Current discourse on international human rights leaves little room for self-satisfaction about near-universal acceptance of wide-ranging normative frameworks with a global and regional scope. Recent times have witnessed growing academic concern with the “impact” or “effect” of international human rights treaties on the de jure and de facto legal position in state parties. These concerns are embedded in bigger and more enduring questions about the nature of state obligations under international law (including those derived from “nonbinding norms”) and compliance with them. However, general questions about obedience to international law have been replaced by attempts to answer the question whether human rights treaties in fact “make a difference.”

As military commissions have been revived in the wake of the attacks of September 11,2001, interest has grown in the history of the institution. The United States Supreme Court, in Hamdan v. Rumsfeld, sketched out some historical notes and set forth a tripartite division between law-of-war commissions, martial law commissions, and occupation tribunals. Various authors have advanced insights on this history, though most have focused on the prominent episodes, particularly the handful of Supreme Court cases. Even the most comprehensive article gives short shrift to the massive employment of commissions in the Reconstruction era and in postwar Germany. This essay attempts to advance the cause by sketching out the entire scope of the institution’s history and indicating what further research would have to be done to arrive at a truly comprehensive treatment. A basic difficulty is that the work product of military commissions is not encompassed in a series of trial reports like the Federal Supplement or the military’s own Court-Martial Reports. A handful of cases wound up in the Supreme Court and another half dozen stood out enough to attract historians’ interest. Otherwise, commission proceedings are memorialized, if at all, only in military general orders and records of trials that were maintained in the Office of the Judge Advocate General. I have explored the records pertaining to commissions in the Reconstruction period following the Civil War in anticipation of writing a comprehensive article. It is a difficult and time-consuming task. To complete the picture, similar pick-and-shovel work would have to be done on such extensive use of the commission as occurred in Germany after World War II. Both the Civil War-Reconstruction period and the German occupation produced thousands of trials.

There are many important aspects to the 2006 Military Commissions Act, most of which are covered in the contributions of others to this Agora. I will focus on the amendments made by the Act to the earlier War Crimes Act, which set forth criminal sanctions for various violations of international humanitarian law. These amendments, which were ostensibly designed to remove ambiguities in the existing law, have the effect of raising questions about United States implementation of the 1949 Geneva Conventions that need to be resolved by the executive branch or, if necessary, by further action of Congress.

Over five years have passed since President George W. Bush issued the much-criticized order making an obscure device, military commissions, the primary tool for the United States to bring accused Qaeda terrorists to justice. Some legal scholars suggested in the wake of the issuance of that order that military commissions were the only practicable method available to address many of the problems presented by the trial of accused terrorists in civilian U.S. courts. True or not, it is clear that the decision to approach the problem of terrorists primarily in terms of war rather than crime continues to have far-reaching legal consequences. Following the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that the military commissions designed by the Bush administration were inconsistent with the requirements of both the Uniform Code of Military Justice (U.C.M.J.) and the law of war as incorporated in that statute, the U.S. Congress attempted to fashion a compliant charter for these commissions through the Military Commissions Act of 2006 (MCA).

The Military Commissions Act of 2006 (MCA) was precipitated by several of the United States Supreme Court’s holdings in Hamdan v. Rumsfeld. First, the administration perceived the need to respond to the Court’s invalidation of the military commissions established pursuant to the president’s Military Order of November 13,2001, as contrary to Congress’s stipulation that such tribunals conform to the laws of war. In addition, the Court’s holding that common Article 3 of the Geneva Conventions applies to the conflict with Al Qaeda carried important implications for other national security policies. Most important, the Court’s interpretation of the scope of common Article 3 imperiled the president’s program for the interrogation of Qaeda detainees because that article prohibits cruel and degrading treatment and violating it was a criminal offense under the War Crimes Act.

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). At <http://www.icj-cij.org>.

International Court of Justice, December 19, 2005.

In its December 19, 2005, judgment in Armed Activities on the Territory of the Congo v. Uganda (Democratic Republic of the Congo v. Uganda), the International Court of Justice (ICJ) found Uganda to have engaged in grave violations of the prohibition on the use of force and of its international humanitarian and human rights obligations during its occupation of Congelese territory. The Court also found that the Democratic Republic of the Congo (DRC) had violated the Vienna Convention on Diplomatic Relations for its treatment of Ugandan diplomats and also for the destruction of their diplomatic premises and the associated archives and records.

The train of events leading to this case originated in May 1997 with President Laurent-Desire Kabila's deposition of Zairean dictator Mobutu-Ssese Seko. Having come to power with Ugandan and Rwandese military assistance, Kabila was unsuccessful in his effort to remove Ugandan and Rwandese troops from the DRC (paras. 48–50). The DRC alleged that in August 1998, Ugandan armed forces invaded (para. 29) and then captured and occupied Congolese towns and territory in defiance of Kabila's decision that Ugandan and Rwandese forces should leave the DRC (para. 29–31). Further, the DRC contended that Uganda recruited, funded, trained, equipped, and supplied armed Congolese groups opposed to the Kabila government (para. 32).

Barbados/Trinidad and Tobago. Award on Jurisdiction and Merits. At <http://www.pca-cpa.org/ENGLISH/RPC/>, available at 45 ILM 800 (2006).

UN Convention on the Law of the Sea Annex VII Arbitral Tribunal, April 11, 2006.

The dispute addressed in the Barbados/Trinidad and Tobago arbitration emerged during nine rounds of negotiations concerning delimitation of die maritime boundary in the western, central, and eastern sectors of their overlapping claims to the continental shelf and 200-mile exclusive economic zone (EEZ) in the Caribbean Sea (five rounds), along with associated questions posed by the continuing access for Barbadian fisherfolk to flying fish stocks south of a prospective equidistance line in the western sector (four rounds). In February 2004, according to Barbados, the prime minister of Trinidad and Tobago declared the issue of the maritime boundary “intractable” (para. 56) and invited Barbados to proceed, if it so wished, with arbitration. Barbados then invoked the compulsory arbitration provisions of Part XV, Section 2, of the UN Convention on the Law of the Sea (LOS Convention). Upon its establishment, the Annex VII Barbados/Trinidad and Tobago Arbitral Tribunal [Tribunal], which comprised President Stephen M. Schwebel and arbitrators Ian Brownlie, Vaughan A. Lowe, Francisco Orrego Vicuña, and Sir Arthur Watts, adopted its Rules of Procedure and issued four orders by year's end. After joining Trinidad and Tobago's preliminary objections to the merits phase, the Tribunal held hearings in London on October 17-28,2005. The vital interests of the two states in valuable oil and fishery resources were reflected in the high intensity of the factual and legal (both procedural and substantive) contentions forcefully disputed by the parties as represented by leading international counsel, and a number of procedurally incidental issues arose in the context of the proceedings’ confidentiality and the treatment of evidence.

Prosecutor v. Karemera, Ngirumpatse, & Nzirorera. Case No. ICTR-98-44-AR73(C). Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice. At <http://www.ictr.org>.

International Criminal Tribunal for Rwanda, Appeals Chamber, June 16, 2006.

In an interlocutory appeal in Prosecutor v. Karemera, the appeals chamber of the International Criminal Tribunal for Rwanda (ICTR) held that the commission of genocide against the Tutsis in 1994 is a “fact of common knowledge” of which trial chambers must take judicial notice (Appeals Decision, paras. 35, 38). The decision represents a significant reversal in ICTR practice: although some trial chambers have been willing to take notice of “widespread and systematic attacks” against Tutsis in Rwanda, they have uniformly insisted that the question of whether the attacks amounted to genocide is so fundamental that formal proof is required.

As noted in the indictment, Edouard Karemera and Jospeh Nzirorera were minister-level officials in the Rwanda’ interim government (Indictment, paras. 1, 3) and served, along with Mathieu Ngirumpatse, as the national executive leadership of the National Republican Movement for Democracy and Development (MRND) (id., para. 9). They are charged with, inter alia, conspiracy to commit genocide, direct and public incitement to commit genocide, genocide, and—alternatively—complicity in genocide (id.). The prosecution alleges that they created, recruited, and organized the Interahamwe, the vicious youth wing of the MRND; provided members of the Interahamwe with weapons and military training; and helped formulate and implement policies of the interim government of April 8, 1994, that were intended to incite, encourage, and abet killings of Tutsis (id., para. 14).

Prosecutor v. Milutinović et al., Case No. IT-05-87-AR108bis.2, Decision on Request of the United States of America for Review.

Prosecutor v. Milutinović et al., Case No. IT-05-87-AR108bis.l, Decision on Request of the North Atlantic Treaty Organisation for Review.

International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, May 12 and May 15, 2006, respectively.

In May 2006, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) granted the requests of the United States (U.S. Review Decision) and the North Atlantic Treaty Organization (NATO) (NATO Review Decision) and set aside the trial chamber's decision ordering the production of intercepted communications sought by defendant Dragolj ub Ojdanić. The appeals chamber held that Rule 54bis of the ICTY Rules of Procedure and Evidence does not require the possessor of intelligence information to produce that information when that state or international organization is not its owner or originator and that an order under Rule 54bis (“Orders Directed to States for the Production of Documents”) will not issue when a party refuses a state's cooperative efforts to provide information pursuant to Rule 70 (“Matters Not Subject to Disclosure”).

Commission of the European Communities v. Ireland. Case C-459/03. Jud gment. At <http://eur-lex.europa.eu>.

Court of Justice of the European Communities (Grand Chamber), May 30, 2006.

On May 30,2006, the Court of Justice of the European Communities (ECJ) ruled on Case C-459/03, Commission v. Ireland, brought by the European Commission (Commission) and alleging Ireland's failure to fulfill obligations under the Treaty Establishing the European Community (EC Treaty). In 2001, Ireland had initiated proceedings against the United Kingdom before an ad hoc Arbitral Tribunal pursuant to the Annex VII dispute settlement procedures of the 1982 UN Convention on the Law of the Sea (LOS Convention). In the present case, the Commission alleged, first, that Ireland breached Article 292 of the EC Treaty and Article 193 of the EURATOM Treaty (EA Treaty) because, by submitting the dispute to Annex VII arbitration, Ireland failed to respect the ECJ's exclusive jurisdiction on the interpretation and application of EC law. Second, the Commission claimed that Ireland had violated Article 10 of the EC Treaty and Article 192 of the EA Treaty because, by not consulting with the Commission before initiating arbitral proceedings, Ireland had hindered the achievement of the EC's tasks and jeopardized the attainment of the objectives of the EC Treaty. The Court upheld all complaints.

Aguas Del Tunari, S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3. Jurisdiction. 20 ICSID Review: Foreign Investment Law Journal 450 (2005).

International Centre for Settlement of Investment Disputes, October 21, 2005.

In Aguas del Tunari v. Republic of Bolivia, an International Centre for Settlement of Investment Disputes (ICSID) tribunal held that it had jurisdiction under the Netherlands-Bolivia bilateral investment treaty (BIT) over a claim against Bolivia brought by a Bolivian company owned primarily by two companies— one American and one Spanish—through Dutch intermediaries. The tribunal found that the Dutch intermediaries “controlled” the Bolivian company and that jurisdiction existed notwithstanding that the dispute related to a concession agreement with a choice-of-forum clause designating Bolivian courts.

The origin of the dispute lay in Bolivia's attempt in the late 1990s to privatize the water service in Cochabamba, its third largest city. In September 1999, Bolivia awarded a forty-year concession agreement to a Bolivian company, Aguas del Tunari, S.A. (AdT), for the exclusive provision of water services in the city.