Opinio Juris

Washington & Lee Law School (where I teach) recently has elected to make the third-year of its JD entirely experiential. This means a balance of clinic, externships, service, and, most importantly, practicum courses taught by permanent faculty. What is the relationship between our reforms and international law? In a recent post, Roger Alford opines they will lead to the "marginalization" of international law, which he characterizes as an "elective".

I do wish Roger had contacted Rick Kirgis or me before posting such inaccuracies. The reality couldn't be more different. The conversation we at Washington & Lee have undertaken about the pedagogical product we deliver has led us to rethink our first year, along with the "elective" nature of international and comparative law more generally. Our Curriculum Committee has just unanimously voted to implement a mandatory three-credit Transnational Law course in the first-year of our JD. This Transnational Law course pursues an integrated approach to international and comparative law. Since all students would take this course, that means they can devote their second and third years to the large number of specialized courses, theoretical research seminars, and practicum courses we offer. Keep your fingers crossed that the full faculty gets on board! I'm optimistic. If so, we would be ahead of the curve in the mainstreaming of our field.

As a result of this conversation, we have just hired four new internationalist scholars to our permanent faculty. We are very excited to have them joining us in July. We also have hired a clinician, a VAP, and a professor-of-practice with international law teaching commitments. Moreover, through our Transnational Law Institute, which was inaugurated in 2006, we offer internships abroad, a speakers' series (thus far including two ASIL Presidents), visiting scholar opportunities, and intensive courses.

Whatever one thinks of the merits of injecting more experiential learning into the JD curriculum, to conclude that such a move would threaten international law reflects an odd nervousness about the place of our field in the curriculum. Moreover, to assert - as Roger does - that international and comparative law is ill-suited for experiential learning demonstrates a lack of imagination. Our students are assisting defense lawyers in the ECCC, helping implement a UN mandate for rule of law through instruction and in-country work in Liberia, going to produce memos and assistance for public defenders in Iraq, and - with our new hires - actively jumping into litigation experiences regarding climate change and women's rights in Africa. I am not saying there is no debate on the merits of experiential learning - far from it - and it is a debate that itself only can be informed by experience. What I am saying is that there are more ways to teach international, foreign, and comparative law than simply through classroom lectures, Socratic method, and research seminars.

An Iraqi judicial committee has dismissed terrorism-related allegations against Associated Press photographer Bilal Hussein and ordered him released nearly two years after he was detained by the U.S. military.

Hussein, 36, remained in custody Wednesday at Camp Cropper, a U.S. detention facility near Baghdad's airport.

A decision by a four-judge panel said Hussein's case falls under a new amnesty law. It ordered Iraqi courts to "cease legal proceedings" and ruled that Hussein should be "immediately" released unless other accusations are pending.

The U.S. military referred the case in December to an investigating judge, who reviewed the evidence and submitted his findings to the Central Criminal Court of Iraq to determine whether the case should go to trial.

In February, however, parliament approved a law providing amnesty to those held for insurgency-related offenses — including detainees such as Hussein who have never been convicted.

The committee from the Iraqi Federal Appeals Court ruled Monday that allegations against Hussein were covered by the Anti-Terrorist Law and were subject to the amnesty law.

U.S. military authorities have said a U.N. Security Council mandate allows them to retain custody of a detainee they believe is a security risk even if an Iraqi judicial body has ordered that prisoner freed. The U.N. mandate is due to expire at the end of this year.

Also, the amnesty committee's ruling on Hussein may not cover a separate allegation that has been raised in connection with the case.

[snip]

In response to a question from the AP, Pentagon spokesman Bryan Whitman said it "will be up to officials in Iraq" on whether to release Hussein. The decision, he said, will be "based upon their assessment as to whether he remains a threat."

Under Iraq's 2-month-old amnesty law, a grant of amnesty effectively closes a case and does not assume guilt of the accused.

Hussein has been held by the U.S. military since being detained by Marines on April 12, 2006, in Ramadi, about 70 miles west of Baghdad. Throughout his incarceration, he has maintained he is innocent and was only doing the work of a professional news photographer in a war zone.

The amnesty committee's decision covers various allegations by the U.S. military against Hussein, including claims he was in possession of bomb-making material, conspired with insurgents to take photographs synchronized with an explosion and offered to secure a forged ID for a terrorist evading capture by the military.

The committee may still be reviewing a separate allegation that Hussein had contacts with the kidnappers of an Italian citizen, Salvatore Santoro, whose body was photographed by Hussein in December 2004 with two masked insurgents standing over Santoro with guns.

[snip]

The amnesty committee — or any Iraqi institution — cannot force the U.S. military to release or turn over any of the estimated 23,000 detainees it holds in Iraq. But a provision in the amnesty law states that the Iraqi government "is committed to take the necessary measures to move the arrested people" from U.S. control.

Other than the terrorism charges, the military had questioned the photographer’s presence on the scene following the abduction and killing of an Italian, Salvatore Santoro. I worked as Bilal Hussein’s counsel in 2006, and during this time I conducted a comprehensive review of the very vague allegations surrounding Santoro’s death, reviewing the documentary evidence with experts and interviewing the available witnesses. The AP photographer had been stopped with others at a check point and asked to take “trophy photos” of Santoro, who had been killed earlier in the day. A study of the photos and examination of other witnesses bore out the account, and military investigators also acknowledged off the record that there was no real basis for charges. But they continued to raise them nonetheless — apparently because they were under relentless pressure to come up with some charges.