Opinio Juris http://www.opiniojuris.org/ en-us 2008-07-14T21:07+00:00 New Site Address-- Please Update Links http://www.opiniojuris.org/posts/1216071146.shtml We have moved to a new site! Please go directly to www.opiniojuris.org and see the new and improved Opinio Juris website.... Chris Borgen 2008-07-14T21:07+00:00 www.opiniojuris.org and see the new and improved Opinio Juris website.

If you link to us via the address, please update your link to the new address.

See you there]]> No Posting This Weekend http://www.opiniojuris.org/posts/1215807421.shtml Also, please note that the site may be difficult to access at various points this weekend.... Chris Borgen 2008-07-11T20:07+00:00
However, we have some surprises in the works.

See you Monday... ]]> ICC Prosecutor To Charge Sudan's President with Genocide http://www.opiniojuris.org/posts/1215767251.shtml I mentioned last month that the ICC Prosecutor, Luis Moreno-Ocampo, was considering bringing genocide charges against Sudanese officials far more senior than Ahmed Haroun, the country's "humanitarian affairs" minister. Well,... Kevin Jon Heller 2008-07-11T09:07+00:00 last month that the ICC Prosecutor, Luis Moreno-Ocampo, was considering bringing genocide charges against Sudanese officials far more senior than Ahmed Haroun, the country's "humanitarian affairs" minister. Well, he's now decided to do exactly that — and his target is no other than Omar Hassan al-Bashir, the President of Sudan himself:
The chief prosecutor of the Internationals Criminal Court will seek an arrest warrant Monday for Sudanese President Omar Hassan al-Bashir, charging him with genocide and crimes against humanity in the orchestration of a campaign of violence that led to the deaths of hundreds of thousands of civilians in the nation's Darfur region during the past five years, according to U.N. officials and diplomats.

The action by the prosecutor, Luis Moreno-Ocampo of Argentina, will mark the first time that the tribunal in The Hague charges a sitting head of state with such crimes, and represents a major step by the court to implicate the highest levels of the Sudanese government for the atrocities in Darfur.

[snip]

"I will present my case and my evidence to the [ICC] judges, and they will take two to three months to decide," Moreno-Ocampo said in an interview Wednesday, referring to a pretrial panel made up of judges from Brazil, Ghana and Latvia. "We will request a warrant of arrest, and the judges have to evaluate the evidence." On Thursday, Moreno-Ocampo's office said in a statement that the prosecutor will "summarize the evidence, the crimes and name individual(s) charged" at a news conference Monday in The Hague.
Wow. To say this is a bold move — and one fraught with danger — is an understatement. I've long disagreed with Julian about whether the ICC's involvement in Darfur undermines the peace process (which is better referred to as the "peace process," because the Sudanese government has never been committed to it). But this time I think Julian's concerns have to be taken very seriously. The UN is certainly worried:
Some U.N. officials raised concerns Thursday that the decision would complicate the peace process in Darfur, possibly triggering a military response by Sudanese forces or proxies against the nearly 10,000 U.N. and African Union peacekeepers located there. At least seven peacekeepers were killed and 22 were injured Tuesday during an ambush by a well-organized and unidentified armed group.

[snip]

Representatives from the five permanent members of the U.N. Security Council — Britain, China, France, Russia and the United States — met with U.N. officials Thursday to discuss the safety of peacekeepers in Darfur. U.N. military planners have begun moving peacekeepers to safer locations and are distributing food and equipment in case the Sudanese government cuts off supplies.

"All bets are off; anything could happen," said one U.N. official, adding that circumstantial evidence shows that the government of Sudan orchestrated this week's ambush. "The mission is so fragile, it would not take much for the whole thing to come crashing down."
If there was a reasonable chance that indicting Bashir would convince China and Russia to discontinue their economic, political, and military support for Khartoum, these risks might be worth it. But that is obviously unlikely to happen — both countries have consistently opposed the ICC's efforts in Darfur and will no doubt oppose this new move, as well.

As a side note, I am very anxious to find out what evidence the Prosecutor has that ostensibly proves Bashir is guilty of genocide. As I pointed out in my previous post, the Security Council-sponsored International Commission of Inquiry on Darfur specifically — and controversially, to be sure — recommended that the ICC not pursue genocide charges against the Sudanese government:
The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.
Though I'm sympathetic to those who want to call the atrocities in Darfur "genocide," I've always found the Commission's legal analysis of the situation quite persuasive. So I hope that the Prosecutor's subsequent investigations have uncovered new evidence that the Sudanese government was not simply — if murderously — trying to maintain its power in the face of a concerted rebel threat. If they haven't, it will look like Moreno-Ocampo is simply giving into political pressure.

Once again — wow. I don't know what else to say. First the Court stays the Lubanga trial. Now the Prosecutor seeks to indict and arrest the President of the Sudan. This is turning out to be quite a week for the ICC...

More on the story as it develops.]]> Final Thoughts http://www.opiniojuris.org/posts/1215744963.shtml We greatly appreciate all of the wonderful postings this week on America Between the Wars and thank all of those who participated. We wanted to conclude by touching on two of... Derek Chollet and James Goldgeier 2008-07-11T04:07+00:00 America Between the Wars and thank all of those who participated. We wanted to conclude by touching on two of the issues raised in the discussion. One is the question Matt Waxman raised concerning the future of the U.S. political debate about democracy promotion. The other is Roger Alford’s recognition of the continuities between the Clinton and George W. Bush administrations, which also implies speculating about policy continuities looking forward (a point raised by Ken Anderson who was kind enough to post from his trip to Paris).

Matt is quite right to wonder about the future of democracy promotion, especially given the political taint it has assumed as Bush has talked about the so-called “freedom agenda.” Many Democratic politicians and activists seem to forget that this was once their issue, not only in the 1992 campaign and during the Clinton years, but from Wilson through Roosevelt and Truman to JFK. Too many now see democracy promotion as a George W. Bush invention, and a number of people we interviewed, for example, Madeleine Albright, are quite upset that the war in Iraq has given democracy promotion such a bad name for those on the political left. In the early 1990s, there was also the euphoria associated with the collapse of communism, and the flourishing of democracy not just in Central and Eastern Europe, but in countries such as Mongolia and Namibia. As Matt notes, the international trends are less favorable today.

If the Democrats prevail in November, winning both the presidency and larger majorities in Congress (as polls now suggest), some will be tempted to adopt an “Anything but Bush” attitude as the Bush team did with Clinton policies in 2001. We hope they will avoid doing so – especially when it concerns democracy promotion and the place of liberal values in American foreign policy. To be sure, we must learn from Bush’s hubris and failures: there are far better ways to promote democracy other than overthrowing regimes. And while it is hard to see how a Democrat could define a progressive foreign policy that was purely realist in outlook, it will be tougher to raise democracy promotion as a central concern in this political environment. Matt is right to point to the institutional deficiencies in U.S. foreign policy in helping to do build civil society elsewhere, but it is also politically difficult because unlike holding elections, the institution-building takes time, and that means clear payoffs are way down the road, often after administrations have left office (witness Jimmy Carter’s efforts in Latin America, for example).

As Matt notes, McCain has raised the notion of a League of Democracies (which seems to build on the Clinton administration’s Community of Democracies). The League, however, seems largely focused on having countries with shared values come together to deal with common challenges. So far, at least, it seems not as focused on promoting democracy where it doesn’t exist. But if it were to get off the ground (and a number of top Obama advisers also have supported similar ideas), then democracy promotion might be an obvious agenda item for such an institution.

Roger is quite right to notice the continuities between the Clinton and George W. Bush administrations when it comes to the challenges of wielding American leverage and might. The Clinton team was not happy about leaving Saddam Hussein in power. And the United States did go to war in 1999 over Kosovo without U.N. authorization. Continuity across administrations since the end of the Cold War is a big theme of our book, and we do believe that on many of these questions there will be continuities after January 2009, as Ken’s discussions in Paris also indicate.

For example, it’s not clear how much emphasis there will be on humanitarian intervention in the next administration given that the wars in Iraq and Afghanistan will be front and center for some time. But certainly if the next president believes that the use of force is necessary somewhere in the world (whether for humanitarian reasons or to meet a security threat), and if he believes that Russia and China will not support such action, then he is likely to go forward anyway, either as Clinton did under NATO auspices in 1999 or as Bush did with his “coalition of the willing” in 2003. And that certainly raises questions about the future of international law and the role of the United Nations in legitimizing the use of force.

In this sense, we’ve come full circle, which is exactly what we set out to do in this book. Our belief is that instead of dismissing the years we describe as a meaningless “holiday from history,” we can learn valuable lessons from this recent past, becoming better informed about our current debates, and hopefully making better choices in the future. As America grapples with the complexities of the 21st century, struggling to find the right balance between its power, responsibilities, and ambitions in a globalizing world, the lessons and legacies of the years America between the wars, from 11/9 to 9/11, will endure.



]]> Worldviews, Grand Strategies, and Bumper-stickers http://www.opiniojuris.org/posts/1215658892.shtml Thanks to everyone for what has been a very enriching discussion so far. I’d like to respond briefly to the thoughtful comments made by Peggy and Chris concerning what the story... Derek Chollet 2008-07-10T05:07+00:00
It is quite right that, as we admitted at the outset, this book is in part an intellectual history of how Washington policymakers, politicians and intellectuals tried to make sense of the world and America’s role in it after the collapse of communism. In that sense it is focused. I fully agree that it would be very interesting to broaden the aperture to see how others around the world were trying to do the same thing, and how they perceived our efforts – perhaps we can convince our publisher that that can be the subject of our next book!

Peggy raised the good question of why policymakers were so obsessed with finding a bumper-sticker for America’s global role especially when, as we hope the book shows, it became increasingly implausible and even misguided to do so. I think there are at least a couple reasons for this.

First, I think there was (and still is) a misplaced nostalgia for the supposed simplicity of the Cold War. Some seem to remember these years as ones when all the calls were relatively easy and everyone agreed on America’s global role. There was a sense that by having a single-word doctrine like “containment” we knew exactly what we were doing and why. Well, of course, the history of the Cold War is a lot more complicated than that, and in many ways actions came first and the words to describe them only later (on this point I strongly recommend Deborah Welch Larson’s 1985 book Origins of Containment, in which she uses psychological theories to argue that Truman and others came up with their worldviews retrospectively as a way to explain their actions, rather than the other way around). Yet looking back, policymakers during the 1990s saw America’s Cold War policies as successful because they were driven by an overriding concept – so to equal that success, post-Cold War policies needed a single concept too.

Another reason for all the interest in what we describe as the “George Kennan sweepstakes” during the 1990s was that politicians believed Americans needed something to rally them to stay engaged in the world. Bill Clinton was the consummate politician, and his own obsession with finding that one defining word or phrase was driven in large part by a desire to explain to people what was he was trying to do and why. This is understandable and perhaps even required in a democracy, where leaders need to gain public and Congressional support for what they are doing. It’s worth considering whether because of such pressures we are destined to always be looking for ways to over-simplify things in describing foreign policy goals and interests – no matter how fruitless that might be.

But we hope our book reveals the dangers of trying to sum all of America’s interests and goals into a simple concept. Conservatives looked back on the Clinton years with contempt for the failure to talk about doctrine and come up with an overarching strategy. They thought it was a sign of weakness. That’s one big reason why, in the wake of 9/11, they were so quick to beat their chests and talk about the preemption doctrine and the war on terror. And look where that got us.

This is not to say that moving forward leaders should embrace some kind of strategic nihilism. Of course ideas are important, as are lofty goals. The president should articulate a set of principles and priorities that will help guide the country’s policies. But we think the lessons of America between the wars show that solving problems is more important than laying out all-encompassing ideological pronouncements.

]]> The Aussies Are Coming! The Aussies Are Coming! http://www.opiniojuris.org/posts/1215665332.shtml Every week, an Australian show called The Gruen Transfer asks two advertising companies to compete with each other to sell the unsellable. This week's challenge: create a TV ad to... Kevin Jon Heller 2008-07-10T04:07+00:00 The Gruen Transfer asks two advertising companies to compete with each other to sell the unsellable. This week's challenge: create a TV ad to whip up support in Oz for a military invasion of New Zealand. One of the ads is okay — but this one had me laughing so hard there were tears running down my face:



The ad pokes fun at the 100% New Zealand advertising campaign that is all over the Antipodean airwaves, in case you were wondering.

Watch it! ]]> New (Non-International Law) Essay on SSRN http://www.opiniojuris.org/posts/1215639202.shtml Shameless plug alert: I have posted a new essay on SSRN, "The Cognitive Psychology of Mens Rea." It's a sequel of sorts to my essay "The Cognitive Psychology of Circumstantial... Kevin Jon Heller 2008-07-09T21:07+00:00 a new essay on SSRN, "The Cognitive Psychology of Mens Rea." It's a sequel of sorts to my essay "The Cognitive Psychology of Circumstantial Evidence," which appeared last year in the Michigan Law Review. Here is the abstract:
"Actus non facit reum nisi mens sit rea" -- the act does not make a person guilty unless the mind is also guilty. Few today would disagree with the maxim; the criminal law has long since rejected the idea that causing harm should be criminal regardless of the defendant's subjective culpability. Still, the maxim begs a critical question: can jurors accurately determine whether the defendant acted with the requisite guilty mind?

Given the centrality of mens rea to criminal responsibility, we would expect legal scholars to have provided a persuasive answer to this question. Unfortunately, nothing could be further from the truth. Most scholars simply presume that jurors can mindread accurately. And those scholars that take mindreading seriously have uniformly adopted common-sense functionalism, a theory of mental-state attribution that is inconsistent with a vast amount of research into the cognitive psychology of mindreading. Common-sense functionalism assumes that a juror can accurately determine a defendant's mental state through commonsense generalizations about how external circumstances, mental states, and physical behavior are causally related. Research indicates, however, that mindreading is actually a simulation-based, not theory-based, process. When a juror perceives the defendant to be similar to himself, he will mindread through projection, attributing to the defendant the mental state that he would have had in the defendant's situation. And when the juror perceives the defendant to be dissimilar to himself, he will mindread through prototyping, inferring the defendant's mental state from the degree of correspondence between the defendant's act and his pre-existing conception of what the typical crime or defense of that type looks like.

This goal of this essay is to provide a comprehensive -- though admittedly speculative -- explanation of how jurors use projection and prototyping to make mental-state attributions in criminal cases. The first two sections explain why jurors are unlikely to use a functionalist method in a case that focuses on the defendant's mens rea. The next three sections introduce projection and prototyping, describe the evidence that jurors actually use them to make mental-state determinations, and discuss the cognitive mechanism -- perceived similarity between juror and defendant -- that determines which one a juror will use in a particular case. The final two sections explain why projection and prototyping are likely to result in inaccurate mental-state determinations and discuss debiasing techniques that may make them more accurate.
As always, comments would be welcome -- especially in time for fall law-review submissions...]]> The View from Paris http://www.opiniojuris.org/posts/1215638771.shtml I'm afraid I haven't been holding up my end of this discussion very well because it turned out that I am traveling to Europe just as things got underway. I'm here... Ken Anderson 2008-07-09T21:07+00:00
Without exception, everyone involved agreed that American policy was characterized by deep continuity across administrations. There was also general agreement that an Obama administration would be a heartbreaker for a lot of people in the world, because people have projected so much onto its generally blank stage - and will be surprised when it turns out that American policy, while shifting at the retail and rhetorical level between American ideals and interests, is quite firm over the long term. I asked what made that so, and the answer was not what I expected - bureaucratic inertia, etc. One French friend said, here in France or Britain, the answer would be that the permanent government, the bureaucracy and officials who are really "eternal France," would immobilize things. In America, though, continuity arises because there really is a shared sense, even a vital center, even if American elites can't see it, can't see the forest for the trees. It was so under Clinton and under Bush.

Everyone pretty much wants to see Obama win. But many were equally fearful of what they fear his policies might be. A core concern is the area, interestingly, in which movement is seen as possible: trade and global economic relations. My heart wants Obama, said one senior elite journalist, but my head says if there's one thing he might really damage, it will be global trade. (And this from someone who proudly announces himself as a leftwing Gaullist, pour la France, baby!) The human rights people, for their part, hated the Iraq war, and yet fear that he will snatch defeat from victory: the Americans must stay and win (from a Nordic human rights activist) and defeat must not be the easy American option today. What does defeat mean, I asked; it means American withdrawal and civil war.

Finally, getting back to the book, the perception of the Clinton years was that it was "soft isolationism." Clinton was perceived by this dinner table as someone with little experience or interest in all that foreign stuff. The point of international law was to provide a rhetorical vehicle by which it would sound like it was getting taken care of, but there were no actual changes or obligations. It was only when the chickens came home to roost that things changed. International law, one experienced foreign policy person from that period said, was not a way to make things happen, but a way to avoid them. This is not a new view, of course, but time has not altered their perception of those years.

And the war on terror and 9-11? A senior French journalist said, Americans who get enthusiastic about the European approach to counterterrorism often mistake strategic necessity for strategic preference; we cannot have a war on terror because, unlike America, the enemy is as much inside Europe as anywhere. If we could conduct it as a war, we would. Meanwhile, within Europe, the weak links are Britain and the Dutch; if there is ever a return to internal passports in the EU (I quote) it will be because France will have tired of paying the costs in terror of what British civil libertarian self-righteousness has wrought. France is very practical; we say one thing and do another. American policy is madness, but it a madness that can be afforded by a country in which the risks are still mostly external.

Sorry that this is not more directly about the book, but it was all the very lively consequence of a dinner discussion stimulated by posts about the book! (My dinner companions were okay about being referred to in this unnamed way.)

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