Author: Julian Ku

by Julian Ku

Conservatives and human rights groups have rightly pummeled the new UN Human Rights Council as a deeply problematic institution, characterized by a strange obsession with Israel.  But the Obama Administration joined anyway, despite criticism, and they won a small payoff this week in Geneva.  The HRC finally got tough (well, at least they focused on) someone other than Israel.  The target on Monday? Iran.  The NYT reports:

Michael H. Posner, an assistant secretary of state, told the council that since disputed presidential elections in June, Iran had suppressed the protests of millions of Iranians, “often resorting to violence,” resulting in detentions, injuries and deaths. Mr. Posner, the top United States official for human rights, also condemned growing restrictions on freedom of expression and called for immediate action by Iran to end torture.

The benefit to the HRC going after Iran instead of the US alone going after Iran is obvious.   The downside of course is that the UN HRC won’t do much (it can’t), and it may well elect Iran to its membership next year.  But for the time being, this is a useful forum to convince third-parties (read: Canadian and European allies) that Iran deserves isolation and censure.  Unfortunately, I doubt it will make a difference to Russia and China. But it is a (small) achievement of the new Obama policy and deserves to be recognized as such.

by Julian Ku

John Bellinger makes a solid observation in the NYT on the Obama Administration’s general approach to international law.  The bottom line: Obama is basically the same as Bush (at least during the second term) on international law.

Last month marked the one-year anniversary of President Obama’s first signature foreign policy initiative: the issuance of three executive orders ordering the closure of the detention facility at Guantánamo Bay, the suspension of the C.I.A. interrogation program, and the review of all U.S. government detention policies and legal positions. The orders met with wide acclaim in Europe and were heralded as the return of the U.S. commitment to international law.

But one year later, the Obama administration is having difficulty implementing all three directives and has continued many of the Bush administration’s other counter-terrorism policies, including many that are highly controversial with America’s allies. In other areas, such as engagement with the International Criminal Court and compliance with rulings of the International Court of Justice, the administration has so far been less supportive of international legal institutions than its predecessor.

These realities show that the Bush administration demonstrated a greater commitment to international law in its second term than is generally acknowledged abroad, particularly in Europe, and that there are bedrock domestic political constraints in the U.S. that may prevent the Obama administration from living up to expectations.

This is a point worth making. The shape of U.S. foreign policy, and its policy toward international law, is not entirely the creature of the occupant of the Oval Office. Obama is proving this point as each year of his administration passes.

by Julian Ku

The UN special tribunal to investigate the murder of Lebanese leader Rafik Hariri seemed like a good idea at the time it was established, back in 2005.  Some folks claimed it vindicated the role of the UN in resolving this kinds of delicate political disputes.  But the opposite has turned out to be the case.

Half a decade later, however, the Hariri case has made little progress toward justice. Lately, Syria has reasserted its power in Beirut after years of trying to destabilize a government dominated by its political foes. In December, Saad Hariri, Lebanon’s prime minister and Rafik’s son, met with Syria’s president, Bashar al-Assad, acceding to the reconciliation between his own political sponsor, Saudi Arabia, and Damascus — making Lebanon less likely to point the finger at Syria for the killing.

But the more significant problem actually lies within the United Nations investigation itself. While it has been upgraded to a special tribunal, sitting near The Hague, it has suffered from questionable leadership, lost key members and last year had to release suspects for lack of formal indictments.

I don’t know if some other international or national mechanism could have done better, but they could scarcely have done worse.

by Julian Ku

Dapo Akande, who seems to know more about head of state immunity than anyone else, has an interesting post on the recent ICC Appeals Chamber non-decision decision in the case against Sudan’s President Bashir.  He points out that the Appeals Chamber failed to even mention the question of head of state immunity, which is important in this case because as a non-party to the ICC, Sudan has a pretty good argument that Bashir still has head of state immunity. It is at least a non-trivial argument which would undermine every other issue in the case against Bashir, if resolved in Bashir’s favor.  How could it not be addressed?  And when will it ever be addressed? I suppose if Sudan or Bashir ever show up to defend themselves.  It would be embarrassing if, after all of this, the ICC managed to arrest Bashir only to have its Appeals Chamber decide that he had immunity after all.

by Julian Ku

The Academic Council on the United Nations System (ACUNS), in partnership with ASIL and the One Earth Future Foundation, have released a report entitled: “Suppressing Maritime Piracy: Exploring the Options in International Law”.  It is a useful report, and it is the product of a very smart and knowledgeable group of international law experts including friends of this blog like John Bellinger, Eugene Kontorovich, David Glazier, and Beth Van Schaack.  But like many of these committee panel reports, it doesn’t really come to any conclusion or consensus on the legal problem of how to encourage nations to punish piracy (at least not as far as I can tell).  But it is at least a start in the conversation.  My own view is that nations just won’t have the right incentives here and that ultimately, this is going to be dealt with by better self-help mechanisms on merchant ships. But I defer to the judgments of these experts, whose ideas a worth reading.

by Julian Ku

The UN’s new temporary quarters, during renovations, are not too popular with the staff.

For the next four years, the United Nations’ nerve center, including Secretary-General Ban Ki-moon’s office, will be situated in a squat, three-story, corrugated steel building on the U.N.’s north lawn that looks like a cross between a suburban big-box store and a high-security lockup facility.

Bantánamo, a nickname embraced by U.N. staffers, has taken much of the grandeur out of diplomacy at the United Nations. It’s a serious comedown for U.N. civil servants and delegates who have been grinding away in the cause of peace in one of New York City’s architectural landmarks, the glass and marble U.N. headquarters tower and the U.N. General Assembly hall — now undergoing a $1.87 billion renovation.

I think they are overreacting. Or they don’t think Guantanamo is really that bad.

by Julian Ku

Last week, the U.S. and Canada reached an agreement to permit Canadian firms to bid on projects funded by U.S. stimulus money based on the legislation enacted last year. The confusing part is just how exactly this will occur.  According to CTV,

Canadian firms will be exempted from “Buy American” restrictions under seven of the stimulus programs, in 37 U.S. states that signed on to the World Trade Organization. Those states will be able to use American stimulus money to buy Canadian manufactured goods.

Apparently, the whole deal is being done via an executive agreement, an executive order, and some sort of subsequent agreement with some (but not all) of the states. (The USTR website confirms the report, but has no further details).

The interesting part of this agreement to me is my belated realization that only 37 of the 50 U.S. states are bound by the WTO procurement agreement.  I somehow didn’t know that, although I am all for foreign policy federalism.  Canadians seem to realize that this agreement with the U.S. government will only get them so far.  As one Canadian opposition leader notes (correctly).

“The American government machinery is so amorphous, that a deal signed with the administration in Washington is a long way away from applying to the municipal government in Cleveland, or in Bangor, Maine,”

It’s really not such a great deal for Canada. They are getting, one year later, the legal access (in 37 states) that they should have had a year ago. But I suppose you have to take what you can get.

by Julian Ku

Apparently, the Obama Administration has decided it will not seek ratification of the ICC Rome Statute.  There is still no official policy, as far as I know, but this is the latest from Assistant Secretary of State for War Crimes Stephen Rapp. This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.  This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.

by Julian Ku

The NY Times Opinionator has a nice roundup of lefty-blog reaction to the Obama Administration’s claim of the legal authority to kill and assassinate U.S. citizens abroad (and its admission to having already done so). Most lefty-blogs seem unconcerned about this policy, with the notable exception of Glenn Greenawald. From a legal perspective, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy. (One searches in vain on Balkinization for the outrage, for instance).  Or have they joined the “Dark Side” where such bloggers famously accused Dick Cheney and John Yoo of residing?  Here’s why these assassinations/killings pose such a real legal problem, especially under their previously stated views of how U.S. law should work.

It is an article of faith of many critics of the Bush policies that the detention of U.S. citizens as enemy combatants is almost always illegal, that the U.S. is bound by constitutional requirements even when acting abroad in a war zone, and especially when it is acting against U.S. citizens.   But if one believes all of these things, then one cannot possibly believe that deliberately assassinating U.S. citizens is constitutional.  As I’ve said before, if the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing (and this is now a requirement of U.S. law), then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing.  Am I missing something?

As some of the commenters have pointed out, the nationality of the victim is not that important from the perspective of international law.  Under international law, the main question is whether there is legal authority to kill or assassinate anyone, much less one’s own nationals.  But even under international law, as readers of Ken Anderson’s posts here and at Volokh know, it is still not all that clear.   Indeed, there seems a more than plausible argument that certain kinds of assassinations, as currently executed by the Predator drones, could indeed constitute a violation of the law of war.

In any event, if the U.S. is going to pursue this policy, it should openly defend its legality.  As Stuart Taylor suggests, now might be a good time for Harold Koh to earn his keep over at the State Department and lead a robust legal defense of U.S. practice before the world community and in NGO circles.  And what better place to launch this defense do so than here at the Opinio Juris?

by Julian Ku

As Kevin notes, the ICC Appeals Chamber has overruled the Pre-Trial Chamber on the question of whether Sudan’s President Bashir can be charged with genocide.  In a very useful note, Chile Eboe-Osuji points out here that the Appeals Chamber did not in fact provide the Pre-Trial Chamber with guidance on what standard it should adopt to determine whether there was sufficient evidence of the “intent” to commit genocide to issue an arrest warrant.  As he puts it,

Curiously, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. This is not very helpful.

Read the whole post to see his best guess as to what the standard will be.  I would be curious to see if folks have different views than his.

by Julian Ku

I’ve been on blog-silence the last few months, but one of my students today made me feel a little guilty about my lack of blogging, so I’m back (at least for now).  So while not wanting to interrupt this great online symposium, I’ll just point our readers to this remarkable little exchange between U.S. Director of National Intelligence Dennis Blair and members of Congress.

“We take direct actions against terrorists in the intelligence community; if … we think that direct action will involve killing an American, we get specific permission to do that,” Director of National Intelligence Dennis Blair told the House Intelligence Committee.

Blair goes on to helpfully explain that such assassinations will not be for free speech, but for “engaging in action that threatens Americans.”

In fact, as the report goes on to point out, the U.S. Predator strike campaign has already killed a number of Americans in Pakistan associated with Al Qaeda.  So I guess this isn’t such a big deal. But as a legal matter, it is odd that the U.S. must grant substantial constitutional rights to citizens abroad, and it must even grant habeas rights to challenge their status to U.S. citizens held as enemy combatants, but it can target and deliberately kill Americans abroad without notice or a hearing.  Would love to see the OLC opinion (no doubt by Marty Lederman) on that one…