Author: Julian Ku

by Julian Ku

This is not really a big deal, but it is still annoying when President Obama (or any president) flagrantly breaks his campaign promises with respect to foreign policy matters that are completely within their executive discretion.  Today, in his commemoration of the Armenians who died in the 1916 expulsion from Turkey, President Obama carefully avoided the use of the word “genocide” to describe those killings. This is probably the right thing to do since, as a legal matter and as a diplomatic matter, especially given the legal standard that the ICJ has erected to determine intent. On the other hand, the President made a crystal clear promise to recognize the Armenian killings as a “genocide” that he has flagrantly broken. From his campaign website.

As a U.S. Senator, I have stood with the Armenian American community in calling for Turkey’s acknowledgement of the Armenian Genocide. Two years ago, I criticized the Secretary of State for the firing of U.S. Ambassador to Armenia, John Evans, after he properly used the term “genocide” to describe Turkey’s slaughter of thousands of Armenians starting in 1915. I shared with Secretary Rice my firmly held conviction that the Armenian Genocide is not an allegation, a personal opinion, or a point of view, but rather a widely documented fact supported by an overwhelming body of historical evidence. The facts are undeniable. An official policy that calls on diplomats to distort the historical facts is an untenable policy. As a senator, I strongly support passage of the Armenian Genocide Resolution (H.Res.106 and S.Res.106), and as President I will recognize the Armenian Genocide.

In fact, he has been lobbying hard to prevent the House from using the “G-word” and is clearly never intending to use it himself. Look, I get that this is a really hard diplomatic issue and that the prudent thing to do is to avoid the “G-word”.  But could candidates please refrain from making promises of this sort that they have no intention of keeping?

by Julian Ku

I still think there is no chance of this happening, but Christopher Hitchens offers this narrative of how and why he is pushing for legal action against the Vatican, or maybe at least a deposition of the Pope himself.

I telephoned a distinguished human-rights counsel in London, Geoffrey Robertson, and asked him if the law was powerless to intervene. Not at all, was his calm reply. If His Holiness tries to travel outside his own territory—as he proposes to travel to Britain in the fall—there is no more reason for him to feel safe than there was for the once magnificently uniformed General Pinochet, who had passed a Chilean law that he thought would guarantee his own immunity, but who was visited by British bobbies all the same. As I am writing this, plaintiffs are coming forward and strategies being readied (on both sides, since the Vatican itself scents the danger). In Kentucky, a suit is before the courts seeking the testimony of the pope himself. In Britain, it is being proposed that any one of the numberless possible plaintiffs might privately serve the pope with a writ if he shows his face. Also being considered are two international approaches, one to the European Court of Human Rights and another to the International Criminal Court. The ICC—which has already this year overruled immunity and indicted the gruesome president of Sudan—can be asked to rule on “crimes against humanity”; a legal definition that happens to include any consistent pattern of rape, or exploitation of children, that has been endorsed by any government.

Obviously, there is a lot of technical legal analysis Hitchens is missing here. Pinochet was  former head of state, for instance, sought under Spain’s universal jurisdiction law, not the U.K.’s own laws.  And how would the ECtHR get involved?

But the core of his argument is that the Vatican and the Pope do not deserve immunity.  I just don’t see how he can get around this problem since the UK and the US both recognize the immunity of the Vatican and UK and U.S. courts will almost certainly enforce this recognition.

by Julian Ku

The International Whaling Commission’s proposed compromise on the whaling dispute has been released (h/t Jurist). As I noted before, the proposed deal would bring all nations within the IWC framework, but explicitly permit commercial whaling for certain nations for at least the next 10 years. The numbers permitted under the proposal is a little murky, but it may include thousands of whales, including some whales that are considered endangered.  Predictably, the Greenpeace folks are opposed.  It is true that this is not exactly a whale-friendly compromise.  But Japan could, with relatively little cost, simply get out of the IWC and hunt even more. So the choice for whale-defenders is a tough one. But this compromise text looks promising.

by Julian Ku

In many ways, it is more important to note the continuity between Obama and Bush administration policies than to dwell on their differences. Given the political antecedents of the two administrations, the areas where they have adopted the same policy is a sure-fire sign that there is broad consensus in the U.S. on a policy.  I think we are getting close to such a consensus with respect to U.S. policy toward the ICC.  Here are the likely areas of the emerging U.S. consensus (after the jump):

1) The U.S. will not join, nor does it have any plans in the near future to join, the ICC.

2) The U.S. will seek to remain engaged in the ICC as an observer, and will no longer seek to obstruct or oppose ICC investigations and other works.  Indeed, it will cooperate with the ICC (as in Sudan) in certain cases.

3) The U.S. will oppose — strongly oppose — the current definition of “aggression” that may be adopted by the ICC at its Kampala review conference as well as the addition of “aggression” (however defined) to the jurisdiction of the ICC.

This last point is still up in the air since Kampala is not until next week. But it is a safe bet that the U.S. will follow this policy, as laid out in a persuasive and compelling report offering guidance on U.S. policy toward the upcoming International Criminal Court review conference in Kampala, Uganda.  Authored by Vijay Padmanabhan, a visiting lawprof at Cardozo and a former senior lawyer at the State Department Legal Advisor’s office, the report is probably a fair reflection of the views of the State Department on the ICC during the second George W. Bush term.  The directors of the report were both high-level Bush State Department officials: John Bellinger (Legal Adviser 2004-2008) and Matthew Waxman (former Deputy Director for Policy Planning).

Yeah, we (probably) have consensus!  Sure, not everyone is going to be happy. I myself am doubtful that the level of cooperation with the ICC recommended in the report will get the U.S. anywhere, but I do agree that rigid opposition has not been particularly effective either.  So I can live with the consensus, and with the policy of using the ICC sometimes, ignoring it when we need to (see, e.g., our recent policy toward Sudan), and trying to nudge it from the outside whenever possible.  So I wish the best of luck to the U.S. Kampala delegation.  They should feel good that there is a lot of consensus back home behind them!

by Julian Ku

This sounds impressive, but somehow it feels like the ICC Prosecutors is going in circles on Sudan.

THE HAGUE, Netherlands — The International Criminal Court prosecutor wants judges to report Sudan to the U.N. Security Council for refusing to hand over a government minister and a militia leader accused of atrocities in Darfur.

Luis Moreno Ocampo said in a written request to the court’s judges publicized Thursday that Sudan is refusing to arrest Humanitarian Affairs Minister Ahmed Harun and Janjaweed militia leader Ali Kushayb.

Indeed, this whole exercise of continuing to seek the arrest of Sudanese government officials seems completely independent from the continuing efforts to seek a negotiated resolution to the various Sudan conflicts.  The ICC Sudan process may not be hampering a long-term peaceful settlement of the Sudan problem, but it is certainly not even a part of the Obama Administration’s policy, or anyone’s, policy toward Sudan, as Nick Kristof seems to admit.

by Julian Ku

Did the ICJ ruling on Uruguay and Argentina help to resolve the dispute? Sort of.  There are some pesky protestors, though, who are not exactly convinced by the ruling.

Both sides said Tuesday’s decision by the International Court of Justice in the Netherlands gave them what they need to resolve their differences, with Argentina taking heart from a part of the ruling that said Uruguay did not properly inform it about the project.

The countries vowed to work through a binational commission to protect the Rio Uruguay.

A key hurdle remains, however, with no indication of how Argentine President Cristina Fernandez will overcome it: Argentine activists are still blocking the main bridge across the river and are refusing to give up their fight.

Meanwhile, having scanned the decision some more, the most interesting part of the decision may be Judges Al-Khasawneh and Simma’s joint dissent decrying the Court’s limited factual investigation and its refusal to develop better ways to examine complex scientific evidence.

by Julian Ku

Belgium and France are both considering laws to ban the wearing of full-face veils in public. According to Amnesty International, such bans would violate international human rights law.

“A general ban on the wearing of full face veils would violate the rights to freedom of expression and religion of those women who choose to express their identity or beliefs in this way,” said Claudio Cordone, Amnesty International’s interim secretary general.

“At the same time the Belgian authorities must make sure that all women who chose to wear the full veil do so without coercion, harassment and discrimination.”

Under U.S. constitutional law analysis, such a ban would have serious trouble under the Constitution’s Free Exercise of religion clause, especially because it seems aimed pretty directly at the religious practice of a single group. (Are yamakas in public next?)  But it would depend on the secular purpose of the law, which I don’t know much about.

Under, say, Article 18 of the International Covenant on Civil and Political Rights to which both France and Belgium are parties, there seems to be a pretty serious conflict  since it guarantees a right to religious practice (emphasis added).

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

And then there is the European Convention on Human Rights, Art. 9(1) (emphasis added):

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

So maybe Amnesty has a point. I suppose there might be a decent argument that the full-face veil is simply not a manifestation of a religious belief through practice and observance. Or that there is a strong public need to ban this practice. But there seems a clear basis for a challenge under the ECHR at least.  But I am far from an expert in this area, and would encourage any readers with better knowledge of the facts behind the bans, or with knowledge of how Article 9(1) has been interpreted, to comment.

by Julian Ku

Although the U.S. is already prosecuting a pirate captured last year in New York, I hadn’t realized the U.S. was going to be trying other pirates in federal court as well.  But since Kenya has stopped accepting pirates for prosecution in their courts, I guess it makes sense that the U.S. and other countries will have to step up to the plate. At least 6 are already en route, with up to 21 slated for future trials.  Time to set up shop in Norfolk as a pirate defense lawyer!

Thus far, the only pirates that will be tried here will be ones charged with attacking U.S. vessels or property.  But unless I’m mistaken, I don’t think there is any requirement that the pirate have a connection to the U.S. in order to stand trial.  18 U.S.C. 1651 seems to define piracy very broadly:  ”Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” This statute has not been used recently, to say the least, since the last reported case I found was in 1958. Moreover, in its earlier incarnation, courts construed it somewhat more narrowly to require at least the involvement of a U.S. ship (although not the involvement of a U.S. citizen) See U.S. v. Furlong, U.S.Ga.1820, 18 U.S. 184. Still, in theory, one could interpret the statute to authorize universal jurisdiction.  If Kenya won’t take anymore pirates for trial, we might see a test of the universal jurisdiction scope of Section 1651.

by Julian Ku

This seems like a bad idea for a number of reasons that are too obvious to go into here.

BUENOS AIRES, Argentina — Argentine human rights groups are turning the tables on Spain, hoping to open a judicial probe of murders and disappearances committed during the Spanish Civil War and the early years of Gen. Francisco Franco’s dictatorship.

Lawyers representing Argentine relatives of three Spaniards killed during the 1936-39 war will ask the federal courts here Wednesday to open an investigation, and hope to add many more cases in the months to come.

by Julian Ku

I haven’t really looked at it, but here is the ICJ’s judgment in the Argentina-Uruguay Pulp Mill Dispute. Although the Court found that Uruguay violated certain procedural obligations, it essentially ruled in favor of Uruguay on all substantive obligations (or it simply ruled that certain issues, like pollution effects, were outside its jurisdiction).  On the substantive obligations, there were three dissents, including one by Judge Simma (but not available yet, it seems).  The other materials on the case can be found here. Comments or thoughts on the case are welcome.

by Julian Ku

In this fascinating profile of Jeffrey Lena, the lead (and perhaps only) lawyer for the Vatican in defending sex-abuse related lawsuits in the U.S., one also gets an update on the status of the various U.S. litigations against the Vatican.  The current Supreme Court petition for consideration is Holy See v. John Doe. The Court hasn’t yet decided whether to take the case, which raises a very boring but important question of foreign sovereign immunity. Since the Court seems to take lots of these cases, and it has sought the U.S. government’s views on this case, there is a decent chance it will make it to the Court.

by Julian Ku

In interests of being “fair and balanced,” I thought I’d post Washington Post columnist Marc Thiessen’s rebuttal to Jane Mayer’s “devastating” New Yorker review of his book on Bush-era interrogation policies. At this point, neither side is really arguing the law much, but both seem focused on policy. Thiessen’s rebuttal looks pretty strong (as was Mayer’s review).  (see below for excerpts)

Here’s Mayer:

His account of the foiled Heathrow plot, for example, is “completely and utterly wrong,” according to Peter Clarke, who was the head of Scotland Yard’s anti-terrorism branch in 2006. “The deduction that what was being planned was an attack against airliners was entirely based upon intelligence gathered in the U.K.,” Clarke said, adding that Thiessen’s “version of events is simply not recognized by those who were intimately involved in the airlines investigation in 2006.” Nor did Scotland Yard need to be told about the perils of terrorists using liquid explosives. The bombers who attacked London’s public-transportation system in 2005, Clarke pointed out, “used exactly the same materials.”

Here’s Thiessen:

Mayer quotes an official from Scotland Yard (headquarters of London’s Metropolitan Police) who says this account is “completely and utterly wrong.” When I asked one former senior CIA official what to make of this, he laughed and asked: “How would he know?” The CIA, he explained, has no liaison with London’s Metropolitan Police — it deals with MI6 (the Secret Intelligence Service) and sometimes with MI5 (the Security Service). An official from the Metropolitan Police, he said, would have no way of knowing what intelligence the CIA shared with MI6 or MI5, much less the ultimate source of that intelligence. Another former intelligence official agreed with this assessment, telling me: “The British deserve a great deal of credit for this operation, but a significant portion of the ‘back room’ was comprised of American intelligence information and operations.” That includes intelligence provided by KSM.

Here’s Mayer:

Thiessen’s claim about Khalid Sheikh Mohammed looks equally shaky. The Bush interrogation program hardly discovered the Philippine airlines plot: in 1995, police in Manila stopped it from proceeding and, later, confiscated a computer filled with incriminating details. By 2003, when Mohammed was detained, hundreds of news reports about the plot had been published. If Mohammed provided the C.I.A. with critical new clues–details unknown to the Philippine police, or anyone else–Thiessen doesn’t supply the evidence. 

Here’s Thiessen:

In fact, I never make any such claim in my book — obviously it would have been impossible for a program that started in 2002 to have disrupted a terrorist plot in 1995. What I do write is that during CIA questioning, “KSM describes in detail the revisions he made to his failed 1994–1995 plan known as the ‘Bojinka plot’— formulated with his nephew Ramzi Yousef — to blow up a dozen airplanes carrying some 4,000 passengers over the Pacific Ocean” (i.e., these are revisions he made to the plot for the next attempt). I explain (Courting Disaster, pages 7–8) that years later, in 2006, an observant CIA officer noticed that the activities of a cell being followed by British authorities appeared to match the revised plan KSM described, and that the CIA officer shared this information with the British authorities. At first they were skeptical, but later they acknowledged that this was in fact what the cell was planning. It was this critical information from KSM that uncovered the terrorists’ true intentions.

Readers may decide on their own who is more persuasive. I have a feeling that it largely depends on whom the reader would believe more at the outset, rather than on reading the two articles. But let’s be honest. There is no “devastating” takedown that completely discredits Thiessen or an absolutely complete rebuttal here.  There is just a disagreement and lots of give and take.

by Julian Ku

In all the amused press notices about George Washington’s (very) overdue library books, one small detail is worth noting.

The library’s ledgers show that Washington took out the books on 5 October 1789, some five months into his presidency at a time when New York was still the capital. They were an essay on international affairs called Law of Nations and the twelfth volume of a 14-volume collection of debates from the English House of Commons.

(Emphasis added).  Actually, the “Law of Nations” as most of our readers know, is the 18th century term for what today we call international law.  And “Law of Nations” may in fact refer to Emmerich de Vattel’s “The Law of Nations”, perhaps the most influential treatise on international law among the American Founding generation. Was ol’ GW researching his Neutrality Act Proclamation?

by Julian Ku

I am pretty supportive of Obama Administration’s general approach to Sudan, largely because it reflects a realistic sense of the limits of the U.S. government’s ability to influence matters there as well as the (relative) unimportance of Sudan to the U.S. and to the wider region. And so I think the hardline ICC-favored approach to Sudan (demand the arrest of Bashir as a primary condition of further participation in Sudan’s peace process) is both unrealistic and self-defeating in the short term.  Then again, I (and Obama) could be wrong, as John Norris at Foreign Policy, argues. Still, even Norris presumes that the administration will have to work with the existing regime and leadership:

There’s no need to sacrifice U.S. policy goals to lofty truth-telling. In fact, there’s a case to be made that diplomatic goals are actually better achieved with frank honesty when elections don’t pass the smell test. For example, if the administration had taken a tougher line with Khartoum about creating the underlying conditions for a free and fair national election, the country would already be further down the road toward creating genuine power-sharing in Sudan. Such an arrangement would in turn incentivize Bashir not to engage in adventurism around the upcoming independence referendum, and it would be an important step toward preventing future conflicts in Northern Sudan — after the South heads for the exit. Would negotiating all this be difficult? Absolutely. Yet, grasping the nettle now seems far preferable to watching from the sidelines as Sudan descends into broader conflict — again.

So if shouting about democracy from the rooftops à la George W. Bush was not effective, neither will be defending democracy in mumbled tones. One hopes that this administration has learned from its initial stumbles. Obama will have an important opportunity to get it right when he offers his first public comments on Sudan’s election in the days to come.

by Julian Ku

Dapo Akande over at EJIL Talk! has a pretty persuasive argument in favor of the Vatican’s status as a state under international law, and therefore, the Pope’s right to head of state immunity.  Moreover, in the UK, the courts (like in the US) are bound to accept the determination of the foreign ministry as to individuals entitled to head of state immunity.  So maybe the lawyers in the UK threatening legal action are just blowing smoke. It certainly sounds like they will be blown right out of court.

by Julian Ku

During the recent “nuclear summit” in Washington, Dutch prime minister Peter Balkenende proposed the creation of a new international tribunal to enforce and punish violations of nuclear non-proliferation agreements.  Putting aside the fact that this is a blatant effort to put another international court in his hometown (the Hague), I agree with Prof. Göran Sluiter that this is a dumb idea. It is a great example of how creating an international tribunal or an international institution is often a substitute for doing something useful or important on an important policy question.  As Sluiter points out, we already have plenty of international courts.

Balkenende explicitly mentioned the reinforcement of the international rule of law as a basis for the creation of the new tribunal. In itself, this is an admirable goal. However, nations can already be held accountable in the International Court of Justice (ICJ), which has arbitrated international conflicts for almost a century and has long been a trusted advisor to the United Nations.

by Julian Ku

That very trendy and useful legal concept – the right of self-defense — is not just for targeting U.S. citizens to be killed. The U.S. military’s new “Cyber Command” chief has asserted that the U.S. government’s right of self-defense almost certainly permits it to take offensive “cyber” attacks.

… commanders have clear rights to self-defense, he said. He added that while “this right has not been specifically established by legal precedent to apply to attacks in cyberspace, it is reasonable to assume that returning fire in cyberspace, as long as it complied with law of war principles … would be lawful.”

Is the law of war the right paradigm? I suppose so.  I await further thoughts from our “resident” cyberwar expert. Prof Hollis?

by Julian Ku

Apologies for this interruption of a great VJIL discussion on Chris Bruner’s fascinating article, but I can’t resist yet another post on the continuing international dispute over whaling.  The NYT reports the U.S. is trying hard to broker a deal between the anti-whaling nations (read Australia) and whaling nations like Japan.

The compromise deal, which has generated intense controversy within the 88-nation International Whaling Commission and among antiwhaling activists, would allow the three whaling countries to continue hunting whales for the next 10 years, although in reduced numbers.

In exchange, the whaling nations — which have long exploited loopholes in an international treaty that aims to preserve the marine mammals — would agree to stricter monitoring of their operations, including the placing of tracking devices and international monitors on all whaling ships and participation in a whale DNA registry to track global trade in whale products.

This doesn’t quite sound like what Australia wanted, but it appears the Australians are on board.  So, sadly for me, we may be seeing an end, for the time being, of a potential ICJ showdown between Australia and Japan.  But there is always hope: negotiations are ongoing and could still fall apart.

by Julian Ku

Christopher Jencks, Chief of the International Law Branch of the Office of the Judge Advocate General, has a pretty compelling defense here of the legality of the U.S. detention and trial of Canadian Omar Khadr for violations of the law of war, despite the fact that Khadr was not quite 16 when he committed his alleged crimes.  The heart of his analysis seems to be based on Additional Protocols of the Geneva Conventions (which the U.S. is not a party to but to which it adheres as a matter of policy).

Additional Protocol I, which deals with IAC, discusses the protection of children in art. 77. While art. 77 affords special protections, those protections apply to children under 15. Even then, the special protections do not preclude children, even those under 15, from being arrested, detained, or interned if they take a direct part in hostilities. Under AP I, persons who had not reached 18 years of age when they committed an offense related to armed conflict are not subject to the death penalty. The clear inference is that such individuals may be held criminally responsible for their actions and subject to punishment, just not capital punishment.

Additional Protocol II, which deals with NIAC, describes the care and aid children require in art. 4, and in slightly more detail than AP I. It does so first as applied to children who do not take a direct part in hostilities or who have ceased to take part in hostilities. It then qualifies that the special protections remain applicable to children under 15 who have taken a direct part of hostilities. Again though, the special protections do not include protection or immunity from internment or detention, and wouldn’t apply to Khadr anyway as he was not under 15.

by Julian Ku

Following up on Ken’s post about the Washington Post editorial endorsing Harold Koh’s legal defense of targeted killings, it is worth analyzing the passage Ken quoted one more time, but this time from a domestic U.S. constitutional perspective:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force(AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

What is fascinating about this passage is that the Post seems to endorsing a general authority of the President to use deadly force against “current and future enemies that pose an imminent threat,” whether or not those enemies fall within the Authorization for the Use of Military Force. The Post seems to be endorsing an “inherent” right of the President to target enemies, with or without congressional authorization.

There was a time when the debate over the use of force by the U.S. government focused almost exclusively on a domestic separation of powers conversation. U.S. legal scholars and elites would engage in debates about when and whether Congressional authorization is required before the President can use military force against U.S. enemies.  I think that this debate is basically over, thanks to the Obama Administration.