This is the second day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

One of the many things I like about Professor Dickinson’s book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson’s book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient.

Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.

More recent is an illuminating study by a serving military lawyer studying the military’s success in prosecuting its own for crimes in Afghanistan under the UCMJ. According to the study, which describes the system as broadly dysfunctional in combat, there were no courts martial in Afghanistan for anything at all until 2004 – three years into the deployment of U.S. forces. Among the study’s many other interesting findings: of the United States’ 200-some posts of one kind or another in Afghanistan (at the time of the study), JAGs could be regularly found at 9 of them. Such findings seem to suggest we are not set up in fundamental ways to ensure accountability of our immediate agents during wartime. Under the circumstances, it is not surprising we are equally unprepared to deal with contractor accountability.

The broad gap in legal accountability seems mirrored in a similar gap – again not limited to contractors – in political accountability for military affairs. Consider the historical trajectory. As I’ve described in more detail in a recent paper, the Constitution’s framers were centrally concerned with the problem of how to keep military operators closely tied to the society it served – a relationship they understood as central to ensuring the military would remain accountable to the civilian political leadership. So they put in place a set of mechanisms they thought would serve this purpose. But the mechanisms that the framers imagined would serve to have long ceased to function. One such mechanism was by personal affiliation – we are the military, and the military is us. But the model of the citizen-soldier gave way in the 19th century to a now well established profession of military officership, able to articulate distinctly military interests and values. The engagement of state militias likewise gave way to national conscription as a means of securing adequate forces in wartime; by 1973 even this practice was abandoned as drafted armies were replaced by an all-volunteer force. Another mechanism was the framers’ decision to give Congress the power to authorize funding for the military – and require that such appropriations be voted on publicly every 2 years. But that, too, has now similarly been weakened. The explosive growth of private contractors Professor Dickinson describes has made it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments.

Professor Dickinson’s work is terrifically important, and I would like to think the solutions she proposes – many of which I strongly support – will be adequate to the task. The broader context, though, makes me fear the gap in contractor accountability is just one symptom of a long-developing weakening of all of our accountability tools for checking the use of American war power. It is one more of the ways in which we have made it easier for growing swaths of the American public to neither feel nor bear the costs of war.

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the second day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.

In my first post, I outlined four potential mechanisms of accountability and constraint that could be better deployed to try to ensure that foreign affairs contractors respect various public values.  The first such mechanism is the most obvious: pursuing criminal prosecutions or civil tort suits against contractors who commit abuses.

With regard to criminal prosecution, our current system of enforcement is seriously flawed in a number of respects.  To begin with, there are gaps in the Military Extraterritorial Jurisdiction Act (MEJA), the primary law that gives U.S. courts the power to try contractors when they are accused of committing serious abuses. That statute does not clearly govern contractors who work for agencies other than the Defense Department, such as the State Department contractors involved in the Nisour Square incident in which Blackwater employees allegedly fired into a crowd in Nisour Square in Iraq, killing 17 people.  It is vital that Congress close this gap, and efforts are underway to do so in the Civilian Extraterritorial Jurisdiction Act (CEJA), sponsored by Senator Patrick Leahy (D., Vt.), former Senator Edward Kaufman (D., Del.), and Representative David Price (D., N.C.), which is now languishing in Congress despite support from the administration and industry.

But perhaps even more significantly, we need to restructure our institutions of enforcement to build more expertise and set better incentives for pursuing these cases. For many years, responsibility for contractor abuse cases lay with U.S. Attorneys’ offices around the country, and lawyers there didn’t necessarily have the experience needed to bring forth these difficult cases or to treat them as a high priority. I argue that we need a more clearly designated office within the Department of Justice to focus on these types of cases, and that we should require this office to report regularly to Congress concerning its efforts.

At the same time, we need better evidence-gathering in the field. It took two weeks for FBI investigators to get to Nisour Square to collect information, and ultimately it was largely the evidentiary problems that appear to have caused this case to fall apart. Thus, I also support CEJA’s provisions requiring theater-investigative units to gather evidence in cases of abuse.  Finally, I will discuss in a future post, we might consider bringing contractors under the military justice system and subjecting them to the Uniform Code of Military Justice.  But even apart from potential constitutional concerns posed by military trials of civilians, the likely ongoing use of security and other contractors in conflict zones such as Iraq after troops have come home and there is no longer a significant Defense presence, will make CEJA important regardless.

Civil tort suits brought by victims or their families could also create greater accountability, though here too there are obstacles posed by our current legal framework.  A number of cases are percolating their way through the courts, including cases brought by troops injured by contractors, contractors injured by contractors, and third-parties injured by contractors.  These cases face various hurdles, such as the political question doctrine, state secrets, and preemption of state law tort claims through extending the Federal Tort Claims Act (FTCA) governmental immunities to contractors.  Courts have taken varying approaches to all of these doctrines, but in my view there should be a narrow path forward for claims in which the underlying conduct would constitute a serious violation of international law (such as torture) and the contractor retains discretion and does not effectively stand in the shoes of the government.

For example, in the recent Saleh case brought by Abu Ghraib torture victims against CACI International, I think the D.C. Circuit took an overly broad approach to immunity and preemption. Judge Silberman authored an opinion that concluded that the contractor had immunity because it was “integrated into combat activities” even though military commanders had no jurisdiction over it. It is true that by enacting the FTCA, Congress gave some government actors immunity from tort claims so that federal court litigation would not get in the way of important military and security decisions. But that does not mean this immunity should automatically also apply to all contractors.

I think the district court decision that Silberman overruled actually had the better approach. Essentially, that opinion concluded that where government actors closely supervise contractors, the contractors are effectively operating as an arm of government and are following orders of governmental officials, and so should get the benefit of immunity. But when contractors lack such supervision and oversight, and are therefore operating largely on their own, the immunity should not automatically apply. Thus, the district court judge determined that the contract translators at the prison were entitled to immunity, but the contract interrogators were not.

This sort of nuanced distinction seems to me to be an entirely reasonable and workable approach to immunity issues. I think there is a good parallel in the domestic context, where the U.S. Supreme Court (in Richardson v. McKnight) has allowed tort litigation to proceed against private prison guards based on their discretionary activities.

Moreover, this approach is particularly justified when the underlying conduct that serves as the basis for the claim is torture or another egregious violation of international law.  An Obama administration brief recently made this point in Al-Shimari, a Fourth Circuit case similar to Saleh, in which an en banc panel dismissed appeals from a pair of district court decisions that denied contractors’ motions to dismiss two suits arising from the Abu Ghraib prison abuse.

• Plenty to report on international criminal law tribunals today: Ratko Mladic’s trial began yesterday at the ICTY, where he said he was proud of his Bosnian “legacy;” Charles Taylor’s sentencing hearing is today at the SCSL, where he will reject calls for the 80-year sentence the prosecution is seeking; and at the ICC, closing statements began yesterday in the Katanga and Ngudjolo case.
• In other tribunal news, the ECHR will begin hearings on an extraordinary rendition case today, Al Masri v. Macedonia, for violations of Articles 3 (torture or inhumane/degrading treatment or punishment), 5 (liberty and security) and 13 (effective remedy). Those interested can watch the webcast of the hearings on the Court’s website.
• More on HRW’s report about deaths in Libya NATO has allegedly not accounted for on Al-Jazeera’s Inside Story (video link).
• EU helicopter gunships have carried out strikes against Somali pirates for the first time on land. Foreign Policy and Lawfare offer more context on this operation.
• Chinese dissident Chen Guangcheng has raised concerns with the US Congress that his family is being harassed.
• The IAEA and Iran have agreed to continue talks next week.
• Obama’s statement in support of same-sex marriage has sparked debate in the Caribbean.
• OJ Guest Contributor Mark Kersten offers some analysis of the recent capture of the LRA leader, Caesar Achellam, over at Justice in Conflict.
• Sudan is refusing South Sudan access to its oil pipelines until the border disputes between the two states have been resolved.
• The Financial Times reports that out of a total of more than 1,200 airlines, 10 Chinese and Indian airlines have refused to divulge emissions data to their designated national authority in the EU, a first step in non-compliance with the inclusion of aviation in the EU ETS.
• Greece’s political leaders have failed to reach a coalition agreement and are planning to form a caretaker government until the next elections in June. Meanwhile, the IMF is pondering more openly  the possibility of a “Grexit.”
• The South Korean President is visiting Burma for the first visit by a South Korean leader in almost 30 years.
• Following the rejection of his civil lawsuit immunity, Dominique Strauss-Kahn has counter-sued Ms. Diallo, the hotel maid who accuses him of sexual assault, for $1 million.
• China has aired a documentary blaming the Dalai Lama for instigating self-immolations in Tibet. The British Ambassador in Beijing has also been summoned after PM David Cameron met with the Dalai Lama, which China considers a “serious interference” in its domestic affairs.

Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, “The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes.” But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six–and only six–representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:

The six countries that are tested on the AP Comparative Government exam are: China, Great Britain, Iran, Mexico, Nigeria, and Russia. Why those six instead of other worthy candidates? Who knows, but I’m glad my son has facility with the details of at least a handful of major countries.

As for the questions, here’s a sample of the short-answer questions asked in 2011:

1. Describe two distinct sources of political legitimacy established by the constitution of the Islamic Republic of Iran. Discuss one example of how having both those sources of political legitimacy simultaneously has led to tensions in Iran in the last fifteen years.

2. Describe a major function of the Supreme Court of the United Kingdom. Explain one reason for the establishment of the Supreme Court of the United Kingdom. Explain how membership in the European Union affects the judicial system in Great Britain.

3. Globalization has both political and economic consequences. Define economic globalization. Describe one policy response of the Mexican government to economic globalization. Describe one organized response of Mexican citizens to economic globalization.

Here’s a sample of the long-essay questions asked in 2011:

1. Political scientists often examine political rights and civil liberties to assess regime type.

(a) Define civil liberties. Explain the difference between political rights and civil liberties.

(b) Describe one example of how political rights have declined in Russia between 1995 and 2010. Describe one example of how civil liberties have declined in Russia between 1995 and 2010.

(c) Describe one example of how political rights have increased in Mexico between 1995 and 2010. Describe one example of how civil liberties have increased in Mexico between 1995 and 2010.

(d) Using the descriptions you provided in parts (b) and (c), assess the regime type in Mexico in 2010 and the regime type in Russia in 2010.

NYT’s Room for Debate takes up the question of dual citizenship, with contributions from Ayelet Shachar, David Abraham, Mark Krikorian, Jose Itzigohn, and myself.  Krikorian is predictably and harshly disapproving, on the old “it’s like bigamy” model.  Ayelet, Jose, and myself are all more or less in favor.

In some ways, the most interesting contribution comes from David Abraham, a Marxist historian (I think self-identified as such) who teaches law at the University of Miami.  He points out that dual citizenship is all very nice for the globalized elites, but doesn’t do much good for the rest of the world.

It’s an equality argument that can’t be dismissed.  Someone with multiple passports (using them, as Abraham puts it, like credit cards) has an advantage over someone with just one, there’s no denying that.  I wonder, though, if dual citizenship isn’t getting distributed in a way that correlates less with class than territorial randomness.  The rich are obviously more likely to have the status, but there are a lot of non-elites from places like Mexico and the DR that have dual citizenship by accident of birthplace or parentage.

I’m less persuaded by Josh Marshall’s argument over at TPM, which plays off both the equality and (surprisingly) marriage riffs:

[A]t least at the level of principle, citizenship is unitary — you can’t be a citizen of two countries any more than you can be married to two people at the same time. Some people find this nationalistic or xenophobic. But it’s neither. To me it’s at the root of our equality as Americans. That’s why the Salvadoran immigrant to the woman whose ancestors came over on the Mayflower because they’ve both cast their lot as part of the same national community. If citizenship is purely transactional, the people who lack power are profoundly disadvantaged.

That romanticizes singular citizenship (really: singular US citizenship) in an almost weepy kind of way.  It ignores that forcing citizenship choices may compromise political rights and confine individual identities. It also suffers from a gaping middle: there’s a lot between conceiving of citizenship as marriage and conceiving of citizenship as a transaction.  Like: conceiving of citizenship as membership in an association, one with a rich history and intense pull, but not categorically different from other forms of association – most of which allow for multiple ties.

[Allison Stanger is Russell J. Leng '60 Professor of International Politics and Economics and Chair of the Political Science Department at Middlebury College. She is the author of One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy.]

This is the first day of our book symposium on Laura Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Related posts can be found below.

Laura Dickinson has written a compelling and thoughtful inquiry into the larger implications of the “profound shift in the way the US government projects its power overseas.” Her focus on the enormous threat that contracting poses to public values highlights an important consequence of this transformation that has too often gone unacknowledged.  Her discussion of the four potential mechanisms of accountability and control frames that core challenge in a highly fruitful way.  While Professor Dickinson is well aware of the potential obstacles to effective functioning of these mechanisms, I wanted to use my post to highlight one that is all too easy to overlook: the impact of excessive contracting on governance and public values themselves.

Decades of privatization mean that the business of government is increasingly in private hands, both in our foreign policy activities abroad and in domestic operations at home.  The basic pattern is striking.  In 2000, the Department of Defense spent $133.4 billion on contracts.  By 2010, that figure had grown to $367.8 billion, an almost three-fold increase.  In 2000, the State Department spent $1.3 billion on contracts and $102.5 million on grants. By 2010, contract spending had grown to $8.1 billion and grant spending had grown to $1.4 billion. In 2000, USAID spent $19.3 million on grants and $535.8 million on contracts.  By 2010, those figures had climbed to $8.9 billion and $5.6 billion, respectively. These explosive growth patterns are not confined to the national security realm.  For example, in 2000, the Department of Health and Human Services expended $4.1 billion on contracts. That figure had risen to $19.1 billion in 2010, a 366 percent increase.^[1]  Contracts and contractors were also essential to both the Troubled Asset Relief Program [TARP] and the stimulus package. The operative rule of thumb for Republican and Democratic administrations alike has been to turn execution over to the private sector whenever possible.

This shift in and of itself does not disastrous consequences make.  But when it is combined with general public distrust of government, Pandora’s box opens.  One additional statistic speaks volumes on this transformation. The number of people on the federal government payroll today is roughly the same as it was in 1966, yet the federal budget in that same time period has more than tripled in real terms.  Contractors, in part, fill that enormous gap. The result is that our government is today but a shadow of its former self.  It is big in terms of the amount of money it spends but small in terms of the number of people it employs to oversee that spending.  Government has effectively been hollowed out.

There are obviously consequences for public values in this transformation.  As Professor Dickinson summarizes on page 10 of her book, “One of the core points of this book is that these public values ought to govern even when those acting are not governmental employees or representatives.”  One might legitimately ask, is this a realistic aspiration when government’s default option is to privatize whenever possible, often outsourcing oversight as well as implementation?  It is surely more challenging to uphold public values when government’s actions themselves undermine the public’s faith in the very legitimacy of public sector activity.  Moreover, do we really want to treat public servants and private employees as functional equivalents, or do we instead lose something very dear in blurring that line?  Who is to ensure that the public interest is upheld under such arrangements?

When public values collide with market imperatives in a privatized world, the demands of the market typically triumph, and the logic for this outcome seems iron clad.  Put another way, it may be easy to coax public servants to adopt a market outlook and think more like businessmen to uphold common values.  But getting businessmen to think like public servants?  That conflicts with the private sector’s raison d’être, which is to ensure the profitability of any given enterprise on a day-to-day basis.  There are competing values at work, and when the profit motive leads one direction and the common good in another, why should we expect private sector employees to act against their own self-interest? When market values collide with public virtues, we cannot and should not expect the market to uphold the common good.

While I agree with Professor Dickinson that the horse is out of the barn, and we cannot turn the clock back on outsourcing but must work within its confines, I wonder whether we might get more robust mechanisms of compliance by acknowledging that private and public interests do not coincide nearly as often as many assume them to do.  This so often seems like the crux of the matter to me.  There is an enforcement problem because there are competing authorities, the biggest of which are market versus civic values.

So how does the hollowing out of government affect Professor Dickinson’s four proposed mechanisms of accountability and constraint?  To review, she proposes in both her book and her first blog post:  (1) using litigation (both criminal and civil) to hold contractors responsible for malfeasance; (2) reforming the language of the government contracts themselves to mandate compliance with public values and providing for better contract monitoring to ensure this new contractual language is effective; (3) creating better transparency mechanisms regarding outsourcing decisions; and (4) creating a web of formal and informal constraints by tweaking the organizational structure and institutional culture of the contract firms themselves.  Interestingly, all remain viable, but the reduction in government capacity is itself an impediment to meaningful reform.  Put another way, when government is wholly dependent on the private sector to conduct its daily business (the essence of hollowed out government), the constraints working against the promotion of public values only grow commensurately.  Strong public pressure to use litigation to hold contractors responsible, reform the language of government contracts, promote transparency, and build a web of better constraints is unlikely to emerge when it is seen as a disruption and derailing of day to day operations.  I have argued elsewhere that the first casualty of government by contract is the transparency on which our very capacity for self-government depends. We have together created a system that no longer functions as the founders intended.

Professor Dickinson herself acknowledges on page 20, “There are, of course, potential difficulties with all four mechanisms…It might be suggested that any of the reform proposals I recommend regarding privatization are inherently unrealistic because one of the main reasons governments privatize is precisely to avoid the kinds of constraints I seek to impose.” All true, but it bears mentions that motives are only part of the story here. My basic point is that government can privatize with the best of intentions and still wind up with the huge unintended consequence that public values have inexorably been undermined in that process. Add in the shortage of government personnel for contract oversight that excessive privatization has facilitated and outcomes can be sub-optimal without deliberate attempts on the part of leaders to manipulate and end-run the public.

In many ways, our current fiscal challenges may move matters in a more positive direction.  For example, the innovative public-private partnerships that Professor Dickinson notes we are seeing for security contractors can in part be viewed as a last-ditch effort on the part of firms to stay in the game and continue to win contracts when demand is drying up.  Genuine competition for government contracts might be creatively deployed to incentivize more public-spirited behavior. Dickinson’s fourth chapter “The Unexplored Promise of Contract,” includes imaginative and valuable thinking on how contracts themselves might be better structured to promote public values.  Viewed in this light, coming to terms with the myriad ways in which government’s dependence on outsourcing can undermine the public interest is a necessary condition for “preserving public values in a world of privatized foreign affairs.”

___

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the first post in our discussion of Professor Dickinson’s book. Links to the related posts can be found below.

I want to thank Opinio Juris for offering me the opportunity to post on some of the central ideas contained in my recent book, Outsourcing War and Peace: Preserving Public Values in an Era of Privatized Foreign Affairs.

The book starts from the observation that, over the past two decades, the United States has dramatically changed the way in which it projects its power overseas by outsourcing foreign affairs functions to an arguably unprecedented degree.  At the high point of the combined conflicts Iraq and Afghanistan, the U.S. Government had hired roughly 260,000 contractors—more contractors than troops—to do everything from support tasks, such as delivering meals to soldiers, cleaning their latrines, and maintaining battlefield weapons systems, to more combat-related functions, such as guarding bases, diplomats, and convoys.  At times, contractors even conducted interrogations.  And contractors continue to play a significant role in operating the drones that have become a central tool in our efforts to combat terrorism.

All of this contracting poses an enormous threat to what we might call public values.  These values include the core value of human dignity as embodied in international human rights law, as well as the values embedded in international humanitarian law, such as the idea that the use of force is limited even during armed conflict.  In addition, other core values include transparency, democratic participation in decision-making, and accountability (sometimes referred to as the values of global administrative law).

In order to see the risks posed by outsourcing, one need only consider some of the high profile incidents involving alleged abuse of force in Iraq, such as the notorious 2007 Nisour square shooting, in which State Department security guards working for the firm Blackwater (now Academi) reportedly fired into a crowd, or the key role contract interrogators and translators played in brutalizing detainees at Iraq’s Abu Ghraib prison.  But many more incidents involving contractors do not receive this sort of public attention.  In researching the book, I conducted interviews with uniformed military lawyers who served in Iraq and Afghanistan, and these lawyers reported that in some areas of conflict there were as many as two incidents a week involving alleged abuses of force committed by security contractors.  And, while outsourcing is often touted for creating greater efficiency and cost-saving, the Commission on Wartime Contracting has concluded that more than 30 billion taxpayer dollars were lost to waste and fraud in Iraq and Afghanistan.

To be sure, these examples do not in any way lead to the conclusion that all contractors are committing abuses or wasting money or that these cases are typical.  Moreover, as the recent, tragic case of Sergeant Bales highlights, it is not only contractors but also uniformed troops who are capable of abuses.  (The recent Secret Service scandal also reveals that highly trained federal agents are not necessarily models of virtue). And there is a largely hidden story of contractor deaths and injuries in our recent conflicts – my colleague at George Washington Law School, Steve Schooner, and one of our students, Collin Swan, have documented more than 2,000 contractor deaths since the beginning of these conflicts, a quarter of all casualties.

But nonetheless, the threat to public values is real. When troops commit egregious violations, there is a military justice system available to punish them, but we still have no comparable accountability framework for contractors.  The Abu Ghraib scandal is a case in point.  Twelve soldiers were prosecuted for their role, but to date no contractors have faced punishment.

In responding to this gap in accountability and oversight, I start from the perhaps controversial premise that foreign affairs contracting is here to stay and that it is therefore not realistic to argue that we should stop all military outsourcing.  Certainly it is worth considering whether Congress should prohibit outsourcing of particular functions, such as security and interrogation.  But we also need to move past that debate and think more seriously about how best to ensure that contractors respect these public values in the conflict zones and post-conflict settings where I believe they will be operating for the foreseeable future.

Accordingly, the book focuses on four mechanisms of accountability and constraint that could be better harnessed to respond to a world of privatized foreign affairs: (1) using litigation (both criminal and civil) to hold contractors responsible for malfeasance; (2) reforming the language of the government contracts themselves to mandate compliance with public values and providing for better contract monitoring to ensure this new contractual language is effective; (3) creating better transparency mechanisms regarding outsourcing decisions; and (4) creating a web of formal and informal constraints by tweaking the organizational structure and institutional culture of the contract firms themselves.  A common theme that runs through all four of these mechanisms is the idea that the law on the books cannot protect these values alone, but rather we have to consider the law in action—the actual mechanisms of enforcement—and think about how we can redesign our institutions to be more effective in coping with the expanded role for private actors.  Future posts will address these mechanisms of accountability and constraint in more depth.

As readers know, Dapo Akande, Jens Ohlin, and I have been having a friendly debate over whether Article 95 of the Rome Statute requires Libya to surrender Saif to the ICC pending the Pre-Trial Chamber’s resolution of its admissibility challenge.  (See here and here.)  Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.

The motions are a study in contrasts.  The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court.  It’s a very underwhelming motion, and I don’t say that simply because I disagree with it.  Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.

The OPCD’s motion, by contrast, is 19 pages and offers a variety of very strong arguments in defense of its position that Libya must surrender Saif prior to resolution of its admissibility challenge.  The first section of the motion not only tracks my arguments very closely, it specifically cites the Opinio Juris post in which I argued that Article 89(2) actually supports a surrender obligation under Article 95, because the OTP’s interpretation renders Article 89(2) mere surplusage.  (An Article 89(2) postponement depends upon on Article 19 admissibility challenge, which is what supposedly triggers an Article 95 postponement.)  The motion also spends a good deal of time arguing that permitting postponement of Saif’s surrender would undermine the ICC’s ability to ensure that Libya lives up to its obligation to cooperate with the ICC under S.C. Res. 1970, because the Court will be powerless to force Libya to surrender Saif should it reject Libya’s admissibility challenge. I made a similar argument in my posts, and I continue to believe that the ICC should not be put in a position where it has to resolve Libya’s admissibility challenge even though it knows full well that Libya will simply ignore an adverse decision.

Interested readers will definitely want to check out both motions.

• Based on a study released yesterday from the World Wildlife Foundation (WWF), overconsumption is threatening the earth’s resources and the health of the planet. The full report is here and more from WWF about the report is here.
• The Prosecutor of the ICC has sought new warrants in the Democratic Republic of the Congo (DRC) as well as filed new charges against Bosco Ntaganda, already wanted by the Court (ICC statement).
• In other news of the DRC, the UN reports that villagers in the Bunyiakiri district of the South Kivu province opened fire on UN Peacekeepers, wounding 11 of the troops, two of them critically.
• The West African bloc ECOWAS plans to dispatch troops to Guinea Bissau in the coming days in order to oversee reform of a year-long transition to civilian rule, after the April 12^th coup.
• Human Rights Watch has said that NATO has not properly reported civilian deaths in Libya, based on its latest report and urges the organization to provide “suitable compensation” for the families of the victims.
• The International Crimes Tribunal in Bangladesh has indicted an 89-year-old opposition leader for involvement in alleged human rights violations in the 1971 Liberation War.
• Reuters has an exclusive on how Brazil is targeting Argentina with trade licenses, making it more difficult to import certain perishable items, such as apples, raisins, wheat flour and wine.
• At the Bonn climate talks, the EU and the developing countries disagree on the length of the second commitment period, with the EU advocating eight years and the developing countries five, the same as the first commitment period.
• Francois Hollande has been sworn in as the new French President, and will be off on his first foreign visit to Germany in a few hours.
• With Somali support, EU naval forces have carried out raids against pirates’ mainland bases in Somalia to destroy their fast attack boats.
• Iran is reporting that its talks with the IAEA are going well.
• Chevron has suffered a double legal setback in the US in its attempts to avoid payment of the $18 billion judgment for environmental damages in Ecuador.
• The US Supreme Court has declined to take up the appeal of treasure hunters who were forced by lower courts to return $500 million in gold and silver coins recovered in international waters from a Spanish frigate that sank in October 1804 after an encounter with the British Navy.
• Pakistani drone strike victims have filed lawsuits to force their government to act against the strikes through various diplomatic and legal channels.

Facebook co-founder Eduardo Saverin has given up his US citizenship in the run-up to the Facebook IPO.  Not that it didn’t cost him.  High net-worth folks like Saverin have to pay what is in effect an exit tax, under the mis-acronymed HEART Act.  Under this 2008 legislation, renunciation is treated like a tax event, at which point your assets will be valued for capital gains purposes as if they were sold at that time.  Saverin must have been presented with a hefty bill by way of getting his release (according to this excellent Bloomberg report on his renunciation, he can pay it on the installment plan).

[FYI: Here is the 1Q 2012 list (as published in the Federal Register) of "those who have chosen to expatriate."  In addition to Saverin, the list includes a JFK relation, one apparently not interested in a political career here.]

Saverin doesn’t have a problem with the US – he doesn’t seem to be making any sort of political statement here – but the tax and regulatory burdens outweigh the benefit for someone in his bracket (see the posts on FATCA below).  That is, so long as he can still go to NYC.  Under 212(a)(10) of the Immigration and Nationality Act:

(E) Former citizens who renounced citizenship to avoid taxation.- Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is excludable.

Excludable, as in not getting into the country.

Obviously Saverin has capable lawyers who checked this out, and it appears to be the case that this provision has never been deployed since it was enacted in 1996.  The plausible theory here: since Saverin and his bracket in effect have to settle up when they renounce, they aren’t renouncing to avoid taxation.

In any case, Saverin may be at the leading edge of rich expatriate Americans for whom the nationality just isn’t worth it any more.  Like most other memberships, citizenship has a price point.

This week Opinio Juris is hosting a discussion on Laura Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs.

Professor Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC. Her book addresses issues related to the increasing privatization of foreign policy functions of government. Here is the abstract:

Over the past decade, states and international organizations have shifted a surprising range of foreign policy functions to private contractors. But who is accountable when the employees of foreign private firms do violence or create harm? This timely book describes the services that are now delivered by private contractors and the threat this trend poses to core public values of human rights, democratic accountability, and transparency. The author offers a series of concrete reforms that are necessary to expand traditional legal accountability, construct better mechanisms of public participation, and alter the organizational structure and institutional culture of contractor firms. The result is a pragmatic, nuanced, and comprehensive set of responses to the problem of foreign affairs privatization.

Each day this week, Professor Dickinson will post about a particular topic addressed in her book. Comments will be provided by Professor Allison Stanger of Middlebury College, Scott Horton of Harper’s Magazine, Assistant Dean Jeff Walker of St John’s Law School and Opinio Juris’ own Deborah Pearlstein, Ken Anderson and Chris Borgen. Our readers are of course more than welcome to add to the discussion in the comments, and we certainly hope that you will!

[Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School and the author of Humanity’s Law (Oxford University Press 2011).]

Sam Moyn, writing in this Sunday’s New York Times (“Human Rights, Not So Pure Anymore”)
claims the current relationship of human rights is compromised, and nostalgizes the past. As he puts it:

[T]he whole idea of human rights has lost some of its romantic appeal and moral purity. Today the issue of human rights is no longer just about limiting powering the global arena but also about how to deploy it.

Was human rights ideology ever disconnected from political struggle in the way that Moyn suggests?

For Moyn the heroic phase of the history of human rights is the time during the Cold War where human rights were a moral source of resistance by courageous dissidents to illegitimate or tyrannical state power. Yet as the Charter 77 movement illustrates, even in this period human rights were an impetus not just for resistance but for political reconstruction, providing a foundation of legitimacy for post-commmunist regimes. This has had important and salutary consequences for the shape of power in those post-communist countries where human rights not nationalism or religion have been the foundation for the new order (Moyn’s article is oddly accompanied by a photo of Solzhenitsyn whose anti-commmunism was of course based in reactionary religious nationalism not human rights thinking.)

The same has been true of the interaction between human rights discourse and political struggle against apartheid: human rights played an essential role not only in resistance to apartheid but in shaping the political transition in South Africa. Human rights thinking provided the central inspiration for the new South African constitutional order, where international law is an integral part of domestic constitutional norms.

Contrary to Moyn the experience of the role that human rights have played not just in resistance but in democratic state-building and political transition has only enhanced their moral force, just as the internet and social media have increased the ability of non-state actors to deploy human rights ideas as a unifying discourse. Thus recently, human rights-based claims were central to the demands for political change in the Arab Spring. Which is not to say that human rights has triumphed over competing transformative ideologies based in religion and/or nationalism.

In a passage that seems to have been written before the 2007-2010 economic and financial crisis and its aftermath, Moyn suggests: “for some dreamers, human rights mean ensuring citizen welfare in the form of economic justice both within and among states. Yet the idea of international human rights has become prominent in an era when many governments are turning away form the welfare state in the name of the free market”.

This elides the fact that the free market has been tarnished by recent events, and the reality that new high-growth nations such as Brazil have combined export-oriented development policies with expanded social welfare and activist industrial policy. Moreover, social and economic rights have altered the terms of important aspects of debates on globalization: access to medicines and intellectual property is one example and agricultural trade and food security is another.

• In honor of Mother’s Day yesterday, Foreign Policy offers some insight into the top countries who score the best on Save The Children’s State of the World’s Mothers report.
• The Dalai Lama told Britain’s The Telegraph he was warned that China may have tried to kill him, in a plot involving two Tibetan females with poison in their hair and on their clothes.
• The trial for the former Bosnian Serb army chief, Ratko Mladic, begins this week at the International Criminal Tribunal for the Former Yugoslavia in The Hague (ICTY case information sheet here). He is faced with charges of genocide, crimes against humanity and war crimes.
• American drones have allegedly killed 10 militants in Yemen, in a stepped-up effort to get a strangle hold on AQAP. Foreign Policy explores some of the potential dangers in for this move.
• Through an exchange of letters, Israel and Palestine have made a rare joint statement that both parties are “committed to peace.”
• Various subgroups of the Conference of the Parties of the UNFCCC and the Kyoto Protocol are meeting in Bonn from today for further negotiations on the future climate change regime. The International Institute for Sustainable Development has an overview of the issues they will discuss and on the negotiations’ history.
• China, Japan and South Korea have agreed to start negotiations on a free trade agreement, which could become one of the largest free trade zones in size.
• The US has asked the WTO to set up a dispute settlement panel to rule on the compatibility of India’s import restrictions on US poultry.
• EU forces have set an Iranian fishing vessel free from Somali pirates near the coast of Somalia.
• The US military is under fire for an “anti-Islam class,” allegedly encouraging war on Islam.
• Following President Obama’s announcement last week that he supports legalizing gay marriage, The Washington Post points to reactions from around the world.
• China denies war preparations over the tensions in the South China Sea.
• The EU and US have welcomed parliamentary elections in Algeria.
• Foreign Policy In Focus calles labor trafficking the modern-day equivalent of slavery.
• Ugandan troops have captured a high ranking member of the LRA, Caesar Achellam, perhaps bringing them one step closer to capturing LRA leader Joseph Kony.
• A federal appeals court has revived the case on factual grounds against two Abu Ghraib contractors, once dismissed on the basis that they had immunity as government contractors.
• A rights group in Malaysia has found former US President George W. Bush and seven others from his administration guilty of war crimes in a symbolic trial.

My recent post on PhDs calling themselves “Dr.” led one of my e-friends, Martin Holterman, to remind me that I had promised to post about my dissertation defense — called a “viva” in the Netherlands — at Leiden University last year.  The viva was one of the greatest academic experiences of my life, so I’m happy to rectify my omission.

I’ll begin with a confession: I didn’t take the viva particularly seriously at first.  I knew I wouldn’t fail (any dissertation committee worth its salt will deal with problems long before a student defends); my dissertation was a version of my book on the Nuremberg Military Tribunals, which was under contract with Oxford University Press; and of course I already had a permanent academic position at Melbourne.  So I really just wanted to get the viva over with so I could put the diploma on my office wall.

My casual attitude didn’t last long — only until I began to put on my tuxedo, complete with tails, in the room in which candidates change.  My interlocutors for the viva, kindly known as “the opposition committee,” was changing on the other side of the room.  The solemnity of the occasion finally penetrated my thick skull — this was my rite de passage into an academic tradition that had been taking place in Europe for centuries.

Once I had changed, Leiden’s pedel (registrar) explained the viva process to me and my two paranymphs, Mirjam and Bianca.  The role of the paranymphs is now purely ceremonial; they sit and stand beside you during the viva.  Traditionally, however, they served as the candidate’s protectors, intervening on his behalf if the opposition committee was being unfair or physically abusive (!).  The viva process itself is straightforward: the pedel leads the candidate and paranymphs into the viva room; the opposition committee files in; there is forty minutes of questioning (exactly; more on that below); the committee retire to consider whether to award the PhD; and finally the committee announces the result.

A few minutes later the pedel led us into the viva room.  Here it is — I’m in the middle, flanked by my paranymphs:

The room itself is lovely, but nothing overwhelming.  What makes it special is its history — it was once Grotius’ library, and students have been defending their dissertations in the room for more than 450 years.  I could almost see the ghosts of candidates past as I took my seat in front of the long table and waited for my opposition committee to file in.  Which they did not long thereafter:

The Vice-Chancellor of Leiden is in the middle; to her left (the photo’s right) were my two supervisors, Carsten Stahn and Larissa van den Herik.  The external member of my committee, Claus Kress, is the one about to sit down.  The man on the far right in the photo is Afshin Ellian, an Iranian professor of at Leiden and an outspoken critic of Islam.  He is so controversial that he had a bodyguard with him during my viva (though the bodyguard waited outside the room).  How many PhD candidates can say that?

Once everyone was seated, the Vice-Chancellor began the viva.  Each member of the committee had an opportunity to ask me questions.  To be honest, I barely remember what I was asked, although I recall that the questions demonstrated a profound understanding of my dissertation.  I also remember that Larissa van den Herik asked me an incredibly difficult question that I had no idea how to answer; I was mentally preparing to try to cleverly evade it when the pedel came back into the room, hit his staff on the floor, and said “hora est” — Latin for “it is time.”  That statement immediately ended the viva; the pedel had told me earlier that I was supposed to stop talking even if I was in the middle of a sentence.  Saved by the bell!

At that point, the opposition committee filed out of the room to decide my fate.  About 15 minutes later they returned to announce that I had, in fact, passed my viva.  Carsten gave me my diploma and read a lovely statement about my dissertation and my contributions to international criminal law in general, which I deeply appreciated.  The diploma itself is amazing; you can see how huge it is — complete with a large wax seal — in the photo below, which shows me with Carsten and Larissa:

All in all, my viva — and my PhD in general — was a fantastic experience.  I can’t thank Carsten and Larissa enough for their supervision, and I owe Claus a debt of thanks for his support throughout my career and for making the trip from Cologne to serve on my opposition committee.  I highly recommend anyone who intends to complete a PhD in international criminal law to seriously consider Leiden; it’s not only one of the best faculties in the world for the subject, there is no residence requirement (and no fees), making it a perfect choice for someone like me, who needed a PhD but already had a permanent academic position.

If anyone wants to talk more about graduate study at Leiden, they should feel free to contact me.

Walter Olson at Cato has a sharp observation here at the Daily Caller, on the revolving door between U.S. international law professoriate and various UN bodies.

Mr. Anaya, the U.N. rapporteur, was sent on his mission by none other than the U.N. Human Rights Council, notorious, as Doug Bandow has written, for being “dominated by human rights abusers and their enablers.” (Fidel Castro has a seat, as did Libyan dictator Moammar Qaddafi until his overthrow.) What you wouldn’t have realized from most of the news reports — an exception was Claudia Rosett’s — is that Anaya is not just parachuting in from some U.N. redoubt in Geneva or the Hague. He’s an American law professor based at the University of Arizona and active in particular in the school’s Indigenous People’s Law and Policy Program, which he drew on to support his U.N. probe (he’s due to report to the Council itself this fall).

There’s a wider story here, which I told at some length in Chapters 10 and 11 of my book “Schools for Misrule” last year. In the 1970s, with inspiration from the law schools and backing from the Ford Foundation and other liberal funders, some advocates began a sustained effort to resuscitate old Indian land claims (often in the process casting a cloud on the title of European-descended occupants who have farmed or ranched the land for one or even two centuries). After years of havoc and uncertainty of rights, the U.S. courts in the past decade came down against the tribal claims, ruling that they are grounded neither in the Constitution nor in applicable statutory law. As it became clear that the land-claim litigation would fail in U.S. courts, advocates launched a new strategy of involving the U.N. system and other international organizations on the grounds that to deny the tribes the right to reoccupy old lands would be to violate their international human rights. Very helpful in this process has been the advance of a document called the U.N. Declaration on the Rights of Indigenous Persons (UNDRIP), which the U.S. long opposed and then, in an Obama turnabout last year, decided to support.

I think Olson is on to something here. First, he is undoubtedly right that various UN human rights bodies have become a court of last resort for advocates who have failed in domestic U.S. proceedings. (See, e.g., the NAACP’s failed effort to block voter ID laws). Second, he is also right that U.S. law professors, and indeed other law professors, often have a deeply intertwined relationship with UN Bodies, like the UN Human Rights Commission, that appoint them to various positions.  I’m not sure there is anything nefarious about this, but I think he is right that the standards for recognizing particular legal claims are different, and much more generous, in an international forum than in a domestic one. And that the aura of international objectivity that some might accord to a UN probe is largely undeserved.