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Antonio Cassese Prize for International Criminal Law Studies

Published on April 27, 2009        Author: 

The Journal of International Criminal Justice has announced the establishment of a prize in honour of Antonio Cassese. According to the announcement of the prize in the Journal of International Criminal Justice (see here)

This biennial prize will award 10,000 (ten thousand euro) to the author of the most original and innovative paper published in the Journal in the two years preceding the award. The aim is to enable the winner to undertake a research or publication project, or further studies in the field of international criminal law (including aspects relating to human rights, humanitarian law issues, as well as substantive and procedural law matters).

The prize is a fitting tribute to Judge Cassese who is one of the leading international lawyers of our generation and who has made an outstanding contribution to international criminal law. In addition to being a Professor of International law for most of his career, he was the first President of the International Criminal Tribunal for the Former Yugoslavia. Last month, the United Nations announced that Professor Cassese would be the President of the Special Tribunal for Lebanon which was established by the UN Security Council to prosecute those responsible for political killings in Lebanon, in particular the murder of former Lebanese Prime Minister Rafiq Hariri in 2005. He was also the Chair of the International Commission of Inquiry into Darfur, whose report was a precursor  the UN Security Council referring the situation in Darfur to the International Criminal Court.

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US District Court Rules on Guantanamo Detention Standard

Published on April 25, 2009        Author: 

A US District Court has just released the first judicial opinion on the detention standard applicable to detainees in Guantanamo (formerly known as ‘enemy combatants’), subsequent to the filing of the Obama administration’s brief that we have previously extensively discussed. Judge Walton’s opinion shows a valiant effort to grapple with the applicable international humanitarian law. Regrettably, however, I don’t think that his reasoning is free of all legal difficulties.

Read the rest of this entry…


Obama Administration to consider prosecution of lawyers for Torture: But why just the lawyers?

Published on April 23, 2009        Author: 

On Tuesday, President Obama suggested that the United States might consider prosecution of some of the individuals who are connected with the harsh interrogations techniques used by the CIA on Al Qaeda detainees (see here). Earlier, the US President had made it clear previously that those CIA personnel who had relied in good faith on the legal memos written by the Office of Legal Counsel in the US Dept of Justice would not be prosecuted. On Tuesday, he reiterated that stance though using slightly different language. He stated it would not be appropriate to prosecute those “who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House” (see the White House transcript here). This statement and what appeared to me to be an emphasis on those who acted strictly within the confines of the opinion (Obama even used his hands to draw a rectangular box as he said the words “four corners” of the opinion) suggests that Obama is open to the prosecution of some of the CIA interogators. It also also highlights the significance of the revelation that some of the interrogations went beyond the limits set out the memos (see the story in the New York times and the discussion by Kevin Jon Heller at Opinio Juris). In an earlier post on this blog, I stated that there are reasonable (though not undisputable) grounds for arguing that under international criminal law, CIA officials who conducted the interrogations in reliance on the advice of US government lawyers might be able to rely on the mistake of law/superior orders defence codified in Art. 33 of the ICC Statute.

Even more significant is Obama’s refusal to rule out prosecution of those lawyers who authored the opinions that justified the interrogation techniques. Obama stated the US Attorney General will make a decision on the investigation or prosecution of those who formulated the legal opinions. One question that arises here is: why focus on the lawyers? Much of the discussion has centered on their role. Obama’s response was to a question asking for clarification on the position of those who devised the policy on enhanced interrogation techiques. However, his answer which did not rule out prosecutions only referred to “to those who formulated those legal decisions.” But what about the others? The people who actually suggested the techniques and pushed for their use. Are they subject to investigation too? No doubt, answering that question is politically difficult given that questions will be raised as to how high up the chain one goes. And we know from recent reports that the approval of those policies was at the very highest levels of government. However, if the administration is to consider prosecutions at all, there seems to be little reason to stop with the lawyers. Indeed the Torture Convention, to which the US is party imposes an obligation on US to submit cases of torture to its prosecuting authorities.

Perhaps the reason that the focus is just on lawyers is because US criminal law recognises a mistake of law defence in circumstances where international criminal law does not.  Read the rest of this entry…

Filed under: EJIL Analysis, Torture

Piracy off Somalia: a sketch of the legal framework

Published on April 20, 2009        Author: 

Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. He is the author of ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’ (2008) 57 International and Comparative Law Quarterly 690-699. His book Shipping Interdiction and the Law of the Sea will be published by Cambridge University Press later this year.  

We’re all familiar now with the pirate attacks in the Gulf of Aden and off Somalia’s east coast, especially following the hijacking of the Sirius Star 500 nm off the coast of Kenya in November 2008 and the more recent uses of lethal force by French and US navies to free hostages seized by pirates. Although, the international law of piracy is quite straightforward, its implementation – especially in a situation as complex as the Gulf of Aden – is rather more difficult. Some of the problems are legal and some practical. The law applicable to piracy off Somalia is presently a mix of customary law, UN Security Council Resolutions and treaty law. If pirates are captured, questions of national law and international human rights obligations also arise.

In my view, there is no short-term, military “fix” for piracy. It remains to be seen whether recent uses of lethal force against pirates will deter them, or escalate violence against ships and hostages. In the short term, the best we can hope for is better regional co-operation and judicial capacity-building in Kenya – the destination for many captured pirates. The later is presently being undertaken by the UN Office on Drugs and Crime with a substantial grant from the German government.

The customary law

The core of the customary law of piracy, as codified in Articles 101-107 and 110 of the UN Law of the Sea Convention (UNCLOS) is relatively simple. Piracy consists of: (i) any act of violence; (ii) committed for private ends; (iii) on the high seas or in a place beyond the relevant jurisdiction of any State; and (iv) which is committed by one vessel against another. Any State may send a warship to board a pirate vessel, arrest those on board and subject them to the jurisdiction of its courts. Warships may also use reasonable force to that end.

It is commonly held that piracy does not cover politically motivated acts. This, I believe, is a myth (for reasons I have explained elsewhere). Any act of violence lacking State sanction is, in my view, an act “for private ends”. The limitations within the definition of piracy are fairly obvious. It does not cover internal hijacking or events within territorial waters (the latter is normally termed “armed robbery against ships” and regarded as a matter for coastal-State law enforcement), nor does the law of piracy allow pirates to be pursued from the high seas into territorial waters.

 One of the problems with the current attempt to combat piracy is that though, as a matter of international law, all States have jurisdiction to try pirates, few States have adequate national laws for the prosecution of pirates who have not committed offences against either their nationals or flag vessels. This has lead to some startling results, such as the German navy releasing some captured pirates on the basis that they had no authority to detain them. While UNCLOS requires that States must co-operate to suppress piracy (Art. 100) it only provides that a capturing warship may send pirates for trial before its courts (Art. 105). The inference is that States are under no duty to have adequate national offences for trying pirates and may co-operate in the suppression of piracy by other means (such as “deter and disrupt” patrols). If States are under a positive obligation to have such laws, the majority have been continually in breach since before the 1920s League of Nations codification project. There is also no clear duty upon port States to receive pirates captured by a third State for trial.

 The UN Security Council Resolutions

The relevant resolutions on Somali piracy are 1816, 1838, 1846 and 1851, all containing the talismanic Chapter VII authority to use “all necessary means” to counter piracy. In broad-brush terms, these Resolutions encourage States to develop a cooperative framework to counter piracy in the region as well as granting specific authority to “cooperating States” to enter Somalia’s territorial sea to repress piracy in a manner consistent with the international law applicable on the high seas. 1851 authorises “cooperating States” to go further and engage in counter-piracy action on Somali soil. Read the rest of this entry…


The Water Cure with Saline Solution, or How a Modern Bureaucracy Does Torture

Published on April 18, 2009        Author: 

Having now read the four recently released ‘torture’ memos, I was perhaps most struck with their bureaucratic tone and the sterile overall narrative that they presented. The earlier Yoo/Bybee memos dealing with general issues such as the meaning of the term ‘torture’ in the UN Convention against Torture and US implementing legislation were rightly criticized for their facetious analysis. On that point, these four memos – or at least the three 2005 memos signed by Bradbury – are on the whole admittedly not as obviously bad. The legal analysis at times even sounds plausible – thought it is manifest that the advice given is actually not advice, but an apology for an already predetermined outcome. It is also riddled with caveats, with the OLC regularly saying that there is room for reasonable disagreement with its conclusions, or that a court might not arrive at the same result, etc. The occasional plausibility of the analysis is aided by the fact that the OLC is interpreting US statutes implementing the CAT, and that these contain Senate understandings and definitions which require narrower interpretations than the text of the treaty itself (this is what allows, for example, for strained interpretations of what constitutes severe mental pain or suffering).

But where these memos differ from the previously disclosed ones is in that they are an attempt to analyze (or, rather, justify) the various specific interrogation techniques used by the CIA against its high-value detainees. In other words, they apply the law to the facts, and the OLC had to get the facts from somewhere. That somewhere was, of course, the CIA itself – its interrogators, doctors, psychologists or what have you. And therein lies the rub. Just as the CIA interrogators can claim that they relied on OLC legal advice in good faith, so can the OLC lawyers claim that they relied in good faith on the CIA’s presentation of the facts.

Just read, for example, the sterile narrative of the various measures to be employed against Abu Zubaydah, the first high-value detainee, in the first new memo. The possible adverse effects of the (cumulative) application of these various measures on Abu Zubaydah’s physical and mental health are constantly and consistently downplayed, and are generally portrayed in euphemistic terms as mere ‘discomfort’ or ‘distress’, rather than suffering. Factual determinations, such as that there was no suffering, are based on the account of doctors participating in interrogation, or on the experiences of the US military’s own SERE program that attempts to train resistance to these interrogation techniques. No attempt is made at any time to ascertain directly the views of the detainees themselves, or the actual reality of the interrogations – the CIA is always taken at its word. Contrast, for instance, the OLC’s account of the techniques to be used against Abu Zubaydah, and Abu Zubaydah’s own (probably quite credible) harrowing account in the recently leaked ICRC report (at Annex I).

That none of the techniques arises to the level of torture comes as no surprise. Indeed, it could be reasonably said that most of the techniques do not amount to torture, especially if used in isolation. What did come as a bit of a surprise was the ‘bug in a box’ method – since Abu Zubaydah was determined to have an irrational fear of insects, it was proposed to put him in a confined box with an insect that could then merrily crawl all over him. Though the insect would have been harmless, Abu Zubaydah would have been told otherwise. Naturally, this bug method was also not considered to be torture by the OLC, but it was in fact never used even though it was authorized – it was probably thought to have been just a tad too medieval for modern sensibilities. Or too Orwellian.

Read the rest of this entry…

Filed under: EJIL Analysis, Torture

SIEL/CUP Prize for an Essay on International Economic Law

Published on April 18, 2009        Author: 

A prize has been established by the Society of International Economic Law and Cambridge University Press for the best essay submitted on any topic in any field of international economic law.

The competition is open to current students and those who have graduated within the last five years.

The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication.

The closing date for submissions is 30 September 2009.

For submission details and terms and conditions, please see

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The Tension between International Law as ‘Law’ and International Governance: A Comment on the EJIL Debate between Mónica García-Salmones and Andrew Lang and Rosie Cooney

Published on April 17, 2009        Author: 

Dr Caroline Foster is a Senior Lecturer in Law at the University of Auckland, New Zealand and was a diplomat and legal adviser at the New Zealand Ministry of Foreign Affairs and Trade. She has a special interest in the nexus between trade, human rights and the environment and she has published several articles on the WTO Agreement on Sanitary and Phyto-Sanitary Measures. She is currently working on a monograph to be published by Cambridge University Press on Science, Proof and Precaution in International Courts and Tribunals.  The book focusses on expert evidence, burden of proof and finality of adjudication in international disputes involving science.   

My thanks to Dapo Akande for the invitation to submit this comment and to the respective authors for their papers. Cooney and Lang adopt a broad ambition: a development in the multilateral trade system and its institutional mechanisms towards “adaptive governance”.  García-Salmones sets out to prompt further exploration of the major implications of such a reform in “governance”, including the development dimension.   Reading the authors’ contributions, it occurs to me that together these contributions raise fundamental questions about the respective roles of law and of “governance” in international law – a distinction hinted at by García-Salmones but not taken up. What we require of international law as law, particularly when it comes to the application of the law through binding adjudicatory processes, is not always compatible with what we might ideally require from a system of international “governance”.

 The key point that needs to be added into the equation, I think, is to underline the usefulness of maintaining what could be called the “hard edge” of international law.  At the hard edge, law often requires the availability of authoritative decision-making at fixed points in time – something the WTO dispute settlement system does very well. In dispute settlement by adjudication, the law is interpreted and applied in order to give concrete effect to an agreed balance of interests.  Because of its very nature this aspect of law will tend to freeze the situation at hand.  Adjudicatory processes will generally respond much less flexibly to the dynamics of ongoing scientific research in fields of considerable uncertainty than may be possible within other processes of international “governance”. Cooney and Lang themselves refer to the “one-off nature of WTO dispute settlement.”  (As a practical matter, the result is a technically huge challenge for WTO panelists and Appellate Body members.)

 Certainly, WTO dispute settlement in SPS cases should be carried out with a high level of awareness of the extent of scientific uncertainty in the field in question.  Increasingly, this awareness is manifest. The appellate structure of WTO dispute settlement has been valuable in gradually advancing the interpretation of the Agreement along appropriate lines. And indeed we should continue to strive to improve the substantive international law on an ongoing basis so that the rules themselves will require, prompt and accommodate an allowance for uncertainty- as Cooney and Lang seek to do with their suggestions on the SPS Agreement’s future interpretation.  Success in this will produce better decisions that balance competing interests as well as possible.

 Yet we must remain aware of what it is we seek from international law as law. This is not always compatible with what we might ideally require from the overall system of international “governance”, where there is greater scope for adaptive management and learning.  Read the rest of this entry…


Obama Administration Releases Four OLC Torture Memos

Published on April 16, 2009        Author: 

The Obama administration has just released four new ‘torture’ memos, written by lawyers working in the Office of Legal Counsel of the Department of Justice in the Bush administration. The release of these memos has been long anticipated, and seems to have produced much wrangling within the Obama administration, with the CIA pressing to keep them classified. Some portions of the memos are redacted, to protect the identities of actual interrogators.

The memos are now available at the ACLU website. A statement by President Obama, in which he explicitly states that his administration will not prosecute any CIA interrogator who relied on the OLC advice in good faith, is available here. A similar statement by the Attorney General is available here. I will post more on the memos when I have the time to read them.

Filed under: EJIL Reports, Torture
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Taking Uncertainty Seriously: Adaptive Governance and International Trade:A Rejoinder to Mónica García-Salmones

Published on April 16, 2009        Author: 

Andrew Lang and Rosie Cooney respond to Mónica García-Salmones’ comments on their article “Taking Uncertainty Seriously: Adaptive Governance and International Trade” published in (2007) 18 EJIL 523. A version of this response, with footnotes and full references can be found in (2009) 20 EJIL (see here)

It is always a pleasure and an honour to have a colleague engage with one’s work in detail. We are grateful, therefore, to Mónica García-Salmones for her response to our article, and are pleased to have this opportunity to clarify some aspects of our thinking and our approach that may not have been explicit enough in the original piece. Given the limitations of space available, we have decided to put to one side the many points of detail on which we may differ from García-Salmones, and provide simply the broad outlines of a response to the three primary lines of criticism which we understand García-Salmones to be offering. 

1.         Learning and the Power of Experts

 García-Salmones’ primary concern with adaptive governance is that, in her view, it enhances and valorizes the role of experts in international governance, and ‘contributes to the problem of depoliticization in the global sphere’ (at 168). Our emphasis on knowledge production and continuous learning is, from this perspective, equated with a turn to ‘managerial governance’ (at 177), in which political decision-making is understood as problem-solving, and policy choices are justified as products of enlightened rationality.

In raising these concerns, García-Salmones locates herself within a well-established and vitally important literature that highlights and critiques the reality of the growing ‘technicalization’ of global governance. But by directing this criticism at us, it is clear that she fundamentally misunderstands our argument. Indeed, we start with precisely the same aversion to technocratic politics as she does – and with a profound scepticism of hubristic claims to truth-telling which too often are advanced in the name of apolitical expertise. But since we distinguish ourselves from technocratic governance along a different axis from García-Salmones, the ways in which our ideas differ from the kind of managerialism that she critiques may not have been clear.

Our starting point is that structures of knowledge are inseparable from the practice of international politics. The distribution and deployment of political power are always mediated by dominant ways of knowing the world, by particular habits of interpretation, by the background assumptions of governing elites, and so on. The relevant distinction is therefore not between forms of global governance based on knowledge and those that are more ‘politicized’ (a term which is invariably vaguely specified). All involve ‘knowledge’, but all knowledges are necessarily constructed and deployed within a particular social and political context.

Rather, the choice for us is between different ways of ‘doing knowledge’. Adaptive governance is not intended to be a manifesto for increasing the role of experts in international governance. To the contrary, it involves an initial attempt to imagine new ways of doing knowledge in politics and law, predicated on a view of knowledge as multiple, contested, and provisional rather than unitary and finally provable, on an abandonment of the idea that there are usually ‘right’ or ‘rational’ solutions to objectively identifiable problems in any simple sense, on a commitment to the destabilization and remaking of knowledge rather than its uncritical dissemination, and above all on an emphatic rejection of the cult of expertise. Like García-Salmones herself, we therefore explicitly make the case for the inclusion of ‘local knowledge’ (at 186) with practices of global governance. We explicitly argue for greater public participation in apparatuses of knowledge production. And our focus on continuous learning is not about an ongoing search for ‘more true’ (at 185) or more ‘enlightened’ (at 169) decisions, but rather about the ongoing destabilization of settled assumptions, taken-for-granted definitions of problems, and the complacent faith of experts and policy-makers in their own solutions. Continuous learning, in other words, is about cognitive openness. Read the rest of this entry…

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Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Reply

Published on April 15, 2009        Author: 

Mónica García-Salmones is an LLD student and Research Fellow at the Erik Castrén Institute for International Law and Human Rights at the University of Helsinki, Finland. The post below introduces and summarises her recent article in the EJIL, the full text of which is available at the EJIL website (see here)

The use of experts’ power in global networks is often concealed by describing it in the register of scientific truths. My intention in this post is to illustrate this phenomenon by reference to the recent article in the EJIL by Cooney and Lang, ‘Taking Uncertainty Seriously: Adaptive Governance and International Law’. The article provides a good introduction to that issue, to the extent that it offers a set of strong theoretical assumptions framing global governance as a field of knowledge to be conquered. Thus, Cooney and Lang advocate a leading role to scientific experts in global political decisions.

 As the authors state in the introduction, the aim of their project is to address the pervasive uncertainty that confronts decision-makers in international institutions. Focusing primarily on the uncertainty of environmental management, Cooney and Lang put forward the case of the invasive alien species (IAS). The international actor chosen is, predictably, the WTO in its capacity of distinguishing – as well as overseeing and reviewing – legitimate from illegitimate trade-restrictive environmental measures through the mechanism of the Sanitary and Phytosanitary Measures Agreement (SPS Agreement). This mechanism is ‘based (in part) on an appeal to scientific expertise as an arbiter of regulatory rationality’.

 The core question posed by the authors in the article concerns the implications for the WTO in respect of this task when it faces what they consider to be an unavoidable scientific uncertainty. In this regard a proposal is made for a new policy aimed at the regulators in global governance: adaptive management or adaptive governance. The approach used is borrowed in part from the literature of environmental management of the 1970s, combined with alternatives drawn from social sciences. Policymaking in the context of adaptive governance is considered a repetitive process, ‘continuous learning’, because scientific knowledge is seen as provisional and subject to review in the light of new information, and thus not definitive or final. The core message of the article is worth quoting for our purposes:

 ‘For us… the point of proceduralization is not primarily to ensure that the WTO interferes less substantively with democratic decisions at the national level, but rather to use the international trade regime in a more positive way to facilitate, and provide an impetus for the development of appropriate governance frameworks at the national level.’ [at 544]

 Cooney and Lang raise two highly provocative points. Firstly, the account they give of WTO law goes beyond a purely legitimacy-based structure focused on effectiveness. Instead, they propose to endow it with a functional aspect: the question is posed in terms of cognitive achievements for regulators in the member states through the influence of WTO law and WTO managerial tasks. Secondly, they describe national and international regulators as being naturally intertwined. Now, to me both these arguments are interesting and important in facilitating an approach, from a legal perspective, to the meaning of the elusive notion of global governance and – which some consider its leading characters – the regulators.

 Furthermore, critical understanding of these two claims made by the adaptive governance project will assist in evaluating global governance. I shall analyze whether the lack of central government that characterises global governance permits the justification of legal-political decisions as knowledgeable truths in the style of an enlightened ideology – and whether the scientific justification provides a means of avoiding the type of political accountability found in the public national sphere. In order to understand the origins of cognitive theories employed by adaptive governance and to the notion of regulators I will, in the same manner as Cooney and Lang, use the concrete example of the WTO, giving a brief description of its emergence in the international public sphere. Read the rest of this entry…

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