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Response to "United Nations an Accomplice in Hezbollah Kidnapping":
For VC readers who don't follow comment threads, I thought I would post up front my response to David Kopel's post below arguing that "the United Nations has a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers." In my view, David's argument doesn't work.

  As I understand David's post, four Indian soldiers that were part of a UN peace-keeping force were bribed by Hezbollah; they helped Hezbollah get close to a kidnapping spot and find Israeli soldiers, and then the Hezbollah members kidnapped the Israeli soldiers and later killed them. Other UN forces watched the kidnapping happen and didn't try to stop it. The UN then tried to cover up what happened.

  This is really horrible stuff, obviously. It certainly helps show -- to those who need proof -- that if you're in a foxhole you probably don't want a UN soldier there with you. At the same time, I don't understand how it supports the claim that "the United Nations has a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers."

  First of all, collaboration and accomplice liability both imply and require intent to further the act, not merely conduct that furthers or fails to impede the act. Thus the claim would have to be that the United Nations didn't just help the kidnapping occur, or didn't just sit idly by while it happened, but it actually intended its actions to further the kidnapping. I don't know if there is evidence that the four Indian soldiers actually had that intent, or that anyone else associated with the UN had that intent, but none is provided in David's post.

  Second, to the extent that there was real collaboration between Hezbollah and the four Indian soldiers, I'm not sure how we jump from four Indian soldiers doing something to the entire United Nations doing it. I recognize that there are difficult questions involved in tagging an institution with the acts of its members. But I gather from David's post that the bribed soldiers were rogue soldiers who were not following orders, rather than loyal soldiers following orders. Surely we should be reluctant to ignore the difference. To use a provocative example, consider press reports involving individual acts by U.S. soldiers in Iraq including rapes, murders, and cover-ups of those crimes. Surely it would be unacceptable to go from those stories to the broad claim that "the United States had a well-established record of raping and killing women and children."

  To be clear, I'm not saying that the UN is the greatest, or that UN involvement is the (or an) answer to the current Middle East crisis. But I don't think it helps us to paint with the broadest possible brush.

Related Posts (on one page):

  1. Accomplices, Accessories, Mens Rea, and More:
  2. Response to "United Nations an Accomplice in Hezbollah Kidnapping":
  3. United Nations an Accomplice in Hezbollah Kidnapping:
blackdoggerel (mail):
Once upon a time, this blog used to contain a mix of incisive legal commentary, clever (if nerdy) humor, and quirky trivia. Quite often it would be the source of some interesting tidbit of knowledge that most of my friends in law school or (later) clerking would invoke within a few days of its posting, because we all -- liberals and conservatives -- made it a required stop on our blog "rotation."

Lately, however, this blog seems to have degenerated into a series of rants, partisan snarkery, and overblown rhetoric. Prof. Kopel's post, about Prof. Kerr writes, is just one example. It seems that a number of posters lately are only interested in advancing a particular agenda, and posting anything vaguely related to it in support. The results are unfortunate: repetitive topics, the attraction of partisan commenters who bicker over the same tired issues (adding little to the debate), and, frankly, a loss of credibility among some of the posters when they try to fit a square peg in the round hole of their agenda. (The recent HLR affirmative action post comes to mind: a news article was posted, its datedness brought to the poster's attention, and the post restyled in an effort to initiate yet another debate over law review AA policies, or AA policies in general.)

I realize that as nonpaying blog readers, we're at the mercy of the posters, who all have busy day jobs; and as has often been said before here, if one doesn't like it, one is free to start his/her own blog. And maybe the summer doldrums are to blame for the trend of recent posts -- SCOTUS is out, law schools are on vacation, etc. But I just wanted to comment that it is a shame that this blog seems to have lessened in quality lately, though I hold high hopes that it will soon return to its former glory.
7.22.2006 12:56pm
Shangui (mail):
To use a provocative example, consider press reports involving individual acts by U.S. soldiers in Iraq including rapes, murders, and cover-ups of those crimes. Surely it would be unacceptable to go from those stories to the broad claim that "the United States had a well-established record of raping and killing women and children."

The U.S. also seems to have a well-established record of killing professional football players in its ranks, blaming the enemy, burning the evidence, and then covering up the truth for years in spite of the dilligent efforts of the football player's family.
7.22.2006 1:06pm
Can't find a good name:
Assuming all the facts in David Kopel's post are correct, then it sounds like the UN voluntarily concealed evidence of the kidnapping, including Kofi Annan himself refusing release the uncensored videotape of the kidnapping to Israel. I would say that makes the UN at least an accessory after the fact to the kidnapping.
7.22.2006 1:20pm
Dave Griffith (mail):
I'm certainly not a lawyer, but I can't imagine that intentionally withholding evidence useful to the rescue of a kidnap victim doesn't come perilously close to "accessory after the fact". It's not a question of not impeding the kidnappers, but rather a question of actively and intentionally impeding the recovery of the victims. That wasn't done by four bribed soldiers, it was done by the Secretary General's office.
7.22.2006 1:21pm
Anderson (mail) (www):
Lately, however, this blog seems to have degenerated into a series of rants, partisan snarkery, and overblown rhetoric.

It was really a remarkable moment in VC history when Prof. Kerr, who actually posts on *legal* issues 19 times out of 20, set up blog elsewhere. If, for example, David Bernstein wants to post tendentiously on Israel, that's fine, but IsraelUberAlles.blogspot.com would surely be a better venue. When he's not posting about Israel or Islam, DB actually can be quite smart (e.g., his posts on expert qualifications).

(I've actually tried to enable that block-a-VC-poster feature, but can't get it to work. Anyone else have better luck?)

--I would comment on OK's post, but its self-evidence makes that seem superfluous. Thanks for your comment, Blackdoggerel.
7.22.2006 1:23pm
Unix-Jedi (mail) (www):
Second, to the extent that there was real collaboration between Hezbollah and the four Indian soldiers, I'm not sure how we jump from four Indian soldiers doing something to the entire United Nations doing it.

That might be an isolated case. But once you start having more than one isolated case, then there's a bigger problem.
Additionally, if the UN covered up/hindered access/investigation/accountability, they're involved.
It would be greatly illuminating to contrast this with say, the abuse at Abu Ghirab. Would you say that jumping to the conclusion that the US Military had a problem is too far? How about that it wasn't worthy of President Bush's time, to worry what some low-paid reservists were doing?

Even better, let's contrast that with the facts of the Abu Ghirab investigation - by the time that the press in the US started reporting [about 4 months after the US Army had announced the arrests] it as a 'scandal', the General in charge had been relieved, everyone involved had been brigged for months, and roughly half had been dismissed from the Army, and the rest were facing hard jail time.

Which is the bigger scandal to you? I can tell you that I think AG proves our system works, and the screaming and hysteria about [the direct issue of the abuse] are either very ill-informed, or just irrational hysteria.
But the line you're drawing - the UN can't be held to account for what "UN Peacekeepers" do, then it logically follows that they're not really "UN" Peacekeepers. If you cannot project responsbility and accountability, then you have no basis for projecting authority. And what of the coverup, the tape that exists that Annan denied? Is the UN not to be held to account for that, or the lack of support they gave to Israel (the state actor) versus the non-state terrorist group?

The problem we have is for far, far, far too long, we've allowed the fiction that the United Nations has responsibility and authority, much less any moral authority.
If the UN engages in coverup [endangering people in the process] to protect a vacuous moral authority, then they've lost any claim to said authority.
7.22.2006 1:26pm
Robert Lyman (mail):
Orin,

Well, I have the bar in a few days. BarBri tells me that in Washington State, you can be held liable as an accomplice if you:

1) With knowledge that it will facilitate the crime,

2) abet or agree to aid.

Now, I think destroying/refusing to turn over evidence probably fits easily into these catagories. Inhibiting prosecution sounds like facilitating crime to me. Certainly if I see such a qusetion on the bar I won't hesitate to say just that.

It's too much to say that the UN Secretarian intended for the kidnapping to occur, but it's clear that they were engaged in an (ironically) very public coverup. The kidnappers clearly benefited greatly from that. And as Unix-Jedi points out, their behavior is very different than that of the Judge Advocate General's corps.

I often think Prof. Kopel goes a little further than I would in his rhetoric, but I think he's very close to correct here.
7.22.2006 1:44pm
PaulV (mail):
Can Israel trust the United Nations and United Nations Peacekeepers? From the above incident, No. United Nation peacekeepers have long history of corruption, sexual abuse and not keeping the peace. A dishonest UN is worthless. Why should they be involved in peace process. The Clinton administration supported the Crotian policy of ethnic cleansing of Serbs in East Crotia and ethnoc cleansing worked though painful. A failed UN means that Iarael has few viable options
7.22.2006 1:46pm
PersonFromPorlock:
What's US precedent on this? Surely there's a federal case where an employee did wrong, his company covered it up and was consequently found guilty of something.
7.22.2006 1:59pm
OrinKerr:
All,

A cover up after the fact in order to hide your negligence does not make you an "accessory after the fact." Accomplice liability requires intentionally assisting the crime -- that is, having a conscious object to bring about the success of the criminal act.

Robert Lyman, since you have the bar exam in a few days, note that the definition of "abet" is "to approve, urge, or encourage." That is, not just to objectively help, but to *intentionally* help. So feel free to say what you want on the Washington state bar exam, but if you pick David Kopel's answer you will just get that one wrong.
7.22.2006 2:15pm
Frank Drackmann (mail):
In the good old days the Massad would capture Koffi in the dead of night, spirit him back to Israel, and make an exception so that he could be hanged in capital punishment-free Israel, then strew his Ashes in international waters.
7.22.2006 2:18pm
Arvin (mail) (www):
Dunno about Washington, but according to my own BarBri understanding, an accomplice must aid or encourage the principal to COMMIT the crime.

Accomplice:
An accomplice is one who, WITH THE INTENT THAT THE CRIME BE COMMITTED, aids, counsels, or encourages the principal before or during the commission of the crime.

(emphasis mine)

Accessory after the fact:
An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.

(emphasis BarBri's)

Therefore, the U.N. (assuming you get around problems of enterprise liability) may be an accessory after the fact if the destruction of evidence stuff is true, but it cannot be an accomplice unless it the kidnapping to occur and aided BEFORE or DURING the crime.

Of course, this is all according to modern common law, which use I have yet to ascertain except for helping me pass the Bar (hopefully). And it certainly says not very much at all about the "moral" implications of the U.N.'s actions. But in terms of strict terminology, I don't think it's right to call them an accomplice based on the facts presented thus far.
7.22.2006 2:23pm
BarExamer2:
Mr. Kerr,

How do you evaluate the assertion that the Indian soldiers took bribes so that they would refrain from acting while the kidnapping took place? Would this be aid? Or even conspiracy to kidnap?

As to the UN Secretary-General, could we say perhaps obstruction of justice?

Also, I agree with blackdoggerel. I confess to having been part of the problem - re partisan posting, but I agree that this blog was better when it focused of fun stuff like legal errata.
7.22.2006 2:26pm
BarExamer2:
Arvin,

Agree with your analysis. Would add that I think the modern trend is to prosecute accessory after the fact as obstruction of justice (if I remember my lecture correctly).
7.22.2006 2:29pm
Rich Rostrom (mail):
1) There are numerous examples of UN collaboration and cooperation with Hezbollah short of explicit participation in terrorism. For instance, many UNIFIL posts in Lebanon were co-located with Hezbollah posts, with both flags on one flagpole.

2) There is evidence of UN collaboration with Hezbollah terrorism: by indifference to Hezbollah threats, Hezbollah abuse of UN insignia, and Hezbollah crimes committed in plain view of UN personnel; by suppression of evidence against Hezbollah after such crimes; and by complete failure to take any action against UN personnel involved.

3) While peacekeepers are not de jure UN personnel, they bear UN insignia, and the UN has at least influence over the member states that provide them. The UN can pressure the member state to punish misbehaving peacekeepers, or fire a peacekeeping force that doesn't. AFAIK, the UN has never or rarely done that - never in the case of UNIFIL and collaboration with Hezbollah.

So - the case Kopel cited is just the most egregious case of behavior endemic in UNIFIL and protected by the UN apparatus.
7.22.2006 2:31pm
OrinKerr:
BarExaminer2,

Generally speaking -- and I say that because it arguably depends on the jurisdiction -- the Indian soldiers would be guilty of whatever it is they intended to help. So you can't really answer the question without knowing what the Indian soldiers knew, and what they expected the Hezbollah to do.
7.22.2006 2:32pm
Jeff T (mail):
Orin,

Remember, U.N. reslution 425 calls for a U.N. peace keeping force for "the purpose of confirming the withdrawal of Israeli forces, restoring international peace and security and assisting the Government of Lebanon in ensuring the return of its effective authority in the area." U.N. resolution 1559 "Calls for the disbanding and disarmament of all Lebanese and non-Lebanese militias," which includes Hizbollah.

The U.N. has acted to undermine these resolutions by sitting idly as Hizbollah has launched numerous attacks on Israel, failing to attempt to disarm Hizbollah, allowing Hizbollah to set up camps next to U.N positions so that the U.N. provides cover to Hizbollah and having the U.N. secretary general declare reluctance to provide information about Hizbollah crimes because he did not want to put at risk the U.N.'s "neutrality." It is more than fair to say that the U.N. has a well established track record of being untrustowrthy and unreliable - and in fact helpful towards Hizbollah.

As for your argument about colaboration, I believe that intentionally destroying evidence found in the get-away cars shows that the peace keeping force intended to further the act. Almost certainly, it would establish liability as an accessory after the fact.

Moreover, the U.N.'s reluctance and delaying in sharing information reflects that anti-Israeli attitudes and actions can be found from the lowest ranks of U.N. troops to the highest levels in the U.N.

On the narrow question whether the U.N. has a well established track record with regard to collaborating with Hizbollah in kidnappings of Israeli soliders, the single incident is well established but a single incident does not establish a track record.
7.22.2006 2:39pm
Jeff T (mail):
"Generally speaking -- and I say that because it arguably depends on the jurisdiction -- the Indian soldiers would be guilty of whatever it is they intended to help. So you can't really answer the question without knowing what the Indian soldiers knew, and what they expected the Hezbollah to do."

There is also evidence that intent to help Hizbollah stretched well beyond the 4 soldiers. Remember, the U.N.'s Observer Group Lebanon (OGL) destroyed evidence. Also considered the evidence of hundreds of thousands of dollars in bribes, which is not conclusive, but is evidence that the cooperation went high up the chain of command.
7.22.2006 2:44pm
A. Rickey (mail) (www):
Well, since I'm taking the NY Bar in a few days, I figured I'd throw in my two cents.

Prof. Kerr, you're right about accomplice liability, but at least under NY law the soldiers would be guilty of criminal facilitation. Using the Restatement of BarBri, the requirements are that:
a) the facilitator knowingly aided in the crime, but did not reach accomplice liability;
b) the facilitator need only believe he was rendering aid
c) the conduct must have aided in the commission of the object felony.

Assuming the facts put forward by Prof. Kopel, it's a pretty good case for facilitation: the soldiers took Hezbollah troops to a location for the purpose of kidnapping Israeli soldiers. As for what one would get correct if one were asked that question on the bar, I can only note that facilitation seems to have been tested on past bar exams, and Kopel's fact pattern would fit a proper facilitation defense. So maybe we'll get that one right.

So I suppose one can claim: "THEY'RE NOT ACCOMPLICES TO CRIMINALITY! THEY'RE MERELY FACILITATORS!" This is not a great moral victory.
7.22.2006 2:46pm
Robert Lyman (mail):
I should note that according to the BarBri lecture (but not, WA state doesn't have "accessory after the fact" liability, only accomplice liability. Obviously that is different elsewhere.

But hey, maybe I'll lose that point if it comes up.

In any case we're splitting semantic and jurisdictinal hairs here A. Rickey has it exactly right. Accomplice, facilitator, accessory, whatever. We could get them for something.

The real problem is that that they weren't gotten for anything at all.

We now return me to my regularly scheduled PR flashcards.
7.22.2006 3:01pm
Anderson (mail) (www):
Returning to the tu quoque arguments, these interesting applications of criminal law to the U.S.'s recent adventures would result in some interesting indictments, from Bush on down.

I suspect that the application of criminal law to these issues is itself a bit more inflammatory than not.

Unless we're all agreed that the IDF's commanders should be indicted for mass murder in Beirut? No? I thought not.
7.22.2006 3:05pm
OrinKerr:
A. Rickey,

I can't say I have ever heard of "facilitator" liability. But then I don't practice New York criminal law.
7.22.2006 3:08pm
Peter Wimsey:
This is an oddly bar-like fact pattern. In my jurisdiction, the soldiers would have been guilty of the underlying offense (under an accomplice liability theory) if they were aware why they were being bribed. They would probably also be guilty of bribery and, perhaps, official misconduct. (Prerequisite for bribery and OM is that the person is a "public servant"; there is a potential double jeopardy issue with convictions for both; conviction for OM requires that the soldier perform an act that he was "not authorized by law to perform").

If they didn't know about the planned kidnapping, then just bribery and official misconduct.

The UN's later conduct *might* fall under "assisting a criminal", although the conduct would need to have been done with the specific intent to assist the soldiers in getting away with the crime. Covering up an embarrassment to the UN that had the incidental effect of also assisting the soldiers would probably not count; except for certain crimes involving children, there is no affirmative duty to report the commission of a crime. Obstruction of justice is another possible offense, but OJ only applies if there is an official investigation and you interfere with it; while this law works well in its typical application - not cooperating with a police investigation - the jurisdictional difficulties make its application questionable in this situation.
7.22.2006 3:28pm
Robert Lyman (mail):
Unless we're all agreed that the IDF's commanders should be indicted for mass murder in Beirut? No? I thought not.

There is, of course, the combatant's privilege (for which you must wear a uniform, obey the laws of war, etc). As well as immunity for official acts, if you want to talk about Bush or, say, Assad. I'd say the law has us pretty well covered on these points.

And as several people have pointed out, the US does prosecute its own for war crimes. Are you giving odds on Hezbollah doing that?
7.22.2006 3:52pm
steve k:
Anderson, if you have a specific legal argument for or against anyone please make it. You'll have to forgive me, but I honestly don't understand your general insinuations.
7.22.2006 3:56pm
KGHahn (mail):
Two simple questions.
What has the UN or any subsidiary ever done that could not have been accomplished better and more cheaply through other means?
Why are we still paying our hard earned dollars to this dictators club?

The UN cannot be reformed. You cannot reform cancer. The corruption is not fixable, it is built into the system. It is not even the major problem. The UN is the last surviving pipedream of the depression era one-worlders. The trauma of World War II gave the idea a chance to be tried. It failed. It had to fail.

You could either give it enough power to enforce its edicts, which no sovereign nation ever would, or you could end up with a debating society that had no talent except spending other people's money. Whether or not the UN helped Hesbollah in any given case is meaningless. It is designed to be sympathetic and helpful to groups like Hesbollah. It always was and always will be. The problem is not the UN's support of terrorists, it is the existance of the UN.
7.22.2006 4:00pm
A. Rickey (mail) (www):
Prof. Kerr:

New York Penal Law Sec. 115.05:

"A person is guilty of criminal facilitation in the second degree when, believing it probable that he is rendering aid to a person who intends to commit a class A felony, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony.

Criminal facilitation in the second degree is a class C felony."

So there's still some knowledge requirement: you have to reasonably believe the person is going to commit a felony. Then again, you can infer intent circumstantially, and someone saying,

"Hey, we're from Hezbollah. You're peacekeepers. Erm... would you mind showing us where we might find a nice vantage point to swoop down on some Israeli soldiers? We want to . . . erm . . . take pictures! Yeah, that's right, take PICTURES of them! We'll pay you!"


would at least get you to the jury. ;)

(Rather lighthearted, but really, if you're helping Hezbollah find where its enemies are sitting, it's a pretty strong circumstantial case.)
7.22.2006 4:03pm
AM (mail):
Not to talk too much about Israel, but here is a bona-fide legal issue, which I hope an expert blogs about.

Apparently Israelis are going to sue the Lebanese government in US courts (and seize their US assets) over damage from Hezbollah rockets. This seems like an interesting expansion of the court's ability to impact foreign matters. If such lawsuits are successful, it seems like it could lead to a tidal wave of lawsuits regarding foreign matters.

http://www.ynetnews.com/articles/0,7340,L-3278932,00.html
7.22.2006 4:16pm
Harry Eagar (mail):
This is an interesting debate, to a non-lawyer, but all it has done is reinforce my view that law is not a useful tool in disputes of this sort.

If what the UN did was not illegal, then it should have been.
7.22.2006 4:22pm
Frank Drackmann (mail):
Aren't UN officials immune from prosecution while performing duties of their office?
7.22.2006 4:26pm
Michael B (mail):
"... if you're helping Hezbollah find where its enemies are sitting, it's a pretty strong circumstantial case."

Seems reasonable. However, debates concerning stricter legalities aside, it's not as if the U.N. sex scandals, oil for bribes scandals, etc. has recieved an inordinate amount of review, either here at VC or in other outlets. Intl. law recieves a goodly amount of commentary here, so it's not as if the U.N., or transnational orgs like the U.N., are deserving of a pass in the areas noted. To the contrary.

If transnationalist orgs are going to vie for legitimacy, which is to say substantive and real legitimacy, then they cannot do so without being subjected to the same type of reviews and critiques and accountability in general as other orgs and as nation/states are so subjected. There is certainly little if any balance of powers effected, inherently, within the U.N. and other, similar transnationalist orgs.
7.22.2006 4:27pm
anonymous123 (mail):
Mr. Eager,
Other than Mr. Kerr's post, this debate seems filled conclusory analysis. It's scary to see so many people seek to decide cases based on their political point of view.
7.22.2006 4:36pm
Brian G (mail) (www):
The U.N. should move its headquarters to to so-called Palestine or one of the other Muslim places they love so much.

The blue helmet wearing "soldiers" are out raping children in the Congo, amongst many other things, while the U.N. debates human rights abuses in the U.S. Please? Why does anyone even take them seriously anymore?
7.22.2006 4:47pm
Michael B (mail):
"It's scary to see so many people seek to decide cases based on their political point of view." anonymous123

It's horrifying. I know I'm horrified.

Problem is, no one is deciding anything, the subject is being discussed, on a blog, in a manner that deigns to question received opinion and the status quo in general. What is scary is to see people attempt to short circuit a mere discussion and browbeat someone for holding an opinion. You must be an anonymous agent of the military/industrial media/technological complex? Dan Rather?
7.22.2006 4:59pm
Anderson (mail) (www):
Anderson, if you have a specific legal argument for or against anyone please make it.

My point was that "specific legal arguments" don't seem particularly helpful w/r/t the allegations of Prof. Kopel's post. Much as I would sometimes like to try nations and supranational organizations as if they were subject to the common law, that is not in fact the case.
7.22.2006 5:06pm
Vovan:
No Michael, what's scary is that opinions of some of the particiapants in the discussion, ostensibly possessing a wealth of experience, higher education and social manners, end up being quite similar to those expressed by alcoholics at the nearby grocery store.
7.22.2006 5:06pm
Jeff T (mail):
Other than Mr. Kerr's post, this debate seems filled conclusory analysis. It's scary to see so many people seek to decide cases based on their political point of view.

Or, perhaps the inverse is true and people base their view of the U.N. on cases such as the one dicussed here.
7.22.2006 5:30pm
Michael B (mail):
"The U.N. should move its headquarters to to so-called Palestine or one of the other Muslim places they love so much."

Not necessarily Muslim, but somewhere other than N.Y. would, in point of fact, be entirely fitting; closer in proximity to some of the front lines they are ever presuming to manage and pontificate upon, often enough impotently pontificate upon, would not simply be fitting, that very geographic proximity alone would help them to be held more accountable and perforce more aware of the situations and problems they seek to address. Imagine, for example, relocating the U.S. capital from Washington D.C. to Versailles or some other venue outside the country.

Too, and by contrast, continuing to give these often highly paid merchants in rhetoric, obfuscation and moral equivalencies and levelings all the comforts and diplomatic protections afforded by the U.S., while additionally paying the lion's share of the bills, seems to result in far more debits than credits. Regardless of the means, a thoroughgoing accountability is the critical, general issue needing to be addressed.

No reason to be shy about that. To the contrary, very much to the contrary indeed. Reassessments, from the basement up, are in order.
7.22.2006 5:41pm
Michael B (mail):
Vovan, exercising some of my male intuition, I'm guessing you don't intend that in a complimentary fashion?
7.22.2006 5:53pm
Frank Drackmann (mail):
Hey Vovan, Whats with the slam on alcoholics at the grocery store? Alcoholism is a disease, you pinhead, with a biochemical and genetic foundation, just like diabetes,obesity, or that sexual paraphelia you probably have. Anyway, there have been plenty of drunks with higher education,wisdom, and social manners, Winston Churchill comes to mind. It was that tee totalling vegetarian Adolf Hitler that started WW2 by the way.
7.22.2006 6:01pm
Vovan:
Frankie boy, I'm not slamming alcoholics, its just that they cannot express themselves clearly - they are drunk afterall. Now you cannot express yourself clearly even when you are sober, you can blame that on the UN.
7.22.2006 6:22pm
BarExamer2:
Vovan,
Are those the gun-toting alcoholics and vegan alcoholics?
7.22.2006 6:23pm
BarExamer2:
erm.. gun-toting or vegan
7.22.2006 6:24pm
Mike BUSL07 (mail) (www):
Vovan, it's not that alcoholics at the corner store cannot express themselves clearly - it's that we, the (usually) sober, fail to comprehend them. Drunks don't seem to have that problem with each other. On the contrary - ponimayut s polu-slova.
7.22.2006 6:28pm
Frank Drackmann (mail):
Vovan, have you quit molesting young boys yet?
7.22.2006 6:35pm
Frank Drackmann (mail):
Seriously, as this is a legal blog, we should be precise with our insults. Alcoholism,(Alcohol dependence)is an internationally recognized disease(it has an ICD code, just like Syphillis or Gonorrhoea). Alcohol Intoxication merely consists of having a certain concentration of alcohol in the blood or expired breath, or exhibiting characteristic behaviors associated with a history of alcohol ingestion. Alcoholism can be treated successfully in some cases so that an alcoholic may not have been drunk for decades(such as President Bush). Likewhise someone who is under the influence of alcohol or a drug(you, after your bf slipped you that Rufie) may not be an alcoholic or drug addict. Unfortunately, todate pedophilia remains remarkably resistant to all forms of treatment.
7.22.2006 6:52pm
Ship Erect (mail) (www):
Alcoholism can be treated successfully in some cases so that an alcoholic may not have been drunk for decades(such as President Bush).

Bush didn't receive any treatment for alcoholism; he just stopped at age 40.
7.22.2006 7:27pm
anonymous123 (mail):
Volokh is descending to garbage blog status. The good professors should go to another blog.
7.22.2006 7:29pm
A. Rickey (mail) (www):
Seriously, as this is a legal blog, we should be precise with our insults.

Hmm... I would think that it being a legal blog, we should avoid insults whenever possible.

One reason I've enjoyed this thread is that the bar-takers here have engaged in some rather amusing banter. Prof. Kerr's take on Prof. Kopel is, at its heart, really a bit silly. First of all, Kopel's accusation of "collaboration" (not really a legal term of art) doesn't necessarily match the test that Prof. Kerr is using: conspiracy or accomplice liability. (A collaborator need not be a conspirator and vice versa.) Secondly, parsing this in legal terms can't really be done without answering some rather weighty initial questions that neither party has tried to touch. As one commentator at my site put it, "Quite odd that a bunch of law professors are arguing about UN complicity and then everyone falls back on American (or Angloamerican) substantive law." I don't know if Lebanon's a code or common law jurisdiction; IIRC, India is a common law state, but the law may differ wildly from UK or US jurisprudence; and I'm certain I don't know how the choice-of-law question works itself out.

So as an actual legal matter, there's not much to the fight here: everyone's talked a bunch of rot. But it's entertaining rot. It's been nice to see the bar folks chatter about the various crimes that--if UN blue hats were policemen in New York, or public officials in Wisconsin, which of course they aren't--might be available for prosecution. Beneath that, of course, can be a relatively decent discussion of the normative values enshrined in these codes. For instance, NY seems to believe that if you sell bombing materials to someone who's hinted pretty strongly they're going to kill people with them, well, maybe you're not an accomplice, but you've certainly done something wrong. Other jurisdictions might disagree.

None of this, however, is worth insulting any other person here.
7.22.2006 7:42pm
A. Rickey (mail) (www):
I should probably mention that when I say "everyone's talking a bunch of rot," I am including myself. There's absolutely no reason to suspect that four Indian blue-hats operating in Lebanon should be held to the standards of the NY criminal code.
7.22.2006 7:49pm
guest:
The comments to these and other posts make for a compelling argument for Kerr to keep the comments on his blog moderated.
7.22.2006 8:04pm
David in DC:
The big deal here is the fact that the UN hid evidence from a member state that might have helped it retrieve one of its citizens.

The big deal is that the UN couldn't pick a side between a member state adhering to UN resolutions and a terror group breaking them.

The fact that individual soldiers were able to be bribed doesn't bother me as much with regard to the UN itself. You will find bad eggs in any large organization. UNIFIL's pattern of neglecting their mission is the bigger problem, and the UN's systematic bias is the biggest.
7.22.2006 8:49pm
Krishna:

Prof Kopel has based his argument on the story in the israelinsider. With specific reference to the involvement of Indian peacekeepers: here is a counterargument appearing in The Hindu, July 16, 2001 (this is one of India's national newspapers). I personally hope that there was no involvement of Indian troops in this sordid affair.:

http://www.hinduonnet.com/2001/07/16/stories/03160006.htm
7.22.2006 9:09pm
anonymous123 (mail):
Switching the topic,

In my opinion Volokh is going to get worse and worse. Pretty soon we will probably have a rabid pro-Arab blogger posting endless non-legal tirades.

As it seems Volokh has become another casualty of the Arab-Israeli debate, can anyone recommend any good legal forums to switch to? I'm looking for something with intelligent discussion of legal issues by esteemed professors.
7.22.2006 9:16pm
Shangui (mail):
It seems that 99% of the time the comments turn to calling people child molesters or various racial or sexual slurs, that it's started and maintained by Frank Drackmann. The solution seems pretty simple, EV et al.
7.22.2006 9:33pm
Harry Eagar (mail):
Rot, A. Rickey? Not necessarily.

Is law in service of order/morality/society or is it the other way around?

I followed this thread because I saw esteemed professors (well, I have some esteem for them) attempt to determine how various legal concepts might be applied to a problematic situation.

In my view, they have shown that law -- at least, the kinds of law under consideration here -- is not the tool for this kind of problem.

I don't know whether the lawyers agree with me. Probably not; they would be understandably reluctant to admit that the sharpest stick they own is not sharp enough.

But assume for the moment I am right. If law is not the appropriate means, then we could go on to try to discover a method that might work.

There is also the 800-pound gorilla in the room, mentioned more often in the other segment of this discussion than on this thread, of whether the UN, or relevant departments of it, were entitled to a clean-hands assessment before the kidnapping. If not (as I believe to be the case), then alleged misconduct by the Indian underlings could be regarded as having been inspired.
7.22.2006 9:34pm
M. Simon (mail) (www):
anon 123,

There is a war on.

When the war quiets down the law will return.

Hopefully it will return with the UN cleaned up.

Krishna,

Even if you are correct it does not clear the UN of cover up.
7.22.2006 9:46pm
anonymous123 (mail):
M. Simon, You already have a rabidly pro-Israeli blog. You write it yourself. http://powerandcontrol.blogspot.com/ Can't you just keep these non-legal discussions over there? Why do you have to ruin this blog?
7.22.2006 9:50pm
M. Simon (mail) (www):
I like unmoderated comments.

It lets the idiots out themselves. This is a service.
7.22.2006 9:51pm
M. Simon (mail) (www):
Anon 123 7.22.2006 8:50pm,

You should try mentioning the UN in your post to try to keep things on topic.

And thanks for the plug.

My 7.22.2006 8:51pm applies in your case.

So anon 123,

What is your opinion of the UN coverup in the case?

How should we fix the problem?

I have proposed that peace keepers be tried by the ICC.

I have proposed that US peacekeepers not be under UN control and that they only be deployed under bilateral or trilateral agreement.

What do you think?
7.22.2006 9:58pm
Dave Hardy (mail) (www):
In my view, they have shown that law -- at least, the kinds of law under consideration here -- is not the tool for this kind of problem.


I'd suppose, even if it were, we'd need someone who knows something about Lebanese criminal law.
7.22.2006 9:59pm
Robert Lyman (mail):
I'd suppose, even if it were, we'd need someone who knows something about Lebanese criminal law.

I know nothing about Lebanese (or Israeli) criminal law. But I'd be willing to bet on two things:

1) The words "instrumentalities of interstate commerce" don't appear in their codes.

2) Bribery, kidnapping, deliberate destruction or concealment of evidence, and witholding evidence which you have in your possession when the authorities ask for it are all illegal.
7.22.2006 10:02pm
Dave Hardy (mail) (www):
Not to talk too much about Israel, but here is a bona-fide legal issue, which I hope an expert blogs about.

Apparently Israelis are going to sue the Lebanese government in US courts (and seize their US assets) over damage from Hezbollah rockets. This seems like an interesting expansion of the court's ability to impact foreign matters. If such lawsuits are successful, it seems like it could lead to a tidal wave of lawsuits regarding foreign matters.


Not particularly expert, but ... the attorney describes it as a "symbolic case" and his fee arrangment as "No. The lawsuit is being administered on the basis of "you didn't win, you don't pay." Both of which sound pretty accurate to me.
(1) The Act of State doctrine would likely limit suit against a government.
(2) The gov't of Lebanon didn't do it, it at most didn't stop it.
(3) How do you get jurisdiction in an American court? All events occurred overseas, all parties are overseas.

Now, in the old days, there WAS a remedy. If one sovereign's subjects harmed another's, the second sovereign made a claim. If unanswered, he issued letters of marque and reprisal to the victims, entitling them to seize the other sovereign's shipping, sell it at auction, and keep the proceeds, until the debt was repaid. Sort of like licensed piracy (or a privatized navy), and if captured the holder of the Letter of Marque was treated as a POW, not a pirate.

It was a convenient way of resolving claims that weren't really worth going to war over. "OK, here's a letter of marque, entitling you to seize up to $1.2 million of Lebanese shipping. Anything you grab, bring it to Admiralty Court for an appraisal and auction." It also gave sovereigns an incentive to keep their people in line.
7.22.2006 10:11pm
Frank Drackmann (mail):
To give Kofi Annan the benefit of the doubt, he was put in a sticky situation. If he turned the evidence over to the Israelis, a few Hezbolla terrorists get terminated, and Kofi loses points with 90% of the UN membership. He doesnt turn over the evidence and risks meeting an unhappy ending at the hands of the Mossad some day. I disagree with him, but he actually made the more physically courageous decision. I would have given the Israelis anything they wanted. I dont want some Hellfire missiles flying into my bedroom some morning, like with Sheik Ahmed Ismail Yassid a few years back.
7.22.2006 10:38pm
Gob Bluth:
Dave,
I think you just put "Sea Lawyer" out of a handle!

A. Rickey,
Sure, no one is ever going to be tried, but you're right, the exercise is entertaining. And as a fellow bar examiner, I have to admit that this thread has been much more fun than the others...
7.22.2006 10:40pm
Richard Aubrey (mail):
Perhaps I missed the point. Happens sometimes.

But the question of which law, if any, would have been broken by various UN actors if they were something other than UN actors seems like lawyers' in-group talk. Fun. Also lets you avoid the scary question, which is what the hell is the UN good for and whose side is it on?

None of the lawyer-speak involved addresses that question which was, I believe, the original question.
7.22.2006 11:21pm
Dave Hardy (mail) (www):
But the question of which law, if any, would have been broken by various UN actors if they were something other than UN actors seems like lawyers' in-group talk. Fun. Also lets you avoid the scary question, which is what the hell is the UN good for and whose side is it on?


Yeah, but those are easy questions.

1. Nothing.
2. Theirs.

I suppose it has the limited utility that, on the rare occasions when it actually does something, the US can implement it with lessened noise from those who gripe that we should have involved the "international community." This is worth at least a thousand a year and we should send them that.

It also has value in furnishing an amusing spectacle. We can talk of letting the inmates run the asylum, but apart from DC city government, how often do we really see it in action? Genocidal governments with a vote on what to do about genocide, repressive dicatorships on human rights committees, international dignitaries taking bribes as if they were Parking Commissioners in a tiny town... Comedy Central couldn't invent this. But the UN does a much worse job of acting, so I'd pay them only half what I pay for cable. So all in all, they should be worth about $1200 a year.
7.23.2006 12:09am
nc3274:
I'd like to second the very first comment on this thread regarding the content of this blog. It's a shame, I think, that the intellectual firepower of the posters is being directed in the way it is. I guess I'd hope that a list of brilliant law professors would offer original and insightful comments on various legal issues, cases, etc. Perhaps a rule of thumb: if a post is more than 50% block quotation, query what the post is adding.

Put another way, I don't get a lot of value from posts that say "hey, here's an article" or "I don't like the New York Times" or "I really support Israel" or "I don't really support Israel." I fail to see how a bunch of law professors bring anything to the party by commenting on media, current (non-legal) events, or other items readily found in original sources elsewhere.

The response to this--"you don't like it, don't read it"--is both obvious and correct. I will. Perhaps the net readership (or advertising value-weighted readership) increases when law professors stop talking about topics on which there is actually reason to believe they have some special insight. If so, the market has spoken. But the posters ought know that there are at least some who are disappointed at the loss of a daily read.

(Note--this particular post, where Prof. Kerr at least attempts to apply some legal doctrine to the initial Kopel post, is not an example of this. But I had the same reaction as blackdoggerel to the general state of affairs.)
7.23.2006 12:34am
usuallyakerrfan (mail):
Much as I miss Prof. Kerr's posts in general, I don't miss his penchant for posting seemingly every time he strongly disagrees with a co-blogger.
7.23.2006 12:42am
John Hay (mail) (www):
The UN has been complicit in many more acts than just this one. This is a problem that has been going on for a while.
7.23.2006 1:39am
David Friedman (mail) (www):
I'm reluctant to express any confident opinion about what actually happened, since we haven't yet seen any rebuttals from the other side of the argument, and I have in the past observed how rapidly facts can alter when someone is questioning them. But if we accept the statement of facts made in the earlier post, I find Orin Kerr's response unconvincing, for the following reasons:

1. The U.N. troops were supposed to be there as peacekeepers, under a mandate to (among other things) disarm the various militias. Doing nothing while observing an armed militia attacking people isn't consistent with that mission.

2. The attackers were disguised as U.N. troops. Permitting combatants to pretend to be U.N. troops in order to gain an advantage isn't consistent with the U.N. mission.

3. The U.N. destroyed evidence relevant to the kidnapping, and/or permitted others to destroy evidence they had seized.

4. The U.N. concealed additional evidence--to the point of hte Secretary General denying the existence of a videotape which he later admitted.
7.23.2006 6:08am
Krishna:
M Simon,
Maybe, you are right about the coverup.

However, I did some research regarding U.N peackeeping abuses, and the allegations in this case are not isolated. There have been many allegations (Cambodia, Congo, Kosovo etc) of abuses by UN peackeepers (Sex trafficking, murder, rape, the works. In many of these cases, the countries involved included western (and rich) ones (Britain, Bulgaria, Germany, Belgium etc.). It appears to me that this is a systemic problem with peacekeeping missions and the allegations regarding the UN role in the previous Hezbollah kidnapping not anything specifically directed against Israel for reasons of antisemitism or otherwise.

Having said this, I agree with Prof Kerr that generalizing problems regarding the conduct of peacekeeping missions into an attack on the UN itself is a bit much, and illogical. There may be perfectly legitimate and good arguments against the U.N, but this is definitely not one of them (it just gives the impression that Prof Kopel has an agenda to which he is fitting facts convenient to this agenda). I am not particularly a fan of the U.N either, but arguments of this form make me sceptical of those who use them against the U.N.
7.23.2006 6:41am
David in DC:
I'd suppose, even if it were, we'd need someone who knows something about Lebanese criminal law.

By the way, does anyone know if kidnapping and extortion are illegal in Lebanon? I'd assume it is.

Why all the talk about "negotiating" with criminals? Why isn't Nasrallah himself being investigated by the Lebanese as part of a criminal conspiracy?

This is part of the reason why I think the Lebanese government bears some responsibility for what is going on and is possibly even complicit in it.
7.23.2006 8:43am
SeaLawyer:
On pure common sense the UN in fact aided and abetted Hezbollah.

"abet" is "to approve, urge, or encourage."

The UN by destroying evidence and refusing to turn over evidence and finally blocking out the faces of the terrorist in the video tape, certainly counts as approval. By the UN not stopping the action from occuring and then covering things up also encourage Hezbollah to commit further acts.
7.23.2006 11:34am
scepticalrepub:
If an arsonist applies for a job as a fire spotter for the US Forest Service, and then is found to have participated or acquiested in a fellow arsonist's crime, wouldn't his liability be clear? Mr. Kerr writes:

Robert Lyman, since you have the bar exam in a few days, note that the definition of "abet" is "to approve, urge, or encourage." That is, not just to objectively help, but to *intentionally* help.

To approve something is not intentional help; if the fact that you have encouraged similar acts in the past is well known, the mere fact that you assumed the duty to protect is an act of encouragement. The UN's anti-Israel bias, exemplified by the Zionism = Racism resolution and it's thousands of tendentious polemical statements on who is responsible for the current problems in the region cast this issue in a different light for me than the way Mr. Kerr is characterising it.
7.23.2006 12:38pm
MDJD2B (mail):
[T]he allegations in this case are not isolated. There have been many allegations (Cambodia, Congo, Kosovo etc) of abuses by UN peackeepers (Sex trafficking, murder, rape, the works. In many of these cases, the countries involved included western (and rich) ones (Britain, Bulgaria, Germany, Belgium etc.). It appears to me that this is a systemic problem with peacekeeping mission...

Krishna,

1. I don't think anyone is trying to flog India over this issue.

2. If the UN is to engage in peacekeeping or other missions, it must be able to exercise some control over its agents, and to be able to hold individuals responsible for acts of malfeasance-- whether they are Indians, Canadians, or whatever. It cannot.

3. Furthermore (and this is what riles up Prof. Kopel and those sympathetic to him) the UN doesn't even try. Rather, it covers these things up. This is true whether it is Indians watching terrorists impersonate UN troops or officers from Western nations raping African civilians.

If the UN cannot or will not conduct its peacekeeping operations in accordance with standards it would like its member states to adhere to in their own activities, then perhaps it should not engage in such activities.
7.23.2006 12:51pm
scepticalrepub:
Let me revise and extend my prior post, and apologise for typing/spelling errors.

Does anyone think Kofi Annan or the UN would have reacted the same way if the instigator of the kidnapping had been apartheid South Africa? Pinochet's Chile? Meir Kahane's outfit going in the other direction? The fact that the troops were Indian is immaterial, had this been a mission the UN wanted accomplished the mindset of these individuals would have been much different; different morale, different tactics, etc.
7.23.2006 1:02pm
Justin (mail):
Can I ask an honest question, not to spark debate, but just to better my own understanding of the issues?

Leaving things that are almost definitionally unknowable aside (such as motive or purpose), is the Benstein factual description undisputed? If not, can someone describe which factual descriptions are disputed and who disputes them, and if possible, to point me to some breakdown of the dispute and the evidence on both sides (one can use multiple sources, if a neutral source is unavailable).
7.23.2006 3:12pm
antiBernstein (mail):
I'm going to present an opinion on the UN which is shared by the civilized world, as opposed to radicals like Bernstein. I'm glad the UN is justly criticizing Israeli terrorism and pointing out how the sadistic and bloodthirsty bombing of blocks of civilians buildings is a violation of humanitarian law and a war crime. It's good to see the truth get out, despite the attempts of people like Bernstein to hide and obfuscate it.

Link to Yahoo story

UN humanitarian coordinator Jan Egeland, in Beirut to launch a urgent appeal for funds for half a million people made homeless by the conflict, made no attempt to hide his fury as he toured bombed-out areas.

"This is destruction of block after block of mainly residential areas. I would say it seems to be an excessive use of force in an area with so many citizens," he told reporters in the southern suburbs of Beirut, a Hezbollah stronghold.

Asked if the Israeli raid that destroyed the burned-out buildings before him constituted a war crime, he replied: "It makes it a violation of humanitarian law."

His comments came as at least twelve civilians, including a Lebanese press photographer, were killed in new Israeli air strikes across Lebanon on the 12th day of Israel's punishing war on Hezbollah.
7.23.2006 6:25pm
Richard Aubrey (mail):
Justin. Annan disputed it. Then he got caught.

There are, of course, different versions. The one related above is the one which accords with reality.
7.23.2006 6:26pm
Mike Lorrey (mail) (www):
The UN organization was certainly an accomplice after the fact, in covering up the actions of its own soldiers who were complicit. The Indians participated not for ideology, but for pay, but the distinction doesn't matter: most crime accomplices (including many convicted of felony murder, particularly those involved in kidnappings) were in it for the money, not for an ideological point. So, Orin's excuses sound like a weak defense attorney who knows his client is guilty as sin.
7.24.2006 2:31am
Justin (mail):
That's not particularly at all helpful of an assertion, Aubrey.
7.24.2006 3:13am
Richard Aubrey (mail):
Justin. Such news accounts as there were tracked with the above-related story. Coverup and kidnapping and UN unis and the whole thing.

This is not to say that there are not people who are pitching other versions. But the reality, as generally (as opposed to in one place at only one time) reported, does not support other versions.

Keep in mind that the most innocent possible explanation is that, 1, the Israeli was kidnapped. No dispute. 2. The UN is supposed to prevent that stuff (ostensibly although nobody involved ever expected the UN force to do such a thing). 3. The tape and other evidence was in UN hands when Annan denied having it, and then it was discovered. Sort of one hand not knowing about the other hand. Incompetence, not underhandedness.

In other words, even absent active complicity, inactive complicity, or the use of uniforms and vehicles, the UN was spectacularly incompetent, to the extent of blowing large holes in its mandate. Its presumed mandate. As I said, nobody expects them to actually do what they mandates say. Nobody but a few influential Israelis, evidently.
7.24.2006 10:06am
Michael B (mail):
All this is taking place within a broader scenario wherein the U.N. is failing to sufficiently articulate the foundational importance of borders and sovereignty. Would this be an issue if organized political/militaristic factions in Spain, with the approval of a sizeable portion of the Spanish polis, were lobbing rockets into France on a daily basis? Of course not, the question wouldn't even arise as such.

Kerr makes perfectly reasonable legal and definitional arguments. But beyond the legal analysis per se, the most fundamental tenets of a nation's sovereignty are at issue. That broader aspect is the horizon and grounding within which all this is occurring - and it reflects but one of the reasons why a strict legal analysis is inadequate, to put it in modest terms. NO cease-fire. Hezbollah's missiles either need to be removed (from the border area), voluntarily or otherwise, or destroyed via military initiatives. Additionally the militaristic and eliminationist strategies/tactics of Hezbollah and other, similar orgs need to be recognized, and articulated (e.g., by the U.N.), for what they are. Otherwise the very ground upon which the general debate is taking place is itself shaky, at best.

Likewise, the stuffed-shirt responses in this thread, regardless of individual motive or avowed intent, which effectively serve as a cacophony of harrumphs in defense of the UN's putative bona fides are risible. These various harrumphs are reminiscent of 3-Stooges episodes where our dubious threesome find themselves in the midst of a gathering of stuffed-shirt society types, wherein we know it's only a matter of time before pies in the face are duly awarded.
7.24.2006 11:35am
markm (mail):
"An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction."

Suppose I find out that my son-in-law robbed a bank. In order to protect my daughter and grandkids, I help him conceal evidence. According to how some people are trying to read the law on accessory after the fact, I'm innocent because my primary intention wasn't helping the felon escape - that was just the necessary means of attaining the end of keeping my daughter's family together.

You find a court anywhere in the world that would buy that.
7.24.2006 2:39pm
HuckFinn:

You find a court anywhere in the world that would buy that.


Continental law accepts this. For example, in German law there is a crime "Strafvereitelung". It means exactly accessory after the fact. In general, it is a punishable crime, but for close family members of the felon, it is not.
7.24.2006 3:15pm
HuckFinn:

For example, in German law there is a crime "Strafvereitelung".


It translates to "helping to avoid punishment".
7.24.2006 3:27pm
markm (mail):
HuckFinn, are you claiming that the UN is a family?
7.25.2006 5:47pm