Archive | International Human Rights Law

The Law and Politics of US Intervention in Libya

A few days ago, I asked the question (over at the international law blog Opinio Juris), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)?  The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond. (You should also check out Jack Goldsmith’s discussion of US domestic law relevant to intervention at Lawfare.)

I.  Intra-USG Politics

So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero.  Since that almost certainly mirrors US public opinion, that is not a surprise.

But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates).  I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties – including, interestingly, even if blessed by the Security Council – is prudentially a terrible idea.    The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements. (But maybe this is changing and the administration is swinging round to support a no-fly zone, [...]

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HRW Defends Shawan Jabarin

Last week, I noted that Human Rights Watch had appointed Shawan Jabarin to its Middle East Advisory Board. Jabarin runs a Palestinian human rights NGO based in the West Bank. He also has been found in a series of Israeli Supreme Court opinions to secretly lead a double life as a top official of the Palestinian terrorist group, the Popular Front for the Liberation of Palestine.

Iain Levine of Human Rights Watch responds to the criticism here. (I find it interesting that HRW has decided to let Mr. Levine speak for the M.E. division; I think their p.r. people have realized that Ken Roth and M.E. director Sarah Leah Whitson are so hostile to Israel that they just add fuel to the fire whenever a controversy erupts). The thrust of his remarks is that HRW chose to disregard the Israeli Supreme Court opinions because they were based on secret evidence. (Since when is “secret” a synonym for “baseless?”)

Critic Stuart Robinowitz, who has longstanding ties to HRW, responds to Levine here. Robinowitz points out that Whitson and Roth, when recommending Jabarin to the HRW board of directors, asserted that he had discontinued his ties to the PFLP more than twenty-five years ago. Whitson and Roth failed to even mention the Israeli Supreme Court’s findings to the contrary.

Robinowitz concludes: “In 2006, Jordan barred [Jabarin] entry for security reasons. Do staff members of HRW have more reliable information about Jabarin than the supreme court and security services of Jordan and Israel?”

Understating matters considerably, Robinowitz told the Jerusalem Post that “the Jabarin incident, I believe, is part of a pattern of conduct that casts doubt about Mr. Roth’s and Ms. Whitson’s ability to deal with matters affecting Israel in a balanced and objective manner.”

[The comments section on the [...]

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Human Rights Watch Appoints Terrorist (and “Human Rights Activist”) to Middle East Advisory Board

You can’t make this stuff up.

Daily Beast:

The man at the center of the dispute, Shawan Jabarin, runs the human rights organization Al Haq in Ramallah on the occupied West Bank. In 1985 he belonged to a Birzeit University student group associated with the PFLP, indicted as a terror group, by 30 countries including the U.S., the European Union, and Canada. He was convicted of recruiting members for terrorist training outside Israel and served nine months of a 24-month jail sentence….

In its 2007 judgment, the [Israeli] Supreme Court found that alongside activity in [peaceful NGO] Al Haq, Jabarin was also a senior figure in the Popular Front terrorist organization: “This petitioner is apparently active as a Dr. Jekyll and Mr. Hyde. In part of his activities, he is the director of a human rights organization, and in another part he is an activist in a terrorist organization.”

Ken Roth, head of HRW, first denied that Jabarin was ever a member of PFLP, then claimed that if he was, it was ancient history, and then added that he had no such affiliation since he joined Al Haq in 1987, though Roth refused to comment on the Israeli Supreme Court ruling to the contrary.

HRW, of course, rests much of its criticism of Israel on “international law,” or at least its dubious interpretation thereof and of the relevant facts. Let’s note, meanwhile, that terrorist bombings of the sort that the PFLP has been guilty of for decades are against international law.
Where does that leave HRW’s vaunted concern for international law?

H/T: NGO Monitor

UPDATE: I’m not sure how to make this clearer, but given the initial comments let me reiterate that the Israeli Supreme Court found in 2007 that Jabarin was, at that time, a senior [...]

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The Ethics of Global Philanthropy

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. [...]

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Frank Dikötter on Mao’s Mass Murders

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

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UN General Assembly Committee Passes New Version of Resolution Urging Nations to Forbid Defamation of Religion

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 [...]

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Did Joseph Stalin Commit Genocide?

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 [...]

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Where Jus in Bello and Jus ad Bellum Come Together, or, ‘This Time of Damned Algebra’

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

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A Tribute to Louis Henkin from Harold Koh

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. [...]

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Samuel Moyn on the History of the Human Rights Movement

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

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New Twists in Chevron Ecuador Case and Charges of Collusion

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 [...]

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Excellent Review of Todd Zywicki’s and Max Stearns New Book on Public Choice and the Law

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. [...]

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The ICC and Crime of Aggression

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. [...]

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My House Testimony in “Drones II”

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.

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