather than coercion (like UN sanctions). Yes, the WTO has a punishment mechanism, but it really works by promoting cooperation in order to obtain long-term benefits of free trade and open markets. The UN has little to offer countries in order to get compliance on thorny and truly important issues, like nuclear proliferation or genocide. Inducements work best between like-minded countries that see common ground in their national interests. So, perhaps the international system should become bifurcated. The UN can continue to deal with the global issues at which it actually does reasonably well, such as the WHO or UNICEF, and could remain as a global forum to provide peacekeeping and prevent interstate war. Those countries interested in expanding the scope and power of international law could set up their own organization, like the EU, WTO, or NATO, in which sovereignty is curtailed to a greater degree and members gain serious benefits as a payment for cooperation. Of course, this is exceedingly unlikely, but I just don't ever see the UN, hobbled by sovereignty and vetoes, as being effective.

Eritrea Ethiopia Claims Commission Finds Eritrean Liability for Start of Conflict

The Eritrea Ethiopia Claims Commission has issued its final set of awards, including the award concerning liability for starting the 1998-2000 border war between these countries. See press reports from the BBC and CNN.

Eritrea had successfully split off from Ethiopia in the 1990’s after a protracted insurgency. However, tensions still existed and, in particular, there were issues concerning the delimitation of the boundaries of the two states.

The 1998-2000 border war claimed 70,000-80,000 lives. In its wake, and as part of the peace settlement, the Eritrea-Ethiopia Boundary Commission was formed to set the proper boundary between the two states and the Claims Commission was established to resolve the various damage claims arising out of the conflict. The Claims Commission is under the auspices of the Permanent Court of Arbitration (see also the PICT summary), which provides states with rosters of potential arbitrators.

Of the various awards made public on December 19th, the judgment on the jus ad bellum claims--the claims related to the outbreak of the conflict--are especially noteworthy.

According to the award,

Ethiopia contended that Eritrea planned and carried out [a series of attacks beginning in May 1998] against Ethiopia in violation of its obligations under international law, including notably the requirement of Article 2, paragraph 4 of the Charter of the United Nations that all members refrain from the threat or use of force against the territorial integrity or political independence of any State.

Eritrea had four main responses:

(a) the fighting had started on territory that was unlawfully occupied by Ethiopia;
(b) that an Ethipioan armed militia started the fighting with a series of incursions into Eritrea;
(c) Ethiopia declared war on Eritrea (not vice versa); and
(d) Eritrea’s actions were in self-defense.

The Commission denies the legal validity of the first claim—that force can be used to satisfy border diputes. Particulalry since such disputes are so common, weakening this principle "would create a large and dangerous hole in a fundamental rule of international law.”

The analysis of the second response—that Ertirean actions were in response to Ethipian armed militias—provides an interesting analysis of the right of self-defense in the UN Charter. The Commission writes:

As the text of Article 51 of the Charter makes clear, the predicate for a valid claim of self-defense under the Charter is that the party resorting to force has been subjected to an armed attack. Localized border encounters between small infantry units, even those involving loss of life, do not consoitute an armed attack for the purposes of the Charter.

This question of how large a military engagement must be before it is an “armed attack” sets a threshold requirement of Article 51. It may be an extension of the idea that any act of self-defense should be proportional to the attack and that some skirmishes are of such a minimal security threat as to not require any response beyond the fighting of the skirmish itself. I am curious to see if this is a point on which other commentators will focus. (The Commission also noted that Eritrea never invoked Article 51 or notified the Security Council of its acts as self-defense until the Commission hearing.)

The Commission then walked through the facts leading up to the Eritrean incursion into Ethiopia and reiterated that any of Eritrea’s arguments based on the doctrine of self-defense failed for lack of an initial armed attack by Ethiopia.

Concerning the alleged Ethiopian declaration of war, the Commission notes a resolution by the Ethiopian Council of Ministers and Parliament that condemned the armed incursions and demanding an immediate and unconditional withdrawal of Eritrean forces. However, the Commission explains,

This resolution was not, as Eritrea had asserted, a declaration of war. In international law, the essence of a declaration of war is an explicit affirmation of the existence of a state of war between the belligerents.

While Ethiopia demanded the removal or forces and claimed a right of self defense, the parties also kept up diplomatic and economic relations, after the resolution which would not have been expected if this resolution was an actual declaration of war.

Based on these arguments, the Commission found Eritrea liable for the armed attack on and immediately following May 12, 1998. The Commsission did not find adequate evidence to support th claim that the attack was premeditated.

The proceedings will now move to a damages phase to set the amount of compensation to be paid by Eritrea.

This award comes at a time of great danger in Ethiopian-Eritrean relations. The International Crisis Group writes:

The fragile peace maintained by Ethiopia and Eritrea since they signed a comprehensive agreement at Algiers in December 2000 is fraying dangerously. With a costly two-year war now followed by nearly five years of stalemate, patience on both sides of the border has worn thin, and there are worrying signs that the countdown to renewed conflict may have begun. Neither side appears eager for war, but to dismiss the tensions as mere sabre-rattling could mean missing the last chance to preserve peace in the Horn of Africa. The two parties need help urgently from the Algiers Group – the African Union (AU), European Union (EU), UN and U.S. – who witnessed the original accords. Its members need to work together urgently to forge a “3-Ds” parallel process of de-escalation, border demarcation and bilateral dialogue, using both intensive diplomacy and the credible threat (and employment as necessary) of punitive measures….

At the heart of the problem is the ruling of the independent Boundary Commission established to delimit and demarcate the contested border. Both sides agreed in advance that its decision would be final and binding, but the ruling produced a stalemate that has brought them back to the brink of war. The primary bone of contention is the small, dusty border settlement of Badme, where the 1998-2000 war started. Having initially welcomed the boundary decision, Ethiopia reversed itself upon learning (after closer examination of the less than clear documentation) that this town – against the expectations of both sides – had been awarded to Eritrea.

The coming weeks and months will require a delicate interplay of dispute resolution measures, such as the work of the Claims Commission and the Border Commission, and hard diplomacy to prevent the outbreak of further violence in the Horn of Africa.

Darwinian War and Peace

A few weeks ago I addressed the question in this survey of whether war is part of the natural order of things and a necessary part of human existence. As of today, the survey respondents were equally divided 50%-50% on the question. Our readers appear decidedly ambivalent about the proposition that war is an inherent part of human existence.

For what it is worth, we now have some help on the question from biologists. An evolutionary analysis of the question of war and peace was just published in an interesting article by Robert Sapolsky in Foreign Affairs this month entitled The Natural History of Peace. The question posed in the article is whether other primates display behaviors of war and peace similar to homo sapiens. The thesis of the article is that humans are not exceptional in their aggressive, war-mongering behavior, but neither are they "killer apes" destined for violent conflict. In short, peace can be a learned behavior in all primates.

Here is an excerpt:
"In the early 1980s, "Forest Troop," a group of savanna baboons I had been studying ... for years, was going about its business in a national park in Kenya when a neighboring baboon group had a stroke of luck: its territory encompassed a tourist lodge that expanded its operations and consequently the amount of food tossed into its garbage dump. Baboons are omnivorous, and "Garbage Dump Troop" was delighted to feast on leftover drumsticks, half-eaten hamburgers, remnants of chocolate cake, and anything else that wound up there. Soon they had shifted to sleeping in the trees immediately above the pit, descending each morning just in time for the day's dumping of garbage....

The development produced nearly as dramatic a shift in the social behavior of Forest Troop. Each morning, approximately half of its adult males would infiltrate Garbage Dump Troop's territory, descending on the pit in time for the day's dumping and battling the resident males for access to the garbage. The Forest Troop males that did this shared two traits: they were particularly combative (which was necessary to get the food away from the other baboons), and they were not very interested in socializing (the raids took place early in the morning, during the hours when the bulk of a savanna baboon's daily communal grooming occurs)."
The authors then relate how disease decimated all the aggressive baboons in both troops who had been fighting over the new food source. The result was a much more peaceful, low aggression/high affiliation troop. Years passed and new males from outside the troop were added (unlike females, males leave their troop and migrate to other troops at puberty), diminishing the importance of the genetic imbalance toward low aggression males (so-called "selective bottlenecking"). Yet the peaceful culture of the troop persisted.
"At present, I think the most plausible explanation is that this troop's special culture is not passed on actively but simply emerges, facilitated by the actions of the resident members. Living in a group with half the typical number of males, and with the males being nice guys to boot, Forest Troop's females become more relaxed and less wary. As a result, they are more willing to take a chance and reach out socially to new arrivals, even if the new guys are typical jerky adolescents at first. The new males, in turn, finding themselves treated so well, eventually relax and adopt the behaviors of the troop's distinctive social milieu.... [T]he savanna baboon became ... a textbook example of life in an aggressive, highly stratified, male-dominated society. Yet within a few years, members of the species demonstrated enough behavioral plasticity to transform a society of theirs into a baboon utopia."
The suggestion of Sapolsky is that peaceful behaviors can be learned by all primates, including humans.
"The first half of the twentieth century was drenched in the blood spilled by German and Japanese aggression, yet only a few decades later it is hard to think of two countries more pacific. Sweden spent the seventeenth century rampaging through Europe, yet it is now an icon of nurturing tranquility. Humans have invented the small nomadic band and the continental megastate, and have demonstrated a flexibility whereby uprooted descendants of the former can function effectively in the latter. We lack the type of physiology or anatomy that in other mammals determine their mating system, and have come up with societies based on monogamy, polygyny, and polyandry. And we have fashioned some religions in which violent acts are the entrée to paradise and other religions in which the same acts consign one to hell. Is a world of peacefully coexisting human Forest Troops possible? Anyone who says, "No, it is beyond our nature," knows too little about primates, including ourselves."
Of course, I'm not knowledgeable enough about biology or primatology to know whether this evolutionary theory has merit. But it is an interesting thesis. Sapolsky suggests we may be natural born killers, but we can be nurtured toward peace.

Wednesday, December 21, 2005

UN Adopts Whistleblower Protection Rules

Secretary General Kofi Annan today announced the adoption of a whistleblower protection policy for the U.N. The policy, which goes into effect next month, is intended to protect U.N. employees who report misconduct and/or who cooperate with investigations:
It is the duty of staff members to report any breach of the organization's regulations and rules to the officials whose responsibility it is to take appropriate action. An individual who makes such a report in good faith has the right to be protected against retaliation.

This is welcome news for the project of creating genuine accountability at the U.N. and should help promote the kind of cooperation and good citizenship necessary to effective internal audits and investigations. It sets a standard higher than those available to government employees of many -- if not most -- member states.

The full text of the policy is here.

ICJ Decisions Rejected by Eleventh Circuit

The Eleventh Circuit this week rejected reliance on the ICJ Vienna Convention decisions in LaGrand and Avena to reconsider a British national's conviction for murder. Noting that his claim had been procedurally defaulted, the Eleventh Circuit in Maharaj, available here, concluded that the Supreme Court's decision in Breard was controlling. "In Breard, the Court unambiguously held that a habeas petitioner's Vienna Convention claim was procedurally barred in federal court because it was not raised in the state court proceedings.... The Supreme Court has not retreated from its position in Breard, and none of the recent developments cited to us call the holding of Breard into substantial question, let alone overrule Breard."

Maharaj then relied on the ICJ's decision in LaGrand and Avena to have his Vienna Convention claims reconsidered. "Petitioner directs us to the cases of Avena and LaGrand, where the I.C.J. held that it was error to dispose of a claim under the Vienna Convention by use of a procedural bar. Petitioner cites no authority, however, for the proposition that precedent from the I.C.J. is binding upon this or any other state or federal court in the United States. Unsurprisingly, we were unable to find any controlling case law permitting us to ignore the rulings of the Supreme Court of the United States in favor of one from an international tribunal."

Maharaj underscores the importance of the two pending Supreme Court cases in Sanchez-Llamas v. Oregon and Bustillo v. Johnson. Hopefully those Vienna Convention decisions will provide some clarity regarding the relevance of ICJ decisions on federal courts.

Tuesday, December 20, 2005

Peacebuilding and the Westphalian Legal Order

Today, both the United Nations General Assembly (UNGA) and the United Nations Security Council (UNSC) passed closely coordinated resolutions (see here and here) approving the establishment of a new "Peacebuilding Commission" (UN buffs will find such a procedural move noteworthy in its own right). As for the Commission, it will serve as the UN’s central repository for advising countries emerging from conflict to ensure they continue on the road to recovery. The Commission will have 31 nation-state members, including members who will represent the UNSC, the UNGA, the top contributors to the UN budget, and the top providers of military and civilian personnel to UN missions.

The Peacebuilding Commission is one of the few tangible results to emerge from the much-hyped UN reform summit this past September (the other one to watch for in the next few days would be a new Human Rights Council). The President of the UNGA went so far as to describe today’s move as truly "historic."

Although calling it "historic" might be mere hyperbole, I prefer to take the reference at face value. As an historical matter, I see the Commission’s creation by UN member states as demonstrating the continuing vitality of what international lawyers call the "Westphalian Legal Order." This is the notion that since the Treaties of Osnabrück and Münster ended the Thirty Years War in 1648 (collectively known as the "Peace of Westphalia"), the international legal order has functioned as a means of regulating relations among sovereign states. Certainly other subjects of international law now exist beyond the sovereign state, namely international organizations and, to a more limited extent, individuals. Moreover, terrorism provides a near daily reminder that threats to international peace and security can come from non-state actors as much as nation states themselves. But it is also true that international organizations obtain their legal personality through the action of sovereign states, just as individual rights and responsibilities under international law originate in state practice. Similarly, although terrorism may reflect the threat posed by some non-state actors, the tools used to fight it are (so far) largely state-centric through either national or inter-governmental action.

I see the Peacebuilding Commission, therefore, not as some "new" idea, but as a continuation of a much older one. Indeed, the central purpose of the Peace of Westphalia was to guarantee the peace through collective state action. And each of the subsequent (failed) efforts at collective action (e.g., the Congress of Vienna, the Congress of Berlin, the League of Nations, and, since 1949, the United Nations) had the same goal. With all the controversy over the UN’s continuing vitality and the need for reform, it’s fair to say the Peacebuilding Commission reflects one more effort in pursuit of that goal. Thus, as much as we talk about new actors and new threats in international law, it’s worth remembering how sovereign states are still the ones who address these developments and that the older problems of conflict and its aftermath remain. Whether the new Commission will work or not remains open to question (the odds are certainly stacked against it). But it got me thinking – aren’t we still in the same Westphalian Legal Order where sovereign states make the law and create the institutions (if any) to implement it?

The Death of Class Actions

Miriam Gilles has an interesting article in the Michigan Law Review (earlier version available here) warning of the impending death of class action litigation. Here is an excerpt:
[T]he vast majority of the remaining class actions are based on some sort of contractual relationship. Virtually all consumer class actions, for example, arise out of some form of contract (adhesive or otherwise), just as employment discrimination class actions arise out of employment contracts. Federal antitrust class actions necessarily grow out of contracts (indeed, standing rules require as much), and the same is true for class actions relating to insurance benefits, ERISA plans, mutual funds, franchise agreements, and an endless variety of other matters.

All of these contract-based class actions are, I believe, on their way to Mauritius. Corporate caretakers have concocted an antigen, in the form of the class action waiver provision, that travels through contractual relationships and dooms the class action device. Where class actions are based on some sort of contractual relationship, this toxin is quite lethal. Developed in the late 1990s by marketers for one of the arbitral bodies, among others, the waiver works in tandem with standard arbitration provisions to ensure that any claim against the corporate defendant may be asserted only in a one-on-one, nonaggregated arbitral proceeding. More virulent strains of the clause force the would-be plaintiff to waive even her right to be represented as a passive, or absent, class member in the event some other injured person manages to commence a class proceeding.
I am not nearly as critical of arbitration as Gilles, as I have seen first-hand how international and domestic arbitration is a salutory development in the modern era of globalization. But she is focused on one type of relief that is indeed threatened by arbitration. And she is right that we should not miss the momentous importance that arbitration and waiver clauses are having on the future of class action lawsuits.

For example, if you buy a Dell computer online and it goes on the blink because of a design defect, henceforth you will be precluded from aggregating your complaint with other similarly-situated claimants. Just read Article 13 here. You can arbitrate your petty little dispute, but there will be no class action muscle behind it. (Interestingly, Dell has not included such arbitration and class-action waiver clauses in their online contracts in other countries, such as the United Kingdom, France, and Spain, where Dell provides for litigation in the domestic courts of the respective jurisdiction.)

If a contract can include a choice of law clause, a waiver of a judicial forum, and a waiver of collective relief, then Gilles may well be right that collective action waivers will be the antigen that portends the death of contractually-based class action lawsuits. That may be good or bad thing depending on your perspective of the utility of those lawsuits in their modern incarnations.

ICJ Orders Uganda to Pay Damages to the Democratic Republic of Congo for Illegal Incursion

The ICJ yesterday handed down a decision in Democratic Republic of Congo v. Uganda, ruling that Uganda violated the principles of non-intervention under Art 2(4) of the UN Charter and further violated international human rights and humanitarian law when it launched military operations in the DRC between 1998 and 2003. The Court explicitly rejected Uganda's claim of self defense in the case, holding that Uganda should pay reparations, which the government of the DRC estimates will be in the $6-10 billion range. From the ruling:

(p. 57) The Court considers that the obligations arising under the principles of non-use of force and non-intervention were violated by Uganda even if the objectives of Uganda were not to overthrow President Kabila, and were directed to securing towns and airports for reason of its perceived security needs, and in support of the parallel activity of those engaged in civil war.

In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force,in support of an internal opposition in another State” (I.C.J. Reports 1986, p. 108, para. 206). The Court notes that in the present case it has been presented with probative evidence as to military intervention. The Court further affirms that acts which breach the principle of non-intervention “will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations”(ibid., pp. 109-110, para. 209).

In relation to the first of the DRC’s final submissions, the Court accordingly concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted an interference in the internal affairs of the DRC and in the civil war there raging. The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.

The Court further held that both IHL and human rights obligations were binding on the Ugandan troops then occupying the DRC, and that the Ugandan government was liable under the doctrine of responsibilityiblity for those acts:

(p. 71) In view of the foregoing, the Court finds that the acts committed by the UPDF [Ugandan People's Defense Force] and officers and soldiers of the UPDF (see paragraphs 206-211 above) are in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying Power. These obligations are binding on the Parties as customary international law. Uganda also violated the following provisions of the international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties:

. Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard
to obligations of an occupying Power;
. International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7;
. First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2;
. African Charter on Human and Peoples’ Rights, Articles 4 and 5;
. Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
. Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3, 4, 5 and 6.

The Court thus concludes that Uganda is internationally responsible for violations of international human rights law and international humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law and international humanitarian law in the occupied territory.

The full opinion in English is here.

Monday, December 19, 2005

Sudan Blocks ICC Probe on Darfur

The government of Sudan has announced it will not cooperate with the International Criminal Court investigation into atrocities in Darfur. No one should be surprised, since the Sudanese government is itself complicit in the very acts being investigated. In a report released last week, Human Rights Watch lays out in great detail the responsibility of the Sudanese government:

Since July 2003, Sudanese government forces and militia forces, known as "Janjaweed", have committed crimes against humanity and war crimes on a massive scale during counterinsurgency operations in Darfur, Sudan's western region bordering Chad. Civilians have suffered direct attack from land and air, summary execution, rape, torture, and the pillaging of their property.

Military services participating in the attacks on the civilian population in Darfur include the air force, army, security and intelligence services, and the paramilitary Popular Defense Forces (PDF) under the command and supervision of the army. These forces have conducted military operations in close cooperation with the Janjaweed militia, which the government recruited through informal networks of ruling party insiders, former military personnel, and leaders of nomadic tribes.

The Sudanese government at the highest levels is responsible for widespread and systematic abuses in Darfur. Based on eyewitness accounts, on-the-ground investigations in Darfur, government documents, and secondary sources, Human Rights Watch believes that President Omar El Bashir and other senior government officials, the regional administrative officials in Darfur, military commanders, and militia leaders should be investigated for crimes against humanity and war crimes, either as a matter of individual criminal responsibility or command responsibility.

The Sudanese government has failed to prosecute serious crimes committed in Darfur. Instead of pursuing accountability for war crimes and crimes against humanity committed by government officials and Janjaweed members, it has made no genuine effort to investigate -- much less discipline or prosecute --any of the individuals responsible. Instead, it has created a facade of accountability through sham prosecutions and created ad hoc government committees that produce nothing.

This development raises a couple of interesting questions.

First, what is the standard under the Rome Statute of the ICC for "complimentarity," the requirement that the ICC only prosecute cases where the state with primary jurisdiction is "unwilling or unable" to do so. Art. 17 Sect. 2 states:

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

Here, the Sudagovernmentement has said: "We have the national law authority... The government is willing and able to try to these cases." Of course, the Sudanese government has not yet brought any cases, nor does it appear likely to do so since its own actions lie at the heart of the allegations. That should be enough, given the passage of time, not to raise any objections of ICC jurisdiction under Art. 17. If however, Sudan does decide to bring its own case (regardless of whether they seriously intend to prosecute) that action may complicate the job for the ICC prosecutor who will then need to make his own assessment of compliance with Art. 17. It will be interesting to see whether Sudan attempts this kind of end run, or just continues to stone-wall.

The second issues concerns the fact that the current investigation was referred to the ICC prosecutor by Security Council Resolution 1593. Does that change what happens next? It appears the Council has an ongoing role to play here. It can and should demand cooperation by Sudan. Whether it will do so is contingent on China, which has a close relationship with the current Sudanese regime, and which abstained on 1593. But the Council need not wait untill the ICC's next progress report to demand compliance with the earlier resolution.

As some of you may recall, I supported vigorous military intervention in Darfur many months ago. I objected to the referral to the ICC so long as it was a fig leaf for inaction by the Council or a meaningful commitment of troops by NATO. Now it appears there is no humanitarian crisis to end; the "ethnic cleansing" is all but complete. Talks to end the conflict in the region are progressing slowly. Prosecution, however imperfectinadequateqaute, may be the only form of justice left. Let's see if the Security Council can have any impact on making it happen.

Sunday, December 18, 2005

Remember the War on Drugs?

Well, Evo Morales sure does and, as the man likely to be Bolivia’s next President, he’s going to make sure Washington remembers it as well—for the reasons it least wants to. Morales is the Socialist candidate for Bolivia’s presidency and he promises to reverse the any-coca growing campaign. Bolivia is the world’s third largest producer of coca. And in a move that sure to enamor him with the current Administration, Morales has promised to make foreign oil and gas companies to pay a fairer share to the Bolivian people. Here are a few evocative (pardon the pun) paragraphs from CNN:

Bolivia's Socialist presidential candidate Evo Morales, who has promised to become Washington's "nightmare," held an unexpectedly strong lead over his conservative rival in Sunday's election, according to two independent exit polls.

The wide margin means Morales, a coca farmer who has said he will end a U.S.-backed anti-drug campaign aimed at eradicating the crop used to make cocaine, will likely be declared president in January.

"If (the U.S.) wants relations, welcome," Morales said after voting, holding a news conference where piles of coca leaves were spread atop a Bolivian flag. "But no to a relationship of submission."

Among the countries where he does have good relations are, unsurprisingly, Cuba, Venezuela, and Brazil. Between Venezuela’s oil money, Bolivia’s drug money and Cuba’s...well, whatever it is Cuba still has, this could prove to be a serious head-ache for Washington. In any case it should be a wake up call that there are other pressing foreign policy issues besides Iraq and that while hegemony has its privileges, it also has its costs.

Stay tuned…

Bill and Bono's Excellent Adventure

Bono and Bill and Melinda Gates have been named Times’ People of the Year for their high-profile and effective philanthropic work. (See also this report.) Of particular note was their combined work on DATA, Debt, Aids, Trade, Africa, an organization they founded to focus on the combination of challenges facing Africa, and also the One Campaign, a U.S. campaign to fight AIDS and extreme poverty.

I’m just happy to post this because I’m a big U2 fan (and I was pulling for Bono to get this year’s Nobel) but I really do have a point to make about international law and foreign policy.

One of the prominent themes in international law in recent years has been the rising importance of non-governmental organizations—NGO’s—in the process of international policymaking. The following quote from DATA’s website echoes what many observers say about the work of NGO’s.

We talk to the experts, so we know what is really working — and what's not. We pull together, summarize and explain cutting-edge research on what works in Africa — and use our access to deliver those insights to top officials who might otherwise not hear the message of hope. And above all, we work to tell our leaders and politicians that people like YOU want to see action.

This combination of economic power and access can make such organizations very effective or, at least, have entrée where others do not. While I am enthusiastic about celebrating the worthy work of Bono and the Gateses, we also need to think about the power of such organizations, especially if they are involved in pressing policy options that we do not agree with. What role should international NGO’s have in the policymaking—and especially the treatymaking—process? What types of disclosures could the be expected to make?

I have no pat answers. So far I see much good from the work of international NGO’s such as DATA but NGO’s are merely tools and they can be used in different ways, depending on who wields them.

Update on Syria

In yesterday's Washington Post, we find an article in which Detlev Mehlis, the chief UN investigator into the murder of Rafik al-Hariri, actually accuses Syria of direct involvement in the assassination, as well as linking Syria to the murder of Gibran Tueni. While we can only sit and wait for the UN to release its evidence, let's hope that what has been gathered is so damning that Russia, China, and Algeria will have no hope but to support punishment. I'm skeptical...but slightly hopeful that the UN will actually be able to do something in a case so apparently obvious as this one. If not, however, watch out....