International Law Prof Blog

The ABILA International Criminal Court Committee Issues a Statement on the Announcement of a Travel Ban Against ICC Officials Working on the Afghanistan Situation

March 25, 2019

STATEMENT BY THE AMERICAN BRANCH OF THE INTERNATIONAL LAW ASSOCIATION INTERNATIONAL CRIMINAL COURT COMMITTEE: 

THE UNITED STATES AND THE ICC

The Committee expresses concern about U.S. Secretary of State Michael R. Pompeo’s recent announcement regarding an intended travel ban against International Criminal Court (“ICC”) officials working on the Afghanistan situation.  The ban is crafted to revoke visas from ICC personnel and staff who are “directly responsible for any ICC investigation of U.S. personnel,” including those who “take or have taken action to request or further such an investigation.”  Secretary Pompeo suggested that the ban could also extend to ICC staff working on the Israel/Palestine situation, and that the administration is “prepared to take additional steps, including economic sanctions if the ICC does not change its course.”  Secretary Pompeo’s statement follows on the heels of an address by National Security Adviser John Bolton, in a speech to the Federalist Society last year, which made even broader threats. 

The International Criminal Court is an independent and impartial judicial institution designed to prosecute only the gravest crimes of concern to the international community—including genocide, crimes against humanity, and war crimes.  It has numerous open investigations and prosecutions regarding mass atrocity crimes in many countries, and has 123 States Parties that support it. 

While the United States is not a party to the ICC Statute, Afghanistan is a State Party, so the conduct of U.S. nationals in Afghanistan is within the Court’s jurisdiction.  

The Afghanistan preliminary examination, which alleges crimes were committed by U.S. armed forces and members of the Central Intelligence Agency (“CIA”), is mostly focused on horrific atrocity crimes believed to have been committed by the Taliban and affiliated groups (including crimes against humanity and war crimes through “intimidation, targeted killings and abductions of civilians”), as well as allegations involving Afghan Armed Forces.  The inquiry regarding U.S. nationals is most predominantly related to torture, including acts by CIA officials well-documented by the United States Senate Committee on Intelligence. The Afghanistan preliminary examination also makes reference to crimes on the territory of other ICC States Parties, which presumably refers to Poland, Romania, and/or Lithuania, also known to have housed secret CIA “black site” prisons.

The United States has every interest in ensuring that violations of the federal torture statute or similar violations under the Uniform Code of Military Justice are prosecuted. Moreover, under the “complementarity” regime in Article 17 of the ICC’s Statute, a country can avoid Court action by conducting its own investigations and prosecutions.  Rather than trying to obstruct the work of the ICC, the United States should commit to thoroughly investigating and, where justified, prosecuting these cases, thereby precluding them from ever appearing on the ICC’s docket.  This is the path chosen by the U.K., which has to date conducted extensive investigations (although no prosecutions yet) in the wake of similar allegations against U.K. forces in Iraq.

The tactics first announced by John Bolton, and now furthered through this recent move, are reminiscent of strategies that have backfired on the U.S. in the past.  When the U.S. pursued under the Bush Administration a campaign to obtain so-called “Article 98” or “Bilateral Immunity Agreements,” countries that lost U.S. military assistance by refusing to enter such agreements turned to China instead. 

A show-down between the ICC and the United States benefits neither.  The optics for the United States—insisting on a policy of “exceptionalism” by which its nationals are above the law—are extremely poor.  Secretary Pompeo’s statement, which highlights past U.S. support for international prosecutions such as those for crimes committed in the former Yugoslavia and Rwanda, only illustrates the hypocrisy of the U.S. providing support for international justice only when non-U.S. nationals are prosecuted.  If anything, the U.S.’s policy of exceptionalism sets broader and exceedingly troubling precedent for leaders worldwide, some of whom will be all too willing to follow suit in order to insulate their nationals from accountability. 

Pompeo pledged America’s “enduring commitment to the rule of law, accountability, and justice.”  The U.S. should follow that pledge and, rather than attacking a judicial institution, commit itself to pursuing the rule of law domestically, by conducting its own investigations, and, as warranted, prosecutions.

--ABILA ICC COMMITTEE 

Professor Jennifer Trahan, Chair

American Society of International Law Annual Meeting

The American Society of International Law holds its annual meeting this week in Washington, D.C., featuring a breath-taking array of programs and speakers.

The Public International Law and Policy Group will give out free copies of its new book, “The Legacy of Ad Hoc Tribunals in International Criminal Law” (Cambridge University Press, 2019). And just like last year, they'll also be handing out free Girl Scout cookies. What's not to love about the ASIL annual meeting?

Hat tips to Mark Agrast, Michael Scharf, Milena Sterio, and Paul Williams

(mew)

Suffolk is Hiring

Suffolk University Law School in Boston will be hiring a Visiting Assistant Professor of Academic Support for the coming year. They hope to have someone in place by July 2019. The school plans to start a search in September for a permanent ASP hire, and the visitor will be eligible to apply for that position. The visitor will be working predominantly in the area of bar prep support.

Application materials should be submitted using the following link: http://jobs.jobvite.com/suffolkuniversity/job/ontI9fwr. Contact Professor Herbert Ramy at Suffolk if you have questions about the position.

Hat tip to Kathleen Vinson.

(mew)

Bocconi University in Milan Hosts Conference on "The American Presidency After the First Two Years of President Trump

Bocconi University in Milan held a conference today on "The American Presidency After the First Two Years of the President Trump." Speakers include:

• Giuseppe Franco Ferrari (Bocconi University)
• Donato Masciandaro (Bocconi University)
• Nausica Palazzo (University of Trento)
• Paolo Passaglia (University of Pisa)
• Roberto Toniatti (Univeristy of Trento)
• Attilio Geroni (Foreign Affairs Editor, Il Sole 24 Ore)
• Davide Zecca (University of Pavia)
• Donald H. Regan (University of Michigan Law School)
• Giancarlo Rando (Universita Giustina Fortunato)
• Gennaro Sangiuliano (Director, TG2, RAI)
• Guerino D'Ignazio (University of Calabria)
• Anna Ciammariconi (University of Teramo)
• Roberto Louvin (University of Calabria)
• Andrea Colli (Bocconi University)
• Roberto Scarciglia (University of Trieste)
• Davide Bacis (University of Pavia)
• Arianna Vedaschi (Bocconi University)
• Mark E. Wojcik (The John Marshall Law School--Chicago and Fulbright Professor, Università degli Studi di Bari “Aldo Moro” Facoltà di Giurisprudenza, Bari
• Mario del Pero (SciencesPro)

The conference was organized by the Angelo Sraffa Department of Legal Studies, Baffi Carefin Centre for Applied Research on International Markets, Banking, Finance, and Regulation, School of Law. The conference was supported by the U.S.-Italian Fulbright Commission and the Consulate General of the United States in Milan.

(mew)

International Law and the Constitution of Mongolia: A Question for Our Readers

Article 10 of the Constitution of Mongolia provides:

1. Mongolia shall adhere to the universally recognized norms and principles of international law, and shall pursue a peaceful foreign policy.
2. Mongolia shall enforce and fulfil in good faith its obligations under the international treaties to which it is a Party.
3. The international treaties to which Mongolia is a Party, shall become effective as domestic legislation, upon the entry into force of the laws on their ratification or accession.
4. Mongolia shall not comply with or abide by any international treaty or other such instruments that are incompatible with this Constitution.

So here's our question. Does article 10(3) state that treaties are effective as domestic legislation when the treaty enters into effect or when implementing domestic legislation enters into effect? Please leave your answers for us in the comment section, thanks!

English text of the Mongolian Constitution courtesy of the constituteproject.org, a database of enacted and draft constitutions from around the world.

(mew)

New Edition of "Transnational Business Problems"

The sixth edition of Transnational Business Problems, a casebook by the late Detlev F. Vagts, William S. Dodge (California-Davis), Hannah L. Buxbaum (Indiana-Bloomington) and Harold Hongju Koh (Yale), will be published in May 2019 and available for Fall 2019 courses. Click here for more information about Transnational Business Problems, Sixth Edition. If you're a professor teaching an international business transactions course, contact the publisher to request a review copy.

Here's what the publisher would like you to know: At fewer than 600 pages, this compact book is ideal for a one-semester course. It's a single volume book with four introductory chapters discussing the role of the international lawyer, the resolution of international disputes, the relationship between international and domestic law, the extraterritorial reach of domestic law, and corporate social responsibility. The introductory chapters are followed by eight problems, each focused on a different kind of transaction: transnational sales, agency and distributorship agreements, licensing, foreign direct investment, mergers and acquisitions, joint ventures, concession agreements, and international debt instruments. Each problem covers both contractual and regulatory issues. Nearly all begin with a sample contract.

Other points from the publisher:

• Sophistication. The book uses primary source materials—draft contracts, statutes, regulations, treaties, cases, and arbitral awards—that allow students, with help from the text, to work through issues in a realistic way. The book goes beyond the nuts and bolts of transactions to encourage consideration of broader policy issues: from the liability of corporations for human rights violations to restrictions on foreign investment; from the compulsory licensing of HIV drugs to the restructuring of sovereign debt.
• Geographical Diversity. Transnational Business Problems reflects the geographical diversity of business today. The problems focus on China, the European Union, the Andean Community, Mexico, and Brazil. Materials from other parts of the world are included in the introductory chapters.
• Intellectual Heritage. Transnational Business Problems grows out of a rich intellectual heritage that began with Milton Katz and Kingman Brewster’s International Transactions and evolved into Henry Steiner and Detlev Vagts’s Transnational Legal Problems. The book views transnational business problems as a particular species of transnational legal problem that both generates and is influenced by transnational legal process.
• Fully Updated. The Sixth Edition of Transnational Business Problems is fully updated to account for developments through the start of 2019. The introductory chapters and many of the problems have been substantially revised. Every year between editions the authors provide an update in memo form that teachers can distribute as a supplement to their classes.
• Useful Teacher’s Manual. Transnational Business Problems has a complete teacher’s manual that provides suggestions on how to approach the material and answers to all of the questions posed in the text. The manual also contains sample syllabi.

(mew)

 

Proposals Invited for the 14th Global Legal Skills Conference in Phoenix, Arizona: First CFP Deadline is March 15

Here's a reminder that proposals are invited for the next Global Legal Skills Conference, which will take place on December 12-14, 2019 in Phoenix at the Sandra Day O’Connor College of Law at Arizona State University.  In addition to the conference, there will be a Scholars’ Forum on December 11 and an optional day trip on December 15, 2019.

Proposals for presentations are now being accepted at http://forms.law.asu.edu/gls14.  The first call for proposals will close on March 15 and presenters will be notified by April 30.  Late submissions will be reviewed until May 31 on a space-available basis. 

Please contact Professor Kim Holst at Arizona State University or Professor Mark E. Wojcik at The John Marshall Law School in Chicago if you have questions about the conference.

(mew)

Proposals Invited for the 14th Global Legal Skills Conference in Phoenix, Arizona

Proposals are invited for the next Global Legal Skills Conference, which will take place on December 12-14, 2019 in Phoenix at the Sandra Day O’Connor College of Law at Arizona State University.  In addition to the conference, there will be a Scholars’ Forum on December 11 and an optional day trip on December 15, 2019.

Proposals for presentations are now being at http://forms.law.asu.edu/gls14.  The first call for proposals will close on March 15 and presenters will be notified by April 30.  Late submissions will be reviewed until May 31 on a space-available basis. 

Please contact Professor Kim Holst at Arizona State University or Professor Mark E. Wojcik at The John Marshall Law School in Chicago if you have questions about the conference.

(mew)

Early-Bird Prices Expire Today for the ABA Section of International Law Annual Meeting

A quick reminder that TODAY, FRIDAY, 1 MARCH is the LAST DAY for the "Early Bird" Discount on registration for the American Bar Association Section of International Law's Annual Conference, to be held  9-13 April 2019, in Washington, D.C.

(mew)