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Please click on the link below to read about a local exoneration. Counsel for the defendant were Herman Kaufman, of Rye, NY, and Anthony DiPietro, a Pace Law alum who maintains an office in White Plains, NY.

Jamar Smythe – National Registry of Exonerations

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POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a statement issued on May 8, 2015, the ICC Prosecutor expressed concern about “the growing tensions in [Burundi] and reports that violence ahead of the [forthcoming] elections may escalate, which could lead to the commission of serious crimes falling within the jurisdiction of the International Criminal Court.” She warned that “[a]ny person who incites or engages in acts of mass violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She advised that “[her] Office, in accordance with its mandate under the Rome Statute, will be closely following developments in Burundi in the weeks to come and record any instance of incitement or resort to violence.”

As discussed in our previous post, the ICC Prosecutor proactively expressed similar concerns about elections to be held in Nigeria, warning that her Office stood ready to investigate election-related violence in that country that might provide for ICC jurisdiction.

Subsequently, reports indicated that the Nigerian elections proceeded reasonably well. Reuters reported that “[d]espite some technical glitches and the killing of more than a dozen voters by Boko Haram gunmen, the election has been the smoothest and most orderly in Nigeria’s history.” In her May 8 statement, the Prosecutor commented on the Nigerian election and stated that “[t]he recent elections in Nigeria have shown how commitment to peaceful elections by the electoral candidates can prevent mass violence.” While it cannot be determined at this time whether the Prosecutor’s statement in advance of the Nigerian elections contributed to a reasonably peaceful outcome, it may well have done so.

The Prosecutor’s statement about Burundi represents a further step in pursuit of her Office’s policy, articulated in the November 2013 Policy Paper on Preliminary Examination, to “issue public, preventive statements in order to deter the escalation of violence and the further commission of crimes.” Her statement regarding Nigeria addressed a situation in which her Office had previously commenced a preliminary investigation. Although Burundi, as Nigeria, is a State Party to the ICC Statute, the Prosecutor has not as yet opened an investigation into matters in Burundi. Accordingly, the Prosecutor’s May 8 statement represents a further initiative to also perform early warning function in line with the OTP’s prevention efforts.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The Honorable Jed S. Rakoff, Senior Federal District Judge serving on the Southern District of New York, is one of the most distinguished federal judges and one of the most outspoken on criminal justice issues. A previous PCJI post reported on Judge Rakoff’s recommendations for the process of plea-bargaining. In November 2014, the judge addressed this issue further in an article he wrote for the New York Review of Books.

Prior to assuming the bench in 1996, Judge Rakoff was a federal prosecutor in the Southern District of New York, where he served as Chief of the Business and Securities Fraud Prosecutions Unit. He subsequently entered private practice and worked, among other assignments, as a defense lawyer on securities law prosecutions.

Judge Rakoff has been a friend of the Pace Law School community. He has on several occasions judged Pace’s Grand Moot Competition. He has also mooted Pace’s International Criminal Court moot court team, drawing on his experience as an advisor to International Criminal Court prosecutors at The Hague.

In an article published in the May 21, 2015 issue of the New York Review of Books, Judge Rakoff thoroughly reviews the issue of mass incarceration in the United States. The judge recently addressed this issue further in a speech he delivered at a conference at Harvard Law School in April 2015.

The judge notes that while the population of the U.S. is about 5 percent of the world’s population, U.S. prisons house nearly 25 percent of the world’s prison population.

Judge Rakoff attributes these statistics in large part to strict sentencing laws adopted, beginning in the 1970s, by Congress and State legislatures. These laws, which included mandatory minimum sentences for both violent and non-violent crimes, were intended to reduce the high rate of violent crime the U.S. was experiencing in the 1960s and 1970s. “The dictate common to all these laws,” the judge writes, “was that, no matter how minor the offender’s participation in the offense may have been, and no matter what mitigating circumstances might be present, the judge was required to send him to prison, often for a substantial number of years.”

In the years following adoption of these laws, the U.S. crime rate significantly declined. “The unavoidable question,” Judge Rakoff says, is whether the decrease in the U.S. crime rate can be attributed – either wholly or at least in some part – to the adoption of these strict sentencing laws. Judge Rakoff reviews several analytical studies that attempt to answer this question. The judge notes that the answer to this question is especially important because of the social effect of these laws: “by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons many of whom have learned in prison how better to commit future crimes.”

Judge Rakoff’s conclusion from the evidence presented, and the claims made, in these studies is that “one cannot fairly claim to know with any degree of confidence or precision the relative role of increased incarceration in decreasing crime.”

To rebut public belief to the contrary, the judge writes that

those whom the public does respect should point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the solution to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of shared social values.

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On April 30, 2015, the U.S. Commission on International Religious Freedom (USCIRF) issued its annual report on the condition of religious freedom around the world. In this report, the USCIRF recommends, among other things, that the U.S. Government call upon the UN Security Council to refer to the International Criminal Court (ICC) the widely publicized violence attributed to the Islamic State of Iraq and the Levant (ISIL).

The USCIRF is an independent, bipartisan U.S. federal government advisory body created by Congress through the International Religious Freedom Act of 1998 (IRFA). The USCIRF’s statutory mandate includes monitoring religious freedom conditions globally and making recommendations for U.S. policy. IRFA mandates that the USCIRF base such recommendations on international human rights instruments such as the UN Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Helsinki Accords.

The USCIRF’s 2015 annual report, which covers the period from January 31, 2014 through January 31, 2015, addresses troubling humanitarian issues in 33 countries. The report gives special attention to abuses committed in Syria and Iraq by forces associated with the Islamic State of Iraq and the Levant (ISIL). It states that in both of these countries “ISIL has unleashed waves of terror upon Yazidis and Christians, Shi’a and Sunnis, as well as others who have dared to oppose its extremist views.” The report charges ISIL with responsibility for summary executions, forced conversions, rape, sexual enslavement, abduction of children, and destruction of houses of worship.

Based on these findings, the USCIRF recommends that the U.S. Government “call for or support a referral by the UN Security Council to the [ICC] to investigate ISIL violations in Iraq and Syria against religious and ethnic minorities, following the models used [by the Security Council] in Sudan and Libya.”

The USCIRF’s report and recommendations regarding ISIL (aka ISIS) are in substantial accord with the published statements of the ICC Prosecutor. As written about previously, the ICC Prosecutor has expressed her grave concern about ISIL, while noting that in the absence of a Security Council referral, her office’s ability to investigate ISIL’s activities is limited by the ICC’s jurisdictional requirements.

Related Readings:

  • U.S. Commission on International Religious Freedom, Annual Report (2015).

In a clear, well-reasoned decision, the DC Court of Appeals has held that a prosecutor’s ethical responsibility to disclose exculpatory evidence is significantly broader than the Brady standard and does not contain a “materiality” requirement. While the decision is binding only on attorneys who practice in DC it will cover many federal prosecutors.

The case came to the court based on a report and recommendation of the Board on Professional Responsibility that had recommended a 30-day suspension for a federal prosecutor who violated Rule 3.8(a) of the DC Rules of Professional Conduct. The charges arose in a felony assault case involving a drive-by shooting where the defendant filed an alibi notice. The issue was the reliability of the identification; significantly, what the prosecutor failed to disclose was that the victim had said after the shooting, at the hospital, was that he did not know who shot him. The first trial ended in a mistrial when the jury could not agree. Although after the first trial a subsequently assigned prosecutor revealed the statement, the second trial ended in a conviction.

Among his various arguments, Kline argued that his ethical obligation was co-extensive with his Brady obligation. The court soundly rejected this argument, and its explanation for why post-conviction materiality cannot be used to judge ethical conduct is notably clear and to the point. The court also surveyed the various conflicting decisions nationwide about whether the two standards are co-extensive. Meanwhile, because of a confusing sentence in the commentary to the DC rule, the court determined not to sanction the prosecutor.

Related Readings:

POST WRITTEN BY: Danielle Petretta (’17), J.D. Pace Law School & Jake B. Sher (’16), J.D. Pace Law School

“Lost causes are the only ones worth fighting for.”
Clarence Darrow

Over the weekend of April 24th 2015, Pace Law School’s Criminal Justice Society produced a one-man show starring Professor Bennett L. Gershman, one of the law school’s original faculty members, as the renowned American lawyer Clarence Darrow.  Darrow, one of the most famous trial lawyers in US history, was a vital member of the American Civil Liberties Union.

Professor Gershman stunned viewers with his impressive ability to transform a script adapted from Darrow’s memoirs and speeches into a powerfully effective and moving story. Gershman embodied Clarence Darrow’s wit and passion throughout the performance as the audience journeyed through Clarence Darrow’s career history. Throughout Gershman’s rendition, he captivated the audience. Beginning in a chair in Darrow’s office, the story commenced with his first career milestone, defending the Pullman Railway Company strikers led by Eugene Debs.  The audience followed Darrow through one of his more difficult trials in which he defended two union officials accused of murder in the dynamiting of the Los Angeles Times Building; that case nearly ruined Darrow’s career and reputation. Finally, the audience roared with laughter as Gershman depicted Darrow’s cross-examination of William Jennings Bryan in The Scopes Trial, a pivotal moment in which Darrow defended a schoolteacher against a Tennessee Butler Act banning state funded schools to teach the theory of Evolution.

Viewers unfamiliar with Darrow’s career left having acquired insight into Clarence Darrow’s personal and professional career, and an inspiring look at the character that remains among the most famous attorneys in American history.

Questions of right and wrong are not determined by strict rules of logic … as long as crime is regarded as moral delinquency and punishment savors of vengeance, every possible safeguard and protection must be thrown around the accused.
– 
Clarence Darrow, Crime: Its Cause and Treatment 283 (1922).

Related Readings:

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On April 8, 2015, International Criminal Court Prosecutor Fatou Bensouda issued a statement responding to inquiries her Office has received regarding the widely publicized violence attributed to armed forces acting on behalf of the military and political organization known as ISIS. She noted that such violence is reported to include

mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property.

The International Criminal Court is the only standing international criminal court available to investigate and prosecute crimes of an international character (such as those attributed to ISIS) when such crimes are not investigated and prosecuted by national courts. However, as a treaty-based institution, ICC jurisdiction is limited by rules consented to by State Parties relating to the alleged crimes at issue (subject matter jurisdiction) and to territorial and other requirements.

On August 15, 2014, the U.N. Security Council, acting under its Chapter VII powers took measures with respect to international peace and security and adopted S/RES/2170 (2014), condemning ISIS and other groups “for ongoing and multiple criminal terrorist acts aimed at causing the deaths of civilians and other victims, destruction of property and of cultural and religious sites, and greatly undermining stability.” Res. 2170 calls on U.N. Member States to take measures to interdict the flow of funding and recruits to ISIS. The Security Council has not as yet, however, referred the matter of ISIS-related violence to the ICC, as it could do under Article 13(b) of the Rome Statute.

The crimes allegedly committed by ISIS are of a scale and nature that would likely meet the ICC subject matter jurisdiction requirements – at least for initiating a preliminary investigation by the Prosecutor. However, that by itself is not sufficient to allow the Prosecutor, acting on her own initiative, to pursue an investigation. In the absence of a Security Council referral, either territorial jurisdiction (the alleged crimes were committed on the territory of a State Party) or personal jurisdiction (the alleged crimes were committed by a national(s) of a State Party) would need to be met.

The crimes alleged against ISIS were reported to be committed on the territory of Syria and Iraq, neither of which is an ICC State Party. Either country could nevertheless lodge an Article 12(3) declaration allowing the ICC to investigate, but at this point, neither has done so. Therefore, territorial jurisdiction is currently lacking.

As to the other alternative, the Prosecutor stated that she has information that “significant numbers” of ISIS fighters are nationals of ICC State Parties, including Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia. She noted that some of these individuals may have committed crimes within the ICC’s subject matter jurisdiction. She noted also, however, that the information available to her Office indicates that the leadership of ISIS is composed primarily of nationals of the non-Party States of Iraq and Syria. Accordingly, given the OTP’s policy to focus on those most responsible for the commission of mass crimes, the prospect of exercising personal jurisdiction over any nationals of State Parties “appears limited” and “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.”

Noting that “ISIS continues to spread terror on a massive scale in the territories it occupies,” the Prosecutor stated that she “remain[s] profoundly concerned by this situation” and that she will continue efforts, in consultation with relevant States, to gather further information. She emphasized the international community’s “collective duty … to respond to the plight of victims whose rights and dignity have been violated.”

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The New York State Penal Code provides serious penalties in situations where a defendant’s reckless conduct toward others manifests “depraved indifference to human life” and exposes a victim to “a grave risk of death.” When these elements can be proven and the victim dies as a result, a defendant can be subject to conviction for second-degree murder, pursuant to N.Y. Penal Law § 125.25(2) (McKinney 2015). When the victim does not die, the defendant can be subject to conviction for reckless endangerment in the first degree, pursuant to N.Y. Penal Law § 120.25 (McKinney 2015).

In an opinion issued on February 19, 2015, the N.Y. Court of Appeals addressed the latter situation in the case of People v. Williams, 2015 N.Y. Slip Op. 01486 (Feb. 19, 2015). In this case, a prosecutor pursued a first-degree reckless endangerment charge against Mr. Williams because he did not disclose the fact that he knew he was HIV positive to a male partner with whom he had unprotected anal intercourse on several occasions and because Mr. Williams responded affirmatively to his partner’s questions about whether it was safe to engage in unprotected sex. The defendant’s partner subsequently became very ill, was diagnosed as HIV positive, and was put on a lifetime regimen of medications to stave off AIDS.

As noted in my previous post, in recent years the Court of Appeals has restricted the application of depraved indifference charges, finding that prosecutors often pursued such charges when not merited. Of particular relevance to the recent Williams case is this Court’s decision in People v. Suarez, 6 N.Y.3d 202, 844 N.E.2d 721, 811 N.Y.S.2d 267 (2005) holding that when a defendant’s reckless conduct endangers only one person, a prosecutor must show that the defendant exhibited “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts.”

In Williams, the grand jury returned an indictment on one count of first-degree reckless endangerment, N.Y. Penal Law § 120.25, and on one count of third-degree assault, N.Y. Penal Law § 120.00(2) (McKinney 2015). Upon defendant’s motion to dismiss both counts arguing legally insufficient evidence, the Supreme Court denied the motion as to the assault charge but reduced the reckless endangerment charge from first degree to second degree. The prosecutor appealed and the Appellate Division, Fourth Department, affirmed holding that viewing the evidence in the light most favorable to the prosecution, (1) the evidence was legally insufficient to support proof of the mental state requirement of depraved indifference and (2) given favorable medical advances in treatment of HIV positive patients, the defendant’s conduct did not expose the victim to a grave risk of death.

On further appeal, several civil rights, public health, and HIV advocacy organizations submitted, or joined in, amicus briefs supporting the defendant. The Center for HIV Law and Policy, on behalf of itself and several other groups, argued in its brief that “[u]sing the criminal law to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status reinforces prejudice and undermines important government-funded HIV testing, treatment, and prevention efforts.”

The Court of Appeals affirmed the Fourth Department’s decision and held that although it had no doubt that “defendant’s conduct was reckless, selfish and reprehensible,” the evidence presented to the grand jury was insufficient to support a prima facie case that the defendant acted with depraved indifference. Reviewing the testimony presented to the grand jury, the Court found that there was no evidence that “defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate.”

Given its holding on the failure of proof regarding the required mental state element, the Court of Appeals explicitly declined to address the “grave risk” element of whether, in light of modern medical science, HIV infection creates a grave risk of death.

Related Reading:

Clarence Darrow performancePace Law School and the Pace Criminal Justice Society present Clarence Darrow starring Professor Bennett Gershman. Please join us for this once in a lifetime event and note that there will be only two performances! Suggested donation is $15 and all proceeds will benefit the Equal Justice Initiative. Don’t miss it and come and join us!

WHEN:
FRIDAY April 24, 2015 at 7:30 pm
SATURDAY April 25, 2015 at 2:00 pm

WHERE:
The Moot Court Room at Pace University School of Law, 78 North Broadway, White Plains, NY

Clarence Darrow (April 18, 1857 – March 13, 1938) was born in Ohio and attended the Allegheny College and University of Michigan Law School. He began his career as a corporate lawyer, moved on to labor law, and at the end of his legal career he was a criminal attorney defending, among others, Leopold and Loeb in Chicago presenting a defense that the two accused boys were mentally disabled and should not be sentenced to death, John T. Scopes in Tennessee who was accused of teaching evolution theory in violation of the Butler Act, Ossian Sweet in Michigan, articulating and highlighting racial prejudice throughout the trial of Mr. Ossian Sweet who was charged with murdering a white male while defending his home, or the Massie Trial in Hawaii presenting an honor killing defense in a case where two defendants were charged with murdering Joseph Kahahawai – a man who was accused of raping and beating Ms. Thalia Massie but who was believed to have escaped justice because of hung jury.

Related Readings:

On Monday, April 13, 2015 Pace Law School hosted a Symposium entitled Foundations of International Criminal Law, which was well attended by faculty, students, and staff. The symposium offered three thought-provoking discussion panels:

In addition, as part of this symposium, Prof. Jens David Ohlin delivered the 27th annual Blaine Sloan Lecture entitled The Assault on International Law based on his book of the same title. The following are two students’ reflections summarizing this riveting lecture.

 

Defection Isn’t Working Guys: Cooperation as the (First) Best Choice  

REFLECTION WRITTEN BY: Cassandra Castorino (’17), Pace Law School

Why should nation-states cooperate with one another, what role does international law play in multinational cooperation, and why is it significant? This three-part question was the fulcrum of Prof. Ohlin’s annual Blaine Sloan lecture.

Ohlin’s lecture presented an outline of his latest book, The Assault on International Law, in which he argues that international law must be complied with because the incentives to do so are present and persuasive and the benefits to be accrued are manifold and far-reaching. He avers that while it may be tempting for states to defect to gain seeming advantage (truly only a myopic one), it is international cooperation that offers the advantage for states. Abiding by international law  not only creates less risk, but it also provides for a greater reward  both in the short and long term. International institutions, conventions, and multilateral treaties, such as GATT and WTO, have already incentivized cooperation among states by reducing both the monetary and opportunity costs of cooperating, eliminating potential barriers to cooperation, and encouraging reciprocity of cooperation between competing states.

It is the United States withdrawal from international cooperation after 9/11 that triggered the need for a reevaluation of how our nation responds to its self-interests, Ohlin argues. The war against al-Qaeda brought about U.S. noncompliance with international law, particularly the torture policies and the drifting away from compliance with the Geneva Conventions, International Criminal Court, and United Nations. Ohlin urges the United States to follow his plan in order to awaken a shift from a self-motivated, minimally-gaining society, to one that willingly recognizes the value of abiding by international law. Profitability with respect to compliance of international law knows no bounds, Ohlin maintains.

Ohlin’s plan to revive U.S. compliance with international law is his own unique modification to the New Realists’ rational actors’ model that already exists in international relations theory. The New Realists’ model posits that states are sovereign and adopt their own mode of rational decision-making but that such decisions are guided only by national interests defined in terms of state power. This model is a self-motivated one – it urges states to act only pursuant to their own personal gain. Ohlin takes this plan of rationality and turns it against them. He strikes down the New Realists’ notions that states only act as rational actors when pursuing their own self-interest by redefining the ‘actor’ in the model. Ohlin suggests that states should act, not as states, but as humans, in assessing and carrying out their goals. Humans, unlike states under Realist theories, exhibit the propensity to remain faithful to the goals they devise because they know how salutary the effects will be once fully consummated. Seldom do humans reassess their main goal at each intermittent step to see whether or not defecting from their overall plan would provide for a higher return. Instead, even when humans veer off the set-out path to accomplish their goals, they only think of the end long-term goal and the high yield it will bring once carried out. In effect, the end goal exemplifies the true self-interest of the human actor.

Self-interested motivations run our world. Thus, applying Ohlin’s theory, if the effectuation of a long-term beneficial goal is motivated by self-interest, his plan works and promises gains both in the short- and long-term. If the State is kept as the actor in the rational model, however, self-interest can only be viewed through myopic, temporary gains that are sure to fall short in the long-run. If States were to adopt beneficial, long-term plans and complete the plan, as humans do, respect for and adherence to international law would likely not find itself in the precarious position it assumes today.

After hearing Ohlin’s plan of ‘human’ rationality for states, game theory notions, particularly that of the prisoner’s dilemma, immediately came to mind. By the end of his lecture, however, Ohlin successfully challenged the application of prisoner’s dilemma theory to international cooperation – now, it no longer holds in that context. The theory of prisoner’s dilemma says that although it is less risky and more gainful to always cooperate, rational actors acting in their own self-interest are still dissuaded from cooperating because there is a chance, albeit slim, that defecting provides the highest return. Prisoner’s dilemma relates to a scenario of 2 prisoners being interrogated: if both prisoners decide to cooperate and both either confess or stay silent, their time in prison will be shortened appreciably and they will likely receive the same sentencing. Conversely, if the two prisoners fail to cooperate and one confesses while the other one remains silent, the one who confesses may walk away free while the other one has to serve longer jail-time. Thus, the incentive to defect, if you think you’ll be successful, is high – one can potentially be absolved of all wrongdoing and spend no time in jail.

However, this theory only holds true if the theory of rationality is viewed through the lens of the New Realist framework. Ohlin has refashioned the self-interested rational actor model to make prisoner’s dilemma not applicable to cooperation with international law. If we apply Ohlin’s human plan of rationality to States we are dissuaded by the chance of ‘walking away free’ because, both in the short- and long-run, the defection is not as incentivized as cooperation is under international law. The natural instinct when complying with international law is to act like the human and follow through with the end goal. International law already incorporates mechanisms to discourage States from viewing defecting as beneficial. International law should be respected for all the benefits it bestows on States who choose to comply with it and the U.S. needs to give it another chance. Ironically, defecting has proven not to bring about a higher yield for our nation, bar none. It has led us astray from beneficial foreign policy goals and has  threatened our position at the apex of world influence. Defection from international law, very plainly, is not working for the United States.

My hope is that Ohlin’s cogently argued and laudably innovative thesis receives the attention, praise, and actual implementation it so merits because the potential effect it could have on our nation’s choice of which lens to view its foreign policy may bring our nation back to its heyday of exceptionalism – yet this time around, provide for a lasting exceptionalism, achieved by different, more globally salutary means.


A Look Into the Assault on International Law

REFLECTION WRITTEN BY: Joseph Moravec (’17), Pace Law School

Professor Ohlin focused on three points. First, following the attacks of 9/11, the Bush Administration (namely its various legal counsels) sought to discredit international law in order to circumvent certain obligations under international law and pursue courses of intelligence gathering, drone use in extra-judicial killing and surveillance, and the institution of torture. Second, the theoretical disillusionment with international law in academia by New Realist thinkers furthered skepticism of international law in deciding whether the United States should adhere to its international legal obligations. Professor Ohlin argues that in theory and application the Bush Administration found ways to re-write the interpretation of U.S. obligations so as to do “all that was necessary” to fight the War on Terror. Finally, Prof. Ohlin countered this thinking with the argument that, had the United States worked to adhere to international law and pursued multilateral courses of action during the initial stages of the War on Terror, we may have seen significantly greater success in both defeating Al-Qaeda, as well as preventing the rise of other terror groups such as Al-Shabab in Somalia, Boko Haram in West Africa, or more recently the Islamic State in Iraq and Syria.

While Professor Ohlin’s rebuttal of New Realist thinking is cogent, I find his argument incomplete. His argument rests on an interpretation of Rational Choice Theory, stating that the United States in the past 15 years has moved to a short-run view of rational decision making. By pursuing courses of action in short-term self-interest, the U.S. is both not winning the War on Terror, but also not obtaining the best future outcome. If the U.S. were to pursue a long-term strategy of national security, Prof. Ohlin argues, it would naturally include adherence to international law and would result in greater long-run prosperity and security.

However, the argument rests on two assumptions concerning the nature of rationality that were not fully addressed during his lecture. First, Prof. Ohlin’s argument that all international actors would follow international law because it is in their long-term rational self-interest presupposes that all international actors are interested in the same long-term ends, namely the “good of their people.” During the lecture, Prof. Ohlin examined the Netherlands and North Korea. The Netherlands have done quite well adhering to international law while North Korea is one of the poorest States in the world. Leaving aside alternative historical, geographical, and political explanations for the failures of North Korea and the success of the Netherlands, it cannot be said that the political players in the Netherlands and North Korea have the same rational framework. In the Netherlands, democracy in itself dictates the “good of the people” as the ultimate goal of political power. At least in theory, democratic elections ensure that a democratic government will act rationally toward this future interest. However, the situation in North Korea is quite different – a military oligarchy and hereditary dictatorship where elites personally choose a successor. Whatever we may think about political philosophy, we must consider the rationality of North Korean actions from the perspective of those who hold the power to make foreign policy and political decisions. From that perspective, North Korea has done quite well not adhering to international laws, which would long ago have undermined the dynasty of elites in political and military leadership, making it rational not to follow international law. It cannot be said that all international actors (States) are rationally interested in the same ends, and thus it is unlikely that all actors would pursue the same course to achieve those ends.

Second, Prof. Ohlin’s argument assumes that all international actors have the same capacity and ability for rational decision-making. A metaphor of two chess players is illustrative. When I play chess, I plan a strategy four or five moves ahead. However, Grandmaster players often calculate fifteen to twenty moves in advance. If I were to play against a Grandmaster, we would both be thinking and moving in our own long-term self-interest towards the same goal (winning), but I would likely lose because I lack the capacity to calculate far enough into the future. Thus, the capacity for rational decision making is not always equal among all actors. Rational Choice Theory presumes that both actors are capable of understanding the problem in order to reach the best possible outcome. However, as with chess players, States are unequal in their capacities for rational decision making. In the U.S., we have thousands of universities, think tanks, government institutions, free press, one of the strongest military and economy, a greater control of many vital natural resources, and the third largest population – we are, in a way, one of a few “Grandmasters” of international political actors, making us capable to rationally plan long-term. On the other hand, a State such as North Korea has limited economic and social power and thus significantly lower capacity for long-term planning. Thus, North Korea is less likely to rationally plan on the same scale as the U.S. Even if we assume that adherence to international law were the most rational course of action, North Korea may still pursue a course of action which ignores international law because North Korea may lack the resources and institutional capacity to accurately forecast the best long-term policies. In fact, it does not follow that either actor will ultimately succeed in reaching a “best” strategy. Both States have different resources and capabilities, and even the strongest State may lack the capacity to plan and execute the “right” plan.

Even if international actors are not equal, it is at least established that the U.S. is the State capable of pursuing a truly rational best strategy. If a complete adherence to international legal obligation is the most rational choice for such a strategy, as Prof. Ohlin argues, then the diversion of U.S. foreign policy from international law during the War on Terror has been a diversion from truly rational thinking. Perhaps even the U.S. with all of its resources has lost some of its capacity for long-term strategy. While the debate continues, it is a difficult task to scrutinize 15 years of U.S. foreign policy in hindsight. However, the very fact that we have an academic debate on this topic is itself a testament to the freedom to think rationally and the institutional capacity to do so that we all enjoy in the United States. We should not waste either one.

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