The new session of the U.N. Human Rights Council began on March 1. A failure of the world’s most influential human rights body to deal with the abuse of human rights in Iran will be interpreted by Tehran as a green light for the government’s brutal policies that could result in more executions of political prisoners....

While atrocities since June have horrified people around the world, leading to demonstrations by more than 50,000 people in 110 cities last summer, Iran seems, astonishingly, to be strengthening its standing in the Human Rights Council.

The 47 member states have shown no willingness to hold a special session, as many international human rights experts have recommended, nor have they supported the idea of a special U.N. envoy to look into the situation, and to press Iran to abide by its commitments....

The failure of the Human Rights Council to take serious action to condemn Iran’s human rights abuses, and the election of Iran to the Human Rights Council itself, will be deeply disillusioning for the reform and human rights movement in Iran. It could destroy their faith in the international human rights system, for which many have sacrificed their freedom and security, and for which many have died. It will give legitimacy to hanging political prisoners, and more will be hanged.

But this issue is not just about Iran. It is about the capacity of the U.N. system to protect human rights. If Iran’s grave abuses are ignored and if Iran assumes a place on the council, the council will be further weakened. Other dictatorial regimes will be emboldened to repress their citizens.

Ghaemi and Rhodes attribute the Human Rights Council’s failure to take a stand against Iran to concern that doing so might derail negotiations to reign in Iran’s nuclear program. However, those negotiations have achieved little or nothing in any event. The real cause of Iran’s successes in the United Nations are traceable to deeper weaknesses of international human rights law.

Both the content and enforcement of international human rights law are heavily influenced by authoritarian states who have a strong interest in using the system to protect and legitimize their own oppressive practices. John McGinnis and I have discussed these issues in detail in two academic articles (see here and here).

Far from seeking to protect human rights, the HRC (whose membership includes numerous dictatorships), often passes resolutions intended to facilitate repression (see e.g. here and here). Iran itself has been a member of the HRC in the past and, as Ghaemi and Rhodes point out, is likely to succeed in its efforts to become one again. Even the UN’s Universal Declaration of Human Rights — the most important international human rights law agreement — includes repression-facilitating elements introduced at the behest of the USSR and its totalitarian allies.

The bottom line is that the main weaknesses of the international human rights system are structural. By giving so much influence to the very sorts of governments that human rights law is supposed to constrain, it actually empowers oppressors much more than victims. In the short run, liberal democratic governments should work to limit the scope of the system and and prevent its pernicious elements from overriding their own domestic law, a point McGinnis and I emphasized in our articles linked above. In places like Iran, progress in protecting human rights probably depends on action by liberal democracies and internal dissidents acting outside the confines of the UN system. Liberal democracies cannot and will not always prioritize the promotion of human rights. But they have fewer perverse incentives on these issues than dictatorships do.

In the long term, we should explore the possibility of establishing international human rights bodies that exclude illiberal regimes from membership. That may be the only way to create a Human Rights Council that isn’t just a committee of wolves pretending to guard the chicken coop while they gobble up the chickens.

Moazzam Begg ... is a British citizen who was captured in Pakistan in 2001 as an enemy combatant and sent to Guantanamo. He was released without charge in 2005. Mr. Begg claims he was tortured and threatened with execution. He has since become a minor celebrity in the Western human-rights community.

He is currently the director of Cageprisoners, a group that bills itself as an organization that exists “solely to raise awareness of the plight of prisoners . . . held as part of the War On Terror.” Amnesty describes Cageprisoners as a “leading human rights organization.” Yet one of its senior members, Asim Qureshi, spoke at a 2006 London rally sponsored by extremist group Hizb ut-Tahrir, which promotes the idea of a renascent Islamic caliphate. Mr. Qureshi took the occasion to glorify terrorism in Iraq, Chechnya, Afghanistan and Kashmir.

Mr. Begg does not hide his own Islamist convictions. In his memoir, “Enemy Combatant,” he recalls his interrogation at Guantanamo, in which he credits his emigration to Afghanistan to his desire “to live in an Islamic state—one that was free from the corruption and despotism of the rest of the Muslim world.” The Taliban, Mr. Begg insists in his book, were “better than anything Afghanistan has had in the past twenty-five years.” Elsewhere he has cited and sold the works of the “charismatic scholar” Sheikh Abdullah Azzam, erstwhile mentor to Osama bin Laden.

Despite all of this, Amnesty has provided Mr. Begg with numerous speaking platforms. He has toured Europe with Amnesty officials as part of a campaign to urge Western governments to offer safe haven to Gitmo detainees. A recent stop was 10 Downing Street, where they petitioned Prime Minister Gordon Brown to push for the release of Britons still held at the prison. Amnesty says it associates with Mr. Begg because he experienced first-hand the human-rights violations at Guantanamo.

Enter Ms. Sahgal, a longtime Amnesty employee who believed that her organization’s support for Mr. Begg betrayed its core principles. She went public with her concerns in a Feb. 7 interview with London’s Sunday Times in which she called the collaboration “a gross error of judgment” that posed a serious threat to human rights and to Amnesty’s reputation. Amnesty suspended Ms. Sahgal from her job, claiming it didn’t want her opinion of Mr. Begg to be confused with its own.

As I said in an earlier post, I believe AI has long since reached the point where it does more harm than good.  But AI also charts the ideological course of human rights as a moral and political discourse.  From the liberal internationalism (problematic in its own right) of the 1990s and the high water mark of the New World Order dreams of the 1990s, human rights as the “apex” moral discourse of the international community in pursuit of the progressive dream on all fronts.  To today’s embrace of what best be called “multicultural internationalism” — the embrace of globalized identity politics and, functionally today, global religious communalism.  Hence AI’s (and HRW’s and many other NGOs’) ardent desires to come to a little mutually-legitimizing arrangement with elements of the Muslim world and not excluding, in the case of AI, parts that on any conventionally rights-liberal or even secular progressive account would be considered unacceptable.  In that world of globalized religious communalism re-expressed in the language of human rights, NGOs such as AI turn out to have a featured role (somehow unsurprisingly) in elite management of global “identity” populations.  They are said to “represent” them and their presumed interests, values, and desires on everything from climate change to dam-building in the presumably de-sovereignated world.

As an aside, I had thought, frankly, that even in the academic world, the 1990s-era momentum for NGOs “representing” the peoples of the world in the international community had dissipated under what, I thought, had been a double whammy.  Waves of stinging criticism, including from within the progressive community, of the presumption of self-appointed NGOs purporting to “represent” anyone other than themselves, on the one hand. Re-emergence, on the other, of sovereignty as a category of importance far beyond the supposedly retrograde American assertions of democratic sovereignty — instead, far cruder, harder, naked and quite undemocratically-linked invocations of sovereignty from rising China and others.  As I’ve said many times on this blog, the fluffy global civil society and human rights stuff turned out, in retrospect, to shelter under the big and forgiving tent of American hegemony.

Turns out I was quite wrong about the direction of the academic discourse.  Consistent, I believe [Steve might not! — ed.], with my own special thesis about the fragmentation of “international law” into self-reproducing communities of authority and interpretation that don’t much address one another any more, Steve Charnovitz points out, in a very interesting recent review essay in the American Journal of International Law, that the NGO=global civil society=legitimacy=representativeness meme continues to churn away in book after successive book.  I will have to go now and address that literature, I suppose, after having thought that it had disappeared — thinking incorrectly that the debate over global governance had moved on, apart from a few die-hard global civil society theorists, to the question of the possibilities and limitations of the political legitimacy of global technocrats whose sole claim is to make the global internet move on time or (um ...) manage the global financial system.

But I wanted to add, as well, that numerous skeptical commenters on this blog, and others, including the Very Great Glenn Reynolds, remarked on my last AI post that, really, one should pay closer attention to the money in order to understand NGO motivations.  I agree entirely — more than entirely — with the proposition that far greater attention needs to be paid to the flows of NGO money.  If political and social scientists, legal academics, and others studying NGOs were to pay one percent of the attention that they would apply to the material conditions underlying NGOs in the way that without question would be applied to corporations or government sectors, we would have a vastly more accurate understanding of the international NGO sector.  (But then, I am someone who thinks that no one should allowed to be a lawyer, political scientist, sociologist, or anthropologist, who cannot read basic financial statements.  Let No One Enter Here Who Cannot Read a Balance Sheet, &tc.)

That said, however, I also don’t think one can understand NGOs solely on the basis of material conditions.  (For the legal academics among us — it’s a little like super-crude versions of early Legal Realism and trying to explain judicial behavior through purely material markers.)  That’s what makes them so interesting, of course — they are ideological creatures, driven by ideas and ideals, and (often) not just by money.  So their internal ideologies matter.

So, the famous, and now largely abandoned, AI “mandate” provided it, over many decades, with two important things — moral authority, but moral authority arising in large part because people believed that it had internalized limitations on its own claims to authority.  Groups like AI and HRW still claim endless amounts of moral authority — the Categorical Imperative as open checkbook for human rights organizations, as it were — but Absolute Moral Authority for many, many propositions that change on a regular basis.  The idea of limitations on the agenda that can be espoused in the language of human rights has become entirely notional.  Elsewhere, I’ve called it “serial absolutism.”  Moreover, they are also — as AI demonstrates so dismayingly — quite creatures of the ‘outer’ cultural zeitgeist; tossed to and fro, and carried about, as it were, with every wind of doctrine, by the sleight of men, and cunning craftiness, whereby they lie in wait to deceive.

I’ve been quiet around VC in the last little while as I, too, have been writing about Predators and targeted killing — expanding and moving beyond my book chapter from last year  on this topic.  Barring some big news on health care or some such, the Weekly Standard will be running a piece from me next week arguing something I’ve developed here at VC and at Opinio Juris blog:  first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants.

In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from the Hoover Task Force on National Security and Law), I will be arguing a further step in this — one which relates to Rittgers WSJ op-ed.  Underlying much of the argument over drone warfare is a submerged factual and normative frame about who, what, and where.  Rittgers, for example, is drawing upon his extensive experience as a Special Forces officer, and reserve judge advocate, with three tours in Afghanistan, to point out that it is a mistake and really not possible to micromanage military operations in the field.  Nor is the use of a missile fired from a drone in battle significantly different from a missile fired from a manned aircraft, or a helicopter, or some other place.

Critics who call the practice extrajudicial execution, however, are frequently focused upon another scenario.  The version of it furthest from the hot battlefield scenario is a CIA directed drone missile strike upon a target in a compound far away from any theatre of active fighting, such as AfPak — someone in Yemen or Somalia, to take the obvious examples.  From the critics’ standpoint, it is a bit of bait and switch to defend drone missile attacks on the basis of their use on a hot, active battlefield, or even in a general theatre of conflict — for which, the critic will note, one might or might not include the “Pak” part of “AfPak” — and then turn around and say, therefore, a CIA attack in Somalia is similarly okay.  From the critics’ view, even if the theatre of conflict use by uniformed military is okay on traditional military targeting terms (and for the human rights monitors, it likely is not — or, more precisely, permissible in principle, but somehow not in any particular circumstances), that is not the same as the CIA’s global reach.  From the critics’ point of view, that is, what goes on operationally at ground level in Afghanistan somewhat misses the point.  From my view, too, what needs to be defended as legal policy by the United States is not principally that use of drone attacks — that is not at that point so much questioned, although perhaps I am too sanguine about it — but instead the CIA, covert action as a category, and targeted killing outside of the traditionally understood idea of  a zone of armed conflict.

This is one of the reasons that I regard the proper legal basis for Predator targeted killing to be the law of self-defense — it is what the Obama administration really intends, if it is not to fall back into the idea of a “global” war on terror, and yet also intends to preserve the traditional sovereign legal right to strike at non-state actor terrorists in their safe havens, if the relevant state cannot or will not deal with them.  The President and Vice President have said repeatedly — and in so doing, merely re-stating what ever president has asserted since transnational terrorism rose as a threat to Americans — that the US will take the fight to the terrorists, and pointedly said wherever that is and that terrorists will not be allowed safe haven, and that the US will strike on the basis of the terrorists’ intentions.  Nothing new in that, but the legal basis for the United States to do so is different from the legal basis on which it is lawful to use drones and missiles from drones in a theatre of active armed conflict.

The legal, normative, and moral arguments over drones, then, are not so much about hot battlefields, nor even largely about theatres of active armed conflict.  The arguments are about the use of drones and targeted killing by the covert services, the CIA, beyond those confines.  Understood that way, this is about drone warfare as a form of strategic airpower.  The attempt to dominate from the air on a global, or at least potentially extensive geographic, basis using unmanned airpower.  Not all of this is about counterterrorism or the use of smaller and more discriminating, person-specific weaponry.  The Israelis officially unveiled their massive, airliner sized drone aircraft, the purpose of which is presumably to be able to strike at nuclear facilities in Iran — not about targeted killing, but the classic projection of strategic airpower.

Again, one way of understanding the strategic frame is as strategic airpower — leveraging military capital over labor through drones, with the intention of developing a counter-raiding capability that extends over an ever greater geographic range, whether for large-weaponry anti-facility attacks or small-scale anti-individual targeted killing.  Strategic airpower has long been a holy grail — but it has never worked quite as successfully as each new iteration hopes.  The “light footprint” strategy based around counterterrorism, over the horizon drones and missiles, might or might not be a winning strategy; it might be, rather, that counterinsurgency through boots on the ground and denial of territory for safe havens is required, as many have believed in any sustained guerrilla conflict.  I don’t know the answer to that question; the administration’s long delay in determining its Afghanistan strategy was presumably, at the most abstract level, about answering exactly that.  What is clear is that whether pure counterterrorism without on-the-ground counterinsurgency, or counterinsurgency to control territory and population, drones are going to be important.

Put another way, particularly as they are used outside of the active counterinsurgency theatre of AfPak, drones, with sophisticated surveillance gear but also missiles, act as the lightest of light cavalry.  They probe, surveil, and engage in pinprick attacks, behind enemy lines, far beyond one’s own lines.  When the CIA engages in targeted killing against some Al Qaeda operative in Somalia, from a strategic perspective, it is a combat raiding strategy by very light cavalry indeed.  But it is so far beyond one’s own lines, as it were, that from a legal standpoint, I would place it beyond the legal “armed conflict” altogether and treat this combat raiding use of force, as a matter of law, as an exercise in lawful self-defense.

But this will get discussed (in numbing detail, I’m afraid) in the Weekly Standard piece.  How’s this for my proposed title — likely to be shot down — Predators over Pakistan, Lawyers over Langley?  :)

Side note:  Although until I come out with my own longer account of my views of the NGO movement, including the human rights monitors, I tend to avoid saying much about human rights groups, I have written a bit about Amnesty in the past.  A couple of years ago I commented in the Weekly Standard, here, reaping a remarkable amount of hate e-mail.  And then I gave a short book review in the International History Review of Stephen Hopgood’s part-journalism, part-anthropology account of Amnesty from the inside, Keepers of the Flame — a sympathetic-but-somewhat-critical take on the organization in an earlier phase of its internal theological debate over its mandate.  The Hopgood review is written with a deliberately anodyne academic tone; my views are actually affectively stronger than that.  While I think HRW on balance does more good than harm, I can’t say the same about AI, and haven’t thought that for quite a while.

The international NGO question is important, and the attention it receives is far too much from in-the-tank academics besotted with the idea of academic activism.  (Not always.  See, for example, Steve Charnovitz’s fine writing on NGOs and accountability in the American Journal of International Law (I’ll try to find a public link to his outstanding long AJIL piece; meanwhile here’s a comment of mine that references Steve).  But, well, let’s just say that the mean of the literature is not exactly distanced.  I will try to say more about that in responding to a recent review essay by Steve in the most recent AJIL; hold the thought.)  The herd mentality of the good-and-consensus opinion of international elites — global “experts and enthusiasts,” in someone or other’s excellent phrase — has a palpable effect on so many things, from the “settled” science of climate change, to the desirability of a multipolar world in which the United States no longer provides hegemonic public goods, to the lawfulness of targeted killing by the CIA using Predator drones (as the Obama administration, or more likely some Republican successor, will learn to its sorrow).

I come from the international NGO world, and have written about this before — in a short piece for an undergraduate text, and in this longer book chapter appearing in a book on global philanthropy later this year.  The thing that most continues to amaze me is how unwilling US government senior staff, whether career or political, are to take this into account at the outset of a rising movement in the international community — whether landmines, gun control, anti-free-speech, cluster munitions, targeted killing, detention and interrogation and rendition policy, climate change, on and on.  I like some of the advocacy issues, don’t like others.  What astonishes me in either case, however, is how important US government players under any administration simply assume that NGO movements are too ... too irrelevant to have an effect, much less control outcomes.  I suppose it is simply the structural shortsightedness built into government, but the myopia costs the USG a lot, especially when it suddenly notices and tries to play catchup.

Since 1990, human rights has occupied a privileged position as the “apex” value in the global system of values reflected not just at the UN, but elsewhere, despite the many arguments over what exactly it is supposed to mean and how.  As a consequence, Amnesty International and Human Rights Watch, as the two lead organizations in the global field, have had outsized influence on international politics.  They, and much of the rest of the global elite, have viewed this as a consequence of the universality of their values.  As I have occasionally suggested on this blog (and here in these pieces on the UN and international security, as well as in my forthcoming book on US –UN relations), universal those values might be (though their meaning as asserted by AI and HRW is not beyond contestation) the ability to give them effect in the world since 1990s has depended almost entirely on US hegemony.

Be careful what you wish for when you wish for American decline.  American decline would almost certainly entail the decline of those universal values and, along with them, the human monitors whose universal claims are unlikely to thrive under a multipolarity championed by, for example, China.  (Perhaps the most depressing phenomenon in all this, however, is the Obama administration’s embrace of ideological decline in advance of any historically materialist (what we Marxists like to call “objective”) reason to do so.  I refer particularly to the entirely unnecessary group hug of the demotion of free speech by the US at the UN Human Rights Council.)

Amnesty International has done its reputation incalculable damage by allying itself with Moazzam Begg and his group Cageprisoners, and holding them up as human rights advocates. It looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy, and has lost the ability to distinguish right from wrong.

(H/T Noah Pollak via Facebook)

Well, at least Amnesty doesn’t send out press releases condemning investigative reports they haven’t seen or anything. Oh, wait; right....

UPDATE: Well, at least Amnesty doesn’t advocate extremely tendentious interpretations of international law that would make it impossible for a Western power to fight against irregular terrorist forces mingled with a civilian population.

Oops.

I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event.  My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments — and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public.  While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance at Opinio Juris international law blog that was very well received.  Harold Koh has also been doing some experimentation with different avenues of communication, and this kind of unscripted, informal discussion is an outstanding example of that.

(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on.  So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully — but less informatively — phrased.  So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion.  To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)

The conversation ranged across a wide variety of issues, including something that Julian Ku noted over at Opinio Juris blog (where I’m cross-posting) with respect to DOS international law counsellor Sarah Cleveland’s recent University of Virginia Law School speech on the Obama administration and international law — the pace of treaty exchanges.  John flags Dean Koh on that issue, saying (my summary) that in 2007–2008, the State Department got the Senate to approve more treaties (a record 90 or thereabouts, I believe) than at any point in American history.

On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed.  But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy.

Dean Koh was asked about targeted killing, including a specific question about targeted killing aimed at American citizens.  The exchange takes place at approximately minutes 58–65 in the tape.  The context is a question from someone — I believe, but couldn’t quite hear the feed, from an NGO — unhappy with targeted killings of American citizens, and wanting to know, among other things, whether an American citizen would have the right to contest the evidence against him in a court.  I raise this because Dean Koh’s response was being directed to someone who had strong views, apparently, that the practice, particularly against Americans (who, in the view of the US government, had made themselves liable to attack by joining with groups in hostilities with the United States), was unlawful.  The nuance, in other words, might have been different had it been someone, wanting to know why the State Department wasn’t out in front defending targeted killing as a practice.

Dean Koh’s response was interesting, in that he noted that he had served in both Republican and Democratic administrations, and as a human rights lawyer had sued both Republican and Democratic administrations.  He added that he already a permanent job, and so in effect (I paraphrase) he wasn’t beholden to anyone in formulating his legal views.  He went on to say that he would leave the government if he concluded that targeted killing was illegal.  He did not say that he had concluded that it was legal, but that he would leave if he concluded that it was illegal and, (my) presumably, if that conclusion were not accepted by the administration.  Having said that, however, he added that he was still there.

This is a good place at which to caution against over-interpreting an impromptu discussion.  I would like to conclude that the upshot here is that not having left is not a reason to conclude that Dean Koh has concluded that the practice isaffirmatively legal.  All he said was that if he were to conclude that the practice was illegal (and presumably that conclusion not accepted), he would leave office.  It would appear either that he has concluded the practice is legal or that he has not drawn a conclusion as yet.  (And of course, targeted killing is too broad a description; under what circumstances and what exactly is meant?)  But I do not think it is fair in this setting to draw firm conclusions.

On the other hand, I do think the question important enough that the legal adviser does need to draw some formal conclusions and put them out there, preferably in testimony.  What was said here suggests that the legal adviser to State might still draw the conclusion that targeted killing is unlawful.  If I were the administration, ever more committed by the President, the Vice-President, and down the chain of policy and command, to targeted killing especially via drone aircraft — embracing it as a strategy and publicly endorsing it — I’d be concerned that my chief international lawyer had so far reserved judgment on the question.  I have written in various places that I think Republicans in Congress need to press the State Department for its formal views on this — actually, I think the people who have the most reason to be concerned should be the administration itself.

That would include, I should think, particularly officials and officers in the CIA and civilian intelligence agencies responsible for parts of the drone program outside of the uniformed military — while it would be unfair to say what Dean Koh’s view of their actions would be in the future, surely a senior CIA official would have some concern that after a year, the DOS had not affirmatively embraced in public the lawfulness of the practice or produced a public legal rationale for its lawfulness.  I am no fan of the ACLU on these matters, and I agree with the US government, under both Obama and Bush, that the UN special rapporteur exceeds his mandate to call upon the US government to respond — but as to the substance, I think the ACLU and Philip Alston are both quite right in saying that, yes, the US government needs to state the basis on which it thinks its several varieties of targeted killing programs (those in AfPak, those elsewhere, for example) are lawful.  I think it needs to say so and assert it as formal opinio juris of the United States.  The failure to do so and the increasingly conspicuous absence of the administration’s most senior, and most widely admired, lawyer on public international law and human rights to defend the practice cannot be a good thing.  At what point does the State Department legal department have to express a view, stand with its clients or, as Dean Koh says, stand down?

Again, while it is wrong to over-interpret here, were I a senior CIA or NSC official with operational responsibilities for Predator attacks, I would wonder what exactly to make of the failure of the State Department’s lawyers to step up and defend what I’m doing — and instead to raise the possibility that no conclusion had actually been reached.  Would I think my risks had just been increased — risks of investigation or prosecution five years from now, ten years from now, in some European court?  Or by a future Holderesque Justice Department?

Far fetched?  Maybe.  But I think I would be saying to myself, hmm ... my colleagues and I are out there killing people, and causing some number of collateral deaths, and the President says approvingly in speech after speech, we’re taking the fight to the enemy wherever they are.  And the Vice-President, well, it’s as though he’s beaming with pride over his flock of Predator gooselings ... meanwhile, however, the administration’s lawyer whose public approval, in that world of combined law-diplomacy-global elite opinion matters most to the personal legal protection of the officials tasked with carrying out the President’s policies ... does not seem to have drawn a conclusion.  At least not one he’s willing to share with the rest of us, and with Baltasar Garzon or Luis Moreno Ocampo.

So my own conclusion is — you can’t extract a firm conclusion as to Dean Koh’s views one way or the other.  But there are compelling reasons why it shouldn’t — can’t — go on forever that the State Department expresses no view in public, and gets behind that view in public legal-diplomacy.  If I were the general counsels to the CIA, DNI, DOD, the White House counsel, etc., I think I would have some concerns — and that would be so even if private assurances had been given.

But Dean Koh also made some references as to the legal basis for global counter terror operations generally — and referred to them in the context of the domestic authorization to use force from Congress, the AUMF, and then the international law of armed conflict.  I have argued in various contexts, and will argue some more, that as a matter of international law, targeted killing — to the extent and in the places and against the targets that the administration has undertaken, has committed itself to undertaking, and is likely to be forced by circumstance to contemplate over two terms in office, nearly a decade — cannot really be justified as armed conflict with a non-state actor on a global basis, governed by the laws of war alone.  I don’t think that’s true as a matter of jus ad bellum or jus in bello.

I will be arguing (in a new paper soon) that unless the Obama administration plans to backtrack and adopt the Bush administration’s “global” war on terror as a basis for asserting the laws of armed conflict however and wherever it uses force — all of which I consider to be several bridges too far in defining armed conflict for purposes of the laws of war as such, and perhaps the one area where I agree with Mary Ellen O’Connell — it’s not really talking about armed conflict.  Not in a legal sense.  Not seven years from now, when it sends a miniaturized Predator missile to take out three terrorists who are in some compound in, say, a remote part of, oh, Nigeria in which the central government, caught in civil war, no longer has sway — part of a group that swears allegiance to jihad but has no command or control link to Osama bin Laden.

The legal doctrine the US wants, in that case, is not armed conflict, but the more general category of international law of self-defense.  I am somewhat concerned that the Legal Adviser made no reference to legal rationales for the use of force beyond the narrowest armed conflict law — law which might serve the administration for the next couple of years, but seems more and more like a purely formal, purely notional reference to armed conflict or, for that matter, Al Qaeda or 9–11, as the years roll by.  It seems to me that the law at issue here is the more general category of international law of self-defense, and that the US government does itself no good and much harm in the long term by not asserting the legal category that most accurately describes the uses of force that, over the next decade, it contemplates actually undertaking.

That’s my own legal view, of course, and it will be important to watch as the State Department expresses its positions on these and other issues.  The discussion covered many other aspects of the Obama administration’s approach to international law, although I have focused closely on this one aspect.  It was an outstanding event, and my thanks and congratulations to the organizers and participants — I wish I could have been there.  I hope many people will take time to view the video.

(I have over at my almost-entirely dormant home blog a much more aggressive — too incendiary for VC, I finally concluded - discussion of this, posted up prior to the ASIL discussion.  Instapundit picked it up, so it has circulated pretty widely, so I thought I should reference it here.  In large part, though, it is a highly critical comparison of the administration’s “on offense” and “on defense” approaches to counterterrorism.)

In August, the government unveiled the [High Value Detainee Interrogation Group] HIG for questioning al-Qaeda and announced that the FBI would begin questioning CIA officers about the alleged abuses in the 2004 inspector general’s report. They are apparently still getting organized for the al-Qaeda interrogations. But the interrogations of CIA personnel are well underway.

My prediction is that the something similar will be true, but in the form of investigations and prosecutions in European or foreign courts, or possibly some ICC prosecutor investigation in Afghanistan, of  CIA personnel and their role in Predator drone strikes within two or three years after the Obama administration leaves office.  Perhaps Intrade could set up a prediction market contract? 

Update:  Thanks, Glenn, for the Instalanche — and readers might be interested in the related topic of strategizing such a prosecution comes about, in an earlier Opinio Juris post called “Gaming Spain and Universal Jurisdiction.”  What a friend at the State Department called “cynical,” I call ... game theory!

No matter what your particular legal viewpoint about detention and Guantanamo, this report will be required reading because of the breadth and depth of its analysis — running to all the extant cases.  Ben Wittes is a leading scholar at Brookings in this area and UTexas’s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obams administration on detention policy.  Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies.

I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below:

Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects.  Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.

Boumediene was interesting and important as much for what it did not do as for what it did.  For example, though the issue was briefed, the Court chose not to weigh in on the precise nature and scope of the detention power being exercised at Guantanamo.  Did it apply only to some subset of the members of al Qaeda, the Taliban, or their co-belligerents?  To all members?  What does membership mean in that context anyway?  What about important but independent supporters?  What is the best reading of IHL on these matters, and does IHL actually enter in to the calculus?  What role might the direct participation in hostilities standard play?

And perhaps most important, though the Court had a few things to say about the required procedural features of habeas review, it explicitly left it to the lower courts to sketch the details regarding most of the pertinent evidentiary and procedural rules.  There were some initial calls for legislation to address these questions, but as we saw in 2009 there proved to be little appetite for this on either end of Pennsylvania Avenue.  And so these questions have indeed been left to the courts to answer.  Over the past year, the judges of the district court in DC have been doing just that, producing a number of merits decisions to this point (often favoring the detainee).

Those merits decisions obviously are quite important, but Ben, Rabea, and I are interested just as much if not more so in the substantive and procedural rules that the courts are creating (or at least trying to create) along the way.  Absent legislation, these are the rules of the road for GTMO detention (including for the many detainees whom the Post reports today will continue to be held under color of the AUMF), as well as for any detainees in other locations as to which the federal courts similarly extend habeas jurisdiction (whether and to what extent such jurisdiction applies to our detention operations in Afghanistan, for example, is a question currently pending in the D.C. Circuit).

Indeed, some decisions the judges are making—particularly their views regarding just who comes within the scope of the AUMF—have direct implications for activities other than GTMO detention, such as targeting decisions.  Quite a lot turns on them, and yet there was relatively little coverage of the growing body of caselaw aside from the ultimate merits determinations.  We set out to develop a descriptive account of what the emerging detention jurisprudence actually entails so far.

Among other things, we found a lot of disagreement among the judges.  That observation is not original with us; in fact, more than one of the judges involved in these cases has lamented this fact publicly (see, e.g., the quotes from Judge Lamberth in Ari Shapiro’s story about our report on NPR this morning).  But we think we make an important contribution by documenting the details and nuances of these disagreements—as well as the points of agreement among the judges—and discussing the problems that may follow from them.

(Cross posted to Opinio Juris.)

There are an estimated 45,000 US citizens in Haiti, and there’s an assumption that they should be first in line to receive US assistance.  As Hillary Clinton said yesterday, “They are our principal responsibility, to make sure that they’re safe, to evacuate those who need medical care.” ...

Should these individuals get priority for US help?  ...  But as between a healthy US citizen who lives in Haiti (and who wants to get out because it is not a nice place to be now) and an injured non-US citizen who may die if not taken to a hospital ship or Miami or someplace where there are functioning medical facilities, the choice is not so obvious.  Evacuation capacities are finite.  Putting US citizens at the front of the line means putting others at the back.

I disagree with Peter on many related broader issues — his general cosmopolitanism as a basis for political order, dual citizenship, responsibilities that governments have to their own citizens, the moral defensibility of the category of national citizenship and the concept of the nation-state ... but in the extreme circumstance of immediate humanitarian emergency, my first take is that Peter is right, and that the welfare advantages of “membership” in a political community (the United States, as defined by citizenship) are outweighed by overall consequences.  In any case, in my estimation, Peter is the leading legal scholar on transnational citizenship issues, and you might want to read Peter’s book, Beyond Citizenship.

[Secretary of State Clinton] offered an innovation: The Obama administration, she said, would “see human rights in a broad context,” in which “oppression of want — want of food, want of health, want of education, and want of equality in law and in fact” — would be addressed alongside the oppression of tyranny and torture. “That is why,” Ms. Clinton said, “the cornerstones of our 21st-century human rights agenda” would be “supporting democracy” and “fostering development.”

This is indeed an important change in U.S. human rights policy — but the idea behind it is pure 20th century. Ms. Clinton’s lumping of economic and social “rights” with political and personal freedom was a standard doctrine of the Soviet Bloc, which used to argue at every East-West conference that human rights in Czechoslovakia were superior to those in the United States, because one provided government health care that the other lacked. In fact, as U.S. diplomats used to tirelessly respond, rights of liberty — for free expression and religion, for example — are unique in that they are both natural and universal; they will exist so long as governments do not suppress them. Health care, shelter and education are desirable social services, but they depend on resources that governments may or may not possess. These are fundamentally different goods, and one cannot substitute for another.

(H/T: David Boaz)

Biographers tell us that Clinton was once an Ayn Rand fan.  Perhaps she should read this essay [for its explication of the principle of so-called “negative” rights]–not that one has to be an Ayn Rand admirer [as I’m sure the Post editorialists are not] to be appalled at Clinton’s (and therefore the Obama adminsitration’s) abandonment of longstanding American liberal (in the philosophic sense) tradition in favor of the sort of thing you might see put more succinctly on a graduate student’s bumper sticker in Madison, Wisconsin.

The Obama administration announced on Tuesday its decision to transfer terrorism suspects held at Guantánamo Bay to an empty state prison in Illinois. The move would help fulfill President Obama’s campaign promise to close the Guantánamo detention center, which has drawn international criticism since it received its first prisoners nearly eight years ago. The decision is also welcomed by some Illinois leaders as an economic boon for a job-challenged part of that state.

What does this move accomplish? Will a change of venue cure the legal issues surrounding detentions at Guantánamo? Or is this a symbolic gesture that will make no difference politically or legally in resolving the fate of the detainees?

David Cole, Andrew McCarthy, Dan Schnur, Diane Marie Amann, Kenneth Anderson.  (Perhaps some more voices to come.)

• (a) extrajudicial executions and murder by any other name;
• (b) American cowardice in using technological superiority to avoid having to take personal risks to confront its targets;
• (c) a reason why America’s enemies hide out among noncombatant human shields, with the result that the Americans “force” their enemies to violate the laws of war; and
• (d) an invitation for the United States to use violence as a tool of frequent convenience because it does not have its personnel at personal risk (rather than seeing these advances in technology as humanitarian steps forward over a quarter century to increase discrimination in targeting, and rather than seeing that not having its people at risk allows the targeting to proceed on a more methodical basis, rather than in-out with greater, rather than lesser, pressure to act in the moment),

has so far refrained from doing to US officials what it is endeavoring to do to Israeli officials because of a belief, so far as I can tell, that Obama personally backs this, as he did in his campaign up until now.  His personal authority, rather than views of the United States as such, is the key source of inhibition by NGOs, UN representatives, and others.  The political calculation for the international community in this kind of debate is simple: attacking the United States increases one’s global legitimacy, while attacking Obama, at least at this point, does not.

Signals by the administration in the other direction will likely embolden legal action against American officials once this administration is over.  Signals from the international community, if not vigorously contested and rejected by the Obama administration, that the international community will pursue such actions down the road will have pretty much the same effect today: to disincentivate American intelligence officials from doing anything that they are not 100% sure will be legally protected now and in the future.

It is crucial, in my view, that the administration put on the record, or be pushed into putting on the record, a plain and broad statement that its drone policy is legal, not on narrow grounds of an armed conflict in Afghanistan spilling over into Pakistan, but on broader grounds of self-defense.  It would be consistent with what the President said at West Point, after all, in referring to action in Yemen and Somalia or other places in order to deny Al Qaeda safe haven wherever it might go.  But the administration needs to say say, plainly and broadly, as a declaration of the American view of the international law of self-defense.

Says Newsweek’s Mark Hosenball:

One person standing in the way of expanded missile strikes: President Obama. Five administration officials tell NEWSWEEK that the president has sided with political and diplomatic advisers who argue that widening the scope of the drone attacks would be risky and unwise. Obama is concerned that firing missiles into urban areas like Quetta, where intelligence reports suggest that Taliban leader Mullah Mohammed Omar and other high-level militants have sometimes taken shelter, would greatly increase the risk of civilian casualties. It would also draw protests from Pakistani politicians and military leaders, who have been largely quiet about the drone attacks as long as they’ve been confined to the country’s out-of-sight border region. The White House has been encouraged by Pakistan’s own recent military efforts to root out militants along the Afghan border, and it does not want to jeopardize that cooperation.

Of course this is Newsweek; it is quasi-reporting and quasi-opinion, so it is hard to know what to make of this.  Hosenball might be spinning things; he might be getting spun; there are many possibilities.  But if this were true, and I were a covert operations official at the CIA, I would be worried.

(PS.  Update on the British arrest warrant against a senior Israeli official:)

Israel reacted angrily Tuesday to a British arrest warrant for former Foreign Minister Tzipi Livni on war-crimes allegations, with the government threatening to sideline the U.K. in Mideast peace talks.

A Westminster, London, magistrate court on Saturday issued the warrant, alleging crimes related to Israel’s military operations in the Gaza Strip in late 2008 and early 2009. Ms. Livni, who is now opposition leader, was foreign minister at the time and one of three government officials — with then-Prime Minister Ehud Olmert and Defense Minister Ehud Barak — to oversee the offensive.

The warrant was issued ahead of a U.K. convention of the Jewish National Fund, to which Ms. Livni had been invited, but had declined to attend. The warrant was revoked by the court on Monday after it was clear she wasn’t in the country.

Of course, it does not require an actual prosecution in order to create big effects; the uncertainties introduced about the future are enough to shift behavior today.  That is also true of CIA officials in this country — not knowing what will, or will not be, sufficient to provoke an arrest warrant abroad by some magistrate acting on vague and discretionary authority, such as Baltasar Garzon in Spain, and moreover acting in a climate of local public opinion against the foreign country and its agents, such as the United States or Israel.

The British legal system allows private individuals and organizations to request arrest warrants from local courts under the principle of “universal jurisdiction.” The judicial concept allows domestic courts around the world to try cases of war crimes and crimes against humanity, even if the infraction occurred abroad and the suspect isn’t a citizen.

In recent months, U.K. lawyers representing Palestinian groups sought an arrest warrant for Mr. Barak, but it was denied on grounds of diplomatic immunity.

Israel called for “immediate” action from the U.K. to block plaintiffs from using its legal system to put Israeli leaders on trial for actions in the Palestinian territories. Ms. Livni is the fourth senior Israeli official since 2004 that pro-Palestinian activists have sought to detain using British courts.

As this British situation shows, it is a process by which central government can shrug, if it wants to, say it’s the independent judiciary, we can do nothing, while allowing the process to be captured by activists and advocates further down the system.  Protests by Israel mean little, protests by the United States (if it is inclined to make them, which is far from guaranteed) mean little more.  And, to judge by the behavior of Spain, what matters is the protest, public or private, of a rising power with teeth and the expectation that it will be heeded — China’s private objections to Spain’s expansive universal jurisdiction provisions and the indirect threat of withholding economic benefits, I’m told by decently connected friends in Spain (but cannot verify), was important in getting Spain’s legislature to consider scaling back its ambitions on criminal universal jurisdiction.

It is also important to recognize that the United States has its own civil law version of such universal jurisdiction, the Alien Tort Statute — and one of these days, it too will face a challenge from China on behalf of one of its corporations getting sued in the US for its actions in Africa or elsewhere, and it will be exceedingly interesting to see how the US reacts.

Professor Waxman’s report starts from the premise that the US favors robust practical measures to stop and prevent genocide and mass atrocities.  He then turns to the legal regimes in international law and asks what prevents robust responses from taking place:

A[n] important part of this debate concerns the international legal system governing the use of force in situations of actual or potential atrocities. In this Council Special Report, Matthew C. Waxman asks whether this legal regime is effective in preventing and stopping such crimes. The report notes that international legal practices constrain swift action and require extensive consultation, especially in the United Nations Security Council, before particular steps can be taken. Waxman, though, argues that the system has certain benefits: it can confer legitimacy and help actors coordinate both military and nonmilitary efforts to prevent or stop atrocities. He also contends that different arrangements of the kind some have proposed would be unlikely to prove more effective.

He therefore opposes wholesale reforms but recommends more modest steps the United States could take to improve the current legal regime. These measures include expressing strong but nuanced support for the responsibility to protect and working with other permanent members of the UN Security Council to discourage the use of vetoes in clear cases of mass atrocities. But the report also argues that the United States must be prepared to act alone or with others in urgent cases without Security Council approval.

I would add three comments of my own — my own views and not attributable in any way to Professor Waxman.  First, R2P gets harder and harder to pull off in a genuinely multipolar world; a multipolar world, as the ever-astute David Rieff has noted, is a competitive, not cooperative, one.  In the jockeying for position around many things ranging from commercial advantage to energy to markets to regional security to lots more besides, many more actors can find many more reasons, and many more reasons not obviously related to the atrocities at hand and many reasons not even of any obvious importance, for preventing R2P from taking place.

The intervention that did take place — Kosovo — depended, not upon the United Nations or the collective security of international organizations, but upon the rough and ready security hegemony of the United States.  This was one of the crucial tenets of President Obama’s Nobel speech — an acknowledgment of the US as the provider since WWII of the basics of global security as a global public good.  The interventions that did not take place, Rwanda and Bosnia (at least not until late in the day), did not because they depended upon the collective security mechanisms of the UN.  The US acts (as President Obama recognized), not merely as the biggest player (still) in the international system of law and organizations, but as a parallel player, acting from outside the structure of liberal internationalism, in effect offering an extra-UN-system guarantee to the system.  That’s one reason why the UN has not simply imploded as a system of collective security; words are there, but security is underwritten by an actor outside of the system and its ineradicable collective action failures.

Second, despite the admirable activities of legal academics and policy experts to try to put flesh on the bones of R2P, it seems to me that the concept has been in retreat.  At the broadest level, this is on account of the rise of multipolarity — or at least its perception — and the resurgence of the “electoral authoritarians,” particularly Putin’s Russia, which saw Kosovo as something of a watershed, and all in the wrong direction.  After all, the Kosovo war was not put to the Security Council by the NATO coalition, for the reason that Russia, and perhaps China, would have vetoed it.  And, on the other hand, R2P has already been invoked by Russia as a ground for its adventures in Georgia; in bad faith, of course, but even bad faith invocations can undermine the concept in real life.

This palpable dislike of R2P found expression in the language of the 2005 Final Outcome Document of the UN General Assembly reform conference in 2005 — under the ever-malign influence of the General Assembly, the final language mentioned R2P, but cabined it under the authorization of the Security Council.  Under the terms of the 2005 document, the Kosovo war would have had to go to the Security Council, with predictable results.  Note, too, that this runs directly against President Obama’s assertion yesterday that there would be times when the US, sometimes alone and sometimes with friends, would act — outside of the UN system.

Third, as a general observation, many of these exercises in idealism depend, not upon international law and institutions, no matter what the rhetoric, but upon the United States, and the “extra-system” provision of certain global public goods that it proffers.  The concept of enlightened self-interest, as President Obama also explicitly noted in his Nobel address, does not lead the United States to do everything that humanitarians (or even it) might wish it would do, but leads it to act motivated at least by certain values and ideals, and put blood and treasure behind them, in ways that the virtuous-but-weak peoples of the world will surely miss should the United States embrace decline.  The grand irony?  What we are pleased to call the “universal” regime of human rights shelters, not in international law and institutions, but instead in a US security guarantee that is yet capacious enough not to mind if one insists on calling it ‘liberal internationalism’.

(That’s me talking, however, not Matthew Waxman.)

The Ottawa Convention banning landmines was opened for signature in 1997 and entered into force in 1999.  The treaty currently has some 150+ parties, but the US has not joined.  I was one of the first NGO organizers of the International Campaign to Ban Landmines, and, if I remember correctly, drafted as a sort-of-joke-but-not-quite the very first draft of the landmines ban treaty.  (It was a sort-of-joke because it was probably the shortest treaty text ever drafted, I suppose, more or less.  It is easy to draft a short treaty if all it does is prohibit things, without exceptions or qualifications.  Three sentences or so of pure categoricals.)  The final, full, serious treaty text as worked up in the 1990s negotiating sessions can be found here.

I think the treaty was a good idea and I’m proud after all these years to have been associated with it.  I’ll leave for another post, however, some of the bigger questions that the passage of time has raised for me, both about the treaty and its substantive content, and also about the effects that the process had in the 1990s in transforming the international NGO sector’s vision of itself as global actors and the development of “global civil society.” But that list of questions starts with the fact that it is not just the US that has not joined the treaty.  Nor is it a list of international bad guys.  Rather, the list of countries that have not joined is pretty much the set of countries that anticipate they might have to fight a war using conventional weapons, in which the outcome could be genuinely contested, and in which mines could make a significant difference to the outcome.  They include China, Egypt, Israel, Finland, Pakistan, India, South Korea, Iran, Libya, Syria, and more.

That, and international perimeter demarcation particularly in flat terrain, specifically for the United States and South Korea in the Korean peninsula.  I discussed this question in an article a few years ago on the rhetoric of the US military on human rights law issues such as the landmines ban.   (Co-Conspirator Eric also has an important, short discussion of the Ottawa Convention and international law in his fine book The Perils of Global Legalism (pp. 62–64).  Eric’s skepticism is in this general line of thinking, to the effect that the apparent widespread acceptance of the treaty masks a list of non-participants coinciding with countries that might actually make war, and he asks whether this reflects the “tug” and “pull” of international law or merely an unsurprising co-incidence of different states sorting their interests in landmines differently.)

The Clinton administration wanted to join the treaty, but Korea was seen as making it a non-starter at the Pentagon.  So the US adopted a fuzzy, sympathetic to the purposes of the treaty, etc., approach to the Convention along with important material support for humanitarian de-mining, and a promise to continue re-evaluating internally down the road.  The Bush administration was much less sympathetic, but once the post 9–11 wars began, there wasn’t really going to be any discussion one way or the other — although the US has followed the convention generally, without having signed on, except for its possession of some 10 million mines and support for border use of mines in Korea.

Meanwhile, the NGO ban movement was gradually transforming into a broader campaign against explosive remnants of war and cluster munitions — see the ICBL or HRW websites over time for a sense of the gradual shift in international NGO campaigning.  Cluster munitions raise very different issues, which I won’t go into here.  In addition to the technical and military doctrine issues, however, they also raise a whole different set of consideration if you take as your starting point, as some of the NGOs do, that their use much or even all of the time, even on US-style rules of engagement and evaluation for proportionality, constitutes a violation of the laws of war.

Discussion of the issue of cluster munitions certainly gets much harder if, in other words, you want to open discussions with military forces about doctrine surrounding the use of a weapon you are already implicitly, or explicitly, calling illegal or even possibly criminal; it tends to dampen the desire for either negotiations or technical innovation.  NGOs often have peculiar ideas about incentives, at least from the standpoint of negotiation in the ordinary sense — but not if one’s long-term view is that one can stigmatize the weapon and the user, so as to bend the curve of what constitutes acceptable discussion of the issue.  It largely worked in the case of the landmines campaign, and the  holy grail of international advocacy campaigning ever since has been to duplicate the form of that success, based around a “stigmatization” strategy.  Wonder how well this will work with China?

At this moment, in the general euphoria surrounding post-Bush foreign policy, the Obama administration was pushed by the NGOs to review its landmines policy, with an eye to a timeline, even if a long one, for joining the Ottawa convention.   Pressure to give out some kind of statement intensified as the second review conference on the Ottawa Convention, the “Cartagena Review Conference,” has got closer in date — it opens in a few days.  So where does the Obama administration currently stand on its policy review?

After some “clarifications,” it appears that the US is conducting a “broad” review of antipersonnel landmine policy and the Ottawa Convention, while maintaining the previous Bush administration stance on an “interim” basis.  This Reuter’s story, in the Washington Post, gives some of the ins and outs.  Meanwhile, the Cartagena review conference on the Ottawa Convention shortly opens; GenevaLunch blog has details.  From the WP story:

A review of U.S. landmines policy is ongoing and will take awhile to complete, a State Department spokesman said on Wednesday, clarifying an earlier comment that the Obama administration had concluded it needed the weapons.

“The administration is committed to a comprehensive review of its landmines policy. That review is still ongoing,” spokesman Ian Kelly said in a statement.

Speaking ahead of a review conference next weekend in Cartagena, Colombia, on the 10-year-old international Mine Ban Treaty, Kelly said the U.S. policy review was “going to take some time” and while it continued the current policy of declining to join the accord would remain in force.

This “clarification” followed an earlier briefing in which the Obama administration indicated that its review had concluded, to the contrary, that the US needed the weapons.  Following criticism by Senator Leahy, the new statement was issued:

Kelly had told a briefing on Tuesday the “administration undertook a policy review and we decided that our land mine policy remains in effect.”

“We determined that we would not be able to meet our national defense needs nor our security commitments to our friends and allies if we signed this convention,” he said.

Those comments had drawn fire from Senator Patrick Leahy, a Democrat who is a longtime advocate of the treaty, and expressions of concerns from anti-mine campaigners.

A U.S. official, speaking on condition of anonymity, said on Wednesday said the administration had conducted an interim review in light of the upcoming summit in Cartagena, and decided the old policy should remain in force so long as the broader review continued.

My assumption, and everyone else’s, is that the “broader” policy review will be underway so long as North Korea is and, in the meantime, the “interim” position will be just fine with the Obama administration.

That said, one of the interesting questions for international legal academics is what, in any direction, one should make of the fact that known landmine casualties worldwide a dozen or so years ago were on the order of 20,000 a year (I haven’t gone back to pull up the estimates, but these are in the general order, and good enough for this point; usual data source is Landmine Monitor).  Whereas last year, known casualties were listed as 5,197, according the International Campaign to Ban Landmines.

I would say that the decline is likely attributable to the reduced use of landmines and the stigma surrounding their use, largely on account of the treaty.  But one might question that, I suppose, and instead look to a general decline in warfare of the kind in which indiscriminate use of landmines is found (for various reasons, I don’t think that is causally right, but I won’t try to explain that here).

Much more importantly, however, even at 20,000 casualties a year, well, the US drunk driving fatality rate is somewhere around 40,000 a year.  In a world of 6,800,000,000 people, 5,197 is not even a tremor.  What would one say if one were to apply cost benefit analysis of, for example, the kind that John “Overblown” Mueller applies to terrorism risks (likelihood of being killed in a terrorism attack versus being killed by lightning strike, e.g.), to the money, time, efforts, etc., put into the landmines ban campaign?  Should it instead have gone into malaria or AIDS reduction?

I think the Mueller comparisons on terrorism are an unsophisticated-at-best way of approaching risk analysis and cost benefit analysis — the alternatives under comparison have to be genuine policy alternatives, not merely hypotheticals.  (I tried to explain this, and not very successfully, I’m afraid, in this paper on the assumptions underlying CBA in war on terror discussions.  But in any case, people who are awe-struck by Mueller’s methods should take a look at his writing to the same effect in the Cold War; had his advice been followed then, we would almost certainly still be in it.)  But if this method is tendentious in landmines analysis of whether the effort to ban mines was “worth it” for 5,000 or so casualties (casualities, note, not necessarily lives), and I agree it is, it is tendentious for the same reasons that it is in the case of terrorism-lightning comparisons.

(I have some other things to say re the Cartagena review conference, but I’ll hold them for another post.)

(Update.  I’m going to take out some stuff  below– sitting in airports puts me in a bad mood, and it showed.  I’ll repost some of it expressing less irritation another time.)

Moral Machines: Teaching Robots Right from Wrong, Wendell Wallach and Collin Allen (Oxford 2009).  If anyone follows my posts over time here and at Opinio Juris, I have a large interest in robotics, war, law and ethics.  And my most recent trip was to Stanford Law School, for a panel discussion of robotics, society and law — more on that in a separate post, but a great session on law and future technology.  This is a terrific book, and not just for people interested in robotics and technology.  It is manages to be both philosophically and technologically acute, and while not focused on law the way lawyers would focus, the questions raised clearly lead that direction.

Means to an End: US Interest in the International Criminal Court, Lee Feinstein and Tod Lindberg (Brookings Press 2009).  If you are around DC on Monday afternoon, there will be a screening of part of a new documentary on the ICC, The Reckoning, and then a panel discussion afterwards featuring Jane Stromseth, Gary Solis, John Bellinger, and me, moderated by Ruth Wedgwood.  Screening at 4:30–5:oo, panel discussion 5–6:00, at the Rome Auditorium, SAIS.  This short book is well worth reading; I comment on it briefly here at Opinio Juris and on the general question of US relations with the ICC at this point in time (about which I am much more dubious than I was a year ago when I was commenting on drafts of this book; at that point I thought there was much more room for US engagement than I think there is today, but see my discussion at OJ).

In any case, this is a wonderfully clear book, and a surprisingly plainly written one, given that it is a “centrists reaching across the partisan divide” work.  Lee and Tod are both old friends.  Lee was foreign policy director for the Clinton campaign, former Clinton administration DOS official, and currently US ambassador to Poland.  Tod is a Hoover fellow and editor of its marvelous journal Policy Review.

(Hint.  If you don’t read Policy Review, you should — eclectic, readable, intelligent, and intellectual in the sense of never falling into “trivially academic” or “trivially policy” or “trivially political.”  The intellectual political essay — under the hand of a skilled editor of mature judgment — is not dead.  If you’re a writer and have something more significant than a blog post to say, you might want to suggest it to Policy Review as a 4,000 essay.  This was the journal that launched, among other things, Robert Kagan’s Power and Weakness essay, for example — and which, if I may be so bold, was better as the Policy Review essay than as a book.)

Gods at War: Shotgun Takeovers, Government by Deal, and the Private Equity Implosion, Steven Davidoff (John Wiley 2009).  The NYT’s Dealbook columnist and corporate law professor Steve Davidoff puts a lot of stuff together in a terrific book.  It covers a lot of ground because its subject is dealmaking — as it cuts across private equity, hedge funds, sovereign wealth funds, the financial crisis, government bailouts ... what fascinates me about this book, what makes it very special, is that Davidoff keeps the focus on the law and legal battles that create the frame in which the dealmaking takes place.

As such, he pushes back against a sense among many commentators that the legal stuff is merely the lawyers coming to act as scribes for transactions, the essential economics of which is set elsewhere.  Davidoff reminds us that while that might be true in the middle of the bell curve, in ordinary times — when things go bad, for one side, both sides, all sides, then the words written down for all those contingencies turn out to matter, as words and sentences on paper.  Judges will have to interpret them.  The discussion of the evolution and interpretation of the “material adverse change” clause in the courts is worth the price of this book.  Likewise the “regulation by deal” discussion that I originally saw in Davidoff’s paper with David Zaring.  I think I will probably assign this book to my private equity course next term — there’s a lot of stuff that isn’t my focus, but this book can help my students understand some hugely important issues.

“Enemies need not be insane,” Christopher Caldwell’s Financial Times column of November 13, 2009 (sub req’d?).  Caldwell particularly focuses on:

Public doctrine insists on a distinction between Islam and Islamism. Islam is a religion, and Americans are punctilious about respecting the religions of others. Islamism is a violent political ideology, a “perversion” of Islam if you like, that has already taken thousands of US lives. Voters will punish pitilessly any politician who does not fight it with every tool at his disposal.

Hence the crisis. Maj Hasan’s case shows that authorities are incapable of making the very distinction between Islam and Islamism that they insist the public make. That Maj Hasan was a Muslim need not concern Americans. But he was an Islamist, too, if that word has any meaning. And those who had the authority to monitor him more closely were either unable or unwilling to.

This is as well put as you are likely to find.  But let me carry this one step further.  Read the columnists or listen to the talking heads on NPR and note the preferred narrative of the moment.  Why didn’t the military or the government or someone look any more closely at this and make some kind of judgment that this was dangerous?  Because of An Elite Narrative that said, and which had trickled down years before, permeating official responses as both Sense and Sensibility, or the lack thereof, to ask these kinds of questions is to be a racist.  Do it and it’s career suicide.

But the measure of elite narrative control is to play bait and switch, have your cake and eat it too:  the ideologies of the elites will prevent anyone in officialdom from asking or acting on anything that contravenes official multicultural sensitivities.  But when someone does shoot up the joint and kill a bunch of people (and they tend to  be places like Ft. Hood and somehow not places like Sidwell, Dalton, St Albans, Crossroads High, etc.), then exactly the same set of Elite Narrative Commentators will sententiously ask why government and officialdom ignored all the warning signs.  If you’re an NPR commentator or NYT editorial writer or WaPo opinion columnist, you get to have it both ways; if you’re the FBI or military official faced with all this stuff, you’re damned if you do and damned if you don’t.

Which is another way of saying that the currently preferred Elite Narrative of Ft. Hood is exquisitely tailored to insulate our Political and Media Elites from the blame that they are now scurrying to put upon officialdom.  It must be nice to live in a world without accountability.  In a Better World this kind of crime would result in also putting the occasional NYT op-ed writer on trial, pour encourger les autres,  for having made it impossible to stop the actual perpetrator.  In Our World, the ones who largely made the perpetrator unstoppable then proceed to conduct the public inquisition of Why He Was Not Stopped.

Actually, if you haven’t taken a look at Caldwell’s Reflections on the Revolution in Europe: Immigration, Islam, and the West (Doubleday 2009), you are missing the most important discussion I am aware of on these issues of global multiculturalism and the collapse of secular European public culture from the ideal of the liberal public-private divide into an ironically human rights-mediated ideal of global religious communalism (facilitating this changeover in the essential meaning of human rights from ‘liberalism’ to ‘multiculturalism’ will, in my view, turn out to be Human Rights Watch’s actual global legacy, by the way).

“Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009,” Mary Ellen O’Connell (draft book chapter up on SSRN).  There is not very much that I agree with in this new paper by Mary Ellen O’Connell; my view is here.  However, it is the plainest statement to date on how to view Predator strikes in Pakistan, and by extension various other places, as violations of international law and criminal law and war crimes.  I admire it on the grounds of intellectual and moral honesty, although, I stress, it’s not so much a matter of disagreement as not sharing nearly any part of the intellectual world from which it comes.  But I think the CIA in particular ought to take account of it, because although not my world view or, presumably, its, the chapter does capture with remarkable clarity the world view of the community that would finally like to put the CIA on trial.  My view is that the “international law community” — what is sometimes called the “invisible college of international law” - already essentially agrees with its conclusions, even if  it will take more circuitous and less obvious legal routes to get there and avoid expressing itself so plainly and directly.

But the invisible college of international law won’t get to those conclusions, in my estimation ... until the day after the Obama administration leaves office, whereupon suddenly a whole series of legal conclusions will magically be pronounced “customary international law” dating back to Grotius or Vatel or someone, and a couple of sentences from some Nuremberg opinion will be deployed for the occasion, and various human rights groups will round up a bunch of countries on the Human Rights Council to lecture the US and as ever ignore Sudan, as they repose in human rights majesty listening to some special rapporteur drone on beneath the HRC chamber’s $23 million ceiling consisting, alas, of money partly diverted from Spain’s international development aid budget for, you know, really poor people, opining what a human rights abuser the US is and such war criminals its officials are, and the US, member of the HRC on account of its excess of zeal to be one of the multilateral good guys, mumbles apologies for existing, and finally the US, having joined the ICC as a little parting gift of the Obama administration, discovers that its officials in the CIA — but not, note, the DOS Legal Advisers office, which was so very, very careful not to say anything very specific about this — are subjected to legal investigations by the ICC prosecutor, and investigations by Spanish prosecutors eager to prove to their consciences that they have expunged Franco by embarking on human rights adventures abroad, although conspicuously not, in the real-politik of the real world, human rights adventures involving the New Hegemon, China, but instead focusing on the Country That Chose Decline ... and so one of the genuine advances in discrimination in targeting in self-defense, targeted killing from stand-off remote platforms, will be removed from the US arsenal in what we might call the on-going ‘war against war’ currently underway by the Forces of Good Who Tend to Ignorance and Disavowal of Responsibility for Unintended Consequences (e.g., new terrrorist attacks against soft targets in South Asia, but hey, they’re not Americans!!), and the legal process thereof buttressed by expressions of support and amicus briefs by former Obama lawyers suddenly discovering they had views on these topics after all, and they all somehow tended toward the liability of the US and its agents.

The arguments will not be as reaching, and certainly not as plain — or as honest, come to that — as O’Connell’s, but I think pretty much every conclusion she reaches will be reached by the ‘visible and noisy’ college of international law:

Abstract:

Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750‑1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.

Let me repeat one of those sentences in case the CIA counsel’s office was not paying attention:

Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime.

(Update.)  I guess we might as well add Roger Cohen’s op-ed in the NYT, in which he takes up the subject of drone warfare and, seemingly having no idea what he actually thinks, decides to call for ... a public debate.  He has not thought very much or very long about drone warfare if he thought Jane Mayer’s recent New Yorker piece, as he says, “ground-breaking.”  Only if you became aware of Predators last week.

(Update:)  Here’s the assigned topic for comments, following up on Laura’s opening comment ... should the panel discuss the Three Laws?  Are they a useful ethical/legal frame for dealing with robots in various aspects of human life?  Did Asimov lead us all astray by proposing them?  Should we instead avoid discussing them altogether?  What would you propose would be a better set of principles/laws/guidelines for robot-human interactions?

(I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict. And thanks Glenn for the Instalanche!)

Stanford Law School
5:30 p.m.-6:30 p.m. Reception (Student Lounge)
6:30 p.m. — 7:45 p.m. Panel (Room 190)

Once relegated to factories and fiction, robots are rapidly entering the mainstream. Advances in artificial intelligence translate into ever-broadening functionality and autonomy. Recent years have seen an explosion in the use of robotics in warfare, medicine, and exploration. Industry analysts and UN statistics predict equally significant growth in the market for personal or service robotics over the next few years. What unique legal challenges will the widespread availability of sophisticated robots pose? Three panelists with deep and varied expertise discuss the present, near future, and far future of robotics and the law.

Panelists:

• Kenneth Anderson, Professor of Law, American University; Research Fellow, Hoover Institution on War, Revolution and Peace at Stanford University
• Paul Saffo, Consulting Associate Professor, Stanford University; Visiting Scholar, Stanford Media X; Columnist, ABCNews.com
• F. Daniel Siciliano, Faculty Director, Arthur and Toni Rembe Rock Center for Corporate Governance; Senior Lecturer in Law and Associate Dean for Executive Education and Special Programs, Stanford Law School
• Moderator: M. Ryan Calo, Residential Fellow, Stanford Center for Internet and Society

Co-Sponsored by the Arthur and Toni Rembe Rock Center for Corporate Governance and the Stanford Program in Law Science and Technology’s Center for Computers and Law (CodeX).  Click here to register.

We then study two failed arms embargos: Zimbabwe, and the eastern Democratic Republic of the Congo. Zimbabwe is currently under a European Union embargo, but there is no UN embargo because Mugabe’s principal diplomatic allies, China and South Africa, have blocked UN action.  Moreover, the South African government has flagrantly violated South Africa’s own gun control law (which was imposed by the currently-ruling party), which forbids South Africa to authorize arms transfers to human rights violators. If South Africa will not obey its own laws, there is no reason to assume that it will obey treaty law created by the UN.

The eastern Democratic Republic of the Congo is under a United Nations embargo, impsed by the Security Council. But the embargo has been violated by smuggling conducted by most of the nations which border the DRC, and even by UN “peacekeepers” in the DRC. Thus, the ATT might, at most, lead to more nominal embargos of arms; but nothing in an ATT can have greater force in international law than a Security Council order already does. Accordingly, the ATT will be of little or no use in achieving its purported objective. To the contrary, the ATT may be positively harmful, since it will probably declare a “right” of governments to acquire arms. This “right” could be used to claim that arms embargos outside the ATT system (e.g., unilateral embargos by the US, or the EU) are violations of international law.