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Bemba Acquittal Rests on Erroneous Application of Appellate Review Standard

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

While there are many subsidiary issues and it will take substantial time to fully analyze each of them, the crux of the decision in the case of Jean-Pierre Bemba Gombo, sentenced to 18 years by the Trial Chamber and acquitted of all charges upon appeal, rests on the margin of deference to accord Trial Chamber determinations of an issue of fact (or mixed fact and law). The key issue (aside from one related to charging) came down to whether Mr. Bemba, whose subordinates were found to have committed murder as a war crimes and crime against humanity, rape as a war crimes and crime against humanity, and pillage as a war crime, in the Central African Republic between 2002 and 2003, took the “necessary and reasonable measures” to prevent or repress the commission of the crimes or to submit them to the competent authorities for investigation and prosecution. Such measures are required under the command responsibility standard of Article 28(a)(ii) of the International Criminal Court’s Rome Statute.

Based on a lengthy trial in which 77 witnesses testified, and 733 items of evidence were admitted, the Trial Chamber found that he did not do so, concluding that the measures taken “patently fell short of ‘all necessary and reasonable measures’ to prevent and repress the commission of crimes within [Mr. Bemba’s] material ability.” (Trial Chamber judgment, para. 731.) Under established jurisprudence, this factual determination was entitled to deference when the issue went up on appeal. Unfortunately, in a “significant and unexplained departure” from prior jurisprudence (and similar jurisprudence of the ad hoc tribunals), the Majority applied an unworkable and arguably erroneous standard of appellate review in examining this key issue on which the outcome largely hinged.

The standard to be applied is whether a reasonable trier of fact could have reached the finding in question, based on the evidence that was before the Trial Chamber. (Dissenting Opinion, para. 47.) In the Dissenting Opinion of Judges Monageng and Hofmanski, they persuasively point out that this was not the standard applied by the Majority who voted to acquit (Judges Van den Wyngaert and Morrison, with President Eboe-Osuji concurring based on a separate opinion). Instead, the Majority took selected pieces of evidence, and based on a review of only those pieces of evidence, essentially revisited the Trial Chamber’s factual findings, finding “some doubt,” and substituted their judgment as to a factual determination made by the Trial Chamber. But the reason that a margin of deference is given to Trial Chamber judges as to determinations of fact is that they have reviewed the totality of the evidence presented to them—especially important regarding such lengthy and complex trials as are conducted by the ICC. (If the “some doubt” or “serious doubt” standard were correct, as Judges Monageng and Hofmanski point out, it would mean that in any case with a dissent at the Trial level, there should be acquittal on appeal, as the Dissenter obviously had doubt. (Dissenting Opinion, para. 13.) The Majority’s new appellate review standard is thus not only unprecedented, it would make ICC convictions nearly impossible. While the ICC may not be strictly bound to apply its own precedent, the Majority makes no case for departing from the established standard of appellate review.

Moreover, whether a commander has taken “necessary and reasonable measures” to prevent or repress crimes committed by his troops/subordinates is necessarily fact and context-specific. It is not “necessary and reasonable measures” in the abstract, but in the specific circumstances in which the crimes were committed, at the time of the crimes, and given the actual ability of the particular commander to exercise measures related to those troops.

Reading both the Majority and Dissenting opinions, it is difficult for this author to conclude whether or not Mr. Bemba undertook such “necessary and reasonable measures” to prevent or repress the crimes committed by members of the Mouvement de Liberation du Congo, because I have not been following the Bemba trial; I have not been sitting in court every day of the trial to hear the evidence and assess the credibility of witnesses; and I have not thereby gained an appreciation of the particular factual context in which the crimes occurred, nor the conditions in the CAR, nor what measures reasonable could have been undertaken. That is why I will not opine on whether Mr. Bemba took the “necessary and reasonable measures” to prevent or repress the crimes, and that is exactly why the job of appellate review is also not to make such determinations afresh based on a limited review of selected pieces of evidence.  This is why the question on appeal is simply: whether a reasonable trier of fact could have reached the finding in question based on the evidence that was before the Trial Chamber—something the Majority never examined.

Judges Van den Wyngaert and Morrison also, in their separate opinion, also set off into uncharted territory by suggesting that it is really not the job of a high-level commander to prevent or repress crimes, but the job of mid-level commanders “to keep their troops in check. . . .” (Separate Opinion, para. 33)—thereby seemingly suggesting the evisceration of command responsibility for high-level commanders. They also are inexplicably sympathetic to Mr. Bemba as a “remote” commander (Separate Opinion, para. 33), as if we don’t have modern forms of communication, whereby a commander who is physically remote could nonetheless be fully aware of the actions of his or her subordinates and/or impose measures to prevent or repress crimes. (Similarly flawed logic also crept into the now widely denounced Perisic acquittal before the International Criminal Tribunal for the former Yugoslavia, who was also deemed “remote” from the Republika Srpska forces who directly perpetrated the crimes.) (This is a very convenient finding for modern militaries, whose high-level commanders often will be remote from battlefields.)

It is exceedingly distressing for such a significant case to turn on the misapplication of the appellate review standard, and one can only empathize with the massive number of victims in the CAR who must be confounded by this inexplicable result. Prosecutor Bensouda is understandably dismayed, as revealed by her statement of June 13.

Maybe the worst concluding logic is offered by the Majority, when they consider whether they should instead remand the case (as Judge Eboe-Osuji would have done), but Judges Van den Wyngaert and Morrison basically conclude that would take too long to do so. (Separate Opinion, para. 73.) Yes, cases should not take decades, but, if remand were the proper path (and this author is not convinced it was), the time delay of their own court is not an excuse not to remand. Remand, however, was not necessary; it was never shown that the Trial Chamber could not have reasonably reached the decision that it did on the command responsibility charges as to whether Mr. Bemba undertook necessary and reasonable measures to prevent or repress the crimes. Absent such a showing of error, the Trial Judgment finding of command responsibility should have been affirmed.

Some Reflections on the Bemba Appeals Chamber Judgment

by Alexander Heinze

[Alexander Heinze is an Assistant Professor at the Department of Foreign and International Criminal Law, Institute for Criminal Law and Justice, Georg-August-Universität Göttingen. He is the author of the book “International Criminal Procedure and Disclosure” (Duncker & Humblot, 2014).]

In less than a month’s time, the International Criminal Court (ICC) will celebrate its 20th anniversary. Distinguished speakers will be calling into mind that the ICC was first and foremost a Court for victims – and then they will be expressing their condemnation of the recent acquittal of Jean-Pierre Bemba from the charges of war crimes and crimes against humanity, as did the recent blog posts here, here and here. It goes without saying that every aspect of the Majority Judgment, the Separate Opinions and the Dissenting Opinion deserves its own publication. However, since the ICC Prosecutor already issued a press statement strongly criticizing the Majority Judgment, and the above mentioned blogposts – written by authors who are or were affiliated with the ICC’s Office of the Prosecutor – bemoan, without waiting for the publication of Judge Eboe-Osuji’s Separate Opinion, a “lack of clarity, retroactive application of new law, and negative consequences in this and future cases”, “extremely negative consequences for the institution”, or fuel resentments by stressing that “the Court ruled that he could join his family in Belgium while he awaits sentencing in that case” (citing BBC News and adopting the report’s almost exact wording instead of referring to the actual Court decision, where Bemba’s family ties in Belgium are provided merely as a side information in a half sentence), the purpose of this blog entry is to bring the discussion back on the legal track.

With regard to the standard of review, the minority employs an approach that is well known before International Criminal Tribunals, i.e. an Appeals Chamber would only interfere where the Trial Chamber’s appreciation of the facts was wholly unreasonable, that is, where it “cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it” (Dissenting Opinion, para 9). While this approach carries the idea of a margin of deference to the factual findings of the Trial Chamber, the majority views this idea “with extreme caution” (Majority Judgment, para. 38). Even though the majority does support the standard of reasonableness, it clarifies that this standard “is not without qualification” (para. 41; more critically Separate Opinion Eboe-Osuji, para. 72). Thus, the majority opines it may interfere with the factual findings whenever the failure to interfere may occasion a miscarriage of justice. It had the right to deviate from the conventional approach, due to the fact that the ICC “may” but does not have to “apply principles and rules of law as interpreted in its previous decisions” (Art. 21(2) ICC-Statute – Judge Eboe-Osuji justifies the deviation also through a contextual interpretation of Art. 83(1) ICC-Statute, which seems to stretch the ratio of that provision a little too far). The application of the concrete standard of review is then a policy decision (in the same vein Separate Opinion Eboe-Osuji, para. 46) and there are good arguments for both sides (consistency of Appeals Chamber decisions and not turning appeals proceedings into a second trial vs. protection of the rights of the accused and avoiding to “consign the fate of a convicted person to the undoubted good faith of the Trial Chamber whose verdict of conviction has been appealed” (Separate Opinion Eboe-Osuji, para. 11)). There is another argument in favour of the broad approach of the majority: the ICC Appeals Chamber is not a national appeals court. There is no external review mechanism with regard to the rights of the Defendant as we know it in national jurisdictions, where a convicted person can still make an application to a regional human rights body for an infringement of his or her fair trial rights. There is also no Constitutional Court Chamber, as we know it from the Kosovo Specialist Chambers (see my blogpost here). The Appeals Chamber is very much the end of the road. It is therefore illogical when the Prosecutor in her press statement uses this fact as an argument for a “cautious approach to appellate review”. Shouldn’t it be the opposite? When there is no further appellate or revisionary body, the standard of review of the Appeals Chamber needs to be designed in a way that protects the rights of the accused most effectively. Judge Eboe-Osuji’s reasons why he thought following the conventional standard of appellate was especially inappropriate are illuminating. Everyone who evaluates the Majority Judgment as a particularly grave form of arbitrary decision making should read them in total. It is telling that even Judge Eboe-Osuji’s he leaned towards referring the case back to the Trial Chamber, he evaluated the evidential analysis by the Trial Chamber as so flawed that he preferred an acquittal over an inconclusive judgment.

The controversy around the standard of review continues in the question of how the charges must be framed and confirmed so that a conviction does not exceed the charges (Article 74(2) ICC-Statute). Bemba was convicted partly based on individual acts of murder, rape and pillaging committed against particular victims at specific times and places that had not been confirmed in the Confirmation Decision. The Trial Chamber argued that the Pre-Trial Chamber’s Confirmation Decision was broad enough so that new allegations could be included without a new Confirmation Decision. The question therefore was: How concrete must the charges be and how much evidence must the Prosecutor provide? Is it acceptable to formulate them in such a broad fashion that – exaggerated – the Prosecutor can add criminal acts whenever she wishes to do so, with leave of the Trial Chamber after the trial has begun? The minority answers this in the affirmative, which is nothing unusual from a domestic law point of view. The prosecutor enjoys discretion in formulating the charges and that rightly so. The burden of proof in the confirmation proceedings is “substantial grounds to believe that the person committed the crime” (Article 61(5) ICC-Statute) – a standard that is lower than the burden required for a conviction (“beyond reasonable doubt”). Nevertheless, even in national proceedings the opening of an investigation against a suspect and the subsequent charging creates a considerable stigma. This is all the more true in an international context where everything, especially worldwide media attention, is potentiated. The least that can be expected in that situation is a clear and fairly strict formulation (and confirmation) of the charges. The majority therefore rightly states: “Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters of the charge is not sufficient” (para. 110). Judge Eboe-Osuji concurs with this opinion, even though he disagrees with Bemba that a Trial Chamber was in principle precluded from amending the indictment after the commencement of trial, employing a teleological and contextual interpretation of Art. 74(2) ICC-Statute (in conjunction with Article 69(9)) (Separate Opinion Eboe-Osuji, paras. 118-134).

Taking both procedural questions together, it is certainly fair to say that they address the interpretation of procedural rules that can work both ways with the better arguments for the majority. This also applies to the main substantial question, the requirements of command responsibility. To make this crystal clear: No one affiliated with the implementation of International Criminal Law has an interest that leadership-level- or mid-level perpetrators go free despite their criminal responsibility while their subordinates commit unimaginable atrocities. However, the concept of individual criminal responsibility for violations of humanitarian and human rights norms is universally recognized. There should be no situation in international criminal adjudication today where this self-evident principle needs special emphasis. And yet, the catchphrase “crimes did not commit themselves” is carried like a torch through social media and even the blogosphere (see here) to light fires of outrage and open resentment to the Appeals Chamber and its majority Judges. Again, even the Prosecutor could not resist the temptation of an emotional rejection of the Appeals Chamber’s majority view, instead of entering a self-critical analysis of its work.

In contrast to the minority opinion, it found that Bemba took all necessary and reasonable measures to prevent or repress the commission of crimes by applying a rather realistic set of criteria: Bemba was a “remote commander” with “non-linear command” in a foreign country (Majority Judgment, para. 171) and therefore faced limitations in controlling his troops. The minority disagrees: Even though Bemba as a remote commander faced “logistical difficulties” (Dissenting Opinion, para. 57), the evidence showed that it was possible to overcome these difficulties. The majority generally was of the view that a commander cannot be expected to do the impossible, taking any preventive measure, no matter how unrealistic they would be. Instead, the formula of the majority is rather clear, echoing the principle of individual criminal responsibility:

“The trial chamber must specifically identify what a commander should have done in concreto. Abstract findings about what a commander might theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove” (Majority Judgment, para. 170).

Moreover, what a commander should have done in concreto is not for the accused to show, but for the Trial Chamber. When determining whether the measures the commander had taken were necessary and reasonable, the motive to counter public allegations and rehabilitate the public image of the subordinates does not intrinsically render the measures “any less necessary or reasonable” (Majority Judgment, para. 177; Separate Opinion Eboe-Osuji, para. 16) – even though the commander is required to act in good faith in adopting such measures and must show that he “genuinely” tried to prevent or repress the crimes in question or submit the matter to the competent authorities. Again, these legal aspects require much closer analysis than this, as has been done with the latter aspect (Bemba’s motivation) here.

Considering the remarks of the majority and reading the separate opinion, it becomes clear that the Defense’s call for a more realistic approach to command responsibility that takes into account the specific operative situation of the commander has been heard, at least by the majority of the chamber. Judge Eboe-Osuji’s very detailed and thorough engagement with the arguments brought forward by Defense Counsel show how much of an impact the actual hearing had on the majority’s opinion (read, for instance, para. 247: “It was wise, indeed, of Ms Gibson to have readily accepted the endangerment rationale on behalf of the Defence during the oral hearings. Notably, however, co-counsel Mr Newton, was not as forthcoming. […]). The separate opinion touches upon further controversial criteria of command responsibility that are certainly noteworthy from an academic point of view, even though they are not part of the majority judgment but rather an obiter, since there was apparently no consensus between the judges in that regard. For instance, the separate opinion of Judges van den Wyngaert and Morrison provides an excellent analysis of the subjective element in Article 28, explaining why it matters whether the accused is charged with/convicted of “knowing” the crimes of his/her subordinates or “should have known” the crimes – both standards trigger different obligations for the commander and must therefore be proven differently, what made the Trial Chamber’s notice under Regulation 55 of the Regulations of the Court to characterize the charges from “knowledge” to “should have known” defective (Separate Opinion, para. 39). The minority, by contrast, saw no harm in that, based on a “unitary standard for the mental element” (Dissenting Opinion, para. 266).

The fundamental differences about a possible causation element mirror the unclear legal nature of Art. 28. This unclear legal nature is best captured by Judge Eboe-Osuji, whose journey through the familiar classifications of Art. 28 as dereliction of duty on the one hand and accomplice liability on the other hand leads him to the rather surprising destination of command responsibility as “endangerment liability”: Since armed conflicts are “notoriously dangerous”, Art. 28 seeks to “protect innocent victims from the risk of the excesses that is so notoriously a feature of armed conflicts” (para. 243). Thus, it was not necessary that the defendant’s conduct caused the actual; proof of the creation of danger was sufficient “in the sense that the commander’s complicity in the subordinates’ crimes originated when (s)he created or fostered the danger of the subordinates’ criminality (by training them, arming them and/or deploying them, so as to be able to commit those crimes), and that complicity was consummated when (s)he failed to exert authority (that was effectively available to be exerted) properly to prevent or repress the crime (including through punishment), when s(he) knew (or should have known) that the subordinates were committing or about to commit such crimes.” (para. 251). This is indeed a novel approach, reminiscent of the theory that complicity was a crime of endangerment (as proposed in Germany by Herzberg, Goltdammer’s Archiv für Strafrecht 1971, pp. 1 et seq.). It is for another publication to enquire whether this theory can and should be transferred to command responsibility. The Dissention Opinion and Judges van den Wyngaert and Morrison in their Separate Opinion follow the conventional path of this debate: While the former justifies the causation element in convincing fashion, the latter rejects it based on the argument that it was “not possible that an omission after a fact has occurred (that is, failure to refer criminal behavior to the competent authorities) causes this fact”. This might be true but is a too easy escape route. In case the crimes have already occurred, it is indeed hard to construct an omission. However, viewing the omission with regard to future crimes that might be committed as a result of it, a “hypothetical” or “quasi”-causation can indeed be construed. Unsurprisingly, the separate opinion rejects the view that the commander’s omission can increase the risk of the commission of crimes, as it was held by the Judge Steiner in her Separate Opinion to the conviction decision (Separate Opinion Steiner, para. 19). This rejection seems to be based on a misunderstanding of that view when Judges van den Wyngaert and Morrison opine that the failure of the commander to act does not increase the risk but “[t]he responsibility of the commander is precisely to decrease the risk that his/her subordinates will commit crimes. Failing to reduce a risk can hardly be seen as causing the manifestation of said risk.” However, the theory of increasing risk (see esp. Ambos, in: Stahn (ed.), The Law and Practice of the ICC, 2015, pp. 603 et seq.) is exactly about the question, whether the ex ante formulated norm, even when viewed ex post, still appears to contain a prohibition that reduces the actual harm. Thus, of course the norm in itself is about harm reduction, while the act might increase it. The minority view – by contrast – takes this into account and justifies the causation element in convincing fashion.

In sum, in a very narrow decision, the majority of the Chamber did what it is supposed to do – review a Trial Chamber decision on the basis of the law. It goes without saying that it would be inappropriate to applaud this decision as a victory of criminal doctrine and procedural sophistication. There are no winners. Thousands of victims will have been left in shock by the Appeals Chamber judgment. However, it would also be inappropriate to bemoan the decay of everything the ICC stands for. Not sacrificing the rights of the accused on an altar of grand gestures by the world community (such as the “need to send a clear signal globally that such abhorrent crimes must not go unpunished” [ICC Prosecutor] or a “promise of accountability” [Amann]) is certainly a decision that should find – despite its controversy – support.

The ICC in Film: The Hitman’s Bodyguard

by Melanie O'Brien

[Melanie O’Brien is Senior Lecturer in International Law at the UWA Law School, University of Western Australia; and an affiliated researcher of the Asia-Pacific Centre for the Responsibility to Protect, University of Queensland.]

Followers of Opinio Juris well know Kevin Jon Heller’s criticism of Crossing Lines and its portrayal of the ICC. I recently watched the action-comedy The Hitman’s Bodyguard, a film that includes an ICC-related storyline, and it certainly opens itself up to some well-deserved criticism about its portrayal of the ICC.

The storyline of The Hitman’s Bodyguard is that Belarusian dictator Vladislav Dukhovich (Gary Oldman) is on trial before the ICC (for genocide? Crimes against humanity? It’s not clear, although genocide is hinted at, but this is not relevant to the film- he’s a bad guy who killed a lot of his people, that’s all we need to know). One witness needs to be transported under witness protection from London to Den Haag. The witness is Darius Kincaid (Samuel L. Jackson), a major international hitman with 250 kills under his belt. Interpol is tasked with transporting him (I’ll get to that later in this post), but it goes awry and ultimately, Michael Bryce (Ryan Reynolds), an ex-CIA agent, now private protection agent, is tasked with protecting and transporting Kincaid. This is the crux of the film- Bryce getting Kincaid to Den Haag, and the relationship between the two.

I want to focus here on two main elements of the film: portrayal of the ICC and how it functions; and portrayal of Interpol and how it functions. Both are so far from reality, it is teeth-grindingly frustrating.

We are introduced to the trial by a news report that tells us that the trial continues, ‘with emotional testimony from many of his country’s victims’. We are also told that numerous witnesses who were to testify have disappeared. When we go to the courtroom, we see the testimony of a witness, a Professor who had published anti-Dukhovich writings, recounting how Dukhovich (personally! A dictator who gets his own hands dirty! Highly unlikely!) killed his family and sent him to a prison camp. Here’s where it goes downhill. The defence requests that the Professor’s testimony be ‘disregarded’ because it is ‘hearsay’. One of the judges bangs their gavel and says ‘sustained’. As you can imagine, here is where I groaned and put my head in my hands. Witness testimony is one of the principal sources of evidence for international courts and is not thrown out for being ‘hearsay’. In addition, international courts do not function like American courts with the in-court process of ‘objection’ and ‘sustained/overruled’. Nor, of course, do ICC judges have gavels (although they probably wish they did!).

However, what flows from this ruling is even more absurd. Because the Professor’s testimony has (instantly!) been ‘disregarded’, there is now no evidence at all against Dukhovich for his atrocity crimes. This is despite, as you recall above, the news story telling us that many victims had testified. And where are the reams of documents? The photo evidence? The video evidence? Apparently non-existent. The court has been told that there is one more witness (Kincaid), but that if he does not appear before the court by 5pm tomorrow, the case will be closed. It is completely unimaginable that this kind of deadline would occur before any of the international criminal courts or tribunals. Trials that drag on for years, suddenly have a 5pm deadline the next day?! In the film, the entire court, judges, lawyers, witness, etc, are sitting in the courtroom just waiting in case the witness shows up, literally watching the clock. In reality, unless the court is in session, the courtroom will be empty, with lawyers and judges elsewhere doing work. Of course, this is an absurd plot device designed to amp up the urgency of the transportation of Kincaid from London to Den Haag, but it is the most ridiculous part of the film.

The film also has a few scenes with Dukhovich in his ‘prison cell’. Bafflingly, far from the ICC prison in Scheveningen, Dukhovich instead appears to be housed in a 5-star hotel room, with a view, a personal attendant and room service, where he is free to stab his Interpol mole in the hand.

The only realistic ICC-related aspect of the film is when Dukhovich stands up in court to disrupt proceedings with a rant about how he is the rightful ruler of Belarus, that he recognises ‘no authority that limits my power’. This is typical disruptive behaviour by formerly powerful men on trial for atrocities; likewise the attitude that they are being persecuted for protecting their own people. In another scene in Dukhovich’s ‘prison cell’, he similarly rants ‘I come from nothing. I work all my life… Serving the people. And then they come into my country and they took it all away! And now they lock me up like a rat, feed me poison! Is this fair?’ Of course, the courtroom scene’s rant content may be accurate, but the procedure is not: to deliver his rant, in the middle of (spoiler alert) Kincaid’s testimony for the Prosecution, Dukhovich asks the judges if he can ‘say something’ and he receives a nod of assent. There is procedure to be followed in trials, and it does not include the defendant personally ‘saying something’ in the middle of a witness’ testimony.

Finally, let’s discuss the portrayal of Interpol. Throughout the film, Interpol is running the operation to move Kincaid from London to Den Haag, including offering Kincaid a deal (his wife, Sonia, played by Salma Hayek, will be released from prison in exchange for Kincaid’s testimony). The operation is run by active Interpol agents, crack field agents wearing bullet proof vests emblazoned with INTERPOL on the chest. Which is, of course, not how Interpol works. Interpol is an organisation that facilitates police coordination between jurisdictions. There are no active agents who carry out field ops. An operation across borders would still be run by local police- in this case, the British and Dutch police.

Yes, this film is meant to be fun, funny and silly (and it is, and I did still enjoy it). And maybe if I was a current or former spy, I’d watch these action movies and groan at their inaccuracies in that regard. But I’m not, I’m a lawyer who researches and teaches international law and policing, so instead I groan at inaccuracies in that regard. And let’s not even mention the fact that Sonia is held in a prison in Amsterdam, which is located in the city centre, where she has a big window with a view overlooking a beautiful main square… because everyone knows that’s where every country locates their prisons! Oh well, at least they got the royal blue colour of the ICC judges’ robes right.

Too Clever by Half: Why the ICC Will Probably Find No Jurisdiction Over the Deportation of the Rohingya

by Roi Bachmutsky

[Roi Bachmutsky is a human rights lawyer, recent graduate of Harvard Law School, and a Public Service Venture Fund and Sinclair Kennedy Traveling Fellow.]

The International Criminal Court (“ICC”) made headlines in April upon Prosecutor Fatou Bensouda’s filing of an Article 19(3) request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh. This is a big deal, but not for the reason you may think. As grave crimes appear to have been committed in Myanmar’s Rakhine State, the prospect of the ICC side-stepping a deadlocked UN Security Council to bring some modicum of justice to the Rohingya has excited many. Yet it is imperative that we remain sober because there is a thorny issue that was previously, and nearly universally, thought to bar ICC intervention—the lack of personal and territorial jurisdiction.

An affirmative ruling on the Prosecutor’s request would be a Grotian moment of jurisdictional expansion for the ICC with consequences that will reach far beyond crimes in Myanmar. When the Rome Statute was drafted, States could never have imagined the Court extending the long arm of justice to capture crimes committed by the nationals of States not party to the Rome Statute in their own territory. That is why human rights advocates have called for universal ratification of the Rome Statute and why there is so much concern about African States, and recently also the Philippines, threatening to withdraw. But if the Pre-Trial Chamber finds there to be jurisdiction over deportation from a non-State Party (Myanmar) to a State Party (Bangladesh) as a result of conduct that solely occurred in the non-State Party, the Court would be taking a step toward establishing universal jurisdiction over international crimes. This would, in effect, be a re-writing of the Rome Statute to grant itself power over non-States Parties.

The Prosecutor’s request draws on some clever lawyering in arguing that a re-writing of the Rome Statute is merely a matter of interpretation, but it is ultimately too clever by half. Upon a closer look, its arguments are found to rest on a flimsy legal foundation and are thus likely to be rejected by the Pre-Trial Chamber.

The Prosecutor’s brief rests on a single legal premise: that Article 7(1)(d) of the Rome Statute prohibiting “[d]eportation or forcible transfer of population” ought to be read as two, distinct crimes. Once that is established, the brief may argue that an “essential legal element” of the crime against humanity of deportation is the “crossing of an international border.” Since the Prosecutor has taken the position that at least one element of a crime must occur on the territory of a State Party for territorial jurisdiction to attach, the brief concludes that the ICC has jurisdiction in Bangladesh because the border crossing element occurred there. Whatever the case may be as a matter of customary international law, neither the texts of the Rome Statute and the Elements of Crimes nor ICC jurisprudence permit such an interpretation.

Let us begin with the text of the Rome Statute. The first problem with the claim that “deportation or forcible transfer of population” reflects two, distinct crimes is that they are structured under a single provision in the treaty, Article 7(1)(d). The brief seeks to brush this issue aside by noting that there are other provisions of the Rome Statute that “likewise encompass several legally distinct crimes.” In a footnote, however, it acknowledges that half of the provisions it cites in support of this claim are expressly divided into distinct crimes by the Elements of Crimes, e.g. the crimes against humanity of rape and other forms of sexual violence found in Article 7(1)(g)-1 to 7(1)(g)-6, while Article 7(1)(d) is not so divided. Meanwhile, the other provisions cited—Article 8(2)(b)(iv) and 8(2)(b)(viii)—have not been litigated before the ICC and thus have not been held to encompass multiple, distinct crimes. It is notable that the corresponding war crimes prohibition of “[u]nlawful deportation or transfer or unlawful confinement” in Article 8(2)(a)(vii) was split by the Elements of Crimes into the crimes of “unlawful confinement” and “deportation and transfer”—keeping deportation and transfer intact.

The only available precedent for a single provision of the Rome Statute being divided without explicit distinction in the Elements of Crimes is Article 8(2)(e)(vii) prohibiting “conscripting or enlisting” child soldiers “or using them to participate actively in hostilities,” which the Lubanga Trial Chamber held to encompass “separate offenses.” However, even this precedent falls short because the Chamber’s citation to two Judgments and a Dissenting Opinion before the Special Court for Sierra Leone makes clear that by “separate offenses” it did not mean that these were three, distinct crimes but merely that different conduct could constitute a single crime (i.e. an “open-conduct crime”).

The text of the elements for Article 7(1)(d) is even more revealing. The “crime against humanity of deportation or forcible transfer of population” is presented in the singular form with a single set of elements. This is reinforced by footnote 13, which provides that “[d]eported or forcibly transferred” is interchangeable with “forcibly displaced” such that the disjunctive formulation becomes immaterial. Again, the brief sweeps this text under the rug by arguing that it cannot be taken to mean that “deportation” and “forcible transfer” are “the same as one another” as that would contradict the first element which provides that a person be displaced to “another State or location.”

This point is worth dwelling on because this argument is relied upon throughout the brief—deportation and forcible transfer are different. But different what? The brief conflates deportation and forcible transfer being different “things” with them also being different “crimes.” This is a false equivalence. Of course, the drafting history of the Rome Statute and Elements of Crimes makes clear that deportation and forcible transfer are different “things”; deportation refers to the displacement of persons to the territory of another State while “forcible transfer” is the displacement of persons to another location within the same State.

But footnote 13 clarifies that Article 7(1)(d) is a single crime—forcible displacement. Since only deportation across State borders was codified prior to the Rome Statute, its drafters described this crime in the disjunctive formulation (“deported or forcibly transferred”) to ensure that it receives a broad interpretation that encapsulates displacements within a State’s territory. The same drafting technique was used in Article 7(1)(e) with respect to the crime of “[i]mprisonment or other severe deprivation of physical liberty.” So while deportation and forcible transfer are different things, they remain one and the same crime. Therefore, the “crossing of an international border” is not an element of the crime, let alone an “essential” one.

This is why the brief’s analogy to a cross-border shooting is mistaken. In a cross-border shooting, an element of the war crime of attacking civilians, for instance, is that the object of the attack (presumably across the border) must be civilian in character. The war crime is only completed once the element involving the object of the attack is established on the other side of the border. The present case is distinct from a cross-border shooting because, as the crime is completed upon the forcible displacement of the Rohingya in Myanmar, their travel across the border to Bangladesh is not legally required. The same crime, involving the same conduct performed by the same perpetrators, was committed against displaced Rohingya who did not manage to escape across the border and remain trapped in Myanmar to this day.

This conclusion has been cemented by the Pre-Trial Chamber’s confirmation of charges decision in Ruto. In that decision, the Chamber was faced with a challenge by the Defense that the disjunctive formulation in the Prosecutor’s charges (“deportation or forcible transfer of population”) was prejudicial to the accused because it compelled a defense against two crimes in the alternative. The Chamber rejected this argument in finding that the evidence presented provided substantial grounds to believe that the victims were “forcibly displaced.” It held that Article 7(1)(d) is a “unique crime” (read: singular) with “two labels” that depend on whether the “effect” of the displacement results in relocation within or outside the State. The Chamber was satisfied that these “labels” would be resolved by the Trial Chamber after charges are confirmed.

The brief takes issue with this holding in questioning the “legal significance” of the different “labels.” But that is precisely the point. The legal significance of the two “labels” exists to ensure a broad interpretation of the crime by articulating its two forms. After all, if the brief is correct that the crossing of an international border is an essential element of the crime, how could the Chamber have confirmed the charge of deportation while holding that “the evidence presented before the Chamber does not and should not indicate with any sort of certainty where the victims ultimately relocated”? It couldn’t, and therefore didn’t. In fact, Ruto stands for precisely the opposite proposition. Under the Rome Statute, Article 7(1)(d) is a single crime and, therefore, the destination of the victims is not an element of the crime but merely an “effect” used to “label” it after the charge is confirmed.

Upon refuting the Prosecutor’s claim that deportation and forcible transfer are really two, distinct crimes, the rest of the argument cannot stand. If this is a single crime with two forms, the crossing of an international border is not an element of the crime but merely a collateral effect. Therefore, according to the Prosecutor’s own standard for establishing territorial jurisdiction, there is no basis for jurisdiction in Bangladesh because “the conduct in question,” within the meaning of Article 12(2)(a), did not occur there. As such, the Pre-Trial Chamber is likely to hold that the Rome Statute does not provide jurisdiction over the deportation of the Rohingya.

Admittedly, I am disheartened that the ICC is unlikely to have jurisdiction over atrocity crimes committed against the Rohingya absent a UN Security Council referral. Yet that is all the more reason to place pressure on the P5 to permit referral and, critically, broader Security Council reform. To seek to bypass this reform by asking ICC judges to re-write the Rome Statute would be self-defeating, for it would have devastating consequences for the legitimacy of the Court. Like it or not, international law is still created by States and, if the Court strays from this fundamental principle, then States will surely reject the Court. States rightly expect the Court to apply lex lata (the law as it exists), rather than lex ferenda (the law as it should be).

As a reminder, the ICC is currently operating in a relatively hostile, nationalist environment. It is staring down the barrel of confrontations with powerful non-State Parties to the Rome Statute—including the United States, Russia, and Israel among others—which may not appreciate an illegitimate expansion of the Court’s jurisdiction. The Court is also deeply concerned about a wave of withdrawals akin to those pursued by Burundi, South Africa, and the Philippines. Judicial overreach would most likely accelerate these withdrawals.

The ICC faces difficult days ahead in building cases against perpetrators of international crimes around the world, particularly outside of Africa. In these trying times, it may be tempting to expand the Court’s jurisdiction over less powerful States not party to the Rome Statute that are engaged in brutal atrocities. However, such a short cut may in effect short circuit international criminal justice. Let us remain sober and committed to enforcing the law as it stands—the ICC’s future is at stake.

The ILC Meets in NYC:  Gender Diversity and End Work Product Emerge as Regular Themes  

by Kristen Boon

The International Law Commission, a group of 34 independent experts, charged with codifying and progressively developing international law is currently (and exceptionally) meeting at the UN in New York.

Amidst the substantive conversations on subsequent practice of treaties, customary international law, and jus cogens, there are two other themes that are coming up with some frequency.

First, the lack of gender diversity on the commission.  Second, the delay in developing the ILC’s work product into new treaties.

On gender diversity, the issue is a serious one.  In fact, a side event today is called “7 in 70”  that refers to 7 women in 70 years.   In its last elections, 4 women were elected to the ILC.  All were nominated from the European group.

While gender diversity has improved in many segments of the UN, the ILC remains seriously behind, and the Commissioners are concerned about it.   It is time to consider what new practices are required to improve diversity. For example, how can states open up their nomination process?  How can states ensure at the elections stage that that women are seriously considered?   As is well known, the ICC has an elections process designed to improve gender and other diversity on the bench, by a two list voting process.  As these photos show:  it has worked!

Compare this photo of the ILC members, and this photo of ICC judges.

Behind gender diversity is another consideration that a number of Commissioners have pointed out: although Art. 15 of the ILC Statute requires that its members be drawn from practice, academia and government, in reality, only individuals from well-funded organizations or institutions can make the unpaid 10-11 week commitment work.   The requirement to self-fund also has an impact on diversity, participation, and representation, particularly from developing countries.

A second theme of note is the fact that a major part of the work product envisioned for the ILC, namely the drafting of conventions, has slowed down.   The major recent projects of the ILC, such as State Responsibility, Responsibility of International Organizations, and Diplomatic Protection, have been replaced by the practice of writing draft articles (or conclusions) which are then taken note of by the General Assembly and recommended to Member States.  A number of countries, in particular Brazil, are heading the effort to move the Articles on State Responsibility, concluded in 2002, towards a treaty.  The idea is that the draft articles would serve as the basis of an eventual convention.  In addition, other issues could be discussion for addition, such as new articles on multiple breach or attribution.

From a law making process this issue is an interesting one:  states are asking what role the Commission should have in making law when it produces draft articles that are not turned into treaties, but then cited by courts as authoritative.   This issue of the paradox of form and authority was first raised by the late David Caron in 2002, when he noted the weight being given to draft articles.  Although many of the ASR are considered customary international law today, not all are, the most obvious example being the provisions on counter-measures.   If the ASR do become the subject of a new multilateral convention, it opens the way for other work product of the Commission, such as the Articles on Responsibility of IOs and the Articles on Diplomatic Protection to progress as well.

The International Community and the Challenge to the Rule of Law: The Future of Iran Nuclear Deal

by Katayoun Hosseinnejad and Pouria Askary

[Katayoun Hosseinnejad is a university lecturer of international law and attorney at law in Iran and Pouria Askary is an assistant professor of international law at law school of ATU and a visiting professor of law at Islamic Azad University and Tarbiat Modarres University.]

On May 10, two days after the US President pulled his country out of the Joint Comprehensive Plan of Action (JCPOA), Iranian Foreign Minister, in a letter to the UN Secretary General, states that ‘If JCPOA is to survive, the remaining JCPOA Participants and the international community need to fully ensure that Iran is compensated unconditionally through appropriate national, regional and global measures.’(here). While political discussion on this matter is ongoing, which has led, inter alia, to the recent European Commission’s decision demonstrating the EU’s commitment to the JCPOA by preserving the interests of European companies investing in Iran (Press release), this post discuses the legal obligations of states in preserving the JCPOA under the Charter, in general, and the Security Council Resolution 2231 (2015), in particular (here).

The Resolution 2231, aimed at settling the dispute over Iran’s nuclear programme, was adopted under Chapters VI and VII of the UN Charter by the affirmative votes of all the members of the Security Council including the US. The Resolution refers several times to Article 41 and explicitly mentions the obligation of states under Article 25 to accept and carry out the Security Council’s decisions. The Resolution, in its first paragraph, endorses the JCPOA and urges its full implementation.

As discussed by Dan Joyner and by Julian Ku, the JCPOA is not a treaty; however, the fact that it is endorsed and urged to be implemented in full by the Resolution 2231, makes it binding on the UN member states. The obligatory character of the Security Council’s decisions, even those that are not related to the enforcement measures under Chapter VII of the Charter, despite what has been argued by a few commentators, has been emphasized by the ICJ in its Advisory Opinion on Reparation for Injuries, when the Court pronounced:

The Charter has not been content to make the Organization created by it merely a centre ‘for harmonizing the actions of nations in the attainment of these common ends’ … It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it… and to accept and carry out the decisions of the Security Council… (Advisory Opinion, p. 178)

The Court elaborates this point further in its Advisory Opinion on Namibia, to reject the contention that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. The Court by emphasizing that ‘[i]t is not possible to find in the Charter any support for this view’, and the fact that this article ‘is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council’ holds that Article 25 ‘is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter.’ The Court adds further that a reading that limits the application of Article 25 to the enforcement measures under Chapter VII would make Article 25 ‘superfluous, since this effect is secured by Articles 48 and 49 of the Charter.’ (Advisory Opinion, para 113). Based on these considerations, the Court concludes that:

Thus when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision… To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter. (Advisory Opinion, para 116).

The Resolution 2231, adopted in accordance with the Charter, urges for the full implementation of the JCPOA. It calls upon all member states, as well as other international actors, to support its implementation and to refrain from actions that undermine implementation of commitments under the JCPOA (para 2). Hence, all the UN member states, including the US, are fully committed to implement the Resolution and the JCPOA, which forms a part of it. Although the use of the term ‘calls upon’ has led a few scholars such as John B. Bellinger to argue that this paragraph has not created any obligation under international law (here), as stated by the ICJ, the terms of the Security Council Resolution should be interpreted considering ‘all circumstances that might assist in determining [their] legal consequences’:

The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances… (Namibia Advisory Opinion, para 114).

To adhere to the idea that simply because of the use of the phrase ‘calls upon’ in the Resolution, states are free to refrain from its implementation makes the whole Resolution superfluous. The Resolution 2231, which marked a fundamental shift in the Security Council’s consideration of Iran’s nuclear issue, was adopted with the aim of providing a comprehensive solution to the dispute over Iran’s nuclear programme for which the comprehensive lifting of nuclear-related sanctions, including international and national sanctions, was an essential part, as stated in the Joint Plan of Action of E3/EU+3 and Iran issued on 24.11.2013. Thus, it cannot be argued that no state except Iran has hard law obligation in implementing the Resolution. In light of this, the recent decision of the United States to withdraw from this agreement and the measures it has taken to defy the implementation of the Resolution, by reapplications of US sanctions on Iran and its commercial partners in the world, is a material breach of its obligations to comply with the decisions of the Security Council under the Charter and therefore, entails its international responsibility.

The question, however, remains as to the legal relations arising from the occurrence of the US internationally wrongful act with the other UN member states.

Of course, every state, by virtue of its membership in the international community, has a legal interest in the fulfillment of certain essential obligations, and for that reason, states are under general obligation not to provide any aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter (Article 16 of the draft rules on state responsibility). Nevertheless, we believe that in this situation the UN member states have also positive obligations in taking appropriate measures to ensure the continuous implementation of the Resolution 2231 and the JCPOA, because the challenge imposed by the US is not only against Iran but it targets what forms the universally recognized bases of international legal order: pacta sunt servanda, good faith, multilateralism, international cooperation, and the rule of law.

Since the Charter is an international treaty, the obligations it contains are, from the point of view of their origin, treaty obligations for which all state parties, and not only the injured state, have an interest of a general character in compliance with it. Moreover, obligations of states under the Charter, in general, and the decisions of the Security Council, in particular, have special importance not only because of the expressed reference of Article 103, but also due to the important role they play in maintaining international peace and security.

The United Nations was established by peoples who were determined to ‘achieve international co-operation in solving international problems’ and for that purpose, their governments had obliged themselves to ‘fulfill in good faith the obligations assumed by them in accordance with the present Charter’. (Articles 1(3) & 2(2) of the Charter). The good faith performance of obligations of states under the Resolution 2231 requires them to take measures to enable its implementation. The Resolution contains positive obligations by emphasizing on the ‘States’ rights and obligations relating to international trade’ (preamble); it expressly underscores that member states are obligated under Article 25 of the Charter to accept and carry out the Security Council’s decisions (preamble). It further calls upon all member states, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and the Resolution 2231 (para 2). The good faith implementation of these obligations cannot be equated with the mere disagreement with the violation occurred and for that reason, in the joint statement issued by the Prime Minister Theresa May, Chancellor Angela Merkel and President Emmanuel Macron, they announced their commitment to ensure ‘the continuing economic benefits … that are linked to the agreement.’ (here). In the same line, the EU high representative has emphasized that ‘for the sake of our own collective security’, not only the European Union is determined to preserve the deal, but also ‘expect the rest of the international community to continue to do its part to guarantee that it continues to be fully implemented.’ (here). Accordingly, the President of the European Commission stated that ‘We must act now and we will act now. That’s why we are launching the process to use the 1996 Blocking Statute to neutralise the extraterritorial effects of US sanctions on European companies’.

When a state violates such an obligation in a systematic way, i.e. ‘in an organized and deliberate way’ and with the clear intention to violate the norm, other states have obligations in stopping the violator as the ICJ in Consular Staff in Tehran case has emphasized:

Such events cannot fail to undermine the edifice of law carefully constructed by mankind… the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. (Judgment, para 92).

The deal, which ‘is one of the biggest achievements diplomacy has ever delivered… belongs to the entire international community’, as correctly mentioned by the EU High Representative, Federica Mogherini (here). Faced with such a threat to the foundations of international legal system, the international community, in general, and Iran’s JCPOA partners, in particular, not only have strong interest but also obligation to take all necessary measures in order to guarantee the rule of law in international relations.

In closing, we thank Opinio Juris for letting us contribute this guest blog post.

PTC I’s Problematic Closed, Ex Parte Hearing on the Myanmar Situation

by Kevin Jon Heller

Last Friday, Pre-Trial Chamber I issued an Order Convening a Status Conference to consider the OTP’s request for a ruling on whether the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh — an issue I discussed here. According to the Order, the status conference will be held “on 20 June 2018… in closed session, only in the presence of the Prosecutor.”

I find a number of aspects of the short Order troubling. To begin with, I don’t understand why the PTC believes the status conference has to be held in closed session. Whether the ICC has jurisdiction over deportation from a non-member state to a member state is a pure issue of law, so what justifies the secrecy?

The answer seems to come in paragraph 4 of the Order, where the PTC says that, “[w]ith a view to adjudicating the Prosecutor’s Request, the Chamber orders the Prosecutor to consider the issues set out in the annex appended to the present order and to address them during the status conference.” The PTC thus clearly believes that there are other issues at stake concerning the OTP’s request in addition to the purely legal one. But the annex is also secret, so we have no idea what those other issues might be.

I am also troubled by the ex parte nature of the status conference. Why are counsel for Myanmar and Bangladesh not invited, given that the interests of those states are obviously affected by the jurisdictional issue — particularly Myanmar’s, given that the conference concerns the potential criminal responsibility of its officials? Even if the PTC is within its power to hold the status conference ex parte (which it probably is), doing so will only further alienate non-member states concerned with the ICC’s overreach and penchant for secrecy. So I hope the PTC has a very good reason for inviting only the OTP.

Finally — and perhaps most problematically — there is no doubt whatsoever that the PTC’s Order violates the Regulations of the Court, which the judges themselves wrote and adopted. Here is Regulation 20, concerning public hearings (emphasis mine):

1. All hearings shall be held in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber.

2. When a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order.

Even if we assume that the PTC has the power to hold a closed hearing, the Order does not comply with Regulation 20(2). The Order makes no attempt to explain why the status conference cannot be held in public. Literally none.

The PTC’s failure to comply with the Regulations and its general lack of transparency is unacceptable given the stakes — legal and otherwise — in the Myanmar situation.

ANZAC Day and Post Conflict Reconciliation

by Chris Jenks

[Chris Jenks is an associate professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in the US.]

On April 25th, I had the privilege of attending an ANZAC Day dawn service at Kranji War Memorial Cemetery in Singapore jointly sponsored by the Australian and New Zealand High Commissions. While the significance of ANZAC Day is innate to the Aussies and Kiwis, I’m betting that the ANZAC Day story, and particularly the unique relationship with World War I enemy Turkey, is largely unknown to the wider OJ audience.

ANZAC (Australian and New Zealand Army Corps) Day is April 25th, the day in 1915 some 16,000 Australian and New Zealand soldiers landed on the beaches of what was then Ari Burnu Turkey, as part of the Gallipoli Campaign during World War I. By day’s end over 2,000 ANZACs and 3,000 Turks would be dead, though this would prove but a bloody down payment on the total human cost. Britain’s First Lord of the Admiralty, Winston Churchill, was the campaign’s architect. Employing a force of British, Commonwealth and French forces, the mission was to seize the Gallipoli peninsula in order to allow the allied navies to transit supplies to Russia and to threaten and ultimately capture Constantinople (now Istanbul) the capital of Turkey, a wartime ally of Germany. While Winston Churchill’s grandson has continued to defend the Gallipoli campaign as ‘the right thing to do’ , the chief historian at the Australian War Memorial contends that “really it was a foolish plan that was ill-conceived and resulted in a useless waste of far too many lives for no good effect.” Arguably the key to the Turkish defense was the efforts of Turkish Army Colonel Mustafa Kemal. [After WWI Turkey became a Republic and Kemal its first President. The Turkish National Parliament later honored him with the title Atatürk or Father of the Turks.]

On that first day the allies established such a minimal beachhead that they considered evacuating, to which the General Sir Ian Hamilton, the British commander of the operation replied “[y]ou have got through the difficult business, now you dig, dig, dig, until you are safe.” Wrong on all counts, other than that the allies, and the Turks for that matter, most certainly did dig. What followed was eight months of stalemate warfare that killed or wounded over 130,000 allied troops (roughly 28,000 of which were Aussies and close to 8,000 Kiwis) and well over 200,000 Turkish soldiers. The First World War was defined by horrific trench warfare yielding minimal strategic or even tactical advantage at the expense of millions of lives lost. What makes the Gallipoli campaign so significant? While I’m quite sure I at best know only part of the answer, here’s my attempt. For the Aussies and Kiwis, ANZAC day seems to have profoundly impacted and to some extent defines their national identity and spirit. It’s about courage in the face of the unknown, perseverance, and maybe above all mateship – friendship and loyalty. ANZAC Day is a national holiday and features a dawn vigil, military reunion marches, and memorial services. ANZAC Day has come to commemorate war dead not just from WWI but all military operations which the ANZAC coalition has participated.

While by no means diminishing what ANZAC day means to Australia and New Zealand, all countries have their holidays commemorating wartime service and sacrifice. But what makes ANZAC day so compelling to me is how the relationship between former battlefield enemies has evolved.

Flash forward from the 1915 Gallipoli Campaign to 1934. Attaturk, President of Turkey, purportedly authored a tribute to the ANZACS who fought, and died, in Turkey:

Those heroes that shed blood and lost their lives…. you are now lying in the soil of a friendly country. Therefore rest in peace. There is no difference between the Johnnies and the Mehmets to us, where they lie side by side in this country of ours… you, the mothers who sent their sons from faraway countries, wipe away your tears. Your sons are now lying in our bosom and are at peace. After having lost their lives on this land, they have become our sons as well.

I say purportedly as there are questions as to whether Attaturk authored those exact words.   Contemporary, almost gleeful, attempts by Australian and UK media to debunk the quote’s bona fides claim the origin of the exact wording no earlier than 1953 while documenting similar sounding comments by Attaturk praising the ANZAC spirit as far back as 1931 (“Whatever views we of the present or future generations of Turks may hold in regard to the rights or wrong of the world war, we shall never feel less respect for the men of Anzac and their deeds when battling against our armies … The Turks will always pay our tribute on the soil where the majority of your dead sleep on the windswept wastes of Gallipoli.”)

I don’t claim to know where truth lies, but in this context I feel like the historical analysis misses the mark and the broader symbolic importance. At the 2018 ANZAC Ceremony I attended, the Turkish Ambassador to Singapore read the “Johnnies and Mehmets” quote attributed to Attaturk and placed a wreath at a memorial in the cemetery, just the latest demonstration of the unique post conflict relationship between the ANZACS and Turkey, not despite their being wartime enemies but because of it.

Australia and New Zealand built monuments to Attaturk in their capital cities, Canberra and Wellington. The Australian Attaturk memorial is prominently positioned on ANZAC Parade, a boulevard lined with military memorials which connects the Australian War Memorial at one end with Parliament House at the other. The Attaturk memorial is literally the closest memorial to the Australian War Memorial. In New Zealand, the Attaturk memorial is located on a ridge outside Wellington which was chosen for its similarities to the landscape of the Gallipoli peninsula. For its part, Turkey changed the name of Ari Burno to ANZAC Cove and established the Gallipoli battlefield as a national park. The park contains a number of monuments, including one which includes the “Johnnies and Mehmets” quote, which the monument attributes to Attaturk.

I find the manner by which the ANZACs and Turkey not only reconciled following WWI but share commemorative efforts fascinating, compelling and in some ways contradictory. There have not been comparable efforts between the ANZACs and WWI (and obviously WW II) enemy Germany. And Turkey has struggled to acknowledge and reconcile its WW I role in the deaths of hundreds of thousands Armenians in Turkey. So I wonder if ANZAC Day offers all of us, Australia and New Zealand and Turkey included, a contemporary lesson in reconciliation.

I submit that the shared ANZAC/Turkey commemorative efforts are proof, yet again, of the connection, the bond, which exists between those facing similar and staggering adversity. The perverse irony here is that of course each side caused a large portion of the other’s suffering. But from there my analysis breaks down. I want to draw some broader post-conflict lesson from these efforts that might aid in their not being war in the first place. But the predicate to the commemorative efforts is, of course, the underlying armed conflict.

On the other hand, one would think that the ANZACs and Turkey’s efforts to not necessarily honour their former enemy but recognize them have made it at least less likely that those countries will fight each other again. And if all countries which fought each other were able to engage in similar commemorative efforts perhaps we might tip the balance in the debate on whether armed conflict is a normal or abnormal aspect of the human condition. Much easier said than done to be sure. I confess to being amazed at what and how the ANZACs and Turkey have done what they’ve done, while also pessimistic of those efforts being replicated. But their efforts are proof that it’s possible.

The Past, Present, and Future of the Veto: An Additional Reply to Dr. Mohamed Helal

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

I, too, would like to thank Opinio Juris for our mini-symposium and dialogue on the use of the veto in the face of atrocity crimes. I hope it stimulates further thought, analysis and work on these important issues.

For those who missed the debates, I posted attacking the legality of Russia’s veto in the face of chemical weapons use in Syria, Dr. Mohamed Helal defended Russia’s veto use as consistent with the drafting of the UN Charter, and I responded. Kevin Jon Heller then weighed in on one particular aspect of my position, and I responded to him.

I will refrain from repeating earlier arguments, and will respond to Dr. Helal’s latest post—accepting his framework of examining Security Council veto use in the past, present and future.

First: The Past

Dr. Helal provides a strong historical account of the San Francisco Conference.

However, he had earlier written, in relationship to the situation in Syria, the Permanent Members “have exercised the veto exactly as anticipated when the UN Charter was negotiated.”

And, I made the point – well, no, they never discussed the kinds of vetoes that are occurring now: blocking chemical weapons inspections, blocking referrals for prosecution, blocking a ceasefire or blocking humanitarian aid.

Thus, I stand by my statement: “The veto power has morphed into contexts that were simply never discussed in 1945.” (This is obviously true, as these topics were simply not considered in 1945.)

But, at the same time, I did not draw the conclusion that because these matters were not discussed in 1945 that they were excluded from the veto—if we consider the veto as read in 1945.

If we examine the travaux préparatoires, the non-permanent member states were trying to exclude veto power generally, trying to exclude its use for a state involved in the dispute at hand, and trying to exclude its use for matters under Chapter VI—all to no avail. So, yes, I agree the Security Council’s power is quite broad, as the permanent members walked away in 1945 with a veto power having few express limitations.

Second: The Present

On the other hand, broad, does not mean unlimited. And here I think we should consider two other provision in the UN Charter:

Firstly, the Security Council also has duties. Article 24.1 gives it “primary responsibility for the maintenance of international peace and security.” This is described in the Charter as one of its “duties.”

Secondly, the Security Council also has a limitation placed on its actions. Article 24.2 states: “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.”

Therefore, the Security Council has both duties, and a limitation on its power directly contained in the Charter. The UN, and therefore its organ (the Security Council) is also subject to international law, so the veto power does not sit in isolation from the international legal system.

I will just briefly respond to Dr. Helal’s statement: the “Council enjoys boundless authority to decide whether a situation constitutes a threat to or breach of the peace or an act of aggression.” True, it can freely make that determination under its Chapter VII powers, but note that the International Criminal Court, for example, would not be bound by any substantive determination the Security Council makes as to the crime of aggression. See Rome Statute, art. 15bis, para. 9 and 15ter, para. 4. So this isn’t quite “boundless” authority if the ICC doesn’t have to listen to it for purposes of adjudicating individual criminal responsibility.

I will also note that Dr. Helal’s statement “Even if the Council determines that a situation is indeed a threat to the peace, breach of the peace, or act of aggression, nothing in the Charter requires it to take any action to address that situation,” is also somewhat contradicted by the text of Article 24.1 which suggests the Council has an obligation to act, or at least the primary obligation to act, to maintain “international peace and security.”

Alas, he is all too correct that the Council has acted “selectively” and treated “identical cases differently.”

Third: The Future

I am glad that Dr. Helal concedes we should not be limited to a 1945 construction of the UN Charter, but that we should read it “as a living document.” He mentions “subsequent practice” informing how we read the Charter.

Yet, because the Charter is the constitutive instrument of the UN system, it is not informed by just any “subsequent practice,” and probably not even “customary international law.” While the Charter is a treaty, it is not an ordinary treaty, but “the” treaty of the international legal system.

But what is above the Charter (hierarchically) are jus cogens norms.

And what is on a par with the Charter (and, hence, veto power contained in article 27.3), is the remainder of the Charter.

I did not make my argument based on “subsequent practice” as he suggests, nor did I ground it in R2P or the World Summit Outcome document, nor did I argue there is a “duty” to act in the face of atrocity crimes (although I reserve making that argument).

To clarify, we need to consider based on current law that presently exists (lex lata), whether:

  • a veto in the face of genocide, crimes against humanity or war crimes is consistent with jus cogens norms
  • a veto in the face of genocide, crimes against humanity or war crimes is consistent with the purposes and principles of the UN Charter, to which the UN Security Council is bound to adhere pursuant to Article 24.2.

To reinforce my 2nd point, for example (as I know he disagrees with my 1st point), note that the preamble to the Chemical Weapons Convention suggests use of chemical weapons is a violation of the purposes and principles of the UN Charter. (The preamble states that the Convention desires “to contribute to the realization of the purposes and principles of the Charter of the United Nations,” implying that use of chemical weapons is contrary to the purposes and principle of the Charter). Note also that chemical weapons use is likely also a “grave breach” of the 1949 Geneva Conventions because chemical weapons use would certainly constitute “willfully causing great suffering or serious injury to body or health.” How then is exercising the veto in the face of chemical weapons use consistent with the UN’s purposes and principles?

But, I also concede, there may be limits to what I am arguing: probably one cannot 100% change how the veto is used, because that would entail a Charter amendment, and the P5 have veto power over Charter amendments. I am not trying to bring on a constitutional crisis of the UN system, nor a result where one of the permanent members contemplates withdrawal.

What other states can do more of, for instance, in the upcoming debate on the Security Council and International Law on May 17, is to question how the veto power is being used, and press Russia (or any other state that uses the veto in the face of atrocity crimes), for example, to explain how its veto is: (1) consistent with jus cogens norms; and (2) consistent with the proposes and principles of the UN Charter.

I close with sharing Dr. Helal’s dismay at the inability of the UN to intervene effectively in mass atrocity situations and hope that we can revitalize R2P and/or use other bodies of international law to contribute to better using the tools of international law to serve the victims of atrocity crimes.

The Past, Present, and Future of the Veto: A Further Response to Professor Jennifer Trahan

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University.]

I would like to start off by thanking Opinio Juris for hosting what has evolved into something of a mini-symposium on the legality of the veto, the powers and purposes of the Security Council, and, implicitly, the values and principles underlying international law. I would also like to thank Professor Jennifer Trahan for engaging with and responding to my rejoinder to her original post and Professor Kevin Jon Heller for his important contribution to the conversation.

To avoid repeating the arguments I made in my previous post and in the interest of brevity, I have divided Professor Trahan’s arguments in her responses to Professor Heller and myself into three broad categories, which relate to the past, present, and future of the veto.

First: The Past

Professor Trahan listed examples of the measures that were included in the draft Security Council resolutions on the situation in Syria that were vetoed by Russia. These measures include referring the situation in Syria to the International Criminal Court (ICC), condemning the shelling of civilians and other human rights violations, calling for a ceasefire in Aleppo, and condemning the use of chemical weapons. Professor Trahan then stated that “there was nothing in the travaux préparatoires of the San Francisco Conference about using the veto in this way. The veto power has morphed into contexts that were simply never discussed in 1945.”

Professor Trahan is right, but draws the wrong conclusions from that observation. Of course there are no references in the travaux préparatoires to specific measures or actions, such as calling for a ceasefire or condemning human rights abuses, that may or may not be vetoed by the Permanent Members of the Security Council. Nor are there references to specific contexts, such as civil wars or acts of aggression, in which the Permanent Members may or may not use their veto power. This, however, is not an oversight or an inadvertent omission.

The reason, as I explained in my earlier response to Professor Trahan, is that during the negotiations on the UN Charter the future Permanent Members made absolutely sure that there would be virtually no limitations on their discretion to use the veto. Indeed, when pressed to identify the situations in which they would not use the veto, the future Permanent Members promised only not to prevent a UN Member State from bringing a matter to the attention of the Security Council. (Another limitation on the veto appears in Article 27(3) of the Charter, which requires the Permanent Members to abstain from the vote if the Security Council is exercising its powers under Chapter VI with respect to a dispute to which one of the Permanent Members is a party). The future Permanent Members were explicit that they reserved the right to veto any proposed measure or action, even the faintest diplomatic censure, beyond that basic right of a UN Member State to bring a matter to the attention of the Security Council. Therefore, contrary to Professor Trahan’s claim, the lack of any reference in the travaux préparatoires to permissible or impermissible uses of the veto is the result of the insistence of the Permanent Members that there be no limitation on the veto. (For a highly readable history of the drafting of the Charter, see: Stephen Schlesinger’s Act of Creation: The Founding of the United Nations. For a more academic and highly detailed history of the travaux préparatoires of the UN Charter, see: Ruth Russell, A History of the United Nations’ Charter: The Role of the United States, 1940–1945).

Moreover, and this is not a point I made in my first response to Professor Trahan, the breadth of the veto is matched by the essentially limitless discretion of the Security Council regarding whether and how to respond to a crisis or situation or dispute that threatens international peace and security. For the sake of space and concision, I will not provide a detailed reconstruction of this aspect of the travaux préparatoires of the Charter, but suffice it to say that the Council enjoys boundless authority to decide whether a situation constitutes a threat to or breach of the peace or an act of aggression. The Charter granted the Council the right to conclude that any conduct or situation even if not amounting to a breach of international law warranted the Council’s intervention. The Council is also under no obligation to determine that violations of international law – including acts of aggression or mass atrocities – constitute threats to or breaches of the peace. Even if the Council determines that a situation is indeed a threat to the peace, breach of the peace, or act of aggression, nothing in the Charter requires it to take any action to address that situation. Furthermore, nothing in the Charter requires the Council to act consistently. Situations, crises, or behavior previously deemed threatening to international peace and security does not need to be treated as such in future settings. In other words, the Council is not a global law enforcer; it is free to act selectively and to treat identical cases differently. (For more on this, see here and here)

Second: The Present

Professor Trahan argues that I am relying extensively on the negotiations that occurred in 1945 and writes that this “raises the question why should we be limited to a 1945 reading of the Charter and international law.” Professor Trahan then adds that “international law is sufficiently advanced that the Charter should be construed in a way that is consistent with jus cogens and the Charter’s own purposes and principles.”

I agree. Depending exclusively on the text of the UN Charter or its travaux préparatoires to interpret its content would be an exercise in tedious textualism and arid originalism. In fact, the Charter, like any treaty, ought to be read as a living document. The subsequent practice of the UN Member States and, to use the language of the Vienna Convention on the Law of Treaties, the “relevant rules of international law applicable in the relations between the parties” ought to inform the interpretation of the Charter.

Nonetheless, I still disagree with Professor Trahan’s assertions regarding the illegality of a veto by a Permanent Member in situations that relate to mass atrocities. Nothing in the subsequent practice of the UN Member States, the Security Council, or the other organs of the UN supports Professor Trahan’s claim that there exists any legal limitation on the veto. Nor have any rules of international law that have emerged since 1945 generated such a limitation on the veto. I have already challenged Professor Trahan’s claims regarding the impact of jus cognes on the right of Permanent Member to exercise the veto. In this post, I will focus on one especially glaring instance of practice that refutes Professor Trahan’s claim that a legal obligation on the Permanent Members not to veto resolutions on mass atrocities has emerged since 1945.

In 2005, the UN General Assembly adopted the World Summit Outcome Document, which included the much (and, I might add, unjustifiably) celebrated concept of the Responsibility to Protect (RtoP). The text of the Outcome Document, the language used to describe RtoP, and its application in subsequent years all demonstrate that the UN decided not to institute any limitations on the veto, including in cases of atrocity crimes. Moreover, RtoP as adopted by the UN in 2005, created no obligation whatsoever on the Security Council to take any action in response to mass atrocities. Instead, the General Assembly merely stated the following:

we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

As I’ve argued in a previous article titled Justifying War and the Limits of Humanitarianism, in terms of international law, RtoP added nothing. It merely restated what we already knew; namely, that the Security Council may, on a case-by-case basis, intervene to prevent mass atrocities. Despite the emergence of a normative hierarchy in international law and the acceptance of the concepts of jus cogens and obligatio erga omnes, the international community elected not to create a positive obligation to prevent mass atrocities or to create any limitation on the veto. Some readers might suspect that this outcome was the result of the opposition of countries such as Russia, China, and the Non-Aligned Movement to the concept of RtoP. In fact, the reality is that some Western States, especially the US, were equally reluctant to accept any limitation on the veto or any obligation on the Security Council to intervene to prevent mass crimes (For more on that, see Edward Luck’s article titled Sovereignty, Choice, and the Responsibility to Protect). In a revealing letter sent to all Permanent Representatives to the UN, then-Ambassador (now National Security Adviser) John Bolton wrote the following:

[T]he Charter has never been interpreted as creating a legal obligation for Security Council members to support enforcement action in various cases involving serious breaches of international peace . . . We do not accept that either the United Nations as a whole, or the Security Council, or individual states, have an obligation to intervene under international law. We also believe that what the United Nations does in a particular situation should depend on the specific circumstances. Accordingly, we should avoid language that focuses on the obligation or responsibility of the international community and instead assert that we are prepared to take action.

The similarity between the language of the US Ambassador’s letter and the final language of RtoP should be patently apparent. This position is not unique to Republican Administrations nor is it attributable to John Bolton’s hawkishness and his avowed antipathy towards the UN and multilateralism generally. In 1998, the US Ambassador-at-Large for War Crimes, Professor David Scheffer, a democrat and ardent advocate of international criminal justice, explained the US interpretation of the obligation to prevent genocide, which is enshrined in the Genocide Convention. He stated:

States Parties confirm that genocide whether committed in time of peace or war, is a crime under international law that they undertake to prevent and punish … A State Party may choose from among a range of measures – diplomatic pressure, economic sanctions, judicial initiatives, or the use of military force – to undertake to prevent or punish genocide. But the State Party’s choice is necessarily discretionary. (Quoted in William Schabas, Genocide in International Law, p. 496)

Third: The Future

Finally, I would like to use this opportunity to briefly reflect on a broader normative matter.

I am unable to determine with certainty whether Professor Trahan believes that, as a matter of lex lata, a rule has emerged to prohibit vetoes by the Permanent Members of the Security Council in situations of mass atrocities. In her response to my post she stated: “I do not believe my arguments are de lege ferenda.” However, in her response to Professor Kevin Jon Heller, she wrote: “the international system needs to evolve in this direction, because we are at a log-jam with vetoes being used to [block] Security Council initiatives aimed at curtaining or alleviating the commission of genocide, crimes against humanity, and war crimes.” These statements indicate a degree of hesitance or ambiguity on the part of Professor Trahan in describing the state of international law as it is today.

Nonetheless, Professor Trahan is clear regarding where she thinks international law ought to go. Professor Trahan and many other international lawyers advocate limitations on the veto, especially in cases of mass atrocities, and highlight the human costs of the Security Council’s inaction. I share Professor Trahan’s dismay at the inability of the UN to intervene effectively in crises that entail mass human victimization. As I said in my initial response to Professor Trahan’s original post: “[t]he Syrian civil war and the human suffering it has wrought is a blight on the conscience of humanity. It is a tragic and heartbreaking situation.” I also clearly stated, contrary to Professor Trahan’s portrayal of my position, that “my objective is not to defend Russia or to engage in an apology for power politics.”

However, I have noticed that in legal academia there is a general lack of critical reflection on whether proposed limitations on the veto are entirely and unquestionably desirable from a policy perspective. Are there no potential downsides to restrictions on the veto? Are there no conceivable unintended consequences to alienating major powers that are also nuclear weapons states? Are there no potential costs to threatening the vital interests of those great powers? Are there no virtues to a rule that contributes to keeping the major powers in the UN and engaged in its diplomatic processes? Consider the countless occasions on which the United States vetoed draft resolutions that condemned Israel’s violations of international law, including international humanitarian law, in the Occupied Palestinian Territories, Lebanon, and elsewhere. Or think of the numerous US vetoes of resolutions critical of the situation in apartheid South Africa or Southern Rhodesia or Namibia. Or think of the US veto in June 2002 on a resolution on the situation in Bosnia because of American concerns regarding the possibility that US personnel could be brought before the ICC. Or think of a future scenario where a resolution is brought before the Security Council proposing admitting Taiwan to the United Nations either as a full member or as an observer. How would China react if it did not have the assurance of the veto?

Is it not conceivable that, in any one of these situations, a major power, such as the US or China or Russia might consider withdrawing from the UN or at least adopt an aggressive posture towards the organization? Indeed, the US already has a record of leaving major UN specialized agencies, such as UNESCO, or UN subsidiary organs, such as the Human Rights Council, when it felt that its foreign policy objectives were subjected to significant challenges in those bodies. Similarly, although in retrospect is proved to be a disastrous decision, Russia boycotted the Security Council in 1950 due to Western refusal to recognize the Peoples Republic of China as the legitimate representative of China. Would such an outcome be desirable? Would it contribute to promoting and preserving international peace and security?

Let me be abundantly clear. I have no definitive answers to these normative and policy questions. I offer them here merely as an invitation for critical reflection. Furthermore, my purpose is not to celebrate the veto. I am not oblivious to its human costs nor am I simply an apologist for power. However, international law and the causes of minimum world order and human rights will not be advanced by simply ignoring, wishing-away, or merely condemning the political reality in which international law operates.

The End of the Iran Deal and the Future of the Security Council Snapback

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.]

Yesterday, President Trump announced that the United States will withdraw from the Iran deal. He is not claiming any major breach by Iran, but rather withdrawing because, in his view, it was a terrible deal from the start. As a matter of domestic and international law, he has the power to do this. As a matter of policy, this is a particularly ugly manifestation of the Trump Doctrine – of undoing President Obama’s signature initiatives based on dubious reasoning and questionable motives. Iran is a bad actor, but it is hard to fathom how this will be improved by re-raising its incentive to develop nuclear weapons, demonstrating that the United States is a deeply unreliable negotiating partner, and handing a propaganda gift to Iranian hard-liners.

But here we are. And what is next? I want to focus on one small piece of this unhappy question – the ability of the United States to invoke the “snapback” provision of Security Council Resolution 2231.

As a refresher, Resolution 2231 lifted prior sanctions imposed by the Security Council on Iran in the course of blessing the Iran deal (formally known as the Joint Comprehensive Plan of Action or JCPOA). These prior sanctions had been an important piece of the pressure brought to bear against Iran, in addition to separate sanctions imposed unilaterally by the United States and allies. But in lifting the Security Council sanctions, Resolution 2231 contained a “snapback” provision. This provision provides that if “a JCPOA participant State” notifies the Security Council of “an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA,” then all the prior Security Council sanctions will be re-imposed on Iran after 30 days unless the Security Council affirmatively votes not to re-impose the sanctions. In other words, provided that the pre-conditions are met, a JCPOA participant State who wields a Security Council veto can single-handedly force the re-imposition of prior Security Council sanctions.

In announcing withdrawal from the Iran deal, President Trump did not mention the snapback provision. And the United States is unlikely to try to invoke the snapback provision immediately. As a matter of strategy, this seems like a good card to hold in reserve, at least until Iran actually does cease complying with the deal. As a matter of law, for the Trump Administration to even try to invoke the snapback, it must specify its belief that Iran is not substantially performing its commitments under the JCPOA – and so far, the United States has not even attempted to argue this.   Over on Lawfare, Elena Chackho writes that “[i]f the U.S. does attempt to trigger this ‘snap-back’ mechanism … it appears that there is little the other members of the Council can do to prevent the Security Council sanctions being re-imposed.” I disagree. As I’ve written earlier, other nations could appropriately dispute the legal effectiveness of the snapback’s invocation if the United States triggers it without good faith grounds for believing Iran to be significantly non-performing its commitments under the JCPOA.

But what if Iran later ceases its performance of the JCPOA, now that the United States has failed to hold up its end? In that case, could the Trump administration successfully invoke the snapback provision?

As a legal matter, I think this also poses some challenging questions of interpretation. The snapback provision turns out to have been drafted mostly in anticipation of the wrong contingency, namely the risk that Iran would be the initial defector. That makes it rather complicated to apply to the current situation. I am still thinking through the interpretive issues, but let me sketch out a few initial thoughts here.

Because the United States will be withdrawing from the deal and re-imposing sanctions on Iran, there are at least two reasons why it might not be entitled to invoke the snap-back provision. First, one could argue that the United States will have lost its right to do so. Textually, one could argue that it will no longer be a “JCPOA participant state” once it has withdrawn from the deal. This may sound persuasive, but it doesn’t work so well on a closer look at the text. In paragraph 10, Resolution 2231 speaks of “China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran (the ‘JCPOA participants’).” Therefore, its use of “JCPOA participant state” just seems like a shorthand for these countries, excluding the EU. Nonetheless, the use of this shorthand does at least signal the underlying assumption that the party invoking the snapback will itself still be in the deal. This in turn might support a claim that the United States is estopped from invoking the snapback in a situation where it has itself first abandoned the deal.

Second, one could claim that the United States has no good-faith basis for believing Iran to be in “significant non-performance of commitments under the JCPOA” if Iran’s non-performance stems in turn from U.S. non-compliance. Let’s assume that, before ceasing its own performance, Iran invokes the dispute-resolution provisions of the JCPOA (which involve several steps, including ultimately an Advisory Board giving a non-binding opinion). Then, under paragraph 36 of the JCPOA, “[i]f the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant non-performance, then the participant could treat the unresolved issue as grounds to cease performing its commitments under the JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes non-performance.” Iran will presumably not notify the Security Council of U.S. non-performance, since that would trigger the snapback detrimental to Iran’s interests. But it will have “grounds to cease performing its commitments.” And if it has grounds to cease performing its commitments, then it is acting within its rights under the JCPOA. It is therefore not engaged in “significant non-performance of commitments” because these commitments have themselves been suspended. One can extend this, albeit with difficulty, to argue that the United States cannot make a good faith notification to the contrary. Overall, this argument is probably too cute to be convincing. It has a certain amount in common with the material breach argument that the United States used to justify the second Gulf War. Moreover, this reasoning would given Iran a way to duck the snapback any time it had exhausted the JCPOA dispute settlement provisions and continued to have a good-faith belief that one of the other JCPOA parties was failing to significantly perform under the deal – an interpretation which strikes me as unlikely to have been acceptable to the U.S. negotiators at the time.

But while these arguments are unlikely to be persuasive to all, they could well be persuasive to some. Any countries which are persuaded could legitimately dispute the legal effectiveness of the snapback’s invocation by the United States and therefore decline to treat the prior Security Council sanctions as being re-imposed on Iran. If they do this, the United States would not have any legal lever for making its invocation of the snapback prevail, except in the unlikely event that it could persuade the Security Council to formally endorse this invocation or have the Security Council (or General Assembly) seek and receive an advisory opinion from the International Court of Justice in favor of its interpretation. Thus, if the Trump Administration wishes to invoke the snapback, it must be aware that its own repudiation of the Iran deal may reduce the effectiveness of this invocation.

There is a broader point worth noting here about the use of snapbacks and other trigger termination provisions. After Resolution 2231 passed in 2015, I wrote a comment in AJIL celebrating the potential of such provisions. But I noted that these provisions need to “incorporate protection against arbitrary activation.” I also suggested that there would often be advantages to entrusting independent civil servants like the Secretary-General with the power to trigger termination, rather than vesting this power with individual states. These points seem all the more important today.

A Brief Response to Kevin Heller’s Comment About My Post

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

The background to a series of Opinio Juris posts about proper use of Security Council veto power is: I have posted attacking the legality of Russia’s veto in the face of chemical weapons use in Syria, Dr. Mohamed Helal has defended Russia’s veto use as consistent with the drafting of the UN Charter, and I responded, not entirely denying that reading, but calling, in essence, for a more updated reading of the UN Charter (where the veto power derives from in article 27.3), that considers also other bodies of international law.

What I argued is that it is possible to read the Charter in the way Dr. Helal does, it is just not a satisfying reading to say the P5 are above all other sources of international law, so I argue that we should consider the interrelationship between jus cogens norms and the purposes and principles of the Charter, which should inform how the veto power is read. In other words, the veto power sits within a system of international law that conceivable has something to say about how it is utilized.

In responding to Dr. Helal, I argued that there are many other States that would take issue with an unrestrained reading of the Charter, specifically those that have joined the ACT Code of Conduct and French/Mexican initiative, which both call for voluntary veto restraint in the face of genocide, crimes against humanity and war crimes.

That these States call for “voluntary” veto restraint in the face of atrocity crimes—which I do note in my post—in no way implies, as Kevin Jon Heller argues, that these States maintain that there are no legal limits to the use of the veto. This is a leap in logic.

When States launched or joined these initiatives, this was the political “space” available to them—to endorse voluntary veto restraint. This shows a tremendous and recent shifting of collective consciousness that the veto should be subject to some form of restraint. It was not long ago that the “S5” countries withdrew a similar proposal, and the “responsibility not to veto” found in early iterations of the “responsibility to protect” then disappeared from R2P literature. So this areas has been undergoing a rapidly accelerated evolution.

The problem with voluntary veto restraint, however, is that three of the permanent members are not joining this voluntary restraint (the US, China and Russia). Thus, if the goal was to change Security Council voting through these initiatives, it cannot fully succeed until all five of the permanent members join, which might never happen.

There is nothing in States joining an initiative calling for voluntary veto restraint that suggests they do not support or maintain there could be other approaches to addressing the problem of unrestrained veto use.

The international system needs to evolve in this direction, because we are at a log-jam with vetoes being used to blog Security Council initiatives aimed at curtailing or alleviating the commission of genocide, crimes against humanity, and war crimes (with the vetoes on Syria providing just one example). And, we are at a log-jam when not all of the P5 will join the Code of Conduct or French/Mexican initiative. This is why we need to examine the interrelationship of the veto power and jus cogens norms, and the interrelationship of the veto power and the purposes and principles of the UN Charter, and seek a new approach—one that looks to the body of international law that we now have (not only what existed in 1945) as a way to interpret the veto power.