Kapur’s post acknowledges that “trials are inherently flawed as a process to achieve the noble purposes ascribed to the ICJ project.”  She nonetheless insists that justice “must surely include, if not focus on, justice for the wronged parties, the victims, and the society that must build peace and reconciliation.”  This statement is open to varying interpretations, but to sharpen the discussion, I will provisionally interpret it to make two typical assertions with which I take issue:  first, that an authoritative condemnation of perpetrators is an essential element of post-conflict efforts to reaffirm the dignity of victims; and second, that peace and reconciliation are necessarily predicated on – and therefore, perhaps, should be held hostage to – the authoritative triumph of a particular moral judgment about the acts of conflict participants. 

If one has in one’s mind’s eye morally unambiguous conflicts, where one side used atrocious means in the service of a manifestly evil end, both of these assertions seem plausible.  Insofar as the ICL project limits its ambitions to such circumstances – and there are enough of these to keep us busy – it has my full support.  But many armed conflicts involve, on one or both sides, informed persons of good faith and sound reason who endorse the use of ruthless methods for what they regard as an indispensable greater good.  Ruthless acts have often been committed, not because of a “culture of impunity,” but because actors (and their constituencies) believed, non-pathologically, that presumptively wrongful acts were justified in the effort to avert what they regarded as a morally worse overall outcome.  (I regard the Israeli-Palestinian conflict as quintessential in this regard, but even the question of which conflicts fall into this category turns on one’s political attitudes.)

 Among the conclusions that follow from this observation is that the potential target list for the ICL project is too rich.  The problem is not simply the danger that the typically-hoped-for expansion of domestic-court invocation of universal jurisdiction will produce frivolous prosecutions or legally unjustified convictions.  Fully sound cases could, in principle, be brought against a very wide range of actors, and yet in practice, prosecutions will almost always be reserved for the politically unpopular and strategically uninfluential. 

I am thus unconvinced by Kapur’s reassurance that “the likelihood of ‘partisan festivals’ is lowered by a greater commitment to neutrality, as expressed through procedural fairness.”  I am not sure to whose “commitment to neutrality” Kapur is referring (apart from the ICC, where the cautious institutional design appears likely to preclude all but the most unambiguous cases), but a commitment to “procedural fairness” implies nothing at all about political neutrality in the exercise of prosecutorial discretion, nor anything about neutrality in application of law to fact as between cases involving favored and disfavored political causes.  Worse, “procedural fairness” sometimes appears to be defined narrowly enough to allow its coexistence with dubious substantive doctrinal innovations, such as “in dubio pro humanitate” and extended conceptions of complicity and “joint criminal enterprise.” 

 None of this is very troubling in respect of the limited range of uncontroversially atrocious cases to which extraterritorial prosecutions have up to now, for the most part, been limited.  But extreme cases, from Nuremberg and Eichmann onward, have tended to generate exuberant dicta that will be turn out to be regrettable if applied in contexts that are sites of serious moral and political contestation.

 Kapur observes that “it is possible that the ICC’s creation, operation and complementarity regime has precipitated, or will precipitate, a decline in the exercise of universal jurisdiction.”  I regard this eventuality as devoutly to be wished, and my support for the ICC is partly predicated on that scenario.  Similarly, it may be that predictably ill-fated initial moves against officials of influential states will prompt more and more states to limit their courts’ capacity to exercise extraterritorial penal jurisdiction altogether, and this possibility may underlie Kapur’s sense of the “unlikelihood” of manipulative extraterritorial prosecutions.  But ICL enthusiasts typically hope for contrary trends, and it is that hope with which I take issue.

 Similarly, Kapur notes that “perhaps the likelihood of a joint enterprise outside established norms has diminished in the unsettled dust of Operation Iraqi Freedom.“  But this welcome brake on improvisation in the use of force is a product, not of normative development, but of policy failure.  More interesting is the consequence for legal constraint of saying about the Kosovo campaign, as Kapur does, that “the use of force itself was qualified as legitimate by jurists and practitioners alike, despite its blatant illegality.”  As I warned at the time, a claim for legitimacy of a particular breach of an existing legal norm needs to be carefully crafted to avoid implying the legitimacy of breaching legal constraint wherever “justice” so demands.  Support for the Kosovo campaign ended up undermining opposition to the Iraq campaign because the take-away message was not that a narrow exception must be designed to avert widely anticipated and imminent humanitarian catastrophe, but that “the law is an ass,” and should not be allowed to get in the way of doing the right thing (as perceived by the strong).

 Kapur maintains that “[a] fair evaluation of the trend towards humanitarian intervention must be anchored in an appreciation of the previously impermeable norm of non‑intervention.”  By this she evidently does not mean a normative appreciation, since she speaks of the forces for humanitarian intervention having “yet to overcome the hypocrisy of the international legal order.” Yet it is states – and above all, the powerful states to whom advocates of intervention look to impose solutions – that are hypocritical, whereas international law’s  recalcitrance derives from the understandable distrust prevalent among the international system’s weaker elements.

 One problem with the rhetoric of “Responsibility to Protect” is that it conveys a misimpression of the role that international law plays in humanitarian intervention. (For reasons to prefer the older rhetorical framework, see  Jose Alvarez, Notes from the President: The Schizophrenias of R2P, 23:3 ASIL Newsletter (2007))  International law can license intervention by willing and able powers; bringing about the intervention is a matter of political will of interested states – and indeed, not meaningfully a matter of legal obligation.  Even if what is needed in the world is more intervention rather than less, licensing intervention more broadly (as by allowing circumvention of the Security Council) does not equate to increasing the amount of the right intervention in the right places.

 One might imagine, from some of the literature disparaging the non-intervention norm, that the legal prerogatives of weak states constitute the great impediment to the betterment of the human condition, that wealthy and powerful states are chomping at the bit to bestow beneficence, but frustrated by legal constraint.  There is, I submit, extraordinarily little reason to believe this.  The true lesson of Rwanda is that where the only interests in play are humanitarian ones, and where interveners figure to incur significant costs in blood or treasure, it is hard to get anyone to sign up.  On the other hand, slogans such as “No More Halabjas” are convenient for a self-interested intervener (never mind if the atrocity had occurred fifteen years earlier, when one’s own state had deliberately turned a blind eye).

 As noted above, I do not mean to make Kapur the target of the above critique, and indeed, am unsure of where she stands on the contentious matters discussed above.  Nor do I mean to be an alarmist about concrete trends in either ICL or humanitarian intervention.  As Kapur suggests, expansive theoretical designs face formidable obstacles in practice.  I would only add, “and a good thing, too.”  Whether this reaction makes me as much of a radical as Anderson (flatteringly) suggests, I leave to others to assess.

Brad Roth is Associate Professor of Poitical Science at Wayne State University. He specializes in political and legal theory, American and comparative public law, and international law. In this post, he reflects on an EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” by Professor Kenneth Anderson published in one of EJIL’s Twentieth Anniversary Special Issues.

 In “The Rise of International Criminal Law: Intended and Unintended Consequences,” 20 Euro. J. Int’l L. 331 (2009), Kenneth Anderson surveys potential indirect effects of ICL “as social practice” on other areas of international law and international organization.  By no means does Anderson launch a frontal assault on ICL, nor does he disparage any of its concrete accomplishments; indeed, he characterizes ICL “as perhaps the signal achievement in public international law since 1990 and the end of the Cold War.”  Nonetheless, the article manifests a sense of unease about various aspects of ICL’s rise to prominence, and that alone is likely to raise eyebrows, given the reverential tone that more ordinarily marks legal scholars’ accounts of the project.

Anderson’s many observations encompass a broad range of subjects, and do not admit of a ready summary.  Running through the discussion, however, is a concern that the cart has been placed before the horse, that the institutions of international criminal justice have an uncertain practical B and moral B significance in the absence of an international community that is ready, willing, and able to respond forcibly to ongoing atrocities.  Nuremberg, Anderson reminds us (at 335), “was a lovely hood ornament on the ungainly vehicle that liberated Western Europe, but it was not a substitute for D-day.”

Indeed, what is most distinctive in Anderson’s discussion is his characterization of the relationship between jus in bello and jus ad bellum.  In particular, he insists that the right to administer universal justice is earned, not through neutrality, but through partisanship.  Whereas many other commentators have viewed “victor’s justice” with unease, suspicion, or lamentation, Anderson contends that it is uniquely the victorious struggle over the atrocity-committing enemy that confers moral standing to administer penal justice.  By contrast, in the former Yugoslavia a decade and a half ago and in Darfur now, international actors have sought – discreditably, if understandably – to establish mechanisms for prosecuting crimes post hoc while shirking the moral duty to undertake a war to stop the perpetrators in real time.

 The international peace and security order’s failure to accomplish what ICL establishes to be imperative constitutes, for Anderson, both a moral failure and an unbearable jurisprudential tension.  Ultimately, Anderson implies, that tension will be resolved by reform to the peace and security order, presumably (though he does not specify) through the circumvention of Security Council obstructionists.  That logic is foreshadowed in W. Michael Reisman’s extraordinary 2000 EJIL article, “Unilateral Actions and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention,” 11 Euro. J. Intl L. 3, 15 (2000); in Reisman’s words: “as the norms in question – international human rights norms – derive from a broader decision process than the body assigned to enforce those norms, the broader decision process sustains the norms and seeks alternative modes of enforcement.”

 Anderson’s observation is trenchant.  There is an inherent tension between the spirit of the ICL project, which cannot abide impunity, and the present international law of peace and security, which effectively demands that impunity be abided in the absence of an extraordinary political consensus. 

 The natural resolution of that tension, however, should be cause for trepidation.  The danger is not that humanitarian interventions lacking a Security Council mandate will find validation in an emergent legal doctrine; indeed, I have advocated this (even if more guardedly than some exponents of the “Responsibility to Protect” might prefer).  The danger is that the spirit of the ICL project portends a justification of the exception that will fatally undermine the rule. 

 The post-World War II order, as constructively amended in the era of decolonialization, established the priority of peace and respectful cooperation among juridically equal states; the ethos was one of ideological pluralism and forbearance, qualified only by a Security Council mechanism requiring an extraordinary cross-cutting consensus.  That the system leaves unredressed all but the most extraordinary injustices occurring within state boundaries is not a aberrant consequence; the system, mindful that great-power predation has typically flown the flag of righteousness, prioritizes the impeding of impositions.

Proposed doctrines of humanitarian intervention ordinarily seek to cover the extreme case while leaving the basic premise of non-intervention intact.  They seek to avert impending humanitarian catastrophe (which often can be perceived in common from a broad range of ideological and cultural perspectives), not to authorize forcible recourse against wrongdoing as such.

If ICL comes to be perceived as displacing the U.N. Charter’s peace and security scheme as the centerpiece of international order, the genie of empowered moralism will be let out of the bottle of legal constraint.  The danger arises less from developments of actual legal doctrine – and all the less still from the actual, quite modest exertions of international tribunals – than from what Anderson appropriately calls ICL “as social practice,” including the ever more conspicuous brandishing of universal jurisdiction.  As slogans such as “an end to impunity” and “no safe havens” become prevalent in the rhetoric of international law advocates, accommodation and restraint inevitably become cast as vices rather than virtues, to the detriment of the international legal order’s most practicable mission.

As I argue in a forthcoming article, a legal attribution of criminality to adverse regimes will tend to present international institutions with enforcement demands that such institutions, dependent on consensus among non-like-minded states, characteristically cannot fulfill.  At this fork in the road, where the international legal order’s procedural strictures are perceived to frustrate that same order’s imperative substantive ends, violations of use-of-force norms can be rationalized as implementing the true spirit of international law.  Paradoxically, instead of furthering its presumed mission of furthering accountability in the exercise of power, ICL may end up furnishing a rationale to disparage and to flout those international institutions and processes that are designed to hold powerful states accountable. (Several months ago, Anderson did me the great honor of highlighting my arguments in a blog post.)

 I am thus in conceptual agreement, of a sort, with Anderson, even while I am in normative agreement with Amrita Kapur’s recently published “Reply to Ken Anderson,” 20 Euro. J. Intl L. 1031 (2009) .  Anderson believes that the increased demand for  international criminal justice must lead to victor’s justice as a moral matter, whereas I fear that it can lead nowhere else as a practical matter. 

Kapur wraps up her otherwise-excellent critique of Anderson’s embrace of victor’s justice with this assertion (at 1040):

Anderson is convinced that unless “an army sits atop its vanquished enemy” (at 337) the enormity of the crimes left unaddressed by courts mocks justice.  This is precisely the point: the courtroom will always be an inappropriate and inadequate tool to reveal the enormity of the crimes.  Justice (meaning criminal justice) is not a process designed to produce the most comprehensive and accurate version of the wrongs committed – its purpose is to attribute responsibility to a particular individual for specifically articulated acts on the basis of admitted evidence.

This misses both Anderson’s point and mine.  Anderson’s concern is not that the courtroom fails to reveal the enormity of the crimes, but that it fails to redress the enormity that it reveals, and in so failing, exposes as feckless and hypocritical the legal order within which the trials are embedded.  Mine is that international criminal justice’s true purpose – both for better and for worse – is precisely not “to attribute responsibility to a particular individual for specifically articulated acts on the basis of admitted evidence,” but something far grander and more didactic.  (See, e.g., Payam Akhavan, “Can International Criminal Justice Prevent Future Atrocities?” 95 Am. J. Intl L. 7 (2001). 

 Whether or not they risk degenerating into show trials, ICL trials are, by their very nature, morality plays.  Where the moral lesson involves represents a genuine consensus – or more to the point, an insistent near-consensus – of the international community as a whole, such trials may be salutary (as I believe they have been in making “ethnic cleansing” a globally recognizable term of opprobrium).  However, where extraterritorial jurisdiction is vested in the national courts of 190-odd states, ICL has all too great a potential to lend itself to partisan festivals of self-righteousness. 

As Kapur eloquently puts it (at 1040), a “’seal of justice’ that merely vindicates victors’ actions through a wholesale condemnation of the vanquished party’s wrongs, does not provide meaningful truth or justice.”  She might have added, though, that ICL disperses to national courts the resources for just such a wholesale condemnation, which may be used retrospectively to discredit those who had previously advocated peace or restraint, and which may be used prospectively to place a not-yet-vanquished state in the cross-hairs. 

Anderson and I perceive the same tensions within the ICL project, though we would wish to see them resolved in opposite ways.  Meanwhile, although Kapur and I embrace the same normative principles, we disagree (it seems) about whether the ICL project can remain faithful to those principles if, in its continuing expansion, it comes to be seen as at the core – rather than (more properly, in my view) at the periphery – of the international legal enterprise.

As, Doug Cassel’s ASIL Insights analysis notes, “Ordinarily international law imposes its own, autonomous norms for the permissible conduct of a government.  Questions of domestic law – including constitutionality – are left to domestic authorities, both as a matter of their sovereign entitlements, and because they are presumed better able to interpret their own constitution.”  The two reasons that Cassel cites are distinct:  the latter is a matter of respect for a foreign pouvoir constitué, on the ground that standards of legal interpretation are themselves a matter of local law; the former is a matter of respect for a foreign pouvoir constituant, on the ground that where permanently effective, breaches of constitutional order (whether by insurrection or by an existing regime’s pattern of practice) beget their own legality.  For foreign courts, both of these are ordinarily rationales, not for a mere “margin of appreciation,” but for judicial abstention.

However, it is not unknown for international legal questions to turn on a finding about compliance with domestic law, such as where treaty provisions provide that exceptions to specified human rights must be, inter alia, “non-arbitrary” and delineated in domestic law.  In such circumstances, assessing a claim of  violation requires an independent basis for ascertaining the requirements of domestic law.   The criteria for establishing a violation might be relatively deferential, yielding to plausible claims of local expertise in interpreting local norms; interpretation of legal (including especially constitutional) norms depends on all manner of historical, ideological, political, linguistic, and jurisprudential idiosyncracies, and a high court’s authority to say what is lawful counts for much, even in the face of text apparently to the contrary.  Still, one cannot exclude a second-guessing of local judicial authorities on the merits, especially in cases where courts are suspected of participating in a sham.

As Cassel points out, “In order to create a collective regional safeguard for democracy in each country, [the Inter-American Democratic Charter] sets international standards which demand (among other things) that each nation comply with its own constitution.”  This much is established:  a state’s compliance with the IADC, and thus, at minimum, with OAS terms for participation, turns on a determination about compliance with domestic law.  Compliance with the IADC and domestic law may also bear on the state’s fulfillment of the requirements of the right to political participation under Article 23 of the American Convention on Human Rights.

But default in these respects, without more, would not have the legal consequence of making Honduras susceptible to coercive measures that would otherwise constitute unlawful intervention (putting aside, for the moment, the question of what might count as a legally appropriate countermeasure).  The crucial question is whether a de jure government could “consent” on the state’s behalf to such coercive measures directed against the de facto government.  This would be the upshot of a finding, not only that the constitution has been breached, but that the breaching act is consequently null and void, and that the displaced government remains the state’s agent for purposes of international law.  When states proclaim that they continue to “recognize” the Zelaya government, is this what they are saying?

Here, I contend, the case has not been well made, as a matter of either lex lata or lex ferenda.  Apart from the lack of a clear basis for this outcome in the IADC and the OAS Charter, Articles 2(1), 2(4), and 2(7) of the UN Charter, in conjunction with Article 103, may constrain an existing government’s capacity to render advance consent to otherwise-unlawful foreign interference in internal affairs, at the expense even of a future government that breaches the state’s international legal obligations.  The one well-discussed example of such an agreement, the Treaty of Guarantee that attended Cypriot independence, has always been controversial in this regard (quite apart from Turkey’s invocation of the treaty in 1974 to rationalize acts incompatible with the treaty’s terms).  Furthermore, there would be little question about the invalidity of a pact among authoritarian states to take coercive action to restore authoritarian rule wherever it might be ousted (essentially, the Brezhnev Doctrine).  Only a full-fledged international “right to democratic governance” could validate an agreement licensing intervention, and it is hard to believe that the unanimous assent to UNGA Resolution 63/301 (2009) represents the opinio juris to this effect of Cuba – one of the resolution’s sponsors – let alone of Russia, China, Saudi Arabia, Myanmar, and so on.  (The resolution calls on states to “recognize no Government other than that of the Constitutional President,” which might refer to the withholding of political affirmation, as distinguished from a legal determination that Zelaya’s government, and no other, has standing to assert Honduras’s sovereign rights in the international order.)

Ironically, President Zelaya’s own political agenda is incompatible with constitutional legitimism; many of the same external legal analysts who find his ouster to violate the Honduran Constitution condemn as unconstitutional his own efforts to revise the Constitution, and even find those efforts to be a basis for removing him (albeit in a more orderly manner) from office.  (Contrary to skewed accounts traceable to his opponents’ rationalizations of the coup, the planned poll on establishing a constitutional assembly would in no event have led to Zelaya’s continuation in office beyond his current term, and specific revision proposals focused on constitutionalizing labor rights and public control of the telecom and power industries.)  Even more ironically, Zelaya’s strongest international backers – Presidents Hugo Chavez of Venezuela and Daniel Ortega of Nicaragua – have repeatedly faced objections to the constitutional propriety of their modes of governance.  Venezuela’s 1999 constitutional revision, though accomplished with strong popular support, was accompanied by significant breaches of the then-existing constitutional order – whether for worse or, quite possibly, for better.

Cassel states, “To the extent that democracy depends on constitutionalism, this incorporation of domestic law into international law is unavoidable.” But constitutionalism depends on many things besides adherence to any particular constitutional norm or even whole constitution.  It is hard to see why particular constitutional orders that are plausibly flawed, whether as perceived from the left or from the right, should have a claim to international reinforcement (especially where, as in Honduras, they limit popular participation in the process of constitutional revision).

Moreover, democracy depends on many things besides constitutionalism.  While democratic practice cannot be sustained for any length of time without a constitutionalist ethos – a commitment to establish, maintain, and respect a broadly acknowledged framework for the legitimate exercise of power – it does not follow that all departures from that ethos are inimical to democracy.  From a left-wing perspective, in conditions of extreme economic disparity and social stratification, liberal-democratic constitutional forms are consistent with a substantive political inequality that belies the “democratic” imprimatur; in the face of concentrations of economic and social power, a concentration of political power may be necessary to change the game.  From a right-wing or even a centrist perspective, there are different conditions that may justify exceptional appropriations of power.  Where such assertions are facially plausible and are embraced by substantial constituencies, the words “essentially within the domestic jurisdiction” express the principle of sovereign equality so central to the international legal order that we have lately known.

Constitutional legitimism is not a new idea.  In 1907 and 1923, Central American countries concluded agreements embodying the so-called Tobar Doctrine, which called for collective non-recognition of the outcomes of unconstitutional seizures of power.  This doctrine served less to safeguard manifestations of popular will than to secure the power of a transnational club of ruling elites, backed by the regional hegemon; the outcome was to facilitate the demise of governments uncongenial to the U.S.  (A 1927 State Department memo put the point bluntly: “Until now Central America has always understood that governments which we recognize and support stay in power, while those we do not recognize and support fall.”)  By the early 1930s, the Montevideo Convention on the Rights and Duties of States had marked Latin America’s embrace of the non-intervention norm, and the Tobar Doctrine was supplanted by the effective control-oriented Estrada Doctrine.

Remarkably, the anti-interventionist impulse in Latin America – associated predominantly, of course, with left-wing politics – has here given way to the demand to restore a left-leaning populist head of state who has been ousted by the military with the support of the conservative political and legal establishment.  Politically speaking, this is less anomalous than it appears, as Latin Americans have often regarded military coups as indirect manifestations of U.S. domination.  Notwithstanding the Obama Administration’s stated opposition to the Honduran coup (in stark contrast to the Bush Administration’s initial embrace of the abortive 2002 Venezuelan putsch against Hugo Chavez), doubts about the depth of the U.S. commitment to Zelaya’s restoration remain.  The Honduran military has long enjoyed a close relationship with the U.S., most notoriously during its “dirty war” in the 1980s against insurgents and suspected subversives.  There is no political inconsistency in anti-imperialists calling for intervention against a regime that they associate, in political and ideological terms, with the ills of imperialism.

International legal norms, however, cannot be sensitive to such considerations.  Their political value stems precisely from their transcendence of partisanship in the individual case.  If one’s invocation of legal propriety is to be taken seriously – thereby to garner support from bearers of opposing interests and values who nonetheless share a stake in the international rule of law – one must be prepared to stand up for the legal rights of the “bad guys,” as well.

Of course, heads of state around the world likely recoil at the sight of their Honduran counterpart being rousted out of bed and dragged off to exile in his pajamas.  More seriously, there is much to be said for bringing external political pressure against militaries that intervene in political processes.  But the Honduran coup’s strongest opponents – those who support Zelaya on the political merits – should, on reflection, be precisely the ones to affirm limitations on the legally permissible extent of such pressure.  A response that licenses presumptively unlawful interferences in internal affairs threatens, in the longer run, to undermine the legal position of forces for social change.

A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

The primary inspiration for my mid-to-late 1990s book project was the international repudiation of the 1991 overthrow of Haitian President Jean-Bertrand Aristide, followed by a similar reaction to the 1997 ouster of Sierra Leonean President Ahmad Tejan Kabbah.  These international responses went far beyond a denial of “recognition,” in the diplomatic sense in which that term was ordinarily understood.  Rather, the authority of the de facto regime was asserted to be null and void for purposes of international law, including for purposes of asserting the state’s theretofore supposedly “inalienable” right against forcible intervention.  These events were accompanied by a growing scholarly literature, pioneered by Thomas M. Franck and Gregory H. Fox, on an “emerging right to democratic governance” in international law, as well as bolder suggestions by others, such as W.  Michael Reisman, that pro-democratic armed intervention could be reconciled with emergent understandings of the international peace and security order.

The mission of my book was largely to resist an overreading of events of the 1990s:  to assert that while much had changed, even more had thus far remained the same, and that the reactions to the Haitian and Sierra Leonean crises, dramatic though they were, represented incremental rather than radical change.  “Effective control through internal processes” remained the presumptive criterion of the legal standing of a governmental apparatus, by virtue of being the presumptive application of the principle of popular sovereignty in the absence of objective indicators and processes for associating a deposed government with popular will.  Exceptions arose where the vast diversity of international actors, cutting across the international system’s plurality of interests and values, could perceive in common a population’s manifest will to restore an ousted government.  The circumstances surrounding the Haiti and Sierra Leone coups – including but not limited to landslide victories of the ousted Presidents in very recent, internationally-monitored elections – suggested little ambiguity in this respect.  Other coups may be disfavored politically, or even regarded as breaches of binding international commitments, but it would not follow that they would be ineffective in establishing a regime’s standing to exercise the state’s sovereign rights in the international order.  Reactions to other coups in the mean time (including, ironically, the 2004 ouster of Haiti’s Aristide) have not given cause to revise this conclusion.

The Honduran situation, however, is much harder to contain within this framework. While the position that the international community uniformly taken toward the crisis might be rationalized as an unusually robust interpretation of the rule against “premature” recognition of an internally-contested change of government — a rule predicated on the non-intervention norm – the accompanying rhetoric of the international community, including a unanimous UN General Assembly demand for Zelaya’s restoration, contradicts that interpretation.  Meanwhile, the case for continued recognition of Zelaya, as well summarized in Doug Cassel’s ASIL Insight, rests exclusively on an interpretation of the Honduran Constitution that, however well grounded in the text, has been overwhelmingly rejected by established Honduran judicial and legislative institutions.  Far from being manifestly the people’s choice, Zelaya is a narrowly elected President nearing the end of his term, disowned by his own political party, and increasingly given to polarizing and apparently unconstitutional measures (whether for worse or, as I happen to think, for better); Honduran society is manifestly divided, with a CID-Gallup poll showing, not implausibly, 46% opposed to the coup versus 41% in favor.

There has been a substantial amount of debate among commentators about whether the Honduran Supreme Court and Congress have the authority that they have claimed under the Honduran Constitution (raggedly translated to English here) to provide an imprimatur for the Honduran military’s action against Zelaya.  While it would seem strange for outsiders to second-guess even a counterintuitive Supreme Court constitutional interpretation (Bush v. Gore cannot but come to mind), let alone a unanimous one, it is certainly not implausible here to regard the court as both a partisan political player and a malefactor.  (Larry Birns, director of the Washington-based Council on Hemispheric Affairs, has characterized the Honduran Supreme Court as “one of the most corrupt institutions in Latin America.”)

But the real question, from the standpoint of international law, is whether this controversy represents, at some level, a “matter essentially within the domestic jurisdiction” under Article 2(7) of the U.N. Charter and related norms of non-intervention in internal affairs.  Indeed, it is hardly an exaggeration to say that if internal actors do not retain the last word on such a matter, the whole idea of a “matter essentially within the domestic jurisdiction” is now a nullity (and, many would say, a good riddance).

Herein lies a subtle, but crucial, distinction:  States may undertake international legal obligations in respect of any subject matter whatever, but doing so does not, in itself, render breaching acts legally null and void.  To be sure, contrary domestic law is not a defense to a breach of international legal obligation, but it does not automatically follow that the international order can ignore all legal facts that the breaching act purports to establish, especially as they pertain to public order within the state’s territory.  (For example, foreign states generally lack jurisdiction to enforce even a binding and applicable international legal norm within the territory of a fellow sovereign state, even where the latter’s cooperation is unlawfully withheld, and state officials acting within national territory are ordinarily immune ratione materiae for their participation in acts of state that breach international obligations.)  International law contains no analogue to the U.S. Constitution’s Supremacy Clause; the relationship of Honduras to the international or the regional order cannot be analogized to that of Michigan to the U.S. federal government.

The basis for action against the Honduran de facto regime is the 2001 Inter-American Democratic Charter, a declaration that, as Cassel has pointed out, can be regarded under Article 31(3)(a) of the Vienna Convention on the Law of Treaties as an authoritative interpretation of the Charter of the Organization of American States (OAS).  The issue, though, is not the Charter’s authoritativeness, but its legal implications.

The only legal consequence that the IADC expressly specifies for “an unconstitutional alteration of the constitutional regime” is the suspension of a state’s right to participate in the Organization.  International law certainly poses no impediment to measures of this nature; international organizations have every right to establish themselves as exclusive clubs of similarly-governed countries. What is unclear from the IADC is what further measures might be contemplated as consistent with the OAS Charter and with general international law.  Interestingly, when the de facto regime sought to pre-empt suspension by withdrawing Honduras from the Organization, OAS Assistant Secretary General Albert R. Ramdin responded that “The current regime is not recognized as the legitimate government of Honduras.  And so only a legitimate government can withdraw from the organization.”  That approach hints at (though it is by no means conclusive of) a larger set of legal consequences.

It is one thing for the OAS to suspend “Honduras”; it is quite another thing for states and international organizations to acknowledge a government-in-exile as the authentic representative of Honduran sovereignty.  The OAS Charter, even read in light of the IADC and related declarations, contains no language that would seem to authorize this, and much language that represents a conflicting norm.

Brazil’s foreign minister, Celso Amorim, has been quoted as asking:. “If the OAS doesn’t work to give guarantees to a democratically elected government, in the case of a coup like this, then what is the OAS for?”  But such guarantees are, in many ways, quite foreign to the OAS scheme.  Under Article 3 of the OAS Charter, “International order consists essentially of respect for the personality, sovereignty, and independence of States, and the faithful fulfillment of obligations derived from treaties and other sources of international law”; “Every State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it, and has the duty to abstain from intervening in the affairs of another State.” These points are reiterated elsewhere in the Charter to the point of redundancy.  Although the Charter anticipates “measures adopted for the maintenance of peace and security in accordance with existing treaties,” (art. 23), the non-intervention norm otherwise prevails in the face of “any reason whatever,” and applies “not only [to] armed force but also [to] any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements” (art. 19).  Of course, one can read such instruments creatively to identify the authentic will of the state with the juridically valid outcome of the state’s constitutional processes, and thus to regard external measures in support of that outcome as something other than “intervention” or “interference,” but that is hardly an intuitive reading, especially in light of Latin American history.

Constitutions do not constitute states, but rather presuppose them; what constitutions “constitute” are the governmental apparatuses that act in the name of states.  When, as frequently occurs, a state’s constitutional order is swept away, the state’s international legal personality remains unaltered, as do its existing international obligations.  The international legal order as we have known it – as reflected in the language of such documents as the OAS Charter, the 1970 UN Friendly Relations Declaration, and the ICJ Nicaragua decision – is properly understood, not as a legal order of legal orders, but as a legal order of sovereign political communities that each bear an “inalienable” pouvoir constituant.  That pouvoir constituant logically includes an authority (insofar as its exercise is deemed authentically attributable to its bearer) to overthrow any existing domestic order by any means.

Of course, there is nothing to prevent international law from developing in a different direction, and that development may indeed be at hand.  In a follow-up post, I will suggest that such a development is less appealing than at first it may appear – least of all, paradoxically, from the standpoint of the very forces most vociferously demanding international action to return President Zelaya to office.

There is, however, a flip side to the observation that the legal structure and political culture of the United States do not place breaches of international legal obligation altogether beyond the scope of domestic legal authority or policy consideration. In retrospectively judging the conduct of the memos’ authors – the subject of the still-withheld report of the Justice Department’s Office of Professional Responsibility, and of potential criminal investigations (in the U.S. and abroad) – one must apply standards in effect at the time and in the specific institutional setting of the activity, however much one may wish to reform those standards prospectively. And here, the case is likely to be closer than is generally imagined, and dependent on more fine-grained assessments than even most legal scholars have appreciated.

As Wendel has elsewhere acknowledged, much of the adverse reaction to the memos stems from revulsion toward very idea of a legalistic rendering of such a morally-charged subject matter. What so many observers find malodorous about the memos is that they seek at all to specify the threshold of criminal liability – especially, with respect to the penal statute implementing the Torture Convention, the line between torture and cruel, inhuman, and degrading treatment. I have attended fora of legal scholars at which the memos have been condemned as embodying the evils of “positivism.” This charge is understandable, given that even the most rigorous and accurate analysis of this distinction is inevitably a disgusting spectacle. But such a charge can only hearten the memos’ authors and their defenders, since it places them comfortably on the traditionalist side of a perennial debate, and deflects attention from the memos’ distortions of positive law.

Jeremy Waldron offers a more sophisticated repudiation of the memos’ nominal task. He suggests that identifying the boundary line was not a “legally reputable enterprise,” because doing so was a knowing invitation to interrogators to violate the non-penal international standard right up to the border of the penal standard. This is a fair characterization of the actual event, and where lawyers know that legitimate work product will be put to illegitimate purposes, conscientious refusal is, at minimum, the preferable course of action. At the very least, as my previous post asserted, lawyers should point out, as often as necessary to be sure that the point does not elude the client’s consciousness, that even a non-penal violation of international law is a serious breach of legality (notwithstanding that the Supreme Court’s language in Medellin v. Texas (2008), 128 S. Ct. 1346 at 1369, casts doubt on whether non-self-executing treaties fall within the President’s constitutional duty of faithful execution of the laws, and that U.S. courts have acknowledged Presidential authority to act in breach of customary international legal obligations). Yet it is difficult to see an argument for holding lawyers legally culpable if all they did was to provide clients with an objective and competent judgment about the boundaries of the criminal law.

Of course, the main contentions are that the memos were neither objective nor competent. Wendel has stated, in a journalistic setting, that John Yoo “gave the President of the United States the equivalent of a law student’s C-minus exam answer instead of careful, impartial legal advice.” Less colorfully, but even more damningly, Wendel has endorsed the conclusion ”that the legal analysis produced by the OLC in the Bush Administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subject to prosecution for human-rights violation.”

I do not necessarily reject these conclusions (I have in the past given only a slightly more generous account), but I am concerned not to be too quick to endorse them. It is easy to assume that they are true because, in some sense, they ought to be true: the positive law of the United States should have left no space for impunity for the measures being rationalized, so that such space could only have been the invention of rogue lawyers. The realities may be less comforting.

Several of the most provocative arguments in the memos, while flawed, are not quite as far-fetched as they may seem. Even the preposterous “organ failure” standard for severity of physical pain, while indefensible in its literal terms, reflects a little-noticed reality about 18 U.S.C. §§ 2340-2340A: the standards it sets are those, not of an ordinary criminal statute, but of a universal jurisdiction statute. There is a lay sensibility that any purposive infliction of cruel, inhuman, or degrading treatment should count as torture, and indeed, there are statutory schemes within which nothing more (indeed, less) is needed to make out a crime. But if we assume arguendo that those other schemes do not apply for one or another reason, and that one is left only with 2340, the threshold for criminality will be unusually high – high enough that many of the outrageous measures will not meet it – because 2340 was primarily intended to apply to places over which the United States would not ordinarily assert jurisdiction, and to actors who would ordinarily be immune ratione materiae (as foreign state agents acting pursuant to governmental authority within their national territories). Moreover, the U.S. Torture Convention ratification instrument evinced a spirit of limitation in its attached Understanding on the meaning of “severe mental pain or suffering,” which led to a highly constrained definition of that term in 2340. And besides, the memo-writers did not turn out to be wrong in anticipating Congressional intent on the physical pain point (at least, in the post-9/11 environment), given the 2006 Military Commissions Act’s remarkable retroactive adoption of the memo’s language to limit that scheme’s definition, not only of torture, but also of cruel and inhuman treatment (and there, not even in the universal jurisdiction context).

 Where do we find a judicious framework to guide our potentially punitive assessment of the memos? The indispensable work is, yet again, that of Bradley Wendel. His 2005 Cornell Law Review article, “Legal Ethics and the Separation of Law and Morals,” brings insights from analytical jurisprudence to bear on issues of professional responsibility. Of particular interest is Wendel’s insistence on an inclusive legal positivism that requires a basis in social fact for any appeal to a morality that the law can be said to embody; the legal resolution of the case, I understand him to be saying, can turn on a moral proposition, but only when that proposition is rigorously extrapolated from a given society’s actual legal practice. A determination about the legal culpability of the memo-writers cannot ignore the presence of moral disagreement about the tactics at issue; punitive processes (unlike other processes, I would add) cannot properly operate from the premise that law is inherently incapable of acknowledging considerations in favor of harshly coercive interrogation measures. That Wendel’s theoretical sophistication has not restrained him from bold assertions reflects, perhaps, the reassuring truth that an appreciation of complexity need not entail a dampening of outrage.

Whereas Wendel’s work is primarily concerned with professional responsibility issues, Jens David Ohlin’s forthcoming Harvard International Law Journal article, “The Torture Lawyers,” focuses on criminal liability. This is an excellent piece of work on penal jurisprudence, but I am troubled by a couple of its assertions.

Ohlin believes that government lawyers can be held criminally complicit even when their advice to the principals is based on a good-faith, non-frivolous belief in the conduct’s legality: “it does not matter for the accomplice that he too thinks torture is lawful – all that matters is that he intends to assist the principal.” Ohlin cites abstract statements of complicity doctrine that, indeed, point in this direction, though case law has yet to address the central problem directly. An accomplice ordinarily must have the purpose of promoting or facilitating the offense; where the “facilitation” consists solely in communicating a good-faith, non-frivolous opinion that the conduct is lawful, the result amounts to strict penal liability for mere legal error. Perhaps there are good policy reasons for having attorneys assume the same risk as their clients, but it is hardly clear that attorneys have had fair warning of this standard. Ohlin points out that “a history of non-prosecution of lawyers (based on prosecutorial discretion) is not the same as a rule of law that lawyers are immune from the regular criminal law rules for complicity liability”; true enough, but this history does not seem irrelevant to the question, either. At any rate, the point is at least debatable.

Further, Ohlin contends (at 48) that “if the torture lawyers should have known that government agents would engage in acts of torture beyond the scope of authorization contained in the memos, they might already face liability under standard rules of accomplice liability.” That, I believe, cannot be correct. Any government lawyer in a counterinsurgent campaign knows for a fact that some substantial percentage of those he advises will commit excesses, and that inevitability cannot be allowed to taint the legal advisors. All uses of force, however legitimate, border on criminality, and all large-scale uses of force spill over that border. Ohlin’s proposition would punish the very lawyers who try to constrain that phenomenon.

The pace of scholarly writing on these topics seems to be picking up sharply. More than five years after the release of the first “torture memos,” there continues to be no dearth of fodder for controversy.

Editor’s Note: See here for a post welcoming Professor Roth

While we continue to await the long-withheld report of the U.S. Justice Department’s Office of Professsional Responsibility (OPR) on the conduct embodied in the notorious Office of Legal Counsel (OLC) “torture memoranda,” W. Bradley Wendel sorts out some of the issues in the current issue (12:1) of Legal Ethics. In “The Torture Memos and the Demands of Legality” (earlier version available on SSRN), Wendel reviews five books on the subject, including one authored by protagonist John Yoo. The result is a balanced, but ultimately pointed, account that avoids the oversimplifications that have frequently marked both criticisms and defenses of the memos’ authors.

Though reciting the usual criticisms of some of the memos’ more extravagant claims, Wendel renders a distinctive analysis of the government lawyer’s duties. Wendel concedes “that there are many different virtues of government, of which legality is only one.” He moreover allows that Attorney General Robert Jackson’s 1940 rationalizations of the Destroyers for Bases Agreement were morally necessary even though legally dubious. At least, though, “Jackson’s opinions were cautious and hedged, acknowledged limits to the power asserted by the President, and were no broader than necessary for the task at hand.” John Yoo’s position, by contrast, “really does boil down to a failure to differentiate between policy advising and legal advising. … The rule of law has no independent normative significance for Yoo.”

There are several pertinent nuances here that are worthy of further exploration. I will address one set of these now, and deal with others in a subsequent post.

Among both critics and defenders of the memos, there has been a remarkable inattention to the memos’ treatment of breaches of international human rights and humanitarian law obligations as such, as opposed to international crimes specified by treaty and reflected in domestic implementing legislation. The distinction cuts both ways. On the one hand, while many of the actions taken by both lawyers and interrogators were indefensible as a matter of morality or policy, the number that may have crossed the line into domestic or international criminality is far smaller – indeed, I would contend, far smaller than is currently comfortable to assert in human-rights-friendly company. (I have covered some aspects of these issues here  and here, though my purpose had nothing to do with exonerating these principals.) On the other hand, the violations of non-penal international norms are an enormity, and properly beyond cavil.

The most notorious of the memos, dated August 1, 2002, bore the astounding title, “Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A.” That statute has nothing remotely to do with specifying “standards of conduct,” for interrogation or anything else. It specifies a crime so heinous that presumptively-immune foreign officials can be prosecuted in U.S. courts for such acts taking place anywhere in world, without any necessary connection to the territory, nationals, or interests of the United States. Acts far short of this threshold were at that time crimes under the War Crimes Act when committed by or against U.S. nationals in any conflict covered by Common Article 3 of the Geneva Conventions. But even more importantly, conduct found to fall short of a criminality threshold is not thereby established to be lawful, let alone within the scope of an official “standard of conduct.”

The memorandum’s direct (and fully intended) implication was that the “standards of conduct for interrogation” licensed cruel, inhuman, or degrading treatment in breach of U.S. obligations under Article 16 of the Torture Convention. Similarly, memoranda tendentiously asserting the inapplicability of Common Article 3, and thus the War Crimes Act, effectively ignored or disparaged applicable counterpart U.S. obligations under customary international humanitarian law.

Yet the question of how states ought to treat detainees ought never to be confused with the question of what detention practices are so egregious as to subject the captor to criminal liability, let alone so egregious as (in the case of universal jurisdiction crimes) to subject the captor, as an “enemy of the human race,” to the penal judgment of a foreign court that may be hostile to the captor’s cause. Whereas international penal standards must be read against the backdrop of a general principle that the scope of criminal liability be construed narrowly in the defendant’s favor, and a specific principle that derogations from immunity not be lightly inferred, state obligations under international instruments need to be read, in the famous words of Fitzmaurice, “so as to have the fullest value and effect consistent with their wording (so long as the meaning not be strained) and with other parts of the text.” Where state responsibility is concerned, interpretation and application of norms should consistently err on the side of detainee protection.

When the discourse becomes stuck on the many extra steps that are properly required for an attribution of individual penal responsibility – the very points on which the memos were fixated – the focus shifts away from the victims, their sufferings, and their entitlements to both apology and reparation, all of which are properly at the core of the human rights mission. Furthermore, the focus shifts away from systemic failures and collective responsibilities; the more we can pin the blame on the likes of Cheney, Addington, and Yoo, the more we can distract from the myriad ways in which the United States, as a national community, let this happen. A few examples include: the calculated refusal of the opposition to make detainee treatment an issue in the 2004 Presidential campaign; the Detainee Treatment Act of 2005, which paid lip service to decency while systematically disabling the necessary implementation mechanisms; and the Military Commissions Act of 2006, which not only overtly created space for humiliating and degrading (and, by any fair definition, cruel and inhuman) interrogation measures, but actually went so far as to incorporate the August 1, 2002 memo’s notorious “organ failure” standard as a threshold for penal liability.

If the memos’ neglect for the non-penal international norms could properly be attributed to a judgment of the norms’ inapplicability to these detentions (and their authors have offered some arguments along these lines), I would have no hesitation in alleging a failure of legal competence on this point. However, it is fairer to conclude, in keeping with the scant attention paid to this matter, that the breach of international legal obligation was considered irrelevant, on a theory that I call “reverse monism”: international law is “real law” when and to the extent that it is incorporated into domestic law, and otherwise simply a policy question.

It would seem that the memos’ authors did not feel a professional responsibility to remind decision makers that virtually every measure being considered, even if not a crime, would place the United States in breach of its obligations under non-self-executing treaties and customary international law. (Henry Kissinger is supposed to have once said, “The illegal we do immediately; the unconstitutional takes a little longer”; here, it seems, human rights law was violated with scarcely a thought.)

In no context are a state’s international legal obligations more imperative than with respect to the treatment of the most vulnerable individuals – such as aliens detained as enemies without protected status, in dark places, and despised by their captors. What is most lamentable about the memos is their failure to point out, as often as necessary to be sure that the point does not elude the client’s consciousness, that a violation of international law is a serious breach of legality, quite irrespective of whether it rises to the level of a universal jurisdiction crime.

But a sad fact of the American political culture is that policies violative of international law are not thereby regarded as “off the table.” Indeed, as John Kerry’s “no permission slips” affirmation in the 2004 Presidential campaign indicated, even the party of relative restraint regards it as politically untenable (and perhaps even morally irresponsible) to renounce the option of breaching international legal obligations in the service of national security. (President Obama recently stated, in regarded to the use of force against Iran, “I don’t take options off the table when it comes to U.S. security, period.”)

As Wendel succinctly puts it in his SSRN abstract, “the role of lawyers should be understood in connection with the value of legality — i.e., the distinction between government genuinely constrained by the law and government that aims at doing the right thing all-things-considered, and which regards the law as only a pragmatic constraint.” Yet as the Medellin decision recently highlighted (even more in the dicta than in the holding), international law has not achieved this constraining status in American legal consciousness.

Once again, with the memo writing as with all aspects of the detainee treatment debacle, the search for individual accountability will be flawed if it does not bring Americans face to face with their collective responsibilities. John Yoo has much for which to answer. So has the American political community as a whole.

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Related Links:

http://www.ejiltalk.org/prosecutions-of-us-officials-for-torture-some-issues/

http://www.ejiltalk.org/the-water-cure-with-saline-solution-or-how-a-modern-bureaucracy-does-torture/

http://www.ejiltalk.org/obama-administration-releases-four-olc-torture-memos/

http://www.ejiltalk.org/obama-administration-to-consider-prosecution-of-lawyers-for-torture-but-why-just-the-lawyers/

http://www.ejiltalk.org/cheney-chatter-and-complicity/

http://www.ejiltalk.org/report-on-uk-complicity-in-torture/