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Development of the ASIL Resolution
Initiation  ( 2005.12.12 )
Preliminary Draft  ( 2006.01.06 )
Proposed Draft  ( 2006.01.27 )
Kirgis Draft  ( 2006.03.15 )
Bassiouni Amendment Proposal  ( 2006.03.16 )
Kirgis Note  ( 2006.03.18 )
O’Connell-Edwards Draft  ( 2006.03.25 )
Edwards & O'Connell Note  ( 2006.03.26 )
ASIL Resolution as Adopted  ( 2006.03.30 )
D'Amato Motion to Amend the Resolution  ( 2006.03.30 )



 
INITIATION  ( 2005.12.12 )

From: Ben Davis

To: ASIL Forum

Subject: RE: ASIL Resolution Creation

Further to discussions with Jennifer off-list,

http://www.asil.org/pdfs/ASILConstitution-Regulations.pdf

I spoke today to James Carter, President of ASIL. Article IX of the Constitution (see above link and quote below) states how resolutions are done at ASIL. A resolution would be submitted to him and Charlotte Ku for submission to the Executive Council to determine what is to be done. Resolutions are rare. ASIL is not a bar association and so it does not make resolutions like one sees more frequently from bar associations like the American Bar Association. Resolutions have been done on a few occasions - for example the Department of State stopping publication of a digest. It is best that the resolution be submitted in advance of the Annual Meeting so that the Executive Council can consider it at the meeting and have a report on it.

So, I would like some ASIL action. I would like three or more of us to submit a resolution concerning the torture, cruel, inhuman and degrading treatment issue in a manner that would be consistent with that history and the ASIL Constitution below. To do that, I would like this to be a collaborative effort and would like to invite anyone who would wish to do so to draft a very short resolution that we will all look over together and try to determine what is the best one.

Obviously, if there are other issues on which people want to make resolutions, they are free to do it. I would like to concentrate on this one trying to get to the no prisoners without names, no cells without numbers concept that seems the major learning point - at least for me - of the last 60 years about curbing state oppression.

I would like us to submit it well in advance of the Annual Meeting. I invite ideas to presented over the next two weeks in this forum.

Best,

Ben

ARTICLE IX

Resolutions

All resolutions relating to the principles of international law or to international relations which shall be offered at any meeting of the Society shall, in the discretion of the presiding officer, or on the demand of three members, be referred to the appropriate committee or the Council, and no vote shall be taken until a report shall have been made thereon. Resolutions may be submitted for consideration by the Executive Council in advance of any meeting of the Society by depositing them with the Executive Director not less than 15 days prior to the meeting.



 
PRELIMINARY DRAFT  ( 2006.01.06 )

From: Ben Davis

To: ASIL Forum

Subject: RE: ASIL Resolution Creation - Preliminary Draft Cover letter and Preliminary Draft

Further to our contacts in December and thanks to the prompting of Jamie and Lisa I attach a very preliminary draft of a Resolution on International Law and the Global War on Terrorism as well as a preliminary draft cover letter to be addressed to James Carter of the American Society of International Law.

My philosophy has been to try and draft something that is not too technical but speaks to the essence of what I have understood from our discussions and what I have read. I emphasize that this is a preliminary draft (most of it came to me in the middle of the night last night).

I welcome all of your comments on the drafts. In that regard, I have numbered paragraphs for ease of reference in both the letter and the resolution. I want to emphasize as much as I can that I sincerely hope that this can be as broad a collaborative effort as possible -- and that we do it quickly as I do feel it is important that this be done well and now. So I ask that you each think about this and feel free to make suggestions for changes and improvements.

My personal goal is that the final version could be submitted to Jim on Monday, January 23, 2006. That would mean that comments would be appreciated on or before January 16, 2006 or in about ten days.

I want to reiterate a concern I have for our foreign colleagues in light of the warrantless eavesdropping that has been revealed. I can well understand that they might refrain from wishing to comment. Their courage, as well as all others, in deciding to comment or adhere to a final version would be of great moment, quite moving, and deeply appreciated.

For those who are not members of the ASIL, I wish to encourage you to join so that the list of members in the final version of the letter is as lengthy as possible. Please feel free to consult widely on what should be said.

I hope that discussion of drafts can be done on the ASILforum list (an open list) as a work space, but also recognize that some persons may wish to discuss this offlist. I would note that speed as well as meritorious transparency is encouraged through having a discussion, if desired, onlist.

Below, I print the preliminary Draft (A) and then after that preliminary draft cover letter (B).

Thank you for your attention to this.

Ben

Benjamin Davis
Associate Professor of Law
University of Toledo College of Law
2801 W. Bancroft Street Toledo, Ohio 43606


A. American Society of International Law Resolution on International Law and the Global War on Terrorism Preliminary Draft (January 6, 2006 version)

American Society of International Law Resolution on International Law and the Global War on Terrorism

(1) WHEREAS it is self-evident that all men and women are created equal and are endowed by their Creator with certain inalienable rights among them being life, liberty, and the pursuit of happiness.

(2) WHEREAS the United States of America - as are all nations - is a subject of international law with rights and obligations arising under treaties, customary international law, and general principles of law common to states.

(3) WHEREAS international law is integrated in the United States of America constitutional law, foreign relations law, military law and other federal as well as state law.

(4) WHEREAS the United States of America is at war in the Global War on Terrorism.

(5) WHEREAS issues of international law are central to the proper conduct of that war in the defense of the nation.

(6) WHEREAS it is the sense of the Society that it is important to draw the attention of all states and non-state actors to certain fundamental aspects of international law at this time of grave peril to the world community.

(7) WHEREAS the regulations of the American Society of International Law ("the Society") authorize the adoption of resolutions pursuant to Article IX, to wit:

ARTICLE IX
Resolutions

All resolutions relating to the principles of international law or to international relations which shall be offered at any meeting of the Society shall, in the discretion of the presiding officer, or on the demand of three members, be referred to the appropriate committee or the Council, and no vote shall be taken until a report shall have been made thereon. Resolutions may be submitted for consideration by the Executive Council in advance of any meeting of the Society by depositing them with the Executive Director not less than 15 days prior to the meeting.

WHEREAS this resolution has been submitted by at least three members to the Executive Director by e-mail dated (fill in date) which is more than 15 days prior to the annual meeting of the Society.

(8) WHEREAS this resolution has been the subject of a report made (fill in date).

(9) WHEREAS the Executive Council has deliberated on this resolution at its session on (fill in date).

IN CONFORMITY WITH THE SOCIETY’S REGULATIONS, IT IS RESOLVED AS FOLLOWS:

1) Each state has a right of self-defense within the United Nations Charter and other international law. While the contours of said right are a subject of debate in a case-by-case manner, the consequences of the illegitimate resort to military force are serious. We are concerned that the Federal Government of the United States may have made an illegitimate resort to military force, particularly in Iraq, as a matter of international law. We draw all world leaders attention to the consequences of any determination of said violation and urge restraint on all actors -- both state and non-state actors -- to avert a conflagration.

2) The laws of war and occupation apply to the United States of America and all states. As regards present operations in Iraq, Afghanistan and elsewhere we urge all branches of the United States Federal Government to conform the actions of the United States to its international legal obligations.

3) In particular, the Geneva Conventions as regards Prisoners of War ("Geneva III") and Civilians ("Geneva IV") apply fully in all theaters of this armed conflict. All conduct by any branch of the United States Federal Government to limit their application and the application of other rules of international humanitarian law, international human rights law, or international criminal law are illegitimate.

4) Torture and cruel inhumane and degrading treatment of any persons in the custody or control of the United States of America or other states are violations of international law. Recent efforts of the branches of the United States Federal Government have not gone far enough in conforming United States Constitutional and Foreign Relations Law and practice to this international obligation. We call for renewed effort.

5) The use of obfuscation through euphemisms such as failed states, aggressive techniques, coercive interrogation, humaneness etc to frame policy as regards persons in custody or control is deplored. All branches of the United States Federal Government and non-governmental actors are required to adhere to the standards enumerated in international law that forbid torture, and cruel, inhumane and degrading treatment of people without exception. In determination of interrogation techniques, rather than improvising, great attention should be paid to determinations of prior international tribunals as to what constitutes torture such as the International Military Tribunal at Tokyo.

6) Secret detention is fundamentally repugnant to international law and illegitimate whoever does it and wherever it is done. Gulags are urged to be dismantled immediately whatever the location, whatever the rationale, and whom ever ordered or acquiesced in their creation.

7) The law of command responsibility applies to all states. For over 100 years, the United States domestic courts including military court martials have shown a surprising inability to criminally prosecute high level U.S. civilian authority from any branch of federal government and/or military general officers for violations of international humanitarian law, human rights law, and/or international criminal law. At the same time, lower level officers and enlisted persons have been prosecuted for such violations. This severe discontinuity is patent, persistent and troubling. It places our troops at risk in that civilian authority and the military leadership appear to be provided a de facto immunity from prosecution in United States domestic courts. This de facto immunity is inconsistent with the United States dejure obligations under the law of command responsibility.

8) Because of the above discontinuity, there is grave concern that the inspector generals and investigatory services of the United States Federal Government are not presently constituted to properly assure that the law of command responsibility is given full effect.

9) In a context where the United States of America declines to be a member of the International Criminal Court, United States domestic mechanisms need to be reinforced to permit such criminal prosecutions where warranted. This requirement is particularly acute for high level United States civilian authority and military general officers.

10) The United States and all other states individually or collectively should work to assure that command is held responsible in international criminal prosecution for high level civilian authority, military general officers, and the equivalent in non-state actors who violate international law, wherever the conduct.

11) A choice between security or liberty is a false choice. Security and liberty should be maintained and enhanced in a manner that is completely consistent with the United States Constitution, foreign relations law, and international law obligations.

12) As a technical matter, the warrantless eavesdropping on communications raises grave concerns as to its legality and also has a chilling effect on the work of the Society by inhibiting frank discussion with colleagues abroad. We are concerned that they will have a legitimate fear of immigration law or other reprisals for frank discussion that is needed at this time more than ever.

SIGNED


B. Preliminary Draft cover letter for ASIL Resolution on International Law and the Global War on Terrorism (January 6, 2006 version)

To: James Carter (cc: Charlotte Ku)

Dear Jim,

1) Further to our phone conversation of early December 2005, please find attached a Draft on "International Law and the Global War on Terrorism" that at least three members of the American Society of International Law ("the Society") are submitting today by this letter to the Executive Director for adoption by the Society at its 2006 annual meeting pursuant to procedures identified at Article IX of the regulations posted on the Society website www.asil.org.

2) We recognize that the Society rarely adopts resolutions and tends to await consensus prior to taking such action.

3) We feel the present time is such a rare moment and we feel that such a consensus has been reached. We feel it is important at this critical juncture that the Society speak with a firm voice to the United States of America and the world on the difficult issues in this resolution. The Draft is our attempt to assist the Society in providing consensus based leadership.

4) Signators in support of this resolution are listed below with their affiliation, whether they are a member of the Society, and the length of said membership.

5) We welcome assisting in any manner that you would deem appropriate the preparation of the report for the Executive Council. We urge that such matter be dealt with in a properly deliberative fashion. We see no impediment to these matters coming to a vote at the 2006 annual meeting.

6) We trust in the perfect good faith of the Executive Council and hope that this document, which has been the subject of open discussion on the Society ASILforum, will be adopted by your kind offices.

7) Thank you for your attention to this submission. We rest at your disposal for any further information.

Warmest personal regards,

Benjamin G. Davis

Affiliation (for identification purposes)

Current Society Member: Yes

Years of Membership: Since 2005 or 1 year

Name

Affiliation (for identification purposes)

Current Society Member: Yes

Years of Membership: Since 2005 or 1 year



 
PROPOSED DRAFT  ( 2006.01.27 )

The American Society of International Law, at its centennial annual meeting in Washington, D.C. on March 29, 2006, Resolves:

1) Each state has a right of self-defense within the United Nations Charter and other international law.

2) The laws of war and occupation ( "the laws of armed conflict" ) apply to the United States of America.

3) In particular, the four Geneva Conventions (Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; and Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949) apply to the United States of America in its armed conflict(s).

4) Torture, cruel, inhuman or degrading treatment, or secret incommunicado detention of any person in the custody or control of the United States of America and/or other States, are fundamentally repugnant to international law, and violate international law in general and, in particular, international human rights and humanitarian law.

5) All branches of the United States Federal Government and non-governmental actors are required to adhere to the standards enumerated in international law that forbid secret incommunicado detention or torture and cruel, inhuman, or degrading treatment of people without exception. In this regard, the United States of America should conform to its U.S. constitutional jurisprudence as well as jurisprudence of prior tribunals such as the International Military Tribunal for the Far East and military tribunals at Nuremberg.

6) The international law of command responsibility applies to the United States of America.

7) The United States of America should assure command responsibility for its high level civilian authority and military general officers for any violations of international law.

8) Security and liberty should be maintained and enhanced in a manner that is completely consistent with the international law obligations of the United States of America.



 
KIRGIS DRAFT  ( 2006.03.15 )

Proposed substitute American Society of International Law Resolution

The American Society of International Law, at its centennial annual meeting in Washington, D.C. on March 30, 2006, Resolves:

1. Each state has a right of self-defense within the United Nations Charter and other international law.

2. The laws of war and occupation ( "the laws of armed conflict" ) apply to each state engaged in armed conflict.

3. In particular, the four Geneva Conventions ( Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; and Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949) set forth applicable rules of conduct in armed conflict and military occupation.

4. Torture, cruel, inhuman or degrading treatment of any person in the custody or control of a state violates international law. Prolonged secret incommunicado detention of any person in the custody or control of a state raises serious questions of international law, especially because there must be notice when persons protected under Geneva law are detained.

5. Standards of international law regarding treatment of persons extend to branches of national governments, to their agents, and to all combatant forces.

6. In appropriate circumstances, commanders may be responsible under international law for the acts of their subordinates.

7. All states should maintain security and liberty in a manner consistent with their international law obligations.



 
BASSIOUNI AMENDMENT PROPOSAL  ( 2006.03.16 )

From: Cherif Bassiouni

To: ASIL Forum

Dear Colleagues,

I join Jose Alvarez in congratulating Ben Davis on his initiative, and all who have contributed to the Resolution. I tend to support Jordan’s version because I think it is more biting than Kirgis’.

I would also like to take this opportunity to raise a question which may be peripheral to the Resolution, but also quite related. That is, the legal responsibility of government lawyers who have provided advice which goes clearly against existing U.S. law under Title 10 and Title 18, as well as under the Geneva Conventions and the CAT. I am sure you will all remember the Justice Case in the Subsequent Proceedings, where members of the legal profession were held to be responsible under international law for having used their legal talent in a manner that clearly violates the spirit of the law. At the risk of sounding presumptuous, I am taking the liberty of attaching herewith copy of a draft article soon to be published by Case Western which addresses some of these questions.

If at all possible, I would recommend one more item, such as what follows:

"Members of the legal profession in the United States who have taken an oath to uphold the Constitution of the United States and its laws are bound by this oath and by the ethics of the legal profession not to wantonly distort the meaning of international treaties and the obligations of the United States under such treaties at the risk of being found responsible for violations of international law and United States law."

The text was hastily drafted and it can of course be improved, but I think we should send a strong signal to our colleagues and fellow members of the profession.

Thank you all for your consideration.

Cherif



 
KIRGIS NOTE  ( 2006.03.18 )

Note from Rick Kirgis on the alternative to Professor Davis' resolution:

Perhaps it will help to clear the air if I attempt to set out, briefly, what motivated me to offer a revised version of Ben Davis' resolution for the Executive Council's consideration.

First, I thought that Professor Davis' proposed resolution raised such important issues that this might well be one of those rare occasions when the Society should take a position. But I also thought that two things, in particular, about his resolution could stand in the way of satisfying the third condition of the Executive Council's April 1966 policy statement, which continues to be the "administrative law" of the Society on taking positions. The third condition requires that "There is no significant disagreement within the Society as to the desirability of the proposed action."

The first problem I saw was the inclusion of secret incommunicado detention in the same category with torture, cruel, inhuman or degrading treatment. The issues surrounding incommunicado detention seemed to me to be quite a bit more complicated than those relating to torture or inhuman treatment. To take just one indication of that, the detention provisions of the ICCPR, unlike the provision on torture and inhuman treatment, are not among the Covenant's non- derogable provisions. Consequently I thought that consensus within the ASIL would be more readily achieved if we separated out incommunicado detention without simply passing it off. I hope that the second sentence of paragraph 4 in the alternative resolution serves that purpose.

The second problem had to do with the original resolution's repeated singling out of the United States. I was aware and still am aware, of course, that reports of conduct by or at the behest of the United States government lay behind the resolution, and I, too, am deeply troubled by those reports. At the same time, if the reports are accurate, other governments are complicit in at least some of the troubling conduct. Moreover, even apart from anything the United States may be doing, more than a few other governments have been charged with torture, inhuman treatment and other egregious conduct in recent times. Consequently I thought it best not to mention the United States explicitly, knowing that anyone reading the resolution would be fully aware that it was motivated by the reported U.S. conduct.

My hope is that the substitute resolution, based as it is on Professor Davis' original resolution, might achieve a considerable degree of consensus within the Society, without sacrificing the opportunity to make significant points about the relevance and applicability of international law when egregious conduct occurs.



 
O’CONNELL-EDWARDS DRAFT  ( 2006.03.25 )

The American Society of International Law, at its centennial annual meeting in Washington, D.C. on March 30, 2006, Resolves:

1. Resort to armed force is governed by the Charter of the United Nations and other international law ( jus ad bellum ).

2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949 and other international law ( jus in bello ).

3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.

4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.

5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.

6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.

7. All states should maintain security and liberty in a manner consistent with their international law obligations.



 
EDWARDS & O'CONNELL NOTE  ( 2006.03.26 )

To: Jim Carter, Jose Alvarez, Rick Kirgis, Charlotte Ku

CC: Ben Davis, Harold Koh

Dear All,

Attached is a Draft that we hope the Executive Council will consider as a substitute for the "Kirgis" alternative to the draft submitted by Ben Davis on behalf of members and non-members (hereinafter the "Davis" draft).

We drafted the attached resolution to try to bridge the "Kirgis" and "Davis" resolutions. While these were the starting points, we believe that resolutions adopted by the American Society of International Law should satisfy the following criteria in addition to those set forth in regulations and decisions of the Society:

1. The resolution should deal with matters of truly fundamental importance.

2. The resolution should in all respects accurately state international law.

3. The resolution should have elegance appropriate to a public statement by the Society.

Changes from the "Kirgis" draft, among others, include the following:

1. Paragraph 1 refers generally to resort to armed conflict, citing the Charter of the United Nations. This change makes the paragraph parallel with the next paragraph, also of a general nature.

2. Paragraph 3 makes clear that the prohibitions of torture and cruel, inhuman, and degrading treatment are non-derogable. This reference also distinguishes torture from detention. As Rick rightly points out in his ASIL Insight, states may derogate from detention rules.

3. Paragraph 4 dealing with prolonged, secret, incommunicado detention is likely to engender the most debate. The penultimate draft of the "Davis" Draft of January 24 contained this language: "Secret incommunicado detention is fundamentally repugnant to international law," which was subsequently changed in the Draft formally transmitted by Professor Davis. The attached text adds "prolonged" to secret and incommunicado detention and states that such detention is prohibited under international law. This is an accurate statement of the standard in both international human rights law and international humanitarian law. Prolonged, secret, incommunicado detention violates the Third and Fourth Geneva Conventions. In peacetime, even if a state formally derogates from human rights obligations regarding detention, those derogations are to be temporary generally and even during the emergency secret, incommunicado detention may not be prolonged. The Inter-American Court of Human Rights has found 30 days of incommunicado preventive detention to be too long during an emergency. Authorities also indicate that at least a judge must be notified of detentions, but as the evidence of this requirement, which would prohibit secret detention, is not as strong as that against prolonged, secret, incommunicado detention, we think the paragraph as written is a conservative and accurate statement of general international law.

4. Paragraph 6 is a significant revision of both the "Kirgis" and "Davis" drafts.

We hope that the attached Draft will aid in the achievement of a broad consensus.

Rich Edwards & Mary Ellen O’Connell



 
ASIL RESOLUTION AS ADOPTED  ( 2006.03.30 )

Under the procedure set forth in Article IX of the ASIL Constitution, the following resolution was adopted at the Annual General Meeting of the American Society of International Law on March 30, 2006.

O’Connell-Edwards Draft, supra ]



 
D'AMATO MOTION TO AMEND THE RESOLUTION  ( 2006.03.30 )

During the general session of the ASIL's annual meeting Prof. Anthony D'Amato offered a motion from the floor to the effect that "the resolution should be directed to the US government and indicate that the US should reaffirm its commitment to the following principles etc.," arguing that the annual meeting had plenary power to pass an amendment without going through channels. The President agreed that the meeting could consider such a motion and called for a straw vote. It being apparent the attendees were overwhelmingly opposed, the motion was then withdrawn.