Category: International & Comparative Law


An Insider’s Critique of the War on Terror

Harvard law professor Jack Goldsmith will soon be offering up his own critical account of the Bush Administration’s post-9/11 legal justifications for the war on terror. Here’s the abstract of his forthcoming book, “The Terror Presidency: Law and Judgment Inside the Bush Administration,” courtesy of

A central player’s account of the clash between the rule of law and the necessity of defending America.

Jack Goldsmith’s duty as head of the Office of Legal Counsel was to advise President Bush what he could and could not do…legally. Goldsmith took the job in October 2003 and began to review the work of his predecessors. Their opinions were the legal framework governing the conduct of the military and intelligence agencies in the war on terror, and he found many—especially those regulating the treatment and interrogation of prisoners—that were deeply flawed.

Goldsmith is a conservative lawyer who understands the imperative of averting another 9/11. But his unflinching insistence that we abide by the law put him on a collision course with powerful figures in the administration. Goldsmith’s fascinating analysis of parallel legal crises in the Lincoln and Roosevelt administrations shows why Bush’s apparent indifference to human rights has damaged his presidency and, perhaps, his standing in history.

Should make for a fascinating, and no doubt controversial, read. Thanks to Peter Spiro over at Opinio Juris for calling this to my attention.


The Almost French Thirteenth Amendment

Here is a story that ought to fill don’t – cite – foreign – law – to – construe – the – constitution conservatives with horror. Of late I have been reading the legislative history of the Thirteenth Amendment. The language ultimately adopted was lifted virtually verbatim from the Northwest Ordinance of 1787. Senator Sumner of Massachusetts, however, did not like this langauge and proposed instead that the amendment should read:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.

The “all persons are equal before the law” language, however, also had a history. Sumner traced it back to the various declarations of rights contained in the constitutions of the French Revolution. He went on to note that “this article has been adopted in the charters of Belgium, Italy, Greece; so that is is now a well-known expression of a commanding principle of human rights.” Sumner’s language was defeated, of course, but not before Senator Howard had taken a swipe at Sumner’s Francophilia (and his knowledge of French history):

The learned Senator from Massachusetts, I apprehend, has made a very radical mistake in regard to the application of this language of the French constitution. The purpose for which this language was used in the original constitution of the French republic of 1791, was to abolish nobility and privileged classes. . . . It was never intended there as a means of abolishing slavery at all. The Convention of 1794 abolished slavery by another and separate decree expressly putting an end to slavery within the dominions of the French Republic and all it colonies.

Now, sir, I wish as much as the Senator from Massachusetts in making this amendment to use significant language, language that cannot be mistaken or misunderstood; but I prefer to dismiss all reference to French constitutions or French codes, and go back to the good old Anglo-Saxon language employed by our fathers . . . .


Welcome to the Blogosphere. . .

Jacob Katz Cogan’s International Law Reporter. ILR should be a great guide to the ever-growing literature on international law. Jacob has served as assistant director of Yale Law School’s Global Constitutionalism Project and has held fellowships at the Carr Center for Human Rights Policy. I know many international law professors follow Opinio Juris and IntLawGrrls. . . if you want to point readers to other international law blog resources, please post on the comments below!


Interested in what’s hot in international law scholarship?

Then check out the rising stars who have contributed to Opinio Juris’s inaugural on-line symposium for young scholars. The subject matter runs the gamut, from climate change to compliance to international criminal procedure to WMD proliferation. Authors include Jacob Cogan, Gregory Gordon, Vik Kanwar, Eugene Kontorovich, and Hari Osofsky. Senior scholars in the field serve as commentators for each of the papers.

Kudos to Opinio Juris for offering yet another important contribution to the international law blogosphere!


Is Chief Justice Roberts a Transnationalist, After All?

John Parry at Lewis & Clark has put together a terrific symposium on the Supreme Court’s decision last Term in Sanchez-Llamas v. Oregon, available here. In Sanchez-Llamas, the Court considered the extent to which foreign nationals have judicially enforceable rights and remedies for violations of Article 36 of the Vienna Convention on Consular Relations. Article 36, the so-called “consular notification” provision, requires that foreign nationals arrested by the police be notified of their right to contact their country’s consulate. Sanchez-Llamas and another petitioner, Bustillo, had not been notified of their Article 36 rights upon arrest. Sanchez-Llamas argued that the appropriate remedy for the treaty violation was suppression of incriminating statements taken during his interrogation, on the ground that they had been obtained in violation of Article 36. In Bustillo’s case, the issue was whether a state could apply its procedural default rules to Article 36 violations, despite a ruling to the contrary by the International Court of Justice. Chief Justice Roberts, writing for the majority, ruled against the petitioners on both issues.

Contributors to the symposium explore a wide variety of issues raised by the Court’s decision. Julian Ku suggests that Sanchez-Llamas represents a serious setback to the “burgeoning movement” toward domestic court enforcement of international tribunal decisions. Janet Koven Levit, on the other hand, offers a “glass half full” take, arguing that “a multitude of judicial and non-judicial actors have helped entrench Vienna Convention rights over the past decade, … and the Court did little to stymie or disrupt these constitutive processes.” Peggy McGuinness offers an intriguing take on Sanchez-Llamas as part of the ongoing debate regarding American human rights exceptionalism, “and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.” Paul Stephan explores a key issue left unresolved by the Court — when a private individual may invoke a treaty provision before a U.S. court. He argues that in addressing the issue, “the Court should enlist the techniques it uses to determine when private litigants may invoke legislative enactments.”

My own contribution to the symposium argues that Sanchez-Llamas reveals the Chief Justice in a new light: Far from a knee-jerk “nationalist” with respect to judicial dialogue with foreign and international courts, Roberts instead demonstrates his transnationalist instincts, engaging in dialogue with both the domestic courts of our treaty partners, and with the ICJ itself.

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Judicial Multiculti-ism Gone Awry

A judge’s shockingly inept attempts at “multicultural understanding” have landed her in some very hot water in Germany. According to the New York Times, the judge cited “cultural differences” between Muslims and Westerners in refusing to grant a German Muslim woman’s request for a fast-track divorce from her wife-beating husband. The woman, a German citizen, had requested that she be allowed to divorce her husband without waiting for the one-year separation ordinarily required by law, on the ground that her husband had physically abused her and was threatening her life. (In fact, the same judge had previously ordered the husband to move out of the couple’s home and had entered a restraining order against him.)

The judge refused her request, ruling that the woman was not suffering an “unreasonable hardship” because – are you ready for this? — both she and her husband were of Moroccan descent. “In this cultural background,” she wrote, “it is not unusual that the husband uses physical punishment against the wife.” Moreover, in explaining her ruling, the judge pointed to a verse in the Koran that permits a husband to use physical punishment to “discipline” his wife. And just in case the wife was still under the misimpression that she might be entitled to at least a few of the rights that other German women enjoy, the judge delivered the final blow, suggesting that the wife’s Western lifestyle might have given her husband reason to claim that his “honor” had been sullied.

To be sure, Germany, like the rest of Western Europe, is navigating some tricky waters when it comes to reconciling Western values with the more traditional values of some members of its Muslim population. But this is ridiculous. Thankfully, the ruling has been roundly condemned by just about everyone in Germany — including German Muslim leaders, who point out that mainstream Muslims long ago rejected wife-beating “as a relic of the medieval age.” The judge has been removed from the case. But it almost – not quite — makes me re-think my firm belief (expressed in earlier posts) that we can usually trust judges to get it right.


A JAG blogs about creating law in Afghanistan

Afghanistan Here’s an excerpt from a fascinating post on the blog of a JAG officer in Afghanistan, about the ongoing process of instructing Afghan army officers (in this case, military judges) on legal principles:

One day we met with COMA – the Court of Military Appeals. That was a very productive meeting and at the same time a very frustrating meeting. We had spent the morning talking about how in order for the prosecutors to learn how to better prepare and present a case, they need to be allowed to make mistakes. The judges agreed with this idea. In the past what has happened if COMA has not liked an outcome, they have sent the case back to be retried. Not only is this a violation of the principle of double jeopardy, it has no effect of establishing any form of case law, of which the Afghans have none. Anyway, as we talked about this issue in the morning session, the judges all seemed to realize that if the prosecutor made a mistake and the accused was found not guilty, they needed to uphold the finding of the basic court. Well in the afternoon session we were talking about appeals and the role of the appellate prosecutor. I was sort of not paying attention, (No, I was not sleeping, I was just thinking of something else that involved warm beaches, clear water and blue skies – I’ll be writing about that sometime in the future so stay tuned) when one of the judges made a comment that brought me back to reality.

I gave them a scenario where the prosecutor failed to prove his case and the defendant was found not guilty. The prosecutor, in my example, appealed the case. I then asked the judges what they would do. They were all in agreement that they would send the case back to the basic court with instructions to the prosecutor to fix the problem, retry the case so the defendant could be convicted. You can imagine the stir that caused among the mentors. We thought we had made such great progress in the morning, getting them to agree that they needed to NOT do that very thing and now we were back to where we had been. We tried to explain the problem with this but they said that their law allowed them to do that very thing. As Paul and I started looking for that particular provision – which we never found by the way – they explained that since a crime had been committed, some form of punishment needed to take place. Just as an aside, their law allows them to hear the evidence all over again but at their level. It does not say anything about sending it back to the basic court and prosecutor. When we brought up this point it seemed to fall upon deaf ears. Unfortunately we never did resolve this issue and I’m afraid that it won’t be resolved for some time to come.

It’s a fascinating account of some of the problems that these lawyer-soldiers face as they try to help establish some important legal principles. They’re trying to develop the rule of law — both as a legal and a cultural matter — in a legal environment lacking a rule of law tradition, and a without much in the way of case law either. Not a bad subject for a blog post.


Doing Something about Darfur?

There has been a lot of anxiety, but little concrete action, from nation-states about the crimes committed in the Darfur region of Sudan. The powerful Security Council, in particular, has been woefully ineffective. While the U.S. Congress adopted a resolution in 2004 declaring the situation a “genocide,” China has played spoiler in the U.N. body, protecting Sudan from more concrete censure.

The one thing the Security Council could agree on was handing the problem off to the fledgling International Criminal Court (ICC). Even the United States, which for a time played arch enemy to the court, declined to veto the 2005 Security Council resolution referring the Darfur situation to the ICC. Given the hostility of the U.S. to the court, this failure to veto the resolution represented a major victory for the institution.

This referral, however, has had little effect on the crisis in Darfur. The long arm of international law has not yet reached far into the region. Although the ICC’s prosecutor has dutifully reported to the Security Council every six months about the progress of his investigation, he has thus far had fairly little to say.

To be fair, both the refusal of Sudanese authorities to allow the prosecutor to investigate in Darfur and the ongoing crisis in the region have made prosecuting potential perpetrators difficult. Nevertheless, there has been a growing sense of frustration with the desultory pace of the ICC’s investigation. The most visible manifestation of this discontent consists of documents requested by the ICC judge assigned to the investigation and submitted by Louise Arbour, the former prosecutor of the Yugoslav Tribunal (and now UN High Commissioner for Human Rights), and Antonio Cassese, the former president of the Yugoslav Tribunal and author of the UN’s report on Darfur. Each of these documents takes issue with the prosecutor’s conclusion that concerns over victim security precluded him from going forward with prosecutions. The prosecutor responded, disputing the conclusions of the Cassese and Arbour briefs and setting out his strategy on the Darfur investigation.

The ICC’s prosecutor finally has something to say beyond vague promises of future action. He announced this week that he plans to present his first case on Darfur to the ICC’s judges within a matter of days. This is an important step for the ICC. Whether the beginning of actual prosecutions for crimes committed in Darfur will help mitigate the human catastrophe occurring there is an open question. Certainly criminal prosecutions, standing alone, can do little in the short term. If they help galvanize political will to address the crisis, however, they may prove a critical step toward reaching the political solution that the inhabitants of Darfur desperately need.


The Pitfalls of Punishment

Thank you for the opportunity to join Concurring Opinions as a guest blogger for this month.

At the risk of repetition, I would like to continue the conversation begun by Dan and Deven about the recent execution of Saddam Hussein.

Dan has described his discomfort with his reaction to the imposition of the death penalty on Saddam. Indeed, as the New York Times has noted, the death penalty has been a sticking point for potential supporters of the tribunal, both in other countries and in international organizations. The cold shoulder given to the Iraqi court by much of the world has undermined the tribunal’s status as an exemplar of the increasing turn toward legal accountability for mass crimes.

Nevertheless, the furor over the imposition of the death penalty in the Iraqi case masks a greater systemic problem with international criminal law. While the applicable law and procedure of the field have been greatly clarified in the past decade, the appropriate punishment for transgressions of its norms remains an incoherent morass.

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Sadaam Executed. Should We Care?

I think a lot about capital punishment, but I still haven’t figured out what to think about the (apparently completed) execution of Sadaam Hussein. Although I am deeply troubled by the use of capital punishment in the United States, and have questions whether any system can consistently offer the assurances of fairness and accuracy commensurate with the sanction, I do not oppose the death penalty categorically. If the death penalty is appropriate, it seems to me that one must feel confident that the target is actually guilty, that he received a fair trial, and that he is culpable at the highest moral and practical level for the most serious crimes. When it comes to Sadaam, there is little doubt (as far as I can tell) that he is guilty of facilitiating mass killings. I don’t know whether he received a fair trial and I don’t know enough about him personally to know whether he is morally culpable on an individual level – although he doesn’t appear to have much claim to most of the mitigators surfacing in a typical U.S. capital sentencing. At the end of the day, I don’t have much sympathy for the guy.

So should I care if he is executed? Perhaps I should not only care, but be pleased. On some level, this sentence – which unlike most death sentences in the U.S., will actually be noticed both by the people we hope to reassure and those we hope to deter – communicates a fair amount about society’s view of his conduct. In that sense, this outcome is probably better than having troops kill him while he was huddled in a bunker. And it is surely better for the U.S. that he be executed after an Iraqi trial, and by Iraqis, rather than through a U.S. military tribunal.

Maybe I shouldn’t care, even if the penalty is wrong because these sanctions aren’t ours to distribute. But that can’t be quite right, since the current Iraqi regime is (at least partially) an American creation. And if the death penalty is unjustifiable murder, if I truly believed that to be true in all cases, I would have to be upset and angry, and probably feel compelled to take at least some small action in opposition.

I can’t quite get to the bottom of my own emotions. The process seems like slow motion, a bit, though it is far faster than any American death penalty. (Isn’t that oxymoronic? The American process is so slow that it doesn’t even look like motion. In the end, the execution feels little different from a premeditated killing precisely because it is not part of a continuing, visible, inevitable process that leads directly to execution. Here, however, the process is swift enough that we can watch it unfold slowly before our eyes.) I fear that it will have negative political repercussions. I fear that it will reopen wounds that should stay closed, or close wounds that demand further inspection and investigation. I fear that the comfortable use of death in this case will reassure some people that the death penalty is appropriate for more mundane crimes.

But I don’t feel much pity. And I don’t feel a sense of injustice. So in some awful sense, I don’t care much at all. And there’s the rub. I deeply dislike the idea that the intentional killing of another human being would not generate deep discomfort in me. I seem to have found out why I don’t oppose the death penalty categorically. But I’m not sure I’m proud of the insight.