Category Archives: Law: International Law

The New My Lai

Posted on May 2, 2004 by Michael Froomkin

I don't know if the current uprising in Iraq is the new Tet, or even if Iraq is Vietnam or something worse, but I'm fairly sure that Abu Ghraib is the new My Lai (complete with Seymore Hersh exposé). It remains to be seen who gets cast as Lt. Calley, and whether history repeats itself as to the nature of the trial and the exoneration of the chain of command. It looks as if there's at least a chance that one General, Janis Karpinski — just a reservist after all, and the only female commander in the Iraqi war zone — will get thrown to the wolves, although she's fighting back and pointing the finger at the CIA, claiming that “the alleged torture involved detainees kept in a special interrogation unit that was off limits to most of the U.S. troops deployed there.”

As the Guardian notes, what happens in the UK will be especially interesting:

If true, the allegations could mean serious criminal consequences for Britain, which, unlike the United States, has signed up to the new International Criminal Court. It has the power to launch war crimes charges of its own against authorities including the commander-in-chief – the Prime Minister – if necessary.

This probably will be spun as evidence that those who objected to signing on to the International Criminal Court were right about the possible consequences. As one who was quite queasy about the ICC's inroads on national sovereignty, and certainly never a proponent of it, I urge people thinking of making that argument to think carefully. Do you really want to argue that we should not sign on to the ICC because we might be called to account for what appear to be genuine war crimes? (The real fear was, among other things, spurious allegations.).

If anything, this seems to cut the other way. Could it be Abu Ghraib is an argument for the ICC? Only a thorough US investigation, including military, black ops, and civilians, and especially the relevant higher-ups in each group, will suffice to blunt that argument.

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WTO Ruling Supports Internet Regulatory Arbitrage

Posted on March 25, 2004 by Michael Froomkin

Something I want to read when I get home—the decision by the WTO described (rather summarily) in Las Vegas panics as WTO rules offshore gambling legal. The US is currently engaged in a host of practices, particularly leaning on credit card companies, to block access to off-shore Internet gambling from the US.

The internet gambling issue is a very interesting test of the ability of a government to prevent residents from engaging in regulatory arbitrage.

And it looks like those efforts just took one on the chin.

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Cybercrime Treaty Goes Live

Posted on March 19, 2004 by Michael Froomkin

Via Michael Geist's newsletter on Internet law, I learn that the Council of Europe's cybercrime convention has entered into force due to its fifth ratification — from Lithuania. The US has signed but not yet ratified. The key aspect of the convention is that it imposes a duty on signatories to do Carnivore-like snooping on domestic internet users at the request of a foreign government…so long as the snooping method is consistent with domestic law.

It's widely believed that the US wrote this and pushed it through the Council, both to get access to foreign communications and especially to impress on Congress that Carnivore in the US should be seen as business as usual, and something demanded by our allies.

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Senior UK Judge Attacks US For Guantanamo Detentions Without Trial

Posted on November 26, 2003 by Michael Froomkin

'Monstrous US justice' attacked by law lord. Very, very strong words about the Guantanamo detentions from a normally reserved senior English judge: “By denying the prisoners the right to raise challenges in a court about their alleged status and treatment, the United States government is in breach of the minimum standards of customary international law.”

Lord Steyn also called the proposed military commissions “a stain on United States justice” and predicted that they would be regarded as “kangaroo courts,” which he defined as an “irregular tribunal which makes a mockery of justice.”

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Guardian: Richard Perle Admits Iraq Invasion Was Illegal Under International Law

Posted on November 20, 2003 by Michael Froomkin

War critics astonished as US hawk admits invasion was illegal

International lawyers and anti-war campaigners reacted with astonishment yesterday after the influential Pentagon hawk Richard Perle conceded that the invasion of Iraq had been illegal.

In a startling break with the official White House and Downing Street lines, Mr Perle told an audience in London: “I think in this case international law stood in the way of doing the right thing.”

President George Bush has consistently argued that the war was legal either because of existing UN security council resolutions on Iraq – also the British government's publicly stated view – or as an act of self-defence permitted by international law.

But Mr Perle, a key member of the defence policy board, which advises the US defence secretary, Donald Rumsfeld, said that “international law … would have required us to leave Saddam Hussein alone”, and this would have been morally unacceptable.

French intransigence, he added, meant there had been “no practical mechanism consistent with the rules of the UN for dealing with Saddam Hussein”…

This 'the ends justified the means' argument is internally consistent, but it's weird in the extreme to have all the former critics of humanitarian intervention reborn as bleeding hearts. Or would be if we believed they meant a word of the humanitarian stuff (postwar planning? us?)….

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What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows

Posted on November 12, 2003 by Michael Froomkin

I usually like Linda Greenhouse's work, and I've been trying to figure out why this news analysis item on the Supreme Court's decision to hear the jurisdictional aspect of the Guantanamo detainees case is so annoying.

For starters, I don't find the account of the Court and the Executive going toe to toe while hepped up in “alpha mode” at all convincing. (I also don't find it attractive, but that's a different issue.) She writes, “it now appears that the administration laid down a challenge the justices were unwilling to ignore. This was a moment long in coming: the imperial presidency meets the imperial judiciary.” I think this is way over-dramatic for a ruling to grant cert. on jurisdiction.

Greenhouse argues that the administration took a needlessly hard line in arguing the court should deny cert. and this somehow poked a stick in the court's metaphorical eye. But what else was the Solicitor General supposed to do?

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