Posts Tagged ‘George W. Bush’

Judging on the U.S. Court of Appeals for the D.C. Circuit

April 11, 2013

The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.

"Sri" Srinivasan

“Sri” Srinivasan

The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.[1]

Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.

On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.

The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.[2]

Perhaps the partisan wrangling over appointments to this Court is overwrought.

Senior Judge David B. Sentelle

Senior Judge David B. Sentelle

Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.[3]

Judge David S. Tatel

Judge David S. Tatel

Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle.  Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.”  Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”

The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”

Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”

In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”

[1] President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post .

[2] If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.

[3] Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.

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The Voting Rights Act of 2006

March 6, 2013

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] This provision extended for 25 years a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.[2]

Before we discuss that argument, we will look at the Voting Rights Act of 2006.[3]

Its stated Purpose in Section 2(a) was “to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.” The last reference, of course, included the Constitution’s Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

The 2006 statute did that by reauthorizing and extending for 25 years (until 2032) the following essential provisions of the original Voting Rights Act of 1965:

  • Section 2 forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result.
  • Section 5 (the focus of the current case before the Supreme Court) only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.”  Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.”
  • Such approval or preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.”
  • The “covered jurisdictions” subject to section 5 were identified in section 4(b), as subsequently modified, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.”
  • Upon satisfying certain criteria a state or other jurisdiction could obtain “bailout” from section 5 or be subject to “bail-in” to such coverage.

The Voting Rights Act of 2006 was overwhelmingly adopted by the Congress: 98 to 0 in the Senate and 390 to 33 (with 9 not voting) in the House. In doing so, the Congress acted on the basis of a legislative record over 15,000 pages in length, including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.[4]

Given this extensive record before Congress, Section 2(b) of the Voting Rights Act of 2006 contains the following extensive congressional Findings:

  • “(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.
  • “(2) However, vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.
  • “(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.
  • “(4) Evidence of continued discrimination includes—
  • “(A) the hundreds of objections interposed, requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by the Voting Rights Act of 1965, and section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982 that prevented election practices,such as annexation, at-large voting, and the use of multimember districts, from being enacted to dilute minority voting strength;
  • “ (B) the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia;
  • “(C) the continued filing of section 2 cases that originated in covered jurisdictions; and
  • “(D) the litigation pursued by the Department of Justice since 1982 to enforce sections 4(e), 4(f)(4), and 203 of such Act to ensure that all language minority citizens have full access to the political process.
  • “(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982, as demonstrated in the counties certified by the Attorney General for Federal examiner and observer coverage and the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.
  • “(6) The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.
  • “(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.
  • “(8) Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.
  • “(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

PresBush signign VRAOn July 27, 2006, President George W. Bush signed this statute in a ceremony on the South Lawn of the White House (as shown in the photo to the left). Attending the event were Attorney General Alberto Gonzalez and other members of the Cabinet, the leaders of the United States Senate and House of Representatives, representatives of the Fannie Lou Hamer family,  representatives of the Rosa and Raymond Parks Institute, members of the Martin Luther King, Jr. family and  civil rights leaders, including Dr. Dorothy Height, Julian Bond (the Chairman of the NAACP), Bruce Gordon, Reverend Lowery, Marc Morial, Juanita Abernathy, Jesse Jackson, Al Sharpton and Dr. Benjamin and Frances Hooks.

On that occasion President Bush said, “By reauthorizing this act, Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [Voting Rights Act of 1965] . . .  by President Johnson is worthy of our great nation to continue.”

That original statute, President Bush continued, “rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965 . . . [when] African Americans . . .  marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.The brutal response [to the marchers that day] . . . stung the conscience of a slumbering America. . . . One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act [of 1965] into law in the Rotunda of our nation’s capitol.”

President Bush recognized that in the “four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.” By signing the Voting rights Act of 2006, President Bush concluded, we “renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.”

———————–

[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577 (2006).

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3]  A prior post discussed the original Voting Rights Act of 1965. Other posts will discuss two other predicates for the recent Supreme Court argument: the previous Supreme Court case regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder) and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the that argument (Shelby County, Alabama v. Holder).

[4]  The 2006 Act also overruled two Supreme Court decisions interpreting the statute.

 

 

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GOP Senators Continue To Flirt with Filibusters

February 28, 2013

This past January U.S. Senate Majority Leader Harry Reid refused to press for adoption on a simple majority vote (at least 51 of the 100 Senators) of significant, but still flawed, reforms of the body’s filibuster rule. Instead Reid and Minority Leader Mitch McConnell agreed to much weaker changes to the rule. Past posts have expressed my dissatisfaction with this rule and the recent change.

As a result, the Senate and the U.S. are still facing threatened filibusters by Senate Republicans over confirmation of presidential nominations.

Chuck Hagel

Chuck Hagel

The most recent example is the nomination of Chuck Hagel to be Secretary of Defense.

Yes, on February 26th the U.S. Senate did vote, 71 to 27, to invoke cloture and end debate on voting on confirmation of this nomination. The 71 votes came from 53 Democratic, 2 Independent and 18 Republican Senators, including Senators John McCain and Lindsay Graham, who continued to be severe critics of Hagel. (Two Democratic Senators did not vote: Mark Udall and Frank Lautenberg.)

Later that same day the Senate voted, 58 to 41, to confirm Hagel for this position. For this vote, only four Republican Senators were in the majority: Senators Thad Cochran, Mike Johanns, Richard Shelby and Rand Paul. (Senator Lautenberg did not vote.)

While I am pleased that there was no prolonged filibuster of this nomination and that the  Senate did vote on confirmation, getting there, in my opinion, was needlessly prolonged and again demonstrated the dysfunctionality of the Senate. Here are some of the reasons for that opinion:

  • In early February Democratic Senator Carl Levin, the Chairman of the Armed Services Committee, delayed a committee vote on the nomination in an attempt to garner support for same from some of the Republican committee members.
  • On February 14th, the Senate failed by one vote to invoke cloture, 59 to 40 (Majority Leader Harry Reid later switched his “Yes” vote to “No” so he could later move to reconsider cloture).
  • Republican Senators Lindsay Graham and James Inhofe had put “holds”on the nomination and thereby prevented a vote on confirmation; Graham wanted more information from the Administration about the Benghazi attack (in which Hagel had no involvement) while Inhofe fomented that Hagel was anti-Israel.
  • Chris Cillizza, a Washington Post columnist, reported that Republicans were voting against cloture because there were no political risks from doing so; they said they had legitimate doubts about Hagel’s ability to lead the Pentagon; and resistance was a Republican rallying cry.
  • Another Washington Post columnist, Jonathan Bernstein, stated that Republican Senators are insisting on a 60 vote requirement for virtually everything because many of them see no difference on cloture and substantive voting and do not require extraordinary reasons to vote against cloture.
  • Senator McCain said that one of the reasons for Republican opposition to Hagel, their former Republican Senate colleague, was his very vocal criticism of President George W. Bush over the Iraq war.
  • Some Republican Senators were opposed to Hagel for allegedly receiving money from a group called “Friends of Hamas” — a rumor that started with a joke about a nonexistent group.
  • On February 15th 15 Republican Senators wrote a joint letter to President Obama asking him to withdraw the Hagel nomination.
John Brennan

John Brennan

This dysunctionality is not over with the confirmation of Hagel. Senator McCain has threatened a similar GOP strategy with respect to confirmation of John Brennan as Director of the CIA.

Jacob J. Lew

Jacob J. Lew

On the other hand, the Senate on February 27th confirmed, 71 (including 20 Republicans) to 26, the nomination of Jacob J. Lew for Secretary of the Treasury.

And on February 25, 2013, the Senate confirmed, 93-0, Robert Bacharach to be a judge on the U.S. Court of Appeals for the District of Columbia Circuit. He, however,  had been appointed to that position in January 2012, and in the last Congress, in July 2012, clouture was defeated, 56-34.

All of this silliness over Chuck Hagel and potentially over John Brennan would have been prevented if the Senate this past January had adopted more significant reform of its rules regarding filibuster.

 

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Should the International Criminal Court Indict George W. Bush and Tony Blair over Iraq?

September 3, 2012

Desmond Tutu

On September 2nd Desmond Tutu, a Nobel Peace Prize Laureate and the retired South African Anglican Archbishop, said, “The immorality of the United States and Great Britain’s decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilized [sic] and polarised [sic] the world to a greater extent than any other conflict in history.” Therefore, Tutu continued, “In a consistent world, those responsible for this suffering and loss of life [George W. Bush and Tony Blair] should be treading the same path as some of their African and Asian peers who have been made to answer for their actions [at the International Criminal Court] in the Hague.”

These remarks in London’s Observer newspaper followed Tutu’s withdrawal last week as a speaker at a conference in South Africa because Tony Blair was also to be a conference speaker.

Tony Blair

Tony Blair immediately responded to Tutu’s comments. Blair said, Tutu had repeated “the old canard that we lied about the intelligence [on Iraq] is completely wrong as every single independent analysis of the evidence has shown.” In addition, according to Blair, “to say [as Tutu had] that the fact that Saddam massacred hundreds of thousands of his citizens is irrelevant to the morality of removing him is bizarre.” Finally Blair claimed that “despite the problems, Iraq today has an economy three times or more in size with child mortality rate cut by a third of what it was.”

However morally appropriate Tutu was on his criticism of the decision to start the Iraq war, his call for ICC prosecution of Bush and Blair is not legally well founded.

That was the legal conclusion on February 9, 2006, by the ICC’s Office of the Prosecutor in response to many communications expressing concern regarding the launching of military operations and the resulting human loss. This conclusion was documented in a detailed memorandum by the ICC Prosecutor that set forth the following reasons:

  • The ICC did not have jurisdiction over any actions by Iraqi or U.S. citizens because Iraq and the U.S. were not States Parties to the Court’s Rome Statute.
  • Although the Court had jurisdiction over the crime of “aggression” under the Statute’s Article 5, that crime had not yet been defined and thus could not be a basis for any charges.[1]
  • Although there was information indicating war crimes of intentional killing and inhuman treatment had been committed, the information did not suggest that they were “part of a plan or policy or as part of a large-scale commission of such crimes” as required by Article 8 of the Statute.
  • There was no information that the Coalition forces had an  “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”, as required in the Statute’s definition of the crime of genocide (Article 6).
  • There was no information of “a widespread or systematic attack directed against any civilian population” as required in the Statute’s definition of crimes against humanity (Article 7).

Therefore, the Office of the Prosecutor stated the statutory requirements for initiating a formal investigation of the situation in Iraq had not been satisfied.[2]

[1] As discussed in a prior post, a definition of the crime of aggression was agreed to at the Court’s June 2010 Kampala Review Conference, but its actual use by the Court will not happen until after January 1, 2017 and only if there is a two-thirds vote of approval of the amendment by the Court’s Assembly of States Parties and ratification of the amendment by at least 30 States Parties.

[2] There are many posts about the ICC on this blog. To find them, just click on “International Criminal Court” in the tag cloud to the right of this post.

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ICC Prosecutor Reports About Sudan/Darfur to the U.N. Security Council

June 8, 2012

U.N. Security Council

 

Prosecutor Moreno-Ocampo

On June 5th the ICC’s Prosecutor, Luis Moreno-Ocampo, gave his semi-annual report to the U.N. Security Council.

He said the Court had “fulfilled its judicial mandate. The evidence collected uncovered the functioning of the State apparatus used to commit genocide, crimes against humanity and war crimes. Those who bear the greatest responsibility have been indicted [Sudanese President al-Bashir, its defense minister, former interior minister and a leader of the Janjaweed  militia]. The current challenge is their arrest.”

The Prosecutor added, “President Al Bashir is taking advantage of his position of power to continue with his strategy and to ensure his own impunity and the impunity of those who follow his instructions.” That strategy, the Prosecutor stated, includes:

  • “threats to the international community to commit new crimes in other areas of the Sudan;
  • denial of his own crimes, denial of the rapes in the villages and in the camps; attributing the killings to banditry, sporadic clashes between rebel groups, or reducing its relevance through statistic comparisons; and attributing conditions in the camps to other factors like drought, lack of proper seeds or inability to access farming land;
  • forcing the international community into a never-ending negotiation in order to gain access to those displaced;
  • a permanent promise of a peace negotiation. The international community chases promises of peace agreements that are systematically ignored while President Bashir’s forces commits more attack and creates the conditions for new promises of peace agreements;
  • announcements of justice initiatives followed only by new announcements, not by action. After more than seven years of instituting judicial mechanisms, the . . . [government] has conducted no proceedings relevant to the crimes committed in Darfur; and
  • the open defiance of the Security Council’s authority including public announcement that its resolutions will not be implemented.”

The Prosecutor, therefore, suggested that the Council request all 193 U.N. member states or regional organizations to take action to enforce the arrest warrants.

The Council’s record of the meeting indicates that the Prosecutor’s report was supported by the representatives of the U.S., the U.K., France, Germany Portugal, Colombia, Guatemala and Togo. More qualified support with emphasis on assisting negotiation of peace accords to end the fighting in Sudan/Darfur was expressed by Morocco, South Africa, Pakistan, Azerbaijan, Russia, India and China.

The session ended with a heated exchange between Moreno-Ocampo and the Sudanese Ambassador after earlier he had rejected the Prosecutor’s assertions as “fallacious.”

The Prosecutor said that he was advising the Council and putting the Ambassador on notice that his denial of crimes in Darfur “could be considered part of those crimes” and that the Prosecutor’s office had “an obligation to investigate anyone responsible for the commission of crimes.” Therefore, his office would investigate whether this denial “could be considered a contribution to a group of perpetrators acting with a common purpose” and would take appropriate action if the evidence supports such a contention.

The Sudanese Ambassador responded in Arabic (and translated into English) that this statement was “a violation of all political and diplomatic norms. It is a threat that should be rejected . . . and a statement of a terrorist who is trying to silence the voice of justice and [a statement] of a politician who does not recognize the political and diplomatic rules and norms that give us the right to defend ourselves and make our voices heard by the Council.” The Ambassador added that the Prosecutor “has tackled all of these issues–in a totally illegal, immoral and illogical manner, to the extent of intimidation and terrorization.”

Earlier posts have discussed various aspects of the ICC’s investigation of the Sudan/Darfur situation, including the Security Council’s referral of the Sudan/Darfur situation to the ICC in March 2005 during the George W. Bush Administration and the Prosecutor’s report to the Council in June 2011 with a comment to the latter about the December 2011 report to the Council.

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Will the U.S. Senate Finally Give Its “Advice and Consent” to U.S. Ratification of the Law of the Sea Treaty?

May 10, 2012

The United Nations Convention [Treaty] on the Law of the Sea sets out international rules for maritime navigation, territorial waters and countries’ use of offshore areas as exclusive economic zones. It was the result of an international conference that concluded on December 10, 1982 at Montego Bay, Jamaica when the U.S. and 120 other nations adopted the text of the treaty, and it went into force on November 16, 1994. Now 162 of the 193 U.N. member states are parties to the treaty.

The U.S. signed the treaty on July 29, 1994, but it has not been ratified by the U.S. Such ratification, however, is once again on the table as we will see after reviewing what has happened in the U.S. with respect to the treaty in the nearly 30 years since it was adopted. This is another example of the complicated and difficult process of obtaining U.S. Senate advice and consent to ratification of a treaty by a two-thirds vote (67 Senators) under Article II, Section 2(2) of the U.S. Constitution that was examined in a post with respect to the Convention Against Torture.

Background

Although the treaty was concluded during his Administration, President Regan did not sign the treaty. Nor was it signed during the George H.W. Bush Administration.

President Bill Clinton

But on July 29, 1994, President Bill Clinton signed the treaty along with a July 28, 1994, Agreement resolving U.S. and others’ objections to a part of the treaty. On October 7, 1994, Clinton submitted the treaty and the Agreement to the U.S. Senate for its “advice and consent” to ratification by the U.S. In his transmittal message, President Clinton said that since 1982 successive U.S. administrations had not signed the treaty because of flaws in its regime for managing the development of mineral resources of the seabed beyond national jurisdiction, but these provisions had been changed by the just mentioned Agreement.[i] Therefore, according to the President, it was now appropriate for the U.S. to join the treaty. President Clinton also stated:

  • “The United States has basic and enduring national interests in the oceans and has consistently taken the view that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Each succeeding U.S. Administration has recognized this as the cornerstone of U.S. oceans policy. Following adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to traditional uses of the oceans and to encourage other countries to do likewise.”

Furthermore, President Clinton continued, this treaty had the following benefits for the U.S.:

  • “The Convention advances the interests of the United States as a global maritime power. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements and of commercial vessels to carry sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the territorial sea at 12 nautical miles; by setting forth navigation regimes of innocent passage in the territorial sea, transit passage in straits used for international navigation, and archipelagic sea lanes passage; and by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond.”
  • “The Convention advances the interests of the United States as a coastal State. It achieves this, inter alia, by providing for an exclusive economic zone out to 200 nautical miles from shore and by securing our rights regarding resources and artificial islands, installations and structures for economic purposes over the full extent of the continental shelf. These provisions fully comport with U.S. oil and gas leasing practices, domestic management of coastal fishery resources, and international fisheries agreements.”
  • The treaty is “a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution . . . . [It thereby]  promotes continuing improvement in the health of the world’s oceans.”
  • The “Convention sets forth criteria and procedures to promote access to marine areas, including coastal waters, for research activities.”
  • “The Convention facilitates solutions to the increasingly complex problems of the uses of the ocean–solutions that respect the essential balance between our interests as both a coastal and a maritime nation.”
  • “Through its dispute settlement provisions, the Convention provides for mechanisms to enhance compliance by Parties with . . . [its] provisions.”

Nine years later in October 2003, the Senate Committee on Foreign Relations held the first hearings on the treaty, and on February 25, 2004, the Committee unanimously ordered it to be reported favorably without amendments to the full Senate. The treaty went to the Senate floor on March 11, 2004 with a report by Committee Chair, Republican Senator Richard Lugar of Indiana. However, no vote on the resolution of advice and consent had been taken when the congressional session ended in December 2004, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

The George W. Bush Administration had asked for ratification in 2004. In fact, the Law of the Sea was one of only five treaties that the Bush Administration placed in its “urgent” category on its list of treaty priorities. Widespread support for ratification was expressed to the Committee:

  • Representatives from the Department of State, the Office of the Secretary of Defense, the U.S. Navy, the U.S. Coast Guard, and the Commerce Department testified in support of the Convention at various Congressional hearings.
  • Representatives from six Bush Administration Cabinet departments participated in the interagency group that helped write the resolution of advice and consent accompanying the treaty. And the U.S. Commission on Ocean Policy, appointed by President Bush, strongly endorsed U.S. accession to the Law of the Sea.
  • In the private sector, every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies that use underwater cables, supported U.S. accession to the Law of the Sea and are lobbying in favor of it. The National Foreign Trade Council, representing hundreds of exporting companies, also supported ratification.
  • Moreover, a long list of environmental and ocean groups had endorsed the treaty because it would protect and preserve the marine environment and establish a framework for further international action to combat pollution.
  • During the Committee’s consideration of the treaty, it received just one inquiry voicing opposition to the measure and that was from an individual representing himself. Staff offered to receive written testimony from this individual, but none was sent.

Senator                Richard Lugar

Despite this strong support for ratification of the treaty, full Senate consideration of the treaty in 2004 had been held up by vague and unfounded concerns about its effects. Chairman Lugar commented that these concerns had been expressed primarily by those who oppose virtually any multi-lateral agreement. “Various conservative lobbyists have indicated strong objections—they believe our sovereignty will be impugned.” Senator Lugar lamented this inaction. He said, “If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multi-lateral solution to any international problem is likely to be accepted within the U.S. policy-making structure.” Moreover, the Bush Administration was not willing to expend political capital to push for ratification, and Senate Majority Leader Frist was not willing to put it on the Senate calendar in light of a threatened filibuster.

Senator Joe Biden

Nearly three years later, in September and October 2007, that Committee held another set of hearings on the treaty, and on October 31, 2007, ordered it to be reported favorably without amendments to the full Senate by a vote of 17 to 4. The treaty went to the Senate floor on December 19, 2007 with a report by Committee Chair, Democratic Senator Joe Biden of Delaware. However, no vote on the resolution of advice and consent had been taken when the congressional session concluded on January 2, 2009, and, therefore, the treaty was referred back to the Committee on Foreign Relations.

Senator Lugar again reflected on this failure to obtain the Senate’s advice and consent to ratifying this treaty. He said there needed to be a “reinvigorated Senate commitment to the treaty process.” Senate leaders of both parties, he said, had allowed narrow objections to prevent Senate consideration of this and other treaties and had been unwilling to invoke cloture to terminate debate on treaties. For this blogger, this is another example of the abysmal rules of the U.S. Senate.

Renewal of Interest in U.S. Ratification of the Treaty

As previously mentioned, possible U.S. ratification of the treaty is back on the table.

Secretary Leon Panetta

On May 9, 2012, Secretary of Defense Leon Panetta gave a lengthy speech calling for such ratification. He said this treaty is “the bedrock legal instrument underpinning public order across the maritime domain” and yet the U.S. is the only permanent member of the U.N. Security Council and the only industrialized country in the world that is not a party. This puts the U.S. at a distinct disadvantage, particularly when it comes to disputes over maritime rights and responsibilities.

Panetta noted, as detailed above, that the Senate Foreign Relations Committee has held hearings and approved the treaty by large bipartisan majorities and that the treaty is supported among major U.S. industries in order to be able to do their business and to accomplish their goals.

The same is true for national security, Panetta said, as demonstrated in comments by the Chairman of the Joint Chiefs of Staff, the Chief of Naval Operations, the Commandant of the Marine Corps, and the Coast Guard Commandant. Panetta then listed some of the reasons why this treaty is essential to a strong national security.

First, as “the world’s pre-eminent maritime power,” the U.S. with one of the largest coastlines and extended continental shelf in the world “has more to gain from accession to the Convention than any other country because of the interest we have from our coastlines, from our oceans, and from our continental shelves.  By . . .  sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea.  If we’re not there, then . . . [others will] do it, and we won’t have a voice.” Under these circumstances, the U.S. will not be able “to ensure that our rights are not whittled away by the excessive claims and erroneous interpretations of others.” To be a party, on the other hand, “would give us the credibility to support and promote the peaceful resolution of disputes within a rules-based order.”

Second, by joining the Convention, the U.S. “would protect our navigational freedoms and global access for our military, our commercial ships, our aircraft, and our undersea fiber optic cables.  As it currently stands, we are forced to assert our rights to freedom of navigation, asserting hopefully, through customary international law, which can change to our own detriment.” But by joining the Convention, “we would help lock in rules that are favorable to freedom of navigation and our own global mobility.”

Third, “accession [to the treaty] would help lock-in a truly massive increase in our country’s resource and economic jurisdiction, not only to 200 nautical miles off our coasts, but to a broad continental shelf beyond that zone.”

Fourth, “accession would ensure our ability to reap the benefits of the opening of the Arctic – a region of increasingly important maritime security and economic interest.  We already see countries that are posturing for new shipping routes and natural resources as Arctic ice cover melts and recedes.  The Convention is the only means for international recognition and acceptance of our extended continental shelf claims in the Arctic, and we are the only Arctic nation that is not party to the Convention.”  Accession would also “preserve our navigation and over-flight rights throughout the Arctic, and strengthen our arguments for freedom of navigation through the Northwest Passage and Northern Sea Route.”

Finally, the new U.S. “defense strategy emphasizes the strategically vital arc extending from the Western Pacific and East Asia into the Indian Ocean region and South Asia.”  Many countries “sit astride critical trade and supply routes and propose restrictions on access for military vessels in the Indian Ocean, Persian Gulf, and the South China Sea.” The U.S. has had a consistent naval presence and engagement in these critical regions.   Becoming a party to the Convention would strengthen the U.S. position in these key areas. By not acceding to the Convention, the U.S, potentially is undercutting “our credibility in a number of Asia-focused multilateral venues – just as we’re pushing for a rules-based order in the region and the peaceful resolution of maritime and territorial disputes.”  Being a party to the treaty is also important for the U.S. efforts to preserve freedom of transit in the Strait of Hormuz in the face of Iranian threats to impose a blockade.

Democratic Senator John Kerry, the Chairman of the Senate Foreign Relations Committee, has said that he is considering holding new hearings on the treaty.

Conclusion

In a presidential election year bipartisan cooperation is even more difficult than normal, especially after Senator Lugar’s loss in the Indiana primary election this past Tuesday. Therefore, it seems unlikely that the Senate this year will give its advice and consent by a two-third’s vote to ratification of this treaty. We will wait and hope that this assessment is proven wrong.

[i]  Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994

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Federal Appellate Court Grants Immunity to Author of Legal Memoranda Regarding U.S. Detention and Interrogation of Suspects in the “War on Terrorism”

May 4, 2012

U.S. Court of Appeals,        9th Circuit

John Yoo

On May 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously held that John Yoo was immune from civil liability to Jose Padilla (and his mother) for Yoo’s authoring legal memoranda in 2001-2003 for the U.S. Department of Justice regarding the detention and interrogation of U.S. citizens who had been declared to be “enemy combatants.”

This civil case arises out of Padilla’s arrest and detention by U.S. military officials. In May 2002 Padilla was arrested at O’Hare International Airport near Chicago on suspicion of plotting a radiological bomb attack in the U.S. and was detained under a federal material witness arrest warrant until June 9, 2002, when President George W. Bush declared Padilla to be an “enemy combatant.” For the next 3 and a half years Padilla was detained in a military brig where he repeatedly was subjected to sleep deprivation, shakling, stress positions, solitary confinement and administration of psychotropic drugs. In January 2006 he was transferred to a federal civilian detention facility in Miami, Florida, where a federal jury in August 2007 found him guilty of conspiring to kill people and to support overseas terrorism and a federal judge in January 2008 sentenced him to 17.3 years imprisonment. This conviction was affirmed in September 2011 by the U.S. Court of Appeals for the Fourth Circuit, which vacated the 17.3 sentence as too lenient. The case was remanded to the district court where the case awaits the new sentencing.

Jose Padilla

This civil case was commenced by Padilla and his mother in January 2008. The complaint alleged that Yoo, as an attorney in the U.S. Department of Justice’s Office of Legal Counsel, had authored various legal memoranda that provided purported legal justification for Padilla’s detention and interrogation, all in violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution, Article III and the Habeas Suspension and Treason Clauses of the Constitution and a federal statute. The complaint sought nominal damages of one dollar and a declaration that his treatment violated these constitutional and statutory provisions.

After the district court denied Yoo’s motion to dismiss the complaint, he appealed to the Ninth Circuit, which reversed the trial court on the previously mentioned immunity ground.

The Ninth Circuit correctly concluded that this appeal was governed by the U.S. Supreme Court’s 2011 decision, Ashcroft v. al-Kidd, 131 S. Ct. 2974, which held that           “[q]ualifed immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The alleged right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

With this major premise in hand, the Ninth Circuit then concluded that in 2001-2003, when Yoo was at the Department of Justice, it was not clearly established that a U.S. citizen held in military detention as an enemy combatant was entitled to the same constitutional and statutory rights as convicted prisoners and that Padilla’s treatment amounted to torture.

John Yoo himself in an op-ed article in the Wall Street Journal naturally applauded the decision. His resistance to this lawsuit, he said, was “not just to defend the tough decisions that had to be made after 9/11. We fought to protect the nation’s ability to fight and win the war against al Qaeda—and other enemies—in the future.”

Yoo also launched bitter attacks on human rights groups that support lawsuits like the one against him and others who hold opposite opinions on the interrogation tactics. Such groups, he said, seek to “advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.” Democratic Representative Nancy Pelosi was cited by Yoo as being misleading on the substance of a briefing by the CIA on its interrogation tactics. President Obama, according to Yoo, lacked “backbone” by declaring “the CIA’s interrogation methods to be ‘torture’  before the courts or his own Justice Department had delivered a considered opinion . . . [by launching] an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate . . . [by trying] to close Guantanamo Bay without any real alternative . . . [by stalling] special military commissions established by President Bush and ratified by Congress, and [by relying] on drones to kill rather than capture al Qaeda leaders for their intelligence.”

The Wall Street Journal, a long-time supporter of Mr. Yoo and the other authors of the legal memoranda in question, also welcomed the Ninth Circuit’s decision. The Journal declared in an editorial that the decision “vindicates the principle that government officials are immune from private litigation for their national-security decisions. The law has long held that executive branch officials can’t be sued for other than criminal acts so they can carry out their duties in the best interests of the country without threat of personal liability.” More vindictively, the Journal said the decision was a “watershed for repudiating sham tort claims whose goal is to intimidate—and perhaps bankrupt—anyone who dares to treat terrorists differently from shoplifters. In a better world, Padilla’s pals at the ACLU and the . . . [Yale Law School] Human Rights Clinic would be hit with sanctions and a bill for Mr. Yoo’s costs.”

The New York Times, on the other hand, criticized this decision. Its editorial acknowledged that the Ninth Circuit followed, as it had to, a U.S. Supreme Court ruling in 2011 that the so-called qualified immunity existed unless “existing precedent” put the claimed right “beyond debate.” This Supreme Court decision, however, had changed the legal standard for such immunity; previously it had required that a reasonable person would have known about the alleged right he allegedly had violated.

According to the New York Times, the Ninth Circuit’s decision this week showed why the new Supreme Court standard was “unworkable.” The newspaper said “the Bush administration manufactured both ‘debates’ — about torture and enemy combatants. . . .  By using the ‘enemy combatant’ category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.” The Ninth Circuit decision can be used, the Times said, by future administrations “to pull the same stunt as cover for some other outrage.”

In the meantime, as reported in a prior post, Yoo and five other authors of the legal memoranda regarding detention and interrogation of individuals in the so-called war on terrorism are the suspects in a criminal case in Spain under the principle of universal jurisdiction that the trial court had temporarily dismissed or stayed so that the issues could be pursued in the U.S. On March 23, 2012, an appeals court in Spain affirmed the trial court’s decision. However, three of the 17 members of this appellate court dissented on the grounds that the conduct authorized by these memoranda were crimes under international and Spanish law and that the requirements for a Spanish court to defer to  U.S. authorities under Spain’s concept of “subsidiarity” had not been satisfied.

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Are International Criminal Tribunals Successful?

April 2, 2012

Michael Ignatieff, a former Harvard professor and expert on international human rights and a former leader of Canada’s Liberal Party, in a recent issue of The New York Review of Books expressed a gloomy view of the post-World War II development of international criminal tribunals.

The actions of the U.S. and other great powers have contributed to his negativity. He says, “America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. . . . [The] US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application. From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”

This negative assessment is buttressed by the new memoir by David Scheffer (All the Missing Souls: A Personal History of the War Crimes Tribunals). Scheffer, who was one of the leading U.S. diplomats involved in the negotiations that created these tribunals, recounts the U.S. resistance to (i) providing U.S. intelligence information to the ICTY; (ii) seeking to arrest the most egregious defendants for the ICTY; and (III) having U.S. citizens, especially soldiers, being subject to the jurisdiction of the International Criminal Court (ICC).  A review of this book is the nominal subject of this essay by Ignatieff.

Scheffer’s post-mortem on his frustrations as the lead U.S. diplomat at the Rome Conference that produced the Rome Statute for the ICC is especially instructive on why the U.S. voted against that treaty at the conclusion of the conference and more generally on the U.S. process for negotiating and ratifying multilateral treaties.

According to Scheffer, there were four main reasons for the inability of the U.S. to advance its positions at the Rome Conference and its eventual vote against the treaty at the conference’s conclusion. U.S. military officials failed to know and understand other nations’ perspectives on the ICC and to explain to other nations the role of the U.S. military after the end of the Cold War. Nevertheless the U.S. military’s opposition to the ICC dictated the terms of the unsuccessful U.S. negotiating positions at the conference. In addition, the U.S. government was unable to make timely policy decisions on key issues being negotiated for the treaty. Thirdly, there are always distractions and other matters clamoring for the attention of the President and his top advisors; for President Clinton and the Rome Conference it was the Monica Lewinsky scandal. Finally, Republican Senators Jesse Helms of North Carolina and Rod Grams of Minnesota, who were vehemently opposed to the idea of an ICC, attended the Rome Conference to make their views known to other governments.

Scheffer also provides important background information on two developments after the Rome Conference that remind us that there are important issues for a treaty like the Rome Statute after its terms have been adopted. First, he successfully pressed for significant U.S. participation in the drafting of the ICC’s Rules of Procedure and Evidence and the Elements of Crimes that helped to alleviate some of the U.S. concerns regarding due process at the new court. Second, Scheffer also was successful in lobbying for the U.S.’ signing the Rome Statute before the end of 2000 (the last possible date for a state’s signing the treaty), which he did on behalf of the U.S. at the U.N. headquarters in New York City on December 31st (a very wintery Sunday New Year’s Eve Day). He, however, was not pleased with some of the details of President Clinton’s signing statement that said the treaty had “significant flaws” and that he would not be submitting the treaty to the Senate for advice and consent. The latter point, says Scheffer, was unnecessary since the Clinton presidency was almost over and since it usually takes years to prepare a treaty for submission to the Senate.

Ignatieff’s negative assessment of the U.S. split personality on this subject is also supported by the fact that the U.S. has been actively involved in the post-1945 negotiation of treaties that establish or codify international human rights norms, but has not ratified 16 such treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. Moreover, the U.S. has subjected its ratification of 10 of 16 such treaties to reservations, declarations and understandings that attempt to limit the application of such treaties to the U.S. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 136-66 (3d ed. 2001).)

We have seen this phenomenon in a prior post‘s examination of the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and by another post’s noting that Protocol II to the Geneva Conventions has been languishing in the U.S. Senate for 25 years with no action on presidential requests for advice and consent to U.S. ratification of that treaty. Other posts examined the policies toward the ICC in the Clinton, George W. Bush and Obama Administrations.

According to Ignatieff, the development of mechanisms of international criminal justice “was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice.”  This has not been the case, however, in his opinion, because “international justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.”

Therefore, he wonders if the creation of the international criminal tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —has been worth the effort and costs. From 1993 through 2009, he says, these tribunals collectively cost their donors $3.43 billion, but only 131 convictions were obtained.

In the next breath, however, Ignatieff seems to say that the tribunals have been worth all the trouble. He says that no one now is dying from atrocity crimes in Bosnia, or in Cambodia, Sierra Leone, or Rwanda, which have had special international criminal tribunals.  ”Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done.”

Although I share Ignatieff’s view of the imperfections of the mechanisms of international criminal justice and of U.S. (and other great powers’) resistance to application of such institutions or norms to themselves, I do not agree with his more pessimistic assessment of the development of international criminal tribunals.

First, he pulls the number of convictions at 131 from a table of results (as of December 31, 2010) in the Scheffer book without mentioning or considering these tribunals’ other results according to that table . Nor does Ignatieff attempt to update the table.

Let me first update that table and then discuss the overall results of these tribunals. My examination on April 1, 2012, of the websites for these tribunals revealed the following results with respect to individuals who have been charged with crimes by said tribunals:

Tribunal Pre-Trail Trial Convicted (includes pending appeals) Withdrawn/Dismissed/Acquitted/

Deceased

 Referred to Nat’l Court At Large TOTAL
ICTY 2 16   81 49 13   0 161
ICTR 1   3   62 14   3   9   92
Special Ct.-Sierra Leone 0   1     8   2   0   1   12
Extra Chambers Cambodia 5   4     1   0   0   0   10
ICC 7   3     1   6   0 11   28
TOTAL 15 27 153 71 16 21 303

According to this table, Ignatieff understates the convictions by 22, but more importantly he ignores the 16 who have been referred to national courts, the 42 who are still in pre-trial or trial proceedings and the 21 who are still fugitives. Thus, there eventually may be additional convictions for the crimes that have been charged. Moreover, these courts are not machines to produce convictions; they are intended to provide due process guarantees to those charged with crimes, and the 71 individuals who have had charges withdrawn or dismissed or who have been acquitted or who have died before their trials could be completed suggest that these courts have been operating fairly.

Second, Ignatieff ignores the fact that the existence and operation of these tribunals have given incentives and programs to various countries to improve their judicial systems so that eventually they can try individuals for the crimes within the jurisdiction of these international courts. Indeed, 16 of the individuals who have been charged with crimes by these tribunals have had their cases transferred to national court systems. As previously noted, the ICC’s Rome Statute has provisions incorporating the principle of complementarity whereby the ICC defers to national prosecutions by competent national judicial systems.

Third, Ignatieff also ignores the fact that these tribunals have been important in developing a more elaborate international law regarding genocide, crimes against humanity and war crimes, and their precedents can be and are being used by other courts and agencies involved in cases or other proceedings regarding international human rights.

Fourth, Ignatieff fails to acknowledge that these tribunals are only one part of a complex, interactive global struggle against impunity for the worst crimes of concern to the international community. Various posts already have discussed many of these pieces to the puzzle, and a prior post summarized this interactive network

Finally, in my opinion, these tribunals have been successful for the foregoing reasons. The peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further developments, I am confident, will occur.

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The International Criminal Court and the George W. Bush Administration

May 12, 2011

George W. Bush

Following the lead of the Clinton Administration, the Bush Administration declined to submit the Rome Statute to the Senate for ratification. [1]

Moreover, in May 2002, the U.S. notified the U.N. Secretary General, as depositary of the Rome Statute, of the U.S. intent not to ratify the treaty.[2] The U.S. undoubtedly did so in order to prevent liability under Article 18 of the Vienna Convention on the Law of Treaties that provides, “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when . . . it has signed the treaty . . . until it shall have made its intention clear not to become a party to the treaty. . . .”[3]

The Bush Administration thereafter conducted a major campaign against the ICC. The campaign included a statute that originated with Senator Jesse Helms, then Chairman of the Senate Foreign Relations Committee, and that had what became known as the “Hague invasion clause,” authorizing the use of U.S. military force to retrieve any U.S. citizens held by the ICC. The U.S. also sought and obtained so-called bilateral immunity agreements with countries that were States Parties to the Rome Statute whereby they would not turn over any U.S. personnel to the ICC. Other federal legislation called for cancelling any foreign military aid to countries that would not sign such agreements.[4]

However, the Bush Administration, especially in its second term, softened its stance on the ICC.  In March 2005, the U.S. abstained on the U.N. Security Council vote to refer the Sudan/Darfur situation to the ICC, thereby allowing the resolution to pass. The Administration also granted waivers from cancellation of foreign military aid.[5]

[1] See Post: The International Criminal Court and the Clinton Administration (May 11, 2011).

[2] Letter, John R. Bolton (U.S. Under Secretary of State for Arms Control and International Security) to U.N. Secretary-General Kofi Annan (5/6/02), http://archives.cnn.com/2002/US/05/06/court.letter.text/index.html.

[4]  E.g., AMICC, U.S. Administrative Update, http://www.amicc.org/usinfo/administration.html; AMICC, U.S. Congressional Update, http://www.amicc.org/usinfo/congressional.html.

[5] Id.

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