Opinio Juris

I had contemplated weighing in on commentators' unfortunate tendency to equate the Responsibility to Protect doctrine with humanitarian invasion, but John Boonstra at UN Dispatch beat me to it. Here's a snippet:

First, by and large, the R2P doctrine has been misunderstood or misrepresented in calls to "invade" Burma. R2P is often implied to boil down to a simple equation: if a government is unable or unwilling to adequately protect its citizens, then the international community has a right to forcibly intervene to protect these people. The first part of this conditional is accurate, but the second is a gross oversimplification. R2P does not prescribe invasion any more than the Constitution of the United States mandates impeachment. Military intervention is only one component of the R2P framework, and one of last resort, at that; it is only to be undertaken when a series of specific conditions are met, ensuring that intervention is justified, well-intentioned, practical, authorized by the proper authority (i.e., the UN Security Council), and will not cause more harm than good.

Wielding R2P as a Trojan horse for invasion and regime change, as Robert Kaplan seems to desire, is harmful to the integrity and future viability of the concept, as well as to the more pressing concern of alleviating the Burmese people's suffering.

The whole post is well worth a read. It's here.

I'm sorry, I just can't let this one go:

Picture, if you will, a tree-lined plaza in Baghdad's International Village, flanked by fashion boutiques, swanky cafes, and shiny glass office towers. Nearby a golf course nestles agreeably, where a chip over the water to the final green is but a prelude to cocktails in the club house and a soothing massage in a luxury hotel, which would not look out of place in Sydney harbour. Then, as twilight falls, a pre-prandial stroll, perhaps, amid the cool of the Tigris Riverfront Park, where the peace is broken only by the soulful cries of egrets fishing.

Improbable though it all may seem, this is how some imaginative types in the US military are envisaging the future of Baghdad's Green Zone, the much-pummelled redoubt of the Iraqi capital where a bunker shot has until now had very different connotations.

A $5bn (£2.5bn) tourism and development scheme for the Green Zone being hatched by the Pentagon and an international investment consortium would give the heavily fortified area on the banks of the Tigris a "dream" makeover that will become a magnet for Iraqis, tourists, business people and investors. About half of the area is now occupied by coalition forces, the US state department or private foreign companies.

The US military released the first tentative artists' impression yesterday. An army source said the barbed wire, concrete blast barriers and checkpoints that currently disfigure the 5 sq mile area would be replaced by shopping malls, hotels, elegant apartment blocks and leisure parks. "This is at the end of the day an Iraqi-owned area and we will give it back to them with added value," said the source, who requested anonymity.

Potential investors are being encouraged to take a punt that years ahead, Baghdad's fortunes may mirror former war-torn cities such as Sarajevo and Beirut that have risen from the ashes.

Marriott International has already signed a deal to build a hotel in the Green Zone, according to Navy Captain Thomas Karnowski, the chief US liaison. Also in the pipeline is a possible $1bn investment from MBI International, a hotel and resorts specialist led by Saudi sheikh, Mohamed Bin Issa Al Jaber.

One Los Angeles-based firm, C3, has said it wants to build an amusement park on the Green Zone's outskirts. As part of the first phase, a skateboard park is due to open this summer.

The best thing about the "artist's rendering" is the complete absence of background. Wonder why that is?

Marty Lederman has kindly published a long post I have written on what — if anything — the Justice Case has to say about the criminal responsibility of government lawyers like Yoo. Here is the introduction:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:

Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.

I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

I hope readers will check out the entire post, along with Marty's excellent introduction, in which he discusses his general views on the issue. I completely agree with Marty and hope that readers will not misunderstand my position. I am not saying that nothing John Yoo and the other government lawyers did could ever be considered criminal. I am not saying that the Justice Case rules out the possibility of a future prosecution. Indeed, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.

Naomi Norberg has a fascinating post today at IntLawGrrls about the legal treatment of modern-day pirates. I just want to point readers to a recent article in The Sunday Times about British fears that captured pirates could ask for asylum in the UK:

The Royal Navy, once the scourge of brigands on the high seas, has been told by the Foreign Office not to detain pirates because doing so may breach their human rights.

Warships patrolling pirate-infested waters, such as those off Somalia, have been warned that there is also a risk that captured pirates could claim asylum in Britain.

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

[snip]

Britain is part of a coalition force that patrols piracy stricken areas and the guidance has troubled navy officers who believe they should have more freedom to intervene.

The guidance was sharply criticised by Julian Brazier MP, the Conservative shipping spokesman, who said: “These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.”

A Foreign Office spokesman said: “There are issues about human rights and what might happen in these circumstances. The main thing is to ensure any incident is resolved peacefully.”

The guidance is the latest blow to the robust image of the navy. Last year 15 of its sailors were taken prisoner by the Iranians and publicly humiliated.

I don't know whether a captured pirate could actually seek asylum, but I don't see why he wouldn't be protected by one of the various conventions — CAT, the ECHR, the Refugee Convention — against refoulement to a state that would likely torture him. Readers?

Finally, some good news out of Iraq:

An Iraqi judicial committee has dismissed terrorism-related allegations against Associated Press photographer Bilal Hussein and ordered him released nearly two years after he was detained by the U.S. military.

Hussein, 36, remained in custody Wednesday at Camp Cropper, a U.S. detention facility near Baghdad's airport.

A decision by a four-judge panel said Hussein's case falls under a new amnesty law. It ordered Iraqi courts to "cease legal proceedings" and ruled that Hussein should be "immediately" released unless other accusations are pending.

The U.S. military referred the case in December to an investigating judge, who reviewed the evidence and submitted his findings to the Central Criminal Court of Iraq to determine whether the case should go to trial.

In February, however, parliament approved a law providing amnesty to those held for insurgency-related offenses — including detainees such as Hussein who have never been convicted.

The committee from the Iraqi Federal Appeals Court ruled Monday that allegations against Hussein were covered by the Anti-Terrorist Law and were subject to the amnesty law.

I have previously discussed the Bush administration's shameful attempts to engineer Hussein's conviction, as has — in far more depth — Scott Horton. It will be interesting to see what the administration does now; as the article notes, Hussein is actually in U.S. military custody. As the AP article notes, it may not let him go without a fight:

U.S. military authorities have said a U.N. Security Council mandate allows them to retain custody of a detainee they believe is a security risk even if an Iraqi judicial body has ordered that prisoner freed. The U.N. mandate is due to expire at the end of this year.

Also, the amnesty committee's ruling on Hussein may not cover a separate allegation that has been raised in connection with the case.

[snip]

In response to a question from the AP, Pentagon spokesman Bryan Whitman said it "will be up to officials in Iraq" on whether to release Hussein. The decision, he said, will be "based upon their assessment as to whether he remains a threat."

Under Iraq's 2-month-old amnesty law, a grant of amnesty effectively closes a case and does not assume guilt of the accused.

Hussein has been held by the U.S. military since being detained by Marines on April 12, 2006, in Ramadi, about 70 miles west of Baghdad. Throughout his incarceration, he has maintained he is innocent and was only doing the work of a professional news photographer in a war zone.

The amnesty committee's decision covers various allegations by the U.S. military against Hussein, including claims he was in possession of bomb-making material, conspired with insurgents to take photographs synchronized with an explosion and offered to secure a forged ID for a terrorist evading capture by the military.

The committee may still be reviewing a separate allegation that Hussein had contacts with the kidnappers of an Italian citizen, Salvatore Santoro, whose body was photographed by Hussein in December 2004 with two masked insurgents standing over Santoro with guns.

[snip]

The amnesty committee — or any Iraqi institution — cannot force the U.S. military to release or turn over any of the estimated 23,000 detainees it holds in Iraq. But a provision in the amnesty law states that the Iraqi government "is committed to take the necessary measures to move the arrested people" from U.S. control.

More later, as additional information becomes available...

UPDATE: Scott Horton provides some background on the separate allegation involving Santoro, which turns out -- not surprisingly -- to be as baseless as the other ones:

Other than the terrorism charges, the military had questioned the photographer’s presence on the scene following the abduction and killing of an Italian, Salvatore Santoro. I worked as Bilal Hussein’s counsel in 2006, and during this time I conducted a comprehensive review of the very vague allegations surrounding Santoro’s death, reviewing the documentary evidence with experts and interviewing the available witnesses. The AP photographer had been stopped with others at a check point and asked to take “trophy photos” of Santoro, who had been killed earlier in the day. A study of the photos and examination of other witnesses bore out the account, and military investigators also acknowledged off the record that there was no real basis for charges. But they continued to raise them nonetheless — apparently because they were under relentless pressure to come up with some charges.

Yes, the venerable symbol that was born as the emblem of the British anti-nuclear movement but has matured into the universal sign of peace turns 50 today.


It's a beautiful symbol, one that — alas — will likely outlive us all. But we should still continue to hope for a world in which its use will no longer be necessary.

Whatever will Fox News do now? Not even the Pentagon still believes that Saddam had operational ties to al Qaeda:

An exhaustive review of more than 600,000 Iraqi documents that were captured after the 2003 U.S. invasion has found no evidence that Saddam Hussein's regime had any operational links with Osama bin Laden's al Qaida terrorist network.

The Pentagon-sponsored study, scheduled for release later this week, did confirm that Saddam's regime provided some support to other terrorist groups, particularly in the Middle East, U.S. officials told McClatchy. However, his security services were directed primarily against Iraqi exiles, Shiite Muslims, Kurds and others he considered enemies of his regime.

The new study of the Iraqi regime's archives found no documents indicating a "direct operational link" between Hussein's Iraq and al Qaida before the invasion, according to a U.S. official familiar with the report.

He and others spoke to McClatchy on condition of anonymity because the study isn't due to be shared with Congress and released before Wednesday.

President Bush and his aides used Saddam's alleged relationship with al Qaida, along with Iraq's supposed weapons of mass destruction, as arguments for invading Iraq after the September 11, 2001, terrorist attacks.

Then-Defense Secretary Donald H. Rumsfeld claimed in September 2002 that the United States had "bulletproof" evidence of cooperation between the radical Islamist terror group and Saddam's secular dictatorship.

Then-Secretary of State Colin Powell cited multiple linkages between Saddam and al Qaida in a watershed February 2003 speech to the United Nations Security Council to build international support for the invasion. Almost every one of the examples Powell cited turned out to be based on bogus or misinterpreted intelligence.

As recently as last July, Bush tried to tie al Qaida to the ongoing violence in Iraq. "The same people that attacked us on September the 11th is a crowd that is now bombing people, killing innocent men, women and children, many of whom are Muslims," he said.

The new study, entitled "Saddam and Terrorism: Emerging Insights from Captured Iraqi Documents", was essentially completed last year and has been undergoing what one U.S. intelligence official described as a "painful" declassification review.

The only surprising thing about the report is that the Bush administration didn't manage to bury it until, say... November 5th. That must be painful indeed.

P.S. McClatchy is truly a national treasure. You have to love a news organization whose motto is "truth to power." (What a radical idea!) Pray that the company's well-known financial problems — its newspapers have lost more than $1.5 billion over the past two years — don't lead to its collapse.

UPDATE: How embarrassing is the report to the Bush Administration? Consider the lengths it's going to ensure it gets read by as few people -- especially journalists -- as possible:

The Bush Administration apparently does not want a U.S. military study that found no direct connection between Saddam Hussein and al Qaeda to get any attention. This morning, the Pentagon cancelled plans to send out a press release announcing the report's release and will no longer make the report available online.

The report was to be posted on the Joint Forces Command website this afternoon, followed by a background briefing with the authors. No more. The report will be made available only to those who ask for it, and it will be sent via U.S. mail from Joint Forces Command in Norfolk, Virginia.

It won't be emailed to reporters and it won't be posted online.

At Prawfsblawg today, my friend — and national-security law expert — Steve Vladeck discusses what the reversal of Mohammed Munaf's conviction means for his Supreme Court case. Here is a snippet:

Munaf's habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts' jurisdiction).

Significantly, the distinction between Munaf and the other detainee — Omar — relied upon by the D.C. Circuit was Munaf's conviction by the CCC-I... the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn't (Munaf).

If Munaf's conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to "pure" executive detention, without the wrinkle added by Munaf's conviction (subsequent to the filing of his habeas petition). Indeed, Munaf's almost becomes the stronger case, since his, unlike Omar's, is not in the posture of a grant of a preliminary injunction...

Steve's post is here, and the amicus brief he co-authored arguing that the federal courts have jurisdiction in both cases is here.

Shocking legal news out of Iraq — the Court of Cassation has reversed the conviction of Mohammed Munaf, the US citizen sentenced to death for helping kidnap three Romanian journalists in Iraq in 2005:

Munaf's lawyer, Joseph Margulies, said the Iraqi Court of Cassation reversed the conviction and sentence because it could not determine the role Munaf and other defendants played in the kidnapping from the court record. The Iraqi prosecutor supported the court's decision, Margulies said in an e-mail to The Associated Press.

Munaf is part of a pending Supreme Court case in which he and another naturalized American, Shawqi Omar, are trying to prevent the military from handing them over to the Iraqis.

The Bush administration argues that they should not be able to contest their pending transfers in U.S. courts since they are being held not by the United States, but by coalition forces in Iraq.

The administration, in its Supreme Court filing, said, "Munaf admitted on camera, in writing, and in front of the Iraqi investigative court that he participated as an accomplice in the kidnapping for profit of the Romanian journalists."

Munaf has said his confession was coerced.

The US role in Munaf's case has been bizarre, to say the least. According to Scott Horton, the trial judge in the case had initially been set to dismiss the charges for lack of evidence — until two Americans intervened and convinced him otherwise. I can't do the story justice, so here is Horton's account, in all its Kafkaesque glory:

AMY GOODMAN: Scott Horton, I wanted to go back to another story, one that we have covered that hasn’t gotten a lot of attention: Mohammad Munaf. He is the Iraqi American who has just been sentenced to death also. Can you talk about his case?

SCOTT HORTON: Well, I was astounded by that, when I first heard a report about it... So I spoke with the defense counsel. I also spoke with a bailiff at the court about it, to find out what had happened in this proceeding. And what they all described — in fact, completely they all had exactly the same account of what happened — was shocking.

They say that he was brought into the courtroom, Mr. Munaf, by two American officers — one they described as, quote, “the general”; the other they described as a man named Lieutenant Pirone. He was brought before the court. The court had announced, prior to session, that reviewing the evidence of the case, he had concluded that he would dismiss the charges, that there were no substantial charges, and that at this hearing, that would be a conclusion to the affair, there would be a dismissal.

[snip]

SCOTT HORTON: ... And then, the account is that this American lieutenant stood up, began arguing very loudly with the judge, saying it was unacceptable that this man be dismissed, that he had to be convicted, and moreover that he had to receive the death sentence. And the American whipped out a piece of paper saying he was there speaking on behalf of the government of Romania and the government of Romania demanded the death sentence.

Afterwards, there was a private discussion, I’m told, between the Americans and the judge. The judge emerged from this ashen-faced, looking very upset, and then proceeded immediately to convict the man and sentence him to death.

And subsequently, the government of Romania reacted, saying they knew nothing about this proceeding and they certainly did not authorize an American officer to stand up in the court and demand the death sentence. In fact, the government of Romania does not endorse the death sentence. So there’s something very strange going on about this case.

I haven't been following Munaf's Supreme Court case, so I can't discuss what effect the reversal will have. Perhaps one of our readers will weigh in.

The following is a second post by Sonya Sceats, an Associate Fellow in International Law at Chatham House in London.

The ‘absolute’ nature of the torture ban was affirmed today by the European Court of Human Rights in Strasbourg, thus bringing to a close a long campaign by the UK to dilute the ban in cases involving proposed deportation of terror suspects to countries where they face a 'real risk' of torture.

The ruling comes in the case of Saadi v Italy involving a Tunisian national who is resisting deportation from Italy on the basis he could face torture in his homeland where he has been sentenced in absentia for terrorism-related offences. The UK put its own arguments to the Court to try and secure a more relaxed approach in these sorts of deportation cases where national security is at stake.

The prohibition of torture is one of the very few 'absolute' human rights, meaning that international law permits no exceptions to it — this total ban is considered an iconic achievement of the international human rights system. However, the heightened threat of international terrorism has placed the ban under increasing pressure in recent years, including from states like the US and the UK which hold themselves up as proud architects of this system.

For the UK, a key sticking point is a 1996 decision by the Strasbourg Court which blocked the UK's efforts to repatriate a supporter of Sikh separatism to India; there was strong evidence he would be tortured by Punjabi security forces and the Court held that parties to the European Convention on Human Rights must not deport anyone if they face a 'real risk' of torture upon arrival. Crucially, the Court underscored the universal nature of this protection, rejecting the UK's arguments that an exception should apply because the individual concerned, Mr Chahal, was suspected of involvement with terrorism.

For many years now the UK Government has voiced dissatisfaction with this decision. It believes that the Chahal case goes beyond what the framers of the Convention intended when they drafted the torture prohibition (providing simply that 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'), and that it frustrates legitimate security policies in a post-9/11 world.

In the Saadi case the UK Government mounted a legal assault on the test for deportations developed by the Strasbourg Court in the Chahal case. It urged the Court to recognise that the torture ban is not in fact absolute in such cases and that states should be permitted to weigh the risk of torture abroad against the risk of terror attacks at home.

The Court today resoundingly rejected these arguments. In a unanimous decision it confirmed that the torture ban applies equally to all human beings, regardless of their conduct, and that European states are not permitted to use a 'balancing' test when deciding whether to deport dangerous people to countries with poor track records on torture.

The ruling will come as an enormous relief to anti-torture and human rights campaigners everywhere. The prospect of one of the world’s most respected human rights courts stepping backwards on the torture ban had sparked widespread alarm in recent months. Instead the Court held firm, noting that although states are facing considerable difficulties in protecting their communities from terrorist violence, this should not call into question the absolute nature of Article 3.

This episode, despite its outcome, undoubtedly tarnishes the reputation of the UK as a leader in the field of human rights. In the past, the UK was known for the emphasis on human rights in its foreign policy but in recent years it has developed a less enviable reputation as an innovator of bad practice. For example, it has adopted the extremely controversial practice of agreeing 'diplomatic assurances' with states such as Jordan, Libya and Lebanon which provide that deportees will not be tortured on return. Human rights activists say that there is no real possibility of monitoring whether the countries concerned will keep to their promises. Although it was unsuccessful, this latest attempt to render more elastic the rules on torture will fuel deep concerns about the UK’s willingness to sacrifice basic rules of international human rights law in the name of counter-terrorism.

From TPM Muckraker:

[Y]ou may have despaired of ever seeing a clear, unequivocal exchange on the topic with a government official. Like this one from today's hearing before the Senate Armed Services Committee, with Lt. Gen. Michael D. Maples, the director of the Defense Intelligence Agency:

Sen. Carl Levin (D-MI) asked, "General, do you believe that waterboarding is consistent with Common Article 3 of the Geneva Conventions?"

After pausing a moment to think, Maples replied, "No, sir, I don’t."

"Do you think it’s humane?" Levin asked.

"No, sir, I think it would go beyond that bound."

Now was that so difficult?