The Volokh Conspiracy

Global philanthropy is a topic that invites examination across disciplines, including law, ethics, economics, sociology, political science and more – particularly as activity in the field grows in a globalized world.  So I’d like to welcome a new volume of essays, Giving Well: The Ethics of Philanthropy, edited by Patricia Illingworth, Thomas Pogge, and Leif Wenar (Oxford 2011).

Although the title is philanthropy generally, the essays in the book tend to emphasize global and cross border philanthropy, with all the attendant issues of cosmopolitanism, community, etc.  The contributors include major figures such as Jon Elster, Peter Singer, and Alex de Waal.  Like many readers, I  resist edited books, but this one is finely edited and the contributions fit together well.  It would make, for example, a useful book of readings in courses in international relations, law, economics, etc.  I think general readers would find it a coherent volume.

I have a contribution in the volume, “Global Philanthropy and Global Governance: The Problematic Moral Legitimacy Relationship Between Global Civil Society and the United Nations.”  I’m afraid it is the outlier essay in the book with respect to the admirable coherence otherwise noted above – the one that least connects to the topic of philanthropy in a specific sense of philanthropists and their ethics.  It is an essay instead fundamentally about the role of NGOs in the global political space, and a challenge to some of the legitimating roles assumed even at this late date for NGOs.  I’ve been making this critique for a long time, of course.

Cover flap description, below the fold. Continue reading ‘The Ethics of Global Philanthropy’ »

Back in September, I wrote a post about historian Frank Dikötter’s excellent new book on Mao Zedong’s “Great Leap Forward” terror famine of the early 1960s. Dikotter recently published a New York Times op ed summarizing his thesis:

The worst catastrophe in China’s history, and one of the worst anywhere, was the Great Famine of 1958 to 1962, and to this day the ruling Communist Party has not fully acknowledged the degree to which it was a direct result of the forcible herding of villagers into communes under the “Great Leap Forward” that Mao Zedong launched in 1958.

To this day, the party attempts to cover up the disaster, usually by blaming the weather. Yet detailed records of the horror exist in the party’s own national and local archives…..

Historians have known for some time that the Great Leap Forward resulted in one of the world’s worst famines. Demographers have used official census figures to estimate that some 20 to 30 million people died.

But inside the archives is an abundance of evidence, from the minutes of emergency committees to secret police reports and public security investigations, that show these estimates to be woefully inadequate…..

In all, the records I studied suggest that the Great Leap Forward was responsible for at least 45 million deaths.

Between 2 and 3 million of these victims were tortured to death or summarily executed, often for the slightest infraction….

The term “famine” tends to support the widespread view that the deaths were largely the result of half-baked and poorly executed economic programs. But the archives show that coercion, terror and violence were the foundation of the Great Leap Forward.

Mao was sent many reports about what was happening in the countryside, some of them scribbled in longhand. He knew about the horror, but pushed for even greater extractions of food.

At a secret meeting in Shanghai on March 25, 1959, he ordered the party to procure up to one-third of all the available grain — much more than ever before. The minutes of the meeting reveal a chairman insensitive to human loss: “When there is not enough to eat people starve to death. It is better to let half of the people die so that the other half can eat their fill.”

Even the previous estimates of 20 to 30 million dead qualify the Great Leap Forward as the biggest single case of mass murder in world history. If Dikötter’s revised figure of 45 million withstands scrutiny, Mao will have definitively surpassed Joseph Stalin’s overall record as a mass murderer (Stalin’s death toll was more evenly spread between several different episodes of mass murder than Mao’s).

Even if the earlier figures turn out to be more accurate than Dikotter’s, it is still inexcusable that the mass murders inflicted by Chinese communism remain so little known in the West. As I noted in my earlier post on the subject, Dikotter’s study is not the first to describe these events. Nonetheless, few Western intellectuals are aware of the scale of these atrocities, and they have had almost no impact on popular consciousness.

This is part of the more general problem of the neglect of communist crimes. But Chinese communist atrocities are little-known even by comparison to those inflicted by communists in Eastern Europe and the Soviet Union, possibly because the Chinese are more culturally distant from Westerners than are Eastern Europeans or the German victims of the Berlin Wall. Ironically, the Wall (one of communism’s relatively smaller crimes) is vastly better known than the Great Leap Forward – the largest mass murder in all of world history.

Hopefully, Dikötter’s important work will help change that.

UPDATE: In this series of posts, I described the similar terror famine that occurred in the Soviet Union in the early 1930s and its implications for international law; see also this post on whether Stalin’s crimes qualify as genocide.

In some ways, Mao was an even worse oppressor than any of the Soviet communist leaders. He combined Lenin’s role as the founder of a totalitarian state with Stalin’s role as the implementer of its largest-scale atrocities. Having a larger population to work with, he also (if Dikotter’s figures are correct) managed to kill more people than all the Soviet leaders and Adolf Hitler combined. There’s no one quite like him in all of world history. Let’s hope there never will be again.

The United Nations General Assembly Third Committee recently passed another resolution urging nations to ban defamation of religion [HT: Elizabeth Cassidy of the US Commission on International Religious Freedom, which criticized the resolution here]:

A U.N. General Assembly committee once again voted to condemn the “vilification of religion” on Tuesday, but support narrowed for a measure that Western powers say is a threat to freedom of expression.

The non-binding resolution, championed by Islamic states and opposed by Western countries, passed by only 12 votes in the General Assembly’s Third Committee, which focuses on human rights, 76-64 with 42 abstentions.

Opponents noted that support had fallen and opposition increased since last year, when the Third Committee vote was 81-55 with 43 abstentions. The 192-nation General Assembly is expected to formally adopt the measure next month.

The resolution was amended from versions passed in previous years in an attempt to secure support from Western nations. Instead of defamation of religion, it speaks of “vilification.” It also condemned acts of violence and intimidation due to “Islamophobia, Judeophobia and Christianophobia.”

Senior Conspirator Eugene Volokh and I explained why previous incarnations of this resolution pose a threat to freedom of speech and religion here, here, and here. As I have pointed out previously, this is an excellent example of the ways in which repressive governments seek to use international human rights law to suppress freedom rather than protect it, a problem I have written about in two articles coauthored with John McGinnis (see here and here). Most of the support for this resolution comes from authoritarian and repressive regimes, many of which have terrible records on religious freedom. The resolution was sponsored by the Organization of the Islamic Conference. Most OIC members are authoritarian states, and many are notoriously intolerant of non-Muslim religions, secularism, and even versions of Islam at odds with that espoused by their rulers.

The new text of the resolution is slightly altered from previous versions, this time targeting “vilification” of religion rather than “defamation.” Advocates claim that this change represents a concession. In my view, it actually makes the resolution worse. At least in Anglo-American and European law, the term “defamation” implies a false statement. Truth is a defense to a defamation action. By contrast, “vilification” may encompass even true charges against a religion. Whether intentionally or not, the sponsors have managed to make a bad resolution even worse. Moreover, the new text still explicitly urges states to “prohibit the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence.” Almost any strong criticism of a religious organization or its beliefs could qualify as “incitement” to “hostility” or “discrimination.”

Although the resolution is nonbinding, many scholars and advocates of broad interpretations of international law see such UN resolutions as contributing to “customary international law” norms that all states must obey, even if they have not explicitly ratified them. There is little danger that the resolution will undermine freedom of speech or religious freedom in the US in the near future. But it poses a greater threat in nations where resistance to domestic incorporation of customary international law norms is weaker. More generally, the debate over this resolution highlights the need to forcefully oppose efforts to use such dubious “norms” to override the domestic law of liberal democracies.

In his excellent recent book Stalin’s Genocides, Stanford historian Norman Naimark argues that Joseph Stalin committed genocide and not “merely” mass murder. Few any longer deny that Stalin’s regime slaughtered millions of innocent people. But the Russian government and some Western writers continue to argue that these murders were not genocidal, and that Stalin therefore cannot be classed in a category with Adolf Hitler and others who slaughtered entire racial, ethnic, or religious groups.

Back in 2008, I blogged about the debate over the question of whether the Soviet terror famine of the early 1930s (in which some 6 to 10 million people died) was a case of genocide or mass murder (see here and here). Many Ukrainians and some Western scholars argue that this was a case of genocide because Soviet dictator Joseph Stalin specifically targeted Ukrainian peasants for extermination. By contrast, the Russian government claims that Stalin was an equal opportunity mass murderer. The distinction matters because international law defines mass murder as genocide only if it was the result of an “intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.” It also matters because of the ongoing debate over whether communist mass murders deserve as much opprobrium as those of the Nazis.

Naimark concludes that both the terror famine and various other Stalinist atrocities qualify as genocide. His book is the most thorough and compelling study of the subject so far. In the end, however, I am not so much persuaded that Stalin committed genocide as reaffirmed in my view that the genocide-mass murder distinction isn’t a morally meaningful one. Moreover, Naimark overstates Stalin’s personal role in the mass murders committed by his regime and understates the impact of the communist system.

I. Was it Genocide and Should it Matter if it Was?

There is no doubt that at least some of Stalin’s crimes were genocides. The deportation and partial extermination of ethnic groups such as the Crimean Tatars surely qualifies. These indisputably genocidal crimes, however, accounted for only a small fraction of Stalin’s victims. Naimark’s main objective is to prove that Stalin’s much greater mass murders – the terror famine, the killing of millions in Gulag slave labor camps, and the “Great Terror” of 1937-38 – should also be considered genocidal.

Here, Naimark runs into the problem that most of the people killed in these mass murders were targeted not on the basis of race, religion, or ethnicity, but because of economic class or political background – or just being in the wrong place at the wrong time. As he points out, the Soviet Union and its allies successfully worked to exclude “political” murder from the international law definition of genocide; they did so to insulate their own crimes from potential condemnation. This is one of the most blatant examples of the extent to which international human rights law has been perverted by the influence of nondemocratic and totalitarian governments . In effect, Naimark argues that the international law definition of genocide should be read to cover precisely the kinds of crimes that it was deliberately crafted to exclude. In legal terms, the text, original meaning, and legislative history of the international law definition are all against Naimark.

In the case of the early 1930s terror famine, Naimark also argues that Stalin intended to target the Ukrainians as an ethnic group. If so, then this counts as genocide even under the traditional view of international law. Naimark notes that the impact of the famine was greater in Ukraine than in most other parts of the USSR, and that the region was treated with special harshness. On the other hand, it is also true that the main goal of the famine was to exterminate the independent peasantry regardless of ethnicity and carry out the forced collectivization of agriculture. Ukraine may have been targeted as much because it was the USSR’s most important agricultural region as because it was populated by Ukrainians. Moreover Ukraine had large minority populations, including millions of ethnic Russians (my own grandmother, was one of the many non-Ukrainians living in the region during the famine). Many of these people also died in the famine. Stalin’s motives were probably mixed. His main goal was to crush the peasants and collectivize agriculture. But he was also happy to deal a preemptive blow to Ukrainian nationalist aspirations (which he feared because they were the USSR’s largest minority group).

Ultimately, the distinction between genocide and “mere” mass murder should not matter. For reasons I explained here and here, it doesn’t make any difference whether the Soviet regime killed millions of innocent people because they were “kulaks” and “class enemies,” because they were Ukrainian, or for some combination of both reasons. In all three scenarios, innocent people were slaughtered for no good reason, in most cases on the basis of immutable characteristics that they could not change (“kulak” status was determined primarily by family background).

II. The Role of Stalin.

Naimark’s book is also interesting in so far as he blames Stalin personally for most of the crimes committed by the Soviet government during his rule. Absent Stalin’s malign influence, Naimark contends, the regime probably would not have committed mass murder or genocide on such a large scale. There is little doubt that Stalin’s paranoia and sadism influenced Soviet policy. Nonetheless, I think Naimark overstates the importance of Stalin’s personal role. Most of the major repressive policies and institutions – including the secret police and the Gulag slave labor camps – of the Soviet state were begun by Lenin, not Stalin. As historians such as Richard Pipes have shown, even the terror famine was a reprise of the first Soviet effort to collectivize agriculture in 1918-21 (which also led to a famine in which millions died). Leon Trotsky, Stalin’s main rival for power after Lenin’s death, attacked Stalin on the grounds that his policies were too generous to “bourgeois” elements and otherwise not repressive enough. Had Trotsky defeated Stalin, life for most Soviet citizens might have been just as bad or even slightly worse. One of the very few ways in which Stalin was harsher than Trotsky was in his much greater willingness to kill and imprison members of the Communist Party elite. Here, Stalin’s extreme paranoia about possible rivals for power really did make a big difference. Under Trotsky, the party comrades would have suffered a lot less; the rest of the population would not have been so fortunate.

More generally, Stalin’s policies were far from unique in the communist world. Almost every other communist regime engaged in very similar mass murders, including in countries like China and Cuba where the rulers had a high degree of autonomy from Soviet control.

In sum, evidence from both the Soviet Union and elsewhere suggests that Stalin’s deranged personality was probably only a secondary factor in explaining the crimes of his regime. “Without Stalin,” Naimark writes, “it is hard to imagine the genocidal [Soviet] actions of the 1930s.” By contrast, I find it all too easy to imagine communist mass murder even with a less maniacal leader at the helm. In fact, not a lot of imagination is necessary, since the same policies were promoted by Lenin, Trotsky, and other communist leaders with very different personalities.

Despite these reservations, Naimark’s book is a great analysis of both Stalin’s crimes and the debate over the meaning of genocide under international law. Anyone interested in the subject should definitely check it out.

I’m at Penn Station, waiting for the train from New York City back to DC, happy but slightly dazed after the intense three day conference in celebration of the 35th anniversary of Michael Walzer’s Just and Unjust Wars that I mentioned in an earlier post. My thanks and congratulations to Gabby Blum, Ian Scobbie, and Joe Weiler for organizing it, and to NYU for hosting it. I was humbled to be in the presence of so many great intellectuals, not just in law, but in moral philosophy – Professor Walzer himself, Jean Elshtain, Thomas Nagel, Paul Kahn, David Luban, and many other luminaries in philosophy and other disciplines.

Three intense days, with Professor Walzer offering a few short comments at the end. I think it is okay to paraphrase them from my notes. His final comments go to a running theme of the meeting – the distinction, and its persistence or not, of a moral and legal independence of jus in bello from jus ad bellum. He says that even though a defender of their independence, they come together in the following crucial and urgent moral way. (This is my paraphrase, not a direct quote, and should not be quoted as something directly said by Professor Walzer or taken as suggesting that he has approved any of this as a quote):

The worry is that if you fight in accordance with the legal regimes of international law, you can’t win. That is a major challenge, and I was very happy that General [Charles] Dunlap denies that and says you can. Still, it is a worry. It must be possible for the good guys to win within the rules, at least as a possibility, but also as a real possibility. That’s where ad bellum and in bello come together: to win a just war fighting justly.

But suppose it isn’t possible. That’s what moral philosophers partly do – worry. What follows if it is not possible, or not a real possibility? What then? Well, the rules would have to be changed. We would have to reconsider the content of the rules jus in bello if we could not live within jus in bello and still have the just side win on the battlefield.

In my own crude, unphilosophical way, I suppose this means … jus in bello is not a suicide pact.

A general observation about the tenor of Professor Walzer’s (paraphrased) remark here. Just and Unjust Wars is taken in the United States academic and human rights advocacy community as the manifesto of the introduction and, more emphatically, the triumph of individual human rights in war. In part that is right. But it is correct in the sense of rejecting “realism,” in the amoral Hobbesian “by a necessity of nature” sense, on the one hand – but not thereby embracing a genuinely full Christian view of just war as an expression of immanent natural law, on the other hand.  The meta-theory underlying Walzer’s normative ethics of war is one of making it secular and an expression of modernity (and the touchstone for modernity, something quite alien to Catholic ethics in any very strong sense, the hegemony of consent, and its obverse, something central to Walzer’s ethics, resistance to coercion, or resistance to ‘un-consent’).  But it does so by giving up the full, immanent ground of God’s natural law. In the full Christian just war ethics, justice as such is the key concept, because it is an expression of the love of God for all his children, and not the far narrower and circumscribed (because “merely” human) notion of rights upon which Walzer relies, the obligations which we owe to one another because man is the measure of all things.

Rights gives up the fully foundational, fully immanent understanding of justice of Christian just war ethics.  It does so not in favor of relativism as to right and wrong in war, but in favor of something that seeks moral grounding and judgment in fact – and yet still vastly more contextual, contingent, and human than a fully realized theory of justice in war would offer. We see through a glass darkly, etc. – and, alas, that’s all we ever hope to do. And yet practical reason requires, as Walzer emphasizes in the opening chapters to Just and Unjust Wars, that we make moral judgments as best we can.  It is both what (descriptively) we do, even Athenian generals embarked upon atrocity and speaking in bad faith, but also what, in genuinely good faith, we ought to do.  Hence our need to argue about war and not merely pronounce upon it.

But that is a long ways, I at least would suggest, from the way in which the rights theory of war has taken Walzer’s work in its long elaboration in politics and institutions. Walzer’s remarks above point to something that I would see as a theme profoundly present in Walzer’s opening chapters in Just and Unjust Wars.  Viz., the book offers a theory of rights, yes, but a theory of human rights in war in the service of a moderate moral realism.  The qualifier is not unimportant.

Walzer’s original theory, as found in the book, is not a theory of rights in war that is somehow opposed to moral realism; quite the contrary.  Human rights in war is offered as a way give content to moderate moral realism, one that fills out (“does real work,” as Walzer puts it at the beginning of a later work, the marvelous Spheres of Justice) to the “moderate moral” part of that formulation.  But the formulation, moral realism, is itself a conjoining of “moral” and “realism.”  In that regard, it puts forth plural and not necessarily consistent demands, and sometimes those inconsistent demands will require tradeoffs and sometimes they will require genuinely tragic choices.  We usually think of this sense of pluralism of values leading to tragic choices in the tradition of Isaiah Berlin, and that is true, but I actually have something different in mind.

Pluralism of tragic choices that strives to avoid the trap of relativism on the one hand, and an angelic purity of rights to elide the tragic choices, on the other, leads to Walzer’s theory of rights – rights that are in some sense universal, but also contextual and contingent, which is to say, a human institution to human ends.  ”If it is not possible to win just wars fighting justly, then we will have to revise the jus in bello.”  Yes.  I myself have always linked Walzer’s view, not to the purist theories of rights which many rights advocates and academics seem to think that it is, but instead to sources that Walzer himself would probably find idiosyncratic (everyone else does), but I think fit.

When I read the opening chapters of Just and Unjust Wars, leading through the attack on amoral realism and the embrace of a certain rights-defined moral realism, and finally to the assertion that this is a theory of resistance to aggression in which, all other things being equal, one ought to resist, I find it wholly natural to think of the great French moralistes of the 20th century, Albert Camus and the poet and Resistance leader Rene Char.  Char, after all, referred to the war in his diary as “this time of damned algebra” and captured, haiku-like, the essence of the tragic choices of moral pluralism in one of his most famous expressions:

Bitter future, bitter future, a dance amongst the rosebushes.

The problem is, however, Walzer of Just and Unjust Wars – a book offering a moderate moral realism in inevitable tension with itself – is not how much of the world has read and “operationalized” the theory in the decades since.  In the public version of the theory of Just and Unjust Wars that has, so to speak, come to “own” the book, it is a theory of some quite (and increasingly) strident, if not absolutist, version of individual human rights in war, triumphing over the part about winning.  As Walzer seems to suggest above, that was not quite what he intended.

The great international law scholar Louis Henkin passed away two days ago; for many decades he taught at Columbia Law School, which released a note from the dean on Professor Henkin’s passing. Over at Opinio Juris, Harold Koh, currently Legal Adviser to the State Department, has a lovely tribute to him.  I have come not to share Lou’s views on some things related to international law and human rights, but that’s neither here nor there; Lou Henkin is one of the giants of international law and the human rights movement.

For me personally, however, what I will most recall about Louis Henkin is something altogether different.  When my wife and I lived in New York, we would occasionally run into Lou and Alice Henkin, walking hand-in-hand along the streets of the Upper West Side near Columbia.  It was this then middle-aged couple strolling hand in hand that always caught my wife’s attention, and mine; I hope we can be like that, said My Beloved Wife on one occasion.  Ave atque vale.  And deepest sympathies to Alice Henkin and all their family.

Columbia University historian Samuel Moyn has a new book out, The Last Utopia: Human Rights in History (Harvard/Belknap). I haven’t read it – but I have ordered it from Amazon! – and I’m sure I’ll have more to say about it once I’ve read it. However, it received a positive (and quite interesting in its own right) review from Brendan Simms, a well-known Cambridge international relations professor, in the Wall Street Journal. And Professor Moyn has written a summary of the book’s argument that appears as an article in this week’s Nation. The Nation piece is good reading on its own, and this part drew my attention:

Beginning in the 1990s, when human rights acquired a literally millennial appeal in the public discourse of the West during outbreaks of ethnic cleansing in Southeastern Europe and beyond, it became tempting to treat 1948 as a moment of annunciation, with large political consequences. Carter, and the 1970s, were rarely mentioned. It became common to assume that, ever since their birth in a moment of postgenocidal revulsion and wisdom, human rights had become embedded slowly but steadily in humane consciousness in what amounted to a revolution of moral life. In a euphoric mood, high-profile observers like Michael Ignatieff believed that secure moral guidance, born of incontestable shock about the Holocaust, was on the verge of displacing self-interest and power as the foundation of international relations. In Samantha Power’s “A Problem From Hell”: America and the Age of Genocide (2002), Raphael Lemkin, who crafted the draft resolution of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was dusted off as a human rights sage and hero, with Carter earning attention only for failing to intervene against Pol Pot’s atrocities.

In fact, when “human rights” entered the English language in the 1940s, it happened unceremoniously, even accidentally. Human rights began as a very minor part of a hopeful alternative vision to set against Adolf Hitler’s vicious and tyrannical new order. In the heat of battle and shortly thereafter, a vision of postwar collective life in which personal freedoms would coalesce with more widely circulating promises of some sort of social democracy provided the main reason to fight the war.

It’s important to enumerate what human rights, in the 1940s, were not. Ignatieff was wrong. They were not a response to the Holocaust, and not focused on the prevention of catastrophic slaughter. Though closely associated with the better life of social democracy, only rarely did they imply a departure from the persistent framework of nation-states that would have to provide it.

Above all, human rights were not even an especially prominent idea. Unlike later, they were restricted to international organization, in the form of the new United Nations. They didn’t take hold in popular language and they inspired no popular movement. Whether as one way to express the principles of Western postwar societies or even as an aspiration to transcend the nation-state, the concept of human rights never percolated publicly or globally during the 1940s with the fervor it would have in the ’70s and the ’90s, including during negotiations over the Universal Declaration.

What if the 1940s were cut loose from the widespread myth that they were a dry run for the post–cold war world, in which human rights began to afford a glimpse of the rule of law above the nation-state? What if the history of human rights in the 1940s were written with later events given proper credit and a radically different set of causes for the current meaning and centrality of human rights recaptured? The central conclusion could only be that, however tempting, it is misleading to describe World War II and its aftermath as the essential source of human rights as they are now understood.

From a global perspective, the brief career of human rights in the 1940s is the story of how the Allied nations elevated language about human rights as they reneged on the earlier wartime promise—made in the 1941 Atlantic Charter—of the self-determination of peoples. Global self-determination would have spelled the end of empire, but by war’s end the Allies had come around to Winston Churchill’s clarification that this promise applied only to Hitler’s empire, not empire in general (and certainly not Churchill’s). The Atlantic Charter set the world on fire, but because similar language was dropped from the Universal Declaration, human rights fell on deaf ears. It is not hard to understand why. Human rights turned out to be a substitute for what many around the world wanted: a collective entitlement to self-determination. To the extent they noticed the rhetoric of human rights at all, the subjects of empire were not wrong to view it as a consolation prize.

Without, as I say, yet having read the book, I find this intriguing. No, more than that – it accurately captures in my own experience as an NGO person who first volunteered to do work for Human Rights Watch in 1983 when it was still two somewhat separate organizations, Helsinki Watch and Americas Watch. This was a time when Aryeh Neier was operating out of a tiny dark office in the New York City Bar building, and the organization was not in its current position of glorious NGO hegemony and a $44 million annual budget – meaning, an offer from a Harvard Law student bringing his own funding was not an occasion to giggle at the presumption. Ken Roth was still working as a Federal prosecutor.

Continue reading ‘Samuel Moyn on the History of the Human Rights Movement’ »

In the midst of so much other legal news in the past few days, you might have missed the latest twist in the on-going saga of the legal case regarding Chevron’s Ecuador operations. My co-blogger at Opinio Juris Roger Alford explains.  It is fascinating reading, reaching far beyond international or transnational law issues, going as it does to the ethical relationships between a party and an expert appointed by a court.  It is, as Roger says, an explosive allegation by Chevron, based upon outtakes from the documentary film Crude, of collusion between the plaintiffs’ attorneys and the soon-to-be-appointed court expert.  (If you want background on the case(s), trace back Roger’s Opinio Juris links.)

As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

Note to enterprising academic or law student.  Roger adds the following in response to a comment suggesting that the master might have held ex parte meetings with each side prior to drafting a report.  He adds that the defense cannot release the DVD itself containing the full outtakes – it has been suggested that Chevron took quotes out of context – but that a student or academic could go to the courthouse in New York and get the full content:

It is plausible that a Special Master or perito might have ex parte meetings with both sides and get their input before drafting the report.

Problem is, I was able to confirm today with counsel for Gibson Dunn that the Special Master Richard Cabrera never held a similar meeting with defendants or otherwise gave the defense side the opportunity to make suggestions or provide input about the contents of the court-appointed expert report.  They also say their is much more evidence that the Cabrera report was actually drafted with the plaintiffs. They also said that they are hoping that the film outtakes will be made available to the public, but it will require someone (like an enterprising law professor or student!) to go to the New York courthouse and get a copy of the DVD. The Second Circuit order precludes the defense counsel from handing the DVD film outtakes directly to the press.

Update:  Karen Hinton, spokesperson for the plaintiffs, has a response in the comments below. Pulling up a little bit of it; the full official press release from the plaintiffs is in her comment:

I am the spokesperson for the plaintiffs in the lawsuit against Chevron. A couple of thoughts: The CDs filed with the court do not include the entire tape from which the scene was taken. It is Chevron’s edited version of the original tape. So reviewing it does not give you the complete picture. Chevron and the filmmaker Joe Berlinger have refused to provide the plaintiffs a copy of the tapes, as had the court. As a result, we do not have a way to review the original tape.

Randy Mastro’s comment that Cabrera never offered Chevron the opportunity to meet is absolutely incorrect. Chevron chose not to cooperate with Cabrera. Chevron did not submit any information to Cabrera for inclusion into his report. Why? Because the vast majority of the samples taken prior to Cabrera’s appointment showed overwhelming evidence of extensive contamination. Even Chevron’s samples showed illegal levels of contamination, though their levels were lower than the plaintiffs’ tests. We discovered that Chevron (as well as Texaco earlier) falsified their testing levels.

This is not the first time Chevron has taken comments out of context in order to derail the lawsuit.

Update 2:  Roger Alford (an international and comparative law professor at Pepperdine) adds a further post at OJ responding to Karen Hinton’s response as well as a phone call with her in which she told him that plaintiff lawyer Steven Donziger’s remarks that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit” are not a reference to what the plaintiffs’ lawyers and the expert are discussing doing, but a reference to Chevron’s manipulation of the evidence.  Roger gives the full transcript and says:

As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpt is when lead plaintiffs’ lawyer, Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.’”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here . Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

I agree with Roger on what the transcript says, in its full context.  I too find it almost impossible to believe that this could be understood as a reference to Chevron’s evidence.  I would be astonished if a US federal judge, reading the full transcript, thought there was any question about what this comment referred to.

This interesting essay, by Vik Kanwar of Jindal Global Law School (India), reviews four new books that examine how the laws of warfare may or should change in response to the development of autonomous weapons a/k/a “warbots.”

University of Florida lawprof D. Daniel Sokol has published a very good (and extremely favorable) review of co-conspirator Todd Zywicki’s important recent book Public Choice Concepts and Applications in Law (coauthored with Maxwell Stearns), in the Michigan Law Review.

Danny writes that the book is “likely to be recognized as the leading work on the subject for some time.” Having read it myself, I tend to agree. It’s a great introduction to and analysis of the literature on public choice and its implications for law. The book drives home the implications of the simple but important public choice insights that government actions can be understood using the same tools of economic analysis that economists have long applied to the private sector, and that political behavior is often just as self-interested as market behavior. I would also note that the book has an interesting political balance, since Stearns is generally liberal and certainly well to the left of Todd.

Danny’s review essay also considers some possible additional applications of public choice to legal issues that were not covered by Stearns and Zywicki, especially in the field of international law. As he points out, scholars in the international law field have made very little use of public choice analysis, even though international legal institutions have serious public choice problems that may be even worse than those of domestic political processes in Western democracies. John McGinnis and I have sought to help close this gap in the literature in our work on international human rights law and domestic incorporation of international law.

Over at Opinio Juris, some first-wave discussion of the agreement on the jurisdiction of the International Criminal Court and the crime of aggression.  Kevin Jon Heller and Julian Ku – not sparring, but instead trying to give an initial read on the deal.  A great deal of discussion is about to ensue over this deal, stay tuned at Opinio Juris.  (I myself think the attempt to judicialize aggression is as much madness as the Kellogg-Briand Pact, and wonder, to boot, whether the surest sign of an impending resurgence of deeply dangerous great power multipolar rivalries is a historical overreach of international law.)

But to get a sense of what the deal is as it is being announced, check in at Opinio Juris.  Also Joanna Harrington’s posts at EJILTalk.  And for background, two good sources, among others, are the recent Council on Foreign Relations report offering recommendations to the US prior to the ICC review conference, authored by former DOS lawyer and visiting Cardozo law professor Vijay Padmanabhan, in a CFR project directed by John Bellinger and Matthew Waxman.  And Lee Feinstein and Tod Lindberg’s Means to an End, a short book on the US interest and aims toward the ICC that came out in 2009.

As Professor Philip Alston’s report as special rapporteur to the UN Human Rights Council on targeted killings, drones, CIA and military, and related issues is released today, I’ve been asked by numerous people to comment on it.  I’ve read it once, but need to finish re-reading it before I’m ready to say anything that goes to the inside of the report.  However, in preparation for the report’s release, I have posted to SSRN my testimony in the second round of House subcommittee hearings, “Drones II,” held on April 28, 2010 – an annotated version with various explanatory footnotes added.  The best way to read this testimony is alongside the other written witness submissions, as taken together they offer a good compendium of the extant expert views in the US on how to see drones and the CIA – and the CIA and its use of force is, at the end of the day, the biggest issue here.  Drone technology is best understood as a stalking horse for the question of the CIA’s use of force.  I have a rambling blog post at Opinio Juris on the background to this; it is somewhat inside international law professor baseball, however – also, the links and tags point to a long,  long series of back and forth posts at that international law blog site that fill in much background to the issue.  SSRN abstract below the fold.

Continue reading ‘My House Testimony in “Drones II”’ »

Via Avi Bell, here’s a fascinating interview with Itai Epstein, Director of Amnesty International in Israel.

The interviewer asks some fairly sharp questions, and he gets answers filled with addled logic that amount to, “Whatever Israel does, Amnesty is still going to say it was acting illegally/violating human rights.” Here’s an excerpt (but read the whole thing), in which the interviewer asks Epstein what Israel needs to do before Amnesty will acknowledge that Israel is not “occupying” Gaza. The short answer is there’s nothing Israel can do, only steps Israel could take toward that goal, but whatever Israel does there will still be “other components related to agreements of the international community” whatever that means.

Q. What is required of Israel to stop it from being an occupying force under Amnesty’s definition?

A. That there will be another sovereign power and that the border crossings to Gaza not be under Israeli control. That’s the meaning of occupation, there’s no other sovereign power there, there’s no control over the border crossings for free movement of people and goods and that’s why Gaza is under occupation.

Q. Is an exit by the Navy from Gaza’s waters an end to the occupation?

A. No.

Q. Is opening the border crossings with Israel ending the occupation?

A. That’s a step towards ending the occupation….

Q. So what actions must Israel take? You say that the occupation ends if Israel opens the crossings, so if the occupation ends, Israel needs to close the borders since Gaza is defined as an enemy state. There’s a logical contradiction here.

A. I don’t understand where the contradiction is.

Q. The border between Israel and Lebanon is closed since Lebanon is an enemy state. You’re claiming that Israel needs to open the borders to Gaza and then the occupation will end. And then Israel will have to close the crossings.

A. I’ll ask you another question. Can Lebanon control the transfer of goods and people to Lebanon not opposite Israel but opposite other countries?

Q. So the problem is with the control by sea and air. If the seas are open there is no occupation?

A. Of course, had it been possible to enter Gaza freely through the air, by sea and land, that would certainly be one component of the occupation ending.

Q. What are all the components to end the occupation? Amnesty does not present a plan in which Israel stops the occupation. It says that Israel needs to stop the occupation and deepen the occupation by opening the borders. I don’t comprehend that.

A. Amnesty International does not deal with solving conflicts.

Q. It’s not conflict solving. It’s ending the occupation. Amnesty says that Gaza is under occupation. According to Amnesty, what actions must Israel take in order to stop the occupation?

A. One of the things which need to be done is to allow the passage of people and goods through the air, the sea and land. That’s one component. There are other components related to agreements of the international community since Amnesty International does not deal with solving conflicts.

Q. If Amnesty claims that there’s an occupation there should be a definition of when there’s no occupation. Amnesty claims that Israel needs to open all the crossings for free movement from Gaza to Israel and remove the sea and land siege on Gaza, meaning let Gaza be open to the entire world with no connection to Israel, but under those circumstances the occupation no longer exists. So why is there a need to transfer supplies to Gaza? Does Amnesty by the same logic demand the American forces in Afghanistan to help the Taliban? And take care of the sick among the Taliban? That’s the question, when does the occupation end?

A. I admit that I don’t understand the question. I’m unclear as to what kind of answer you expect.

Q. What are the necessary steps on which you can elaborate?

A. One, allow the Palestinians in Gaza free access to drinking water. Israel hasn’t done this in all the years of the occupation until now, and it has a responsibility to ensure that Gaza’s residents have access to water. The same thing goes for health services. For dozens of years the rights of those residents have been prevented and the formations of civil infrastructures were prevented and this became worse during the attacks of last year, and a large part of those infrastructures were destroyed and not rebuilt to this day. This is an obligation of which Israel cannot free itself.

Q. It’s an obligation of which Israel cannot free itself, but it has nothing to do with the occupation. Those are two different things.

A. It’s related to the situation of the continuing occupation.

Sounds like Alien v Predator.  Well, the Supreme Court might have taken up that question, but in the event, decided not to get involved with it.  My Opinio Juris co-blogger Duncan Hollis explains at OJ.  The case handed down today is Samantar v Yousef.  I concur with Duncan’s takeaway:

For human rights activists, however, the case had real import for the future of litigation under the Alien Tort Statute (ATS) … My own first take, however, is a simple one, namely, that human rights activists should be breathing a huge sigh of relief tonight.  The Court had a chance here to gut the ATS, and it declined to do so.

Apparently that is the plan of several Mexican and Arizona legislators. (Original story in Spanish from El Semanario here.)

The Inter-American Commission on Human Rights is the Oranization of American States administrative body responsible for hemispheric human rights enforcement. Generally speaking, if the Commission finds that the government has violated human rights, the Commission attempts to resolve the matter by issuing recommendations to that the government. However, if the Commission considers the case unusually important, or if the government obdurately ignores the recommendations, the Commission can bring the case to the Inter-American Court of Human Rights.

That Court, ocated in San José, Costa Rica, has the duty is to interpret and hear cases on the American Convention on Human Rights. Significantly, however, the Convention has only been ratified by 24 of 35 OAS members, and the United States is not among the ratifiers.

Accordingly, the United States is not currently subject to the Court’s “adjudicatory function.” (In an adjuticatory function case, the defendant government can be ordered to pay money, or to do particular things). The adjuticatory function is available only if the defendant government has accepted the Court’s jurisdiction, and has ratified the American Convention on Human Rights. A state can accept the Court’s jurisdiction on a case-by-case basis, or can submit to blanket jurisdiction.

Besides adjudicating cases, the Inter-American Court can also act in an Advisory function. It does so when asked by an OAS agency or OAS member state. In the Advisory role, the Court can interpret the American Convention on Human Rights, or any other treaty which applies to human rights in the Americas. The Court can also advise whether existing or proposed domestic laws are compatible with those treaties.

Thus, unless the Senate ratified the American Convention on Human Rights and the US government accepted the jurisdiction of the Inter-American Court, neither the Court nor the Inter-American Commission on Human Rights can issue a legally binding decision against the Arizona laws against illegal aliens. Either the Commission or the Court could issue non-binding advisory opinions as to whether the Arizona laws violate international law.

Matthew Yglesias writes of Benjamin Birnbaum’s piece on HRW in The New Republic:

What I had in mind is that I don’t see what there is to rebut in the piece. As we’ve known for a while, some folks don’t like it that Human Rights Watch criticizes Israel. Some of those people aired their grievances to Birnbaum. But he doesn’t offer any new facts or new analysis or have any relevant expertise in international law. The result is a fairly dull narrative piece detailing how some HRW folks fell out with some other HRW folks over their disagreements about Israel. The piece itself is responsibly written but a bit confusing and doesn’t seem to advance any argument at all, much less a devastating one.

Well, here is my one-line summary of what we learn from the Birnbaum article (which just reinforces what those of us who were paying attention already knew): “HRW’s Middle East division is run by individuals who purport to be human rights activists with no political agenda, but who are in fact far left-wing anti-Israel ideologues who are extremely intolerant of any criticism from within or without the organization.” Birnbaum provides ample evidence on these points, some of which is reviewed here.

I think Sarah Leah Whitson’s and Joe Stork’s (the director and deputy-director of HRW’s M.E. division) bona-fides as far left-wing anti-Israel ideologues masquerading as neutral human rights advocates are well-established by now, but if Yglesias has some new information– e.g., that Whitson didn’t really gush over Hezbollah supporter Norman Finkelstein’s “brilliant mind and generous spirit,” or that she really doesn’t think that, like Finkelstein, the “focus” of her “life’s work” is “Israeli abuses”–let him rebut away.

UPDATE: And, I can’t resist this, it’s priceless. Ygelsias writes of Birnbaum, “But he doesn’t offer any new facts or new analysis or have any relevant expertise in international law.” I certainly hope he’s not arguing that journalists should only write about subjects in which they have real expertise, or his blog is going to be awfully silent. Or did I miss Yglesias’s Ph.D. in Korean Studies?

The House Subcommittee on National Security and Foreign Affairs, chaired by Rep. John Tierney, held a second hearing (Wednesday, April 28, 2010), once again on the topic of drone warfare. The first, held back on March 23, was focused on the technology of UAVs; this follow-up hearing was specifically about targeted killing and drone warfare. All of the witnesses this time around were senior international law professors: Mary-Ellen O’Connell (Notre Dame), William Banks (Syracuse), David Glazier (Loyola Los Angeles), and KA.

(I’m traveling, so I’ll post the hearing information when I get home; the AP has a reasonably good summary (considering the difficulty of reporting on four law professors with quite different views politely agreeing and disagreeing with each other …!). The ACLU submitted a written statement (just downloaded but not yet read).)

We four professors represented a pretty good range of the available expert views, and in that regard particularly I think this was a useful hearing. In part, it sought to figure out what this debate meant following DOS Legal Adviser Harold Koh’s statement on drones at the ASIL meeting on March 25. Having been a sharp critic of the administration, or anyway its senior lawyers, including in the first drone hearing, for not stepping up to the plate on this topic, I applaud both the fact of the Legal Adviser’s public statement as well as the substance of his statement.

The pivotal issue – not surprisingly, for those following these debates – is the role of the CIA, whether it takes a role at all and, in particular, where it takes a role. The positions presented ranged from:

• Professor O’Connell’s well-known view that the participation of the CIA is and always is an international crime;
• Professor Glazier’s position that the targets who fit within the AUMF are targetable as part of an armed conflict and that the conflict goes where they go;
• Professor Banks’ position that the participation of the CIA is lawful under both domestic and international law, but that the law in each instance needs to be updated and brought to fit contemporary circumstances; and
• my own view, closest to Professor Banks’, that the CIA participation is lawful, but that there is a separation of the legal rationales and bases, depending upon whether it is a matter of armed conflict or the separate ground of self-defense.

Chairman Tierney did an excellent job of disentangling the highly entangled and conflicting positions among the witnesses. Not easy, because the disagreements are very sharp in some areas, less so in others.

(For my own part, I’m going to have to work on delivering a very clear message about my own views. Like many professors, including our President, I have a tendency to bury the lede in a bunch of hypothetical questions. I framed a series of questions about the role of the CIA – not because I think that its participation is unlawful, but because I thought it would be useful to frame the positions among which I was asserting one. When I read a number of the news stories afterwards, I discovered I had been cited for the propositions in the hypotheticals, not for my actual view that the CIA’s participation is, yes, lawful. My bad – there are reasons why I would never be a good litigator.)

The most striking take-away for me from the hearing was just how much the position of the professional international law community, as ably represented by Professor O’Connell, starts from fundamentally different premises than that of the US government, of any administration, at any time. In this particular instance, Professor Banks and I were, in various ways, channeling the administration – or, better said, the way in which the US government has long approached these questions as a matter of pragmatic law.

These two whole approaches to international law – that represented by Professor O’Connell, and that represented by me, and by Professor Banks and, in this regard, Professor Glazier – the approaches to international, and not just the substantive positions derived from them, are really like ships passing in the night. I tried to say this at the end of my comments: Professor O’Connell and I were arguing past each other, ships passing in the night. But the consequences in the real world are not ships passing; eventually they collide and one or the other prevails.  They can’t really meld into some mixed paradigm; the underlying assumptions are too different.

The problem?  If you talk about international crimes being committed by the CIA, each and every time it carries out a strike, those are words with consequences. It is hard to talk about merely “correcting” state practices to conform to international law in some general sense of the government of the United States, when the paradigm is that there are individuals who under principles of international criminal law, should not be undertaking a course correction by the administration. If that’s what you mean – and, please to observe, I don’t think this is the case at all – but if that’s what you mean, well, It should be indictment, arrest, and prosecution. For murder and extrajudicial execution and assassination. That’s what you mean if you invoke about international crimes; the whole paradigm is designed, by its nature, to reach to individuals and not simply “sides” in international law and politics.

Just to be crystal clear this time, I don’t think these CIA actions are international or domestic crimes. But the view of the administration, which I think generally legally correct, and that of its critics such as Professor O’Connell, really can’t be reconciled. And if you think it is a matter of international crimes (as, I stress, I don’t), then it doesn’t go away even if the Obama administration decided tomorrow to change course. It has undertaken hundreds of these strikes now, over a series of years; give it a couple of years more until it’s no longer President Obama, and then call it “crimes against humanity.”  After all, why not, once the political costs of attacking Democrats, with the genuine intent of finding criminal liability, is gone?

If the stakes are raised, as is currently underway by the soft-law community, to the level of serious allegations of criminality, then the Obama administration now finds itself at the beginning of the process that the Bush administration found itself in regarding detention, interrogation, and rendition. The ACLU is like a dog with a bone; following the relentless logic of collective action coordination failures, it will remain relentlessly focused, gnawing away, and those it seeks to play will be diverted and disorganized in their responses. Death by a thousand paper cuts, I think I wrote in the Weekly Standard. I am as ever stunned by the ability of government officials to think that the advocacy soft law community does not have the ability to set the agenda.

(Side note:  My general sense of the politics associated with this, then? Nasty. Not as nasty as I thought before Dean Koh’s speech, so perhaps I am simply inclined to see nastiness, but still … The table is being set now by the NGOs to turn the agenda into a genuinely international criminal one against individual CIA officials – once a Republican administration is in office. I find it hard to resist the sense that if you are, say, the ACLU or the human rights groups, this is win-win politically. The joys of public choice theory and defection game theory.

The game played by human rights organizations of what I have sometimes called “serial absolutism” is a special case in game theory of serially “moving the goalposts,” which in turn is a special case of serial insincere promising (these are the absolute, unshifting standards, we really, really promise this time!!), serial insincere promising about the procedural and constitutive rules of the game, followed by serial defection (whoops! it’s really crimes against humanity, now that the Republicans are in).  ’Moving the goalposts’ does not get enough attention in the iterated game theory literature, I think.  Unstable coalitions in domestic politics – leftwing Democrats aligned with various foreign and international constituencies, “gaming Spain,” as I’ve sometimes called it – prevent a unified American government from recognizing the pattern of repeat defection and trust-breaking and therefore refusing to take the promise seriously.

Thus, the advocacy groups start with the Obama administration, establishing their bona fides so no one can say that they weren’t even-handed, even though they know that it will only become real, a campaign that ripens into a real chase against individual lawyers, officers, and agents (probably starting with any easy-to-cut-out-from-the-herd military contractors), undertaken and underwritten by a concerted NGO campaign, ratcheting up to a crescendo a couple of years into the next Republican presidency. The only way to slow this down is by creating a policy and considered legal views in the Obama administration that can set a stable precedent for those administrations, Republican and Democrat, that follow.)

Director Panetta has been doing a remarkable job of push back in the press, and certainly with Congress, on the efficacy and focus of these strikes. (Of course, I regard Legal Adviser Koh’s statement as an outstanding beginning for the American government to state its long-term position on the law.) I suspect Panetta has convinced some important, and not otherwise friendly, reporters that the collateral damage is far closer to what the CIA says than what the NGOs say. But I’m not sure even he understands how much the ground is shifting even from the argument over collateral damage to a much more basic one – why does the CIA even engage in the use of force at all? Shouldn’t all uses of force be either military (in an armed conflict) or law enforcement?

Why does the CIA have any function of covert action? That question was plainly on the table in the House subcommittee hearing, and I thought there was a twinge of hesitation on the part of some lawmakers. I remarked – seemingly off topic but in fact at the center of things – the United States, like other leading states, has long believed that its national security and self-defense required a covert civilian service. We thought about ending it in the Church hearings but didn’t. We have had many opportunities to end it, but we’ve never taken them.

In my view, we are right to keep that ability. But there are plenty of people who think it a bad idea on both policy and legal grounds. (For that matter, in my experience, the Defense Department has many serious military people, both operational and legal, who think the use of force by the CIA is always a mistake and indeed illegal. I’ll discuss that view in another post.  Professor Glazier seemed to reflect this view in part, although I don’t want to speak for him on so fundamental a question.)

We are at one of those periodic moments, in other words, when the fundamental question of CIA covert use of force is on the table of public debate again. I hope that Director Panetta pays close attention to the tenor of the hearing last week and understands that among the multiple layers of issues – drones, drones beyond AfPak, the role of the CIA in an armed conflict, the role of the CIA in self-defense – the question of whether the CIA should ever use force is on the table.

Benjamin Birnbaum’s investigative piece for The New Republic on Human Rights Watch and Israel is now up. The piece mentions, but does not dwell on, the various scandals that engulfed HRW last year—the fundraising trip to Saudi Arabia in which HRW Middle East director Sarah Leah Whitson invoked the organization’s hostility to Israel and the “pro-Israel lobby”; reports that deputy director Joe Stork’s prior “human rights” background primarily consisted of editing and writing for a radical left, anti-Israel publication; and the revelation that HRW military analyst Marc Garlasco was an avid collector of Nazi memorabilia.

Instead, the piece focuses on the longstanding conflicts within HRW regarding its Israel-related activities that eventually led founder Richard Bernstein to denounce HRW in an op-ed in the New York Times last Fall.

Much of the piece will be of great interest to both donors and critics of HRW, but will strike those without a deep interest in HRW as so much inside baseball. Nevertheless, there are several newsworthy nuggets within the article:

(1) Whitson’s hostility to Israel. Birnbaum quotes an anonymous insider for what should by now be obvious: she “has no sympathy for the Israeli side” and “has a lot of personal identification [fwiw, her Armenian mother was born in East Jerusalem] with the Palestinian cause.” Birnbaum backs this up with a few telling quotes from Whitson.

(a) Whitson recently professed HRW’s neutrality on the Hamas-Israel conflict to a Moroccan newspaper. But then she added, “Of course, no one can deny that the pain and destruction that Israel causes cannot be compared to what Hamas is doing.” A more objective observer might point that whatever “pain and destruction” Israel is leveling on Gaza is itself Hamas’s fault, because Hamas has chosen to live in a state of war with Israel, whereas Israel would be happy to leave Hamas and Gaza alone if Hamas would cease inflicting missiles on southern Israel.

(b) Why does Whitson seem to only hire staffers who have an anti-Israel activist background? “For people who apply for jobs to be the researcher in Israel-Palestine, it’s probably going to be someone who’s done work on Israel-Palestine with a human rights background,” she explained. “And guess what? People who do work with a human rights background on Israel-Palestine tend to find that there are a lot of Israeli abuses. And they tend to become human rights activists on the issue.” Apparently, no one ever applies for an HRW job who has determined that the Palestinian Authority terrorist kleptocracy and the Hamas Gaza terrorist theocracy engage in a “lot of abuses.”

(c) There is perhaps no American anti-Israel activist who is more poisonous to anyone with the least bit of sympathy for Israel than avowed Hezbollah supporter Norman Finkelstein. As I’ve described him before: Imagine a leftist, male version of Ann Coulter who instead of attacking liberals and the liberal establishment, has devoted his career to attacking Israel and the American Jewish establishment. Imagine, though, that this male version of Coulter was a less talented writer, and even more offensive in his description of his adversaries. Whitson’s verdict: Finkelstein has a “brilliant mind and a generous spirit” [!!!!!!] and “I continue to have tremendous respect and admiration for him.”

(d) Whitson’s office has a poster for “Paradise Now,” the film that attempts to humanize (and perhaps create sympathy for) Palestinian suicide bombers. Deliberately murdering civilians is hardly compatible with any accepted notion of human rights, making Whitson’s choice for office decoration rather remarkable, kind of like Abe Foxman having a poster of a Leni Riefenstahl film in his office.

(2) Also of interest is HRW head Ken Roth’s and Whitson’s reactions when Birnbaum asked Roth why HRW has refused to condemn Mahmoud Ahmadinejad’s threats to wipe out Israel as an incitement to genocide, a violation of international law. Roth first quibbled over Continue reading ‘Birnbaum on Human Rights Watch and Israel’ »

From Serra v. Lapin (9th Cir. Apr. 9, 2010) (Clifton, J., joined by Kozinski, C.J., and Wallace, J.) (some paragraph breaks added):

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law…. Plaintiffs earned between $19.00 and $145.00 per month at rates as low as nineteen cents per hour. Plaintiffs contend that by paying them such low wages, Defendants … violated Plaintiffs’ rights under the Fifth Amendment to the United States Constitution; articles 7 through 9 of the International Covenant on Civil and Political Rights (“ICCPR”); a U.N. document entitled “Standard Minimum Rules for the Treatment of Prisoners;” and the law of nations.

Continue reading ‘An Eminently Sound Approach to (Supposed) International Human Rights Norms, from the Ninth Circuit’ »

Onetime VC contributor Eric Posner has a WSJ op-ed on the indictment of Judge Baltasar Garzón in Spain and what this episode should teach us about the efforts to assert universal jurisdiction over alleged atrocities that occurred within the sovereignty of other nations.  Here’s a taste:

Universal jurisdiction arose centuries ago to give states a means for fighting pirates. In recent years, idealistic lawyers have tried to convert it into an all-purpose instrument for promoting international justice. But supporters of this law turned a blind eye to the diverse and often incompatible notions of justice that exist across countries. Everyone can agree to condemn arbitrary detention, for example, but in practice people disagree about what the term means. Whether an amnesty should be issued so that a transition can be made to democracy (as in Chile or as in Spain), or exceptions to some rules should be made for the sake of national security are not questions for a foreign judge.

When Mr. Garzon indicted Pinochet, riots erupted in Chile. No matter, thundered the champions of international law: Let justice be done though the heavens fall. But when Mr. Garzon turned his sights on his own country, the gates of justice slammed shut. Spain’s establishment was not willing to risk unraveling its own transition to democracy, and rightly so. But then on what grounds should Spanish courts pass judgment on Chile?

Posner also explains why creation of the International Criminal Court cannot cure the problems with efforts by national judges to declare universal jurisdiction over acts that occurred within other nations.  The ICC, Posner says, is an “inconsequential institution” that must make “inherently political” decisions about which cases to pursue, and which will be “squashed like a bug” if it ever goes after a powerful country.

One cannot solve the perennial problem of “who will guard the guardians” by handing over authority to prosecutors and courts. But that is what the universal jurisdiction agenda boils down to. Mr. Garzon’s comeuppance should be a warning to those who place their faith in the ICC to right the world’s wrongs.

UPDATE: Kevin Jon Heller responds at Opinio Juris.

Spanish judge Baltazar Garzón rose to fame in 1998 when he issued an arrest warrant for former Chilean dictator Augusto Pinochet for the alleged murder and torture of Spanish citizens in Chile.  Such use of universal jurisdiction was unprecedented — and it was only the beginning.  Since then, Judge Garzón has investigated Bush Administration officials for alleged crimes against humanity and indicted Osama Bin Laden.  Yet as the AP reports, Judge Garzón has been indicted himself for ignoring a 1977 amnesty law and exceeding his jurisdiction in his investigation of the alleged atrocities committed by Gen. Francisco Franco and his allies during the Spanish Civil War and under the Franco regime.  The NYT thinks this an outrage, while the WSJ thinks it is poetic justice. Overlawyered’s Walter Olson also comments here.

UPDATE: At Opinio Juris, Julian Ku says this is a “big deal.”  More here.

Despite widespread condemnation from many of its own allies and fellow-travelers (e.g.), Amnesty International continues to have no compunctions about its close association with the pro-Taleban former Guantanomo detainee Moazzam Begg. According to Amnesty Secretary General Claudio Cordone, Amnesty may disagree with Begg on the “role of jihad in self-defense,” but otherwise Begg’s support of the Taleban raises no significant human rights issues.

Apparently, however, Cordone has lost some sleep over Amnesty’s cooperation with the Catholic Church in opposition to the death penalty:

There are victims with whom we would not associate, while unreservedly campaigning against any abuses of their rights. For example, we denounced the waterboarding of Khaled Sheikh Muhammad, the Guantánamo detainee credited with the 9/11 and other atrocities. But we would never share a platform with someone like him who openly espouses an ideology predicated on hatred and the killing of civilians – in short, views that are clearly antithetical to human rights. The answer in this case is easy.

But in other cases the answer is not easy. For example, should we not work against the death penalty with an influential actor like the Catholic Church because we disagree with their stand on women’s reproductive right and homosexuality? There are valid arguments for and against. We chose to work with the Catholic Church against the death penalty.

Hat tip: NGO Monitor

That’s the title of an excellent piece today in the Times of London. Despite the lurid title, the piece is actually a tough-but-fair overview of the various controversies surrounding HRW’s coverage of the Middle East.

A taste:

Some conflict zones get much more coverage than others. For instance, HRW has published five heavily publicised reports on Israel and the Palestinian territories since the January 2009 war.

In 20 years they have published only four reports on the conflict in Indian-controlled Kashmir, for example, even though the conflict has taken at least 80,000 lives in these two decades, and torture and extrajudicial murder have taken place on a vast scale. Perhaps even more tellingly, HRW has not published any report on the postelection violence and repression in Iran more than six months after the event.

When I asked the Middle East director Sarah Leah Whitson if HRW was ever going to release one, she said: “We have a draft, but I’m not sure I want to put one out.” Asked the same question, executive director Kenneth Roth told me that the problem with doing a report on Iran was the difficulty of getting into the country.

I interviewed a human-rights expert at a competing organisation in Washington who did not wish to be named because “we operate in a very small world and it’s not done to criticise other human-rights organisations.” He told me he was “not surprised” that HRW has still not produced a report on the violence in Iran: “They are thinking about how it’s going to be used politically in Washington. And it’s not a priority for them because Iran is just not a bad guy that they are interested in highlighting. Their hearts are not in it. Let’s face it, the thing that really excites them is Israel.”

UPDATE: A commenter points out that the reporter’s information is not up-to-date. HRW did publish a report on post-election repression in Iran in February 2010, eight months after the election. As for Kashmir, HRW has only published one report in the last decade, but published more than three in the 1990s.

FURTHER UPDATE: Granted, the reporter was rather sloppy in tallying the Kashmir reports, and in not following up re Iran. But there’s really no doubt that HRW focuses disproportionately on Israel. Remember Middle East director Sarah Leah Whitson’s speech on human rights in the Middle East last year, in which she spent almost as much time discussing Israel as the entire rest of the Middle East? In any event, I thought the newsworthy part of the quoted material was the opinion of the researcher from the competing organization, although it would have been even better with a non-anonymous source.

Update:  I have had a chance to watch the video twice – I strongly recommend watching it, as it adds considerable language to the statements below in the press release.  And welcome Instapundit readers and any others.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, on first read, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

*

I was teaching classes and unable to attend, much as I wanted to, DOS Legal Adviser Harold Koh’s keynote address at the American Society of International Law annual meeting tonight.  Shane Harris sent me along the press release from ASIL with these excerpts from Dean Koh’s address specifically on the topic of drones.  I have barely had a chance to skim this and have not seen the full text, so I will refrain from commenting at all until I’ve had a chance to read this through.  But I wanted to post this immediately for interested readers; I will now read it through and watch the video):

Koh’s wide-ranging remarks on the Obama administration’s international law policies included a specific affirmation of the administration’s approach to the use of force, including the use of unmanned aerial vehicles (UAVs), which has recently come into question by some legal experts.  Among Koh’s statements regarding the use of UAVs are the following.

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.  Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

-                             First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

-                             Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

Responding to some recent arguments made against the use of UAVs, Koh defended the administration’s policy saying:

“[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war.  But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law….[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations.  But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing.  But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.  Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.  In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting.  They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations.  But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”

To view video of the relevant portion of Koh’s address to the Society, visithttp://fora.tv/v/10561.

Yesterday (Tuesday, March 23, 2010) I was pleased to appear as a witness before the House Subcommittee on National Security and Foreign Affairs, to discuss drone warfare and Unmanned Aerial Vehicles (UAVs).  The list of witnesses is here, along with a link to a webcast (which I can’t seem to open), and links to the witness statements.  I am always fascinated to listen to Brooking’s Peter Singer, author of Wired for War, and the rest of the panel was equally interesting, especially on the technical aspects of UAVs.

I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields – everything from crop dusting to monitoring schools of fish from the sky.  Someone mentioned (but I haven’t verified) that University of Nevada now offers a degree program in UAV control.   My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns.  In my oral statement, I emphasized the following:

• The Obama administration has embraced drone warfare, but its lawyers have not caught up; presumably they have private concluded that the several drone warfare programs underway are legal, but it is not a good idea to keep the rationales secret.  Not, at least, with a program in Pakistan that is only a matter of official denial, not secret.  It leaves the President and operations people on down hanging out there exposed.
• The drone warfare campaign embraced most thoroughly as a strategic matter – correctly, in my view – by the senior administration officials starting with the President is not the “hot battlefield” use of drones, in which they are essentially a substitute air support weapon for a manned system.  It is, instead, the use of drones in a role unique to them, as a targeted killing mechanism for use in places far off of active battlefields.  There are some questions raised about military battlefield use of drones, but the real questions lie off the active hot battlefield – and it is these uses that are the real reason why senior Obama officials have celebrated them.
• The fundamental issue in a legal policy sense, then, is not so much drones as such – it is their use in a campaign by the CIA of targeted killing.  A better way to understand the drone debate is that this emerging technology has forced onto the table discussion of the lawful and appropriate role of the CIA, in the use of force, and in covert operations using force.  Much of the purely military discussion is interesting technically, but legally somewhat beside the point at least at this point.  A millimeter beneath the surface of the drone discussion is the question of the CIA.  This is the point of the attack on the CIA’s role as criminal made by Mary Ellen O’Connell, and also by Gary Solis in his characterization of America’s “own unlawful combatants.”
• CIA director Leon Panetta has been engaged in a vigorous public defense of the drone program of targeted killing by the CIA.  I am all in favor of it, of course – but as a friend of the program, so to speak, and happy as I am to see Panetta speak up, his defense of the CIA program is slightly beside the point.  He defends the success of the program. Leaving aside criticisms of “blowback” – easy to make, hard to prove or disprove, frankly, but leave that aside – for most of us the success of the program is not the issue.  At issue is its legality, not its success.  Or at least, to know on what basis the lawyers think it is legal.  (Which, note to the Al Jazeera interviewer yesterday following the hearing, I took great pains to distinguish – I do not question the legality of the program as such, I question which legal rationale for its legality is the right one).
• Even you believe targeted killing using drones is, as a general proposition, legal under domestic and international law, as I do, it matters what kind of legal rationale one asserts for it.  Not all lawyers would agree, to be sure, and I suspect this includes lawyers inside the administration, but in my view it matters whether one adopts an “armed conflict” justification in which, when the US targets someone in Pakistan or Yemen or Somalia or wherever, that person is determined to be a lawful target – and it doesn’t matter, for the bare legality of targeting, where he is located.  The armed conflict goes where the combatant goes.  Mumbai, Mogadishu, wherever.  I think this is wrong as a question of the laws of armed conflict, because it does not adhere to the threshold requirements of this peculiar non-international conflict with a non-state actor taking place on a global basis that the US has with Al Qaeda.  In my view, the proper legal frame is international law of self-defense – and it is what the US has traditionally viewed the exercise of these discrete uses of force by the CIA, covert or clandestine, as being anyway.
• These two legal rationales eventually lead to different legal conclusions, constraints and authority for the use of force, unless one uses very awkward legal reasoning to force these very different uses of force altogether into the same frame.  My view is that forcing CIA targeted killing in places that might range widely in the world into armed conflict rationales is bad for the CIA’s legal reasoning – and requires ever greater legal contortions to make it fit into a model of armed conflict law that is fundamentally about the overt meeting of armies and state forces, not covert ops and intelligence services using force.  I don’t think it is a stable legal view for the CIA over the long term.  Moreover, as I thought in analyzing the Bush administration’s “global war on terror” legal frame, forcing all uses of force outside of plain law enforcement into the armed conflict box of law for overt war distorts that body of law and its interpretation, too.  It isn’t about regulating covert ops and intelligence services – there was a good reason why, during all those decades before the 1990s, exceptional and extraordinary uses of force by the covert civilian services was regarded as not unlawful under international law, but not part of the law of armed conflict, either.

Part of the “framing” problem of law here is that it is not just a division of the military operations from the CIA ones, overt from covert.  The Pakistan program by the CIA is, obviously, not covert – it is an operation in formal deniability – the ability to say at least officially (US and Pakistani officials), US military forces are not operating on the ground in Pakistan.  But, as Peter Singer pointed out in yesterday’s hearing, the scale of this non-covert program is up at the level of the opening of the Kosovo air campaign in 1999 – it is up there at the level of “real” war.  It might well be that the proper legal characterization of the CIA’s role in that theater of hostilities is not “self defense” operations as I would use to characterize the CIA operations in other places, smaller, more discrete, and perhaps genuinely covert or closer to it.  Quite possibly operations in Pakistan by the CIA have to be treated as part of the armed conflict.

The point is that a “deniability operation” (if it can be called that, to distinguish from truly covert) on a large scale eventually starts to resemble “hostilities” in a legal sense and in this case eventually merges geographically into the classic hostilities situation of non-international armed conflict that spills over a border.  If that is the case, then quite possibly it should be characterized as part of a single AfPak theatre of hostilities.  With, therefore, an armed conflict rationale for activities by the CIA.

But I do not think this rationale will work for the operation that matter into the future as Islamist terror groups morph and change and seek safe haven in other places.  Nor do I think it will work for post-Al Qaeda groups.  For those, I would opt for self-defense as Abe Sofaer characterized it in 1989.  And, to be clear, if that is the rationale, it does have to remain – as Gabriella Blum noted in a Harvard symposium on this a few weeks ago – exceptional measures.

So I think it will turn out to matter quite a lot over the long term that the Obama lawyers eventually opt for the specific law of armed conflict, including its definitions and thresholds under treaty and customary law, or some customary law of self-defense.  My guess is that the administration’s lawyers will finally opt for what appears to them to be both a narrower and a superficially reassuring ground of armed conflict that allows them to say that everyone being targeted is a “combatant” in a legal sense.  Again, my own view is that this won’t work over the long run – it will degrade as a rationale for the CIA under withering attack from the soft-law community, and it will have a tendency to degrade the law of war itself as rationales suited to a body of rules about large scale, or at least overt, conflict modeled on inter-state armed conflict, continues to pressed into service in an area that is mostly about covert or clandestine operations, and which aims to avoid overt war.

Put more bluntly, as a political evaluation, I think this rationale will work so long, but just so long, as there is an Obama administration.  As a legal rationale, armed conflict as a rationale will turn out to be a legally and politically “wasting asset.”  The legal attacks on targeted killing and the use of drones therein will be developing, but won’t ripen into active claims of war crimes, and so on, at least ones that have teeth, until the Obama administration leaves office.  Like many of the Bush-era legal tools in counterterrorism, my guess is that the Obama administration will rely on them in point of fact – but not legally defend them in ways that leave them plainly and cleanly available to the next president or future administrations.