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http://opiniojuris.org/2010/11/04/bush-admits-authorizing-waterboarding/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+opiniojurisfeed+(Opinio+Juris)

by Kevin Jon Heller

A couple of weeks ago, New Stream Dream accused me of never believing individuals who — like Khadr and Lynne Stewart — confess to committing crimes. Well, I believe this confession:

In his book, titled “Decision Points,” Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was “Damn right” and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.

Sadly, because we are supposed to look forward and not backward — unlike other states, as Glenn Greenwald constantly reminds us — Bush will never be held accountable for admitting that he committed war crimes and crimes against humanity. But he certainly should be.

Natalie Bridgeman Fields

It's IntLawGrrls' great pleasure to welcomeNatalie Bridgeman Fields (right) as today's guest blogger.

Natalie's the Executive Director of San Francisco-based Accountability Counsel, a legal nonprofit that she founded in 2009. The organization represents environmental and human rights of communities around the world by creating, strengthening, and using accountability systems. Its particular focus is on nonjudicial grievance procedures related to international finance and development. In her guest post below, she discusses one such mechanism, the U.S. National Contact Point for OECD Guidelines on Multinational Enterprises.

Having been graduated from Cornell University in 1999, Natalie received her J.D. in 2002 from UCLA, where she was Editor-in-Chief of the Journal of International Law and Foreign Affairs. While a law student she interned at the Center for International Environmental Law, served as a consultant to a World Bank inspection panel, and was a law clerk to a North American Free Trade Agreement arbiter. Immediately after law school she was a litigation associate at Wilson Sonsini Goodrich & Rosati, working on commercial cases and on Cabello v. Fernández-Larios, a pro bono Alien Tort Statute case. Since starting her own law firm, she has helped to litigate another ATS case, as well as the post-9/11 lawsuit captioned José Padilla v. John Yoo (additional prior post), both pending before the U.S. Court of Appeals for the 9th Circuit.

Along with Professor David B. Hunter, Natalie also co-teaches a course on International Institutions and Environmental Protection during the Environmental Law Summer Session at American University Washington College of Law.

Heartfelt welcome!

(Many thanks to IntLawGrrls for the opportunity to contribute this guest post.)

Corporate accountability for environmental and human rights abuses abroad is often elusive.
As IntLawGrrls Rebecca Bratspies and Naomi Roht-Arriaza have posted (here and here), recent court rulings now limit the scope of the Alien Tort Claims Act in some jurisdictions, at least temporarily. Non-judicial, ‘soft law’ mechanisms thus have become even more important.

Among the latter accountability mechanisms is the U.S. National Contact Point, or NCP, an office of the Department of State created to take complaints regarding corporate compliance with the Guidelines for Multinational Enterprise issued in 2008 by OECD, the Organization for Economic Co-Operation and Development.

The United States is required to maintain the NCP to resolve disputes about the OECD Guidelines, which cover human rights, environmental, labor, and consumer issues, as well as other topics. Like other countries' NCPs, the U.S. office is tasked not only with assisting to resolve disputes about corporate compliance with the Guidelines, but also with issuing Final Statements about compliance at the end of the process. In the language of international financial institution accountability mechanisms, this gives NCPs both a problem-solving and compliance review function.

To date, the U.S. NCP has never assisted in the resolution of a single case. In contrast, as IntLawGrrl Christiana Ochoa has posted in other countries like the United Kingdom, NCPs have su ccessfully participated in the resolution of major global issues. If transformed, the U.S. NCP could be a valuable tool for communities around the world. Among those communities are clients

of my organization, Accountability Counsel, which represents persons harmed by U.S.-headquartered multinational enterprises.

Over the past year, Accountability Counsel has led a coalition of civil society groups to reform the U.S. NCP. Our direct talks spurred the office to published its rules of procedure. As we had anticipated, those rules:
► Fail to meet basic standards for transparency and independence;
► Lack details sufficient to result in a predictable process; and
► Are unlikely to lead to effective results.

The official State Department review is under way, with a new policy governing the U.S. NCP is expected sometime in 2011. In Washington, apublic meeting will be held today, November 2, and comments on the U.S. NCP will be accepted at input@state.gov until this Friday, November 5.
Accountability Counsel already has submitted its comments to the State Department regarding suggestions for reform of the U.S. NCP. Based on our work with similar mechanisms at the World

Bank Group, the regional development banks, and study of other NCPs, we demonstrated that key elements that are needed to bring this accountability mechanism to the ‘best practice’ level that civil society groups have worked decades to create. Our recommendations focus on:
► Increasing transparency;
► Setting timelines and rules of procedure;
► Providing for review of decisions; and
► Monitoring and enforcement in the event of a finding of non-compliance.

Accountability Counsel is also working on these issues as a member of theState Department’s Advisory Committee on International Economic Policy, which will issue a report with recommendations for reform. Similarly, our group has worked with the United Nations' Special Representative on Business and Human Rights, Professor John Ruggie (prior IntLawGrrls posts), to create a page on the Business and Society Exploring Solutions site for the posting of comments and for debate about the U.S. NCP. The effort is aimed at improving transparency around this review.

Some commentators undercut the potential of NCP for lack of enforcement mechanism. Is there any human rights "regime" which is equipped with enforcement mechanism close to domestic one? It would be quite stretch if any attempt to put domestic and international law on the same footing in terms of enforcement mechanism. Herold Koh said, Si mi recollecion unequivocado, international human rights law is under-enforced and he termed (lumped) it as transnational legal process. My guess is that when he put down the term, only or mostly, at best, States were in his mind as main player, not MNCs.

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Bush Admits Authorizing Waterboarding

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