The Guardian is reporting today that the UK, France, China and Russia will be asking the UN Security Council to adopt a resolution blocking the International Criminal Court from continuing the effort to prosecute Sudanese President al-Bashir for Genocide in Darfur.  See:

http://www.guardian.co.uk/world/2008/sep/14/sudan.humanrights

The United States has not yet decided whether to support such a resolution, and as a Permanent Member of the Council (and the first country to label the situation in Darfur as genocide) it could exercise its veto, thereby allowing the International Criminal Court arrest warrant to issue without political interference.

It will be absolutely tragic if the United States and the other members of the Security Council give in to al-Bashir’s blackmail, adopting a resolution ordering the ICC to defer its prosecution of the indicted genocidaire and war criminal in return for his pledge to cooperate with the UN and OAU.  If history has taught us anything, it is that the international community cannot rely on indicted war criminals to serve as reliable guarantors of peace.  Like Slobodan Milosevic, Radavan Karadzic, and Charles Taylor, al-Bashir cannot be trusted to follow through with his pledges of cooperation.  Al-Bashir has and will continue to direct a genocidal policy while under  the pretense of cooperation.  Nothing will actually be gained by quashing the ICC indictment, and so much will be lost.

A Security Council resolution ordering the ICC to defer its prosecution of al-Bashir would be a serious blow to the  credibility and legitimacy of the ICC and the growing trend toward international accountability.  It will return the world to a cynical age in which future warlords, parroting Hitler’s  infamous words about the Armenians, will be able to say to their followers, “Who after all today remembers the fate of the Darfurians.”   

Where should the line be drawn between “just war” and “war crime”?  That is the question at the heart of the upcoming day-long AIDP American National Section’s annual conference at Case Western Reserve University School of Law on Friday, September 26.

The conference features two dozen of the world’s foremost experts in this area, including: President of the International Criminal Court Assembly of State Parties Christian Wenaweser; Former Nuremberg Prosecutors Henry King and Ben Ferencz; Former Deputy Legal Adviser, UK Foreign Ministry (who resigned over the invasion of Iraq), Elizabeth Wilmshurst;  Former U.S. Ambassador at Large for War Crimes Issues David Scheffer; Former Chair of the ICC Statute Drafting Committee Cherif Bassiouni; Executive Director of the International Bar Association Mark Ellis; Former Commissioner of the Sierra Leone Truth Commission Bill Schabas; and academic experts from, Austria, Canada, Germany, Ireland, Liechtenstein, New Zealand and the United States.

The Conference, and an Experts Meeting the following day, is designed to advance the work of the International Criminal Court Assembly of State Parties Working Group on the Crime of Aggression, and the report of the Experts Meeting, along with the articles generated from the conference, will be published in the spring 2009 issue of the Case Western Journal of International Law.

The September 26 Conference is free and open to the public, and complementary lunch is provided if you register in advance.  In addition, 7.0 hours of CLE credit is available ($200 fee).   For a schedule of events and on line registration, please visit:  http://law.case.edu/lectures.  If you can’t make it to Case for the conference next week, you can view the proceedings live (or at any time) via webcast at that same URL.

The Conference is co-sponsored by the American Society of International Law, International Bar Association, International Association of Penal Law, International Law Association, the Planethood Foundation, the Robert H. Jackson Center, the Maltz Museum of Jewish Heritage, and the Wolf Family Foundation.

We are pleased to announce that “Enemy of the State: The Trial and Execution of Saddam Hussein” (St. Martin’s Press), “a work of non-fiction written like a novel” by AIDP American National Section President Michael Scharf and Vanderbilt Law Professor Michael Newton, will be available tomorrow, September 16, in bookstores everywhere.

The questions addressed in the book are among the most important issues facing the world today, and are at the core of the 2008 American Presidential election:  How should the United States respond to atrocities in foreign countries, such as Darfur, Burma, and Georgia?  What is the best approach to rebuilding Iraq and dealing with the Arabic speaking world? Where should we draw the line in what is acceptable in our fight against terrorism?  – to mention only a few.

 For more information about this “page-turner brimming with illuminating anecdotes,” including chapter excerpts, readings by the authors, color photographs, links to television and radio interviews about the book, and Q&A with the authors, please visit:

http://enemyofthestatebook.com/

View my article, Anticipatory Self-Defence and International Law—A Re-Evaluation, published in the Journal of Conflict & Security Law. 

Abstract

Traditional state v. state war is largely a relic.  How then does a nation-state defend itself—preemptively—against an unseen enemy?  Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor.  This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

View a response written by Muge Kinacioglu, Department of International Relations, Bilkent University, Turkey, A Response to Amos Guiora: Reassessing the Parameters of Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.

View another response written by Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors. 

Cross-posted on National Security Advisors.

Click here for more information on my panel addressing  the prosecution of terrorism, videocast on September 11, 2008 from 5:00-8:00 am MST.

I recently visited Google’s Mountain View, CA headquarters to discuss my book Constitutional Limits on Coercive Interrogation. This event took place on August 18, 2008, as part of the Authors@Google series.

View my part of the series here on youtube.com.

In The Constitutional Limits of Coercive Investigation, I offer a theoretical analysis and a practical application of coercive interrogation, and in doing so, suggest developing and implementing a hybrid paradigm based on American criminal law, the Geneva Convention, and the Israeli model of trial as the most relevant judicial regime. I offer a unique perspective to the public debate by utilizing a historical analysis of the system of “justice” for African-Americans in the Deep South of the past century to serve as a guide for the constitutional rights and protections which need to be granted or extended to an unprotected class. I then indicate which interrogation methods are within the boundaries of the law by both recommending protection of the detainees and providing interrogators with the tools required to protect America’s vital interests.

Cross-posted on National Security Advisors.

Available now at the Northwestern Law Review website, and appearing in the print edition this Fall is my essay“Beyond Guantanamo, Obstacles and Options.”  Part 1 appears today, and Part 2 will appear this Thursday.  

The Military Commissions Act of 2006 (MCA),[1] passed after the Supreme Court’s Hamdan[2] decision was intended to remedy shortcomings in prior military commissions. Implementing the MCA has proven difficult, as observers have witnessed the high profile resignation of the system’s chief prosecutor, and Congressional hearings questioning the future of terrorism trials. These issues were punctuated by the Supreme Court’s Boumediene[3] decision holding that detainees have a Constitutional right to habeas corpus. Observers unfamiliar with the processes involved with the military commissions may have thought that the Boumediene decision would force the administration to forgo military commissions, perhaps opting instead for trials in Article III courts. However, nothing in the decision required such a result.

In fact, just two months after the Supreme Court’s Boumediene decision, the trial of Osama bin Laden’s alleged bodyguard Salim Hamdan—the first terrorism-related trial by military commission—concluded in a guilty verdict on charges that he provided material support for terrorism.[4] While lower courts begin to work out the details of the Boumediene decision Hamdan will have a simultaneous opportunity to appeal his conviction, and the legitimacy of the tribunal that tried him. In short, when the dust settles, Congress will again be faced with a need to reform military commissions or to prepare the federal judiciary for terrorism trials. This Essay seeks to contribute to that reform discussion.

CLICK HERE TO CONTINUE READING Beyond Guantánamo, Obstacles and Options (Part 1 of 2)

What’s the Exchange Rate?

Amos Guiora, Professor of Law, S.J.Quinney College of Law, The University of Utah

And Martha Minow, Jeremiah Smith, Jr. Professor, Harvard Law School

We are trying to understand why Israel traded dead Sgt. Ehud Goldvasser and First Sergeant Eldad Regev for live Samir Kuntar, and what it means for Israel and other nations.

Trades in the past reflected the desire to avoid military action.  In 1985, Israel released 1,150 prisoners in exchange for three Israeli soldiers captured in Lebanon. Then-Defense Minister Yitzhak explained: “When no military option exists, there is no choice but to enter negotiations and pay a price.”

This time, Israel exchanged five imprisoned known terrorists for the bodies of two Israeli soldiers–although much was made about the possibility that the soldiers were alive. A representative of Hezbollah (the “party of God” is an Iranian-backed Shiite terrorist organization) said “for two years you (Israelis) have wondered what the is the fate of the soldiers” and the camera spun to the sight of two coffins–while 5 terrorist suspects returned–alive-to Lebanon.

In fact, the Israeli government did not tell the public before the exchange, the intelligence community was convinced three days after the attack that the two soldiers were dead.  Indeed, because approximately ten liters of blood had been lost by the soldiers, as found near the command car, the evidence all but established that they were dead.

Nevertheless, Prime Minister Olmert argued that the two soldiers must be returned–and initiated the second Lebanon War on that ground. Demonstrating that “no soldier can be left behind”–the ethos commendable in practice–this action also obviously exacted a high price. In the immediate aftermath of the kidnapping, five soldiers were killed in an effort to rescue the two soldiers.

The ultimate exchange of the soldiers’ dead bodies in exchange for the release of Samir Kuntar and four other Lebanese endangers otherwise innocent citizens.  The price may be even higher—as will be the danger to Israeli citizens–if 1000 Hamas terrorists are released in order to free Gilad Shalit–shifting the “exchange rate” even further.

The commitment to leave no Israeli soldier behind–even at such high a price–is a big reason for the recent exchange. Another reason is the truly brilliant advocacy and media campaign by Karnit Goldvasser. Goldvasser’s vow that she will bring her husband home shows admirable personal commitment and extraordinary persuasiveness.

Yet even to understand why this could work–why the drumbeat of media attention to the captured two IDF soldiers could torque the negotiation and strategic policy of a savvy, experienced nation state, deserves more careful explanation.

At one level, a small nation that has been in an armed conflict since its founding 60 years ago is a family of families, moving between defiant embrace of life and the mourning rituals for both the literal dead and the loss of innocent, carefree lives. The vast majority of families has immediate connections with the military–one child a year away from service; one still serving; a brother just called up for reserve duty; an uncle still recovering from a wrenching time as check-point guard.

What parent wouldn’t want the government to do anything—and everything–to recover a missing soldier-daughter or son?  If a parent is in the drivers’ seat, no price is too high, no measure to risky if there is a chance of recovering the child alive, and even recovering the remains of the cherished family member. Moreover, combat soldiers in recent days have expressed their support the exchange, and noted it is important for them to know that should they fall into captivity the state will do anything to release them.

But what is the obligation of the state when it sends soldier to combat? Does the state owe that individual “everything” should something happen? What are the limits of state obligation? What does “everything” mean? Turn over 1,000 members of Hamas for Gilad Shalit? Or East Jerusalem?

Leaving no one behind was once a source of great pride and confidence. Thirty two years ago (almost to the day) in the 1976 Entebbe raid IDF soldiers rescued Israelis held in Uganda. But today, a policy to “leave no one behind” raises huge questions, as it seems to elevate the state’s obligation far above the soldier’s fellow citizens (and families).  During the Second Lebanon War, Israel seemed to “accept” civilian loss of life more readily than it accepted soldiers dying in battle.

Ultimately, engaging in the exchange for the two bodies heightened risks for civilians.  How so? The very fact of the “exchange” with terrorist organizations Israel shows that that kidnapping pays. By releasing terrorists with a proven “track record” (Hamas will only accept an exchange that includes terrorists who have killed Israelis from both sides of the Green Line) Israel increases the likelihood of new terrorist attacks in the future by the newly released individuals or those who would copy them. According to many experts the 1985 exchange between Israel and Ahmed Gibril contributed to the Intifada for many of the 1,500 active participants.

For the recent exchange alone, the price has already been higher than many would have imagined. Nasarallah embraced Samir Kintar: Lebanon made his return a holiday in Lebanon and both the Prime Minister and the President welcomed him home. Watching the celebration of Samir Kuntar as hero is incomprehensible–after all he killed a father in the presence of his four year girl and then smashed his rifle butt into the little girls head. He is also responsible for the tragic death of that little girl’s two year old sister who was accidentally smothered to death by her mother who-in an effort to prevent her from crying and alerting Kuntar to their hiding place.  Watching the embrace of Kuntar take place simultaneously with the burials of Goldvasser and Regev exacerbated the already difficult question of “what price for an exchange.”

By making the exchange, Israel has demonstrated that it is all negotiable; the only question is at what price. What will be the exchange rate in the future? Is a bargain also to include selling out the state’s obligation to its citizens who are potential targets of terrorism upon the release of convicted terrorists who vow to act again?

Israel’s exchange offers a window onto the desperate desire of ordinary Israeli’s for an end to all the conflict; do anything for the children, even be gullible, even if it’s too hard to stomach street celebrations of a murderer of little children, too unbearable to say nothing can be done to the grieving families of soldiers whom the state put in harm’s way?

In exchange, on an emotional level, all Israelis were with Goldvasser and Regev for one day. But–is Israel stronger strategically? 

Even asking this cruel and painful question especially to anyone whose own family member could be subject to such an exchange is difficult. Talking national security in a strategic sense is all important –except when your own family member is involved. “Leave no one behind” seems the ethos to reconcile national security and family love, but hard headed assessment reveals these two goals are not always reconcilable.

Cross-posted on National Security Advisors

View my article, International Cooperation in Homeland Security.

Abstract

Terrorism against the United States, post-9/11, reaches far beyond the U.S. borders. In order to effectively prevent and react to terrorism within the homeland, the U.S. must think of security internationally. International security efforts touch on key issues such as travel security, border control, immigration, intelligence, and financing terrorism. This article examines the U.S. effort at international cooperation in homeland security by examining security and threat assessment in order to analyze current developments and necessary progress moving forward. Further, this article explores comparative efforts at international cooperation in homeland security by examining Canada, Japan, and the E.U. in terms of security and threat assessment. Finally, this article offers recommendations and articulates criteria by which the U.S. can improve vital efforts at international cooperation in homeland security.

To ensure effective counterterrorism, the U.S. must follow a two step process. First, the U.S. must take measures to protect the homeland. Those measure include: promoting travel security by implementing sophisticated technology; promoting border security by securing the Northern border; implementing intelligence sharing between agencies; creating a coordinated plan to promote travel and border security; undergoing training and simulation, and finally; ensuring institutionalized continuity from one Administration to the next.

After taking action to protect the homeland, the U.S. must use these factors as a foundation on which to establish international cooperation. To establish effective international cooperation in homeland security, the U.S. must take measures including the following: forging international partnerships; sharing intelligence related to travel security; creating a coordinated international security plan; running international training and simulation exercises, and finally; implementing international institutionalized continuity.

Cross posted on National Security Advisors.

Similarly posted on Legal Theory Blog.

Our good friends over at Opinio Juris have rolled out a fantastic new website as part of their partnership with Oxford University Press. (This coming on the same day that the new Convictions blog goes on hiatus). OJ, already the best international law blog on the net, has now upped the ante— perhaps vying for top blawg status against the likes of Volokh and Concurring Opinions. Regardless, the blog looks great, and it’s one more innovative example of why you should send your manuscript to Oxford University Press.

Of course, a blog is only as good as its contributors, and for that matter only as good as its frequent contributors, (I know, I know, we aren’t doing so hot on this mark) Opinio Juris consistently maintains fresh and interesting content from a variety of perspectives. With their new look, they’ve also added the expertise of Ken Anderson (formerly of his own blog Law of War and Just War Theory). I was on an ASIL panel with Ken and was a big fan of his blog, and I’m sure he will be a great addition to an already strong team.

So, a big congrats to Opinio Juris on your newly redesigned blog. Hopefully Volokh’s “green machine” will follow suit.