Write On! ASIL Research Forum

(Thanks to IntLawGrrls for the opportunity to contribute this guest post, another in IntLawGrrls' Write On! series)

The American Society of International Law has launched a new initiative that may be of interest. On November 4 and 5 of this year we will be launching the first ASIL Research Forum at UCLA Law School. We hope that the Forum will become be a yearly scholarly conference on new research in international law.
Spearheading the initiative is the 2011 ASIL Research Forum Committee:
► Co-Chairs: yours truly, Laura Dickinson, Foundation Professor and Faculty Director at the Center for Law and Global Affairs, Arizona State University Sandra Day O'Connor College of Law, along with Kal Raustiala, Professor at the UCLA School of Law and Director of UCLA's Ronald W. Burkle Center for International Relations.
► Committee members: Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee University School of Law, along with IntLawGrrl guests/alumnae Nienke Grossman, University of Baltimore School of Law, and Mary Ellen O’Connell, an ASIL Vice President and the Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution at Notre Dame Law School.
The idea is to hold an event that is focused around in-depth discussion of works in progress. Particularly welcome are interdisciplinary projects, empirical studies, and research that deploys new methodologies to study international or transnational law.
Proposals are due April 30, and will be reviewed anonymously.
The official call for papers is below:

Call for Scholarly Papers
The Inaugural ASIL Research Forum
November 4-5, 2011
The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011.
The Research Forum is a new initiative of the Society aimed at providing a setting for the presentation and focused discussion of works in progress. The Spring Annual Meeting does this in part through its "works-in-progress" sessions, but the Research Forum aims to do this exclusively.
The Research Forum will be held in the fall and, as possible, coordinated as an integral part of the Fall ASIL Mid-Year Meeting. All ASIL members are invited to attend the Forum, whether presenting a paper or not.
Interested participants should submit a proposal (preferably 500, and no more than 1,000, words in length) summarizing the scholarly paper to be presented at the forum. Papers can be on any topic related to international and transnational law. Works-in-progress are particularly encouraged. Interdisciplinary projects, empirical studies, and jointly authored proposals are welcome.
Submissions should be sent to 2011forum@asil.org by April 30. Proposals will be vetted anonymously by the Research Forum Committee with selections to be announced by June 15.
At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

That the Holy See is often treated as a state is deeply troubling, for several reasons. For one thing, the Catholic Church isn't truly a sovereign nation; to allow it to play one on the international stage perverts the meaning of statehood.

-- UCLA Law's Kal Raustiala and Lara Stemple, in a Los Angeles Times op-ed that assesses the Holy See (flag at left; prior posts) against standard measures of state sovereignty and finds it sorely lacking -- notwithstanding a Vatican official's claim that Pope Benedict XVI enjoys head-of-state immunity.

Holder's Special Prosecutor

Several major news outlets reported this week that Attorney General Eric J. Holder, Jr. is considering appointing a special prosecutor to investigate the interrogation practices employed during the Bush Administration -- a move that would be contrary, perhaps, to President Barack Obama's entreaty to look forward, not backwards. (See especially the fascinating portrait of Holder's dilemma by Newsweek, the source of the Holder photo above right, as well as the Washington Post's coverage). It has been speculated that the move is at least partially motivated by the results of the CIA Inspector General report on torture that may or may not be released earlier than the promised August 31st. One name that has been floated for the position of Special Prosecutor is Assistant U.S. Attorney John Durham from Connecticut (short bio here), who, at the behest of former Attorney General Michael B. Mukasey, is already investigating the destruction of CIA tapes that depicted waterboarding and other interrogation tactics.

Holder's volte face, if he follows through on it, would do much to bring the United States back into compliance with the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which the U.S. joined in 1994. That treaty at Article 4(1) obliges state parties to penalize "all acts of torture":

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

In addition, pursuant to Article 5(1), each state party is to "take such measures as may be necessary to establish its jurisdiction" over such acts when committed

• in any territory under its jurisdiction (the territorial principle of jurisdiction); or
• when the alleged offender is a national (the nationality principle of jurisdiction).

Article 12 mandates that states make immediate inquiries into the facts where

there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13 requires that victims have an opportunity to raise claims of torture to competent authorities:

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

The obligations apply equally to the prohibition against cruel, inhuman and degrading treatment of punishent, a prohibition that is also set forth within the Torture Convention.
The United States implemented the Torture Convention in two ways: first, by enacting a penal statute (18 U.S.C. §2340) and second, by enacting a civil statute (28 U.S.C. §1350 note, the Torture Victim Protection Act). In addition, acts of torture and other forms of cruel treatment may be prosecuted as war crimes under 18 U.S.C. §2441. In addition to these international crimes, the Special Prosecutor could also bring garden variety criminal charges (battery) or recommend courts martial for members of the armed forces and others subject to military jurisdiction.

In terms of the international law charges:
► First: 18 U.S.C. §2340A authorizes prosecutions against U.S. nationals, but only for torture committed "outside the United States." Certainly places like Camp Delta at Guantánamo Bay and Bagram Air Base in Afghanistan are outside the territorial United States. The U.S. Supreme Court has twice ruled, however, that the U.S. Naval Base at Guantánamo is essentially within U.S. jurisdiction. (The first ruling in Rasul v. Bush (2004), extended statutory habeas rights to Guantánamo detainees. Once Congress amended the habeas statute, the Court in Boumediene v. Bush (2008), extended constitutional habeas rights to the same detainees on the recognition that the U.S. exercises "plenary control" over the naval base, even though de jure sovereignty still vests in Cuba. See here for prior blog posts on these rulings.) The question of whether detainees at Bagram Air Base, which number over 600, have habeas rights is currently the subject of litigation in Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). For a discussion, see Kal Raustiala's excellent ASIL Insight. Bagram Air Base, located in an active theatre of war, exists pursuant to a lease similar to that governing GTMO, and the Obama Administration has resisted extending the Boumediene ruling to Afghanistan. This is complicated by the fact that in 2001, the USA Patriot Act of 2001 expanded the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States to include the premises of United States military or other United States Government missions or entities in foreign States. So, bases outside the U.S. were no longer "outside the U.S." within the meaning of §2340. Detention centers not on bases might still have been. The expansion of the SMTJ had the unintended, it is claimed, effect of narrowing the reach of the §2340. This anomaly was corrected by the National Defense Authorization Act for Fiscal Year 2005 (NDAA05), which prospectively amended 18 U.S.C. §2340(3) to read as follows:

“‘United States’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”

So when and where abuses took place will determine the applicability of §2340. Certain provisions of title 18 do apply to the SMTJ, such as assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), manslaughter (18 U.S.C. § 1112), and murder (18 U.S.C. § 1111).

► Second: As an alternative to the torture statute, war crimes charges could potentially be brought under 18 U.S.C. §2441, the War Crimes Act of 1996, which applies to war crimes committed by U.S. nationals "inside or outside the United States". That statute lists torture, cruel treatment, inhuman treatment, mutilation, maiming, serious bodily injury, rape, sexual assault, and sexual abuse as war crimes. As discussed here, however, Congress, with the Military Commissions Act of 2006, amended the War Crimes Act in subtle yet significant ways that made it more difficult to prosecute abusive practices that fall short of torture.

► Finally, although the Attorney General can frame the mandate of the Special Prosecutor as narrowly as he likes -- even restricting him/her to investigate certain departments, etc. -- the Special Prosecutor can follow any leads relevant to the original mandate. This could result in a more wide-ranging investigation, especially given expansive notions of complicity liability. As a result, the special prosecutor’s investigation could implicate the architects of the detainee policy, including the lawyers who gave advice to the Bush Administration. Actual prosecutions would test arguments made in governmental memos about which types of conduct and interrogation methods constitute unlawful torture and other forms of prohibited cruel treatment. This has the potential to bring U.S. law into line with established jurisprudence from the international war crimes tribunals and human rights institutions, which have determined that many acts perpetrated upon detainees at Guantanamo and elsewhere constitute torture.

Even apart from criminal prosecutions, a full-scale investigation could produce information that would achieve some of the aims of the truth commission concept floated earlier this year by some Democrats.

(IntLawGrrls' various posts on these issues of accountability may be found here, here, and here.)

Human rights law's arm gets a bit longer

Do laws that constrain state agents on state territory also apply abroad?
The question's occupied U.S. courts for half a century, as our colleague Kal Raustiala recently wrote, and it lurks beneath the surface of much of the post-9/11 executive detention litigation.
The House of Lords weighed in yesterday in Al-Skeini and others v. Secretary of State for Defence, a case challenging treatment by British troops of Iraqi civilians detained in Iraq. The Law Lords ruled that the Human Rights Act, adopted in 1998 to give internal effect to Europe's Convention on Human Rights and Fundamental Freedoms, has some, but not full, extraterritorial reach. The Lords relied most heavily on Banković v. Belgium, in which survivors of an air attack on Serbia applied to the European Court of Human Rights for redress against states that adhered both to the European Convention and the NATO treaty. The states denied the incident implicated their duty to guarantee rights "to everyone within their jurisdiction," as I've written:

According to "‘the ordinary and well-established meaning ... in public international law,’" states argued, jurisdiction "‘involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to the State or who have been brought within that State’s control,’" and "‘generally entails some form of structured relationship normally existing over a period of time.’" The Court agreed that Convention obligations ordinarily apply only within a member state’s territory; therefore, it rejected the application. Yet it reaffirmed its authority in exceptional cases to review a state’s exercise of extraterritorial jurisdiction. Such exceptions might occur when a state, "through the effective control of the relevant territory and its inhabitants abroad as a consequence of a military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that government," the Court wrote, or when a state acts outside its territory pursuant to international law. It indicated that judicial review would be particularly appropriate when necessary to avoid stranding applicants in a "vacuum in human rights’ protection."

Based on similar reasoning the Law Lords extended Human Rights Act protections to 1, but not all 6, of the Iraqi claimants; lawyers in the latter cases say they'll now press their claims before the Strasbourg Court.