CHAPTER 1 HISTORY OF WAR POWERS: USE AND MISUSE 1.1: INTRODUCTION In a previous paper written for Professor Geoffrey Hazard (“Much Yoo About Nothing”), I discussed legal heavyweight John Yoo and how the U.S. justifies the “war- like” actions of its Government. I argued that the Bush Administration will be remembered not only for its blunder of invading Iraq and failure to find Weapons of Mass Destruction, but also for its redefinition of the declaration of war1 and “torture.”2 I explored how the language used to describe war-making and military activities has been manipulated and reinterpreted to the point where it permits the illegal declaration of war. This chapter seeks to answer what are the limits to the president’s power to commit U.S. military forces to foreign conflicts and whether Congress has the ability to curtail the exercise of that executive power? As part of

1 Draft Memorandum from John Yoo, Deputy Assistant Att'y Gen., Office of Legal Counsel, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, to William J. Haynes II, Gen. Counsel, U.S. Dep't of Def. (Jan. 9, 2002), in The Torture Papers, (regarding the "Application of Treaties and Laws to al Qaeda and Taliban Detainees"). See also John Yoo, War by Other Means: An Insider's Account of the War on Terror 118-21 (2006); see also Stephen Holmes, John Yoo's Tortured Logic, Nation, May 1, 2006, at 31, 38 (book review) ("By claiming that the Framers themselves would have been perfectly happy with unchecked presidential power, [they] encourage people to believe in the deep fidelity of a constitutionally unleashed President to an ideal America that was always meant to be."). 2 John Yoo states: "[A] declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did a declaration of war serve as a vehicle for domestically deciding on or authorizing a war." See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196- 241 (1996). Yoo also claims "[T]he Declare War Clause gives Congress the power to 'declare' whether ... a certain state of affairs legally constitutes a war, which then gives it the authority to enact wartime regulations of individual persons and property both within and outside the United States." See John C. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, at 332 (2005). 1

the checks and balances the U.S. established during the birth of the nation, the framers of the Constitution set aside specific military-related responsibilities for the executive and legislative branches in order to force them to share the power to wage war. Throughout history, several key events have revealed where and with whom these imbalances lie. During the Cold War and the Korean War, Harry S. Truman began a presidential trend to exercise executive power to conduct military operations without seeking the authorization of Congress. Wars of this century are unlike any of the wars during the time of the Framers. The threat of communism changed the way Americans thought about combat, followed by the more recent dramatic changes of 9/11, asymmetric warfare, terrorism, and nuclear weapons. Thus, we should find that contemporary conflicts have changed the way the U.S. perceives its enemies, as well as the system of checks and balances that regulate the way those enemies are fought. The first section of this chapter will discuss the early treatment of the issue of war powers as viewed by the Founding Fathers, followed by a section on how the presidents and Congress exercised war powers during the Korean, Vietnam, and Iraq wars, as well as the more recent intervention in Libya. This discussion will examine the legal justifications offered for presidential action during conflict and how presidential and congressional behavior has evolved as a result of legal and historical precedent. This chapter will examine four significant historical examples where presidents have used executive power to deploy U.S. military forces overseas without seeking prior approval of Congress. Through the presidential actions and congressional responses to Korea, Vietnam, Iraq, and Libya, we can examine the ways in which presidents have circumvented the congressional authority to declare war. By beginning with a comparison with the early history of the country and the Founding Fathers, we can follow the evolution of the use of those powers. And by looking to examples of the ways in which Congress has used its own power to deflect presidential power, we can see the effectiveness of the checks and balances as they currently exist. Finally, this chapter will discuss what constitutional and legal precedents presidents have used to justify the exercise of their power, as well as the congressional rights and responsibilities to declare war and regulate combat activities.

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1.2: EARLY HISTORY OF THE USE OF WAR POWERS In the discussion of the early history of war powers, I will do my best to avoid “law office history”3 in which quotations are “torn out of context and inserted where they appear useful to a legal argument”4 or relying on “a few selective quotes from famous Framers at the Philadelphia Convention.”5 For some time before the Constitution was drafted and the U.S. won its independence, Americans understood that commencing war was for all intents and purposes, “declaring” war. In 1756, after King George II had already formally declared war on the French, he sent Major George Washington to carry out the attack. At that time, George Washington was concerned with how exactly the declaration of war was to be carried out.6 The message he received from the Virginia Lieutenant Governor, Robert Dinwiddie (a servant of the Crown), was essentially that if Washington commenced warfare, he would be “declaring” war.7 There are several other instances in the early history of the United States where claims were made that the “invasion of property, among all Nations, is...a declaration of war”8 or “cutting off the head is looked upon by those who are acquainted with the customs of Indians as a declaration of war.”9 The first Commanders in Chief of the United States were fully aware of the fact that the Constitution did not

3 John Yoo, “Clio at War: The Misuse of History in the War Powers Debate.” 70 U. COLO. L. REV. 1169, 1174 (1999). 4Id. 5Id. 6Letter from George Washington to Robert Dinwiddie (Aug. 14, 1756), American Memory from the Library of Congress. http://rs6.loc.gov/ammem/gwhtml/gwseries2.html (select Letter Book 3 for copy of letter). 7 Letter from Robert Dinwiddie to George Washington (Aug. 21, 1756), American Memory from the Library of Congress. http://www.loc.gov/fedsearch/metasearch/?cclquery=Robert+Dinwid die#query=(Robert%20Dinwiddie)&filter=pz:id=lcweb|ammem|catalog |ppoc|thomas 8Junius Americanus (pseudonym), Address to General Gage (May 29, 1775), American Archives, Documents of the American Revolution. http://colet.uchicago.edu/cgibin/amarch/getdoc.pl?/projects/art flb/databases/efts/AmArch/IMAGE/.3187 9George H. Bray III, Scalping During the French and Indian War, Archiving Early America. http://www.earlyamerica.com/review/1998/scalping.html 3

permit them to wage war unilaterally.10 Some of these first leaders went so far as to believe that even when another nation had declared war upon the United States, that even then the Presidents believed they needed Congressional approval. First U.S. President, George Washington, faced two such offensives from Indian nations, and he firmly held that Congress had to authorize offensive actions against these nations: "The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken” against the “refractory part of the Creek nation . . . until after [Congress] shall have deliberated upon the subject, and authorized such a measure,” he observed.11 George Washington was very clear in his deference to Congress on the issue of war powers. George Washington's War Secretary Henry Knox wrote to the President that “[a]ll measures of an offensive nature (against the Cherokee tribes) be restrained until the meeting of Congress, to whom belong the powers of war.”12 Knox claimed that Secretary of State, Thomas Jefferson and Treasury Secretary, Alexander Hamilton, unanimously agreed,13 but Knox may have been overstating the views of Washington's cabinet.14

10Yoo's classification as a “textualist” is said to be inspired by Justice Scalia's views on statutory and constitutional interpretation. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, is A Matter of Interpretation: Federal Courts and the Law 3, 22-23 (Amy Gutmann ed., 1997) ("The text is the law, and it is the text that must be observed. I agree with Justice Holmes[] ...: 'We do not inquire what the legislature meant; we ask only what the statute means."'). 11Letter from George Washington to William Moultrie (Aug. 28, 1793), in The Writings of George Washington 366, 367 (Jared Sparks ed., Boston, Little, Brown, & Co. 1855), available at http://rs6.loc.gov/cgibin/query/r?ammem/mgw:@field(DOCID+@lit(g w330067)) 12Letter from Henry Knox to George Washington (Oct. 9, 1792), in The Papers of George Washington: Presidential Series, Presidential Series 212 (Mark A. Mastromarino ed., 1996). 13 Id. 14See Lucius Crassus. Not all Washington's cabinet was in agreement. See supra note 27 for a description of how Hamilton (as Lucius) held the view that when another nation declared war on the United States, no congressional response or declaration 4

The administrations of Presidents Adams, Jefferson and Madison (many of whom had also served on the cabinet of President Washington), faced declarations of war from nations such as France, Tripoli, England and Algeria, and in each incident, the Presidents went to Congress for the authority to wage war in defense of the nation.15 Writing to James Madison in 1789, Thomas Jefferson commended the Constitution for providing "one effectual check to the Dog of war16 by transferring the power of letting him loose from the Executive to the Legislative body."17 It appears that Jefferson had concluded that the Constitution's grant of power "[t]o declare war"18 meant that Congress, and not the President, “can ... decide the question of war,"19 Jefferson mused “[w]hether the outrage (of a vessel attack) is a proper cause of war, belonging exclusively to Congress, it is our duty not to commit them by doing anything which would have to be retracted.” He is also reported to have told Congress that it was his duty to await their authority for using force since Congress “alone is constitutionally invested with the power of changing our condition from peace to war.”20 Thus, according to these scholars, the President as Commander in Chief,21 could “let slip the dogs of war” by

of war was necessary. 15 W. Taylor Reveley III, supra note 8. 16Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in The Papers of Thomas Jefferson 392, 397 (Julian P. Boyd ed., 1958). Jefferson was likely referring to William Shakespeare's “Julius Caesar” Act 3, scene 1, line 273 where Marc Antony announces: “Cry Havoc, and let slip the dogs of war.” Full play available at http://shakespeare.mit.edu/julius_caesar/full.html 17Abraham D. Sofaer, “The Presidency, War, and Foreign Affairs: Practice Under the Framers,” 40 Law & Contemp. Probs. at 199 (1976). In another letter, Jefferson observed "[t]hat the power of declaring war being with the Legislature, the executive should do nothing, necessarily committing them to decide for war in preference of non-intercourse." 18 U.S. Const. art. I, s 8, cl. 11 ("The Congress shall have Power... [t]o declare War...."). 19Letter from Thomas Jefferson to James Madison (Mar. 24, 1793), American Memory from the Library of Congress, http://memory.loc.gov/ammem/index.html “Thomas Jefferson letter to Madison March 24, 1793 (for a scan of the original letter). 20 Id. at 200. 21See U.S. Const. art. II, s 2, cl. 1 ("The President shall be 5

ordering the Army to invade another nation or ordering the Navy to attack foreign ships. Article II, Section 8, Clause 2 of the Constitution reads: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The President could take the nation to war, and Congress could decide whether to issue a formal declaration of war and establish limitations.22 However, there is strong evidence to support the argument that our nation's first leaders believed that the Commander in Chief was not free to wage war simply because another nation had declared war. The Framers were quite explicit about Congress' war powers in the Constitution. Congress had the power to declare war; “[t]o raise and support Armies;”23 “[t]o provide and maintain a Navy;”24 “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”25 and to “[p]rovide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States.”26 Through its “power of the purse,”27 Congress can defund the Army by failing to appropriate new funding for the Army to fight the war after the two year maximum period lapsed as is required by the Constitution.28 I will discuss in a later section of this chapter how those statutes of limitations have been re-defined over time and as a result of more recent conflicts (e.g., the Vietnam War). Thus, Congress has the power to both declare war and to control the military's finances. No other area of the Constitution grants greater war powers to any of the branches of the government than it does for Congress.

Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...."). 22W. Taylor Reveley III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? At 277-85 (1981), (providing a "sampler" of executive statements supporting congressional control over powers of war and peace). 23 U.S. Const. art. I, s 8, cl. 12. 24 Id., art. I, s 8, cl. 13. 25 Id., art. I, s 8, cl. 15. 26 Id., art. I, s 8, cl. 16. 27 Id., art. I, s 8, cl. 13. 28 Id., art. I, s 8, cl. 14. 6

Many legal scholars believe that the framers of the Constitution distributed distinct war powers between the executive and legislative branches in order to prevent the President from acting as a monarch and making unilateral declarations of war. The president was given the responsibility of executing the war once it had been declared, and Congress was given the responsibility to first “declare” war and then to fund the military. In this way, Congress was also given the ability to influence any military action that may take place outside of a formal war declaration. Congress can be said to be seizing the powers of the president when it uses its powers of the purse to shape foreign policy.29 In contrast to the legal scholars who interpret the Constitution as intentionally dividing war powers between the legislative and executive branches, John Yoo contends that the Constitution relinquishes the division of labors, leaving individual leaders to discern their roles as they wish.30 Yoo makes much of the fact that during the framing of the Constitution, the debate over allocating war powers was relatively short when compared with other discussions.31 However, there is strong evidence to suggest that the framers intended to limit the president’s ability to wage war,32 but still give him the ability to respond quickly to

29Brian Spaid, “Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?” 17 U. Dayton L.Rev. 1055 (Spring 1992). 30See Memorandum from John Yoo, Deputy Assistant Att'y Gen, Office of Legal Counsel,to the President (Sept. 25, 2001),in The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, 2001WL(OLC)34726560. http://www.justice.gov/olc/warpowers925.htm 31John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996). 32See Lucius Crassus, The Examination No. 1, N.Y. Evening Post, Dec. 17, 1801, reprinted in The Papers of Alexander Hamilton, at 444, 455-56. Hamilton, under the pseudonym of Lucius Crassus, often expressed his views under a variety of pseudonyms on sensitive topics such as war powers. He held the view that when another nation declared war on the United States, no congressional response or declaration of war was necessary. See also Yoo, supra note 3, wherein he describes that declaring war is not insignificant per se, for it can have important legal consequences both domestically and internationally. Proposing 7

a sudden attack. Thus, James Madison crafted a successful Constitutional amendment that defined Congress’ power to “make” war instead of the power to “declare” war.33 In Yoo's memo to the Bush Administration entitled: “The President's Constitutional Authority to Conduct Military Operations Against Terrorists and the Nations that Support them,” the claim is made that “[t]he Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war.”34 Yoo cites Alexander Hamilton35 for

that the Declaration of the Independence was the nation's first declaration of war, under international law. Yoo continues that declarations can also serve the purpose of transforming rebels and traitors into lawful combatants or allow other nations to define themselves as allies, or not, to the United States. 33Mark Uyeda. “Presidential Prerogative Under the Constitution to Deploy U.S. Military Forces in Low-Intensity Conflict.” 44 Duke L.J. 777 (February 1995). 34John C. Yoo, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” 84 Cal. L. Rev. 167, 196-241 (1996). See also W. Taylor Reveley, III, “War Powers of the President and Congress: Who Holds the Arrows and Olive Branch?” 55 (1981) ("[U]ndeclared war was the norm in eighteenth-century European practice, a reality brought home to Americans when Britain's Seven Years' War with France began on this continent." ); William Michael Treanor, “Fame, The Founding, and The Power to Declare War,” 82 Cornell L. Rev. 695, 709 (1997). 35Hamilton (often under pseudonyms) wrote letters to Madison, Jefferson and others (who also frequently relied upon various pseudonyms) regarding his unpopular views. See Lucius Crassus, The Examination No. 1, N.Y. Evening Post, Dec. 17, 1801, reprinted in The Papers of Alexander Hamilton, at 444, 455-56. Hamilton, this time using the pseudonym of Lucius Crassus, expressed his views under a variety of pseudonyms on sensitive topics such as war powers. He held the view that when another nation declared war on the United States, no congressional response or declaration of war was necessary. See also Yoo, supra note 34, wherein he describes that declaring war is not insignificant per se, for it can have important legal consequences both domestically and internationally. Proposing that the Declaration of the Independence was the nation's first declaration of war, under international law. Yoo continues that declarations can also serve the purpose of transforming 8

support that "[t]he ceremony of a formal denunciation of war has of late fallen into disuse."36 Alexander Hamilton, it seems, was the 18th Century's John Yoo.37 Those early days of the country were fraught with great debate. On one occasion, Madison (using the pseudonym Helvidus) wrote to Hamilton in an effort to convince him that “[I]n no part of the constitution is more wisdom to be found, than in the clause which confines the question of war or peace to the legislature, and not to the executive department.”38 Evidently, Madison/Helvidus was unsuccessful in his campaign to persuade Hamilton. Writing as Lucius Crassus,39 Hamilton criticized Thomas Jefferson for seeking congressional approval to fight the Tripolitans,40 arguing that it was “impossible to conceive the idea, that one nation can be in full war with another, and this other not in the same state with respect to its adversary.”41 Madison and Adams disagreed with the idea that one nation's aggression toward the United States necessarily translated into a state of war. It was their belief that the victim could decide whether to respond,42

rebels and traitors into lawful combatants or allow other nations to define themselves as allies, or not, to the United States. 36See Alexander Hamilton, The Federalist No. 25. http://press- pubs.uchicago.edu/founders/documents/a1_8_12s16.html 37Secretary of Treasury, Alexander Hamilton and his bitter rival, Aaron Burr, Vice President to Thomas Jefferson held a dual on July 11, 1804 where Hamilton was mortally wounded. See Thomas Flemming. “The Duel: Alexander Hamilton, Aaron Burr, and the Future of America.” New York, NY: Perseus Books, (1999). 38James Madison, Letters of Helvidius, No. IV, Gazette U.S., Sept. 14, 1793, The Writings of James Madison, 1790-1802, at 138, 174 (Gaillard Hunt ed., 1906). 39Lucius Crassus, The Examination No. 1, N.Y. Evening Post, Dec. 17, 1801, reprinted in 25 The Papers of Alexander Hamilton, supra note 27, at 444, 455-56. 40 Tripoli is sometimes referred to as the de-facto capital of Libya. 41 Id. 42James Madison is reported to have said in his War of 1812 message that Great Britain was in “a state of war against the United States, and on the other side the United States (is in) a state of peace toward Great Britain.” See Special Message to Congress (June 1, 1812), in The Writings of James Madison 192, 199-200 (Gaillard Hunt ed., 1908). President Adams also made the statement that France “is at war with us, but we are not with her.” See Alexander DeConde, The Quasi-War: The Politics and Diplomacy of the Undeclared War with France 1797-1801, at 9

but still holding firm to the idea that it was Congress who would decide whether to respond. In the war of 1812, Congress decided that in this instance, the U.S. was the victim of unprovoked warfare by England43, and for the first time, the United States made a formal declaration of war. President James Madison delivered a speech to Congress wherein he recounted the numerous violations made by the British to show that Britain was indeed at war with the U.S., but he nevertheless believed that Congress had to decide whether to declare war, for it was a “solemn question which the Constitution wisely confides to the legislative department of the Government.”44 Similar language as had been used earlier in Helvidus’s letter to Hamilton and on several other occasions. Eventually, many of the disputes regarding issues such as the ones described in the debate sparked between Madison and Hamilton (as Helvidus and Pacificus)45 resulted in Supreme Court cases. 1.3: REVIEW OF EARLY SUPREME COURT WAR POWERS CASES Alex de Tocqueville observed that in America, “[a]ll political questions become judicial questions.”46 In one of the Supreme Court's first cases, President Washington, by letter from Secretary of State Thomas Jefferson, asked the Court to render an opinion and intervene in the war between France, England and potentially the U.S. President Washington asked for a decision from the Court as to whether he could declare neutrality in the war without Congressional approval.47

23 (1966). 43See Report of the Comm. on Foreign Relations, to Whom Was Referred the Message of the President of the United States, of the 1st of June, 1812, in Official Letters of the Military and Naval Officers of the United States During the War with Great Britain in the Years 1812, 13, 14, & 15, at 15, 20 (John Brannan ed., D.C., Way & Gideon 1823). 44See Special Message to Congress (June 1, 1812), in The Writings of James Madison 192, 199-200 (Gaillard Hunt ed., 1908). 45See Alexander Hamilton, The First Letter of "Pacificus," in The Power of the Presidency (Robert S. Hirschfield ed., 3d ed. 1982). 46Alexis de Tocqueville, Democracy in America, 270 (George Lawrence trans., J.P. Mayer ed., Harper Perennial Books 1969) (1840). 47Robert E. DiClerico, The American President 30 (3d ed. 1990); The Power of the Presidency 46-47 (Robert S. Hirschfield ed., 3d ed. 1982). 10

In what would set the trend for years to come, the Supreme Court declined the President's request to render an opinion on the separation of powers issues, in what would eventually become known as the “political question” doctrine.48 This doctrine precludes judicial involvement in disputes between the executive and Congress that involve questions where the Constitution intended for the political process to resolve.49 Although the majority of cases resulted in the Supreme Court remaining silent on the issue of whether the President's decision to wage war was in violation of the Constitution or whether Congress had failed to declare the war in the first place,50 there are a few examples of cases where the war powers are discussed. One such example is Little v. Barreme.51 In Little, Presidential orders by John Adams to seize a ship were in direct violation of what Congress had ordered. In an action for damages by the owner of a Danish merchant ship, the court held that the “President's instructions cannot change the nature of the transaction, or legalize an act which, without those instructions would have been a plain trespass.”52 The Little Court's opinion recognized Congress's ability to limit the Executive's authority,53 and yet, the Court did not make a determination whether Congress or the President had acted unconstitutionally. The question of whether the Court possessed the power of

48Bernard Schwartz, “A History of the Supreme Court,” 25 (1993). 49Edward S. Corwin, “The Steel Seizure Case: A Judicial Brick Without Straw,” 53 COLUM. L. REV. 53, 64-65 (1953). 50See Yoo, supra note 35, at 293. 51Id. See also Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804). 52Id. at 179. 53John Hart Ely, “War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993) (arguing that “[t]he power to declare war was constitutionally vested in Congress” but that executive overreach and congressional irresponsibility had together undermined this constitutional requirement) and (Noting Little's significance as an example of judicial review of war powers controversies); See also John Hart Ely, Suppose Congress Wanted a War Powers Act that Worked, 88 Colum. L. Rev. 1379, 1386 (1988) (citing Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800), Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801), and Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), in support of the conclusion that the original meaning of the War Clause was that “all wars, whether declared or undeclared, had to be legislatively authorized”). 11

judicial review was decided in the landmark case of Marbury vs. Madison.54 In Marbury, Chief Justice Marshall acknowledged the role of the Court in these intimate political relations as: “[p]eculiarly irksome, as well as delicate; and excites some hesitation with respect to the province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”55 In another opinion of Chief Justice Marshall's in Bas v. Tingy,56 Marshall reached unanimous agreement with the other Justices that Congress held the power to commit the United States to full-fledged war through a declaration ("perfect war"), or to more limited conflicts without a declaration of war ("imperfect war").57 Again in Talbot v. Seeman, Justice Marshall opined that "the whole powers of war by the Constitution of the United States, (are) vested in Congress, (and) the acts of that body can alone be resorted to as our guides in this enquiry."58 In one of the most difficult periods in American history, during the Presidency of Abraham Lincoln and the time of the Civil War, the Prize Cases59 tested the limits of judicial involvement in disputes involving the war powers. The Prize cases involved ships that were taken and claimed as “prizes” during President Lincoln's blockade of southern ports before Congress had formally declared war against the Confederate States of America.60

54See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (stating that the Court's province is "solely to decide on the rights of individuals"). 55Id. at 169-70. 56Prize Cases, 67 U.S. (2 Black) 635, 670 (1863). 57Id. Justice Grier explained, “Whether the President, in fulfilling his duties, as Commander in-chief, in suppressing an insurrection has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.” 58 5 U.S. (1 Cranch) 1 (1801) at 28. 59 See Prize Cases, 67 U.S. (2 Black) 635, 670 (1862). 60 Id. at 640-43. 12

The Court upheld the blockade61, and although it never made a determination of whether a war existed,62 or decided whether Congress's or Lincoln's actions were proper absent a formal declaration of war,63 the Court nevertheless deferred to Lincoln's judgment that the nation was at war and recognized his authority to act even without prior congressional authorization.64 As the Court explained, the level of force necessary to repel an invasion or meet a crisis is a determination only the President can make.65 Not surprisingly, critic John Yoo cites to the Prize Cases in his memo on “The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them.”66 He claims that in the Prize Cases, the Court explained that whether the President "in fulfilling his duties as Commander in Chief 'had met with a situation justifying treating the southern States as belligerents and instituting a blockade,' was a question 'to be decided by him' and which the Court could not question, but must leave to 'the political department of the Government to which this power was entrusted.'”67 1.4: ACTIONS OF CONGRESS Congress has developed a reputation over the past 60 years for being an ineffective actor during wartime. Congress has presumably earned this reputation because of its politically unpopular decisions involved with committing troops or conducting combat operations in unpopular wars.68 Legal scholar John Hart Ely writes that members of Congress bear a significant responsibility due to being a body that is the most closely representative of American citizens. Ely continues by saying that Congress has become so fearful of making unpopular decisions due to

61 Id. at 671. 62 Id. at 670. 63 Id. 64 Id. 65 Id. See Justice Grier, supra note 58. 66 See Memorandum from John Yoo, Deputy Assistant Att'y Gen, Office of Legal Counsel, to the President (Sept. 25, 2001),in The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, 2001 WL (OLC) 34726560. http://www.justice.gov/olc/warpowers925.htm 67John C. Yoo, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” 84 Cal. L. Rev. 167, 196-241 (1996). 68David J. Barron & Martin S. Lederman, “The Commander in Chief at the Lowest Ebb--A Constitutional History,” 121 Harv. L. Rev. 941, 968 (2008). 13

the impact it may have on their careers, that in the interest of political self-preservation, they have reserved the right to express opposition or support depending on popular sentiment. Congress' actions are primarily designed to elude accountability.69 Furthermore, Congress’ own internal processes hinder its ability to act quickly in the event of an emergency. During wartime, there is a need for the government to appear in agreement with foreign policy.70 In terms of political consequences and public opinion, U.S. presidents’ problem is opposite to that of Congress. Presidential inaction can be the most politically dangerous course of action.71 The following will be a discussion to reveal how presidential war powers have been significantly increased beginning with the Korean conflict and ending with the U.S. involvement in the overthrow of the Libyan government in 2011. 1.5: KOREA: SETTING A PRECEDENT FOR UNILATERAL PRESIDENTIAL ACTION In part due to President Truman's failure to heed Congressional and popular opposition to the Korean War, he failed to win reelection in 1952. Sixty years later, Americans have experienced several examples of presidents who have redefined or ignored statutory limits on presidential war power in order to conduct military operations. In the following discussion, we will also examine how the court has treated the war powers question. On June 25, 1950, North Korean troops conducted coordinated attacks on points along the 38th Parallel, which served as the border between North and South Korea (the Republic of Korea). The same day, the United Nations Security Council met, and urged by the American delegation, passed resolution 82 condemning North Korean “hostilities” and calling for the immediate withdrawal of their armed

69Many have argued this case, most famous among them John Hart Ely. See, e.g., John Hart Ely, “War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath” (arguing that “[t]he power to declare war was constitutionally vested in Congress” but that executive overreach and congressional irresponsibility had together undermined this constitutional requirement). Princeton University Press. (1995). 70Brian Spaid, “Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?” 17 U. Dayton L.Rev. 1055 (Spring 1992). 71Joel Paul, “The Geopolitical Constitution: Executive Expediency and Executive Agreements.” 86 Cal. L. Rev. 671 (July, 1998). 14

forces from the South Korean territory.72 North Korea ignored the UN resolution. On June 26, President Truman received an urgent request from the parliament of South Korea for troops, artillery, tanks, and aircraft as well as other aid and military assistance. In a meeting with the South Korean Ambassador, Truman said that he had already directed General Douglas MacArthur to provide military assistance in response to North Korea’s actions.73 On June 27, the U.N. Security Council met again and recommended resolution 83, which would provide military assistance to the Republic of Korea.74 On July 7, 1950, the Security Council passed resolution 84, directing the member nations who wished to contribute military resources or aid to the Republic of Korea as part of a “unified command” under the direction of the United States. Resolution 84 also called for the United States to name a leader of the unified command.75 Truman chose General MacArthur as the leader of that command.76 Security Council Resolution 85 empowered the unified command to take responsibility for supporting South Korea and requested the United Nations to provide additional resources for the unified command.77 In 1953, President Dwight D. Eisenhower used a combination of military bravery and diplomacy to force the

72United Nations Security Council Resolution 82. June 25, 1950. http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/064/95/IMG/NR006495.pdf 73“Memorandum of Conversation at the White House. June 27, 1950. Harry S. Truman President Library. http://www.trumanlibrary.org/whistlestop/study_collections/kore anwar/documents/index.php?documentdate=1950-06- 27&documentid=ki-12-2&pagenumber=1 74United Nations Security Council Resolution 83. June 27, 1950. http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/064/97/IMG/NR006497.pdf 75United Nations Security Council Resolution 84. July 7, 1950. http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/064/97/IMG/NR006497.pdf 76 Minutes of 59th Meeting of the National Security Council, June 28, 1950. President's Secretary's Files, Harry S. Truman Presidential Library. http://www.trumanlibrary.org/whistlestop/study_collections/kore anwar/documents/index.php?pagenumber=2&documentdate=1950-06- 28&documentid=ki-16-2 77United Nations Security Council Resolution 85. July 31, 1950. http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/064/98/IMG/NR006498.pdf 15

signing of an armistice between the U.S. led unified command, North Korea, and its Chinese allies. South Korean representatives would not sign, and the nature of the armistice was that of a cease-fire. Thus, active combat by the U.S. forces ceased, but the war never officially ended. Documents from the Truman presidency78 suggest that Truman was concerned that China and the Soviet Union shared a plan to spread communism throughout Southeast Asia. The invasion of South Korea seemed a certain indication that those efforts had in fact begun.79 In an exchange with then- Governor of New York Thomas E. Dewey, Truman discussed his ideological motivations for the military action and deemed his own actions as necessary to prevent tyranny: “We have taken our stand on the side of Korea and our pledge of faith to that nation is a witness to all the world that we champion liberty wherever the tyranny of communism is the aggressor.”80 Without seeking prior Congressional approval, President Truman committed U.S. military forces to the UN sanctioned 15-nation international effort. John Yoo notes that in spite of the ease with which Truman could have obtained congressional authorization for his actions in Korea, he chose not to based on the advice of his Secretary of State Dean Acheson and Senate Majority Leader Scott Lucas. Yoo writes that both men convinced Truman that his actions were supported by his Article II commander-in-chief powers which allow the president to make treaties and fulfill those treaty obligations.81 Yoo claims that when criticized, Truman maintained that regardless of congressional authority, he had the authority to commit troops to protect the nation’s interests in foreign policy matters. He was referring to the 1950 U.N. resolutions.82

78http://www.archives.gov/education/lessons/korean-conflict/ 79Id. 80Harry S. Truman, “Exchange of messages with Governor Thomas Dewey Concerning U.S. Action in Korea. June 27, 1950. Harry S. Truman Presidential Library. http://www.trumanlibrary.org/publicpapers/index.php?pid=802&st= &st1= 81Article II, Section 8, Clause 2 of the Constitution reads: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” 82John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196- 16

However, officially, Truman attributed the role of the U.S. forces to the U.N. In a news conference on June 29, 1950, Truman stated that the U.S. “was not at war.” He characterized North Korea’s actions along the 38th Parallel border as a “bandit raid,” adding that the U.N. was going “to the relief” of the Republic of Korea, which was a sovereign nation recognized by the United Nations. When questioned by reporters, Truman said that the U.N. actions “amounted” to a “police action.”83 President Truman relied on his executive, treaty, commander-in-chief, and foreign affairs powers to initiate the hostilities.84 Instead of seeking a formal authorization before initiating military actions, Truman chose to seek an alliance with the United Nations Security Council, who voted 9 to 0 (with one abstention), to condemn North Korea’s actions. However, Truman was later criticized by members of the international community because he ordered U.S. military forces to respond to the North Korean attacks before consulting either Congress or the United Nations.85 Truman relied on the power of the United Nations Security Council who subsequently voted several times to authorize action against North Korea. Though President Truman did not retain his post long enough to see the end of the U.S.’s active military involvement in Korea, it was another president, not Congress, who is credited with the end of the U.S.’s participation in combat.86 Eisenhower is attributed with being responsible for ending the unpopular Korean War. However, it should be noted that Congress did not opt to use its constitutional or legislative powers to end or limit America’s participation in the conflict.87

241 (1996). 83The President’s News Conference June 29,1950. Harry S. Truman Presidential Library. http://www.trumanlibrary.org/publicpapers/index.php?pid=806&st= &st1= 84Brian Spaid, “Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?” 17 U. Dayton L.Rev. 1055 (Spring 1992). 85http://www.archives.gov/education/lessons/korean-conflict/ 86“The Korean War.” The Dwight D. Eisenhower Presidential Library. http://www.eisenhower.archives.gov/research/online_documents/ko rean_war.html 87Louis Fisher, Ryan Hendrickson, and Stephen Weissman. “Congress at War.” Foreign Affairs May/June 2008. http://www.foreignaffairs.com/articles/64297/louis-fisher-ryan- 17

Furthermore, Congress could be said to have given its implicit approval for American participation in the Korean conflict by authorizing funding for the combat expenses from 1950 to 1953. In fiscal year 1951, Congress set aside $12.2 billion for Korean War costs, of a total $40.7 billion allocated to the Defense Department in three separate supplemental measures. For fiscal years 1952 and 1953, war funds were included in the regular defense appropriations bills. Specifically, Congress authorized $56.9 billion for the Defense Department, including war costs, plus an additional $1.4 billion specifically set aside for the war in fiscal year 1952. In fiscal year 1953, Congress allotted $46.6 billion for the Department of Defense, which included war costs.88 1.51: KOREA AND THE IMPORTANCE OF THE YOUNGSTOWN CASE The case that is most often cited in discussions concerning war powers is undoubtedly Youngstown Sheet & Tube Co. v. Sawyer.89 In Youngstown, President Truman ordered the Secretary of Commerce to seize the nation's steel mills during the Korean War in an effort to ensure production of war materials and weapons.90 The Court disagreed with President's Truman's claims that his actions were constitutionally authorized due to an “emergency circumstances”91 and held that Truman's actions were “invalid because they violated express or implied statutory limitations.”92 Congressional limitations were also at stake due to the issue involving the domestic seizure of private property, which is a “legislative” power that the President may not exercise even when the legislature remains silent on the issue.93 Justice Jackson determined there are three circumstances that permit presidential action: “(1) those taken pursuant

hendrickson-and-stephen-r-weissman/congress-at-war 88Stephen Daggett. “Contingency Operations in Regular or in Supplemental Appropriations Bills.” June 13, 2006. Congressional Research Service: http://www.fas.org/sgp/crs/natsec/RS22455.pdf 89 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 659-60 (1952). 90 Id. at 582. 91 Id. at 580-82. 92 Id. at 610. 93See Justice Black's opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 659-60 (1952). 18

to express or implied congressional authorization (at which executive authority is at its height); (2) those taken where Congress has specifically discouraged or prohibited the action (at which executive power is at its lowest level); and (3) those actions taken in the "zone of twilight" in which the President and Congress share authority and in which Congress's own conduct may tend to invite - even unwillingly - presidential action.”94 Youngstown's holding--that the President of the United States possesses no inherent, unilateral legislative power in time of war or emergency--is legion in its importance to the war powers issue. Youngstown also signifies that the judiciary will not always decline to render an opinion on constitutional issues involving the President's constitutional powers on matters of national security, even during a proclaimed state of emergency. Since the time of Youngstown, Congress has increasingly ceded its constitutional war powers to the executive95 and it seems unlikely that Congress can retrieve the powers that it abdicated. 1.6: VIETNAM: PRESIDENTIAL POWERS AND THE WAR POWERS RESOLUTION The legacy of Vietnam begins in 1962 with U.S. military deployments ordered by President John F. Kennedy. Specifically, Kennedy sent “military advisors” to the region under the auspices of the Military Assistance Command, Vietnam, as part of the unified command organization operating in Vietnam for the duration of the Vietnam War. On November 26, 1963, President Lyndon Johnson issued National Security Action Memorandum 273,96 which outlines the U.S.’s commitment to assisting South Vietnam to win their “contest” against North Vietnam. The memorandum further states increasing the stability of the South Vietnamese regime is a “major interest” of the United

94Id. at 635-38 (Jackson, J., concurring). 95Peter Irons, “War Powers: How the Imperial Presidency Hijacked the Constitution” (2005) at 180-204 (decrying “congressional abdication" of its constitutional war powers, beginning with Vietnam War); See Louis Fisher, Congressional Abdication: War and Spending Powers, 43 St. Louis U. L.J. 931, 983-1005 (1999) at 946-83 (arguing that multilateral treaties have facilitated postwar expansion of executive war powers).

96National Security Action Memorandum: http://mcadams.posc.mu.edu/viet16.htm 19

States.97 This set the tone for the policy that Johnson later used in discussions regarding the U.S. commitment to the Vietnam War effort. On August 4, 1964, President Johnson announced to the nation that on August 2, North Vietnamese forces had attacked U.S. ships in the Gulf of Tonkin.98 In response, Johnson stated that he ordered U.S. military planes to take “air action against gunboats and supporting facilities used in these hostile operations.”99 After these air forces had

97Lyndon Johnson. “National Security Action Memorandum 273” November 26, 1963. Lyndon B. Johnson Presidential Library. http://www.lbjlib.utexas.edu/johnson/archives.hom/nsams/nsam273 .asp 98The Tonkin Gulf Resolution (officially, Asia Resolution, Public Law 88-408) was a joint resolution which the United States Congress passed on August 10, 1964 in response to a sea battle between the North Vietnamese Navy's Torpedo Squadron 10135[1] and the destroyer USS Maddox on August 2 and an alleged second naval engagement between North Vietnamese boats and the US destroyers USS Maddox and USS Turner Joy on August 4 in the Tonkin Gulf; both naval actions are known collectively as the Gulf of Tonkin Incident. The Tonkin Gulf Resolution is of historical significance because it gave U.S. President Lyndon B. Johnson authorization, without a formal declaration of war by Congress, for the use of "conventional” military force in Southeast Asia. Specifically, the resolution authorized the President to do whatever necessary in order to assist "any member or protocol state of the Southeast Asia Collective Defense Treaty." This included involving armed forces. The Tonkin Gulf Resolution (officially, Asia Resolution, Public Law 88-408) was a joint resolution which the United States Congress passed on August 10, 1964 in response to a sea battle between the North Vietnamese Navy's Torpedo Squadron 10135[1] and the destroyer USS Maddox on August 2 and an alleged second naval engagement between North Vietnamese boats and the US destroyers USS Maddox and USS Turner Joy on August 4 in the Tonkin Gulf; both naval actions are known collectively as the Gulf of Tonkin Incident. The Tonkin Gulf Resolution is of historical significance because it gave U.S. President Lyndon B. Johnson authorization, without a formal declaration of war by Congress, for the use of "conventional'' military force in Southeast Asia. Specifically, the resolution authorized the President to do whatever necessary in order to assist "any member or protocol state of the Southeast Asia Collective Defense Treaty." This included involving armed forces. http://en.wikipedia.org/wiki/Gulf_of_Tonkin_Resolution 99http://future.state.gov/when/timeline/1969_detente/ending_the_vi etnam_war.html 20

carried out their mission, Johnson conferred with both houses of Congress, and then announced that he had asked Congress to pass a resolution supporting his actions. Congress approved the Tonkin Gulf Resolution on August 7, 1964 by an overwhelming majority. It passed in the House of Representatives by a vote of 414-0 and in the Senate by a vote of 88-2. In the Senate, only Democrats Wayne Morse of Oregon and Ernest Greuning of Alaska voted against it. The Tonkin Gulf Resolution stated that Congress “approves and supports” the determination of the President to take “necessary measures” to counter the gulf attack and any subsequent attack(s) on the U.S. The Tonkin Gulf Resolution did not impose any limits on the war powers of the president. In contrast it directed the president to take all “necessary measures” to repel or prevent further attacks. Furthermore, section 3 of the resolution gave the President the authority to cancel the resolution. Congress was also given explicit authority to terminate the resolution through a concurrent resolution by the Congress.100 After a few unsuccessful attempts, Congress successfully repealed the resolution in 1971. However, President Richard Nixon ignored the repeal. In January of 1973, Nixon resumed peace talks with the North Vietnamese, and by March, the American combat troops began drastically reducing their troop support in of South Vietnam. Certain military personnel remained in Vietnam, but the war was officially over for the U.S. forces.101 By 1973, Congress, under pressure from the American public, sought more substantive powers to influence the president’s war powers. The War Powers Resolution, or the War Powers Act, passed in November 1973 despite President Nixon’s veto.102 President Kennedy did not have to confront the presidential war powers issue head-on because the personnel he sent to Vietnam were considered military advisors rather than soldiers. President Johnson used the events from the Gulf of Tonkin attack to justify shifting the U.S. from an advisory role to active combat. Both Johnson and later Nixon used the Tonkin Gulf Resolution as their legal

100Tonkin Gulf Resolution. August 7, 1964. http://www.ourdocuments.gov/doc.php?flash=true&doc=98 101 http://www.pbs.org/battlefieldvietnam/timeline/index4.html 102 Richard Nixon. “Veto of the War Powers Resolution” October 24,1973: http://www.presidency.ucsb.edu/ws/index.php?pid=4021#axzz1fIuKU i00 21

precedent for U.S. combat operations in Vietnam.103 Furthermore, when Johnson was later criticized for expanding the U.S. presence in Vietnam, he referred to the near-unanimity of the Tonkin Resolution to pressure Congressional critics that he characterized as "nervous nellies."104 Johnson’s State Department reaffirmed the authority Truman had used in Korea to command troops unilaterally, in this case under the president’s Article II commander-in- chief powers. Johnson relied upon the specific responsibilities dictated by the U.S.’s obligations to the Southeast Asia Treaty Organization, as well as historical precedent.105 However, some scholars argue that Democrats opted to vote for the Tonkin Gulf Resolution believing that by in so doing, they would be helping them to avoid a more protracted conflict or full-scale war.106 While Nixon did not veto the Tonkin Gulf repeal, he refused to honor the loss of his legal authority. Nixon relied upon his Article II commander-in-chief powers to justify ignoring the repeal of the Tonkin Gulf Resolution, which allowed him to continue waging the war with Vietnam. Ultimately, it would take another aggressive act by Congress, the tightening of the federal purse strings, to force Nixon to end the U.S. involvement in the Vietnam War. In addition to authorizing the Tonkin Gulf Resolution, Congress showed its initial support for the Vietnam War by appropriating a few billion dollars for 1965 through 1968 through regular and supplemental appropriations bills. However, as the tide of public opinion turned against the war, President Johnson and finally Nixon, Nixon refused to limit the scope of U.S. involvement. At this point, Congress sought to limit the funds available for the war effort. Furthermore, between 1966 and 1968 Congress conducted 14 roll call votes about the war; between 1969

103Tonkin Gulf Resolution. August 7, 1964. http://www.ourdocuments.gov/doc.php?flash=true&doc=98 104 Dennis Simon. (2002) “The War in Vietnam, 1954-1964.” http://faculty.smu.edu/dsimon/Change-Viet.html 105 John C. Yoo, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” 84 Cal. L. Rev. 167, 196-241 (1996). 106 Louis Fisher, Ryan Hendrickson, and Stephen Weissman. (2008) “Congress at War” Foreign Affairs May/June 2008: http://www.foreignaffairs.com/articles/64297/louis-fisher-ryan- hendrickson-and-stephen-r-weissman/congress-at-war 22

and 1972, during Nixon's first term, there were 80 roll call votes on the war. The president fiercely resisted these Congressional measures, but starting in the late 1960s, the growing animosity about the war enabled Congress to successfully curb the president’s efforts. Specifically, President Nixon faced political opposition from several congressmen who proposed the measures regarding troop deployments and “related” Vietnam affairs in Thailand, and a reduction of military activities in the regions. However, it was not until Congress began to take action to limit the funds available for the war that a true troop withdrawal began to occur. In 1969, Nixon was forced to sign a defense appropriations bill that included an amendment to prevent further appropriations of money to fund combat in Laos or Thailand. Though the amendment was never intended to challenge the constitutional powers of the president, after several concessions, the amendment ultimately passed. The congressional budgetary authority forced Nixon to alter his war plans. This first measure to limit the scope of war outside of Vietnam was quickly followed by subsequent proposals to limit US action in Vietnam. In 1970, Senators Cooper and Church drafted an additional amendment to prevent spending for soldiers, combat assistance, advisors, or bombing operations in Cambodia. Nixon and his political allies pressured potential supporters of the amendment and the conflict resulted in political upheaval and lengthy debates regarding the constitutional balance of power. Ultimately though, Congress prevailed. On June 30, 1974, Congress passed a measure disallowing appropriated funds to pay for combat operations around North Vietnam, South Vietnam, Laos or Cambodia, including on the water (i.e., not just on the ground). In December of 1974, Congress passed a troop- reduction measure that specified that no more than 4,000 Americans could remain in Vietnam 6 months after the enactment of the law, and no more than 3,000 Americans could remain within one year of enactment.107 However, Congress did not stop with an official end to the war. The 1973 War Powers Resolution is perhaps the most significant legislative effort to date designed to abridge

107 Richard Grimmett, “Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments.” January 10, 2001. Congressional Research Service. http://www.fas.org/man/crs/RS20775.pdf 23

the war powers of the president. The resolution specifically states that the president’s commander-in-chief authority to introduce the nation’s armed forces into “hostilities” or “imminent hostilities” can only be exercised “pursuant to: (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”108 However, the resolution has had limited effectiveness due to its shortcomings. First, many presidents have sought to circumvent the resolution’s requirements through the use of carefully crafted wording (i.e., John Yoo), or have otherwise tried to overcome the requirements. Second, the vague terminology of the resolution and the inaction by the courts in assessing the question of presidential war powers further limits the usefulness of the resolution. Recent presidents have found it relatively easy to reinterpret the terms of the resolution or to only comply with the provisions that are the most convenient.109 No President has ever acknowledged the constitutionality of the resolution, and no President has ever formally complied with the 1973 War Powers Resolution Act's terms, which require presidents to consult with Congress prior to deploying military forces, report to Congress within 48 hours of moving or increasing troops in combat areas, and to seek approval by Congress to continue any military intervention beyond a 60-day grace period that is timed with the issuance of the 48-hour report.110 Presidents since Nixon have repeatedly deployed troops and engaged in military actions without Congressional approval, and then subsequently forced Congress either to authorize or reject the action, withdraw their funding, and possibly even to impeach the President. The War Powers Resolution of 1973111 was passed by Congress during the time of the Vietnam War in response to

108 War Powers Resolution. http://avalon.law.yale.edu/20th_century/warpower.asp 109 Brian Spaid, “Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?” 17 U. Dayton L.Rev. 1055 (Spring 1992). 110John C. Yoo, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” 84 Cal. L. Rev. 167, 196-241 (1996). 111Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543, 1603-09 (2002) [hereinafter Ramsey, Textualism] 24

the criticism of expanding presidential war powers.112 The Resolution demonstrates that Congress has never simply agreed to their loss of the war powers to the Executive branch. The Resolution calls upon the President to "consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated."113 At the time of the onset of the hostilities, the clock starts running, and if Congress does not “either declare war or specifically authorize the use of the Armed Forces within sixty days, the President must terminate the use of the Armed Forces.”114 Unfortunately, the War Powers Resolution has turned out to be somewhat of a “toothless tiger.” Even with the passage of the War Powers Resolution of 1973, Presidents have increasingly made unilateral decisions to engage in military actions.115 The increase is most likely due to the Executive Office's rejection of the War Powers Resolution as being unconstitutional or the belief that their actions fall outside of what is covered by the Resolution.116 Despite several prominent instances of presidential noncompliance with this requirement, Congress has rarely opted to use the legal remedies prescribed in the resolution.117 1.61: Vietnam Cases The Vietnam era is one that is marked by social unrest and public protest. Congress responded to the public outcry for war reform by the passage of the War Powers Resolution of 1973, but as described above, it achieved

(collecting quotations from Alexander Hamilton, James Iredell, Charles Pinckney, James Madison, and James Wilson and reviewing practice of Washington presidency, all favoring congressional over executive war powers). See also supra notes 10-14 for a discussion of various Framers’ views on war powers. 112Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545, 571-85 (2004) ("The Article II Vesting Clause may simply make clear where the executive power is being vested--in a unitary President--not the scope of that power."). 113 Id at 584. 114 Id at 584. 115 John C. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (2005), supra note 3 at 106-07. ("On the question of war, flexibility means there is no one constitutionally correct method for waging war."). 116 Id at 107. 117 Id. 25

only limited success. In response to the limitations of the War Powers Resolution, several lawsuits were brought to challenge the presidential war powers, and in case after case, the federal courts were resistant to rule on the political branches' use of war powers. One of the foundational war powers cases is Marbury v. Madison, wherein Chief Justice John Marshall said the court did not have the power to review all decisions, especially decisions invoked with discretionary powers, made by the president and Congress. However, the decision also says that the judiciary has the unique responsibility to define the reach and limitations of the law.118 Legal scholar Louis Fisher identified that the Vietnam War was a turning point for the courts. The courts took an active role in deciding war powers issues on their legal merits from early American history through the middle of the Korean War. However, the courts began to skirt war powers issues with the Vietnam War.119 Specifically, Fisher said that many of the legal cases filed to contest the Vietnam war and the military actions in other Southeast Asian nations were dismissed by the Supreme Court for one of three reasons: lack of standing, posing a political question (otherwise known as the “political question doctrine”), or for bringing suit when the United States had not consented to be sued. The precedent for these justifications came from United States v. [John Nelson] Hogans, and Luftig v. McNamara. In these cases, the court dismissed lawsuits from a soldier who said the Vietnam War was unconstitutional and that the government lacked the authority to commit troops to an unconstitutional war. In United States v. Hogans, the court said that the power to draft individuals does not depend on the existence of a conflict. Additionally, the court cited the 1951 case of United States v. Bolton, in refusing to consider the purposes for which the president commits military forces when making its decision.120 In 1967, in Luftig v. McNamara, the court ruled on the issue of the political question doctrine that the government had not consented to be sued.121 The federal courts began to see

118Marbury v: Madison, 5 U.S. (1 Cr.) 137, 164 (1803). 119Louis Fisher. Judicial Review of the War Power. 35 Presidential Studies Quarterly, 466 (2005) 120Louis Loeb. The Courts and Vietnam. 18 American University Law Review, 385 (1969). 121Louis Fisher. Judicial Review of the War Power. 35 Presidential Studies Quarterly, 487 (2005). 26

their role as weighing in on the war powers when the other two branches of government were not in agreement122 In Berk v. Laird, soldier, Malcolm Berk, filed suit against then-Secretary of Defense Melvin Laird to prevent his deployment to Vietnam. Rather than opting out by characterizing the suit as a political question, the court said Article 1, section 8 of the Constitution suggests that Congress should have “some mutual participation” to carry out war and granted Berk a hearing in order to argue that the legislative and executive actions in support of the Vietnam War were insufficient to justify the waging of war.123 The court subsequently found that Congress had taken sufficient action to authorize the war, but in the opinion, Judge Anderson stated that a political question does not unilaterally exempt the courts from the responsibility of deciding war powers cases.124 Congress too turned to the courts to actively challenge the presidential power to wage war. In the 1973 case of Mitchell v. Laird, the D.C. Circuit court refused to rule on the constitutionality of the president waging war. Specifically, the court said that it did not have the means to decide on the political question, but added that there may be instances in the future when those tools may be available, and judicial review would be appropriate. One such case was Holtzman v. Richardson (1973), wherein the Second Circuit found that the court could not use the political question doctrine as an excuse to pass on the case.125 1.7: IRAQ: THE REINVENTION OF WAR POWERS In the United States' most recent wars in Afghanistan and Iraq, President Bush acted under the advisement of individuals such as John Yoo and Alberto Gonzalez when deciding to invade Iraq and Afghanistan. The President was able to receive congressional authority following the invasions.126 Since the memos of Yoo and Gonzalez described case law and history in new and inventive ways, the President was filled with the belief that he could order a military action without explicit authorization from

122 Id., p. 484. 123 Berk v. Laird, 429 F.2d 302 (2 Cir. 1970). 124Orlando v. Laird, 443 F.2d 1039 (CA2 1971). 125Louis Fisher. Judicial Review of the War Power. 35 Presidential Studies Quarterly, 487 (2005) 126 Cf. Christopher Shea, “War Counsel,” Boston Globe, Oct. 23, 2005. 27

Congress. President Bush based his belief on three premises: “1) the U.S. Constitution gives the President authority to wage war without explicit authorization from Congress; 2) authorization still exists under the resolutions for the 1991 Gulf War; or 3) reliance on the (Yoo) resolution127 of September 14, 2001.”128 Much has been written about the Bush administration’s justifications for starting the Iraq War. In this section, the analysis will be limited to what justifications the Bush administration offered after the start of the war to continue committing U.S. resources to the effort, and then later, to enter into agreements with the new Iraqi government. The Bush Administration took an inopportune time to push their agenda for Executive Power by making the argument that Congress cannot "dictate strategic or tactical decisions on the battlefield,"129 or for example, to impose legislation to restrict troop levels in Iraq. Nor could Congress "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response...(that under the Constitution, these decisions) are alone for the President to make."130

127John Yoo, Memorandum Opinion from the Office of Legal Counsel to the President, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, http://www.usdoj.gov/olc/warpowers925.htm (concluding that because "[d]eclaring war is not tantamount to making war," the President may wage war notwithstanding the Constitution's grant of "declare war" authority to Congress). 128 See Restatement (Third) of Foreign Relations Law of the United States s 325 cmt. a (1986) (noting that, while Vienna Convention on the Law of Treaties has not come into force for United States, "it represents generally accepted principles and the United States has also appeared willing to accept them despite differences of nuance and emphasis"); see also, e.g., Air France v. Saks, 470 U.S. 392, 396, 400-03 (1985) (considering legislative history in interpreting Warsaw Convention relating to air transportation). 129Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), in The Torture Papers: The Road to Abu Ghraib 172, 207 (Karen J. Greenberg & Joshua L. Dratel eds., 2005). 130Memorandum from John Yoo, Deputy Assistant Att'y Gen, Office of Legal Counsel,to the President (Sept. 25, 2001),in The President's Constitutional Authority to Conduct Military 28

The Bush Administration maintained that the Constitution empowers the President to start a war.131 John Yoo, the legal architect of the Bush administration’s war powers strategy, based his arguments on a novel interpretation of the Constitution and legal precedents. The idea developed in part when Yoo made a seemingly innocuous statement about one word, “declare” by pointing out that in eighteenth century dictionaries, the word "declare" meant to "reveal" or "show" or "proclaim.”132 Bush accomplished his shifting agenda with the help of legal advisors John Yoo and Alberto Gonzalez, who manipulated existing precedents to justify assigning unprecedented powers to the president. Bush’s team crafted a legal argument that permitted the president to order any military action without Congressional authorization, relying on powers supposedly granted by the Constitution, a 1991 Gulf War resolution, and a September 14, 2001 legal memorandum prepared by John Yoo, justifying sweeping new governmental powers in the wake of the terrorist attacks of September 11, 2001.133 In a 1996 article, Yoo states that people who argue that the president must receive a declaration of war before entering a conflict overlook the fact that Congress has only declared war five times, even as presidents have deployed U.S. military forces to wage or participate in dozens of armed conflicts in the years since the Korean War.134

Operations Against Terrorists and Nations Supporting Them, 2001 WL (OLC) 34726560. http://www.justice.gov/olc/warpowers925.htm 131See e.g., Memorandum Opinion from the Office of Legal Counsel to the President, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, http://www.usdoj.gov/olc/warpowers925.htm (concluding that because "[d]eclaring war is not tantamount to making war," the President may wage war notwithstanding the Constitution's grant of "declare war" authority to Congress). 132Several seventeenth and eighteenth century legal theorists who were regarded as experts in international law used the term "declare war" as a declaration of war, an announcement of war, or a proclamation that a state of war exists, or that a state of war will exist if certain demands are not met. See, e.g., Emmerich de Vattel, The Law of Nations 418 (Joseph Chitty trans., T. & J. W. Johnson & Co.,1883). 133John C. Yoo, “The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11,” at 332 (2005). 134John C. Yoo, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” 84 Cal. L. Rev. 167, 29

In the Yoo memo to the Bush Administration entitled: “The President's Constitutional Authority to Conduct Military Operations Against Terrorists and the Nations that Support them” Yoo states that “[D]uring the period leading up to the Constitution's ratification, the power to initiate hostilities and to control the escalation of conflict had been long understood to rest in the hands of the executive branch.”135 The author, John Yoo, is citing to supporting evidence from his own piece entitled: “The Continuation of Politics by Other Means: The Original Understanding of War Powers.”136 Yet, Yoo highlights the “period leading up to . . . ratification,”137 but does not explain the history and actions that followed. Yoo argues that his “textualist” approach supports a "flexible decision-making system that can respond to such sweeping changes in the international system and in America's national security posture."138 He further believes that on the issue of war powers, the Constitution leaves the political branches of the federal government free to work out the allocation of war powers as they wish.”139 After all of the political haggling and scurrying to find supporting evidence for what the Framers intended for the various branches of government and the exercise of war powers, Yoo finishes the debate by making the claim that these powers were “hastily composed 'toward the end of the [Constitutional] Convention, in response to objections raised from the Convention floor.'"140 Claiming that the War Powers clause was the product of an "obscure, garbled, last-minute debate,"141 it is not only hard to believe this depiction of events by Yoo, but the evidence that he cites to, and the surviving documents and letters of the Framers

196-241 (1996). 135Ibid. 136Ibid. 137The United States Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by conventions in each U.S. state in the name of "The People" on June 21, 1788. 138See Yoo, supra note 3, at 28 ("It is the original understanding of the document held by its ratifiers that matters, not the original intentions of its drafters."). 139 Id. at x-xi. 140 See Yoo, “War and the Constitutional Text,” supra note 2, at 1656. 141 Id. 30

(in the historical section at the beginning of this chapter) do more than suggest otherwise. Several critics and commentators have argued that contrary to the Bush administration's assertions, Congress was unaware that it was writing President Bush a blank check when it passed the Authorization for Use of Military Force Against Iraq Resolution of 2002, commonly known as the Iraq War Resolution. To the contrary, Congress “self- consciously restricted the war’s aims to narrow purposes, expressly authorizing a limited war. Yet the president transformed a well-defined and limited mission into an open-ended conflict with changing aims.”142 On October 11, 2002, both houses of Congress approved an identical resolution to authorize the president to attack Iraq if Saddam Hussein failed to relinquish weapons of mass destruction as demanded by the 1991 U.N Security Council Resolution 687. On November 8, 2002, the United Nations Security Council passed resolution 1441 demanding Iraq allow international inspections teams to search its facilities and create an inventory of Iraq’s weapons of mass destruction.143 On March 20, 2003, President George W. Bush ordered U.S. military forces to invade Iraq. As public support for the war waned, the Bush administration continued to insist that the 2002 resolution entitled it to make unilateral decisions without any further authorization from Congress.144 In addition to the new war powers, the Bush administration also claimed unprecedented powers to circumvent Congressional input entirely. For example, the President transformed a limited war into an unlimited one by entering into agreements with the Iraqi government. Bush violated statutory time limits on conducting war without congressional approval. Furthermore, when members of Congress complained or challenged the administration's misuse of power, President Bush and his advisors simply ignored them.145

142 Bruce Ackerman and Oona Hathaway, “Limited War and the Constitution: Iraq and the Crisis of Presidential Legality.” 109 Mich. L. Rev. 447 (2011). 143 United Nations Security Council Resolution 1441. November 8, 2002. http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement 144 Bruce Ackerman and Oona Hathaway, “Limited War and the Constitution: Iraq and the Crisis of Presidential Legality.” 109 Mich. L. Rev. 447 (2011). 145 Ibid. 31

President Bush was able to convince Congress to approve a limited war, but without specifying a time frame for the authorization, Congress was left guessing when the limited war would become an extended conflict. Unlike the Vietnam War, Congress was not able to use its “power of the purse” to effectively circumvent the Bush administration’s actions in the Iraq War. Even under the best circumstances, Congressional budgetary authority lacks the flexibility needed to counter presidential use of war powers. For example, the Bush Administration funded the Iraq War mainly through a series of “emergency” supplemental appropriations, which Congress could not refuse without appearing to be short-changing the troops and putting them at risk. By employing this tactic, the Bush administration robbed Congress of one of its most effective tools to refuse funding for a war that had exceeded its statutory limitation. 1.71: Iraq Cases Author Jules Lobel argues that extrajudicial writings from Supreme Court justices could be interpreted to support the president’s exclusive power to “move troops and direct campaigns.”146 However, the Supreme Court has never upheld the president’s commander-in-chief power when Congress has passed legislation that appeared to contradict or usurp that power.147 At the core of this debate is a question about separation of powers. Many of the scholars who have examined the war powers issue since the beginning of the Iraq War must also wrestle with the issue of separation of powers. As early as the Prize Cases (1862), the court said it could not question the president’s decisions in the course of carrying out war activities that are recognized under the president’s powers to carry out war. Separation of powers is still a contentious issue.148 Marci Hamilton (2004) identified that the government’s powers to detain foreign nationals were the subject of several court cases: Johnson v. Eisentrager (1950), Rasul v. Bush (2004), and

146 Jules Lobel. “Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War.” 69 Ohio State Law Journal 391 (2008). 147Ibid., p. 394. 148 United States Department of Justice. (2001, September 25). The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them; Memorandum Opinion for the Deputy Counsel to the President. Retrieved from http://www.justice.gov/olc/warpowers925.htm 32

Odah v. United States (2008), which also concerned separation of powers.149 When defending his conduct concerning the military activities in Iraq, President Bush said that Congress did not have the power to limit his authority to commit military forces to Iraq. In Hamdan v. Rumsfeld (2006), the court affirmed that Congress was not empowered to interfere in how the president chose to conduct military campaigns.150 The Justice Department has also affirmed this, citing the presidential powers granted in the Joint Resolution of September 14, 2001. In Hamdan v. Rumsfeld (2006), the Supreme Court held that even congressional opposition could not limit the president’s authority to detain U.S. citizens designated as enemy combatants because that authority was given to the president when Congress passed the Authorization For Use of Military Force (AUMF) in 2001.151 Historically speaking, wartime is not the ideal time for the courts to challenge the constitutional authority of Presidents because of the far-reaching consequences. However, without the consent of Congress, certain presidential actions lack validity, which has prompted the Supreme Court to invalidate past presidential actions.152 In the case of Iraq, as with Vietnam, President Bush was able to surmount legal challenges because Congress had passed substantial pieces of legislation granting him the presidential powers he chose to exercise. 1.8: LIBYA: A CONTINUATION OF THE BUSH ADMINISTRATION'S POLICIES Interestingly, President Barack Obama used the same presidential advantages taken by President Bush in Iraq to carryout military activities in Libya. For the time being,

149 Marci Hamilton. “The Bush Presidency and Power: The Guantanamo Cases, the Cheney Case, and the 9/11 Hearings.” April 22, 2004. Retrieved from http://writ.news.findlaw.com/hamilton/20040422.html 150Jules Lobel, supra note 146. 151Amy Kalman and Chris Schroeder. “Hamdi v. Rumsfeld: Americans Captured on the Battlefield can be Detained without Criminal Charges—They are Entitled to a Hearing.” Supreme Court Online. Retrieved from http://www.law.duke.edu/publiclaw/supremecourtonline/commentary /hamvrum 152 Curtis A. Bradley and Jack L. Goldsmith “Congressional Authorization and the War on Terrorism.” 118 Harvard Law Review 2051 (2005) 33

it appears Obama is forgetting that at one time he rallied the masses against the use of such powers when he was a senator and hoped to be president. On March 19, 2011, President Obama ordered U.S. military forces to participate in a series of air strikes against Libya. Obama did not seek congressional authorization and in response, members of Congress publicly objected to the use of presidential power. On March 21, 2011 Obama sent a notification letter to Congress defending his actions as within the scope of authority given to him as part of the War Powers Resolution. After the 60-day grace period permitted by the War Powers Resolution, Obama redefined the scope of U.S. involvement in the conflict, but did not indicate he would begin to withdraw U.S. forces within the 60-day time limit prescribed by the resolution, nor did he specify he would be seeking congressional support for his actions. Ultimately, Obama sought neither appropriated funds or congressional approval for the U.S. role in Libya. Obama expressed denial that the U.S. was engaged in a military conflict. He credited the NATO forces with the removal (i.e., death) of Moammar Gaddafi and pledged continued U.S. support while Libya was in the process of rebuilding its government.153 On September 20, 2011, the Washington Post reported that Obama pledged support for the new regime as he stood with the Libyan Transitional National Council at the United Nations. At the same time, Obama announced that he would reopen the U.S. embassy in Tripoli and would request the return of a Libyan ambassador to the region. He expressed support of the NATO actions in Libya as an example of what the international community can achieve when it stands united.154 However, not all nations were quick to celebrate NATO’s victories. The Washington Post reported that Brazil, China, Russia, India and South Africa openly criticized NATO's misuse of a U.N. mandate intended to protect civilians in

153 Devin Dwyer. August 22, 2011. “'Obama Doctrine,' NATO Strengthened by Gadhafi Downfall” ABC News: http://abcnews.go.com/Politics/president-obama-libya-strategy- vindicated-gadhafi-downfall/story?id=14356630#.Ttbstq50sSM 154 C. Lynch and S. Wilson, September 20, 2011. “Obama Anoints New Libyan Government” The Washington Post: http://www.washingtonpost.com/world/national-security/obama- anoints-new-libyan-government/2011/09/20/gIQAs95cjK_story.html 34

Benghazi which was instead being used as political cover to assist in a rebellion and unseat a government official.155 President Obama justified deploying US military forces to Libya in March 2011 by characterizing the purpose of the U.S. actions as intending “to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.”156 At first glance, the U.S. involvement in the Libya conflict would seem to pass the hostilities test described earlier in the War Powers resolution.157 Specifically, that the U.S. was facing minimal danger in becoming a target for Libyan hostilities, and the forces were committing “a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone.” Additionally, Obama stated, “United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster,”158 later indicating that the United States had not deployed ground forces into Libya. Obama notified Congress as required by the resolution and altered the nature of the U.S. involvement at the end of the statutory 60-day time limit. Many presidents have tried to hide behind the United Nations to circumvent Congress. The United Nations Participation Act (UNPA) specifies certain conditions under which the president may authorize U.S. participation in an international military effort at the request of the United Nations. Specifically, Article 43 of the UNPA requires the creation of special agreements before U.S. military forces can be used by a request from the U.N. Security Council. Further, the UNPA states that Congress must approve agreements reached through resolution or act of law.159

155 Ibid. 156 Ibid. 157 Brian Spaid, “Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?” 17 U. Dayton L.Rev. 1055 (Spring 1992). 158Barack Obama. “Letter from the President regarding the commencement of operations in Libya” March 21,2011: http://www.whitehouse.gov/the-press-office/2011/03/21/letter- president-regarding-commencement-operations-libya 159 Michael Lind, March 21, 2011. “The False Defenders of Obama’s war in Libya.” http://www.salon.com/2011/03/21/congress_war_powers_the_preside nt/ 35

No such agreement was created to justify the U.S. involvement in Libya. One author, Brian Spaid, noted that because Congress clearly stated that if Article 43 agreements are negotiated, the president does not have to obtain additional authorization from Congress to act in accordance with an Article 43 resolution.160 Spaid argued that “Since this is the only congressional act allowing for the specific use of United States military forces without congressional approval, the negative implication of the UNPA is that the President cannot use military force at all without congressional approval.”161 Additionally, Spaid said that Congress gave specific powers to the president in Article 43 of the UNPA, but in no way limited the power of Congress to declare war. Also, President Obama characterized the Libyan conflict and American involvement as low intensity. “These strikes will be limited in their nature, duration, and scope,” Obama wrote in his March 2011 letter to Congress. He added that the U.S. actions would “set the stage for further action by other coalition partners” and “support international efforts to protect civilians and prevent a humanitarian disaster.” The word “war” does not appear anywhere in his letter. Like many post-Cold War conflicts, Libya seems to qualify as a “low-intensity conflict,” which have been defined as “operations undertaken under executive authority, wherein military force is combined with diplomatic pressure in the internal or external affairs of another state whose government is unstable, inadequate, or unsatisfactory for the preservation of life and of such interests as are determined by the foreign policy of our Nation.”162 Author Mark Uyeda stated that the Constitution appears to give both the president and Congress the authority to conduct low-intensity operations. Specifically, Uyeda identifies Article I as granting Congress the power to declare war. Article II gives the president executive power to conduct foreign affairs and names him as Commander in

160Brian Spaid, “Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?” 17 U. Dayton L.Rev. 1055 (Spring 1992). 161 Id., p. 1075. 162 Mark Uyeda. “Presidential Prerogative Under the Constitution to Deploy U.S. Military Forces in Low-Intensity Conflict.” 44 Duke L.J. 777 (February 1995). 36

Chief of U.S. military forces. Given this shared authority, it is not immediately clear which branch of government has supremacy in the case of low intensity conflicts. Uyeda said the president has obvious oversight of the diplomatic, political, and foreign affairs related to a conflict, but Congress maintains the authority to authorize funds for foreign aid or military appropriations as well as the deployment of military forces. This past June 2011, ten congressmen, led by Representative Dennis Kucinich of Ohio filed suit against President Obama for taking military action in Libya without prior congressional approval.163 This is the approval noted earlier164 as defined by the War Powers Resolution. The congressmen cited the War Powers Resolution stating that Obama exceeded the 60-day limit for the U.S. military involvement in hostilities. They also contended that Obama violated the law by failing to obtain congressional authorization for his activities. A federal court judge subsequently dismissed the suit due to the congressmen's alleged failure to establish that they were without legislative remedy to limit or cancel the Libya actions themselves.165 Additionally, the House approved two resolutions reprimanding Obama and asking him to explain his actions. Several congressmen sent Obama letters asking him to clarify his goals for Libya. Furthermore, a resolution to approve the President’s actions in Libya failed to pass the Senate. President Obama’s actions have taken him into shadowy legal territory. In a May 17, 2011 opinion piece in the Washington Post, Yale University law professors Bruce Ackerman and Oona Hathaway said that Congress' cool response to the idea of a resolution in support of U.S. involvement in Libya left Obama in the position of seeking alternate means to justify his continued involvement in

163Felicia Sonmez, June 15, 1011. “Kucinich, other House members file lawsuit against Obama on Libya military mission” http://www.washingtonpost.com/blogs/2chambers/post/kucinich- other-house-members-file-lawsuit-against-obama-on-libya- military-mission/2011/06/15/AGrzd6VH_blog.html 164 See Yoo, supra note 110. 165 Josh Gerstein, October 20, 2011. “Judge zings lawmakers, dismisses lawsuit over Libya mission.” Politico: http://www.politico.com/blogs/joshgerstein/1011/Judge_zings_law makers_dismisses_War_Powers_lawsuit_over_Libya.html 37

Libya.166 As the Obama administration neared the end of its 60-day deadline in April 2011, it began to downplay the U.S. military involvement. Over the course of the summer, with the military operation still well underway, the responsibility fell on NATO. Obama boasted to the press the success of the multilateral NATO efforts. Obama has deflected criticism of the legality of committing military resources and hundreds of millions of dollars (arguably billions) by characterizing the role of the U.S. forces as being in support of the NATO coalition. Ackerman and Hathaway were not convinced. The fact that there were American military personnel at the highest levels of NATO leadership, along with considerable U.S. financial support, the authors dismissed the claims that the U.S. was a non-player in the conflict, stating that NATO has been the “key vehicle for American military interests since the 1950s.”167 Ackerman and Hathaway stated that Obama’s actions in the Libya conflict set a new legal precedent regarding war powers that was unlike any actions taken by his predecessors. Specifically, they said that both Presidents George W. Bush and Bill Clinton obtained congressional support for their military actions in Afghanistan, Iraq and Kosovo. The result, they say, is that “future presidents will simply cite Libya when they unilaterally commit America to far more ambitious NATO campaigns.”168 1.9: CONCLUSION This chapter traced through the history of the war powers as viewed by the Founding Fathers, the courts, presidents and congress in an effort to pinpoint where the abuse of the war power lies. It appears that the watershed moment occurred with Truman’s actions during the Korean War. Truman's actions seem to support the belief that the president is the most knowledgeable person within the branches of government to act upon military and diplomatic intelligence. Some might even argue that it is necessary for the president to have the authority to “expedite decision-making in crises.”169

166Bruce Ackerman and Oona Hathaway, May 17, 2011 “Death of the War Powers Act? The Washington Post. http://www.washingtonpost.com/opinions/death-of-the-war-powers- act/2011/05/17/AF3Jh35G_story.html

167Ibid. 168Ibid. 169 Joel Paul, “The Geopolitical Constitution: Executive 38

According to this rationale, Americans should have celebrated the fact that Truman, as the first to receive information about the North Korean invasion, was able to act immediately in the best interests of the nation. At least, this was the argument Nixon used later when he vetoed the War Powers Resolution in 1973. In his veto letter, Nixon predicted there would be a number of adverse consequences resulting from resolutions attempting to harness presidential war powers. Specifically, Nixon said the limits on the ability of the president to act “decisively and convincingly” in response to an international crisis could undermine the confidence our allies and enemies have in the U.S. Furthermore, Nixon stated that putting conditions on presidential war powers would introduce substantial “unpredictability” into how America’s response would be perceived abroad, which might lead to “miscalculation and war.”170 The War Powers Resolution and other legislative limits on executive's war powers have made subsequent presidents erratic in the way they choose to circumvent those limits. By side-stepping the limits imposed by the Constitution, under the real or perceived need to act, presidents have caused the public and Congress to lose confidence in their ability to exercise the war powers responsibly. Uyeda argues that where the Supreme Court is concerned, the Court has been non-committal on which branch possesses more power to regulate the United States’ participation in foreign affairs. The President may have the responsibility to represent the United States in foreign relations, but Congress has been given an “implicit constitutional authority” to regulate foreign affairs and control how the U.S. positions itself in the world. Uyeda asserts that the opinion written by Justice Jackson in concurrence with the decision in Youngstown Sheet & Tube Co. v. Sawyer offers insight into the limits to executive authority. Specifically, Jackson offers a three-part analysis of executive power. First, the president’s power is at its “maximum” when it acts in accordance with explicit or implied congressional

Expediency and Executive Agreements.” 86 Cal. L. Rev. 671 (July, 1998). 170Richard Nixon, 311-Veto of the War Powers Resolution. October 24, 1973. The American Presidency Project. http://www.presidency.ucsb.edu/ws/index.php?pid=4021#axzz1fIuKU i00 39

authorization. In contrast, presidential power is at its “lowest ebb” when he acts against explicit or implied congressional direction. Further, he may rely only on those powers expressly given by Article II of the Constitution. Between these two extremes is the gray area where the president may exercise and exploit the “independent presidential responsibility” in the absence of legislative action by Congress.171 Presidential power can be understood to be a function of congressional power, which rejects the expediency argument.172 The key to understanding executive power is based on the presumption that the presidential powers aren’t fully defined. Rather, they may be altered by the actions taken by Congress. And, as we have repeatedly seen, the War Powers will most likely not be defined by the Supreme Court. The landmark Youngstown decision suggests that the president does not possess any inherent power to exercise unilateral legislative power during wartime, and in most instances, the Court will simply refuse to hear the case on grounds that it involves a “political question.”173 Authors David Barron and Martin Lederman assert that several unexamined assumptions dictate the “lowest ebb” where the President acts against the will of Congress. One of the most damaging assumptions is that Article II, the commander-in-chief clause,174 prevents Congress from directing the President during campaigns waged during wartime. It is as if Article I and II powers are mutually exclusive.175 There is clearly ongoing confusion and exploitation of where the weaknesses lie in the Constitution and through precedent in who maintains the U.S. War Powers. Arguably

171Mark Uyeda. “Presidential Prerogative Under the Constitution to Deploy U.S. Military Forces in Low-Intensity Conflict.” 44 Duke L.J. 777 (February 1995). 172Joel Paul, “The Geopolitical Constitution: Executive Expediency and Executive Agreements.” 86 Cal. L. Rev. 671 (July, 1998). 173Marbury v: Madison, 5 U.S. (1 Cr.) 137, 164 (1803). 174Id., supra note 82. 175David J. Barron & Martin S. Lederman, “The Commander in Chief at the Lowest Ebb--A Constitutional History,” 121 Harv. L. Rev. 941, 968 (2008). (The Quasi War is discussed at some length by David Barron and Martin Lederman. Barron and Lederman argue that the Supreme Court has concluded repeatedly that “included within Congress’s authorizations for the use of military force in an undeclared war are implied statutory limitations on the Commander in Chief’s war powers that must be followed”). 40

beginning with President Truman, the U.S. has seen repeated instances where presidents have engaged in a number of military actions based on manufactured rights and authority. What many Americans and the rest of the world have been struggling with following the more recent invasions of Iraq, Afghanistan, and now Libya is how the U.S. President can make such important decisions to commit young lives and countless tax payer dollars to unconstitutionally176 declared “wars?”

176 When referencing Iraq and Afghanistan and the "war(s) on terrorism”, it is a reference to the armed conflicts that Congress authorized in September 2001 following the attacks of 9/11. See Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001). The claim that these wars and others are unconstitutional is typically based on the complaint that the President usurped Congressional Authority and declared war when only Congress should have done so. Other familiar examples of the more hotly debated wars are Korea, Vietnam, Somalia, First Gulf War, etc. 41

CHAPTER 2 ENTRY INTO IRAQ CONFLICT 2.1: EARLY HISTORY OF IRAQ In one account, the Ottoman plans to build a railway between Iraq and Germany helped spark the tensions that led to the First World War. Whether or not this is an accurate depiction of events, there is no question that the conditions at the end of the Ottoman Empire were partly responsible for the “mess-pot”177 that exists in Iraq and the Middle East today. Competing interests between German desires for access to their African colonies and oil, and British plans for a passageway to the Mediterranean Sea, resulted in a series of strategic European alliances to protect oil interests in the Persian Gulf. In 1912, the British, Germans and Dutch formed the Turkish Petroleum Company (later renamed the Iraq Petroleum Company). Despite the Iraq Petroleum Company’s (IPC) nationalistic sounding name, it was an entirely foreign owned company. The Iraqi government was issued a promise that it would receive royalties for every ton of oil extracted, but it would not be paid for the first 20 years. Iraq was dispossessed of its oil interests, and from owning any shares of the oil company. Not surprisingly, Iraqis were displeased with the imbalance of power, financial agreements, and the loss of control over the country’s resources. In 1915, after only three years of collaboration, the British were not satisfied with having oil interests alone. The British formed a new secret alliance with the French known as the Picot-Sykes agreement.178 In it, Britain apportioned itself Jordan, southern Iraq and the Palestinian (now Israeli) port of Haifa. France took control of south-eastern Turkey, northern Iraq, Syria, and Lebanon. Despite the West’s “valiant” efforts to assist Iraq with its independence, these efforts were often just disguised terms for occupation. From 1918 to 1921, the

177 In 1915, British subject, Arnold Wilson, became the acting Civil Commissioner in Baghdad, Iraq. Wilson worked to improve Iraq's administration according to the principles he learned in India and in doing so, was nicknamed “The Despot of Mess- Pot." Wilson pushed for the Arab name “Iraq” to replace the Greek name “Mesopotamia.” 178 See attached Picot-Sykes map. 42

British military seized Baghdad, ousted the Ottoman government, and established the Hashemite monarchy. The Hashemite legacy traces its roots to Hashim ibn Abd al- Manaf, great-grandfather to the Prophet Muhammad, and to the descendants of the Prophet’s daughter, Fatima. The origin of the struggles between the Hashemites and the Umayyads is based on who the rightful successor is to the Prophet, thereby causing a fierce rivalry and rift that eventually resulted in the division between the Sunni and Shia sects. Both are from the same tribe, but are from different clans. After the collapse of the Ottoman Empire in 1918, the British appointed the Hashemites who they felt were the rightful heirs to the throne. Foreign insistence on which clan should be the preferred or rightful successor to the Prophet has proven to be politically unwise. The first appointment of a Hashemite following the Ottoman collapse was Hussein bin Ali. Of his five sons, his eldest ruled Hejaz briefly until bin Ali’s rival, Ibn Saud, took control and incorporated Hejaz as Saudi Arabia. Several of bin Ali’s remaining sons positioned themselves as kings of Jordan, Syria, and Iraq. Although the Hashemites in Iraq were overthrown in 1958 by General Qasim, two heirs to the Iraq throne (that no longer exists) remain today. Both claim to be direct descendants of the Prophet, members of the royal family and rightful heir to the throne. Throughout the 1930’s and 1940’s, a rise in the Ba’ath party (Arabic for “resurrection” or “renaissance”) developed in response to the British occupation and dissatisfaction with the monarchy. The Ba’ath is perhaps best described as "[t]he social and socialist branch of fascism,"179 developed by three Western influenced Syrian educators in the 1930’s. Originally, the movement began as a small Arab Socialist Party in Damascus, but later spread to Iraq in protest against British domination. By 1948, growing anti-Israeli, U.S., and British

179 The definition is from Ilios Yannakakis, cited by Pepe Escobar: “The Roving Eye. What is the US Really up Against.” Yannakakis describes the Ba'ath Party as: "The social and socialist branch of fascism." The Ba’ath developed as an Arab Socialist Party primarily in Syria and Iraq. Socialism (not Marxism) was adopted as the party’s political theory. The Syrian Encyclopedia http://www.damascus- online.com/se/hist/baath_party.htm describes Ba’athist ideology.

43

sentiment launched Iraq and five other countries into a war against the newly established state of Israel. As a result of the War of 1948, the Ba’ath movement soared due to Arab sentiment that their lack of unity was responsible for the loss of Palestine to the new state of Israel. The war destroyed Iraq’s key pipeline to the now Israeli port of Haifa, resulting in Iraq losing over half of its profits. With the implementation of the Iraq Petroleum Company’s 1927 agreement that Iraq would be entitled to receive royalties after a 20 year waiting period lapsed, Iraq had just begun to earn profits when the Haifa pipeline was destroyed. 2.2: THE QASIM YEARS Between 1948 and 1956, Iraqis grew increasingly resentful of the monarchy that allowed the pilfering of its resources and pandering to foreign interests. The loss of Palestine to Israel only added to the growing foreign resentment and revolutionary leanings. In 1956, sensing imminent defeat, Iraq made an exclusive pact with its allies Turkey, Iran, Pakistan, and Britain to protect the monarchy. The U.S. was involved only peripherally for political reasons. Despite such efforts, in 1958, General Abd al-Karim Qasim ordered the murder of the royal family. The display of their bodies in the royal gardens of the palace publicly signaled the end of the monarchy. The newly proclaimed independent republic consisted of a three-man sovereignty council representing Iraq’s three main nationalities and religious sects – Sunni, Shiite and Kurd.180 Although not a self-proclaimed communist, communist-backed General Qasim was able to mobilize large numbers of Iraqis. His mixed background of a Sunni mother and Shiite father was instrumental in his attempts to unify the country. For the first time in modern Iraq, the president was considered to be the “son” of the people and not a stranger or a member of a monarchal family preferring one sect or foreign interest over another. He is remembered as being humble and was often heard addressing his fellow Iraqis as: “[S]ons of my homeland and my people. I am the son of the people. I shall offer my life for the Iraqi people. Corruption, tyranny, and exploitation shall not return.”181 In the short period of Qasim’s rule, he established a

180 Dr. Shakir Hanish. “The 14th of July Revolution in Iraq.” http://www.iraqcp.org/0030711shE.htm 181 Ibid.

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nationalist agenda that has shaped the relationship between Iraq, the United States, and oil interests ever since. He demanded the annexation of Kuwait and severed ties with both the United States and Britain for any type of security, weaponry, or protection that he felt was unnecessary, outdated, or would interfere with his decision-making. To the dismay of the western world, he established relations with the communist government of the Soviet Union. He granted amnesty to Kurdish political dissidents and allowed them to return to their homeland. Finally, Qasim laid the groundwork for the Iran-Iraq War by declaring that the Ottomans had handed over Iraqi tribesman territory to Iran. Qasim orchestrated and successfully sought the passage of two controversial laws: the Personal Status Law and Law 80 (nationalizing oil). In December 1959, the new Qasim government passed the Personal Status law – affording women equal rights to men in intestate succession. This move ended the collaboration between the government and the Shiite clerics who viewed the law as a communist attempt to undermine Islam. Shiites who were formerly communists now felt shunned from the political process and in response formed a militant Islam group known as the Da’Wa. Perhaps Qasim’s most historic legacy was “Law 80” (1961) which dispossessed the Iraq Petroleum Company (IPC) of 95% of all lands it had been holding under claimed prospecting rights. In proclaiming that Iraqi oil belonged to the Iraqis, Qasim initiated a power struggle that persists to this day. These same prospecting rights are being “re-allocated” during this transitional period of U.S. occupation and are discussed in greater length in the chapter on oil. There is strong evidence to suggest that Qasim’s oil policies may have contributed to his assassination. In 1959, the first assassination attempt was made by none other than CIA backed Saddam Hussein.182 After his first failed attempt, Saddam fled to Egypt for several years before returning from exile in 1963 to finish his mission to assassinate Qasim. 2.3: THE SADDAM ERA: ISLAM, COMMUNISM & THE RISE OF THE BA’ATH Upon Qasim’s death, Saddam became head of the security forces in the presidency of Abd-al-Salam Aref, leader of

182http://newsmine.org/archive/coldwar-imperialism/iraqgate/iraq 1963-cia-coup.txt 45

the 1963 Revolution. When Abd al-Salam Aref, was killed in an air crash in 1966, his brother, General Abdul Rahman, briefly succeeded him before being replaced by Aref’s Prime Minister Ahmad Hassan al-Bakr during the second Ba’ath Revolution of 1968. Hussein eventually pushed al-Bakr aside in 1979, transformed the Ba’ath party into a heavily militarized party,183 and ruled Iraq until 2003.184 One of Saddam’s first orders of business was to kill 5,000 communist supporters.185 Even without Saddam’s disdain for communists, communism had already begun a steady decline in popularity among Iraqis in the 1930’s, 40’s and 50’s. During the same period, the Ba’ath party was gaining momentum. Despite the provisions in the 1925 and 1958 Constitutions that Islam would be the national religion of Iraq,186 it has been suggested that these were merely tactical moves by the government to classify its people within distinct Islamic sects as a means to decrease Islam’s influence. Initially, this move was to undermine Islam as an attempt to engender a renewed sense of nationalism and an interest in communism, which together would build a more modern Iraq. Once the economic growth of the country stagnated and the socioeconomic and bureaucratic inequities became more apparent, communism began to lose its appeal. Qasim had made great strides in regaining control over Iraq’s resources, but nationalizing and financing its own oil interests was a difficult problem that not even a change in leadership could overcome. While the Ba’ath Revolutions of 1963 and 1968 put in place Ba’ath leaders whose ideologies were more socialist than communist, the Ba’ath suffered a similar fate to the communists -- one-party dictatorship and rule by a small bureaucratic elite.

183Michael Eppel. “Iraq: from Monarchy to Tyranny: From the Hashemites to the Rise of Saddam.” University Press of Florida, 147-52 (2004). 184Ibid. 185 The CIA supplied intelligence (i.e., death lists) to the Ba'athists on communists and radicals. In addition to the 149 officially executed, about 5,000 were killed and many were buried alive in mass graves. Source: From Practical History, London, May 2000; http://www.geocities.com/CapitolHill/Senate/7672/iraq.html 186See Constitution of Iraq, Section One, Article 2, (“Islam is the official religion of the State and is a foundation source of legislation…”). 46

Initially, Saddam’s agenda to increase Sunni power allowed the development of Sunni Islamist groups, including the Muslim Brothers and Wahhabi-based Salafis,187 seeking to use them to atone for the Shiites. In the end, the Ba’ath record of tolerance was more closely akin to Nazism – with the crucial difference being that the Ba’ath intolerance was directed against all Iraqis188 and not just the Kurds and Shia, as the Americans claim.189 One of the initial groups to break under the power of the regime was the Da’wa. Its most relevant figure was cleric Muhammad Sadiq al-Sadr,190 who initially had been tolerated in hopes that he could placate Iraq’s Shiite

187 Wahhabism is often used interchangeably with Salafism. 18th Century Ibn Abdul Wahhab rejected blind adherence to family or tribal practices or scholarly interpretations, advocating instead reliance on divine commands as they are revealed in the Quran or the Sunnah. He disapproved of idolatry, the popular cult of saints, and visitation of shrines and tomb. 188 Beginning in 1994, Saddam Hussein’s regime in Iraq penalized “criminal” offenders with amputation, cutting off ears of deserters and those who refused to join the army. Those found guilty of slandering the president had their tongue sliced off. Legal codes, as far back as Hammurabi’s Code in 1700BC, have included amputation as punishment. www.trcsierraleone.org/pdf/APPENDICES/Appendix%205%20%20Amputa tions.pdf 189 Al-Ashaal, Abdallah, “The End of Arab Iraq.” Al-Ahram Weekly, Issue No. 758, 1-7 September 2005. 190 See BBC News, 2004-08-27. “Who's Who in Iraq: Muqtada al- Sadr," Muhammed Sadeq al-Sadr, Moqtada al-Sadr's father, was a well-respected figure throughout the Shi'a Islamic world and the Da’Wa. Muhammed and his two sons were murdered by Saddam Hussein’s government in 1999. Moqtada al-Sadr was spared, but unlike his father, he lacks the religious education required by Shi'a doctrines to either be a scholar or issue edicts (fatwas). However, Moqtada is the leader of what are called “Sadrists” and many Iraqis see Muqtada as a symbol of resistance to foreign occupation. The name Sadr City replaced “Saddam City” in 2003 and is often in the news for fierce battles between the occupying forces and Sadrists among others. After at least one round of mortar attacks, Moqtada allegedly exiled in Iran until May 2007. al-Sadr has since returned to Iraq and there is little doubt that he is a marked man. The BBC article cites to Naomi Klein of The Nation who claims that al-Sadr (and the Sadrists) are "the single greatest threat to U.S. military and economic control of Iraq." 47

majority. Toleration of al-Sadr was short-lived as he spent many years in prison before eventually being murdered by Saddam’s government in 1999. The al-Sadr name may sound familiar to the reader if they followed the execution of Saddam Hussein during the U.S. Iraq war, where witnesses were heard taunting Saddam with “go to hell!” and “Moqtada!”191 (Muhammed al-Sadr’s son) during Saddam’s last moments. Saddam’s regime was marked by consistent brutality,192 including leading a bloody war of aggression against Iran in 1980;193 occupying and destroying Kuwait and much of its

191 A reference to one of Saddam's opponents, Shi'ite cleric Moqtada al-Sadr (son of Muhammed al-Sadr). John F. Burns, Saddam buried; videos grip Iraq, INT’LHERALD TRIB., Dec. 31, 2006, http://www.iht.com/articles/2006/12/31/news/saddam.php?page=2, Patrick Wintour, Kim Willsher & Brian Whitaker, Prescott attacks 'deplorable' Saddam execution scene, THE GUARDIAN, Jan, 3, 2006. http://politics.guardian.co.uk/foreignaffairs/story/0,,1981607 ,00.html. See generally Comments on the Death Penalty of Saddam, Dec. 30, 3006, http://www.washingtonpost.com/wpdyn/content/article/2006/12/30 /AR2006123000407_2.html. The circulation of the recording of Saddam’s execution led to the widespread perception that the execution was ‘deplorable' and turned the “important milestone on Iraq’s course to becoming a democracy that can govern, sustain, and defend itself” into a "public relations disaster" for the SICT. Pres. George W. Bush said that he wished the execution of Saddam Hussein “had gone in a more dignified way.” Bush, CBC News, Jan. 5, 2007, http://www.cbc.ca/world/story/2007/01/04/bush-saddam.html 192Beginning in 1994, Saddam Hussein’s regime in Iraq penalized “criminal” offenders with amputation, cutting off ears of deserters and those who refused to join the army. Those found guilty of slandering the president had their tongue sliced off. Legal codes, as far back as Hammurabi’s Code in 1700BC, have included amputation as punishment. www.trcsierraleone.org/pdf/APPENDICES/Appendix%205%20%20Amput ations.pdf 193 Robert Baer (former CIA operative). “The Cult of the Suicide Bomber” documentary film (2005) following Baer to his former center of operations, the Middle East, to trace the origins of the world’s first modern day suicide bomber. Baer reveals the fascinating story of 13-year-old Hossein Fahmideh, who was martyred in the Iran-Iraq war and is now a hero in Iran. Fahmideh’s martyrdom began when he strapped his body with 48

most valuable resources;194 and ruthlessly repressing the Kurds in northern Iraq, to name a few of his legacies.195 The two events (“Dujail” and “Anfal”) for which Saddam was responsible formed the basis of the charges brought against him by the Supreme Iraqi Criminal Tribunal (SICT). The first trial, Dujail, included actions taken by Saddam Hussein after an attempt on his life in July of 1982. The prosecution alleged crimes against humanity based on the retaliatory actions of Hussein’s army. These crimes included the shelling of Dujail by helicopter gunships; confiscating and bulldozing homes and agricultural lands; destroying the town’s water supplies and orchards; rounding up 399 townspeople and young children for interrogation; torturing 50 people to death during the interrogation; and trying 148 people as a group before summarily executing them after a one-day trial.196 The Anfal incidents entail large-scale attacks by the Iraqi army against the Kurdish populations of northern Iraq in 1988. Chemical weapons were used to kill between 50,000 and 100,000 Kurds. Saddam Hussein, his half-brother and former chief of intelligence, Barzan al-Tikriti, his cousin, known internationally as “Chemical Ali,” and four

explosives and threw himself under an Iraqi tank. This event, as argued by Baer, is the event incarnating today’s use of suicide bombing as a terror tactic. 194 The United Nations Compensation Commission (the “UNCC” or “the Commission”) is a subsidiary organ of the United Nations Security Council, and is the first claims commission of its kind to be created by the Security Council. The UNCC processes claims and pays compensation for losses resulting from Iraq’s invasion and Occupation of Kuwait (1990-91). See Fred Wooldridge and Olufemi Elias, “Humanitarian Considerations in the Work of the United Nations Compensation Commission.” IRRC September 2003, Vol. 85, No. 851. See also UN Security Council Resolution 986 (1995) establishing the “Oil for Food” Programme, a mechanism for Iraq to sell oil to purchase humanitarian goods, etc. See also David D. Caron, “The United Nations Compensation Commission for Claims Arising Out of the 1991 Gulf War: The “Arising Prior To” Decision. J. Transnational Law & Policy, Vol. 14:2, Spring 2005. 195 David Fromkin. “A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East.” 449-55 (2d ed. 1989). 196 William Schabas. “Imposing the Death Penalty on Saddam Hussein Violates International Human Rights Law.” Case School of Law, Grotian Moment: The Saddam Hussein Trial Blog, November 10, 2006. 49

other high ranking officials, were again named as defendants in the trial and of those who have not already been executed, they have been charged with genocide, war crimes, and crimes against humanity. The Ba’ath regime is estimated to have killed more than 500,000 Iraqi citizens from 1969 to 2003.197 After a series of military and political problems domestically and internationally, the United States invaded Iraq in June 2003, banned the Ba’ath party and overthrew Saddam Hussein. Ironically, the United States was the driving force behind prosecuting the figurehead the U.S. helped put in power. 198 Unfortunately, the dynamics of change are unpredictable and what the U.S. may have hoped to achieve in financing this revolution and aligning Iraq’s interests with its own caused a change in the rules of the game and “a breakdown in the stability”199 of the country. In March 2003, the United States invaded Iraq under the assumption that the Ba’ath regime secretly held Weapons of Mass Destruction (WMD). This idea may have been due to a faulty interpretation of an Arabic speech made by the Ba’athist Minister of Information, Mohameed Saeed Al- Sahhaf, who just days before the US attack made statements that Iraq would use unconventional means against the U.S. According to legal scholar and international jurist, M. Cherif Bassouini, what Al-Sahhaf probably meant by the word unconventional was the guerrilla warfare tactics that some Iraqis might employ after the fall of Baghdad.200 The invasion of 2003 was nevertheless a preemptive attack on Iraq since it violates the United Nations Charter, which is a treaty and becomes “the law of the land” of the United States under Article 6, clause 2 of the U.S. Constitution.201

197 See U.S. Department of State Fact Sheet: Past Repression and Atrocities by Saddam Hussein’s Regime, April 4, 2003. 198 M. Cherif Bassiouni. “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 199 Maridi Nahas. “State Systems and Revolutionary Challenge: Nasser, Khomeini and the Middle East.” Cambridge University Press, 1985. 200 M. Cherif Bassiouni. “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 201Marjorie Cohn, “Invading Iraq Would Violate U.S. and International Law.” Thomas Jefferson Law Review 25.2 (Spring 50

It should be noted that a preemptive attack on Iraq violates the United Nations Charter, which is a treaty and part of the supreme law of the United States under Article 6, clause 2 of the U.S. Constitution. A treaty that is signed by the U.S. becomes the "law of the land" according to U.S. Constitution.202 It should also be noted that Iraq is not post-World War II Germany or Japan, nor an enemy of the United States defeated after a war, it is a country that was invaded without international legitimacy.203 The resolution used in the initial invasion (Resolution 1483) did not use the language “necessary means” that authorizes the use of force, but instead referred to “serious consequences,” which is not synonymous with the use of force.204 Although the U.S. and U.K. frequently cite the regime’s past wrongdoings, nothing in international law justifies foreign military intervention for past violations of human rights or other humanitarian laws.205 As noted in the opening chapter, the declaration of war itself by the U.S. was problematic, lacked proper authority, and was orchestrated in part by John Yoo, who as I wrote in a separate paper, may have made “Much Yoo (Ado) about Nothing”206 in order to find historical support for his arguments. 2.4: U.S. ACTIONS The two US invasions in 1991 and 2003, coupled with 12 years of US sanctions in between, have left virtually no middle class and an overall unemployment rate of 50%. During the 1991 Gulf War, the U.S. deliberately bombed water purification, sewage, and electricity facilities and

2003): 317-365. (Stating that “[a] preemptive attack on Iraq violates the United Nations Charter, which is a treaty and part of the supreme law of the United States under Article 6, clause 2 of the U.S. Constitution. A treaty that the U.S. signs becomes the "law of the land.”) 202 Big Media Refuses to Report this Basic Fact: Attacking Iraq Violates International Law 203 See S.C. Res. 1441, UN SCOR, 57th Sess., 4644th mtg. 204 M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 205 Ibid. 206 Katy Sullivan, “Much Yoo About Nothing.” Unpublished paper written for Hastings College of the Law, December 16, 2009. A play on the title of the Shakespeare piece, “Much Ado About Nothing” written in 1598. 51

lobbied for comprehensive economic sanctions to be imposed by the U.N. Security Council -- eventually leading to the deaths of one million Iraqis, including 500,000 children.207 It will take years before a middle class can overcome the aftermath of U.S. policies that have virtually destroyed Iraqi society and its control over its own resources.208 The U.S. invasions have tipped the balance of power to the religious groups and furthered Islamic religious leanings in Iraq. There has been a dramatic surge in clerics as community leaders for both Shiites and Sunnis. This religious movement has huge implications not only for Iraq, but for the Middle East. The clerics are merely serving to fill the void left by the U.S.-led Ba’ath eradication, whose 35 year rule had nearly wiped out all forms of civil society. As of the writing of this paper, the U.S. number of deaths stands at 4,800, and 31,965 wounded.209 There have been 1,487 private contractor deaths. Although U.S. General Tommy Franks stated, “We don’t do body counts,” 210

207 Hannibal Travis. “Freedom or Theocracy?” Northwestern University Journal of International Human Rights. Vol. 3, No. 4, Spring 2005. 208 Joe Conason. “New Iraq Constitution: A Pretext for Exploitation.” Salon, November 26, 2005. Citing to the new Iraqi 2005 Constitution that calls for the exploitation of Iraq’s national wealth, providing for the oil and water to Israel and maintaining control of the energy resources off the Middle East. The United States has asked Israel to explore reviving a pipeline route pumping oil from Iraq direct to the oil refineries in the Israeli port of Haifa. The 2005 Constitution asserts that “Oil and gas is the property of all the Iraqi people in all the regions and provinces and that the federal government will administer the oil and gas from oil fields with the revenues to be distributed fairly in a matter compatible with the demographic distribution all over the country.” But, that guarantee refers only to oil already in use, leaving open the future exploitation of almost 2/3 of Iraq’s known reserves (i.e., 11 known fields, 40 billion of its 115 billion barrels of known reserves). Again, Qasim’s Law 80 in 1961 recaptured 99.5% of Iraq’s unexplored lands and held them until the passage of the 2005 constitution during the U.S. occupation. 209http://en.wikipedia.org/wiki/United_States_military_casualties_ of_war 210http://en.wikiquote.org/wiki/Tommy_Franks 52

there have been between 105,993 and 115,800 Iraqi civilian deaths.211 2.5: U.S. AGENDA FOR DEMOCRACY Iran’s late Ayatollah Khomeini called democracy “[A] form of prostitution because he who gets the most votes wins the power that only belongs to God.” Similarly, Egyptian born political prisoner Sayyid Qutb212 described democracy as a nation that has “[f]orgotten God and been forsaken by him; an arrogant nation that wants to rule itself.” But, in defense of Islam’s compatibility with democracy, Founding father of Pakistan, Muhammad Ali Jinnah, claims there is a “1300 year Islamic history with democracy;”213 as well as research to suggest that “[t]he first constitution (written in human history) by a sovereign emanated from the Prophet of Islam.”214 But, for Khomeini, Qutb and other Islamic skeptics, democracy should not be intertwined with Islam. 2.6: FREE EXERCISE OF RELIGION AND CONSTITUTIONS The question remains whether Islamic constitutional provisions are further debilitating the process of Iraq regaining stability. Talal Asad asserts in his article, “Thinking About Terrorism and Just War” that Muslims reject the values of liberal democracy – and especially the separation of “religion” from “politics” and a commitment to peace.215 Asad further questions whether the rhetoric about terrorism is really about securing world peace by spreading civilization (democracy)? Or is it about establishing America’s global military dominance, or of

211http://www.iraqbodycount.org A full analysis of WikiLeaks Iraq War Logs may add an additional 13,750. 212 Sayyid Qutb is considered the leading intellectual of the Egyptian Muslim Brotherhood in the 1950s and 60s. His most notable work is: “Ma'alim fi-l-Tariq” (“Milestones”). In the West, he is sometimes credited as "the man whose ideas shaped Al Qaeda.” His views always centered on Islam as a complete system of morality, justice and governance. After years of imprisonment, he was eventually executed. 213 For about 30 years after the death of the Prophet, Muslims succeeded in establishing a form of government with a strong democratic orientation, but upon the rise of the Umayyad Dynasty the democratic experiment came to an end. 214 www.cyberistan.org/islamic treaty 215 Talal Asad, “Thinking about Terrorism and Just War.” To be published in Cambridge Review of International Affairs (Special number on War Scholarship and Ethics). See http://iah.unc.edu/news/EventDocuments/asadterrorismwar/view?s earchterm=Asad 53

controlling the major sources of oil? A constitutional provision for Islam carries with it significant risks, namely religious freedom for Iraqis and increased tensions between religious factions. It should be noted that Israel does not have a written constitution, and neither do the British.216 Israel (claimed to be the region’s sole democracy), has not had a written constitution since its founding in 1948. Its political system is based upon its Declaration of Independence and various laws. The British Constitution is also unwritten and the country is governed by two basic principles: the Rule of Law, and the Supremacy of Parliament. The U.S. has a written constitution that required great collaborative efforts by its leaders over the course of several years. Arab constitutions vary widely over the role of Islamic law, ranging from Lebanon, where the word “Islam” never appears, to Saudi Arabia, which says the Quran itself is the constitution. Lebanon, where the President and a large number of the population are Christian, remains the sole Arab state that has chosen not to make Islam its National religion (i.e., its constitution neither mentions Islam or Christianity). In Iraq, the 1925 Iraq Constitution was the first to establish Islam as the national religion. Since that time, Iraq has had interim constitutions in 1958, 1964, 1968, 1970, 1990 and 2005. During Saddam’s rule between 1979 and 2003, more than 40 paragraphs were modified and 25 new paragraphs were added to the 1958 Constitution. Even a member of the IGC recognized that the “[L]aw of the tyrant Saddam was more modern than this new law.”217 Article 2 of Iraq’s constitution specifies that “Islam is the official religion of the State and is a foundation source of legislation.” Although Iraq’s Constitution mandates Islam, Article 2(A) reads: “No law that contradicts the principles of democracy may be established.”218

216 Joe Conason. “New Iraq Constitution: A Pretext for Exploitation.” Salon, November 26, 2005. 217 Hannibal Travis. “Freedom or Theocracy?” Northwestern University Journal of International Human Rights. Vol. 3, No. 4, Spring 2005. 218 Article 2 establishes “This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, 54

In an effort to guarantee religious freedom, Article 39 provides: “Iraqis are free in the adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law.” Iraq should guarantee an unconditional individual right for every Iraqi citizen to adjudicate matters of personal status under civil law in civil courts. Traditionally, sharia219 establishes separate rights for Muslim men, women, and non-Muslims. The Iraqi constitution mandates that clerics will control constitutional and statutory interpretation under Article 90: “The Supreme the Federal Court will be made up of a number of judges and experts in sharia.” 2.7: CONCLUSION Arguably, the Islamic faith makes political democracy in a “Western” sense difficult, since there is no separation of the secular and the religious worlds. The U.S. Constitution says nothing about God or Christianity, which is why the U.S. Constitution has sometimes been referred to as a “Godless Constitution.” It is incapable of violating such sacred and personal rights. The U.S. Constitution establishes some democracy, but not absolute democracy.220 One way to positively analyze the seemingly apparent contradictions in the Constitution is that perhaps they will resolve themselves later. The U.S. Constitution is said to be a mix of Greco-Roman ideas, Christian ideas, Lockean natural right ideas, Montesquieu and others. Some may assert that these ideals as synthesized in the U.S. Constitution and supported by institutional arrangements is what founded the U.S. While the U.S. is certainly not the model for Iraq to

Yazedis, and Mandi Sabeans. Further, Article 14 stipulates: “Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status. Article 40: Each individual has freedom of thought, conscience and belief. 219 Sharia literally means the way to God or the foundation and spring of goodness. Sharia is based on the human interpretations and extrapolations of the revealed holy book, the Quran, and of the authentic precedents of the Prophet, known as the Sunna. 220 Samuel Huntington. “The Third Wave: Democratization in the Late Twentieth Century.” (Julian J. Rothbaum Distinguished Lecture Series, Vol 4) (Paperback) Norman: University of Oklahoma Press, 1993. 55

follow, it is worth noting that it was only after a decade of post-revolutionary strife that the leaders of the former American colonies were able to work together to write a new constitution for the United States. Perhaps the Kurds, Shiites and Sunnis needed to live and work together for many months or perhaps years before drafting such an important instrument. In addition to the balance sought between ethnic divisions, the constitution should strike a balance between Islam and Islamic law. There is no inherent conflict between Islam and democracy, yet there is between theocratic rule and democracy. It is possible that a democratic constitution incorporates the importance of the Islamic religion to the country of Iraq. Similarly, a democratic constitution can recognize that much of Iraqi law is based on and will continue to be based on Islamic sources. But, democracy will not flourish if the clerics can veto laws and government actions based on their interpretation of Islam. In these first days following the U.S. military withdrawal, and with the minority Sunni removed from its 35-year stronghold on the country as the ruling Ba’ath party, there will undoubtedly be civil issues arising from a Shiite interpretation of Islam. It should also be noted that this imposition of a democracy and new Constitution is not necessarily what the Iraqis wanted. In one poll, the question of whether an Islamic Republic would be suitable for Iraq drew only one percent of Iraqis responding positively.221 None of Iraq’s dozen or so political parties – from the secularists to the religious Shiites – demanded the creation of an Islamic state.222 It is impossible for even those within the same sect (i.e., Shiites) to agree on a single political reading of Islam. Using religion, as the sole organizing principle of political life, is unworkable outside small, ethnically and culturally isolated communities, which Iraq is not. Modern society simply cannot be run with religion as its only legal framework.223

221 Amir Taheri. “Role of Islam in Iraqi Constitution.” Arab View. Feb. 27, 2004. http://www.arabview.com/articles.asp?article=384 222 Ibid. 223 Ibid. Support for this argument can be also found in the fact that all Muslim states are signatories to the Universal Declaration of Human Rights and hundreds of international treaties that are not of Islamic origin. 56

Talal Asad cautions us to remember the Wilsonian formula from a century ago of waging war “to make the world safe for democracy.” This philosophy has led time and again to devastating results.224 It was a liberal president, Lyndon Johnson, who pushed for a surge of American involvement in Vietnam into what would become the most destructive war against civilians in the last half of this 20th century. The war was claimed to have been fought “in defense of freedom.” As bystanders, we hear repeated propaganda that, for example, the Afghan people deserve a government which is truly representative and which responds to their needs and adaptations.”225 What we've heard are the U.S. motivations for helping Iraq sounds strikingly familiar. Notably, no Middle Eastern country that is a member of OPEC226 has ever elected and maintained an Islamist party as its ruling party. With that in mind, it certainly seems suspect that the U.S. would insist on placing Islam front and center to its plans to draw up a “new” Iraq and Constitution.227

224 Talal Asad, “Thinking about Terrorism and Just War.” To be published in Cambridge Review of International Affairs (Special number on War Scholarship and Ethics). See http://iah.unc.edu/news/EventDocuments/asadterrorismwar/view?s earchterm=Asad 225 The 2001 European Commission Bulletin regarding the October 7th attack against Afghanistan. Claiming the attach was not aimed at Islam or the people of Afghanistan. Announcing also that the EU member states were “responding urgently to the humanitarian crisis in and around the Afghanistan by making 316 million euros available. Bulletin EU 10-2001 (en): 1.6.81 226 Currently, the Organization has a total of 12 Member Countries. Algeria, Angola, Ecuador, Iran, Iraq, Kuwait, Libya, Nigeria, Qatar, Saudi Arabia, United Arab Emirates, Venezuela. The OPEC Statute distinguishes between the Founder Members and Full Members - those countries whose applications for membership have been accepted by the Conference. The Statute stipulates that “any country with a substantial net export of crude petroleum, which has fundamentally similar interests to those of Member Countries, may become a Full Member of the Organization, if accepted by a majority of three-fourths of Full Members, including the concurring votes of all Founder Members.” http://www.opec.org/opec_web/en/about_us/25.htm 227 The 2001 European Commission Bulletin regarding the October 7th attack against Afghanistan. Claiming the attack was not aimed at Islam or the people of Afghanistan. Announcing also 57

that the EU member states were “responding urgently to the humanitarian crisis in and around the Afghanistan by making 316 million euros available. Bulletin EU 10-2001 (en): 1.6.81 58

CHAPTER 3 CHANGING IRAQ'S POLITICAL AND LEGAL LANDSCAPE WITH THE INTRODUCTION OF THE SUPREME IRAQI CRIMINAL TRIBUNAL This chapter will focus on the construction of the Supreme Iraqi Criminal Tribunal (SICT) devised to try and remove Iraq's leadership and specifically, its president, Saddam Hussein. With the removal of Iraq's leaders, the U.S. put itself in the strategic position to form business relationships and draw up oil contracts and production sharing agreements without meeting much resistance from the country's leaders, who after the de-ba'athification process, have been largely eliminated. The forthcoming chapter on oil explains in greater detail the history and foreign interest in Iraq oil. 3.1: INTRODUCTION Prior to the U.S. invasion in 2003, Iraq's criminal code and the organization of its courts were based on the French inquisitorial system and the Napoleonic code of 1804. When I first began learning about the impact of these changes to the French based Iraqi civil code, I often referred to M. Cherif Bassiouni to provide some of the best information on the SICT. The U.S. at one time considered Bassiouni one of the great legal minds to help the U.S. and Iraq develop the court. He is now its biggest critic. One particular quote made by Bassiouni prompted me to do further investigation into the American impact on Iraq's legal system. Bassiouni claimed that the original Iraqi inquisitorial system had no right of confrontation or cross-examination at trial, as well no indictment procedure.228 Yet, I didn’t feel that simply reading about the differences that Bassiouni and other critics claimed were occurring within Iraq's legal system was sufficient to developing an opinion on the matter. Since going to Iraq during war time was not a viable option for me, I decided to leave the United States to live in France for nearly one year where I could learn firsthand about French law. I attended a French law school and a number of French criminal trials at the Palais de Justice in Paris.

228M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 59

In the beginning of my studies, I was provided with piecemeal sections of the French civil code translated into English. Wanting to review the entire collection, I set out on a quest for an English translation of the French civil code. Since English is my mother tongue, I felt English would serve me best to understand the meaning of the text. As an American browsing through the French bookstores, it was almost blasphemous for me to ask for the Napoleonic code in English. At every store, I was simply told that one did not exist. For the most part, the phrase I grew to dislike most in France, “it's not possible,” was correct. To further confuse matters, if finding an English version of the Napoleonic code was difficult, surely an Arabic one would truly be impossible as well. Yet, one must also exist because during Saddam’s time, two of the most important Iraq criminal codes were written in 1969 and 1971. For question and discussion purposes, this chapter will examine the Conflict of Laws problem for the Supreme Iraqi Criminal Tribunal (SICT) due in part to: 1) the code of Hammurabi; 2) a national religion of Islam;229 3) procedure and codes influenced by the Egyptians and Syrians, which are in turn based on those of the French; 4) the U.S. Invasion leading to the introduction of elements from the accusatory-adversarial system into a French-based inquisitorial system; 5) international crimes not expressly found in the Iraqi codes, or provided for within the Iraqi Constitution; 6) application of international crimes and war crimes domestically; 7) during “peace time;” 8) retroactively. Ironically, Iraq is often characterized by many as being a “lawless” state, but it is the country where the oldest written laws known to man originate. More than 3700 years ago, the Code of Hammurabi was written. The code was unearthed in Iraq in 1901, 230 and sits today in the Louvre Museum in Paris. A similar rendition can be found inside the United States Supreme Court. The Iraqi Constitution recites these achievements: “We, the people of Mesopotamia, the homeland of the apostles and prophets, resting place of the virtuous imams, cradle of civilization, crafters of writing, and home of

229 See Constitution of Iraq, Section One, Article 2, (“Islam is the official religion of the State and is a foundation source of legislation…”) 230 Robert Francis Harper, Code of Hammurabi: King of Babylon, 2nd ed., Chicago: University of Chicago Press (1904). 60

numeration. Upon our land the first law made by man was passed, and the oldest pact of just governance was inscribed, and upon our soil the saints and companions of the Prophet prayed, philosophers and scientists theorized, and writers and poets excelled…”231 Viewed today as somewhat antiquated and barbaric, the Code’s importance cannot be dismissed either in Iraq or in its contribution to the laws developed in other countries and religious texts. It was the Hammurabi Code and not the Torah, the Quran or the Bible which first coined the phrase “An Eye for an Eye and a Tooth for a Tooth.”232 3.2: ESTABLISHMENT OF THE SICT Saddam Hussein was captured by U.S. forces while hiding in a hole in the ground in Iraq, and although he was found with a “sizable amount of money,”233 he was never able to escape to begin a new life in another country. Although not sanctioned by the U.N., the U.S. Coalition Provisional Authority established the initial Iraq Special Tribunal to try Hussein and certain high-ranking members of the Ba’ath party, despite the UN principle recognizing that certain offenses are so heinous and so widely condemned that “[a]ny state if it captures an offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed.”234 However, the forum is within The Hague and is discussed in greater detail in Chapter 6. The newly established SICT would be responsible for the prosecution of Hussein. The United States invaded Iraq in June 2003, banned the Ba’ath party and overthrew Saddam Hussein. The U.S. invaded Iraq with UN Security Council Resolution 1483 that neither authorized the invasion or called for the creation of a special tribunal. Iraq is not post-World War II Germany or Japan, or an enemy of the United States defeated

231 See Constitution of Iraq, The Preamble. 232 Charles F. Horne, Ph.D., “The Code of Hammurabi.” The Avalon Project at Yale Law School, (1915). 233 See CNN's Alphonso Van Marsh, Satinder Bindra, Jamie McIntyre, Jane Arraf, Nic Robertson, Christiane Amanpour and Dana Bash: “Rumsfeld: In the End, Saddam 'Not Terribly Brave,'” Sunday, December 14, 2003 Posted: 11:22 PM EST. 234 M. Cherif Bassiouni. II International Criminal Law, Ch. 6 at 298 (ed. 1986). See also David P. Currie, Herma Hill Kay, Larry Kramer, Kermit Roosevelt, Conflict of Laws, Cases, Comments, Questions, 786 (7th ed. 2006). 61

after a war.235 The Resolution used in the initial invasion did not use the language “necessary means” that authorizes the use of force, but instead referred to “serious consequences,” which is not synonymous with the use of force.236 Although the U.S. and U.K. frequently cite the regime’s past wrongdoings, nothing in international law justifies foreign military intervention for past violations of human rights or other humanitarian laws.237 It may have been a coincidence, but Saddam Hussein’s capture and the establishment of the first Iraqi Special Tribunal to try major criminals of the Ba’ath regime occurred within the same week. The Preamble to the Rome Statute of the International Criminal Court (Rome Statute) makes explicit the duty to bring to justice those responsible for such violations, since they deny the right of victims to justice, and a final judicial determination of guilt or innocence and full reparations to victims and their families.238 If the U.S. had been able to use a Security Council model establishing a Criminal Tribunal, the Iraqi Tribunal would enjoy greater legitimacy. The type of Resolution passed also influences the perception the international community will have regarding actions taken by an outside country. No precedent exists in international law for an occupying power, whose legitimacy is in doubt, to establish an exceptional national criminal tribunal.239 Unlike the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), the SICT does not have a Chapter VII mandate which makes it mandatory for all UN member states to cooperate (i.e., arrests and transfer of suspects, detention, etc.). A Chapter VII mandate also carries with it UN financial support. The SICT Statute provides in Article 34 that the expenses of the court shall

235 See S.C. Res. 1441, UN SCOR, 57th Sess., 4644th mtg. 236 M. Cherif Bassiouni. “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004. (Resolution 1483). 237 Ibid. 238 See Amnesty International Index: Sierra Leone, Special Court for Sierra Leone: denial of right to appeal and prohibition of amnesties for crimes under international law. AFR 51/012/2003, 1 November 2003. 239 M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 62

be borne by Iraq’s general budget. Although the U.S. actively opposes the ICC,240 it was instrumental in funding and forming the nationally based Supreme Iraqi Criminal Tribunal. The U.S. pledged 75 million in support of the SICT.241 The design of the SICT represents an attempt to draw on the experiences of the ICTY and ICTR, which have been criticized for their lengthy dockets, slow pace, inadequate procedures, high expense, and lack of connection to the societies where the crimes were committed.242 A more detailed discussion of the importance of the ICC is discussed in Chapter 6. The SICT is considered a “hybrid” tribunal since it invokes domestic and international laws. The SICT’s hybridity is also found in its combination of elements from the accusatory adversarial system within the inquisitorial system, which will, as established in forthcoming sections of this chapter, lead to conflicts in both law and procedure. Since the United States is bound by the Fourth Geneva Convention of 1949 and the Hague Regulations of 1907, it is defined as an occupying power, and cannot, inter alia: 1) change the functioning of the administration of the occupied territory; 2) change the legal system; 3) alter the status of public officials and judges; 4) change the penal legislation; 5) issue new penal provisions; 6) intern civilian populations other than POW’s; 7) change the tribunals of the occupied territory; or 8) prosecute inhabitants for acts committed before the occupation.243 The U.S. as an occupying power clearly ignored several of these conventions. The first tribunal, the Iraq Special Tribunal (IST), was established pursuant to Coalition Provisional Authority

240 Lansana Gberie, “Briefing: The Special Court of Sierra Leone,” 102 AFR. AFF. 637, 643 (2003) (stating that the American Servicemembers Protection Act (ASMPA) of 2001 allows the President of the United States to use “all means necessary and appropriate” to free American soldiers arrested by the International Criminal Court). 241 See International Center for Transitional Justice, Press Release: ICTJ Releases Analysis of First Iraq Trial, November 7, 2006. 242 See International Center for Transitional Justice (ICTJ)’s Press Release: Creation and First Trials of the Supreme Iraqi Criminal Tribunal, Oct. 2005. (Citing ICTY (Yugoslavia) and ICTR’s (Rwanda’s) dismal record of having been in operation for 10 years each, costing at least $100 million each, and having fewer than 30 indictments between them). 243 Ibid. 63

(CPA) Order 48 which represented the occupying power. Since the IST was a special tribunal outside the established Iraqi legal system, there was substantial concern whether an occupying power had the legal authority to create such a tribunal. On October 18, 2005, the National Assembly enacted Law No (1) (2005), No. 4006, replacing the IST with the SICT. The SICT was created and approved by the National Assembly, and promulgated by the Presidency Council. One of the legal authorities involved in the creation of the SICT was M. Cherif Bassiouni. Bassiouni observed that the “(SICT) is referred to in the Arabic language version of the Statute as Al-Mahkama Al-Mukhtassa…which can be translated as a ‘specialized tribunal’ or ‘competent tribunal.’ Use of the English term “special” tribunal makes it an “exceptional” tribunal, which is in violation of Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which requires states to guarantee the fair and public trial of an individual by an independent and impartial tribunal and prohibits the establishment of exceptional tribunals.”244 Any illegitimacy, even in the title, will only lead to the trials being viewed later as victor’s justice. Structurally, the SICT was completely independent of Iraq’s legal system and had supremacy over its domestic courts. Article 29 of the SICT Statute states that “[t]he Court shall have primacy over all other Iraqi courts with respect to the crimes stipulated in Articles 11, 12, and 13 of (the) statute.” Furthermore, if the tribunal was thought to be operating as if it solely had a relationship with the domestic legal system of Iraq, it may not have been able to establish jurisdiction in Saddam Hussein’s case. Iraq and the SICT decided to try each of the criminal incidents as separate trials.245 Unfortunately, while trying cases separately may increase the speed with which a court may reach a verdict, it also impairs the court’s ability to effectively establish a “pattern” of events by their frequency, location, nature, etc., will help the court to establish if there was planning and centralized

244 M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 245 Human Rights Watch, “Judging Dujail, The First Trial before the Supreme Iraqi Criminal Tribunal.” Volume 18, No. 9, November 2006. 64

control by those in power.246 Furthermore, proving patterns is a legal requirement for several international crimes in order to prove that a particular crime was part of a planned process.247 3.3: THE TRIALS The first trial, Dujail, encompassed actions taken by Saddam Hussein after an assassination attempt on his life on July 8, 1982. The Dujail trial was the first of its kind to be conducted against a former leader in his own country by his own people, and the first since WWII Allies prosecuted the Nazi leadership at Nuremberg to try an entire leadership for crimes against humanity.248 The prosecution alleged crimes against humanity based on the events following the assassination attempt. These retaliatory actions included shelling Dujail by helicopter gunships; confiscating and bulldozing homes and agricultural lands; destroying the town’s water supplies and orchards; rounding up 399 townspeople and young children for interrogation; torturing to death 50 people during interrogation; and trying 148 people as a group, and summarily executing them after a trial which lasted one day.249 On August 21, 2006, the second trial, known as the “Anfal” campaign commenced before the SICT. The Anfal incidents entailed large-scale attacks by the Iraqi army against the Kurdish populations of northern Iraq in 1988. Chemical weapons were used to kill between 50,000 and 100,000 Kurds. Saddam Hussein, his half-brother and former chief of intelligence, Bazan al-Tikriti, his cousin, known internationally as “Chemical Ali,” and four other high ranking officials, were named as defendants in this trial and were charged with genocide, war crimes, and crimes against humanity.

246 International Center for Transitional Justice (ICTJ): Creation and First Trials of the Supreme Iraqi Criminal Tribunal, Oct. 2005. 247 Kevin Jon Heller, “A Poisoned Chalice: the Substantive and Procedural Defects of the Iraqi High Tribunal,” New School for Social Research (2006). 248 Sudarsan Raghavan, “Report: Flaws in Hussein Trial Impair Verdict.” Washington Post Foreign Services, Nov. 20, 2006, pg. A14. 249William Schabas, “Imposing the Death Penalty on Saddam Hussein Violates International Human Rights Law,” Case School of Law, Grotian Moment: The Saddam Hussein Trial Blog, November 10, 2006. 65

The case went up for appeal following the conviction and sentencing to death of Saddam Hussein in the Dujail trial on November 5, 2006. Once the key defendant has been put to death, there runs the very real risk of depriving victims of other “campaigns” the opportunities for justice. Furthermore, as mentioned previously, the court faced difficulty in establishing patterns by trying the cases separately, and with the execution of Saddam, it significantly impacted the outcome of the other trials. The U.S. Coalition Provisional Authority (CPA) insisted on an “Iraqi-led” process,250 and was supported by Iraqis who demanded “Iraqi control” of the tribunal.251 The U.S. government opposed a mixed Iraqi-international tribunal affiliated with United Nations management. Although other tribunals face criticism of being unduly influenced by outsiders (e.g., Sierra Leone), the Sierra Leone Special Court has also undoubtedly benefited from its judges who have collective experiences of being affiliated with the ICTY, Kosovo Court and the Augusto Pinochet case.252 The newly created Iraqi judicial system employs lawyers and judges who “lack the professional and technical investigative and judicial expertise to [prosecute crimes against humanity and war crimes] on its own.”253 As of October 2005, all judges appointed to the Tribunal were Iraqi nationals.254 3.4: CONFLICT OF LAWS Conflict of laws jurisprudence is essentially concerned with the just disposal of proceedings having a foreign

250 See comments of then US Ambassador-at-Large for War Crimes Pierre Prosper in April 2003, quoted in Peter Landesman, “Who vs. Saddam?” New York Times, July 11, 2004. 251 See International Center for Transitional Justice and Human Rights Center, University of California, Berkeley, “Iraqi Voices: Iraqi Attitudes Towards Transitional Justice and Social Reconstruction,” May 2004. 252See Marissa Miraldi, U.N. Report: Overcoming Obstacles of Justice: the Special Court of Sierra Leone, 19 N.Y.L. SCH. J. HUM. RTS. 849, 855 (2003). 253 See U.S. Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (January 2004), http://www.whitehouse.gov/omb/legislative/20040105- sec2207_main_report.pdf, p. 43.) 254 International Center for Transitional Justice (ICTJ), Press Release: Creation and First Trials of the Supreme Iraqi Criminal Tribunal, Oct. 2005. 66

element.255 In the ideal world, the authorities of sources of law are so defined and demarcated that no event would ever be subject to control by more than one lawmaker.256 As this chapter discusses, the introduction of foreign procedures and international and domestic laws potentially led to conflicts within the SICT. The SICT involved the drafting and implementation of several new rules, many of which conflicted with Iraq’s longstanding judiciary and legal system. To further complicate issues of legitimacy and acceptance by Iraqis, Iraqi society is directed by the national religion of Islam.257 The Moslem religious courts rely on the labyrinthine texts of the Quran and the Sunnah, along with principles of Shar’ia law to adjudicate disputes involving family matters such as marriage, divorce, inheritance, and alimony. Prior to the U.S. invasion, criminal matters were handled by the Revolutionary Court and Court of Cassation. Iraq’s long- standing legal system and judiciary includes the Criminal Code (1969) and the Code of Criminal Procedure (1971), modeled after the Egyptian and Syrian codes, which are in turn derived from those of the French. With each draft of the SICT rules, there was increased reliance on the Iraqi Code of Criminal Procedure of 1971.258 The newly established Supreme Iraqi Criminal Tribunal had jurisdiction over every natural person whether Iraqi or non-Iraqi who was accused of crimes listed in Articles 11 to 14, committed during the period July 17, 1968 to May 11, 2003, in the Republic of Iraq or elsewhere. The following crimes are included as grave breaches of the Geneva Conventions: 1) Crime of Genocide; 2) Crimes Against Humanity; 3) War Crimes; and 4) violations of certain

255 See HOUSE OF LORDS, OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE KUWAIT AIRWAYS CORPORATION (RESPONDENTS) v IRAQI AIRWAYS COMPANY (APPELLANTS) AND OTHERS KUWAIT AIRWAYS CORPORATION (APPELLANTS) v IRAQI AIRWAYS COMPANY (RESPONDENTS) AND OTHERS (CONSOLIDATED APPEALS) ON 16 MAY 2002. www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020516/k uwait-1.htm 256 See David P. Currie, Herma Hill Kay, Larry Kramer, Kermit Roosevelt, Conflict of Laws, Cases, Comments, Questions, Preface, (7th ed. 2006). 257 See Constitution of Iraq, Section One, Article 2, (Islam is the official religion of the State and is a foundation source of legislation…) 258 ICTJ, Creation and First Trials of the Supreme Iraqi Criminal Tribunal, Oct. 2005. 67

domestic Iraqi laws listed in Article 14 as: a) intervention in the judiciary or the attempt to influence the functions of the judiciary; b) the “wastage or squander of national resources”; and c) the abuse of position and the pursuit of policies that could lead to the threat of war or the use of the armed forces of Iraq against an Arab country. The tribunal could not hear complaints against non-Iraqi nationals, including coalition forces, although ordinarily, a country would be entitled to hear crimes committed within its territory as a matter of sovereignty. Non-Iraqi coalition forces are not within the jurisdiction of the SICT.259 If a defendant is U.S. military, then he/she falls under the purview of either the U.S. military courts, or as discussed in the forthcoming section on the Alien Tort Statute, private military contractors, contractors, and U.S. corporations, etc. may find themselves named as defendants within the U.S. federal courts for alleged wrongdoings committed in Iraq. In prosecuting Iraqi-nationals, Iraq ratified the Four Geneva Conventions of 1949 and the 2 Additional Protocols of 1977, as well as the 1948 Genocide Convention and the 1984 Torture Convention.260 Under international law for crimes of genocide, crimes against humanity, war crimes, torture, slavery and slave related practices, immunity is not permissible. 3.5: HEAD OF STATE IMMUNITY Legal scholar M. Cherif Bassiouni cites that one of the legacies of the Nuremberg trials was the unsuccessful attempt by officials to pass legislation affording themselves immunity from international law. This is recognition that their actions are de minimus, criminal under international law.261 Former President Saddam Hussein, as head of the Revolutionary Command Council, passed a decree in 1970262

259 See American Service members Protection Act (ASMPA) of 2001 which allows the President of the United States to use “all means necessary and appropriate” to free American soldiers arrested by the International Criminal Court. 260 Kevin Jon Heller, “A Poisoned Chalice: the Substantive and Procedural Defects of the Iraqi High Tribunal,” New School for Social Research (2006). 261 M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 262 See Article 40 of the 1970 Iraqi Provisional Constitution, 68

providing immunity for all of its members for their public and private acts. The Rome Statute (which established the International Criminal Court) does not permit these types of declarations of immunity. The ICC (described more fully in Chapter 6) was established to give rights to victims to injustice, provide a forum where a final judicial determination of guilt or innocence could be reached and give full reparations to victims and their families.263 Yet, the U.S. and Iraq did not want to permit the ICC to have jurisdiction over the Iraqi leadership, because doing so would put American soldiers at risk as well. 3.6: DE-BA’ATHIFICATION PROCESS Some criticize the additional step the U.S. CPA took in banning all members of the Ba’ath party from the new government, public schools and colleges as blocking too many skilled people in the re-establishment of Iraq. Article 25, section C of the International Covenant on Civil and Political Rights (ICCPR) provides that: “[a]ll individuals shall have access, on general terms of equality, to public service in his (or her) country.” It appears that the de-Ba’athification process is in violation of Article 25(c) of the ICCPR. Furthermore, the removal of judges based on political affiliation impairs the judges from being impartial. The disadvantage of the de-Ba’athifaction process as it relates to the service of judges is illustrated in the example of Judge Dara Nureddin. Despite his prior Ba’ath affiliation, Judge Nureddin, if allowed to serve on the SICT, would likely have been impartial, due to being imprisoned for two years after declaring a decree issued by Saddam as invalid. Of the five Iraqi judges whose identities were later released, one was declared ineligible due to discovering after his appointment that he too had been a member of the Ba'ath. With the Ba'ath's longstanding control of Iraq, it would be a difficult task to find anyone who didn't have some sort of affiliation with the party, which is why actions taken such as the De- Ba’athification process only contributed to what simply

which is referred in Article 14(a) of the Statute, affords the head of the Iraqi state immunity. 263 M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). (Rome Statute, Article 27, removes both substantive and temporal immunity for crimes within the ICC’s jurisdiction). 69

call “bad political theater.”264 Article 138 of the most recent Iraq Constitution states that members of the leadership in Iraq may only be admitted if they have quit the dissolved Ba'ath party no less than 10 years prior to its fall, in the event they were a member. 3.7: ADVERSARIAL ACCUSATORIAL v. INQUISITORIAL SYSTEM The statute makes clear in Article I that the tribunal is an “independent entity” and “not associated with any Iraqi government departments.265 The statute also makes clear that the tribunal’s prosecutors and investigative judges are prohibited from “seeking or receiving instructions” from any government department, or from any other source. Yet, the U.S. with U.K. input, prepared a draft of the “Rules of Procedure and Evidence.”266 The investigative judge does not exist in the American system.267 Indeed the entire process of selecting judges is completely different. Judges in Iraq (pre-occupation), as well as judges on the Continent, go to a special “judge” school. This is quite unlike the U.S. where most judges are either appointed or elected. Judges on the Continent and in Iraq are specially trained for their work in the judiciary and it is a career service.268

264 Kevin Jon Heller, “A Poisoned Chalice: the Substantive and Procedural Defects of the Iraqi High Tribunal,” New School for Social Research (2006). 265 See S.I.C.T, at 231 (stating the independent role the tribunal will have). 266 See Bassiouni, supra note 1, at 348 (proving outside influence in the drafting of the tribunal’s procedures. See also Jose E. Alvarez, “Trying Hussein: Between Hubris and Hegemony, 2 J. Int’l Crim. Just. 319, 326 (2004) (noting that the goals of the tribunal are severely undermined because the status was “reportedly drafted” by the U.S. 267 See Bassiouni, supra note 1, at 381 (noting the difference between the Iraqi judiciary system and the system set out in the statute); see also Lee A. Casey, “The Case Against the ICC” LS Fordham Int’l L. J. 840, 867-68 (2002) (illuminating the fact that common law countries conduct trials with the adversarial system, in which the judge takes a “neutral” role). 268 See Independent Commission Against Corruption, supra note 57, (discussing the argument that, given the primacy of the professional judges, the jurors or lay judges in France and Italy are now relics of the liberal democratic ideas implemented after the French Revolution and have little significance in the administration of criminal justice). 70

Prior to the U.S. invasion, the Iraqi legal system was an inquisitorial one modeled after the French.269 Arguably, the drafters were not familiar with the 1971 Criminal Procedure Law when they wrote the Statute for the SICT.270 Engrafting two systems and mixing jurisdictions does not adhere to Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), which provides that any person charged with a criminal offense is entitled to “a fair and public hearing by a competent, independent and impartial tribunal established by law.” Originally, two different laws formed the guidelines for the investigative judges (1971 Criminal Procedure Law)271, and for prosecutors (1979 Law of Prosecutors).272

269 See Ryan Swift, “Occupational Jurisdiction: A Critical Analysis of the IST (SICT).” Summer 2006. 270 See Bassiouni, supra note 1, at 156 (arguing that the drafters of the SICT were not familiar with the 1971 Criminal Procedure Law). 271 See also Iraqi Judicial Organization Law, Law No. 160, art. 4 (discussing the requirement of Iraqi, judges to be familiar with the Arabic language and Iraqi legal system); see also Bassiouni, supra note 1, at 368 (claiming that the IGC’s ability to appoint foreign judges unfamiliar with Arabic and Iraqi law is contrary to Iraqi law. Pursuant to Art. 4(d) of the Statute of the SICT). Similarly, the appointment of practicing lawyers as judges violates the Iraqi law on the judiciary. See also Iraqi Judicial Organization Law, Law No. 160, art. 4. See also Marissa Miraldi, U.N. Report: Overcoming Obstacles of Justice: the Special Court of Sierra Leone, 19 N.Y.L. SCH. J. HUM. RTS. 849, 855 (2003) for contrasting view that perhaps there are advantages to permitting outsiders as judges (e.g., Sierra Leone) who have collective experiences of being affiliated with the ICTY, Kosovo Court and the Augusto Pinochet case. See also U.S. Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (January 2004), http://www.whitehouse.gov/omb/legislative/20040105- sec2207_main_report.pdf, p. 43.) The newly created Iraqi judicial system employs lawyers and judges who “lack the professional and technical investigative and judicial expertise to [prosecute crimes against humanity and war crimes] on its own.” 272 See Bassiouni, supra note 1, at 348 (outlining the changes made to the Rules of Procedure and Evidence by the tribunal). The Iraqi legal system, like almost all of the world’s legal systems, does not recognize such court rules because the judges constitute judicial authority and cannot make laws or rules, which are the province of the legislative authority. 71

The presiding judge at a traditional inquisitorial trial dominates the proceedings.273 The French and Iraqi inquisitorial system enlists the use of an inquisitor (investigator) whose objective is to find the truth.274 The investigative judge (IJ) (juge d’instruction) independently examines the evidence, facts, suspects, and testimony of victims and witnesses prior to trial, in order to make findings of fact. The IJ decides whether to “refer” (ihala)275 a case for trial. During the trial, it is the trial judge’s discretion whether to reopen any of the IJ’s findings.276 He calls the witnesses he feels are necessary and interrogates the witnesses, as well as the accused. The investigative judge from an inquisitorial system was meant to represent justice and was not an umpire refereeing bickering between the prosecution and defense, as is typically seen in the accusatorial adversarial system. These clear lines were no longer defined when the SICT ceased to follow Art. 61 of the Rome Statute: “[t]he Pre-trial Chamber shall hold a hearing (judicial review) to confirm the charges…” In the SICT, the Investigative Judge controlled every stage of the pre-trial process, from questioning suspects (SICT Statute, art. 18(2)), to deciding whether suspects should be detained.277 This concentration of power in the IJ affected the suspect’s rights under Article 14 of the ICCPR to an “impartial Tribunal.”278 Initially, the SICT followed Art. 61 of the Rome Statute providing that:

273 See Independent Commission Against Corruption: “Inquisitorial Systems of Criminal Justice and the ICAC. A Comparison.” Nov. 1994. 274 Christoph J.M. Safferling, “Towards an International Criminal Procedure.” (Oxford University Press, 2001, p. 217. 275 M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 276 Ibid. 277 See Bassiouni, supra note 1 at 157. 278 Kevin Jon Heller, “A Poisoned Chalice: the Substantive and Procedural Defects of the Iraqi High Tribunal,” New School for Social Research (2006), p. 15 for discussion re: concentration of investigative functions as problematic. “An investigative Judge who concludes that the evidence is insufficient to detain a suspect has only himself to blame, given that he was responsible for initiating the investigation and interrogating the suspect. Thus providing the Judge with a powerful psychological incentive to justify his earlier actions to detain (a suspect).” 72

“[t]he Pre-trial Chamber shall hold a hearing to confirm the charges…” The SICT no longer required a pre-trial judicial review of the Investigative Judge’s decision to refer a case for trial. The tribunal was composed of investigating judges, a prosecutions department, trial chambers, and a cassation (appeals) chamber. In the Anglo Saxon adversary accusatorial system, the prosecutor performs many of the same functions that the investigative judge does in an inquisitorial system. 279 The prosecutor issues indictments, presents the evidence at the trial and calls forth witnesses to confirm testimony. Prior to the SICT, the indictment procedure did not exist in Iraqi law.280 The introduction of procedures from the American-adversary-accusatorial system such as indictments, or rights of cross-examination and confrontation of witnesses at trial, etc. further supports the theory that these are “kangaroo” trials that are illegitimate and rigged against the defendants. 3.8: CRIMES AGAINST HUMANITY, GENOCIDE AND WAR CRIMES Saddam Hussein was charged with crimes against humanity, genocide and war crimes committed during 1982-83. Crimes against humanity is an international offense, but has not been included in a specialized convention. They are, however, defined in various ways through international instruments and are jus cogens.281 Although Iraq is not bound by a treaty as it would be with regard to genocide and war crimes, should the defense raise an issue of principles of law,282 M. Cherif Bassiouni proposes a solution in the forthcoming issue on retroactivity that would be useful to resolve the issue of principles of law as well.

279Ibid. 280Ibid. 281 M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligato Erga Omnes, 59 Law & Contemp. Probs. 63 (Autumn 1996). Jus Cogens is “compelling or higher” law, a body of peremptory principles of international law that are universal and non-derogable, those norms recognized by the international community as a whole as being fundamental to the maintenance of an international legal order. 282 See Encyclopedia Brittanica definition of “principles of law” as a “[t]hird source of international law identified by the ICJ’s statute as the ‘general principles of law recognized by civilized nations.’ ‘These principles essentially provide a mechanism to address international issues not already subject to treaty provisions or to binding customary rules. Such general principles may arise through municipal law…” 73

3.9: RETROACTIVITY The defense may raise the problematic issue of the SICT retroactively applying crimes against humanity, genocide and war crimes back to 1968. The defense can cite Art. 15 of the ICCPR which provides “[n]o one shall be found guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed” with further support found in Article 19 of the new Iraqi Constitution: “Criminal law does not have a retroactive effect, unless it is to the benefit of the accused.” One approach that could have been employed to quell arguments of principles of law and/or retroactivity is to meticulously divide the crimes of genocide, crimes against humanity and war crimes283 into several lesser crimes which are included quite expansively in the Iraqi 1969 Criminal Code and the 1940 Military Penal Law.284 Article 17 allows the SICT to refer to other Iraqi penal laws, “[I]n case a stipulation is not found in this Law and the rules made thereunder.” For example, the 1969 Criminal Code criminalizes the following crimes: “1) unlawful detention (art. 322); 2) use of person as object of mockery (art. 325); 3) cruelty (art. 332); 4) torture (arts. 333, 421); 5) intentional damage of public property (art. 340); 6) burning of petroleum wells (art. 342(b); 7) intentional spreading of dangerous diseases (art. 368); 8) persecution based on religious affiliation (art. 372(a); 9) rape (art. 393); 10) killing two people or more art. 405(e); 11) causing the disappearance of bodies (art. 420); 12) embezzlement (art. 444); and 13) destroying real estate (arts. 447-78).

The 1940 Military Penal Law references, inter alia, the

283 See Philippe Sands, From Nuremberg to the Hague: The Future of International Criminal Justice: 43 (2003) (noting that the ‘the Yugoslavia and Rwanda Tribunals have clearly established that crimes against humanity exist as self-standing crimes…that can be prosecuted even in the absence of an armed conflict’). 284 See Bassiouni, Post Conflict Justice, supra note 1, at 373 (noting that the SICT “borrowed the definition of the crimes of genocide, crimes against humanity, and war crimes from the ICC Statute articles 6, 7, 8, which are not contained in the 1969 Iraqi Penal Code.) 74

following crimes: (1) ordering an inferior to commit a crime (art. 98); 2) the destruction of property (art. 113); 3) the destruction of property through the use of force (art. 114); 4) the unlawful taking of the property of prisoners, wounded, and deceased (art. 115), and 5) overlooking criminal acts. (art. 123).”285 3.10: PEACE TIME Since Saddam and his co-defendants committed crimes against humanity, genocide and war crimes during “peace time,” the SICT faced difficulty not only with the definition of the nature of the conflict, but also with the issue of retroactivity. “Until the establishment of the two United Nations tribunals, the ICTY and the ICTR, the customary law position on individual criminal responsibility for serious violations of humanitarian law during internal armed conflicts (was that) such acts were not considered to be criminal on the international plane.” In other words, prior to the ICTY and ICTR (1995), crimes against humanity were only illegal under customary international law if committed during an armed conflict, whether international or internal. “[T]he Yugoslavia and Rwanda Tribunals have clearly established that crimes against humanity exist as self-standing crimes…that can be prosecuted even in the absence of an armed conflict.”286 3.11: TRIAL 3.11.1: INVESTIGATIVE PHASE The investigation is the crucial phase of the inquisitorial system. It is the foundation on which the rest of the system is constructed. The investigative results are recorded in the dossier287 and the subsequent phases of the process are based on that dossier. The investigator seeks to establish the historical truth in relation to the crime and in relation to the “personality”

285 M. Cherif Bassiouni, “Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” Cornell Int’l L.J. 101 (2004). 286 See Philippe Sands, From Nuremberg to the Hague: The Future of International Criminal Justice: 43 (2003). 287 French dossier consists of 4 parts: 1) pieces de fond –record of investigation into offense (i.e., police report, depositions, etc.); 2) detention preventive – record of accused’s pre-trial detention, if any; 3) renseignement et. personnalite – history and background of the accused; and 4) pieces de forme – record of warrants, orders, requisitions and directives. 75

and background of the accused. The truth is later scrutinized in a public trial and, if necessary, on appeal. The Continental system has (at least in theory) only one process, regardless of whether or not the accused admits guilt. There should always be a normal full investigation, trial and the possibility of an appellate review. The Anglophone process has two forms – the full investigation and trial where there is no admission of guilt, and less investigation and no trial where there is an admission of guilt. 3.11.2: INDICTMENT Within the SICT, the prosecutor issues indictments, presents the evidence at trial and calls forth witnesses to confirm testimony. However, the indictment procedure does not exist in Iraqi law.288 The SICT Investigative Judge was responsible for establishing whether there existed a prima facie case against the defendant, and if he concluded that he had established one, he “prepared an indictment containing a concise statement of the facts of the crime…and referred the case to the criminal court.”289 Author Kevin Jon Heller points out that the SICT Statute does not require the Tribunal to review the sufficiency of the indictment prior to trial.290 This is a significant deviation from the international tribunals which require a Prosecutor’s decision to indict a defendant to be reviewed by an independent judicial body.291 These deviations are not inconsequential and appeared to suggest that the introduction of procedures from the American- adversary-accusatorial system such as indictments, or

288 See Bassiouni, supra note 1, at 156 (arguing that no indictment procedure existed prior to SICT). 289 Kevin Jon Heller, “A Poisoned Chalice: the Substantive and Procedural Defects of the Iraqi High Tribunal,” New School for Social Research (2006) for discussion of the indictment procedure. See also SICT Statute, art. 18 (Third). 290 See Kevin Jon Heller, supra note 62, for discussion re: Article 20 of the SICT providing: “A person against whom an indictment has been issued shall, pursuant to an order or an arrest warrant of the Investigative Judge, be taken into custody, immediately informed of the charges against him and transferred to the Court.” 291 See, e.g., ICTY Statute, art. 19(1) (“The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.”) See also Rome Statute, art. 61. 76

rights of cross-examination, etc. support the theory that the trial was rigged against the defendants. 3.11.3: PRESUMPTION OF GUILT Once the investigator is satisfied that there is sufficient evidence to put the accused on trial, it is highly likely that the accused will be found guilty at trial. The accused still has to be found guilty, but what is necessary for that has already largely been accomplished. At a Continental criminal trial, particularly in France, the trial is more of a demonstration of guilt rather than an inquiry into guilt.292 3.11.4: RIGHT TO SILENCE AND WEIGHT OF TESTIMONY The U.S. (and Germany) forbid the fact finder at trial to draw adverse references when a defendant takes advantage of that right and refuses to speak.293 Both countries recognize the right to remain silent when questioned, but in Germany the defendant almost never does. The weight common law gives to a defendant’s testimony on the witness stand is greater than the weight the civil law systems give to the same testimony. This is due to several different factors. First, there is a difference in the fact-finding bodies and judiciary in the civil law systems, which are predominantly made up of dominant judges and trained juries.294 In common law systems, the fact- finding bodies and judiciary are made up of lay juries and a more passively involved judiciary. Civil law systems have similar rights to remain silent and similar rights regarding self incrimination when a defendant testifies. The French defendant does not have to take the oath to tell the whole truth, and therefore cannot commit

292 See Independent Commission Against Corruption: “Inquisitorial Systems of Criminal Justice and the ICAC. A Comparison.” Nov. 1994. 293 John H. Langbein, “Comparative Criminal Procedure: Germany” 73 (West 1977). 294 See Memorandum of Matthew N. McConnell to Deputy Prosecutor of the International Criminal Tribunal of Rwanda (ICTR) Re: “Comparative Study of the Weight to be attached to the Evidence of Accused Who Testify in their Own Defense in Civil, Common Law, and International Criminal Law Systems.” Issue No. 10, Dec. 19, 2003. See also Independent Commission Against Corruption, supra note 61, for discussion of very few similarities after two centuries of British introduction to the French of the jury system. The French jury sits only in the court to hear the most serious charges (cour d’assises) and do not have access to the dossier. 77

perjury.295 The French view untruthfulness as a natural aspect of self-preservation and the defendant is not penalized for telling lies.296 Article 14 (g) of the International Covenant on Civil and Political Rights (ICCPR) seems more closely aligned with the French view that provides a defendant the right to “[N]ot be compelled to testify against himself or to confess guilt.297 The Iraqi SICT statute does not explicitly direct Investigative Judges to inform a suspect of his right to silence.298 Under Modern American common law, since the Supreme Court decision in Rosen v. U.S., 245 U.S. 467 (1918), it was decided that the best way to get to the truth is to hear testimony from everyone involved, including the defendant, and to leave it up to the jury to decide what weight to give to the testimony.299 The general rule is similar to the jury instructions given out by the American courts notifying the jury that they are not to hold certain past convictions or issues of character against the defendant. Furthermore, the rules of evidence limit, if not outright prohibit the introduction of evidence that will be prejudicial for a jury to hear. The common law systems share an accusatorial process where the parties involved in the case produce and present the evidence.300 In civil law systems, it is the judge who gathers and presents evidence; and the fact finding body is a mix of professional judges and semi-trained lay jurors as opposed to the common law systems where the fact finder is a true lay jury. From the outset, a French defendant knows that he is not facing a lay juror. The jury works simultaneously with the judiciary, very unlike the Anglo American system and therefore the judges are far more

295 See Matthew N. McConnell, supra note 294 re: perjury. 296 See The French Code of Civil Procedure (Gerald L. Koch trans., Swee & Maxwell Limited, 1964) at Section IV, Article 104 and Article 109 – All witnesses must appear before the court without exception or be subject to fines or perjury. 297 See Kevin Jon Heller, “A Poisoned Chalice: the Substantive and Procedural Defects of the Iraqi High Tribunal,” New School for Social Research (2006) for discussion of Iraq’s ratification of the ICCPR in 1976, obligating the government to ensure that all courts, even the (SICT), “give effect to the rights recognized” by the treaty. 298 Ibid., p. 13. 299 Rosen v. U.S., 245 U.S. 467 (1918). 300 See Gordon Van Kessel, “The Suspect as a Source of Testimonial Evidence: A Comparison of the English and American Approaches,” 38 Hastings L.J.I. 7 (1986). 78

involved in the decision making. 3.11.5: CROSS EXAMINATION OF WITNESSES In the prior Iraqi inquisitorial system, there was no right of confrontation or cross-examination at the trial. This element of the adversary accusatorial system has become part of the procedure for the SICT. The ICCPR in Article 14(3)(e) provides that “[I]n the determination of any criminal charge against him, everyone shall be entitled….to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” ICCPR Article 14(3(e) does not require that the cross-examination occur at trial, merely at some stage of the proceedings. The SICT permitted statements to be used at trial by witnesses whom the defendant had never had an opportunity to cross-examine.301 Thus, admitting the witness’s statements in this manner not only violated the defendant’s right of confrontation, it deprived him of a fair trial.302 Furthermore, Paragraph 213(a) of the Code permits that “everything contained in the dossier constitutes evidence, and the trial court is entitled to treat all witness testimony in the investigative dossier as having been given at trial.”303 Some of these rights simply cannot be engrafted from one system unto another. The inquisitorial system’s practice of questioning witnesses in front of the investigative judge during the investigation stage before trial allows witnesses to be questioned, but only at the discretion of the judge.304 If the defense’s questions are not asked or are not directed in a manner that would elicit the responses the defense sought, then those questions may be raised on appeal.305 3.11.6: DOUBLE JEOPARDY The new SICT rules cast a wider net to allow more individuals to be subjected to double jeopardy. All that was required to retry an individual was the Tribunal’s belief that the previous court proceedings “[w]ere not

301 See Kevin Jon Heller, supra note 297. 302 See Kevin Jon Heller, supra note 297, for discussion of depriving defendant’s right to fair trial. See also Delta v. France, 11444/85 (1990), ECHR 30, ¶ 36. 303 See HUMAN RIGHTS WATCH, THE FORMER IRAQI GOVERNMENT ON TRIAL. 14 (2005) at 5. 304 See Bassiouni, supra note 1, 159. 305 See Bassiouni, supra note 1, 160. 79

impartial or independent, or were designed to shield the accused from criminal responsibility. . . . (so long as) one of the conditions contained in Article 196 of the Iraqi Civil Procedure Code and Article (303) of the Iraqi Criminal Procedure Code (are) met.”306 3.11.7: APPEAL On November 5, 2006, former President Saddam Hussein and his former chief of intelligence, Barzan al-Tikriti, were found guilty of crimes against humanity. The two were sentenced to two terms of 10 years' imprisonment each and death.307 If a crime did not carry the penalty when it was committed, a national court cannot sentence a defendant to death because a subsequent change in the law made the crime of death eligible. The ICCPR’s Article 15 prohibits retroactive sentencing increases: “[N]or shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed.”). The problem is that Iraqi criminal law did not criminalize war crimes, crimes against humanity, and genocide prior to the creation of the SICT.308 The SICT Statute provides: “Penalty for any crimes under Article(s) 11, 12 and 13 which do not have a counterpart under Iraqi law shall be determined by the Court…(a)nd guided by judicial precedents and relevant sentences issued by international courts (regarding) imprisonment and the death penalty. The SICT may order the forfeiture of proceeds, property or assets derived directly from a crime without prejudice to rights of bona fide third parties.”309

306 See Statute for the Supreme Iraqi Criminal Tribunal, at Art. 30. Article 303 reads: The investigations or court proceedings against an accused may be resumed after the criminal case has been closed if, after the issue of the judgment…(or) final decision, it emerges that there was an act or consequence of the offense for which the accused was tried…which was fundamentally different from the facts presented at trial. 307 See International Center for Transitional Justice, Press Release: November 7, 2006, ICTJ Releases Analysis of First Iraq Trial. 308 See M. Cherif Bassiouni, Post Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, Cornell Int’l L.J. 101 (2004). 309 ICCPR, adopted Dec. 16, 1966, G.A. Res. 2200A (XXI), 21 U.N., GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 entered into force March 23, 1976, art. 14(1) 80

Iraq ratified the International Covenant on Civil and Political Rights (ICCPR)310 in 1971 without reservation. ICCPR Article 14(5) provides: "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." Further support for this right is found in Article 82 of the Rome Statute of the International Criminal Court (Rome Statute) which expressly provides for the “right to appeal a decision on jurisdictional grounds or admissibility and …[a] decision which involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” The SICT statute provided for appeal under Article 25: “The convicted or the public prosecutor has the right to contest the judgments and decision before the Cassation Panel for any of the following reasons: 1) If a judgment issued is in contradiction with the law or there is an error in interpreting it; 2) an error in procedure; 3) material error in the facts which has led to a violation of justice.” Amnesty International (AI), argues that the right to appeal, is one of the most serious criticisms of the Nuremberg and Tokyo Charters,311 which denied the right to appeal. As such, the trials were seen as victors' justice. Thus, infringement of the right of appeal, which is a fundamental component of the right to a fair trial, violates Article 14(5) of the ICCPR; Article 8(2)(h) of the American Convention on Human Rights; Article 2 of Protocol 7 to the European Convention on Human Rights; Article 24 of the Statute of the ICTY; Article 23 of the Statute of the ICTR; Article 81(b) of the Rome Statute of the International Criminal Court; Section 14 of the UNTAET Regulations governing the Special Panels for East Timor; and, Article 25 of the SICT.312 The verdict on November 5, 2006, was not the final step in the trials against Saddam Hussein and his comrades. The case went to the court of cassation (appeal), based on errors of law, procedure or fact. Unlike the SICT Statute, under the Iraqi Code of Criminal Procedure, if a case results in a death sentence or life imprisonment, the

310 Ibid. 311 See Amnesty International Index: Sierra Leone, Special Court for Sierra Leone: denial of right to appeal and prohibition of amnesties for crimes under international law. AFR 51/012/2003, 1 November 2003. 312 Ibid. 81

appeal occurs automatically and the Cassation Chamber is given the file within 10 days of the judgment. The Cassation Chamber may reverse, revise, or affirm the original judgment of the Trial Chamber, with the directive that its final judgment is to be carried out within 30 days, subject to endorsement by the Iraqi President.313 International groups (e.g., AI) were skeptical of the Appeals process due to their having been based on the desire of the new government to publicly signal the end of the Ba’ath regime. Intense pressure was placed on the SICT by the Iraqi government to move forward with the trial of Saddam Hussein as quickly as possible.”314 3.11.8: DEATH PENALTY If a crime did not carry the penalty when it was committed, a national court cannot sentence a defendant to death because a subsequent change in the law made the crime death eligible. The ICCPR’s Article 15 prohibits retroactive sentencing increases: “[N]or shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed”]. ICCPR’s (art. 6) provides that a “sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant.” Article 24 of the SICT Statute specifically authorized the Tribunal to impose any of the penalties prescribed by the Iraqi Penal Code which included death (406(f)). The application of the death penalty was of great concern to many international human rights groups, governments and international organizations who observed the trials. The International Center for Transitional Justice (ICTJ) opposes the application of the death penalty

313 Kevin Jon Heller, “A Poisoned Chalice: the Substantive and Procedural Defects of the Iraqi High Tribunal,” New School for Social Research (2006). 314 Over the course of 2004 and 2005, senior figures in the Iraqi government made numerous statements demanding that the trial of Saddam Hussein start quickly, or promising that the trial was imminent. See “Talabani: Saddam to Stand Trial within Two Months”, Al-Sabah al-Jadeed, June 1, 2005, as reported in Institute for War and Peace Reporting, Iraqi Press Monitor, No. 253, October 1, 2005; “Barzani Calls for Speedy Trial for Saddam,” Al-Mutamar, June 8, 2005, as reported in Institute for War and Peace Reporting, Iraqi Press Monitor, No. 258, October 1, 2005. 82

because it renders all mistakes made during the trial irreversible, in addition to depriving victims of other crimes access to justice. Legal scholar, Diane Amann, argues that imposition of a prison sentence is more effective than capital punishment in reforming a nation.315 Furthermore, Article 6 of the ICCPR provides that “[a]nyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.” Under the revised SICT Statute, condemned defendants no longer had such rights. Article 27 specifically maintains that “[n]o authority including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.” The earlier versions of the SICT Statute (i.e., the initial 2003 version), and the Iraqi Code of Criminal Procedure, gave the President the power to commute a death sentence or pardon the condemned defendant. At one time, the current President of Iraq, Jalal Talabani, signed an international petition against the death penalty, but the revision to the SICT law reflects his changed position on the issue. In early November 2006, Talabani stated that “[t]he signature of the president is not necessary" to execute Saddam. And "[o]nce all the avenues of appeal have been exhausted, the verdict becomes enforceable." As the process to execute Saddam sped up to a hasty conclusion, it became clear that much of the speed may have been due in part to the Iraqi provision that forbids the execution of anyone over 70 years old. Saddam Hussein was at the end of his 69th year, and the decision to execute him before he reached his 70th birthday closed the trials for Iraq's key defendant. It prevented Saddam from being prosecuted for some of the most serious crimes alleged against him and deprived victims of other crimes access to justice. 3.12: CONCLUSION President Bush emphatically praised the trial as "[a] milestone in the Iraqi people’s efforts to replace the rule of a tyrant with the rule of law." Hussein and others mocked the proceedings, citing to the de-Ba’athification

315 Diane Marie Amann, Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24 HASTINGS INT’L & COMP. L. REV. 327, 336 (2001) (detailing how a prison sentence can be more effective than capital punishment when reforming a nation). 83

process, conflicting laws, and engrafting of the adversarial accusatorial system with the inquisitorial system, as examples of the SICT’s inadequacies. Although the hybridity of laws has drawn comment, criticism and emulation by other courts, (e.g., East Timor) none of the verdicts thus far have included charges of domestic crimes. This inclusion of domestic and international laws may have been devised to ensure a conviction. Under the best circumstances, trials of human rights violations do more than just punish wrongdoings of the past. The trials also serve to deter future international crimes, and help to serve as almost a de-facto civil society,316 attempting to establish the rule of law again in a war-torn society. What is at stake is not only justice for hundreds of thousands of victims, but the most important legacy is the documentation, as the Nazi atrocities attest to: “[w]ith such authenticity and in such detail that there can be no responsible denial of these crimes in the future.”317 After giving international amnesty to Turkish officials responsible for massacring over 1 million Armenians, Hitler is reported to have remarked: “[W]ho, after all, speaks today of the annihilation of the Armenians (twenty years ago)?”318 International legal scholar Antonio Cassesse argues that the lack of international response to the Armenian genocide may have helped to influence the development of Nazi ideology. Although this chapter was by no means an exhaustive analysis of the characteristics of the “adversarial” and “inquisitorial” systems, this author believes that even a lowest-common denominator319 approach does not help

316 J. Peter Pham, “Lazarus Rising: Civil Society and Sierra Leone’s Return from the Grave,” 7 INT’L J. NOT-FOR-PROFIT, L. I, 66 (2004). See Jeffrey L. Spears, Sitting in the Dock of the Day: Applying Lessons Learned from the Prosecution of War Crimes and Other Bad Actors in Post-Conflict Iraq and Beyond, 176 MIL. L. REV. 96, 164 (2003). 317 Report to the President from Justice Robert H. Jackson, Oct 7, 1946, International Conference on Military Trials: London, 1945. International organization and conference series: II European and British Commonwealth I, Department of State Publication 3080 (Washington, DC: Government Printing Office, 1949). 318 Antonio Cassesse, “Reflections on International Criminal Justice,” Modern Law Review, Vol. 61, No. 1 319 Maximo Langer, “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization 84

determine which system or unshared features are more important than others. Perhaps a utilitarian approach to hybrid systems seems convincing that international tribunals, from Nuremberg to the ICC, can allow for rules and legal professionals from different legal traditions to interact and develop a legitimate hybrid system.320 However, if the result of hybridization is the loss of some of the most important rights afforded to defendants (i.e., vulnerability to double jeopardy; rights of appeal; and death sentence pardoning), then perhaps a utilitarian view is not appropriate. Bassiouni concludes that, vox populi, is a world-wide view that the U.S. as a promoter of the SICT trials had little to no credibility due to its own crimes in Iraq.321 In the end, it was difficult not to focus on the incompatibility of the new legal system developed at the U.S.’s insistence. Bassiouni’s suggestion, and one with which I would agree, is to preserve Iraq’s long-standing inquisitorial system by allowing the 1971 Criminal Procedure Law to resume its natural place in society. Such an act would not have saved Saddam, because unless he had been held and tried by the ICC at the Hague, he could not have survived either legal system in Iraq. Unless of course, he had been given a presidential pardon, which was impossible under the new SICT rules. Since the execution of Saddam Hussein on December 30, 2006, the U.S. has been involved in two more high profile deaths: Osama Bin Laden and Muammar Gaddafi. Their deaths were more akin to orchestrated executions, but what is most unsettling is that these executions prevented Bin Laden and Gaddafi from at least being tried as key defendants in a kangaroo trial. At a minimum some intelligence and evidence would have been discovered. Remembering back to one critic’s observation that a life sentence is more effective at reforming a nation than imposing the death penalty, one cannot help but wonder if somehow the U.S. missed that point.

Thesis in Criminal Procedure.” HARVARD INT’L L. J., Vol. 45, No. 1, Winter 2004. (Discussion of the lowest-common denominator approach, the adversarial and the inquisitorial categories simply contain the features common to all criminal procedure systems of the common and civil law, respectively). 320 Ibid. 321 See M. Cherif Bassiouni, supra note 1, 163. 85

CHAPTER 4 IRAQ’S OIL 4.1: EARLY HISTORY OF OIL EXPLORATION IN IRAQ Those who balk at speculation about the U.S. involvement in Iraq to secure the country’s oil have probably not looked closely enough at the long history of oil or the handful of companies who have been vying for control of the region for well over a century. Without trying to appear as though I am a “simple minded demagogue,”322 I believe it is a useful exercise to run through the oil companies and their business relationships with Iraq. One particularly relevant piece of research on Multinational oil companies and U.S. Foreign Policy in the Middle East can be found in the 1975 U.S. Committee on Foreign Relations Report.323 The report describes the first years of oil, starting with its discovery in the U.S. and later, in the Middle East. As early as 1953, President Truman requested that the Department of Justice file a civil anti-trust lawsuit against some of the largest oil companies due to an alleged world oil cartel that had formed as early as 1928. When oil was first discovered in Pennsylvania in 1859, the Americans were quite confident in their position in the world oil market. By 1920, the Americans were producing more than 64% of the world’s oil. Initially, the Americans were not interested in looking any further than Mexico for new concessions, but once oil was discovered in Iran in 1908, the U.S., along with several other countries, shifted their focus to Iran, Iraq, Saudi Arabia and a few of the other oil rich countries in the region. In the first days following the discovery of oil in Iraq in 1927, it was pure speculation whether there was

322 Laura Nader and Ugo Mattei, “Plunder. When the Rule of Law is Illegal.” Malden, MA: Blackwell Publishing Ltd. (2008), p. 112. “‘It is about oil’” cannot be said in sophisticated intellectual circles if one wishes to avoid being depicted as a simple minded demagogue.” 323 “Multinational Oil Corporation and U.S. Foreign Policy” – Report together with individual views in the Committee on Foreign Relations, United States Senate, by the Subcommittee on Multinational Corporations (Washington, January 2, 1975, US Government Printing Office). http://www.mtholyoke.edu/acad/intrel/oil1.htm By 1943, the British controlled 81% of Middle East oil production as compared with 14% under American control. 86

sufficient oil to make extraction profitable. However, after World War I, and a significant increase in the global demand for oil, prospectors and businessmen began to actively pursue exploration rights in the area.324 In a New York Times article dated January 1, 1920, the Director of the U.S. Geological Survey wrote that the position of the U.S. in regard to oil can best be described as “precarious.”325 There were also rising fears that the major sources of oil outside the U.S. would be under the control of foreign interests – primarily British Petroleum (BP) and Royal Dutch Shell. British oil man Sir Edward Mackay Edgar wrote, “The British position is impregnable”326 and all the known oil fields likely or probable, outside the U.S., are in British hands or under British control or financed by British capital.327 In March 1920, the U.S. Senate made an inquiry to the President to report on the restrictions to American citizens interested in the exploration of oil in foreign countries.328 The State Department responded to the request by supplying a series of reports that presented a grim view of the steps that were being taken to exclude the Americans from foreign oil fields. In response to mounting concern over oil, Congress passed the Mineral Leasing Act of 1920 (the Act).329 The

324 Anthony Cave Brown. “Oil, Gold, and God: The Story of Aramco and the Saudi Kings.” New York, NY: Houghton Mifflin Company, (1999). Abbas Alnasrawi. “The Economy of Iraq: Oil, wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994). 325 New York Times, January 1, 1920. 326 “Multinational Oil Corporation and U.S. Foreign Policy” – Report together with individual views in the Committee on Foreign Relations, United States Senate, by the Subcommittee on Multinational Corporations (Washington, January 2, 1975, US Government Printing Office). http://www.mtholyoke.edu/acad/intrel/oil1.htm By 1943, the British controlled 81% of Middle East oil production as compared with 14% under American control. 327 Sperling’s Journal, August 1919. 328 S. Res. 331, 66th Congress 2d. Session. 329 Prior to the Mineral Leasing Act of 1920 30 U.S.C. §181, et seq., the General Mining Act of 1872 authorized citizens to freely prospect on public lands and allowed a discoverer to stake claims to both minerals and surrounding lands for development. Citizens of another country, the laws, customs or regulations of which deny similar or like privileges to 87

Act opened U.S. public lands to foreign-owned corporations, but if similar privileges were denied U.S. nationals abroad, they could not “by stock ownership, stock holding, or stock control own any interest in any lease acquired under the provision of this act.” 30 USC § 181, et seq. At the time, as noted earlier, the U.S. was the world’s greatest petroleum producer and consumer, thus, the Act, used in its first year against the Royal Dutch Shell Company regarding exploration rights in Utah, was a powerful weapon against foreign companies seeking to exclude the U.S. from foreign lands. 4.2: IRAQ’S FIRST OIL COMPANIES Control over Iraq’s oil resources was negotiated in a series of concessions that acted as contracts describing the terms under which foreign interests could build and operate oil wells. Several of the early concessions lasted for as many as 75 years. This is in contrast to today’s concessions that last perhaps for as little as one year. These concessions gave the oil companies the right to set the price of oil, the output level, the export volume, as well as to decide where the oil facilities would be constructed.330 In 1925, the first Iraqi oil exploration concession was negotiated between the government and the Turkish Petroleum Company (TPC). Despite the TPC’s nationalistic sounding name, it was actually a group of British oil companies organized in 1914 to capitalize on suspected oil reserves in Mesopotamia (present day Middle East). The TPC was divided into three shares. The Anglo-Persian Oil Company held a 50% share, and the remaining half was split evenly between the Anglo-Saxon Oil Company (25%)(dba Royal Dutch Shell Group), and Germany’s Deutsche Bank (25%). At the same time these companies were forming and divvying up the oil rights, the British established government mandated control over Iraq as its protectorate in 1917, the same year the Ottoman Empire ended. Once Britain took control

citizens or corporations of this country, shall not by stock, ownership, stock holding or stock control, own any interest in any lease acquired under the provisions of this chapter.” www.law.cornell.edu/uscode/text/30/181- 330 Abbas Alnasrawi. “The Economy of Iraq: Oil, wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994).

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of Iraq, the British seized the TPC shares owned by Deutsche Bank. Following the fall of Germany, France claimed the German Deutsch Bank shares had been seized as enemy property. The shares were then given to France as payment for war reparations, who in turn started its own oil company, the Compagnie des Petrole (dba Total S.A.). The Compagnie des Petrole (CDP) capitalized on France’s new found control over a portion of Iraq’s oil supplies.331 In 1919, the American oil companies realized the significance of their exclusion from the area when the British refused to permit American oil companies to send exploration parties into Iraq. Two of the largest American oil companies, Standard Oil Company of New Jersey (SONJ) and Socony-Vacuum, started a public relations campaign to convince the American public that they should be worried about the supply of American oil. The goal was to garner public support for the companies as they lobbied the administration and the State Department to use diplomacy to gain access to the region.332 The State Department decided against arguing for an American position in Iraq on purely self-interested terms due to concerns that the U.S. would appear to be taking unfair advantage of its victory in WWI. The State Department instead opted for an “open door policy”333 to urge all areas of the world to be open to development by nationals of all countries, unhindered by nationalistic regulations or restrictive agreements.334 In 1920, the American Petroleum Institute adopted a resolution which expressed the fear of the U.S.’s exclusion from the Middle East. The resolution declared, “If, under a protectorate of any other form of control” the “British and French interests… should be permitted to gain and

331 Anthony Cave Brown. “Oil, Gold, and God: The Story of Aramco and the Saudi Kings.” New York, NY: Houghton Mifflin Company, (1999). Abbas Alnasrawi. “The Economy of Iraq: Oil, wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994). 332“Multinational Oil Corporation and U.S. Foreign Policy” – Report together with individual views in the Committee on Foreign Relations, United States Senate, by the Subcommittee on Multinational Corporations (Washington, January 2, 1975, US Government Printing Office). http://www.mtholyoke.edu/acad/intrel/oil1.htm 333 Ibid. 334 Ibid. 89

maintain an exclusive right of development in Persia and in Turkey, to say nothing of the other oil-bearing lands embraced within the peace settlements…we do not hesitate to say that the results to the American petroleum industry might eventually prove to be disastrous.”335 In November 1921, Secretary of State Hughes told the oil companies that he would inform them as soon as he learned “that permission for prospecting in Mesopotamia (was) being or may be granted by the authorities in that territory.”336 The companies designated Exxon as their representative in negotiations with British Petroleum over an American interest in Iraq. BP was allegedly persuaded by Calouste Gulbenkian that it would be better to join forces with the Americans than to fight with them and suffer the consequences of failed diplomacy. Gulbenkian was a private citizen who held a 5% interest in the TPC, reportedly making him the richest man in the world for many years.337 In 1928, the Red Line Agreement was drafted338 which obligated the consortium members not to compete with each other within the area of the old Ottoman Empire. The open door policy was, as Gulbenkian characterized it, “hermetically sealed.”339 The “Red Line Agreement” lasted until 1948 when two of the American partners broke free.340 The ownership shares in the new Iraq Petroleum Company (IPC) were as follows:341

335 Hearing before the Subcommittee on Multinational Corporations of the Senate Foreign Relations Committee. “Multinational Petroleum Companies and United States Foreign Policy,” Part 8. 336 Ibid. 337 Calouste Gulbenkian was instrumental in the formative oil years of the Middle East. He was known as “Mr. Five Percent” for his 5% share in the TPC. www.countrystudies/us/iraq/53.htm 338 See attached Red Lines Map. During one of the final meetings, Calouste Gulbenkian reportedly drew the boundaries from memory on a map of the Middle East with a red pencil. http://history.state.ogv/milestones/1921-1936/RedLine 339 Hearing before the Subcommittee on Multinational Corporations of the Senate Foreign Relations Committee. “Multinational Petroleum Companies and United States Foreign Policy,” Part 7, p. 135. 340 Stephen Hemsley Longrigg “Oil in the Middle East.” New York, NY: Oxford University Press (1961). Daniel Yergin, “The Prize.” New York, NY: Simon & Schuster (1991). 341 “Multinational Oil Corporation and U.S. Foreign Policy” – Report together with individual views in the Committee on Foreign Relations, United States Senate, by the Subcommittee 90

Iraq Petroleum Company (IPC) Percent of Shares Royal Dutch-Shell 23.75 (Netherlands, UK)

British Petroleum (UK) 23.75 Near East Development 23.75 Corporation (US) Compagnie Francaise des 23.75 Petroles (France) Calouste Gulbenkian (private 5.00 citizen) When the TPC reorganized to become the Iraq Petroleum Company (IPC), it transitioned into a production and export company. The new ownership structure allowed the British shareholders to give the 23.75% share held by the Anglo- Persian Oil Company to a consortium of five American companies organized as the Near East Development Corporation. The consortium was dominated by SONJ and Socony-Vacuum.342 In 1927, the Kirkuk prospectors received confirmation that there were substantial quantities of oil in Iraq.343 In 1932, the Mosul Petroleum Company (MPC) obtained an additional concession, and in 1938, the Basra Petroleum Company (BPC), obtained a 75-year concession. The three concessions together accounted for the entire geographic area of Iraq.344 4.3: THE SEVEN SISTERS AND THE SUPERMAJORS The oil industry is dominated by a group of companies that have been in some form of existence for more than a

on Multinational Corporations (Washington, January 2, 1975, US Government Printing Office). http://www.mtholyoke.edu/acad/intrel/oil1.htm 342 Edwin Black, “Banking on Baghdad: Inside Iraq’s 7,000 year history of War, Profit and Conflict.” New York, NY: John Wiley and Sons (2004). Abbas Alnasrawi. “The Economy of Iraq: Oil, wars, Destruction of Development and Prospects, 1950- 2010.” Westport CT: The Greenwood Publishing Group (1994). 343 Anthony Cave Brown. “Oil, God and Gold: The Story of Aramco and the Saudi Kings.” New York, NY: Houghton Mifflin Company (1999). 344 Abbas Alnasrawi. “The Economy of Iraq: Oil, wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994). 91

hundred years. These companies are often referred to as the SuperMajors which trace back to the “Seven Sisters”345 that formed the “Consortium for Iran” cartel referred to earlier as being part of the anti-trust lawsuit in 1953.346 The Seven Sisters were the Anglo Persian Oil Company (now British Petroleum or BP); Gulf Oil (now Chevron); Standard Oil of California; Texaco (now Chevron); Royal Dutch Shell; Standard Oil of New Jersey (Esso); and Standard Oil of New York (SOCONY) now Exxon Mobil. The current SuperMajors are considered: BP (UK); Chevron (US); ExxonMobil (US); Royal Dutch Shell (Netherlands and UK); and Total S.A. (France). Brief details of the companies are listed as follows:

345 In 1951, Iran nationalized its oil industry, then controlled by the Anglo-Iranian Oil Company (now BP), and Iranian oil was subjected to an international oil embargo. In an effort to bring Iranian oil production back to international markets, the U.S. State Department suggested the creation of a “Consortium” of major oil companies. The “Seven Sisters” was a term coined in the 1950s by businessman Enrico Mattei, then head of the Italian state oil company Eni, to describe the seven oil companies which formed the “Consortium for Iran” cartel and dominated the global petroleum industry from the mid-1940’s to the 1970’s. Prior to the oil crisis of 1973, the members of Seven Sisters controlled around 85% of the world’s petroleum reserves, but in recent decades their dominance has declined due to the increasing influence of the OPEC cartel and state-owned oil companies. http://en.wikipedia.org/wiki/Seven_Sisters_(oil_companies). Italy: Two-timing the Seven Sisters (http://www.time.com/time/magazine/artilce/0,9171,874858,00.ht ml#ixzzlXZgt3Vtm), Time Magazine, June 14, 1963. 346 Ibid. For additional details on OPEC see www.opec.org OPEC was created as an NGO in 1960 at the Baghdad Conference by five founding members: Iran, Iraq, Kuwait, Saudi Arabia and Venezuela. The founding members were later joined by nine other countries: Qatar, Indonesia (suspended currently), Libya, UAE, Algeria, Nigeria, Ecuador, Angola and Gabon. One of OPEC’s stated goals is to pursue stabilization of prices in international oil markets and to secure steady income to the producing countries. OPEC has been widely criticized for its influence on the market. By the late 1980’s and 1990’s, OPEC shifted toward disfavoring countries with nationalized oil industries. In the early 1990s, Iraq began to seek foreign investors and partners to support the oil industry. It should be noted that this move may not have been entirely voluntary since Iraq was now under strict scrutiny by OPEC and the UN Security Council following the Iran Iraq War and the Kuwait invasion in 1990. 92

Texaco. Texaco was founded in 1901 as the Texas Fuel Company. In 1936, Texaco joined with Standard Oil of California to become the Arab-American Oil Company, also called Aramco. Aramco later evolved into Saudi Aramco, which is officially the Saudi Arabian Oil Company and the national oil company of Saudi Arabia. The company, along with several others, formed a coalition to negotiate rights to Iranian oil reserves, and establish a presence in both Bahrain and Saudi Arabia.347 In November 1988, a royal decree changed the company name to Saudi Arabian Oil Company and took the management and operations control of Saudi Arabia’s oil and gas fields from Aramco and its partners. By order of the CEO, Aramco officially cut off oil supply to Israel that same year. Following the events that unfolded in 1988, Saudi Aramco has become a fully-owned privately held company with no shareholder partners in business. In 2005, Saudi Aramco was estimated to be worth $781 billion,348 making it the world’s most valuable company of all time and 80% more valuable than Exxon Mobil, the 2nd largest public company.349 Saudi Aramco has reportedly raised some concerns for monopolization of the world economy.350 Standard Oil of New Jersey. Standard Oil of New Jersey (SONJ) was established in 1870. At that time, SONJ was the largest oil refiner in the world. It eventually became Exxon, originally from the Standard Oil Trust of 1882. SONJ acted as a subsidiary of Standard Oil until the Standard Oil Trust was dissolved by the U.S. Supreme Court in 1911 under the Sherman Antitrust Act.351 In 1933, SONJ

347 Eric V. Thompson, “Major Oil Companies in the Gulf Region, with Corporate Contact Information.” http://www.virginia.edu/igpr/APAG/apagoilhistory.html 348 www.ft.com/cms/s/2/5de6ef96-8b95-11db_a61f- 0000779e2340.html#axzz1tpp1n5sa: 349 “Big Oil, Bigger Oil.” Financial Times, February 4, 2010; “Texas Enterprise – What’s the value of Saudi Aramco.” By Sheridan Titman, February 9, 2010. “Energy Insights – the Value of Saudi Aramco.” February 10, 2010. Christopher Helman, “The World’s Biggest Oil Companies.” Forbes, July 9, 2010. 350 www.en.wikipedia.org/wiki/Saudi-Aramco 351 The Sherman Antitrust Act (Sherman Act, July 2, 1890, ch. 647, 26 Stat. 209, 15 U.S.C. §§ 1–7) requires the United States federal government to investigate and pursue trusts, companies, and organizations suspected of violating the Act. It was the first Federal statute to limit cartels and monopolies, and today still forms the basis for most antitrust 93

merged part of its operations with Socony-Vacuum and formed a new venture called Standard-Vacuum Oil Co., or Stanvac. In 1962, Stanvac split into SONJ and Socony Mobil. In 1948, SONJ joined the Aramco coalition in Iraq, and the coalition of companies in Iran in 1954. SONJ has had oil interests in Libya, North Yemen, Saudi Arabia, Abu Dhabi, Kuwait, Canada, and Qatar. SONJ changed its name to Exxon in 1972, and then merged with Mobil in 1999.352 Socony-Vacuum. Socony-Vacuum originated in 1866 as the Vacuum Oil Company. In 1879, John D. Rockefeller purchased a majority interest in the Vacuum Oil Company for his Standard Oil Company, which later became the Standard Oil Trust in 1882. As noted earlier, the 1911 anti-trust dissolution ordered by the Supreme Court resulted in the Standard Oil Trust forming 34 smaller companies (one of which was the Standard Oil Company of New York, or Socony). In 1931, Socony acquired Vacuum Oil’s assets and became Socony-Vacuum Corp. In 1955, the company renamed itself as Socony Mobil Oil Company, and then again in 1966 as Mobil Oil Corp. Socony-Vacuum has had oil operations in Iraq, the United States, Turkey, Canada, Yemen, Syria, Qatar, and Iran.353 Gulf. Gulf was founded in 1901 as Guffey Oil. It became part of the Turkish Petroleum Company in 1928, but sold its shares to Socal in 1934. In addition to Iraq, Gulf Oil operated in Kuwait, Canada, the Gulf of Mexico and Iran before being acquired by Chevron in 1984.354 Socal. Socal stands for Standard Oil of California. The original company formed in 1897 as the Pacific Coast Oil Company. Standard Oil (Iowa), a subsidiary of J.D. Rockefeller’s Standard Oil, acquired Pacific Coast Oil in 1900. In 1936, Socal joined with Texaco to form the Aramco. The company negotiated oil contracts in Saudi Arabia, Kazakhstan, and Bahrain, before officially becoming Chevron in 1984.355

litigation by the United States federal government. However, for the most part, politicians were unwilling to refer to the law until Theodore Roosevelt's presidency (1901–1909). See http://en.wikipedia.org/wiki/Sherman_Antitrust_Act 352 Eric V. Thompson, “Major Oil Companies in the Gulf Region, with Corporate Contact Information.” http://www.virginia.edu/igpr/APAG/apagoilhistory.html 353Ibid. 354Ibid. 355Ibid. 94

Royal Dutch/Shell. The Royal Dutch Corporation began in 1890 as an export business, and in 1897, it began operating as the Shell Transport and Trading Company, Limited. In 1903, the company was known as British Dutch, then Royal Dutch/Shell (1907), Shell Union Oil Corporation in 1922, and Shell Oil Company in 1949. Royal Dutch/Shell is arguably the oil company with the broadest international reach. It has developed oil contracts and business relationships in Iraq, Russia, Venezuela, the United States, Tunisia, Algeria, Nigeria, Trinidad, British Borneo, Mexico, Oman, Romania, Trinidad, Egypt, Saudi Arabia, and Iran.356 Anglo-Persian Oil. In 1908, Scottish interests founded the Anglo-Persian Oil Company after the discovery of a large oil field in Iran that same year. The parent company was Burmah Oil founded in 1886. The company was originally a private company, but the British government acquired the largest share in 1914. After the end of World War I, Anglo- Persian Oil purchased another company held by the British government, British Petroleum. In 1954, the company formally adopted the name British Petroleum. In 1987, the British government sold the final shares of the company. The company merged with Amoco in 1998 (formed through a 1954 merger between Pan American and Standard Oil of Indiana) and changed its name to BP Amoco. BP Amoco worked primarily in Iran and Kuwait, but has also operated in Libya, Abu Dhabi, Venezuela, Oman, the United Arab Emirates, and Iran.357 Several of these oil majors have formed joint ventures to produce or export Iraqi oil. It has also become common practice for these companies to purchase shares in other companies or subsidiaries that had exploration or extraction rights in regions where they wanted to invest. 4.4: NATIONALIZATION EFFORTS BY IRAQ When the British mandate ended in 1932, Iraq immediately began to undo the institutions created by the British.358 By the early 1950s, the Iraqis began to pursue nationalization of their oil. To the dismay of much of the western world, Iran was able to successfully nationalize

356Ibid. 357Ibid. 358 Joel Rayburn. “The Last Exit from Iraq.” Foreign Affairs, March/April (2006). http://www.foreignaffairs.com/articles/61505/joel-rayburn/the- last-exit-from-iraq 95

its oil in 1951. Saudi Arabia was also able to renegotiate its oil contracts to increase its share of the profits. When the Iraqis began nationalization efforts, their actions sent a strong message to the foreign companies invested in Iraq that their days of monopoly were ending.359 The Iraq government started using the threat of nationalization to demand an increase in royalties from the IPC and its concession holders. The IPC, Mosul Petroleum Company (MPC), and Basra Petroleum Company (BPC) sat down with the Iraqi government and renegotiated their contract. The 1952 Agreement changed the fixed-payment-per-unit-of- production royalty system into a profit-sharing structure. The new terms provided the government with an annual payment of 50% of the companies’ profits.360 The world oil market changed markedly following WWII, just as it had done after the first World War. In response to the growing demand for oil, Iraq increased its oil output. The new profit-sharing model from 1952 nearly quadrupled the government’s share of profits from $.22 per barrel in 1950 to $.84 per barrel in 1952-59.361 These new found oil profits helped strengthen Iraq’s economy, but with the increase in oil exports, Iraq simultaneously began to decrease its other exports.362 As described in greater detail in Chapter Two, 1958 was a year of great importance for the Iraqis. 1958 marked the end of the British installed Hashemite monarchy (1932- 1958). The new prime minister, Abd al-Karim Qasim, established a governing Revolutionary Council and created a new constitution.363 As nationalization began to take hold, the Iraq Petroleum Company (founded in 1929), became a key factor in controlling Iraq’s oil. In 1960, Qasim began actively pursuing the acquisition of the IPC. He raised the transit

359 Anthony Cave Brown. “Oil, God and Gold: The Story of Aramco and the Saudi Kings.” New York, NY: Houghton Mifflin Company (1999). 360 Abbas Alnasrawi. “The Economy of Iraq: Oil, wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994). 361 Ibid. 362 By 1980, over 99% of Iraq’s export earnings stemmed from the oil industry. Abbas Alnasrawi. “Iraq’s Burdens. Oil, Sanctions, and Underdevelopment.” Westport, CT: Greenwood Press (2002). 363 Valerie Marcel & John V. Mitchell, “Oil Titans.” Washington, D.C.: Brookings Institution Press (2006). 96

rates at the Basra port by more than 1,000% which led the Iraq Petroleum Company (IPC) to halt its production near Basra. Qasim responded to the impasse with a series of aggressive negotiation tactics that eventually led to stalled negotiations between the government and the IPC. In 1961, Qasim passed Public Law 80 which successfully expropriated 95% of the IPC’s concessions. Although Law 80 violated the terms of the IPC concession agreements signed in 1925, 1932, and 1938, the IPC ultimately did not resist the law. Law 80 was considered a historic victory for Iraq,364 and despite the execution of Qasim in 1963, Iraq continued to make significant efforts in nationalizing its oil. The Iraq National Oil Company was formed by the government in 1966, and as early as 1964, the government had already set its sights on acquiring the Iraq Petroleum Company.365 Importantly, unlike the National Iran Oil Company, the Iraq National Oil Company was forbidden from entering into partnerships or granting concessions to foreign oil companies. In 1968, a coup (organized by CIA-backed Saddam Hussein366) took control of the government and the INOC. Due to the perceived ineffectiveness of the INOC, Iraq’s leaders implemented new policies to support it.367 In 1969, the Soviet Union gave the Iraqi government $140 million to support the INOC and to start developing the expropriated oil fields. In 1970, the government demanded an ownership stake in the IPC and after a series of failed negotiations, the Iraq

364 Anthony Cave Brown. “Oil, God and Gold: The Story of Aramco and the Saudi Kings.” New York, NY: Houghton Mifflin Company (1999). 365 Abbas Alnasrawi. “The Economy of Iraq: Oil, Wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994). 366 http://newsmine.org/archive/coldwar-imperialism/iraqgate/iraq- 1963-cia-coup.txt NewsMine : coldwar imperialism : iraqgate : iraq 1963 cia coup.txt 367 Valerie Marcel & John V. Mitchell, “Oil Titans.” Washington, D.C.: Brookings Institution Press (2006). Abbas Alnasrawi. “The Economy of Iraq: Oil, Wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994). 97

government assumed full control of the IPC. On June 1, 1972, the nationalization of Iraq was complete.368 4.5: THE GULF WAR, SANCTIONS, AND THE OIL-FOR-FOOD PROGRAM The oil shortages of the 1970’s and years of uncertainty in the oil market took a toll on Iraq due to its reliance on oil as its main commodity. Iraq’s position was further weakened as a result of its engagement in the Iran Iraq War (1980-1988) and the Kuwait/U.S. Gulf War (1990-1991). Steeped in massive debt from the war, Iraq made the poor decision to resolve its financial troubles by invading Kuwait in 1990.369 The United Nations responded with Security Council Resolution 660,370 condemning Iraq’s actions and demanding their withdrawal from Kuwait. Iraq refused to comply with the UN Security Council which led to the adoption of Resolution 661.371 Resolution 661 imposed international economic sanctions on Iraq which prevented it from importing or exporting goods except humanitarian food aid and medical supplies. At the same time, the U.N. froze all Iraqi assets held in foreign banks. The UN created the “Oil-for-Food”372 Program to force Iraq to pay compensation to Kuwait for damage to Kuwait’s infrastructure and oil wells. This sanctioned program had a profound effect on the Iraqi population and economy. Political blogger Greg Palast sharply criticized the program as resulting in “not much food for them, not much oil for us.”373 Iraq remained under sanction for 12 years, from 1991- 2003, with the sanctions ending the same year the second Gulf War began. The Oil for Food Program also ended in 2003. Controversies surrounding the corruption in the Oil for Food Program persist to this day. In theory, the United Nations committee was established to approve all of

368 Abbas Alnasrawi. “The Economy of Iraq: Oil, wars, Destruction of Development and Prospects, 1950-2010.” Westport CT: The Greenwood Publishing Group (1994). 369 Joel Rayburn. “The Last Exit from Iraq.” Foreign Affairs, March/April (2006). http://www.foreignaffairs.com/articles/61505/joel-rayburn/the- last-exit-from-iraq 370 http://www.fas.org/news/un/iraq/sres/sres0660.htm 371 http://www.fas.org/news/un/iraq/sres/sres0661.htm 372 http://www.un.org/depts/oip/ 373 Greg Palast. “Obama’s Secret War Profiteering Tax.” http://www.ourfuture.org/blog-entry/obamas-secret-war- profiteering-tax. May 22, 2008. 98

Iraq’s oil sales to a pre-selected group of foreign oil companies, but the program failed.374 There is a long list of companies, countries and individuals who are facing charges of bribery and corruption.375 Saddam Hussein was reportedly involved in the improper use of the program as well. Hussein and others in his administration allegedly engaged in bribery schemes and corruption over oil smuggling to the tune of more than $11 billion.376 4.51: AN OIL BASED ECONOMY With oil dominating Iraq’s economy for the past 70 years, it represents over 99% of all Iraqi exports, 60% of its GDP, and more than 90% of the revenue.377 As a result of this gross economic imbalance, many of the Iraqis who could have made their living as farmers or as workers in the manufacturing sector moved instead to urban areas to find employment in oil related industries.378

374 Independent Inquiry Committee. October 27, 2005. Report on the Manipulation of the Oil for Food Programme. http://www.iic-offp.org/story27oct05.htm; See also Council on Foreign Relations, “Iraq: Oil for Food Scandal” http://www.cfr.org/un/iraq-oil-food-scandal/p7631 375 One of the earliest allegations of wrongdoing in the Oil for Food Program surfaced on January 25, 2004, when al Mada, a daily newspaper in Iraq, published a list of individuals and organizations alleged to have received oil sales contracts via the UN’s Oil for Food Programme. The list came from over 15,000 documents which were reportedly found in the state- owned Iraqi oil corporation, which had close links to the Iraqi Oil Ministry. A partial list of beneficiaries includes: British MP George Galloway and his charity, the Mariam Fund; French Interior Minister Charles Pasqua; and Shaker al- Kaffaji, an Iraq-American businessman, India’s foreign minister, Natwar Singh. Many prominent Russian firms and individuals also made the al Mada list. http://en.wikipedia.org/wiki/Oil-for-Food_Programme 376 Nancy Birdsall and Arvind Subramanian. “Saving Iraq From Its Oil.” Foreign Affairs, Vol.83, No. 4,77-89, p. 88. http://www.cgdev.org/doc/commentary/Birdsall%20Iraq%20and%20Oi l.pdf 377 United Nations. “Oil and Gas Factsheet.” New York, NY: United Nations Development Program Inter-Agency Information and Analysis Unit (2011). 378 Imad Jabir. “The Prospects for the Oil Sector in the Iraqi Economy After Sanctions.” Sanctions. OPEC Review, Vol. 26, No. 3, pp. 203-214, September 2002. Available at SSRN: http://ssrn.com/abstract=347158 99

During the 1980’s and 1990’s when Iraq was suffering from the sanctions, the weakness of the agricultural sector greatly impacted the Iraqis. Iraq was forced to import the majority of its food and during the sanction years, the government provided food rations that were only about one- third of the amount needed to survive (i.e., 1,000 calories per person per day). The United Nations published a report on the condition of the Iraqis that measured the increased rates of malnutrition and infant and child mortality compared to the access to healthcare facilities and treatment.379 In 1989 to 1990 alone, the infant and child mortality rates more than doubled in urban areas.380 Finally, since Iraq engaged in the Iran and Kuwait wars, much of its key infrastructure, including agricultural lands, public water and electricity supplies, were damaged. Iraq’s punishment by the international community through economic sanctions translated into a decade of living with little or no electricity, and few working sewage and water treatment plants. The contaminated water supplies led to bacterial disease, cholera, typhoid, and higher mortality rates. With the years of uncertainty and damage to Iraq now spanning well over 20 years, it is surprising how little coverage there is on the issue anymore. Political pundit Stephen Colbert joked about the Iraq War as “Mission Accomplished!” Colbert was of course referring to George W. Bush’s misstatement in 2003 of a U.S. victory, but what Colbert really wanted to highlight is that no one is talking about Iraq anymore.381 4.6: IRAQ’S CONSTITUTIONAL PROVISIONS FOR OIL Iraq’s constitution is the basic law of the land and establishes the fundamental legal principles on which Iraq is built.382 It also governs the relationship between the Iraqi government and foreign oil companies. Chapter Two

379 Alberto Ascherio, M.D., D.P.H., Robert Chase, M.D., C.C.F.P., Tim Coté, M.D., M.P.H., Godelieave Dehaes, M.D., Eric Hoskins, M.D., Jilali Laaouej, M.D., Megan Passey, M.B., B.S., M.P.H., Saleh Qaderi, M.B., B.S., Saher Shuqaidef, M.B., B.S., Dr.P.H., Mary C. Smith, M.Sc., and Sarah Zaidi, M.Sc. “Effect of the Gulf War on Infant and Child Mortality in Iraq,” New England Journal of Medicine, 327, 931-936. http://www.nejm.org/doi/full/10.1056/NEJM199209243271306 380 Iraq surveys shows ‘humanitarian emergency’ http://www.unicef.org/newsline/99pr29.htm 381 www.usip.org/files/resources/iraq_oil_pw64.pdf 382 www.uniraq.org/documents/iraqi_constitution.pdf 100

describes the significance of the constitutional provisions for Islam, and interestingly the media has tended to report more on the religious aspects of the constitution than on the new economic provisions for oil. In the first years following the U.S. occupation, Iraq was governed by the Coalition for Provisional Authority (the same group led by Paul Bremer and the architects of the Supreme Iraqi Criminal Tribunal, the Iraq Constitution, among other things). The CPA was followed by the Law of Administration for the State of Iraq for the Transitional Period or Transitional Administrative Law (TAL). The TAL laws were ratified in 2004, and in them the TAL recognized sovereign Kurdish control over their northern territories.383 There are two relevant articles of the Constitution containing provisions specific to Iraq’s natural resources, and its oil and gas reserves: Articles 111 and 112.384 Article 111 of the Constitution states: “Oil and gas are owned by all the people in Iraq in all the regions and governorates.”385 Thus, the ownership of any particular resources is not attributed to any particular group or geographical or political region.386 Prior to the 2003 war and the signing of the 2005 constitution, the Iraqi government maintained exclusive control over the oil industry. Despite the appearance that the new law states the Iraqi people own the oil reserves rather than the federal government, the 2005 constitution fails to specify who has the right to develop new oil resources and who will oversee the existing oil infrastructure.387 Accordingly, the proper federal and regional authority for who is making strategic decisions over the resources and ensuring the equitable distribution of the profits has become a real issue. Article 112 of the Constitution states: “‘First: the federal government, with the producing governorates and regional governments, shall undertake the

383 Ibid. 384 “Iraqi Constitution” United Nations Assistance Mission for Iraq website. Retrieved 14 December 2011. 385 www.uniraq.org/documents/iraqi_constitution.pdf 386 Ahmed Salih Al-Janabi. “Oil and Gas Contracts in Iraq.” Who’s Who Legal website July 2010. http://www.whoswholegal.com/news/features/article/28421/ 387 Feisal Amin Rasoul al-Istrabadi. “A Constitution Without Constitutionalism: Reflections on Iraq’s Failed Constitutional Process.” 87 Tex. L. Review 1627 (2008-2009). 101

management of oil and gas extracted from present fields, provided that it distributes its revenues in a fair manner in proportion to the population distribution in all parts of the country, specifying an allotment for a specified period for the damaged regions which were unjustly deprived of them by the former regime, and the regions that were damaged afterwards in a way that ensures balanced development in different areas of the country, and this shall be regulated by a law.’ ‘Second: the federal government, with the producing regional and governorate governments, shall together formulate the necessary strategic policies to develop the oil and gas wealth in a way that achieves the highest benefit to the Iraqi people using the most advanced techniques of the market principles and encouraging investment.’”388 Article 112 no longer requires the Iraqi government to safeguard its oil by obliging the state to “draw up the necessary strategic policies to develop oil and gas wealth to bring the greatest benefit for the Iraqi people, relying on the most modern techniques of market principles and encouraging investment.”389 This ambiguity suggests that in order to achieve the highest benefit using the most advanced means, perhaps a foreign investor would be better suited. Also, because the term “present fields” is not defined in Article 112, it is unclear whether it includes fields that are only currently producing or if it extends to other fields. Similarly, whether the currently producing fields include partially developed fields also remains unclear.390 Reportedly, one of the most hotly contested areas is the Kirkuk region. Kurds, Arabs, and Turkmens have each staked a claim to areas of Kirkuk, and each group has tried to dominate the oil-rich territory (which is the second- most plentiful oil reserve in the world).391 Article 140 of the Constitution established a deadline of December 31st, 2007, for the Iraqi government to resolve territorial governance of the Kirkuk territory and to settle any

388 www.uniraq.org/documents/iraqi_constitution.pdf 389 Ibid. 390 “Oil and gas contracts in Iraq Who’s Who Legal website July 2010. 391 Shak Hanish. “The Kirkuk Problem and Article 140 of the Iraqi Constitution.” DOMES: Digest of Middle East Studies, Vol. 19, Issue 1, Spring 2010, 15-25, p. 19. 102

related power struggles. That deadline has come and passed with no resolution of the issues. This territorial issue is partly connected to problems associated with the de-centralization of power that the new Constitution created. The text identifies three levels of government (i.e., federal, regional, and governorate) that share the largely undefined responsibility of creating oil policies for Iraq.392 At one time, the Iraq government was centralized in Baghdad where it could collect and distribute the proceeds from oil sales. Specifically, the Ba’ath party and Saddam Hussein maintained strict control over Iraq’s oil revenues. Concession holders paid royalties and fees to the central government, and in turn, the Baghdad government distributed the funds to those provinces and regions. 4.61: ADDITIONAL ISSUES WITH IRAQ’S OIL LAWS The Iraq federal government and the Kurdistan Regional Government (KRG) continue to dispute393 the new legislation on oil and gas, and as a result, the draft oil law remains deadlocked.394 The new oil law would order the restructuring of Iraq’s oil industry, but if passed, would set into motion the transfer of Iraq’s massive oil reserves from public to private hands. The first draft of the oil law was written according to a deadline set by the International Monetary Fund (IMF), and in keeping with the ongoing theme of Iraq, the IMF ordered conditions for debt relief. This new law would open up Iraqi oil for the first time in over 30 years, and allow for long-term investment by foreign oil companies. On July 27, 2011, the Legal Department of the Ministry of Oil finalized the text of its proposed Federal Oil and Gas Law (FOGL/MoO). According to Iraqi procedure, the ministry passes a proposed law to the Cabinet for approval, and the Cabinet then passes it to Parliament for promulgation. The parliament debates the proposed law, and once it is approved, it officially becomes law when it is

392 Edward Chaplin. “Iraq’s New Constitution: Recipe for Stability or Chaos?” Cambridge Review of International Affairs, Vol. 19, No. 2, June 2006, pp. 271-284 (14). 393 Ahmed Mousa Jiyad, “Brief Review of the Federal Oil and Gas Law Proposed by the Ministry of Oil.” August 29, 2011. http://www.iraqog.com/oil/oillaw/jiyad29aug2011.htm 394 “Update 2 – Iraq’s Shahristrani retains hard line on Kurdish oil” Reuters 10 October 2011. 103

published in the gazette Alwaqaie Aliraqia.395 Author Ahmed Mousa Jiyad criticized the law as having serious flaws.396 First, the oil law and Production Sharing Agreements permit the oil underground to remain ‘the property of the Iraqi people.’ However, the rights to control Iraq’s oil, the rate of extraction, and the profits the state may claim would all be set up under exclusive private control. Sami Husseini of the Institute of Public Accuracy uses Standard Oil’s John D. Rockefeller’s maxim to describe Production Sharing Agreements (PSA’s) as: “Own nothing, control everything.”397 Jiyad argues that the terms “royalty payment” and “production bonus” in the FOGL-MoO could imply Production Sharing Contracts. Jiyad continues that the FOGL-MoO oil and gas law cannot be the legal source to promulgate another law, (e.g., revenue sharing law), since the Constitution is intended to be the legal source and reference according to Articles 106 and 112. It would be preferable to make absolutely clear that Production Sharing Contracts are prohibited under the law, with the appropriate language found in Article 111 of the constitution. Clearly, with all of the changes to the Constitution and the proposed Hydrocarbon law, there is a high probability that a dispute will arise. Jiyad argues that dispute settlement should be related to a concluded contract and not the interpretation of the law, since “the law is sovereign” as Article 5 of the constitution asserts.398 Article 41 of the proposed Hydrocarbon law stipulates that any disputes between foreign companies and Iraqi authorities will be resolved ‘through arbitration or the

395 The Official Gazette of Iraq (Alwaqai Aliraqiya) has been published since August 1922 as a means of introducing legal measures into force via publication. http://gjpi.org/2009/02/02/official-gazette-of-iraq/ See also: http://www.iraq-ild.org 396 Ahmed Mousa Jiyad, “Brief Review of the Federal Oil and Gas Law Proposed by the Ministry of Oil.” August 29, 2011. http://www.iraqog.com/oil/oillaw/jiyad29aug2011.htm 397 Ewa Jasiewicz, “Iraq’s Hydrocarbon Law – in whose interests?” http://www.uslaboragainstwar.org/article.php?id=13489

398 Ahmed Mousa Jiyad, “Brief Review of the Federal Oil and Gas Law Proposed by the Ministry of Oil.” August 29, 2011. http://www.iraqog.com/oil/oillaw/jiyad29aug2011.htm 104

competent authority.’ This point is briefly mentioned in the upcoming Alien Tort Statute chapters, but I will point it out again here. This provision for arbitration translates into a successive Iraqi government from being prevented from using its own judicial system to resolve a contractual issue. Iraq would then be forced to take its case to a remote court where it would be treated as a corporate entity, on equal footing with an international oil company rather than as a country representative of the welfare of over 35 million people.399 While the law of domestic arbitration is fairly well developed in Iraq, international arbitration is not sufficiently supported by Iraqi law. Iraq is a signatory to the League of Arab States Convention on Commercial Arbitration (1987) and the Riyadh Convention on Judicial Cooperation (1983), and is considering, but has not signed or adopted the two most important legal instruments for international commercial arbitration. The United Nations New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958 – commonly called the New York Convention) and the attendant rules and procedures established by the UN Commission on International Trade Law (UNCITRAL). Arbitration can be problematic for several reasons. Arbitral proceedings and an arbitral award are generally non-public, and can be made confidential.400 Thus, the

399 Ewa Jasiewicz, “Iraq’s Hydrocarbon Law – in Whose Interests?” http://www.uslaboragainstwar.org/article.php?id=13489 400 For a review of Arbitration and confidentiality, see Rule No. XIII.5.1 – Confidentiality: (a) the Parties to arbitration proceedings, whether institutional or ad hoc, are under an obligation to keep confidential all awards and orders produced by the arbitral tribunal in the arbitration, together with all materials in the proceedings created for the purpose of the arbitration, as well as all materials submitted by another party in the framework of the arbitral proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party, except i) by legal duty vis-à-vis a 3rd party, ii) to protect or pursue a legal right; iii) to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority; or iv) is justified by an express or implied consent of the party who produced the document during the arbitration; (b) This undertaking applies to arbitrators, experts, the secretary of the arbitral tribunal and the arbitral institution. www.trans-lex.org/970500 and www.en.wikipedia.org/wiki/Arbitration#cite_note-6 105

problem is not just that the Iraqis would be in a remote forum, or treated as though the country is a corporation, but the accountability referred to in the Alien Tort Statute chapters disappears. 4.7: CURRENT COMPANIES Although the Constitution does not expressly authorize the Ministry of Oil or the Ministry’s Petroleum Contracts and Licensing Directorate to award contracts to international oil companies (IOC’s), this last section looks at the current state of Iraq for investors. The earlier referenced TAL law and Constitution provides Kurdistan with sovereign rights. However, the Iraqi federal government maintains that the Constitution does not allow the Kurdish Regional Government (KRG) to adopt unilateral measures over the management of its oil and gas fields. When viewed in this way, any contract signed before the draft oil and gas law is official should therefore be invalid until it has been reviewed and approved by the Iraq Ministry of Oil.401 All contracts concluded before the enactment of this law should be assessed by the FOGC, according to the same set of criteria, and approved and legalized by the Council of Ministers and federal government. Following the changes to the law, the federal government and the Kurdish Regional Government have been functioning as separate entities although neither side seems comfortable with the current arrangement. The Kurds have signed approximately 30 agreements with smaller oil companies, while the federal government in Baghdad has signed 10 agreements with some of the same major oil companies listed at the beginning of this chapter.402 In contrast to the federal government that has been using technical services contracts (TSC’s), the Kurdish Regional Government prefers production-sharing agreements (PSA’s). Production-sharing agreements are so onerous that according to the International Energy Agency, they only govern about 12 percent of the world’s oil reserves, and are typically used in countries with small or difficult

401 Arwa Damond. “Oil Power Struggle as U.S. Leaves Iraq.” CNN 12 December 2011. www.cnn.com/2011/12/12/world/meast/iraq- oil/index.html 402 Raad Alkadiri. “Oil and the Question of Federalism in Iraq.” International Affairs, Nov. 2, 2010. Volume 86, Issue 6, 1315- 1328, p. 1326. 106

oilfields, or where high risk exploration is required.403 This is simply not the case for Iraq. Technical service contracts give foreign companies the financial and technical responsibility for oil exploration, facility production, operations and maintenance, but without the equity in the fields where they are investing.404 The Iraq government has also required winning contractors to work in partnership with existing Iraqi oil companies and to make significant payments to the government (i.e., signing bonuses). Although these contracts have unfavorable terms compared with production sharing agreements, the government’s offer did attract bids from a few companies.405 The Special Inspector General for Iraq Reconstruction reported that oil development contracts have been offered at (now) three rounds of public auctions. The first auction for technical service contracts to six fields occurred on June 30, 2009. The auction attracted 14 bidders, comprising 22 different oil firms. Initially, some companies decided not to participate as a means to pressure the Iraqi government to change its contract terms. The foreign companies are expected to assume all the exploration and operational costs involved in oil production, and are compensated with a fixed per-barrel fee. The government will then only distribute earnings if the mandated production level is met. The consortium of oil companies headed by BP and the China National Petroleum Corporation (CNPC) offered the only bid that was accepted at the first auction. The consortium agreed to pay a signing bonus of $500 million and to produce 2.85 million barrels per day at a profit of $2 per barrel for seven years. In the second auction in December 2009, Iraq’s government received bids for seven additional fields.406

403 Joshua Holland. Bush’s Petro-Cartel Almost Has Iraq’s Oil. http://www.thirdworldtraveler.com/Oil_watch/Bush’s _OilCartel_IraqOil.html. 404 Gina Chon, “Oil Companies Reject Iraq’s Contract Terms.” July 1, 2009. http://online.wsj.com/article/SB124635835306572521.html 405 Timothy Williams. “Warily Moving Ahead on Oil Contracts.” New York Times, Middle East, June 25, 2009. p. A10. http://www.nytimes.com/2009/06/26/world/middleeast/26oil.html

406 Ibid. 107

ExxonMobil-Shell secured a similar, yet less lucrative deal in West Qurna. Italy’s Eni, Korea’s Kongas, and America’s Occidental Petroleum formed a consortium to develop the Zubair oil field.407 Shell, Malayasia’s Petronas, France’s Total, Angola’s Sonangol, Russia’s Lukoil and Gazprom, Korea’s Kogas, Norway’s Statoil, and Japan’s Japex, among others, came to the table perhaps after realizing that the terms were not going to become more favorable. In contrast to the federal government’s preference to force international oil companies to partner with one or more of Iraq’s national oil companies, the Kurds accept privatization by foreign firms.408 As noted, the production-sharing agreements offered by the Kurds give companies an equity stake in their fields, and the opportunity to deduct their production costs before sharing the profits with the government.409 These tensions between the Iraq government and the KRG have led to the suspension of the Kurd’s supply of its export oil through the national Iraqi pipeline. KRG claims the Baghdad government has not fully repaid operating costs to the foreign companies. The federal government maintains that the KRG owes a portion of its sales to the government. In another show of power, perhaps well-placed, the Iraqi government blocked ExxonMobil in April 2012 from bidding in the next round of oil and gas exploration contracts in Iraq.410 This move is due to ExxonMobil’s decision to sign a side deal with the KRG. Since the 2003 U.S. invasion, Iraq’s Kurdish leaders have reportedly stated that they are prepared to see the region remain part of Iraq, so long as the state is

407 Special Inspector General for Iraq Reconstruction, Quarterly Report and Semiannual Report to the United States Congress, July 2010, p. 52). http://www.sigir.mil/publications/quarterlyreports/July2010.ht ml 408 Thomas Willett Donovan. “Iraq’s Upstream Oil and Gas Industry: Following the 2010 General Elections.” Oil, Gas & Energy Law. OGEL 4 (2010). http://www.ogel.org/article.asp?key=3064 409 Pamela Ann Smith. “Iraq Woos Big Oil Players…On its Own Terms.” The Middle East, No. 398, March (2009), 44-46, p. 44.

410 Mohammed Tawfeeq and Chris Isidore. “Iraq blocks Exxon Mobil from Oil Exploration Bids.” CNN. February 13, 2012. http://www.money.cnn.com/2012/02/13/news/international/exxon_m obil_iraq/index.htm 108

federal, democratic and pluralistic. This is so despite the Kurd’s dream to achieve independence one day.411 KRG’s signing contracts (and contracts that are arguably not in the Kurd’s best interests) in territories whose status is still unresolved increases the chances that there will be strong retaliation by the Iraqi federal government. ExxonMobil’s move is problematic on many levels. Other companies, such as Chevron, Total S.A., Eni and Statoil are reportedly deliberating on whether they too should take the plunge.412 The International Crisis Group UNHCR report offers the seemingly obvious solution. International oil companies should refrain from signing contracts with either the government of Iraq or the KRG in disputed areas; and suspend all operations in disputed territories until the status of internal disputed boundaries has been resolved.413 Iraqi’s Deputy Prime Minister for Energy, Hussain al- Shahistrani encapsulated the problem best when he said: “Because these are disputed territories: Iraqis have been discussing it – it’s one of the most difficult unresolved issues in Iraq. And when an oil company comes and puts its nose into such delicate internal affairs, it reminds people of the role of the oil companies in the 50’s and 60’s in the region, and I don’t think that will serve at all to change the image of ExxonMobil, in particular, in the region.”414

411 Masoud Barzani, the Kurdish region’s president, often alludes to the Kurd’s right to secede, or uses language that his followers interpret as such. On the occasion of the Kurdish New Year in 2012 (Nowruz, 21 March), he said, for example, “it is time to say enough is enough. The current state of affairs is unacceptable to us, and I call on all Iraqi political leaders to urgently try and find a solution or we will return to our people and we will decide on whatever course of action our people deem appropriate.” Speech, 20 March 2012 (in Arabic), http://krp.org/arabic/articledisplay.aspx?id=25866; for a summary in English, see http://krp.org/english/articledisplay.aspx?id=25868 412 Crisis Group interviews, oil industry experts, Europe and the Middle East, March 2012; and “In Iraq, oil majors play north versus south”, Reuters, 5 April 2012. 413 International Crisis Group. “Iraq and the Kurds: the High Stakes Hydrocarbons Gambit, released April 19, 2012. Middle East Report No. 120, p. iii. Available at: http://www.unhcr.org/refworld/docid/4f97d4e72.html 414 Ibid., see also Ben Van Heuvelen, “Q&A: Hussain al- 109

Strong words perhaps, except the part about trying to change the image of ExxonMobil and the other IOC’s. It just doesn’t seem to be a priority. Not surprisingly, these disputes are raising accusations of the use of death squads and the increasing need for security forces. It probably goes without saying what happens next. The result is the potential for claims being asserted by the Kurds and the Iraqis. In what forum is any-body’s guess. The following two chapters explore what may be the result.

Shahristani”, op. Cit. 110

CHAPTER 5 REMEDIES: THE ALIEN TORT STATUTE 5.1. INTRODUCTION Since the onset of the Iraq War in 2003, Iraq has seen a marked increase in the number of outside contractors and companies who operate inside the country. The previous chapter described the oil interests in Iraq and with those interests, there is bound to be opposition to the foreign companies involved. As the war nears to a close,415 the United States claims that it is pulling out partly based on fears that there will be no immunity for some of the acts committed in Iraq. Atrocities and abuses committed by military personnel are typically controlled by a different set of legal rules and norms416 than those established for private contractors and companies. Yet, despite the confidence that many private contractors and companies may have that they will not be held liable for any wrongdoings in Iraq, these individuals and companies may actually be facing an entirely new legal threat that until recent years was unheard of.417 Since the

415 http://www.reuters.com/article/2011/10/22/us-iraq-usa-obama- idUSTRE79K4LR20111022 416 A military tribunal or commission is most usually used to refer to a court that asserts jurisdiction over persons who are combatants of an enemy force, are held in military custody, and are accused of a violation of the laws of war. In contrast, courts-martial generally take jurisdiction over only members of their own military. A military tribunal or commission may still use the rules and procedures of a court- martial, although that is not generally the case. See http://en.wikipedia.org/wiki/Military_tribunals_in_the_United_ States 417 The notion that the law of nations governs only relations between States is a recent development. The Founding Fathers believed that individuals had rights and duties under the law of nations. They drew heavily from Blackstone who recognized private international law--such as law merchant--as part of municipal law. See Blackstone, Commentaries on the Laws of England *67 (noting that the law of nations is “adopted in its full extent by the common law, and is held to be part of the law of the land”); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796) (“When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement”); Citing Blackstone in Sosa, Justice Souter specifically referred to “rules binding individuals for the benefit of other individuals” which 111

First Congress enacted the Alien Tort Statute (ATS) in 1789, the ATS has provided foreign individuals with jurisdiction to bring tort claims against defendants who have violated the “law of nations” or a treaty of the United States.418 The act and the name itself are the subject of much debate. Some commentators refer to it as the Alien Tort Statute or the Alien Tort Claims Act, depending on whether or not they believe that a cause of action has been created.419 For nearly two hundred years, the ATS was in virtual disuse. Not a single case in the 19th Century used the statute,420 and prior to 1958, there were only 3 instances of the ATS in litigation.421 All of this changed in 1980 with the landmark case of Filartiga v. Pena-Irala (1980). Greater detail of the Filartiga case is described in the upcoming history section of this chapter. The Alien Tort statute §1350 reads: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The ATS provides foreign individuals with the ability to file a complaint in US federal court for injuries sustained from a "violation of the law of nations" anywhere in the world. The claims originally meant to be covered by the ATS were: (1) offenses against ambassadors, (2) violations of safe conduct, and (3) individual actions relating to piracy.422 With the resurgence of the ATS cases, the courts have constructed new classes of harms protected by international law principles. The harms include: crimes against humanity, slave labor, torture, extrajudicial killings, war crimes, forced disappearances, forced labor, child labor,

“overlapped with the norms of state relationships.” Sosa, 542 U.S. at 715 (citing Blackstone). 418 28 U.S.C. § 1350 (2006). For a discussion of the origins and intended meaning of the ATS, see M. Anderson Berry, Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute, 27 Berkeley J. Int’l L. 316 (2009). 419 Gary Clyde Hufbauer, The Supreme Court Meets International Law: What’s the Sequel to Sosa v. Alvarez-Machain?, 12 TULSA J. COMP. & INT’L L. 77, 77 (2004). 420 See Kenneth C. Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N.Y.U. J. INT’L L. & POL. 1, 4-5 nn.15-16 (1985). 421 Id. 422 See Beth Stephens, Sosa v. Alvarez-Machain: ‘The Door Is Still Ajar’ for Human Rights Litigation in U.S. Courts, 70 Brook. L. Rev. 533, 537 & n.18 (2004). 112

prolonged arbitrary detention or arrest, forced exile, cruel and inhuman or degrading treatment to name but a few.423 In this chapter, I will assess the significance of the resurgence of the ATS for private companies and individuals. Based on the research that will be presented, I will seek an answer whether corporations should fear the rising number of cases involving these types of actions or whether the ATS is merely a toothless tiger? 5.2: HISTORY Generally speaking, corporations are legal persons with the ability to sue and be sued and enjoy no special immunity from liability.424 However, corporations from foreign states and their actors or instrumentalities are typically immune from U.S. lawsuits under the Foreign Sovereign Immunity Act (FSIA).425 In order to fall under the protection of the FSIA, a corporation would have to either be majority owned by a foreign state or be “neither a citizen of the United States or created under the laws of any third country.”426 The FSIA does not, however, provide immunity to individuals acting under color of state law.427

423 Sosa reaffirmed that international law is part of U.S. law for the purpose of establishing federal jurisdiction over certain violations of international law. Id. at 729-30; see The Paquete Habana, 175 U.S. 677, 700 (1900) (affirming that “[i]nternational law is part of our law”). 424 See reference.com (A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members). 425 See Flores v. S. Peru Copper Corp., 343 F.3d 140, 154-54 (2d Cir. 2003) (discussing the development of customary international law). See also Foreign Sovereign Immunities Act (FSIA) of 1976, a United States law, codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602-1611 of the United States Code, that establishes the limitations as to whether a foreign sovereign nation (or its political subdivisions, agencies, or instrumentalities) may be sued in U.S. courts— federal or state. It also establishes specific procedures for service of process and attachment of property for proceedings against a Foreign State. The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States. It was signed into law by President Gerald Ford on October 21, 1976. 426 Foreign Sovereign Immunities Act of 1967, 28 U.S.C. § 1603(b) (2000). 427 See 28 U.S.C. § 1603(b) (stating that an agency or instrumentality of a foreign state is an entity “which is a 113

Further, assuming the corporation can be held liable under the ATS, either as private actors or as actors under color of law,428 then the basic legal principles of agency law and respondeat superior will control. Through respondeat superior, the corporation becomes liable through the actions of its principals (employer) or employees (agent). Thus, a corporation will become liable for the torts that violate ATS norms when the corporation acts under color of state law or when it violates norms that don't require state action (i.e., piracy, slavery, genocide, torture, war crimes). If, for example, a corporation hires a private security company to oversee a large development project, and that firm engages in torture and extrajudicial killings, then the corporation can be held liable for the hiring and actions of such an agency. Despite the ATS's long history,429 the notion that

separate legal person, corporate or otherwise. . . and which is an organ of a foreign state or political subdivision thereof”); see also Beth Stephens and Michael Ratner, International Human Rights Litigation in U.S. Courts 3-4 (1996) at 126 (noting that the FSIA does not provide immunity to individuals acting under color of official authority). 428 See Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995) (finding that “the color of law jurisprudence of 42 U.S.C. § 1983 is a relevant guide to whether a defendant has engaged in official action for purposes of jurisdiction under the [ATS]”). The “under color of law” jurisprudence originates from suits attempting to hold private actors liable for civil rights violations, which are normally only enforceable against state actors.” See also http://legal- dictionary.thefreedictionary.com/Color+of+Law for a definition of color of law: "The act of a state officer, regardless of whether or not the act is within the limits of his or her authority, is considered an act under color of law if the officer purports to be conducting himself or herself in the course of official duties.” See also the civil rights act of 1871 (42 U.S.C.A. Section 1983), where color of law is synonymous with State Action, which is conduct by an officer that bears a sufficiently close nexus to a state so that the action is treated as though it is by the state. 429 In 1784, a well-publicized international incident created a diplomatic disturbance. The Chevalier de Longchanps, a French citizen, committed an assault and battery on the streets of Philadelphia with Mr. Marbois, a member of the French diplomatic mission. De Longchamps was tried in a Pennsylvania state court and found guilty of state common law crime based on violations of the law of nations, but this conclusion only came after an international uproar criticizing the Continental 114

foreign corporations or foreign individuals could find themselves in U.S. courts resolving legal issues related to actions committed on foreign soil was indeed a fantastic idea until about 1980. In 1980, after nearly 200 years of lying dormant, the case of Filartiga v. Pena-Irala430 awakened a sleeping giant. The New York case involved a lawsuit between a non-U.S. Citizen against a non-U.S. Citizen for acts committed outside the U.S. When the U.S. Court of Appeals for the Second Circuit permitted the case to go forward, dozens of suits followed.431 Interestingly,

Congress to enforce the law of nations. The legislation eventually became the Alien Tort Statute of 1789 that gave power to the federal judiciary. See William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 491 (1986) (noting that “section 1350 clearly does not create a statutory cause of action” but concluding that it may have created common law cause of action). 430 See Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980) (holding that deliberate torture perpetrated under color of official authority violates customary international law and that 28 U.S. § 1350 provides federal jurisdiction over an alleged torturer with the United States's borders). In Filartiga, the appellants were Paraguayan citizens who sued Pena-Irala, an Inspector General of Police, under the ATS for the alleged kidnapping, torture, and murder of their son and brother in 1976. Id. The main issue in Filartiga was whether official torture constituted a violation of the law of nations, that, if it did, would establish federal jurisdiction 28 U.S.C. § 1350. Id. at 880. The Filartiga court found that courts must interpret international law as it has evolved and its current use among modern nations and not as it was in 1789 when the ATS was passes. Id. at 881. The Filartiga court relied upon a number of international agreements, including the Universal Declaration of Human Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture, and the International Covenant on Civil and Political Rights, to determine that officially sanctioned torture established international human rights norms, and thus the law of nations. Id. at 882-84. The Filartiga court construed the ATS “not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.” Id. at 887. 431 See Matt A. Vega, Balancing Judicial Cognizance and Caution: Whether Transnational Corporations Are Liable for Foreign Bribery Under the Alien Tort Statute, 31 Mich. J. Int’l L. 385, 388 (2010) (“There has been an explosion of ATS litigation centered almost exclusively on human rights 115

of the cases that followed, many were brought by plaintiffs simply seeking the documentation of international human rights abuses.432 The cases were often met with little, if any, resistance and resulted in unrecoverable damage awards in the amount of millions of dollars.433 By the 1990's, the trend shifted toward lawsuits against large corporations.434 Of the nearly 200 ATS cases

violations”). Ian Kierpaul, The Mad Scramble of Congress, Lawyers, and Law Students after Abu Ghraib: The Rush to Bring Private Military Contractors to Justice, 39 U. Tol. L. Rev. 407, 433 n.292 (2008). 432 Sinan Kalayoglu, Correcting Mujica: The Proper Application of the Foreign Affairs Doctrine in International Human Rights Law, 24 Wis. Int’l L.J. 1045, 1045-1046 (2007). 433 See, e.g., Arce v. Garcia, 434 F.3d 1254, 1256 (11th Cir. 2006) ($54 million in damages); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) ($140 million); Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996) ($103 million). 434 See Lee Drutman, “The History of the Corporation, Citizen Works Corporate Power Discussion Groups,” Session II, Reading I. The modern corporation dates back to 1601, when Queen Elizabeth I created the East India Trading Company. At the time, the concept of a corporation was quite different than today. Corporations were small, quasi-government institutions chartered by the crown for a specific purpose. The idea was to bring together investors interested in financing large projects, such as exploration. (Many American colonies were originally governed by corporations, such as the Massachusetts Bay Company). Kings and queens watched these corporations closely and didn’t hesitate to revoke charters if they were displeased with the way the corporation was being run. Investors were liable for any harm or loss caused by the company. As the American colonies developed and won their independence, corporations remained in the background. There were a few notable anti-corporate protests, like the Boston Tea Party, but the vast majority of Americans at the time lived and worked on small family farms. The real threat was the unilateral, unaccountable power of King George III, and the founders of a new nation, skeptical of that kind of power, formed a government of checks and balances to prevent any one branch from getting too powerful. Although corporations were not mentioned once in the Constitution or the Bill of Rights, Thomas Jefferson famously noted that representative government’s purpose was “to curb the excesses of the monied interests.” Had the Founders realized how powerful corporations would become, it is likely they would have created checks on their power. 116

filed, over 80% have been against large corporations.435 The list of corporations are mostly household names, and include names such as BP, Chevron, Coca-Cola, Del Monte, Dole, Levi Strauss, Texaco and Unocal to name but a few.436 Quite often, the ATS cases involve clearly specific groups.437 Most notably, and of particular interest to this author, are those companies which are engaged in the extractive industries (i.e., mining, oil, gas, and energy, such as Chevron, Texaco, Shell). Companies involved in the extractive industries comprise some 22% of the suits that are filed.438 Defendants need not be solely U.S. companies, for foreign companies who have a presence in the United States can also be sued based on the underlying acts of the subsidiary.439 Although many of these companies are Fortune

435 See Michael Goldhaber, The Life and Death of the Corporate Alien Tort, Am. Law., Oct. 12, 2010, and accompanying table. That calculation includes similar actions that courts later consolidated. 436 See Robert Vosper, “Conduct Unbecoming; No Longer Satisfied With Destroying the Reputations of Corporations That Get Entangled in Human Rights Abuses Overseas, Activist Groups are Seeking Retribution in U.S. Courts,” CORP. LEG. TIMES, October 2002, at 35. See also Kochan, supra note 1, at 117. 437 Id. 438 See, e.g., Mujica v. Occidental Petroleum Corp., 564 F.3d 1190 (9th Cir. 2009); Bowoto v. Chevron, 557 F. Supp. 2d 1080 (N.D. Cal. 2008); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006); Romero v. Drummond Co., 552 F.3d 1303 (11th Cir. 2008); Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008); Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002). 439 See, e.g., Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16 (D.D.C. 2008) (denying summary judgment because Indonesian subsidiary could have been acting as the parent’s agent); Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229 (N.D. Cal. 2004) (denying summary judgment because Nigerian subsidiary could have been acting as the parent’s agent or alternatively that the parent aided and abetted the subsidiary); In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 274-76 (S.D.N.Y. 2009). Plaintiffs often pursue agency, alter ego, ratification, and other theories in seeking to attribute to a parent the acts of its affiliates. Under an alter ego theory, where the corporate relationship between a parent and subsidiary is sufficiently close, one corporation’s liability can be attributed to the other. Thomson-CSF, S.A. v. American Arbitration Ass’n, 64 F.3d 773, 777 (2d Cir. 1995). Under an agency theory, principals are liable for the acts of 117

500 companies with deep pockets, to date, no plaintiff has received a judgment against a corporation.440 There are,

their agents in the scope of their authority. See Meyer v. Holley, 537 U.S. 280, 285 (2003). A party demonstrates ratification through knowing acceptance after the fact by the principal of an agent’s actions, including covering up misdeeds, and through refusing to disavow the acts of an agent outside the scope of authority. See Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1247 (N.D. Cal. 2004); In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 273 (S.D.N.Y. 2009). 440 See Beth Stephens, Remarks, in The Alien Tort Claims Act Under Attack, 98 Am. Soc’y Int’l L. Proc. 49, 51 (2004) (noting that the landmark Filartiga v. Pena-Irala decision in 1980 offered the victims of egregious human rights abuses the opportunity to hold perpetrators liable). See also Stephens, at 52 (discussing plaintiffs’ lack of success against corporations). See also, cases where there have been no judgments entered against US companies, but there are several successful ATSlawsuits brought against foreign, non-corporate individuals. See, e.g., Arce v. Garcia, 434 F.3d 1254, 1256 (11th Cir. 2006) ($54.6 million awarded against El Salvadoran military personnel); Abebe-Jira v. Negewo, 72 F.3d 844, 846 (11th Cir. 1996) ($1.5 million judgment entered against an Ethiopian defendants), cert. denied, 519 U.S. 830 (1996); In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460, 1463-64 (D. Haw. 1995) ($766 million in compensatory damages and $1.2 billion in exemplary damages awarded to a citizen of the Philippines against the former Philippine President, Ferdinand Marcos, for the torture and wrongful death of the plaintiff’s family member in the first ATS case to go to trial), cert. denied, 508 U.S. 972 (1993); Cabello v. Larios, 402 F.3d 1148, 1151 (11th Cir. 2005) ($4 million judgment entered against Chilean military commanders); Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1253-54 (S.D. Fla. 1997) ($187.6 million judgment entered against the Republic of Cuba and the Cuban Air Force). In addition, the courts have awarded several default judgments against foreign, non-corporate individuals. See, e.g., Doe v. Karadzic, No. 93 Civ. 0878 (PKL), 2001 U.S. Dist. LEXIS 12928, at *1-2 (S.D.N.Y. Aug. 28, 2001) ($4.5 billion judgment entered against individuals under the command and control of Bosnian-Serb insurgent leader, Radovan Karadzic); Mwani v. Bin Ladin, Civil Action No. 99-125 (CKK), 2006 U.S. Dist. LEXIS 89483 (D.D.C. Sept. 28, 2006) (default judgment entered against Osama bin Laden and al- Qaeda); Doe v. Saravia, 348 F. Supp. 2d 1112, 1159 (E.D. Cal. 2004) ($10 million default judgment entered against Salvadoran death squad member); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1360 (N.D. Ga. 2002) ($140 million default judgment 118

however, significant settlements in some of the ATS cases, some as high as almost $2 billion U.S. dollars.441 Yet, despite the lack of success by plaintiffs in being awarded a judgment, there have been a flood of cases since the Sosa decision. Further, although the suits themselves have had limited success,442critics are cautioning that the ATS could become a major headache for American companies operating abroad. The British Financial Times warned that ATS litigation is positioning the U.S. as the “world's civil court of first resort.”443 Justice Robert Bork, known for his sharp tongue and harsh views on many controversial subjects, wrote that the notion the ATS would allow

entered against a Bosnian-Serb soldier); Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627 (JSM), 1996 U.S. Dist. LEXIS 4409, at *7 (S.D.N.Y. Apr. 9, 1996) ($105 million default judgment entered against a Rwandan political party leader); Xuncax v. Gramajo, 886 F. Supp. 162, 202 (D. Mass. 1995) ($47.5 million default judgment entered against Guatemalan Defense Minister). In addition, there have been successful ATS claims filed against foreign corporations. See Rodriguez Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1366 (S.D. Fla. 2008) ($80 million damage award against a shipyard company in Curacao). 441 See, e.g., In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460, 1463-64 (D. Haw. 1995) ($766 million in compensatory damages and $1.2 billion in exemplary damages awarded to a citizen of the Philippines against the former Philippine President, Ferdinand Marcos). 442 See Harold Hongju Koh, “Separating Myth From Reality About Corporate Responsibility Litigation,” 7 J. INT’L ECON. L. 263 (2004) (arguing that attacks on the ATS rest on several myths: that United States courts cannot hold private corporations civilly liable for torts in violation of international law; that there is a flood of such cases that would impose liability on corporations simply for doing business in a difficult country; that statutory amendment or doctrinal reversal is necessary to stem this flood of litigation; and that domestic litigation is in any event a bad way to promote higher corporate standards.). 443 Thomas Niles, “The Very Long Arm of American Law,” FIN. TIMES, (London), Nov. 6, 2002 at 15. See Patti Waldmeir, An Abuse of Power: US Courts Should not Punish Companies for Human Rights Violations Committed Overseas, FIN. TIMES (London), Mar. 14, 2003, at 12. See also Donald J. Kochan, No Longer Little Known But Now a Door Ajar: An Overview of the Evolving and Dangerous Role of the Alien Tort Statute in Human Rights and International Law Jurisprudence, 8 CHAP. L. REV. 103, 108 (2005). 119

American courts to rule on actions by foreigners against foreigners on foreign soil was preposterous.444 5.3: SCOPE OF ATS: ACTOR VS MULTINATIONAL CORPORATION The central holding of Filartiga and the cases that followed is that the ATS is constitutional, that it creates a cause of action, and that it applies to acts committed outside of the United States.445 However, Filartiga left several unanswered questions, such as what types of ATS actions are actionable,446 and who

444 Robert H. Bork, “Judicial Imperialism,” WALL ST. J., July 12, 2004, at A16. See also Robert Bork in his well-known concurring opinion in Tel-Oren v. Libyan Arabian Republic 726 F.2d 774 (D.C. Cir. 1984).where Judge Bork opined that the ATS does not support a cause of action under international law, rather it merely creates jurisdiction in federal court. Id. at 799 (Bork, J. concurring). Bork continued that Congress must further intervene in order to crease a cause of action for any particular claim of international law to be heard in federal courts. Id. at 801 (Bork, J., concurring). 445 Sarah Joseph, “Corporations and Transnational Human Rights Litigation” 23 (2004) (citing Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987)); see also Statute of the International Court of Justice, U.N. Charter, art. 38, para. 1 (stating that “international custom, as evidence of a general practice accepted as law” is included in the body of law addressed by the International Court of Justice). See also Joseph, (noting that since Filartiga, the Second Circuit and Ninth Circuit in numerous cases, as well as the Eleventh and Fifth Circuits have followed the central holdings of Filartiga). 446 The ATS is jurisdictional in nature and does not adopt all principles of international law. To be actionable under the ATS, a tort must be committed in violation of a treaty of the United States or constitute a violation of the law of nations. Conduct violates the “law of nations” if it contravenes “well established, universally recognized norms of international law. If a norm is binding on nations, it is referred to as “jus cogens.” See In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994). “[S]ection 1350 does not require that the action ‘arise under’ the law of nations, but only mandates a ‘violation of the law of nations’ in order to create a cause of action.” Id. at 1475 (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 779 (D.C. Cir. 1984)). “It is unnecessary that international law provide a specific right to sue. International law ‘does not require any particular reaction to violations of law .... Whether and how the United States wished to react to such violations are domestic questions ....”’ Id. (quoting Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring). 120

may bring the claims. In 2004, the Supreme Court attempted to address the scope of the ATS in the Sosa v. Alvarez-Machain case447 by establishing what is an actionable international norm under the ATS. The case involved a DEA operative who was an official state actor who committed the alleged ATS violation.448 The Sosa Court decided how causes of action are recognized under the ATS. The court reasoned that the federal judiciary would not be overstepping its authority by creating new causes of action if the lower courts first looked to federal tort law under § 1983. Establishing the liability standard becomes particularly important in cases where no state actor exists (i.e., multi-national corporation (MNC)) and if the violation does not require a state actor (i.e., war crimes, torture, genocide, slavery). The Court required that any violations must be the same set of international norms that the First Congress intended the ATS to address when it first established the statute in 1789.449 The Court used this opportunity to admonish the lower courts for their failure to exercise caution in allowing new causes of action under the ATS.450 One of the most notable cases to follow Filartiga was Doe I v. Unocal Corp.451 Like Filartiga, Unocal further

447 See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2769 (2004) (holding that plaintiff’s ATS claim of arbitrary arrest did not allege a sufficient violation of international law). See id. at 2746 (stating that the Drug Enforcement Agency (DEA) hired Sosa, among others, to abduct Alvarez-Machain and hand him over to DEA officials). 448 See Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2746 (2004) (noting that Sosa, who was hired by the DEA to seize Alvarez, held Alvarez overnight in a hotel). 449 Id. at 2765 (“[F]ederal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance . . . than the historical paradigms familiar when § 1350 was enacted.”). 450 See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2769 (2004) (discussing the reasons for judicial caution when considering ATS claims). 451 See Doe I v. Unocal Corp., 395 F.3d 932, 947 (9th Cir. 2002) (holding that Unocal may be liable for aiding and abetting under the ATS for subjecting plaintiffs to forced labor). See also Lisa Girion, Unocal to Settle Rights Claims, LA. Times, Dec. 14, 2004, at A1 (noting that the Unocal litigation “was seen as a key test for human rights activists who want to hold multinationals responsible. . . for atrocities committed in 121

opened the doors for filing ATS lawsuits involving human rights claims and MNC's. Unocal highlighted the principle that federal courts can exercise subject matter jurisdiction over corporations who through their joint ventures with foreign governments452 are involved either directly or covertly with human rights abuses.453 The plaintiffs in Doe I v. Unocal Corp.454 were villagers in the region within Myanmar (formerly Burma) who alleged that Unocal Corporation directly or indirectly subjected them to forced labor, murder, rape, and torture when the company constructed a natural gas pipeline.455 In 1988, the Myanmar military took control of the country and nationalized Myanmar Oil, to become a state-owned oil and gas company.456 The state company in turn licensed the project to Total S.A., a French oil company. Unocal acquired a 28% interest in the pipeline project through Total.457 Allegedly, Unocal knew that the Myanmar military was responsible for the security of the pipeline project.458 The villagers maintained that the Myanmar military forced them to work on the pipeline project by threatening violence, and along with those threats, subjected the

other countries”). 452 See Emeka Duruigbo, “The Economic Cost of Alien Tort Litigation: A Response to Awakening Monster: The Alien Tort Statute of 1789,” 14 Minn J. Global Trade 1, 7 (2004) (noting that since the mid-1990s ATS jurisprudence has been dominated by cases against MNC's). 453 See Doe v. Unocal Corp., 963 F. Supp. 880, 883-84 (C.D. Cal. 1997), aff’d, 395 F.3d 932 (9th Cir. 2002), vacated 403 F.3d 708 (9th Cir. 2005); (approximately 25% of current ATS cases involve (1) alleged acts by a security force, generally a foreign police, military, or paramilitary unit); see also Bowoto v. Chevron Corp., 2007 WL 2349341 (N.D. Cal. 2007); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 301 (S.D.N.Y. 2003); Doe,, 573 F. Supp. 2d at 6; Shiguago v. Occidental Petroleum Co., No. 06-4982 (C.D. Cal., filed Aug. 10, 2006). 454 Doe I v. Unocal Corp., 395 F. 3d 932 (9th Cir. 2002) is a consolidated appeal of several actions filed by Myanmar villages against Unocal Corporation. Id. at 944. 455 Id. at 936. 456 Id. at 936-37. 457 Id. at 937. 458 Id. at 937-38. 122

villagers to murder, rape, and torture.459 The ATS claims in the Unocal case were based on violations of the law of nations.460 The Unocal court found that forced labor was not too unlike slavery, which put it in the smaller group of crimes that do not require state action.461 The court further reasoned that the related claims of murder, rape, and torture likewise did not require state action.462 The court next sought to establish whether Unocal should be held liable for the Myanmar military actions. The court found that the actions of the military in forcing slave labor conditions, under the direction of Unocal, was a violation of jus cogens, and as such, held that an international standard of liability was more desirable than a domestic one.463 The Ninth Circuit held that the international criminal standard of aiding and abetting applied to Unocal's action under the ATS.464 Ultimately, the case settled for a confidential amount, but it is rumored to have been close to $60 million.465

459 See Filartiga, 630 F.2d at 881 (citing the United Nations Charter (a treaty of the United States) for the idea that human rights and fundamental freedoms are of universal concern); see also id. at 884 (overruling precedent that suggested that international law is not violated when the aggrieving parties are nationals of the acting state, declaring that such a proposition is “clearly out of tune with the current . . . practice of international law”). 460 See Jeffrey M. Blum & Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act After Filartiga v. Pena-Irala, in the Alien Tort Claims Act: An Analytical Anthology 49, 59 (Ralph G. Steinhardt & Anthony D'Amato eds., 1999) (noting that a growing positivism in international law in the nineteenth century and an emphasis on state sovereignty essentially removed individuals from any role under the law of nations). 461 Doe I v. Unocal Corp., 395 F. 3d 932 (9th Cir. 2002) is a consolidated appeal of several actions filed by Myanmar villages against Unocal Corporation. Id. at 946. 462 Id. at 953-54. 463 Id. at 948 (noting that where only jus cogens violations are alleged, it may be preferable to apply international law rather than the law of any particular state). 464 Id. at 948. (holding that Unocal may be liable under the ATS for aiding and abetting the Myanmar military). 465 See Daphne Eviatar, "A Big Win for Human Rights", The Nation, May 9, 2005, available at http://www.thenation.com/article/big-win-human-rights. More recently, a global oil and gas company reportedly agreed to a 123

In making its determination of the Myanmar military and Unocal relationship, the court looked to, but did not rely solely upon,466 the decisions in the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).467 However, there was not only the risk of applying international law from specialized tribunals,468 there was also the risk of applying a criminal standard in a civil proceeding. The court carefully reasoned that “what is a crime in one jurisdiction is often a tort in another”469 and

settlement of $15.5 million in an ATS lawsuit where a group of Nigerian citizens alleged that the defendant was complicit in various abuses committed by Nigerian police. See "Shell’s Cash ‘Gesture’; Settlement is Encouraging for Protestors", The Herald (Glasgow), June 10, 2009. 466 See Doe I v. Unocal Corp., 395 F.3d 932, 951 n.28 (9th Cir. 2002) (noting that the court's opinion has not found the criminal tribunals' standard to be the controlling international law and further stating that the tribunals are “helpful for ascertaining the current standard for aiding and abetting”), reh'g granted, 395 F.3d 978 (9th Cir. 2003). 467 Id. at 949-50. 468 From their inception, the jurisdiction of the international tribunals such as Nuremberg, ICTY, ICTR were limited to individuals. Although never firmly defined, legal persons such as corporations or non-governmental organizations have thus far been excluded. No legal person has ever been charged in any of those tribunals. See U.N. Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Counsel Resolution 808 (1993), art. 7(1), U.N. Doc. S/25704 (May 3, 1993); S.C. Res. 955, art. 6(1), U.N. Doc. S/RES/955 (Nov. 8, 1994). 469 Id. As to the actus reus of the offense, the court held that aiding and abetting applied to “practical assistance or encouragement which has a substantial effect on the perpetration of the crime.” Id. at 951. Citing to the ICTY, the court did not find that assistance must constitute an indispensable element, but rather that the actions “make a significant difference to the commission of the criminal act by the principal.” Id. Under the international standard, moral support is an option along practical assistance and encouragement, and even though the court decided not to adopt this part of the standard, it did suggest moral support may be used to establish liability. Id. at 951 n. 28. As to the mens rea, the court held that the defendant must have “actual or constructive (i.e., reasonable) knowledge that the accomplice's actions will assist the perpetrator in the commission of the crime.” Id. at 956. Thus, the accomplice 124

therefore, the distinction was of little use in determining standards of international human rights law.”470 Furthermore, the court reasoned that the international criminal standard for aiding and abetting is similar to the domestic tort law standard and therefore the distinction carried even less significance in the ATS context.471 The resulting fear among MNC's is that the newly defined aiding and abetting standard increased the likelihood of courts finding liability.472 In his concurrence in Unocal, Judge Reinhardt disagreed with the majority's use of the aiding and abetting standard. Instead, Reinhardt argued that no international standards should be used to establish third party liability under the ATS.473 Reinhardt urged consideration that when assessing third party liability, it is a “straightforward legal matter that federal courts routinely resolve using common law principles.”474 The fact that some of the acts

does not need to share the perpetrator's mens rea; the accomplice need not even know “the precise rime the principal intends to commit.” Id. at 950. 470 See id. at 949 (noting that international human rights law has developed mostly in the criminal context). 471 Id. at Note 47. 472 See Terry Collingsworth, The Key Human Rights Challenge: Developing Enforcement Mechanisms, 15 Har. Hum. Rts. J. 183, 199 (2002) (arguing that the ATS should impose liability on a private party who aided and abetted a state actor, and that § 1983 should be used merely for determining who is a state actor). See also Collingsworth at 200 (finding it crucial to adopt the aiding and abetting principle for ATS cases because otherwise “companies will be free to enter into business relationships with rogue governments and provide support to activities that violate human rights while avoiding liability”); see also Sarah Joseph, Corporations and Transnational Human Rights Litigation 23 (2004) (citing Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987)); see also Statute of the International Court of Justice, U.N. Charter, art. 38, para. 1 (stating that “international custom, as evidence of a general practice accepted as law” is included in the body of law addressed by the International Court of Justice). 473 See Doe I v. Unocal Corp., 395 F. 3d 932, 963 (9th Cir. 2002) (Reinhardt, J., concurring) (disagreeing that the “recently- promulgated” aiding and abetting standard should be applied to assess Unocal's liability and finding that no international law test should be used to determine such liability). 474 Id. at 966 (Reinhardt, J., concurring). 125

occurred in another country should not change this.475 Reinhardt believed that federal common law was best equipped to resolving these questions and expressed his aversion to using international standards, based in part on the fact that the aiding and abetting principle is relatively undeveloped and has only recently been promoted in the “ad hoc international tribunals” such as the ICTY and ICTR.476 He further reasoned that there is a risk in relying on future decisions based on the relatively recent phenomenon of international tribunals477 when there already

475 Id. 476 See id. at 967 (Reinhardt, J., concurring) (arguing that the benefits of the experience of the federal common law are lost when such a wide body of reasoning and authority is abandoned for “an undeveloped principle of international law”). 477 There has been an increasing willingness in international law to accept the idea of criminal aiding and abetting liability following the tragedies of the Holocaust and the problems presenting with prosecuting the perpetrators of the Nazi regime. An individual could be charged with violations of the Nuremberg Charter if he was (1) the principal culprit; (2) was an accessory to the crime, ordered it, or abetted it; (3) had a “consenting part” in the crime; or (4) was part of the “plans or enterprises involving the (crimes) commission. The Nuremberg statute made liability for aiding and abetting an explicit part of its prosecutorial mandate. But, the Nuremberg trials are not the only international precedents for establishing the principle of aiding and abetting liability for violations of international law. The UN 1948 Genocide Convention, the Rome Statute and the international tribunals for Yugoslavia and Rwanda have also influenced the modern day notion of “aiding and abetting” within international law. These included Crimes Against Peace, War Crimes, and Crimes Against Humanity. See Charter of the International Military Tribunal art. 6(b), Aug. 8, 1945, 59 Stat. 1546, 1547, 82 U.N.T.S. 284, 288; See also, Daniel Diskin, “The Historical and Modern Foundations for Aiding and Abetting Liability Under the Alien Tort Statute,” 47 Ariz. L. Rev. 805, 806 (2005) (describing establishment of Nuremberg tribunals). See also Diskin (“[A]n expanding progeny of cases followed [the decision in Filartiga].”). Though a comprehensive list of post-Filartiga ATS cases is not necessary here, some examples of the wide range of plaintiffs using the ATS include Bigio v. Coca-Cola Co., 239 F.3d 440, 444 (2d Cir. 2000) (suit by Jewish plaintiffs against corporation that purchased property that had been illegally seized by Egyptian government); Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 12 (D.D.C. 2005) (suit by prisoners abused by U.S. forces at Abu Ghraib against 126

exist extensive common law.478 Judge Reinhardt concluded that there is little “reason to look to international criminal law doctrines for a civil liability standard when there exists a substantial body of federal common law regarding third-party liability.”479 The majority view in Unocal was a bit broader than Reinhardt's cautionary view. The majority discussion did not establish that aiding and abetting had achieved the status of customary international law.480 Although the Unocal court attempted to deal with liability issues where the Sosa Court had not,481 the Supreme Court in Sosa demonstrated that even if an international norm has been agreed to as part of federal common law, it does not necessarily translate into a norm that is applicable to the ATS.482 The Supreme Court has recognized that there are certain

American contractors who provided interpreters and interrogators to American forces in Iraq); Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1288 (S.D. Fla. 2003) (suit by Guatemalan union leaders alleging corporate participation in torture designed to end union leadership activities); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 91 (D.D.C. 2003) (suit by representatives and families of victims of September 11 attacks against organizations that provided funding to al Qaeda); see also James Boeving, Half Full... or Completely Empty?: Environmental Alien Tort Claims Post Sosa v. Alvarez- Machain, 18 Geo. Int’l Envtl. L. Rev. 109, 112-28 (2005) (discussing ATS cases based on environmental claims). 478 See id. at 967 (suggesting that in contrast to the aiding and abetting principle, the federal common law principles of joint liability, agency, and reckless disregard are well known). 479 Doe I v. Unocal Corp., 395 F.3d 932, 968 (9th Cir. 2002) (Reinhardt J., concurring) reh'g granted, 395 F. 3d 978 (9th Cir. 2003). 480 See Doe I v. Unocal Corp., 395 F.3d 932, 951 n.28 (9th Cir. 2002) (noting that the court's opinion has not found the criminal tribunals' standard to be the controlling international law and further stating that the tribunals are “helpful for ascertaining the current standard for aiding and abetting”). 481 See Sosa v. Alvarez-Machain, 124 S. Ct 2739, 2764 (2004) (finding that the ATS is “open to a narrow class of international norms today”). 482 See Sosa, 124 S. Ct. at 2765 n.19 (finding that the ATS “was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations”). 127

aspects of tort principles that are roughly the equivalent to aiding and abetting,483 and post-Sosa, there is little doubt that claims of extrajudicial killing, state-sponsored rape, and forced labor could trigger ATS liability. Yet, even so, Sosa confirmed that deference must be given to congressional guidance when creating federal common law. Lower courts should not be expanding on the ATS standards when Sosa expressly cautioned against turning the “federal courts into international tribunals that happen to be located within the United States.”484 The aiding and abetting standard is still the subject of much debate, and Unocal did not firmly establish whether corporations can be held liable under the ATS for aiding and abetting a foreign state's human rights violations. The notion of aiding and abetting liability has received resistance in the courts, as well as from the previous Bush Administration who believed that the result would be a deterrence of investment in countries with poor human rights records.485 In the years that followed Filartiga,

483 Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. 511 U.S. 164, 181 (1994). Under concert of action, “[a]n actor is liable for harm resulting to a third person from the tortious conduct of another if he . . . knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other.” Id. (citing Restatement (Second) of Torts § 876(b) (1977)). 484 See Courtney Shaw, Uncertain Justice: Liability of Multinationals Under the Alien Tort Claims Act, 54 Stan. L. Rev. 1359, 1378 (2002) (finding that § 1983 doctrines appear “to deal with action by the private entity, and not the state”). 485 See, e.g., Brief for the United States of America as Amicus Curiae Supporting Respondents at 4, Khulumani v. Barclay Nat. Bank, 509 F.3d 148 (2d Cir. 2007) (05-2141-CV, 05-2336-CV) (“[R]ecognition of an aiding and abetting claim as a matter of federal common law would hamper the policy of encouraging positive change in developing countries via economic investment.”); Supplemental Brief of the United States of America as Amicus Curiae Supporting Respondents at 14, Doe I v. Unocal, 403 F.3d 708 (9th Cir. 2005) (Nos. 00-56603, 00- 56628), available at http://www.earthrights.org/files/Legal% 20Docs/Unocal/dojunocalbrief.pdf (“Adopting aiding and abetting liability under the ATS would, in essence, be depriving the Executive of an important tactic of diplomacy and available tools for the political branches in attempting to induce improvements in foreign human rights practices.”); Brief for the United States of America as Amicus Curiae in Support of Affirmance at 16-18, Corrie v. Caterpillar, Inc., 128

Sosa and Unocal, the number of suits filed continued to increase in an attempt to expand the types of claims that could be brought under the statute.486 The expansion of claims raises concerns among critics of the ATS suits who believe that permitting these types of suits to continue in the courts could seriously harm U.S. foreign policy, as well as American business interests abroad.487 Additionally, despite the Sosa and Unocal cases expansion of what constitutes ATS claims, plaintiffs must overcome significant procedural issues in order to proceed to trial, and thus ultimately to receive a judgment.488 5.4: THE DOCTRINE OF FORUM NON CONVENIENS AND THE PROCEDURAL BASIS OF ATS CLAIMS With longstanding common law roots,489 forum non conveniens plays a significant role in modern international litigation due to the growing global economy and appeal of U.S. courts to foreign plaintiffs.490 Federal courts regularly dismiss corporate ATS cases,491 and since 2007,

503 F.3d 974 (9th Cir. 2006), (No. 05-36210), 2006 WL 2952505. 486 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). Between 1789 and 1980, the law was invoked approximately 20 times, and only two courts upheld jurisdiction under the statute. See Gary C. Hufbauer & Nicholas Mitrokostas, Awakening Monster: The Alien Tort Statute of 1789 2 n.2 (2003). 487 See Gary C. Hufbauer & Nicholas Mitrokostas, Awakening Monster: The Alien Tort Statute of 1789 2 n.2 (2003), at 37- 44, 46-48. 488 See Beth Stephens, Remarks, in ”The Alien Tort Claims Act Under Attack,” 98 Am. Soc’y Int’l L. Proc. 49, 51 (2004) (noting that the landmark Filartiga v. Pena-Irala decision in 1980 offered the victims of egregious human rights abuses the opportunity to hold perpetrators liable). See also supra note 24 for further discussion of judgment proof ATS litigation. 489 The doctrine, first recognized in Scotland in 1866, is widely accepted in the common law world. See Peter Hay, Russell Weintraub & Patrick J. Borchers, Conflict of Laws: Cases and Materials 207 (13th ed. 2009) at 187. 490 FNC still exists within the United States for dismissals to state court (from both federal and other state courts); however, the enactment of 28 U.S.C. §1404(a), the federal transfer statute, has largely limited its use domestically. Hay et al., supra note 74, at 208-09. 491 Michael Goldhaber, “The Life and Death of the Corporate Alien Tort,” Am. Law., Oct. 12, 2010 for the demographics and calculations from a collection of ATS cases. While some 155 corporate ATS cases have been lodged, a significant percentage do not facially involve cognizable harms under the ATS. That is particularly true for cases filed before the Sosa decision 129

only four corporate ATS cases have moved toward trial.492 Yet, however small the rate of success seems to be, it appears that the more recent ATS settlements are showing greater success than before.493 Defendants have often had success in defeating ATS claims based solely on procedural grounds, with forum non conveniens being one of the most frequently used devices to dismiss the claims. Under a traditional jurisdictional analysis, if any remedy is available to plaintiffs in their home country, the case should be dismissed, even if only provisionally.494 Regardless of the nature of the suit, it has become increasingly common for courts to place conditions on defendants, such as agreements to accept the jurisdiction of a foreign tribunal or to abide by the alternative forum’s final judgment before granting a motion to dismiss based on forum non conveniens.495 Yet, even with such agreements, various surveys confirm that few plaintiffs decide to refile their cases abroad after dismissals from the U.S. courts.496

clarified the meaning of the “law of nations” for these purposes. Such cases include commercial or employment disputes, lawsuits premised on securities laws, actions involving negligence-based injuries aboard vessels or airlines and other similar suits, and most have been dismissed rapidly. 492 Id. 493 See “A Milestone for Human Rights,” Bus. Wk., Jan. 24, 2005 (reporting that Unocal was said to have settled its action for $30 million); Jad Mouawad, Shell to Pay $15.5 Million to Settle Nigerian Case, N.Y. Times, June 9, 2009; Jenny Strasburg, Saipan Lawsuit Terms OK’d: Garment Workers to Get $20 million, S.F. Chron., Apr. 25, 2003, at B1. See also Sue Reisinger, “Pfizer Settles Lawsuits over Drug Trials on Children in Nigeria,” Law.com, Feb. 23, 2011 (stating that Pfizer agreed to pay up to $175,000 per child able to prove death or permanent disability from the use of the drug Trovan). 494 K. Lee Boyd, Universal Jurisdiction and Structural Reasonableness, 40 TEXAS INT’L L.J. 1, 19-20 (2004) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). 495 See E.E. Daschbach, Where There’s A Will, There’s A Way: The Cause for A Cure and Remedial Prescriptions for Forum Non Conveniens As Applied in Latin American Plaintiffs’ Actions Against U.S. Multinationals, 13 L. & Bus. Rev. Am. 11, 28-39 (2007); Manuel A. Gomez, Like Migratory Birds: Latin American Claimants in U.S. Courts and the Ford-Firestone Rollover Litigation, 11 Sw. J. L. & Trade Am. 281, 295-96 (2005). 496 See, Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 683 (Tex. 1990) (Doggett, J., concurring) (“Empirical data available 130

The doctrine of forum non conveniens is most often remembered beginning with the Gulf Oil Corp. v. Gilbert case in 1947. In Gulf, the U.S. Supreme Court revealed the notion of forum non conveniens by “declining jurisdiction in exceptional circumstances.”497 Gulf Oil involved a tort action brought by a Virginia resident against a Pennsylvania corporation.498 The Supreme Court affirmed the District Court's dismissal of the action, finding that New York was not the most convenient forum for disposition of

demonstrate that less than four percent of cases dismissed under the doctrine of forum non conveniens ever reach trial in a foreign court.”); See Elizabeth T. Lear, National Interests, Foreign Injuries, and Federal Forum Non Conveniens, 41 U.C. Davis L. Rev. 559, 577-78 (2007) (few cases dismissed on forum non conveniens are refiled); E.E. Daschbach, Where There’s A Will, There’s A Way: The Cause for A Cure and Remedial Prescriptions for Forum Non Conveniens As Applied in Latin American Plaintiffs’ Actions Against U.S. Multinationals, 13 L. & Bus. Rev. Am. 11, 28-39 (2007); Manuel A. Gomez, Like Migratory Birds: Latin American Claimants in U.S. Courts and the Ford-Firestone Rollover Litigation, 11 Sw. J. L. & Trade Am. 281, 295-96 (2005).; Jacqueline Duval-Major, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L. Rev. 650, 672 (1992); Hilmy Ismail, Forum Non Conveniens, United States Multinational Corporations, and Personal Injuries in the Third World: Your Place or Mine?, 11 B.C. Third World L. J. 249, 250 n.7 (1991); Winston Anderson, Forum Non Conveniens Checkmated? - the Emergence of Retaliatory Legislation, 10 J. Transnat’l L. & Pol’y 183, 193 (2001). 497 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947). The doctrine’s origins have been traced to Scottish common law. See Anne McGinness Kearse, Note, Forfeiting the Home-Court Advantage: The Federal Doctrine of Forum Non Conveniens, 49 S.C. L. Rev. 1303, 1305 (1998). Its application in U.S. courts “was largely the brainchild of Paxton Blair, a young associate laboring in a silk-stocking Manhattan law firm.” Jeffrey A. Van Detta, Justice Restored: Using A Preservation-of-Court- Access Approach to Replace Forum Non Conveniens in Five International Product-Injury Case Studies, 24 Nw. J. Int’l L. & Bus. 53, 60 (2003). Blair’s “1929 law review article... deplored an alleged crisis in docket overcrowding in the Manhattan federal and state courts of his day and proposed [forum non conveniens] as a panacea.” Id. That “article became the principle source on which the Gilbert Court relied eighteen years later.” Id. 498 Gilbert, 330 U.S. at 501. 131

the action.499 The Gilbert Court reasoned that “the open door [to courts] may admit those who seek not simply justice but perhaps justice blended with some harassment.”500 The Court was skeptical of the fact that “[a] plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.”501 In Gilbert, both parties were U.S. citizens, but in a later case, Piper Aircraft Co. v. Reyno,502 the plaintiffs were Scottish citizens bringing a wrongful death action on behalf of their relatives who died in a plane crash. Forum non conveniens was applied and the U.S. Supreme Court dismissed the action due to finding that although the current forum was competent to hear the claims, it was not the most convenient.503 The plaintiffs in Piper “openly acknowledged that the suit had been filed in the United States because its laws were (more) favorable toward the plaintiffs.”504 Piper is thought to have extended the notion of forum non conveniens to allowing a foreign plaintiff to bring a tort action against a U.S. corporation in a U.S. court, but it is argued that the U.S. Supreme Court in Piper did not intend to deviate from Gilbert's policy “[t]hat forum non conveniens be used in 'rare' circumstances only.”505 In concert, Gilbert and Piper provide the basis for a modern FNC analysis. Typically, strong deference is given to the plaintiff's choice of forum, and ordinarily, the choice should rarely be disturbed.506 In Piper, the Court concluded that “[w]hen the plaintiff is foreign” the deference given to favoring the plaintiff's choice of forum is “much less reasonable.”507 A later case, Wiwa v. Royal Dutch Petroleum Co., held that “the greater the plaintiff’s ties to the plaintiff’s chosen forum, the more likely it is that the plaintiff would be inconvenienced by a requirement to bring

499 Id. 500 Id. at 507. 501 Id. 502 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). 503 Id. 504 Id. 505 Leah Nico, Notes & Comments, From Local to Global: Reform of Forum Non Conveniens Needed to Ensure Justice in the Era of Globalization, 11 Sw. J. L. & Trade Am. 345, 350 (2005). 506 Id. 507 Piper Aircraft Co., 454 U.S. at 256. 132

the claim in a foreign jurisdiction.”508 According to the Court, “[b]ecause the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.”509 But, in the case of Cromer Finance, Ltd. v. Berger, the court reasoned that the fact that a plaintiff is foreign should not be dispositive of the question of convenience.510 Setting aside the question of how much weight should be given to the plaintiff's country of origin, it is generally accepted that the forum must be “'adequate' enough to provide plaintiffs with a meaningful remedy, or at least a remedy that is not clearly inadequate or unsatisfactory.”511 Meaning that the test is construed to show that “[a] foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly even though they may not enjoy the same benefits as they might receive in an American court.”512 In the case of Martinez v. Dow Chemical Co.,513 the court determined that Costa Rica was an adequate forum for the plaintiffs' toxic tort claims (i.e., exposure to dibromochloropropane chemicals or DBCP), deciding that “[w]hile the Costa Rican courts' capacity to deal with multi-party litigation and discovery procedures might not be on par with the United States, it is well-settled that simply because a foreign system does not provide the same benefits as the American system it is not considered inadequate.”514 Once disposing of the inquiry into the availability and adequacy of the alternative forum “[a] deciding court must balance the private and public interest factors.”515 It is

508 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 102 (2d Cir. 2000). 509 Id. 510 Cromer Fin. Ltd. v. Berger, 158 F. Supp. 2d. 347 (S.D.N.Y. 2001) (citations omitted). 511 Alejandro M. Garro, Forum Non Conveniens: “Availability” and “Adequacy” of Latin American Fora from a Comparative Perspective, 35 U. Miami Inter-Am. L. Rev. 65, 65 (2003). 512 Delgado, 890 F. Supp. at 1356. 513 Martinez v. Dow Chem. Co., 219 F. Supp. 2d 719 (E.D. La. 2002). 514 Id. at 735. 515 See Paul Santoyo, Comment, “Bananas of Wrath: How Nicaragua May Have Dealt Forum Non Conveniens a Fatal Blow Removing the Doctrine as an Obstacle to Achieving Corporate Accountability,” 27 Hous. J. Int’l L. 703, 709 (2005) (citing 133

only “[i]f the balance of these factors favors dismissal [that] the defendant will prevail on its motion to dismiss the case.”516 As it stands, “[t]he private interest factors focus on fairness and the convenience of the parties as they relate to litigation,”517 including, “access to proof, witnesses, and evidence.”518 In other words, what is currently available that would make the trial the easiest, least expensive, expeditious and most practical to carry out. The court will weigh the relative advantages and disadvantages to achieving a fair trial and will “'[b]alance the competing interests fairly by comparing the domestic forum to a particular foreign forum,' and determine which alternative forum the court is more likely 'to be both adequate and more convenient than the domestic forum chosen by plaintiffs.'”519 On the subject of appropriate forum standard and the different treatment accorded to foreign plaintiffs, Professor Russell J. Weintraub is among the most “distinguished U.S. proponents.”520 Professor Weintraub wrote an article addressing the conflicts of law concerns that arise in mass tort litigation brought by foreign plaintiffs in U.S. courts. On the issue of forum non conveniens, Professor Weintraub asserts that foreign plaintiffs who have been injured abroad are likely to be dismissed on forum non conveniens grounds. But, the decision to dismiss is partly based on the reasoning that the court will be relieved of the burden to determine and apply law with which it is not familiar. Furthermore, Weintraub argues that there are other extrinsic reasons plaintiffs decide to file suit in the U.S., such as

Gilbert, 330 U.S. at 508); and (citing Atl. Tele-Network, Inc. v. Inter-Am. Dev. Bank, 251 F. Supp. 2d 126, 136 (D.D.C. 2003)). 516 Id. (citing Atl. Tele-Network, Inc., 251 F. Supp. at 136). 517 Id. at 710 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947). See also Anne McGinness Kearse, Note, “Forfeiting the Home-Court Advantage: The Federal Doctrine of Forum Non Conveniens,” 49 S.C. L. Rev. 1303, 1305 (1998). Its application in U.S. courts “was largely the brainchild of Paxton Blair, a young associate laboring in a silk-stocking Manhattan law firm.” 518 Id. at 711 (citing Gilbert, 330 U.S. at 508). 519 See In re Air Crash at Taipei Taiwan Multidistrict Litig., 153 F. App’x 993, 995 (9th Cir. 2005). 520 Alan Reed, ”To Be or Not to Be: The Forum Non Conveniens Performance Acted out in Anglo-American Courtroom Stages,” 29 GA. J. Int’L & Comp. L. 31, 63 (2000). 134

extensive pretrial discovery, legal representation available on a contingency fee basis where some countries do not permit so doing, and, finally, an American jury system known for its generosity with other people’s money.521 5.5: THE EFFECT OF SOSA, TWOMBLY AND IQBAL: MAKING LIFE MORE DIFFICULT FOR ATS SUITS As the previous section described, Sosa raised the standard of what claims could be brought in an ATS suit by expounding on the test for ATS subject matter jurisdiction. Bork's cautionary view that the ATS should not have any force unless and until Congress took further action to provide a statutory cause of action went largely unnoticed by the courts who continued to hear cases under the ATS.522 In Sosa, the Court found that the ATS provides limited subject matter jurisdiction over federal common law causes of action, but those causes of action are comparable to those recognized at common law at the time of drafting of the 1789 statute.523 This definition of an ATS norm under the historical test includes a cause of action from international law, but then looks to federal common law to determine whether there is relief from the defendant’s specific conduct--that is, whether there is a remedy.524 A jurisdiction-merits distinction is basic to federal

521 Russell J. Weintraub, Methods for Resolving Conflict-of-Laws Problems in Mass Tort Litigation, 1989 U. Ill. L. Rev. 129, 152- 53 (1989). 522 See Sandra Coliver, Jennie Green & Paul Hoffman, Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies, 19 Emory Int’l L. Rev. 169, 170 (2005) (discussing the line of cases that began with Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)).at 224-26; Julian Ku, The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking, 52 Va. J. Int’l L. 353, 359 & nn.35-36 (2011) (stating that “Bork’s separation of powers critique never gained substantial currency outside the D.C. Circuit”). 523 See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004) (giving as examples “Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy”). 524 One commentator argues that a cause of action under Sosa is a “hybrid” or “mixed” cause of action since it at once relies on international law and federal common law. William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law, 37 Rutgers L.J. 635, 638-44 (2006). 135

civil procedure. It is found in the Federal Rules of Civil Procedure as a Rule 12(b)(1) motion to dismiss on jurisdictional grounds 525 which is different from a 12(b)(6) motion to dismiss for failure to state a claim.526 The courts are not always clear about which of the two motions they are considering527 (i.e., whether they are examining a challenge to subject-matter jurisdiction under Rule 12(b)(1), which requires the complaint to satisfy the historical test of Sosa, or a challenge to the sufficiency of the claim under Rule 12(b)(6)). The new standard of review post Twombly and Iqbal calls for a more rigid test for a complaint’s sufficiency by stating a claim for relief, which may be fatal to a number of valid claims.528 In Twombly, the Court required that a claim present “enough factual matter (taken as true) to suggest that an agreement was made.”529 Furthermore, due to the very real possibility that discovery costs for defendants might be extraordinarily expensive, the Court held that a claim must do more than just give fair notice and leave “open the possibility that a plaintiff might later establish some

525 Compare Fed. R. Civ. P. 8(a)(1) (requiring “a short and plain statement of the grounds for the court’s jurisdiction”), and Fed. R. Civ. P. 12(b)(1) (providing the defense of “lack of subject-matter jurisdiction”), with Fed. R.Civ. P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”), and Fed. R. Civ. P. 12(b)(6) (providing the defense of “failure to state a claim upon which relief can be granted”). 526 Id. 527 See Beth Stephens et al., International Human Rights Litigation in U.S. Courts 120-27 (2d ed. 2008) (discussing state courts as a forum for human rights claims) (disputing Filártiga’s statement that ATS cases require “more searching preliminary review of the merits” at the jurisdictional stage based on the jurisdiction-merits distinction); see also Howard M. Wasserman, Jurisdiction, Merits, and Substantiality, 42 Tulsa L. Rev. 579, 580-84 (2007) (discussing the conflation of jurisdiction and merits under 28 U.S.C. § 1331 (1993) “arising-under” jurisdiction). 528 See Brief for National Civil Rights Organizations as Amici Curiae Supporting Respondents, at 10-11 citing Iqbal, 129 S. Ct. 1937 (No. 07-1015) (citing examples of how even plaintiffs with valid claims may find it nearly impossible to survive the Iqbal pleading standard). 529 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) at 556. 136

‘set of [undisclosed] facts.'”530 A complaint must rise “above the speculative level”531 and make a factual “‘showing'” of the grounds for relief.532 Finding that “the plaintiffs here [had] not nudged their claims across the line from conceivable to plausible,” the Court dismissed the claim.533 In 2009, following Twombly, a case involving the alleged inhuman treatment of a Pakistani American Muslim, Javid Iqbal, reached the Supreme Court. In it, the Court upheld the dismissal of Iqbal's complaint against John Ashcroft and Robert Mueller. The Court explained the “two working principals” of pleadings from Twombly: (1) a court must accept all “factual allegations” as true, but need not credit “legal conclusions,” and (2) only a “plausible” claim for relief is sufficient to withstand a motion to dismiss for failure to state a claim.534 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”535 In hearing motions to dismiss ATS cases, courts now cite Twombly or Iqbal (or both) for the standard of review for a Rule 12(b)(6) motion.536 The Iqbal Court’s policy considerations regarding the strict pleading standard overlapped neatly with the Sosa Court’s policy concerns in limiting actionable causes in ATS litigation. The Court affirmed the position of the ATS in providing jurisdiction for certain causes of action in international law, but only after weighing concerns for U.S. foreign relations, separation of powers between the court, the legislative and executive branches.537 5.6: CONCLUSION This chapter endeavored to uncover the inherent problems with ATS litigation. At the beginning of the chapter, I sought to answer specifically whether the U.S. will face

530 Id. at 561 (citing Conley v. Gibson, 355 U.S. 41, 45 (1957)). 531 Id. at 555. 532 Id. at 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)). 533 Id. at 570. 534 Iqbal v. Ashcroft, 574 F.3d 820, 821 (2d Cir. 2009). See also 129 S. Ct. at 1949-50 (quoting Fed. R. Civ. P. 1). 535 Id., at 1949. 536 See Kiobel, 621 F.3d at 123-24; id. at 191 (Leval, J., concurring). 537 Sosa v. Alvarez-Machain, 542 U.S. 692, 728-31 (2004). 137

the danger of entertaining foreign litigation due to the problems associated with the Iraq War. As the chapter wove through the discussion of Sosa, forum non conveniens, Twombly and Iqbal, it seemed clear that ATS litigation is fraught with many difficulties, not the least of which is the question of whether a foreign litigant has the right to bring suit in a U.S. court. One of the key issues in the forum non conveniens discussion is whether an appropriate legal forum exists in the plaintiff's home country. If speaking solely to the issue of Iraq, the answer at first glance would appear to be “no.” Victims could very well argue that there are extraordinary legal and practical hurdles that would prevent them from bringing their claims in Iraq. Since 2003, at least thirty one judges and more than 150 lawyers have been killed in Iraq.538 ATS litigants from Iraq will also have to contend with two recent decisions on point. The first, in the U.S. District Court for the Eastern District of Virginia in 2008, is the decision of Galustian v. Peter,539 which dismissed a defamation action on forum non conveniens grounds after finding Iraq to be an adequate forum. Second, also in 2008, in Munaf v. Geren, the U.S. Supreme Court decided that the Iraq courts would have jurisdiction to try American citizens.540 The Galustian court acknowledged the dangerous conditions in Iraq, but nonetheless found that the parties' decision to reside in Iraq weighed in favor of a FNC dismissal.541

538 Lori Hinnant, Iraqi Courts Mired in War's Chaos, SEATTLE TIMES, Dec. 7, 2007, at A8. In 2008 alone, ten judges and eighty six lawyers were killed. BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, 2008 HUMAN RIGHTS REPORT: IRAQ (2009), available at http://www.state.gov/g/drl/rls/hrrpt/2008/nea/119116.htm [hereinafter BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, IRAQ]. 539 561 F. Supp. 2D 559 (E.D. Va. 2008). A D.C. District court also indicated that it would be receptive to an FNC argument that Iraq constituted an adequate alternative forum. Nattah v. Bush, 541 F. Supp. 2D 223, 237 nn. 13 & 14 (D.D.C. 2008). 540 128 S.Ct. 2207 (2008). In Munaf, the U.S. Supreme Court refused to intervene in the exercise of Iraq's judicial sovereignty after an Iraqi court tried and sentenced Mohammad Munaf, an American citizen, in an hour and a half or less, with no evidence or witnesses presented. See also Lori Hinnant supra note 122. Id. at A8. 541 Galustian, 561 F. Supp. At 564 nn. 5 & 6. The plaintiff 138

The current application of forum non conveniens by U.S. courts frequently serves only one end: to dismiss plaintiffs’ claims. As a consequence of the dismissal, any likelihood that the plaintiffs will find legal redress for their injuries is effectively precluded, and U.S. multinational corporations are shielded against liability for their injuries. The impact and reach of the ATS remains to be seen, for as one critic pointed out, how is it possible that corporations can be held responsible under international law for their complicity in oil spills, but not for their complicity in genocide? Or be held liable under European law for anticompetitive behavior, but not for slavery?542

operated a private security company in Iraq, and the defendant operated a forum for private security firms and other businesses involved in the reconstruction of Iraq. Id. at 560-61. 542 See Harold Hongju Koh, Separating Myth From Reality About Corporate Responsibility Litigation, 7 J. INT’L ECON. L. 263 (2004) (arguing that attacks on the ATS rest on several myths: that United States courts cannot hold private corporations civilly liable for torts in violation of international law; that there is a flood of such cases that would impose liability on corporations simply for doing business in a difficult country; that statutory amendment or doctrinal reversal is necessary to stem this flood of litigation; and that domestic litigation is in any event a bad way to promote higher corporate standards.). The existence of corporations as legal entities with rights is long established. See Bank of the U.S. v. Deveaux, 9 U.S. (5 Cranch) 61 (1809) (corporations are “citizens” for purposes of diversity jurisdiction); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778-79 n.14 (1978) (upholding corporation’s right to spend money to influence referenda) 139

CHAPTER 6 THE INTERNATIONAL CRIMINAL COURT, INTERNATIONAL LAW AND THE IMPACT ON U.S. LAW 6.1 INTRODUCTION In the prior chapters regarding the Alien Tort Statute and the Supreme Iraqi Criminal Tribunal, the question has been raised of where the appropriate forum is for aggrieved parties to bring their claims in connection with the U.S. occupation. This chapter will look more closely at what is available within the International Criminal Court (ICC) at the Hague and what are some of the ICC's contributions to international law in legal matters brought within the United States. Both sides of the argument will be discussed in an effort to provide the reader with a full view of the Alien Tort Statute (ATS) and international law. In the chapter on oil, there is additional cause for concern for Iraqis due to a new provision in the “Federal Oil and Gas Draft Law” drafted by the Iraqi Parliamentarian Oil and Energy Committee in August of 2011.543 In the draft law, under Article 43 of Chapter II, titled “Conflict Resolution,” the proposed oil and gas law provides that “[I]n case of failure to reach a solution in good faith, the conflict shall be referred to arbitration or to the competent judicial authorities as per the agreement provided for in the contract. Furthermore, in the arbitration between Competent Bodies and foreign License Holders, the Iraqi Law shall be applicable in merit; and in form, the arbitration procedures of the International Chamber of Commerce in Paris or Geneva, or the Cairo Regional Centre for International Commercial Arbitration shall be observed, as per the agreement provided for in the contract.” This point is discussed more fully in the oil chapter, but is pointed out again here to establish where conflict resolution may be heard, and to highlight that perhaps an arbitration chamber in Paris, Geneva or Cairo is not necessarily the best forum available for the Iraqis. That being said, I will now shift to the International Criminal Court and a discussion of its contributions to

543The Federal Oil and Gas Draft Law, The Iraqi Parliament Version, English Translation. Compiled by the Parliamentarian Oil & Energy Committee. Presented to the Council of Representatives on 17th August 2011. Translated by Iraq Energy Institute. http://www.iraqenergy.org

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U.S. law related to claims that may be brought by Iraqi aliens in the U.S. courts. 6.2: THE INTERNATIONAL CRIMINAL COURT The Nuremberg and Tokyo trials led to a slowly narrowing window of escape for war criminals,544 and although it took nearly 50 years of waffling and outright resistance to a permanent criminal court, the International Criminal Court (ICC) was founded on July 1, 2002, which gives the ICC jurisdiction over crimes committed after July 1st, 2002, or the date when the statute was in force.545 Unfortunately, despite the Hague’s beautiful setting and well established international support, the ICC has not been the forum of choice for the majority of international war crime tribunals. The Geneva Convention allows for the death penalty, but the ICC does not permit executions. This may have been one of the reasons why Iraq “chose” to hold its own war crime tribunal seated within Iraq. Notably, neither the U.S. or Iraq are signatories to the Rome Statute creating the ICC.546 As discussed in the chapter on the Supreme Iraqi Criminal Tribunal, the U.S. staunchly opposes the ICC, and has supported and encouraged Iraq, and other countries to opt out as well.547

544See Kyle R. Jacobson, Doing Business with the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes Against Humanity, 56 A.F. L. REV. 167, 170-71 (2005). (Emphasizing that the International Military Tribunal at Nuremberg laid the foundation for the International Criminal Tribunal for the Former Yugoslavia (ICTY) and others). 545The ICC could only gain jurisdiction over Iraqi actions on Iraqi soil if the United Nations Security Council referred the case to it. See Anthony Dworkin, web editor of the Crimes of War Project: “Trying Saddam: Crimes of War Project, ” a collaboration of journalists, lawyers and scholars dedicated to raising public awareness of the laws of war and their application to situations of conflict. See also, Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 (1998) See also Diane F. Orentlicher, “Venues for Prosecuting Saddam Hussein: the Legal Framework. The American Society of International Law (ASIL) Insights: Dec. 2003. 546 Ibid. 547 The ICC has not been supported by the U.S. Government. See John Dugard, A Tribute to United States District Judge David Hittner: John W. Turner Lecture: The Implications for the Legal Profession of Conflicts Between International Law and National Law, 46 S. TEX. L. REV. 579, 590-91 (2005). Under the Clinton Administration, the U.S. reluctantly signed the Court’s 141

The International Criminal Tribunal for the Former Yugoslavia (ICTY) took place at the ICC, however, the International Criminal Tribunal for Rwanda (ICTR) took place in the neighboring “neutral” country of Tanzania. The Court's official seat is in the Hague, Netherlands, but its proceedings may take place anywhere.548 The ICC prosecutes individuals for crimes of: 1) genocide; 2) crimes against humanity; and 3) war crimes. The court cannot exercise jurisdiction over the crime of aggression until at least 2017.549 Unfortunately, the ICTY and ICTR are widely criticized for their lengthy dockets, slow pace, inadequate procedures, high expense, and lack of connection to the societies where the crimes were committed. Rwandans have been said to have felt no ownership in the ICTR, and many of the ICTR staff members had never been to Rwanda.550 The ICTY and ICTR share a dismal record of operating for 10 years each, costing at least $100 million per total proceedings, and sharing fewer than 30 indictments between them.551

Statute at the Rome Conference on the very last day. Although President Clinton signed the Statute, he recommended that the George W. Bush Administration not submit it for Senate ratification. The George W. Bush Administration took the ICC opposition a step further, declaring that the U.S. had “no legal obligations (to become a party to the Court) arising from the signature of December 31, 2000.” See Letter from John R. Bolton, U.S. Undersecretary of State for Arms Control and International Security to Kofi Annan, Sec’y General,U.N. (May 6, 2000), available at http:archives.cnn.com/2002/US/05/06/court.letter.text 548 Article 3 of the Rome Statute. See http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm 549 Article 5 of the Rome Statute. See http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm; See also: United Nations Department of Public Information, December 2002. The International Criminal Court. http://www.un.org/News/facts/iccfact.htm

550Dina Temple-Raston, “Justice on the Grass: Three Rwandan Journalists, Their Trial for War Crimes, and a Nation’s Quest for Redemption.” 125 (Free Press 2005) (Contrasting the ICTY and ICTR, located in the Hague and Tanzania, which would be a two-day, four-country bus trip from Rwanda that would set the average Rwandan back nearly a month’s pay). 551International Center for Transitional Justice (ICTJ), Press Release: Creation and First Trials of the Supreme Iraqi 142

Yet, it has been argued that in a war torn and fractured society, war crime tribunals can orchestrate a de facto civil society institution552 and restore the rule of law.553 Whether the forum is the ICC or not, international legal scholar and jurist, Antonio Cassesse, argues that tribunal justice can: 1) distinguish culpable perpetrators from others of the same ethnic or other group; 2) dissipate calls for revenge by showing victims that perpetrators are being punished; 3) foster reconciliation by ensuring that perpetrators pay for the crimes; and 4) create a reliable record of past atrocities.554 Finally, the ICC specifically has had a long-term impact on U.S. law regarding claims brought by aliens under the Alien Tort Statute. The cases of the ICTR and ICTY and others have been regularly cited in U.S. court decisions. Although the Alien Tort Statute cases are often unsuccessful, if the approach is viewed more as Cassesse suggests, which is to create a record of atrocities and provide a forum where the voices of aliens can be heard, then in my view, something has been achieved. I am not arguing or advocating for increased litigation in the U.S. federal courts or elsewhere. What I am arguing is accountability and treading a bit more cautiously in a foreign country. 6.3: THE ICC'S IMPACT ON U.S. LAW Congress passed the Alien Tort Statute as part of the Judiciary Act of 1789. It has since been slightly altered, but provides in part: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Although there is no specific legislative history

Criminal Tribunal, Oct. 2005. 552 J. Peter Pham, Lazarus Rising: Civil Society and Sierra Leone’s Return from the Grave, 7 INT’L J. NOT-FOR-PROFIT, L. I, 66 (2004). 553 Nicole Fritz & Alison Smith, Current Apathy for Coming Anarchy: Building the Special Court for Sierra Leone, 25 FORDHAM INT’L L.J. 391, 406 (2001). See also Wendy S. Betts & Gregory Gisvold, Conflict Mapping: Innovation in International Responses in Post-Conflict Societies, 10 HUM. RTS. BR. 25 (2003) (noting that a society can benefit from an international tribunal by helping it to develop and strengthen its own domestic rule of law). 554 Antonio Cassesse, “Reflections on International Criminal Justice,” 61 MOD. L. REV. 1, 1-6 (1998). 143

regarding the Alien Tort Statute,555 there is historical record556 to suggest that Congress passed the ATS due in part to two high profile incidents involving assaults upon foreign ambassadors on domestic soil.557 Author E. De. Vattel in “The Law of Nations” described the “denial of justice” to one’s own citizens abroad as a justification for a country to launch a war of reprisal.558 For example, Edmund Randolph commented that, without an adequate federal forum, “[I]f the rights of an ambassador be invaded by any citizen, it is only in a few states that any laws exist to punish the offender.”559 James Madison was also said to have feared the country’s inability to “prevent those violations of the law of nations and of treaties which if not prevented must involve us in the calamities of foreign wars.”560 As described more fully in the chapter on the Alien Tort Statute, the ATS permitted the courts to hear those cases “arising under” Acts of Congress which incorporated principles of the “law of nations” into the laws of the United States or under “treaties of the United States.” Thus, an argument can be made that the origins of the ATS are only consistent with the belief that it grants the

555Trajano v. Marcos, 978 F.2d 493, 498 (9th Cir. 1992). “The debate that led to the [Judiciary] Act’s passage contains no reference to the Alien Tort Statute, and there is no direct evidence of what the First Congress intended it to accomplish.” 556In 1789, other nations did not expect our courts to provide civil remedies for disputes between their own citizens (or involving third-country nationals) that occur on their own soil. See “The Writings of George Washington From the Original Manuscript Sources, 1745-1799, Fitzpatrick, ed., Letter of George Washington to James Monroe, August 25, 1796 (“no Nation had a right to intermeddle in the internal concerns of another”) (available at http://memor.loc.gov/ammem/gwhtml/gwhome.html); United States v. LaJuene Eugenie, 26 F. Cas. 832, 847 (D. Mass. 1822) (Story, J.) (“No one [nation] has a right to sit in judgment generally upon the actions of another; at least to the extent of compelling its adherence to all principles of justice and humanity in its domestic concerns”). 557 Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784); Report of Secretary for Foreign Affairs on Complaint of Miniter of United Netherlands, 34 J.Cont.Cong. 109, 111 (1788)). 558 E. De Vattel, “The Law of Nations,” bk. II, ch. XVIII, §350, at 230-231 (Carnegie ed. trans. Fenwick 1916) (1758 ed.). 559 Letter from Edmund Randolph, Governor, Virginia, to the Honorable Speaker of the House of Delegates (Oct. 10, 1787). 560 1 M. Farrand, “Records of the Federal Convention, 316 (1911). 144

federal court subject matter jurisdiction over those claims that are brought to enforce the “law of nations,” if and only if that law has been fully incorporated into the laws of the United States. Despite the appearance that the ATS is a historical remnant, it was not meant to unleash authority to the federal courts to establish and enforce international law involving disputes arising in foreign countries or on matters to which the U.S. is not a signatory to the relevant treaty. Furthermore, the ATS is a grant of jurisdiction, but it cannot unequivocally be construed as a broad grant of authority for the courts to decipher and enforce their own concepts of international law. This cautionary view on the impact of the ATS warns of serious interference with U.S. foreign policy interests, and is based on the belief that the ATS is contrary to our constitutional history and democratic principles. As noted earlier, I am not arguing that the U.S. should open its federal courts to any foreign litigant or be used to right every wrong committed in a foreign country. Finally, since over 200 years passed until the ATS's revival in Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir. 1980), there have been 100's of new ATS cases. This revival comes at a huge cost to the U.S. federal courts. 6.4: THE ROME STATUTE AND THE ICC: The ATS has drawn criticism for its grant of jurisdiction in deciding matters taking place on foreign soil. As discussed at the beginning of this chapter on the ICC, the U.S. has opted out of the Rome Statute that created the ICC. This move makes it even more problematic that ICC cases are being cited in ATS cases despite the U.S. not granting jurisdiction to the ICC. The Supreme Court has held, a non-self-executing treaty “addresses itself to the political, not the judicial department; and the legislature must execute the treaty before it can become a rule for the Court.” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (Marshall, C.J.). As to treaties or conventions not ratified by the United States, it follows then that it should be inappropriate for the courts to adopt and enforce principles contained in instruments that the President and/or the Senate have declined to sign onto as binding on the United States, or enforceable as a matter of U.S. law through judicially- created causes of action. The argument is that only those ratified treaties of the United States, after having received the advice and consent

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of the Senate, can be subject to enforcement in a private suit resting on the jurisdiction of the ATS. Within the reference to the “law of nations” in the ATS, Congress specifically did not intend for the Judicial Branch to engage in a capricious adaptation of “customary international law,” based on sources that are neither law or customary, such as un-ratified treaties or other non- binding documents (or decisions). 6.5: THE UNOCAL MYANMAR CASE AND IMPLICATIONS FOR SIMILAR IRAQ CLAIMS In the ATS chapter, particular attention was paid to the local San Francisco decision in the Unocal Myanmar case. The case involved a cross section of the ATS and international law to address claims based on human rights abuses committed in a foreign country by both a domestic (Unocal) and international (Total S.A.) oil and gas company. In the oil chapter, there is discussion of Production Sharing Agreements (PSA’s)561 and how Iraq will be

561 “Blood and Oil: How the West Will Profit from Iraq’s Most Precious Commodity,” The Independent, January 7, 2007, for an explanation of "production-sharing agreements" (PSAs). PSAs allow a country to retain legal ownership of its oil, but give shares of profits to the international companies that invest in infrastructure and operation of the wells, pipelines and refineries. Iraq has the 3rd largest oil reserve in the world, but would be the first major Middle Eastern oil producer to accept this type of financial arrangement. Saudi Arabia and Iran, the world's top two oil exporters, tightly control their oil industries through state-owned companies which have no appreciable foreign collaboration, as do most members of the Organization of Petroleum Exporting Countries (Opec). See also Joe Conason. “New Iraq Constitution: A Pretext for Exploitation.” Salon, November 26, 2005. The 2005 Constitution asserts that “Oil and gas is the property of all the Iraqi people in all the regions and provinces and that the federal government will administer the oil and gas from oil fields with the revenues to be distributed fairly in a matter compatible with the demographic distribution all over the country.” But, that guarantee refers only to oil already in use, leaving open the future exploitation of almost 2/3 of Iraq’s known reserves (i.e., 11 known fields, 40 billion of its 115 billion barrels of known reserves). See also Noah Feldman, “After Jihad: America and the Struggle for Islamic Democracy.” New York: Farrar, Straus and Giroux, 2003. Feldman states that “[W]here oil enters the picture, so that our support is not only putatively directed at the war against terror but is also aimed to keep the energy supply cheap and steady, our actions are even more reprehensible.” 146

the first major Middle Eastern oil producer to accept this type of arrangement. PSA's will permit Iraq to retain legal ownership of the oil, but the shares of the profits will go to the international companies who invested in the infrastructure and operation of the wells, pipelines and refineries. In the Unocal case, the Production Sharing Agreement entered into by Total Myanmar and Myanmar Oil provided that “Myanmar Oil shall supply or make available security protection as may be requested by Total Myanmar and its assigns.” Unocal entered into the agreement later, but was aware of the security provision of the contract. It should be noted that Production Sharing Agreements are nearly impossible to find, but in the Unocal court documents, the PSA document is referenced. On the specific issue of the PSA, one of the more outspoken judges, Judge Reinhardt, stated that it is not essential that a formal contract existed between Unocal and the Myanmar military in order for Unocal to be held liable for the government’s actions under an agency theory. Nevertheless, if plaintiffs could prove their allegation that such a contract existed, a jury might have considerable difficulty in accepting Unocal’s denial of an agency relationship. It never got to a jury due to its early settlement. In any event, as a result of the PSA and the role of military in the project, there were a number of human rights abuses that occurred. Approximately three years after Unocal acquired an interest in the Project, Unocal President Imle met with human rights organizations at Unocal’s headquarters in Los Angeles. During the meeting, Imle acknowledged to the interest groups that the Myanmar Military might be using forced labor in connection with the project. Imle stated that “[p]eople are threatening physical damage to the pipeline,” that “if you threaten the pipeline there’s gonna be more military,” and that “[i]f forced labor goes hand and glove with the military, yes there will be more forced labor.”562 One threshold question in any ATS case is whether the alleged tort is a violation of the law of nations. The Unocal court in the 9th Circuit Court of Appeals recognized that torture, murder, and slavery are jus cogens violations

562For Publication. United States Court of Appeals for the Ninth Circuit. John Doe I, et al. v. Unocal Corporation; Total, S.A a foreign corporation; John Imle, et. al., Nos. 00-56603; 00- 57197; D.C. No. CV-96-06959-RSWL (2002). P. 14195. 147

and, thus, violations of the law of nations.”563 This is an important point when considering the earlier criticism of the ATS for including laws that have not yet become the “law of the land.” Jus cogens gets around that problem. Another threshold question in any ATS case against a private party, such as Unocal, is whether the alleged tort requires the private party to engage in state action for ATS liability to attach, and if so, whether the private party in fact engaged in state action. The Second Circuit recently adopted this approach in Kadic. The Second Circuit first noted that genocide and war crimes – like slave trading – do not require state action for ATS liability to attach. See 70 F.3d at 242- 243. The Second Circuit went on to state that although “acts of rape, torture, and summary execution,” like most crimes, “are proscribed by international law only when committed by state officials or under color of law” to the extent that they were committed in isolation, these crimes are “actionable under the Alien Tort [Claims] Act, without regard to state action, to the extent that they were committed in pursuit of genocide or war crimes.” Id. at 243-44. Thus, under Kadic, crimes like rape, torture, and summary execution, require state action for ATS liability to attach, but do not require state action when committed in furtherance of other crimes like slave trading, genocide or war crimes. In different ATS cases, various courts have applied international law, the law of the state where the underlying events occurred, or the law of the forum state. See Wiwa v. Royal Dutch Petroleum Co., 226 F. 3d 88, 105 n.12 (2d Cir. 2000). Unocal urged the 9th Circuit to apply not international law, but the law of the state where the underlying events occurred, i.e., Myanmar. Where, as here, only jus cogens violations are alleged – i.e., violations of norms of international law that are binding on nations even if they do not agree to them - it may, however have been preferable to apply international law rather than the law where the underlying events occurred or the forum state. The Court reasoned that the application of international law – rather than the law of Myanmar, California state law, or U.S. federal common law – was

563Jus cogens norms are norms of international law that are binding on nations even if they do not agree to them, See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714- 15 (9th Cir. 1992). 148

favored by a consideration of the factors listed in the Restatement (Second) of Conflict of Laws § 6 (1969). First, the “needs of the international system” are better served by applying international rather than national law. Accordingly, District Courts are increasingly turning to the decisions by international criminal tribunals for instructions regarding the standards of international human rights law under U.S. civil ATS actions. See, Cabello Barrueto v. Fernandez Larios, 205 F.Supp. 2d 1325, 1333 (S.D. Fla. 2002) (concluding on the basis of, inter alia, the statute of and a decision by the International Criminal Tribunal for the former Yugoslavia that defendants “may be held liable under the ATS for…aiding and abetting the actions taken by [foreign] military officials”); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2001) (noting that among “various contemporary sources” for ascertaining the norms of international law as they pertain to the ATS, “the statutes of the [International Criminal Tribunal for the former Yugoslavia] and the International Criminal Tribunal for Rwanda and recent opinions of these tribunals are particularly relevant”). The 9th Circuit agreed with this approach, finding that the recent decisions by the ICTY and ICTR were especially helpful for ascertaining the current standard for aiding and abetting under international law as it relates to the ATS. Regarding the first prong – international consensus – the court recognized that murder, torture, and slavery are jus cogens violations, i.e., violations of norms that are binding on nations even if they do not agree to them. Accordingly, all torts alleged in the present case are jus cogens violations. Because jus cogens violations are, by definition, internationally denounced, there is a high degree of international consensus against them, which severely undermined Unocal’s argument that the alleged acts by the Myanmar military and Myanmar Oil should be treated as acts of state. 6.6: JUSTICE REINHARDT'S VIEWS ON INTERNATIONAL LAW AND THE ATS Although the Unocal case settled after the 9th Circuit remanded it to the U.S. District Court for further rulings on the surviving claims, the impact of this case cannot be overlooked. Justice Reinhardt wrote a compelling opinion that disagreed in part with the majority opinion on the specific issue of international law. Reinhardt believed that Unocal should be held liable in tort for the Myanmar

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military’s alleged human rights violations, but disagreed with the majority's decision to apply a recently promulgated international criminal law standard of aiding and abetting to permit the imposition of liability for the lending of moral support. Reinhardt did not support applying an international law test or the doctrine of jus cogens. Rather, he believed that Unocal’s third party liability should be resolved by applying general federal common law tort principles such as agency, joint venture, or reckless disregard. Reinhardt reasoned that in order to bring an action under the ATS, an alien plaintiff must allege a tort committed in violation of the law of nations. Hilao v. Estate of Marcos,¸25 F. 3d 1467, 1475 (9th Cir. 1995). He acknowledged that there was little doubt that the use of forced labor violated widely held international legal norms and that it is banned by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant of Economic, Social and Political Rights, art. 8, 993 U.N.T.S. 3, 4; 6 I.L.M. 360. Furthermore, forced labor was listed as a war crime in the charter of the Nuremberg Tribunal. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, art. 6, 82 U.N.T.S. 280. Reinhardt opined that whether or not forced labor is a modern variant of slavery, it has no legal consequence in the case, because there is no requirement that plaintiffs state a jus cogens violation in order to obtain jurisdiction under the ATS. If the plaintiffs can prove their allegations that the Myanmar military instituted a policy of forced labor, they would satisfy the ATS requirement of a violation of the law of nations. In order to prevail on its claims against Unocal, plaintiffs would have to prove that the private entity may be held legally responsible for the Myanmar military’s human rights violations. The latter requirement raises important questions. First, under what circumstances may a private entity doing business abroad be held accountable in federal court for international law violations committed by the host government in connection with the business activities of the private entity? Second, to what body of law should the court look to in order to determine the answer?

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Reinhardt believed that logically, it is necessary to consider the second question first. In his view, the answer is that the court should look to traditional civil tort principles embodied in federal common law, rather than to evolving standards of international law, such as the nascent criminal law doctrine recently adopted by an ad hoc international criminal tribunal. Reinhardt states that it is clear from the face of the statute that international law applies to determine whether a violation has occurred. The statute is silent, however, as to what body of law applies to ancillary issues that may arise, such as whether a third party may be held liable in tort for a governmental entity’s violation of the law of nations. Reinhardt noted that the policy of the Alien Tort Statute was to “establish a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.” However, he disagreed with the court's decision to substitute international law principles for established federal common law or other domestic law principles, unless a statute mandates that substitution, or if there are other exceptional circumstances that exist. 6.7: CONCLUSION The Unocal record contains evidence that Unocal held several meetings with human rights groups both before and after it became a part of the Myanmar venture, during which time those organizations provided Unocal with documentation of the Myanmar military’s brutal treatment of the Myanmar people. Unocal also retained a risk management consulting firm prior to joining the Myanmar project, and that firm completed a report informing the company that “the government habitually makes use of forced labor,” and assessed the risk that the joint venture would result in the use of forced labor as “high.” Risk Consultant Haseman told Unocal that “[t]he most common [human rights violations] are forced relocation without compensation of families from land near/along the pipeline route; forced labor to work on infrastructure projects supporting the pipeline…; and… execution by the army of those opposing such actions.”564

564 For Publication. United States Court of Appeals for the Ninth Circuit. John Doe I, et al. v. Unocal Corporation; Total, S.A a foreign corporation; John Imle, et. al., Nos. 00-56603; 00- 57197; D.C. No. CV-96-06959-RSWL (2002). P. 14195. 151

Judge Reinhardt states in his opinion that he agrees with the Second Circuit’s holding in Kadic v. Karazdic, that under the ATS, a plaintiff may recover for wrongs that occur ancillary to a violation of international human rights law as part of the claim for the primary violation. 70 F.3d 232, 244 (2d Cir. 1995) (holding acts of rape, torture, and summary execution committed in connection with genocide or war crimes to be actionable under the ATS). But, Reinhardt suggests that the jury should be instructed to apply the three common law theories of third party liability in tort cases, rather than the international criminal law doctrine of aiding and abetting, including by means of moral support, recently announced by the ad hoc War Crimes Tribunals for the Former Yugoslavia and Rwanda. The hoped for result of cases such as Unocal is the interplay between international and domestic law that is forcing accountability for the corporations. The risk, as explained in the first section, is that allowing ATS cases to proceed in the U.S. can lead to objections from the foreign nations where the alleged injury occurred. The ATS Chapter discussed in greater detail the issue of forum non conveniens where the court can find that another forum may in fact be more appropriate. For this writer, it is not important so much to focus on whether a dismissal is appropriate, rather the value is in what becomes part of the record of the case. It cannot always be the case that Production Sharing Agreements will escape being part of the record, or that the reports prepared by the risk consultants will as well. When the judges are citing sections of these sensitive documents in their opinions, the public will have a chance to know the inner-workings of the companies and the agreements they are making with the host-country governments. The result of the increased accountability should be more careful business practices or corporate social responsibility as these companies purportedly attest to subscribe to. At the time of this writing, the cases involving Iraqi claims have been very limited and to a large extent have been dismissed on forum non conveniens grounds. But, that will not always be the case. There will inevitably be another case very similar to the Unocal case alleging similar claims. Due to the nature of the resources involved (i.e., oil and gas), and the claimed necessity for protecting the rights of the businesses involved (i.e., military, and/or private military contractors), the perfect

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storm has been brewing outside the U.S. courts for years now. The question is not when these cases will appear in the federal courts, it is whether the U.S. courts (already sagging due to the volume of the cases on their dockets) are prepared to handle them.

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CHAPTER 7 CONCLUSION 7.1: INTRODUCTION What is most concerning throughout this ongoing process of “rebuilding” Iraq has been the U.S. insistence on what the country of Iraq should be. The U.S. schizophrenically assisted Iraq with creating an “Islamic” democracy, wrote a new constitution that changed the oil rights of Iraq, and set up new laws and a special tribunal in order to remove any opposition from the old regime. To what extent the U.S. courts will end up being the appropriate forum for Iraqi citizens to bring claims remains to be seen. If an alternative forum is ordered, then based on the issues shown with the Supreme Iraqi Criminal Tribunal (and perhaps any domestic Iraqi court under the current conditions), perhaps the “court of last resort,”565 (the International Criminal Court at the Hague) will be the next step (if the problem of the U.S. not being a signatory to the Rome Statute is somehow circumvented). With the standard of liability for “aiding and abetting” (among others) currently being developed in international law, it is unknown whether this new standard will apply to the U.S. military, corporations and private military contractors who operated or are still operating in Iraq. Finally, as we opened the discussion with the broad sweeping powers of the Executive Branch, it seems appropriate to close with that point as well. On May 22, 2003, President George W. Bush issued Executive Order 13303. Executive Order 13303 provides a broad legal shield for any and all contractors and mercenaries working in Iraq on behalf of U.S. corporations in any oil related enterprise. President Barack Obama signed a continuation of the Notice on May 17, 2011 to offer an additional year of “protection” to U.S. citizens. Since 1789, Presidents have used Executive Orders despite there being no constitutional provision or statute explicitly permitting executive orders. There is, however, a vague grant of power in Article II, Section 1, Clause I of the Constitution which is described as authorizing the Executive to “take care that the Laws be faithfully executed” in Article II, Section 3, Clause 4.” This seems

565 http://www.icc- cpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance/

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to be one of John Yoo’s areas of specialization, but in any case, the wording has been interpreted to allow the Executive authority to issue the Orders as part of his “sworn duties”566 with the consequence of failing to comply possibly being the removal from office.567 Until the time of Truman in the 1950’s, Executive Orders were used sparingly. When the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that the Executive Order 10340 from President Truman was invalid because it attempted to make law, presidents since Truman have been careful to cite which specific laws they are acting under when issuing new executive orders. President Bush and Obama’s order does indeed cite to specific laws,568 but it is unclear whether the corporations, contractors, and all of the individuals who have been working together, in other words, “aiding and abetting” the Iraq invasion, should take this Executive Order with them to the bank. 7.2: CONCLUSION While researching for this project, I stumbled across the writings of Oscar Wilde and his story of over a century ago about the “Canterville Ghost.” While I could never seem to find the appropriate section to include Wilde’s ghost story, it continued to remind me throughout my writing of the boldness of the U.S. not only in our invasion of Iraq, but in our insistence on our western ways. Instead of imagining a British manor and the European references, I visualized that it was a formerly Iraqi “bayt” (Arabic for “home”) and the Americans had come to live there. The “Canterville Ghost” haunted a stately British manor and terrified its European denizens, rattling his chains at night and leaving bloodstains on the carpet. When the Otis family arrived from America and bought the Canterville Chase manor, they were undaunted by the ghost. Mr. Otis scoffed when buying the manor: "I will take the furniture and the ghost at a valuation. I come from a

566 Mississippi v. Johnson, 71 U.S. 475 (1866), The Supreme Court’s decision held that the President has two kinds of tasks to perform: ministerial and discretionary. Executive Orders help facilitate the execution of the Executive’s ministerial duties. 567 Myers v. United States, 272 U.S. 52 (1926), Majority Opinion. 568 See Executive Order 13303, Federal Register, Vol. 68, no. 102, dated Wednesday, May 28, 2003 and Vol. 76, No. 97, dated, Thursday, May 19, 2011. 155

modern country, where we have everything that money can buy; and with all our spry young fellows painting the Old World red, and carrying off your best actors and prima- donnas, I reckon that if there were such a thing as a ghost in Europe, we'd have it at home in a very short time in one of our public museums, or on the road as a show." The ghost does his best to frighten the Otises, but they nonchalantly barrage the ghost with American technology, commercialism, and fearlessness. When the ghost rattles at the bedroom door in the middle of the night, Mr. Otis springs up, shoves a bottle of Tammany Rising Sun Lubricator into the ghost's skeletal hands, brightly advises the ghost to use the oil to stop his chains from squeaking, and calmly returns to bed. Mr. Otis applies Pinkerton's Champion Stain Remover and Paragon Detergent to remove the bloodstains in the library. The Otis children fearlessly chase the ghost about the house. Unable to scare the Americans, the European ghost ultimately capitulates and falls on the mercy of the Otis daughter, who guides his guilty soul to a final resting place where his haunting days can end.569 As the “Canterville Ghost” illustrates, the Americans are quite confident in their claims of superiority over foreigners. The U.S. occupation was an opportunity (if one is able to view it that way) to allow two nations to learn principles from each other. Clearly, as the Supreme Iraqi Criminal Tribunal, the new oil laws, the constitution and the introduction of democracy demonstrate, the result has been instead a gross imbalance of power. It is my hope that these chapters candidly described how redefining law, starting first with the declaration of war by the U.S., and then followed by the actions taken to extract Iraq’s leaders and resources, provided the reader with a better understanding of what the intentions for this U.S. mission might be. THE END

569 Oscar Wilde, The Canterville Ghost, COURT AND SOCIETY REVIEW, Feb. 23, 1887, reprinted in OSCAR WILDE, LORD ARTHUR SAVILE'S CRIME AND OTHER PROSE PIECES (1908), reprinted in 9 THE FIRST COLLECTED EDITION OF THE WORKS OF OSCAR WILDE, 1908-1922, at 65-119 (Robert B. Ross ed. 1969). 156