JURIST Guest Columnist David Scheffer, former US Ambassador at Large for War Crimes Issues (1997-2001), now at Northwestern University School of Law, reflects on the tenth anniversary of the conclusion of negotiations on the Rome Statute establishing the International Criminal Court ICC), in which he played a central role...

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One decade ago, on July 17th, 1998, I sat in a crowded room in Rome with diplomats from 148 other nations knowing that I failed my country and the world. As head of the United States delegation to the talks creating the International Criminal Court, I rejected the final text of the treaty for the court. Since then, 106 countries, including almost all of our allies, have joined the court while Washington remains outside it.

President Bill Clinton believed the court should be built by the end of the 20th century and as his Ambassador at Large for War Crimes Issues it was my job to make that happen. The United States spearheaded the Yugoslav and Rwanda war crimes tribunals and helped lead the talks culminating in the Rome conference. At Rome we achieved most of our goals: defining the atrocity crimes to be prosecuted (genocide, crimes against humanity and war crimes), affirming the court’s structure, general principles of criminal law and due process rights, and deferring cases to national courts unless they are unwilling or unable to prosecute suspects.

The United States wanted only the United Nations Security Council to initiate or approve referrals of atrocity crimes to the court. We opposed independent powers for the prosecutor. But we lost that battle early at Rome and moved on.

The Joint Chiefs of Staff and the late Senator Jesse Helms, chairman of the Foreign Relations Committee then, were breathing down my neck, insisting I do nothing to expose United States soldiers and citizens to the court’s jurisdiction. With Secretary of State Madeleine Albright’s support, I had proposed going to Rome with a saleable deal that would ensure no liability for Americans during the years of our non-party status, which were certain to be many, in exchange for the kind of court most governments insisted upon and met most of our demands. The Pentagon rejected my proposal and sought full immunity forever. (One year later they asked me to resurrect my proposal but by then it was too late.)

In the Rome conference’s final week I obtained Pentagon approval to negotiate one last proposal: Any new party to the treaty could opt out of the court’s prosecution of its nationals for committing any crimes against humanity or war crimes, but not genocide, during the first ten years only. This would give the United States and others a transitional period during which to adjust to the court’s jurisdiction, observe its performance and then withdraw if desired. The other Security Council permanent members (Britain, France, Russia, China) agreed to advance this proposal which, if adopted, would have enabled our delegation to join consensus on the final draft of the treaty.

But most governments rejected our tardy initiative. The Pentagon told me to forget about seeking any other approval from Washington, which then instructed me to call for a vote just to register American opposition to the final text. I objected because we would go down in flames and only reassert American exceptionalism. We could have recorded dissent with a strong floor statement. But diplomats follow instructions. I voted “no” with Israel and several dictatorships.

Hundreds of delegates and civil society advocates leaped up and cheered our defeat. Sir Frank Berman, the British negotiator, remained seated next to me in a remarkable act of respect. From that moment forward, the United States no longer led the pursuit of international justice.

However, we achieved enough in subsequent negotiations for me to sign the Rome treaty at Mr. Clinton’s request on December 31, 2000. (Israel also signed that day.) We recognized there was more work to be done to enable the United States to ratify the treaty. But we handed the incoming Bush administration negotiated proposals and the stature of being a signatory nation to the treaty to advance our concerns in further talks.

True to its anti-treaty philosophy, the new administration abandoned any credible effort and took the unprecedented step of de-activating my signature and launching an assault on the court that realists in Washington only recently have begun to roll back. The neo-cons stoked such paranoia about the court and international justice that the administration’s self-destructive plunge into criminal conduct against detainees in the so-called war on terror demonstrated a hideously consistent attitude.

In Washington many lost sight of the court’s aim to bring to justice political and military leaders who orchestrate massive atrocity crimes against thousands in lawless regions where national justice fails. The court, entering its seventh year of work, struggles to meet that challenge in Darfur (with Sudan’s President Bashir now facing a possible arrest warrant for genocide), Uganda, the Democratic Republic of the Congo, and the Central African Republic.

As the American negotiator I argued that the court would need the United States to function effectively on the global stage. But following years of misconduct under the Bush administration, one might ponder whether it is the United States that needs the International Criminal Court to help restore its credibility and reassert fundamental principles of humanity.


David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law. He is a former U.S. Ambassador at Large for War Crimes Issues (1997-2001).

JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that even though the recent indictment of sitting Sudanese President Omar Hassan al-Bashir by the prosecutor for the International Criminal Court (ICC) for war crimes in Darfur might appear to provide a precedent for indicting US President George W. Bush for alleged war crimes in his conduct of the Iraq War, major legal and political obstacles stand in the way of that ever happening...

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N ow that Sudanese President Omar Hassan al-Bashir has been indicted for war crimes, could George W. Bush be next?

Maybe. But not likely. American exceptionalism, ironically, is more the rule than the exception in modern international law. Al-Bashir was indicted by the prosecutor for the International Criminal Court (ICC) in The Hague for his role in war crimes, genocide and crimes against humanity that continue to unfold in the Darfur region of Sudan. Over the past five years, hundreds of thousands of black Sudanese have been forcibly displaced by Arab militias and government forces and at least 35,000 have been killed outright. The face of western Sudan is scarred with the rubble of burned out villages, decimated fields and eradicated settlements.

President al-Bashir is only the third sitting president to be so indicted, and the first by the ICC. Yugoslavia's Slobodan Milosevic was indicted in 1999 by the International Criminal Tribunal for the Former Yugoslavia, and Liberia's Charles Taylor was indicted in 2003 by the Special Court for Sierra Leone. Neither man was physically arrested and brought to trial, however, until after they had been deposed - a prospect that does not appear on the horizon for Sudan's Mr. Bashir.

Nevertheless, a formal request for the arrest of a sitting president always raises questions of sovereign immunity that a leader enjoys while in office. Many in the international community consider President George W. Bush to be manifestly guilty of war crimes in his conduct of the Iraq War and openly wonder whether he or any in his administration could be held to account for that conduct. Like Sudan, the United States is not a member of the Rome Statute that created the ICC. And, as in the Sudan case, President Bush is a sitting head of state. Yet, the leader of Sudan now finds himself in the ICC's crosshairs. So what about President Bush?

The International Court of Justice (ICJ) ruled in 2002 that the sitting Congolese Foreign Minister enjoyed head of state immunity from an assertion of universal criminal jurisdiction over him by Belgium. The Arrest Warrant Case, as it was known, provided some comfort to political leaders in similar situations, but more recent conflicting rulings in the other direction by different judicial bodies throws that determination into question.

The war inaugurated by the Bush administration against Iraq in 2003 was clearly a violation of international law under the United Nations Charter - even the Bush administration admits that. However, the U.N. has no criminal jurisdiction over its members. That the invasion of Iraq was unprovoked made it "aggressive" in nature, which is also violative of both customary and conventional international law, and which the tribunal at Nuremberg used to hang former Nazi leaders in 1947. But the ICC is a creature of its own statute, and the crime of aggression was left undefined in the treaty, so no prosecution can be brought against anyone on that score.

Which leaves war crimes. The American-led occupation of Iraq after the 2003 invasion was negligent at best and criminal at worst, directly causing the deaths of hundreds of thousands of Iraqi civilians. Violations of the Geneva Conventions abounded. Thus, charges based on war crimes could possibly underlie a viable indictment against President Bush and even Vice President Cheney as a key architect of the war. But the political reality of the ICC's superstructure mitigates against this possibility.

The U.N. Security Council can quash any indictment issued by the ICC. This collective veto power over the tribunal and its prosecutor was a crucial compromise designed to reassure nervous states that the court would not be used for political prosecutions. In the end, that compromise failed to convince the U.S. to sign the treaty. And the U.S. would certainly use its position as a permanent veto-wielding member of the Security Council to muster the votes necessary to quash any indictment against President Bush.

This very apparatus will likely save President Bashir. Now that the legal heat has been turned up on him over the atrocities committed against Sudanese under his watch, political pressure is mounting for Mr. Bashir to return to peace talks. A likely trade for Bashir's sticking to a brokered peace in Sudan, and ensuring an end to the bloodshed, would be quashing the ICC indictment against him. It is unsettling to watch politics interfere in legal process, and especially so in the nascent realm of international criminal law.

Yet, the mixture of law and politics is sometimes a necessary evil in order to accomplish a greater good. For example, the U.S. and Britain famously agreed to Stalin's demand that political groups be left unprotected by the legal definition of genocide in exchange for the Soviet bloc signing on to the Genocide Convention - "better to have them in than out" ran the logic.

Although it is great fun to speculate and draw up indictments for war crimes, as the irrepressible Christoper Hitchens has done against Henry Kissinger, President Bush will not be indicted by the ICC anytime soon. As for Sudan's President Bashir, despite his indictment by the tribunal, this new and bold venture in The Hague, admirable as it is, has no police force of its own to effectuate any arrest anywhere - even in the streets of Amsterdam. Thus, Mr. Bashir won't be arrested in Khartoum, as he controls his own security forces, and the outgunned U.N. peacekeepers would not attempt an arrest anyway.

Nevertheless, Article 59 of the Rome Statute mandates that all of the 105 nations party to the treaty "shall immediately take steps to arrest the person in question in accordance with [their] laws...." So, at least while this indictment looms over him, Mr. Bashir would be well advised to steer clear of Paris, Johannesburg, Rio or any states amenable to the ICC's jurisdiction. Otherwise, like Chile's Augusto Pinochet, who was arrested in Britain on a crimes against humanity indictment from Spain in 1998, Mr. Bashir could find himself taking a much longer vacation than he anticipated.

Consequently, the indictment at least has the effect of placing Mr. Bashir under house arrest in Sudan. Yet somehow, war crimes and genocide should draw more than a stern "time-out." Shouldn't they?


Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is author of Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005) with a foreword by Desmond Tutu, winner of the 2006 Book of the Year Award from the U.S. National Chapter of L’Association Internationale de Droit Pénal.

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says the Iraqi government needs to secure independent counsel over and above whatever guidance it has received from US government advisers before entering into key oil contracts with major US oil companies...

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Much has been written recently of the oil contracts Iraq is near to signing with a series of large oil companies. One legal aspect of this story, however, has gone largely unreported in the larger media and deserves greater consideration, particularly among us lawyers who take the notion of legal representation and legal ethics fairly seriously.

To review, Iraq’s Oil Ministry announced last week that Iraq was in final negotiations with a number of larger oil companies, among them Chevron, Total, BP, Exxon Mobil and Shell, on contracts to develop some of the larger oil fields in Iraq’s south. This attracted media and Congressional attention mainly because the contracts were no-bid, meaning that there was no open bidding process to obtain them, unusual in the industry and particularly unusual given the global demand for oil presently. Suggestions soon arose that perhaps the United States had something to do with the manner in which the contracts were awarded, given that the largest beneficiaries were American oil companies. Calls arose in Congress to cancel or delay the contracts, and the Bush administration vehemently denied any involvement.

In this atmosphere, an article appeared in the New York Times indicating that U.S. government officials had advised the Iraqi government as to the contracts. Some advice was given through a program entitled Tatweer (Arabic for development) funded by the United States Agency for International Development (USAID) and organized by a consulting firm. In addition, it was reported that advisers from the Departments of State, Commerce, Energy and Interior regularly advise the Oil Ministry in Iraq.

Defending their activities as having nothing to do with the awarding of the contracts, Tatweer officials insisted that their advice was purely legal — offering contract templates, suggesting clauses to include, providing formatting changes. The State Department claimed to offer similar advice. In the words of one State Department official, what was told to the Ministry was along the lines of “these are the clauses you may want. You will need a clause on arbitration. You will need this clause to make this work.'' The reason for all of this advice, someone from Tatweer indicated, was that there was an exodus of qualified employees and lawyers able to draft contracts of these sorts.

This was supposedly meant in defense of this program, as a demonstration that the advice was not the surreptitious exertion of undue influence on the Iraqis to issue the no-bid contracts. Yet the defense is in many ways considerably worse than the initial accusation. As an attorney, it seems to me that if all of this is true, then the Tatweer officials and the government lawyers have been advising the government extremely poorly and the Iraqi Oil Ministry is doing a deep and fundamental disservice to its own people.

I realize these words are strong, but I do not think they are overstated. It seems inconceivable to me that a competent lawyer (in the government, on a USAID contract or otherwise) if handed an oil contract and told that it is a contract between Iraq and an unnamed oil company and then asked to comment thereon on behalf of the Iraqi government would provide any comment further than “hire a lawyer.” There are plenty such lawyers, who have spent decades drafting precisely contracts of this sort and who are more than capable of providing excellent, first rate representation who could handle such matters. Certainly they are more capable of serving the needs of their clients than these U.S. government advisers, with other obligations and interests, would be. (In full disclosure, I have on occasion advised the Iraqi government on any number of topics, and repeatedly urge them to hire lawyers on anything of significance, arranging in some cases meetings with potential law firms and suggesting which one appeared to be the most qualified).

Moreover, Model Rule of Professional Responsibility 4.3 indicates that a lawyer cannot offer legal advice to an unrepresented person whose interests conflict with those of her client, other than to seek counsel. The lawyer should also not state or imply that the lawyer is disinterested. The U.S. government as a voracious oil consumer clearly has interests in oil that conflict with those of Iraq, an oil producer, though perhaps technically speaking the Iraqi government is being advised by its own domestic legal department and so is not “unrepresented.” While perhaps sufficient to evade sanction, this hardly seems like a principled position for the U.S. government to take given that the severe shortcomings of that Iraqi legal department are precisely what led to the institution of the program to offer legal advice in the first place.

As for the Iraqis, giving the Ministry the benefit of every possible doubt, one must assume that their lawyers are simply not experienced enough to understand the importance of retaining independent counsel. As someone who has been intimately involved in Iraqi legal education and practice, I have great respect for Iraq’s legal culture and the dedication of its legal professionals. However, thirty five years of isolation has taken its toll, particularly as regards matters of international commerce. Still, it is difficult to justify or explain the Iraqi decision to rely on their in-house legal department, and to ask U.S. government lawyers for assistance on occasion despite the obvious potential conflict. The large oil companies, with a far more experienced and deeper in-house staff, would never hesitate to hire top notch counsel when in need of assistance. Surely on a matter of this importance involving this much money, Iraq must do the same, and the U.S. government should be telling them as much.


Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his new book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law, Ann Arbor, MI, says that a viable Status of Forces Agreement (SOFA) and Strategic Framework Agreement between the US and Iraq governing future US troop presence in the country requires a variety of institutional, legal and political obstacles to be overcome before the UN mandate for coalition forces in Iraq runs out...

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In 350 B.C.E., the Greek philosopher Aristotle identified a fundamental law of physics: “horror vacui” or “nature abhors a vacuum.” JURIST readers may well conclude that de jure and de facto leaders will abhor a vacuum regarding the legal status of coalition forces currently present in Iraq.

On 16 October 2003, UN Security Council Resolution (UNSCR) 1511 officially recognized the Coalition Provisional Authority (CPA) as Iraq's transitional government. That resolution also granted authority for a multinational, coalitional stabilization force in Iraq under Chapter VII of the UN Charter. Seven months later, on 27 June 2004, the CPA issued Order 17, granting all foreign personnel under the U.S.-led CPA, both uniformed and civilian, immunity from "local [Iraqi] criminal, civil and administrative jurisdiction and from any form of arrest or acting on behalf of their parent states.” When the CPA transferred power to a sovereign Iraqi interim government, and the CPA officially dissolved, a legal “vacuum” of authority existed regarding Iraqi legal jurisdiction over coalitional forces.

In an earlier era, the US approach to such an absence of local jurisdiction as well as authority for operations on foreign soil would have involved the so-called “law of the flag” approach: “a foreign army permitted to march through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of that place” (See Coleman v. Tennessee, 97 U.S. 509, 515 (1878)).

In March 2008, the US Department of State’s official position was that coalition operations could continue "beyond the end of [2008] under the laws passed by Congress and the president's authority as commander in chief." (See U.S.: No need for more Iraq war permit from Congress, Reuters, 6 March 2008).

Such “laws passed by Congress” might well include the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. § 3261), which allows for the prosecution of persons “employed by or accompanying the armed forces” overseas for crimes punishable by imprisonment of more than one year. They might also include the 2001 Joint Resolution on Authorization for Use of Military Force (Public Law 107-40) and the 2002 Authorization for Use of Military Force Against Iraq Resolution (Public Law 107-243). Finally, the National Defense Authorization Act for Fiscal Year 2008 (NDAA) (Pub. L. 110-18) brought all civilian contractors in Iraq under the military's jurisdiction. The first conviction under that new authority came on 22 June 2008 when a US military court in Iraq convicted Alaa "Alex" Mohammad Ali, an Iraqi-Canadian translator, of aggravated assault for the February 2008 stabbing death of a fellow military contractor in Iraq (See JURIST - Paper Chase, US military court convicts first civilian since Vietnam, 23 June 2008).

In journalist Anne Flaherty’s opinion, the State Department’s position on coalition operations “reaffirm[ed] the administration's position that it does not need international or congressional approval to conduct military operations anywhere in the world, particularly when going after terrorists.” (See Flaherty, Anne, UN Mandate In Iraq Not Needed, USA Today, 8 Mar. 2008).

Nevertheless, such an approach to international law and overseas operations, in the absence of some type of immunity or arrangement, seemingly contradicts the principle that “forces that find themselves in another nation’s territory must comply with that nation’s laws.” (See Gerhard Von Glahn, Law Among Nations 238 (1992), at 225-6, cited with authority in JA 422, Operational Law Handbook, The Judge Advocate General’s Center & School (2007), at 67).

In a few months there will arguably be a legal “vacuum” created when the UN mandate for runs out for coalition forces in Iraq. That mandate, established under UNSCR 1511 (2003) mentioned earlier, has been renewed annually by UNSCRs 1546 (2004), 1637 (2005), and 1723 (2006). As I noted in a JURIST Forum article on Rethinking Rule of Law Efforts in Iraq, Iraq is endeavoring to establish and sustain a constitutional and democratic rule of law capacity – via its law enforcement, justice, and corrections systems, along with Iraqi Security Force (ISF) capability. Increasingly, Iraq has sought to assert its sovereign authority as a nation and delineate the limitations of coalitional forces remaining in Iraq.

At Iraq’s request to extend the mandate “for the last time,” the UN Security Council decided unanimously via Resolution 1790 (2007) that actions under Chapter VII of the United Nations Charter would be reviewed at the request of the Government of Iraq or no later than 15 June 2008. The UN mandate would expire on 31 December 2008 or be terminated earlier if the Iraqi government requested the Council to do so (See UN Press Release, Security Council, Acting On Iraq’s Request, Extends ‘For Last Time' Mandate of Multinational Force, 18 December 2007).

One possible way to fill the legal “vacuum” after expiration would be a Status of Forces Agreement (SOFA), sometimes also referred to as a Status of Mission Agreement (SOMA) under UN Chapter VII auspices (e.g., the African Union SOMA for the UN Mission In Somalia – UNMIS). The Council on Foreign Relations has noted that historically SOFAs have served as a “legal framework that defines how foreign militaries operate in a host country.” Typically SOFAs are established by executive agreement, rather than treaty, but are “without uniform or standard format for the document, which can vary in length and specificity” (See Bruno, Greg, Backgrounder - U.S. Security Agreements and Iraq, Council on Foreign Relations, 6 June 2008).

SOFAs may delineate, amongst other things, who is subject to criminal and/or civil jurisdiction of the host country to which they are deploying, as well as civil liabilities such as taxation (See, e.g., Army Regulation (AR) 715-9, Contractors Accompanying the Force, 29 October 1999, at para. 3-1(g)). Neither the US nor Iraq have SOFAs with every nation with which they operate, and indeed, there are missions for which other forms of bilateral agreements (like an exchange of diplomatic notes) or multilateral instruments (like treaties) or even no formal instrument may be more suitable. Nonetheless, by at least one account, the U.S. had permanent SOFAs with more than 90 nations, or 46 percent of the world’s 190 nation-states (such as the North Atlantic Treaty Organization [NATO] nations, Bosnia, Japan, and Korea) (See Pike, John, GlobalSecurity.org Status-of-Forces Agreement [SOFA] Webpage, 26 April 2005).

The draft US-Iraqi SOFA proposal has been a point of negotiation since 2004, but pursued in earnest since March 2008, tentatively addressing immunity of American troops from Iraqi prosecution, the operations of over 60 military bases in Iraq, continued power to detain Iraqi prisoners, and protections for civilian contractors, (even though American contractors do not enjoy such immunity from local laws elsewhere). (See Shanker, Thom and Myers, Steven Lee, Contractors Working With The American Military Granted Protection From Local Laws, New York Times, 25 January 2008); JURIST readers will find superb expositions examining contractor liability in Professor Byron L. Warnken’s 12 November 2007 Forum contribution entitled Blackwater, Garrity, and Immunity: What Does It All Mean? and Attorney Tara Lee’s 24 April 2008 Forum piece entitled Don't Kick Contractors Off the Battlefield: Just Hold Them Accountable.)

If a SOFA is in fact concluded with Iraq, the signatories may well look to the NATO SOFA as a model for emulation; that SOFA sets forth three general classes of sending state personnel: 1) Members of the “force,” i.e., members of the armed forces of the sending state; 2) Members of the “civilian component” (i.e., civilian employees of the sending state); 3) “Dependents” (i.e., the family members of the force or civilian components dependent upon them for support (JA 422, supra, at 130). Customarily excluded from the second category, contractor employees may well require special technical arrangements or international agreements so they enjoy rights and privileges associated with SOFA status (JA 422, supra, at 130).

Also under negotiation is a so-called “strategic framework,” details of which still remain sketchy, but purportedly include political and economic initiatives to “increase investment into Iraq; foster debt reduction; and encourage cultural, education, and scientific exchanges between the countries.” (See Bruno, supra).

In an extraordinary confluence of current events and legal developments, federal courts in the May and June 2008 timeframe have rendered significant opinions involving international law, SOFAs, and both civil and criminal jurisdiction in Iraq.

The US Court of Appeals for the Fifth Circuit ruled in Lane v. Halliburton, et. al., (No. 06-20874, filed 28 May 2008) to reverse and remand to the District Court a case brought against military contractors in Iraq, holding that the case “needed further factual development before it can be known” that the “political question doctrine” is “actually an impediment” to reviewing tort claims against those contractors. In so doing, the three-judge panel from the Fifth Circuit court said it “may be possible to resolve the claims without needing to make a constitutionally impermissible review of wartime decision-making."

More recently, the US Supreme Court handed down a unanimous decision on 12 June 2008 in the case of Munaf et Al. v. Geren, Secretary Of The Army, et al., 553 U.S.___ (2008). That case upheld basic legal rights for Americans held abroad by the U.S. military, but did not find such safeguards extended to dual Iraqi-US citizens tried and convicted by Iraqi authorities for crimes committed in Iraq. The case upheld Iraqi criminal jurisdiction over Shawqi Omar for assisting a terrorist network, and Mohammad Munaf for kidnapping Romanian journalists.

Petitioners argued that under Valentine v. US ex rel. Neidecker, 299 U.S. 5 (1936), the Executive [the President] lacks discretion to transfer a citizen to Iraqi custody unless “legal authority” to do so “is given by act of Congress or by the terms of a treaty.” The Court distinguished Valentine, an extradition case from the US. Petitioners also argued precedent from Wilson v. Girard, 354 U. S. 524, 529 (1957) applied to Munaf, where that case stated a “sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders” and a SOFA between Japan and the US seemed to give the habeas petitioner a right to trial by an American military tribunal, rather than a Japanese court.”

The Court distinguished Wilson from Munaf, as in no small part because there was a SOFA extant between the US and Japan, unlike the present state of relations with Iraq, and in the present case of Munaf there was a transfer to a sovereign’s authority of an individual captured and already detained in that sovereign’s territory. In his majority opinion, Chief Justice Roberts wrote that “To allow United States courts to intervene in an ongoing foreign criminal proceeding and pass judgment on its legitimacy seems at least as great an intrusion as the plainly barred collateral review of foreign convictions.” (See Yost, Pete, Court rules against 2 US citizens in Iraq, Washington Post, 12 June 2008).

Perhaps of even greater significance to ongoing US-Iraqi SOFA negotiations, the Washington Post reported on 13 June 2008 that the US administration “suffered two major setbacks … when Prime Minister Nouri al-Maliki publicly rejected key U.S. terms for an ongoing military presence and anti-American Shiite cleric Moqtada al-Sadr called for a new militia offensive against U.S. forces.” (See Paley, Amit R. and DeYoung, Karen, Key Iraqi Leaders Deliver Setbacks to U.S., Washington Post, 14 June 2008).

Prime Minister al-Maliki was quoted as saying the SOFA drafts proposed “left us at a dead end and deadlock, so we left these and the negotiations will continue with new ideas until the sides reach a formula that preserves Iraq's sovereignty” (See Negus, Steve and Morris, Harvey, Iraq forces talks reach ‘dead end,’ Financial Times, 13 June 2008). Further delineating the prerequisites for progress, al-Maliki said "Any agreement that infringes on Iraq's sovereignty and its components will be dismissed and will not be acceptable,” noting that any agreement would require the Iraqi Parliament’s final approval (See Maliki rejects draft US 'security' pact, Morning Star, 14 June 2008).

In contrast, injecting an element of optimism and forward progress, Iraqi Foreign Minister Hoshyar Zebari said of the SOFA and Security Agreement efforts on 15 June 2008 that "These talks are ongoing. They're not dead … Definitely, there hasn't been an impasse … I'm confident that we will be able to secure the strategic framework agreement by the end of July.” (See US-Iraq security pact 'not dead,' deal ready in July: Iraqi FM, AFP, 15 June 2008).

In efforts to propel negotiations forward, the US has purportedly agreed that foreign contractors in Iraq will no longer have immunity from Iraqi law, according to Iraqi Foreign Minister Hoshyar Zebari, as reported on 18 June 2008 (See Cockburn, Patrick, Iraq deal with US to end immunity for foreign contractors, The Independent, 18 June 2008).

In a tip as to possible further SOFA concessions, news sources reported Iraq's oil minister Hussain al-Shahristani as saying on 18 June 2008 that Iraq is insisting on the right to veto any US military operations throughout its territory, and that the agreement would last for a maximum of two years and could be terminated by either side with six months' notice. (See Steele, Jonathan, Baghdad insists on right to veto US operations, The Guardian, 18 June 2008).

Despite this progress, a strong voice of opposition has emanated from the Iraqi Parliament. Husayn al-Falluji, Leader of Iraqi Accordance Front (the largest Sunni bloc in Iraqi Parliament) said on 11 June 2008 of the possible SOFA that “We have found a formulation marked by arrogance, dictates, and coercion toward the Iraqi side … If we have to choose between this agreement and Iraq remaining internationalized under Chapter 7 [of the UN Charter], we are for keeping Iraq at the mercy of Chapter 7 rather than the mercy of a U.S. presence entailing a more uncertain future than at present" (See Recknagel, Charles, Iraq: Debate Flares Over U.S. Security Pact, RFE/RL, 12 June 2008).

Another significant voice raised on this SOFA has been that of Grand Ayatollah Ali al Sistani. While not a de jure elected leader, he is the de facto spiritual leader of Iraq’s Shi’ite population (some three times larger than the Iraqi Sunni population). Al Sistani has pledged he would not allow Iraq to sign such a deal with "the US occupiers,” noting his strong objection to Prime Minister al-Maliki in May of 2008 (See Ayatollah will not allow US-Iraq deal, PressTV Website, 24 May 2008).

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The following complimentary yet inconclusive comments, made after an exceptionally brief 30-minute US-Iraqi Presidential meeting at the White House, express the ambitions as well as limitations on advancing stability, security, and the legal authority for coalition forces to remain in – or withdraw from – Iraq:

“We talked about a strategic framework agreement that suits the Iraq government. We talked about elections and different laws that have been passed … We talked about the fact that the economy is improving, and that the attitude of the people there has improved immeasurably over the years … I'm proud of what [President Talabani has] done, and I thank [him] for the tough decisions, so that the people of a free Iraq can realize hopes and dreams.”

- President George Bush, 25 June 2008 (See Transcript, President Bush Meets with President Talabani of Iraq, White House, 25 June 2008)

and

“I'm grateful for what he said about me, but I agree with him that we are going to work together for having this agreement – security agreement between the United States and Iraq, and also to continue our cooperation in our struggle against terrorism, for promotion of democracy in Iraq and Middle East … I think we have – we were able to go the steps towards reaching to finalize this agreement. And we continue our struggle to -- our efforts to reach – Inshallah – very soon this agreement.”

- President Jalal Talabani, 25 June 2008 (Id.)


Kevin Govern is a professor at Ave Maria School of Law. He began his legal career as an US Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the U.S. Government, Department of Defense, or Ave Maria School of Law

JURIST Guest Columnists Steven Solomon of the World Health Organization and David Kaye of the UCLA School of Law say that while the recently concluded Dublin Cluster Bomb Treaty represents a major advance in the law of war, it is not a clear victory or clear defeat for anyone, including the United States...

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Late last month over one hundred nations concluded a treaty to ban cluster bombs. Though the news was only lightly reported in the United States, it received major coverage in Europe, widely described as a major diplomatic defeat for the United States. Coming just a bit over a decade since the Ottawa Convention that banned anti-personnel landmines, the Dublin Ban raises the question: How big a defeat is this for the United States?

Actually, Dublin is a mixed bag, doling out portions of both victory and defeat for the United States and the ban’s advocates. It is certainly not the Bush Administration’s Ottawa, Kyoto (for the climate change protocol of the same year) or Rome (for the international criminal court of 1998), negotiations where the Clinton Administration lost hard-fought and high-profile battles.

Ban proponents hail the treaty as a milestone with good reason, for cluster munitions – which typically involve a device that can disperse from a few to hundreds of submunitions, or bomblets – can impose severe humanitarian costs. They may accidentally disperse to hit civilian objects; some may fail to explode, remaining long after conflict has ended like a landmine, until a civilian stumbles upon one. And since each munition may contain hundreds of bomblets, even a tiny failure rate can cause substantial civilian harm.

Perhaps most importantly, the treaty begins a long-term process of stigmatization, making cluster bombs harder politically for the United States and other militaries to use even if available legally. Further, the treaty's provisions on victim assistance, stockpile destruction and clearance will reinforce global efforts to reduce the toll taken by explosive remnants of war of all sorts. Together these constitute a victory ban proponents should be happy to celebrate.

The ban was opposed by U.S. military planners because they see cluster munitions as integral to U.S. operations, and feel the technical safeguards incorporated into US cluster weapons address the humanitarian risks. Bush Administration officials so opposed a ban that they did not send representatives to Dublin.

Yet U.S. allies won for the United States a loophole that it could not win for itself. They preserved American flexibility to use cluster munitions in joint operations with allies that might join the treaty, including key NATO partners like Britain.

A variety of pressures compelled the NATO powers in Dublin to support a ban in principle, but the biggest difficulty the ban presented to them was how their armed forces could continue to work together if they were bound not to use, transfer or stockpile cluster bombs, nor to “assist anyone” outside the treaty in doing so. NATO states called this assistance ban the “interoperability problem,” and for them it was a showstopper, committed as they are to joint operations with the United States.

The stage in Dublin was thus set for discord between, on the one side, ban proponents looking to replicate the Ottawa landmine ban convention’s blanket prohibition of a problematic weapon, and, on the other, a NATO-led group of countries committed to ensuring that the interoperability migraine they had after Ottawa would not be followed by a cluster headache after Dublin.

NATO won this particular battle. Drafters tucked into the Dublin treaty a provision that permits countries that sign it to “engage in military cooperation and operations" with countries that don't join even when those countries might use cluster bombs. For the United States, this addresses concerns about whether members of its coalitions are party to the cluster ban; they can cooperate militarily even if the United States uses cluster munitions.

This is a clear break from the Ottawa mine ban treaty, which doesn't include such a provision.

Cluster ban proponents opposed this loophole but evidently determined that a good treaty with NATO states in was better than a great one with them out. A failure to reach agreement in Dublin would have reanimated an alternative negotiating process under a competing treaty, the Convention on Conventional Weapons, where major military powers such as Russia, China and the United States – all of which oppose a ban – would have called the shots.

Dublin, then, while a major advance in the law of war, is neither clear victory nor clear defeat for anyone. It gives something for everyone to cheer and jeer.

But for Americans, there remains a more general shortfall. The Bush Administration opted out of engaging with others who sought objectives seemingly at odds with our own, and, as a result, weakened another kind of interoperability – the political and diplomatic interoperability that is an essential element of American leadership in the international community.

The Dublin Ban is unlikely to be the last of its kind. One hopes that, next time, a confident American foreign and military policy can engage allies and adversaries to ensure the greatest protection to the widest numbers of civilians.


Steven Solomon is Principal Legal Officer at the World Health Organization in Geneva, Switzerland; David Kaye is the Executive Director of the UCLA School of Law International Human Rights Program. Both negotiated law of war agreements under the Clinton and Bush Administrations.

JURIST Guest Columnist Lt. Col. Stephen Abraham (US Army, ret.), formerly assigned to the Office for the Administrative Review of the Detention of Enemy Combatants, says that the US Supreme Court's opinion in Boumediene v. Bush is the consequence of mistaken policy decisions made over the past six years and is a clear instruction to turn back from that path...

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On April 13, 1945, Supreme Court Justice Robert Jackson, speaking on the matter of war crimes trials, observed that “Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people.” He would later serve as chief prosecutor at the Nuremburg War Crimes Trials.

On June 12, 2008, the United States Supreme Court issued its opinion in Boumediene v. Bush, holding that provisions of the Military Commissions Act of 2006 relating to hearings for detainees at Guantánamo did not provide an adequate substitute for habeas corpus and therefore were unconstitutional.

The response was immediate - many rushed to evaluate what was to become of the “terrorist suspects at Guantánamo” while others mistakenly decried the decision as hastening the release of terrorists without further hearing. But in our haste to determine the effect of this opinion on the fate of 250 detainees at Guantánamo, we risk overlooking a far more reaching meaning of the opinion, one that, if disregarded, would ultimately relegate this latest decision to the position of a legal and historical footnote with little practical relevance.

In June of 2007, my declaration was submitted to the United States Supreme Court. In it, I spoke of my experiences while assigned to the military organization responsible for conducting the detainee tribunals and of my participation on such a panel. I concluded in my remarks, as I concluded while assigned to the organization, that the process put in place by the Executive Branch to review its detention of the prisoners at Guantánamo was designed not to ascertain the truth, but to legitimize the detentions while appearing to satisfy the Supreme Court’s mandate in Rasul that the government be required to justify the detentions. That process was intended to, or at least had the consequence of, lending a veneer of legitimacy to the detentions, to launder decisions already made.

It has been suggested by some that this declaration had the effect of causing the Court to change its earlier decision to deny review in the Boumediene case, a decision that effectively would have delayed, if not foreclosed, the possibility of Wednesday’s decision. I would not presume such an effect. But no matter what the reasons, the Court did reverse its decision, did hear the case in December, and did issue an opinion a year after the declaration was submitted.

Under the Court’s ruling, the provisions of the Military Commissions Act (MCA) denying federal courts jurisdiction to hear habeas actions relating to the detention of individuals at Guantánamo could not be constitutionally valid in light of the detainees’ constitutional privilege of habeas corpus. Specifically, the Court held that the inability of the detainees to challenge their detention proceedings and the prohibition in the MCA of a federal court’s review of alleged errors in those proceedings resulted, on their face, in an inadequate substitute for habeas corpus.

Just as was the case with the declaration and subsequent decision of the Court to hear the case, opinions regarding the Court’s decision were narrowly focused and immediate. Most reports seized upon the fact that terrorism suspects imprisoned at Guantánamo would now have their day in court. That, to my mind, focused on the consequences but not the meaning of the decision.

Guantánamo and the condition of the detainees evidence how speedily we tired of our constitutional rights, and how greatly we clamored for the illusion of security that we should so willingly, so quickly, and so easily surrendered one for the other.

The Supreme Court’s decision was not about Guantánamo; it was about here. It was not about the application of one particular act of Congress, but the application of all of our laws, whether they stem from any act of Congress, understandings of our Courts, or deeper, immutable principles of man and the rights attending our existence. It was not about our security but about our willingness to live under such conditions as we would impose on others. Ultimately, it was not about detainees by whatever names we may give them, but about every one of us and the inevitability of the consequences of our embracing of two standards of justice.

Justice Scalia warned in dissenting that the Court's decision “will almost certainly cause more Americans to be killed.” To him I submit that the failure of the Court to act would have affirmed the course taken these many years that have led to the deprivation of human liberties in specific instances and, more broadly, a factual precedent for the denial of the existence of those fundamental rights in the first instance. The Supreme Court's decision in Boumediene was compelled by threats of those that would end the great experiment that is not merely this nation's history but its destiny. Moreover, I would respond that more brave Americans than can be imagined by Justice Scalia have paid the ultimate sacrifice to preserve inalienable rights, the very essence and immutability of which have been denied by exercise of Executive prerogative.

At the opening session to the Nuremberg Trials, Robert Jackson, exclaimed, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” Wednesday, we were reminded of the record that we, as a nation, have allowed to be written for the more than six years that Guantánamo has remained open.

The Supreme Court’s opinion in Boumediene v. Bush was the consequence of our decisions over the past six years and is a clear instruction to turn back from that path.


Lt. Col. Stephen Abraham served with the Office for the Administrative Review of the Detention of Enemy Combatants in 2004 and 2005. He has served in the United States Army Reserve as a military intelligence officer for more than 22 years.

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that in the face of disconcertedly-vague and incomplete recollections by Cheney chief of staff David Addington and former DOJ lawyer John Yoo, other officials who witnessed the development of the Bush administration's torture policies should stand up for justice and tell their stories to the people so that criminal actions by administration lawyers and other high officials do not go unpunished - or under-punished....

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Watching the US House Judiciary Committee hearings yesterday I was struck by the careful similarity of litany between William Haynes, John Yoo and David Addington about their vague and imprecise recollection of all the events related to putting the Bush Administration's torture policy in place. It made me think that one of the qualities that must be sought in persons that are in these positions is the uncanny ability to fail to remember things – a sort of specialized "Torture Alzheimers". And the assertions of privileges that have been invoked by the current US Office of Legal Counsel head Stephen Bradbury (who has written his own torture memos) to ostensibly keep the former Office of Legal Counsel person, John Yoo, from speaking plainly about what went on is one extraordinary case of chutzpah – up there with the boy who killed his parents asking the court for mercy as he is an orphan. The left hand washing the right hand...

One part that struck me was the questioning about what can be done about the lawyers. The questions went two ways: 1) can a person be insulated from prosecution for having done things that common sense tells them are torture by relying on a legal memo and 2) is there any remedy that can be sought against a lawyer who writes an outrageous opinion? On the first question, there seemed to be a glimmer of recognition that those persons who actually do the torture could be prosecuted notwithstanding the reliance on the outrageous memo. On the second question, I must say I was struck by the comments that the only possibly remedy against the offending lawyer in this setting is bar discipline. Such solicitude! It seemed that no one dared speak of the possibility of high-level civilian lawyers being criminally prosecuted. Maybe that is just considered bad form at this level of government.

The concern expressed was with the people who have to do these dirty deeds and making sure that they do not have the rug pulled out from under them at a subsequent point. Of course, that is nonsense – the concern of Addington and Yoo and the persons with their hands all over the torture is that their own skin be saved. That was proved very clearly in the perfect willingness to allow the prosecutions of those low-level people at Abu Ghraib to go forward and the white-washing with regard to anyone who wore a star or a suit at higher levels. Anybody remember such solicitude expressed for Specialist Graner and the other so-called “bad apples”?

What we can glean is that there was a great deal of lawyer-to-lawyer discussion going on through the general counsel’s offices of the intelligence agencies, the Department of Defense, the White House, and the Department of Justice about what could or could not be done. And we also have confirmed again to us that the Speaker of the House and ranking members of the relevant Senate and House committees were most definitely in the loop to some extent about the policy, the legal analysis, and what went on. Nary a word of objection during all those years.

I am in Toledo, Ohio. I am not privy to all the inner sanctums where all these discussions went on. I am a mere citizen. I would just like to say that, notwithstanding all the artful dodging that went on in this hearing and in previous ones, I, as one citizen, am not duped. I know from the contours that torture was ordered from the President on down, that the lawyers wrote the convenient memos to make it possible, and that people have been tortured, murdered, and driven insane in several places in the world by this illegal policy of my government.

And as a citizen, with my little spark of the sovereign in our democratic system, I will not stand for it. I insist that the members of Congress open the windows, the Executive branch open the windows, and the Courts use their powers to order the windows open so that we can get to the bottom of this.

Not in some future administration, not in some future report. Now. Today.

I want to see this Attorney General stop “playing footsie” (legal term) and open an investigation and prosecution. There are plenty of people who saw what was going on who can come forward and speak about the roles of high-level civilians in putting torture in place. These policies did not drop from the sky but were concocted. I am certain that there are plenty of mid-level people in the government who know exactly where the dogs are buried in this setting and they are keeping quiet out of fear of retribution.

For all those people keeping quiet, I have a quote for you from a Martin Luther King, Jr. sermon “But, If Not” that one of my students brought to my attention, to wit:

You may be 38 years old, as I happen to be.
And one day, some great opportunity stands before you
and calls upon you to stand up for some great principle,
some great issue, some great cause.
And you refuse to do it because you are afraid.
You refuse to do it because you want to live longer.
You’re afraid that you will lose your job,
or you’re afraid that you will be criticized
or that you will lose your popularity,
or you’re afraid that somebody will stab you,
or shoot at you or bomb your house;
so you refuse to take the stand.

Well you may go on and live until you are 90,
but you’re just as dead at 38 as you would be at 90.

And the cessation of breathing in your life is but the belated announcement of an earlier death of the spirit. You died when you refused to stand up for right. You died when you refused to stand up for truth. You refused to stand up for justice.

-Dr. Martin Luther King, Jr.
From the sermon “But, If Not”
delivered at Ebenezer Baptist Church November 5, 1967

Where are the people in the Executive, Legislative and Judiciary who will stand up for right, for truth, and for justice on torture? Is that too much for a citizen to ask?


Benjamin Davis is a professor at the University of Toledo College of Law

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that so long as the United States is an occupying power or exercises effective control in any part of Iraq it must ensure that it is meeting its obligations to detainees under international law and the laws of war.

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Both presumptive presidential nominees are likely to attempt to downsize US military forces operating within Iraq if elected to the presidency. Obama would do so in a responsible manner, perhaps over a period of months, whereas McCain would leave US troops in-country for decades and downsize over a period of years. In either case, it is worth contemplating what might happen to persons who are detained by US military or other personnel in Iraq, or who are otherwise within effective US control. Is there a need for agreement concerning the detainees?

As a former and apparently present occupying power over any portion of Iraqi territory under its effective control, the US has responsibilities under the laws of war with respect to detained persons, and will have until any form of effective occupation ends. Such responsibilities continue to involve the absolute prohibitions of torture and cruel, inhuman, degrading, or humiliating treatment at US hands or in complicity with others. These prohibitions are also part of customary international law reflected in common Article 3 of the 1949 Geneva Conventions and are applicable to detained persons of any status. Also of interest is the absolute obligation under Articles 49 and 147 of the 1949 Geneva Civilian Convention to not transfer non-prisoners of war out of occupied territory or out of the theater of war within a country of detention such as Iraq. Under Article 4 of the Convention, it is clear that the protections under Articles 49 and 147 even reach nationals of a neutral state or a co-belligerent state while they are outside the actual territory of the detaining state (e.g., while outside U.S. territory). Persons who are security threats can continue to be detained under Articles 5 and 78 of the Geneva Civilian Convention if such is necessary for reasons of security and if there is periodic review of their status and release when detention is no longer necessary, but non-prisoners of war cannot be transferred out of Iraq. It is possible, therefore, that the US will attempt to continue to detain certain individuals within Iraq even after a significant withdrawal of US military forces, but US competence to do so would hinge on continuation of the applicability of Geneva law to an area, however small, where the US continues to exercise effective control.

Treaty-based and customary human rights law along with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), contrary to the Bush Administration, clearly apply wherever the US exercises effective control or jurisdiction over detainees, and such laws require that the US not transfer persons under its control to any country, including Iraq, if there is a “real risk” that the persons transferred will suffer human rights violations. Article 3 of the CAT also mandates that no party to the treaty “shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” More generally, complicit behavior by a state or its officials and its other nationals can create “state responsibility” under international law (which can lead to political, diplomatic, economic, and juridic sanctions against the state) and individual criminal and civil liability.

In view of the probable continuation of U.S. control of certain persons within Iraq (persons who, under Geneva law, cannot lawfully be transferred out of Iraq) and in view of continued US responsibilities under treaty-based and customary international law, it would seem to be in the interest of the US to offer the following clause with respect to any future agreement with the government of Iraq concerning US downsizing of troops and future relations and responsibilities between the US and Iraqi governments and their military forces:

“All persons in the hands of the US or in any other manner under effective US control who are protected in any manner under the 1949 Geneva Conventions shall remain under the complete jurisdiction and control of the US and shall not be transferred to any state where there is a real risk of deprivation of their human rights.”

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer, and member of the Faculty of the Judge Advocate General’s School. Discussion of some of the abovementioned and other duties of the U.S. appears in an earlier article: “The United States as Occupying Power Over Portions of Iraq and Special Responsibilities Under the Laws of War, 27 Suffolk Transnat’l L. Rev. 1 (2003).

JURIST Guest Columnist David Kaye of UCLA School of Law says that instead of the Supreme Court's habeas solution to the detentions problem in Boumediene v. Bush, Congress and President might better have engaged in a good faith legislative process to sketch out an appropriate and legally supportable detention system balancing the protections necessary for counter-terrorism purposes with well-established rights afforded combatants and civilians in armed conflict...

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As is now widely known, the Supreme Court’s June 12 decision in Boumediene v. Bush held that detainees at the Guantanamo Bay, Cuba, Naval Facility (GTMO) have the right to challenge the basis of their detentions in federal district court via habeas corpus. Extraordinarily thoughtful and quick commentary has now clotted the internet arteries, so much so that several leading legal blogs and websites, especially Opinio Juris, Balkinization, SCOTUSblog and JURIST, are essential resources to get an overview of the decision itself and the key debates triggered by the Court’s dueling opinions and dissents. The reflections here merely touch upon in an informal way a few of Boumediene's implications.

In the period following the attacks of September 11, 2001, I served as a principal staff attorney at the State Department handling the law of armed conflict, also known as international humanitarian law (IHL). On September 12, lawyers in our office began to consider what was, for us, a basic question: under IHL, how should we characterize any individuals associated with those attacks who may fall into U.S. hands? Remarkably, the Government is still struggling with this question, having failed to answer it appropriately several months after 9/11. Nearly seven years after 9/11, and over six years since GTMO was established as a detention site for individuals picked up in Afghanistan and elsewhere in the “war on terror,” the Boumediene decision brings the issue once again to the fore, where it belongs. Still, as for the key questions raised by the decision – what next for the detainees and the future of the U.S. system of detention at Guantanamo Bay? – at this point we can only speculate on the answers.

Justice Anthony Kennedy’s majority opinion pointedly emphasized “that our opinion does not address the content of the law that governs petitioners’ detention. That,” he said, “is a matter yet to be determined.” (Slip. Op. at 69) Yet determining the content of the law, and making a “definitive judicial determination as to the legality of their detention,” (id.) will necessarily be at the heart of the habeas litigation that virtually all of the detainees held at Guantanamo are certain to launch in coming days and weeks.

The habeas process will provide ample sustenance for both federal court and public international law junkies. Law review ink will be sacrificed to the many problems and opportunities that Boumediene presents, but here are a few among the great many international law-oriented questions that one should expect to animate the coming litigation and legal debate:

• Who may be lawfully held at Guantanamo?
  
  This question has both domestic and international law elements. Domestically, the Military Commissions Act of 2006 (MCA) defined an “unlawful enemy combatant,” a person subject to trial by military commission, as “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Section 948a, MCA. The MCA does not seek to define this term for detention purposes, nor does it purport to authorize detentions at GTMO. Indeed, Congress’ 2001 Authorization for Use of Military Force (AUMF) defined slightly differently the group against whom the President was authorized to use force, so two immediate questions are whether the category of persons listed in the MCA is coextensive with those who may be detained at Guantanamo and whether each detainee held at Guantanamo fits that category.
  
  
• What rule applies to determine who is lawfully detained?
  
  International law can shape the answers to the questions posed to policymakers, but to what extent will the courts refer to that body of law? The most obvious place to look for rules determining the category of combatants subject to detention by the United States in war would be the Geneva Conventions of 1949, in particular the Third Convention on Prisoners of War and the Fourth Convention on the Protection of Civilians. Together, these treaties, to which the United States is a party, provide a framework for determining who may be subject to detention by military authorities in international armed conflicts. In 2002, the President made a blanket determination that, in effect, led to the conclusion that everyone held at Guantanamo fell outside the Geneva protections but could nonetheless be held for the duration of the “war on terror.” In rejecting Bush Administration arguments in 2006, the Court in Hamdan v. Rumsfeld held that, at a minimum, Common Article 3 of the Geneva Conventions – a provision that applies minimum humanitarian standards for conflicts “not of an international character” – applies to the conflict with al Qaeda However, Common Article 3 provides little if any guidance to courts (or the military) as to the key questions of the bases and permissible length of detention. The habeas process may re-open these decisions to scrutiny.
  
  
• Are the Geneva Conventions an available source of law in federal habeas actions?
  
  It may very well be that the Geneva Conventions, or at least Common Article 3, provide the appropriate rule of decision, allowing a court to read into them rights detainees may have related to the fact and length of their confinement. However, Section 5 of the Military Commissions Act provides, “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding . . . as a source of rights in any court of the United States . . .” Does Section 5 preclude the federal courts from applying the Geneva Conventions, including Common Article 3, to these cases? Did the Congress unconstitutionally attempt to constrain the federal courts from applying existing treaty law to which the United States is bound? (A superb argument on this issue may be found at the Boumediene amicus filing, Brief of Federal Courts and International Law Professors as Amici Curiae in Support of Petitioners (Geneva Enforceability), at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-1195_PetitionerAmCuFedCtILawPr.pdf).
  
  
• If the Geneva Conventions are unavailable in U.S. courts, may judges look to the customary international law of war, which largely tracks the Geneva Conventions, or international human rights law to determine the rights a detainee may have (for instance, to be free from arbitrary detention)?
  
  The Bush Administration and the conservative wing of the Court have pushed hard against the use of customary international law by federal courts. But if treaty law is taken out of the equation, the basis for detaining combatants may be found in customary international humanitarian law, which may not differ substantially from the Geneva Conventions. Indeed, the Reagan Administration had acknowledged that several key provisions of the 1977 Additional Protocols to the Geneva Conventions, a treaty updating the 1949 Conventions which the United States has not joined, reflect customary IHL to which the U.S. Government is bound. One could thus imagine the habeas litigation becoming a fulcrum for the general debate over whether customary law may provide a rule of decision in federal courts. Moreover, customary IHL has been reviewed considerably by international criminal tribunals since the middle 1990s, such as the ones for the former Yugoslavia and Rwanda, and the results have tended to analyze IHL from a strongly human rights-oriented basis. In short, the effort to remove the treaties from federal court purview may undermine, rather than strengthen, Bush Administration arguments.
  
  
• Will the courts challenge the Administration’s conclusion that the “war on terror” is an armed conflict for legal purposes, such that IHL applies?
  
  Will courts distinguish the armed conflict in Afghanistan from the Bush Administration’s worldwide conflict with al Qaeda (the one it relied on to justify detaining Algerians picked up in Bosnia, such as the Boumediene petitioners)? It would be surprising if federal courts were now to challenge the basic determination that the United States is in an armed conflict with al Qaeda, a construct unquestioned in Hamdan and widely (though not universally) supported in Washington (but opposed in Europe). At the same time, however, the Supreme Court has become involved in detention policies in this conflict to such an extent that it is impossible to exclude the possibility that even this fundamental issue may come under renewed scrutiny. If the courts head in this direction, one could imagine different rules for those captured in Afghanistan (a battlefield context) from those captured in, for example, Bosnia (a law enforcement context).

These questions merely skim the surface of the difficult legal issues federal courts will face in the upcoming habeas litigation. A better response than habeas would be for the Congress and President to engage in a good faith legislative process to sketch out an appropriate and legally supportable detention system, one that balances the protections necessary for counter-terrorism purposes and well-established rights afforded combatants and civilians in armed conflict. Unless the Administration and Congress can rise above election year politics, that kind of process, unseen since the terrible attacks of 9/11, will likely have to wait until next January.

David Kaye is executive director of the international human rights law program at UCLA School of Law and a longtime member of the American Society of International Law.

JURIST Guest Columnists Lt. Col. Stephen Abraham and Judge William S. Sessions say that the recent ruling by the US Supreme Court in Boumediene v. Bush not only restores the delicate balance of power between the three branches of government but ensures a meaningful judicial review of detentions that can separate detainees who are dangerous and rightly being held from those who were simply in the wrong place at the wrong time....

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Last Thursday, in the case of Boumediene v. Bush, the United States Supreme Court finally put to rest the odious notion that a president, like a monarch or dictator, has the unchecked power to lock people up and throw away the key on his or her say-so alone. The affirmation of the right to habeas corpus – or the right to challenge one’s detention before an independent judge – is a resounding victory for all who will ever seek the firm and fair justice that is the hallmark of America’s courts.

Delivering the opinion of the Court, Justice Anthony Kennedy wrote that “security subsists...in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” We could not agree more. As individuals who have served at the highest levels of law and government, we cannot help but believe that the restoration of one of the great principles on which our country was founded marks the beginning of the end of a dark period in American history.

The foundation of checks and balances upon which our nation was built was dangerously undermined with the passage of the Military Commissions Act of 2006. By stripping federal courts of the authority to hear challenges to the detention of so-called “enemy combatants,” Congress simultaneously neglected its own role as a check on the power of the President and weakened the ability of American courts to intervene when constitutional rights are threatened.

The government’s claim that the prison at Guantanamo Bay was, in essence, a legal vacuum where only the President’s word has power would have been easily disregarded as outrageous had the consequences not been so perilous. The Supreme Court’s recognition that the Constitution applies, even in the depths of the world’s most notorious prison, is a monumental triumph for the world’s greatest democracy

But the action by the Supreme Court did more than restore the delicate balance of power between the three branches of government: meaningful judicial review of detention is fundamental to the process of separating those detainees who are dangerous and rightly being held from those detainees who were simply in the wrong place at the wrong time. Our national security strategy is dangerously misguided when we apply our financial and military resources to the task of guarding both the criminally dangerous terrorists and the innocents. Some have argued that habeas corpus actually undercuts the authority of the Commander in Chief. Quite to the contrary, as Justice Kennedy noted, “the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch.”

In the wars of the last century between uniformed armies, identifying who was the enemy was simply a matter of identifying a flag. Today, identifying those prisoners who are actual threats whom we need to detain and are entitled to detain, is significantly more difficult. Those into whose hands more than 750 detainees have been delivered have failed, even after six years, to perform this task in a constitutionally permissible manner. As a result, we must assume independent judicial review of the detentions to be the only way of ensuring that we have captured those responsible for terrorist attacks and, just as importantly, that the innocent are detained not one day longer.

Many of the detainees have now been held in Guantanamo for more than six years, without any meaningful review of the basis of their detention. The continued detention of hundreds of men without charge has only fed our enemies’ propaganda machines and hampered our long-term efforts to defeat terrorism and promote the rule of law around the world. The Court’s affirmation of the right of these individuals to challenge the factual basis for their detention will allow for full and fair hearings before an independent Federal judge and will begin the long process of restoring America’s reputation as the defenders of freedom wherever it continues to exist in the world.

We have both repeatedly called on Congress to restore the habeas corpus rights they eliminated in the Military Commissions Act. But the time for congressional penitence has long passed, and our elected officials must now resist the temptation to undo the Court’s work through another round of capricious intervention in the review of these cases. Our nation’s judges should be allowed to do their jobs without partisan politics interrupting their efforts at every turn.

Writing for the majority of the Court, Justice Kennedy rejected the argument that “the political branches have the power to switch the Constitution on or off at will.” Congress should pay heed to such an important point, no matter how disconcerting it was that the point had to be made at all.


Lt. Col. Stephen Abraham served with the Office for the Administrative Review of the Detention of Enemy Combatants in 2004 and 2005. He has served in the United States Army Reserve as a military intelligence officer for more than 22 years.

Judge William S. Sessions served as the Chief Judge of the United States District Court for the Western District of Texas and as Director of the Federal Bureau of Investigation. He is a member of the Constitution Project’s Liberty and Security Committee.

Both authors are writing in their personal capacities.

JURIST Guest Columnist Tamir Moustafa of Simon Fraser University in Canada says that although the Egyptian government's recent extension of the emergency law may be the last in a string of renewals over the past half-century, this does not have pro-democracy activists dancing in the streets...

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Late last month, the Egyptian government extended its emergency law for another two-year period, this time through May of 2010. The emergency law, which has been in force almost continuously for the past half century, is one of the principal ways that the Egyptian government maintains its control over opposition. Among other measures, the emergency law prohibits public gatherings, enables the police to detain citizens without charge, and provides for trial before emergency state security courts.

Like clockwork, this state of emergency has been continuously extended in order to maintain the regime’s grip on power. However, the periodic renewal of emergency powers may finally be in its last cycle for the first time in a half-century. You might think that pro-democracy advocates are celebrating in the streets of Cairo, but they are not.

Here’s why: Beginning in 2005, President Hosni Mubarak and his ruling National Democratic Party (NDP) began pushing through dozens of political reforms. All were packaged as progressive openings in the political system. In reality, they have done quite the opposite.

Take the first multiparty Presidential elections in 2005. Framed as a historic step, the actual nomination procedures as they now stand require a threshold so high that it is unlikely any parties will qualify to run candidates in 2011. And the leading candidate from the 2005 Presidential election? He’s still in jail.

Similarly, President Mubarak promised that he will abolish the emergency powers that have been in force for the entire 27 years of his presidency. He may hold true to this commitment before the current emergency law expires, but if this comes to pass it is only because the regime will have completed a fundamental reengineering of a more foolproof legal system.

For at least two decades, the ruling NDP has progressively moved aspects of the emergency law into other areas of the legal code. Opposition parties, human rights groups, and civil society activists used the Egyptian court system throughout this process to fight the web of illiberal legislation spun out by the ruling National Democratic Party. They often achieved surprising legal victories.

But in the past seven years the legal battle became progressively more difficult. The Egyptian Supreme Constitutional Court lost much of its mettle when it was packed in 2001, and the ability of rights groups to effectively challenge government legislation was lost in the process. More worrisome for the long term has been the government’s initiative to embed the most draconian aspects of the emergency law right into the Constitution itself. The most egregious example of this is Article 174 of the Constitution, amended in 2007, which now provides the President with the power to transfer all terrorism-related cases from the regular judiciary to military courts. What was once a procedure governed by a legal statute is now melded into the fabric of the Constitution. A new terrorism law, due out sometime this year or next, will also most likely be drafted with loose and ambiguous language, allowing for the effective transfer of all political opponents into parallel legal tracks with fewer due process rights.

All of this has made opposition activists nervous indeed. Already, activists of all stripes have felt the sting of the emergency state security courts. And despite the fact that the Muslim Brotherhood renounces violence and has worked for change within the political system (they hold nearly all of the opposition seats in the People’s Assembly), they are periodically detained without trial and taken before military tribunals.

In many regards, the Egyptian story is similar to that of other states in the current wave of authoritarian consolidation. Like Russia, Venezuela, and others, the Egyptian regime has not cast aside law and legal institutions. Instead, the regime has actually made “rule by law” a central instrument of political control, going so far as to entrench these changes in the Constitution.

If and when the Egyptian government stops renewing its state of emergency, it should not be viewed as a mark of progress. Rather, it will indicate that a fundamental illiberal reengineering is complete.


Tamir Moustafa is Associate Professor of International Studies at Simon Fraser University, British Columbia, Canada. He is the author of The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge University Press, 2007) and co-editor (with Tom Ginsburg) of Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008)

JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, says that Ireland's recent "No" vote in its referendum on the European Union's Lisbon Treaty means that Ireland could find itself marginalised, although certainly still an EU member, if the other EU's 26 other Member States continue to move ahead with ratification....

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The most significant change to the European Union (EU) in the last fifteen years is how much it has grown. From the six original founder members, the EU now has twenty-seven Member States. The Lisbon Treaty, signed last December, represents the latest updating of the EU’s basic legal documents and seeks to provide the best institutional framework for the enlarged Union of 27. Unlike the defunct 2004 Treaty establishing a Constitution for Europe which was voted down in France and the Netherlands in 2005, the Lisbon Treaty “merely” amends the current rules rather than replacing them with a new set. To enter into force, like any previous EU treaty, it must be ratified by all the Member States in accordance with their respective constitutional requirements. This is why, unlike the US practice with respect to constitutional amendment where a super-majority (three-fourths) of the legislatures of the US States suffices, any EU Member State, regardless of its size, can theoretically inflict a fatal blow to any new treaty by refusing to ratify it.

This is precisely what happened in Ireland, where a referendum is constitutionally required - following a 1987 judgment of the Irish Supreme Court - for any new EU Treaty deemed to contain reforms altering the “essential scope or objectives” of the EU. On Friday the 13th of June, the Irish electorate rejected the Lisbon Treaty by 53.4% to 46.6%. This is not the first time Ireland has refused to ratify an EU amending Treaty. In 2001, Irish citizens voted against ratification of the Nice Treaty before approving it in 2002 in a second referendum organized after a new declaration was annexed to it and according to which the EU shall not prejudice Irish neutrality.

Before exploring the uncertain future of the Lisbon Treaty and the options available to the EU, it may be useful to briefly review and assess the three most influential reasons for rejection put forward by Irish critics of the Treaty:

1. The Treaty is unreadable and its added-value is unclear: This would appear to have been the main reason cited for voting No in the Irish referendum. The Treaty, however, is no more complex than a typical constitutional amendment bill. Furthermore, this complexity merely reflects Member States’ insistence on maintaining the strictest control over the evolution of law-making at EU level. In other words, it is precisely because the EU is not a “superstate” that it needs a more complicated rule-book. With respect to its added-value, it was indeed difficult for advocates of the Treaty to come up with an inspiring narrative in order to “sell” it as it mostly contains institutional reforms which, to be fully understood, require a great deal of knowledge about the current functioning of the EU. This is not to say, however, that these reforms are not required to make Europe function “better”. The trouble for the Yes camp is that it pursued too many goals simultaneously within an extremely short length of time: it had to explain what the EU currently does, deconstruct the deliberately misleading claims put forward by most anti-Treaty people and finally, clarify the impact of a rather dull, multi-dimensional and technical amending text. And with no obvious price to be paid in case of a “No” vote – at least according to the No-camp during the campaign – Irish voters have been tempted to use the Lisbon referendum to express their frustration about many different things while some hoped to secure an undefined “better deal”.
   
   
2. The Treaty undermines Ireland’s power and identity: Due to rather limited public knowledge of how the EU presently works, critics were able to present the reduction in the Commission’s size and the new double-majority voting system in the Council of Ministers (the EU institution representing the national governments) as direct threats to Irish influence. They simply fail to mention that a new system of equal rotation among Member States for future appointments to the Commission will be implemented. In effect, each country would have one of its nationals serving as Commissioner for 10 years out of every 15. As regards the new double-majority voting system, where it applies – unanimity will continue to apply in some important areas including defence and taxation – EU legislation, to be adopted, will require the approval of at least 55% of the Member States, i.e. 15 Member States out of 27 with each Member State getting one vote, representing 65 per cent of the EU’s population. This voting system perfectly reflects the double nature of the EU as a Union of States and of European peoples. It is furthermore more democratic than the current voting system by guaranteeing that a coalition of “small” countries will not pass legislation against the will of the most populated states. Generally speaking, the most important point may be that while Irish membership of the EU membership has had an impact on its de jure sovereignty, it has dramatically increased its de facto sovereignty. Outside the EU, Ireland’s power to shape the norms governing its trade and promote its culture and values, would have certainly been almost nonexistent.
   
   
3. The Treaty is a threat to Irish neutrality: It has now become routine for some groups to condemn any new EU treaty as a threat to Irish neutrality. Yet unanimity is still required for a European common defence policy to occur or any decision having military or defence implications. Furthermore, the Lisbon Treaty requires the EU to act in accordance with the principles of the United Nations Charter and with respect for the specific character of the security and defence policy of certain Member States such as Ireland. To argue about the “militarization” of the EU, following the inclusion of the mutual defence and solidarity clauses, is also ludicrous. The codification of a duty to act in a spirit of solidarity in the event of a natural or man-made disaster or of a terrorist attack should be positively viewed as it demonstrates that European solidarity is not an empty slogan. As for the mutual defence clause, i.e. the duty of assistance to a fellow EU State victim of armed aggression, it only offers a diluted version of the NATO clause which today binds 21 Member States out of 27 and importantly, will not deprive Ireland of its right to determine the nature of its assistance in accordance with its constitutional framework. Finally, the EU is, and will remain under the Lisbon Treaty, a “soft” power with very limited military capacities. The civilian aspect of its goals and means of action is overwhelming. In addition, the emphasis on the United Nations Charter and respect for international law is a feature one would like to see enshrined in the US Constitution.

Regardless of the doubtful accuracy of the points raised by anti-Treaty critics,