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No, There Is No International Legal Basis for the “Bloody Nose” Strategy

by Kevin Jon Heller

At Lawfare yesterday, two law professors at West Point defended the US’s right to attack North Korea if it tests another nuclear weapon or fires another missile into Japanese waters:

North Korea is extraordinarily close to becoming a . This very real possibility has reportedly resulted in the United States debating a limited military strike dubbed the “bloody nose” strategy. In effect,  would allow for a timely and proportional response against North Korean sites in the event of another nuclear test or missile launch. For , such a strike might include using force to target a North Korean missile site or a military base. The hope would be that such a strike would “” and “illustrate the high price the regime could pay for its behavior” without “igniting an all-out-war on the Korean Peninsula.”

In the authors’ view, “[t]here is a strong argument such a strike would be lawful” either as collective self-defense of Japan or as individual self-defense by the US.

I disagree.

The fundamental problem is that “another nuclear test or missile launch” would not qualify as an armed attack sufficient to give rise to the right of either collective or individual self-defense. The authors make no attempt to explain how another nuclear test would be an armed attack — which is not surprising, given that previous tests have all been on North Korean territory (with terrible consequences for North Koreans). And here is their argument concerning another conventional missile launch:

More difficult is determining whether North Korea’s current behavior justifies the limited military strike proposed in the “bloody nose” strategy. Consider, for example, another North Korean test in which it launches an unarmed missile into Japanese sovereign territory. Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “” and thus could be construed as a “weapon.” According to the and the , a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression. Such a North Korean missile launch would seem to fall within this definition and could  as an armed attack.

On the contrary, such an interpretation would not be reasonable — even if we accept the idea that an unarmed missile is a weapon. Tom Ruys has carefully analysed state practice concerning when a de minimis attack qualifies as an armed attack for purposes of self-defense. Here is his conclusion (p. 155; emphasis mine):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

The attack that the authors imagine — an unarmed missile fired into Japan’s territorial sea — is precisely the kind of attack that is not “capable of resulting in destruction of property or loss of lives.” That attack thus cannot give rise to the right of self-defense. Indeed, even the source that the authors cite, Karl Zemanek’s entry “Armed Attack” in the Max Planck Encyclopedia of International Law, rejects their insistence that an unarmed missile fired into Japan’s territorial sea could “reasonably be interpreted as an armed attack.” Here is what Zemanek says about de minimis attacks (emphasis mine):

In sum, it is submitted that regardless of the dispute over degrees in the use of force, or over the quantifiability of victims and damage, or over harmful intentions, an armed attack even when it consists of a single incident, which leads to a considerable loss of life and extensive destruction of property, is of sufficient gravity to be considered an ‘armed attack’ in the sense of Art. 51 UN Charter.

The authors’ claim that the US would be entitled to act in “collective self-defense” in response to an “armed attack” in the form of an unarmed missile fired into Japan’s territorial waters is also problematic. Here is their argument:

The 1960  of Mutual Cooperation and Security between the United States and Japan states “[e]ach Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” This treaty may provide a basis for the United States’ to engage in a limited retaliatory strike. One could argue that, pursuant to the 1986  out of the International Court of Justice (ICJ), the United States would have to obtain Japan’s affirmative consent before engaging in a strike against North Korea in collective self-defense. However, Article 51 certainly does not refer to any such prerequisite, and the ICJ’s conclusion in Nicaragua is . On a more practical note, it is highly unlikely  a collective self-defense strike by the United States.

It is not clear why the authors believe that Japan would not need need to specifically consent to “collective self-defense.” There are two possible interpretations of their argument: (1) the Treaty of Mutual Cooperation automatically provides the US with the consent it needs to “defend” Japan in case of an armed attack; (2) collective self-defense never requires the consent of the attacked state. The authors’ criticism of the Nicaragua judgment implies that they take position (2). As Ruys explains, however, state practice — from Jordan in 1958 to South Vietnam in 1965 to the Soviet invasion of Afghanistan in 1980 — indicates that collective self-defense is lawful only when the state with the right of individual self-defense requests it (pp. 88-89):

This brings us to the third and decisive reason why the conception of collective ‘defence of the other’, endorsed by the ICJ and a majority of legal scholars, holds the upper hand over the ‘defence of the self’ approach: customary practice provides virtually no support either for the requirement that a proximity relationship should exist, or for the idea that collective self-defence may be exercised absent the approval of the actual victim State. On the contrary, practice convincingly shows that a State which is the subject of an attack has a legal right to ask for military assistance.

[snip]

In sum, in each case, what was deemed crucial was whether the actual victim State had a right of individual self-defence, and whether it approved of the actions of the assisting State. Of course, the assisting State will most often have some sort of interest in responding to the victim’s request; States seldom engage in military action out of pure altruism. Yet, practice makes clear that a proximate relationship is not a legal criterion; only the victim State’s approval is.

The stronger argument, then, is that the Treaty of Mutual Cooperation would automatically provide the necessary consent for US to engage in “collective self-defense.” Aurel Sari raised this possibility on Twitter last night. I am not convinced that the Treaty eliminates the need for Japan’s consent to armed force being used on its behalf. In particular, Art. IV provides that “[t]he Parties will consult together… at the request of either Party, whenever the security of Japan or international peace and security in the Far East is threatened,” which seems to contemplate acts of self-defense being undertaken only with the specific agreement of both Japan and the US. But Aurel’s argument must still be taken seriously, and it provides the only coherent basis for the authors’ position on collective self-defense.

(As an aside, I find very unconvincing the author’s casual assertion that “it is highly unlikely  a collective self-defense strike by the United States.” On the contrary, I think Japan would be quite likely to oppose the US responding to a unarmed missile attack by using force — even relatively restrained force — directly against North Korea. A North Korean response would be more likely to target Japan than the US. So Japan would have every incentive not to consent to “collective self-defense” in such a situation.)

Finally, I find very unconvincing the author’s insistence that the US is close to having an individual right of self-defense against North Korea:

Even without another missile targeting Japan, the United States could arguably rely on its own Article 51 individual right of self-defense to justify a “bloody nose” strike. While somewhat controversial, the United States interprets the individual right of self-defense to allow for a preemptive-but-proportional  when the need to do so is . In other words, if the United States determines North Korea’s behavior indicates a forthcoming attack it can act in self-defense before absorbing the first blow.

North Korea’s recent activities help support a preemptive self-defense argument. Despite extensive efforts by the international community, including through , and , North Korea continues to defiantly test powerful nuclear weapons and launch ballistic missiles. Furthermore, it has gone to great lengths to conceal its nuclear testing program by creating underground facilities and intricate . This behavior, coupled with North Korea’s pattern of  and  against the United States and other nations, makes a preemptive use of force seem more and more . As the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.

There is no question that the US would have the right to act in self-defense to prevent an imminent attack by North Korea — anticipatory self-defense. But the authors seem to adopt an understanding of self-defence’s necessity requirement that goes well beyond the traditional Caroline standard of imminence, according to which the need to act must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” They specifically argue for preemptive self-defense, a term that the US traditionally uses to describe self-defense against attacks that are not imminent.(The Bush doctrine is an example.) And they invoke the “last opportunity to act” test, which is not necessarily inconsistent with anticipatory self-defense, but can easily be interpreted to allow for preemptive self-defense, as Adil Haque nicely explains here.

If the authors are endorsing a view of self-defense that does not require an imminent attack, their position is clearly wrong. Here is Ruys again (pp. 336-38):

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

By contrast, if the authors believe that an imminent attack is required but want to define “imminent” to include the “last opportunity to act” test,” they are not necessarily arguing for an unlawful version of self-defense. It depends on how broadly they interpret “last opportunity to act.” An acceptably narrow definition of the test does, however, seem inconsistent with the authors’ insistence that “[a]s the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.” To begin with, although there is certainly cause for concern, North Korea does not seem particularly close to having the technology necessary to attack the US mainland with a nuclear missile. Moreover — and more importantly — despite its belligerence and bluster, there is little evidence that North Korea actually wants to attack the US, much less intends to do so as soon as possible. North Korea has long had the ability to launch a conventional attack against numerous US installations overseas — and probably now has the ability to reach the US mainland with a conventional missile. Yet no such attack has ever taken place.

Is it possible that, at some point, the US will have the legal right to attack North Korea in self-defense? Absolutely. But that time is not now — even if North Korea fires another unarmed missile into Japanese territorial waters. And there is little reason to believe that the “last opportunity for the United States to act is fast approaching.” Any argument at present for the “bloody nose” strategy, therefore, is both legally unsound and profoundly counterproductive.

A Problematic Take on the Lubanga Trial

by Kevin Jon Heller

Justice in Conflict has a guest post today from a scholar who has written a book about the Lubanga trial. I think the post makes some excellent points about the problems with the trial. But I have serious reservations — acknowledging that I have not read the book — about the author’s take on why the trial did not focus on sexual violence:

Another [serious flaw] was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

This is both unfair and mistaken. There is one reason, and one reason only, that sexual violence did not figure more prominently in the trial: Luis Moreno-Ocampo decided not to charge Lubanga with the relevant war crimes or crimes against humanity, choosing instead to focus exclusively on the war crime of conscripting or enlisting child soldiers. Here, for example, is what Patricia Viseur Sellers, a former Legal Advisor for Gender and prosecutor at the ICTY has to say:

Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.

The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.

Given Moreno-Ocampo’s decision to charge Lubanga solely with conscripting or enlisting child soldiers, the Trial Chamber had no choice but to limit the amount of testimony the prosecution could introduce regarding sexual violence. The Chamber explained why in paras. 629 and 630 of its judgment:

629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.

630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.

Moreover, I think the author’s claim that “[t]he matter of sexual violence loomed large in the trial not by its presence but by its absence” is considerably overstated. Not only did sexual violence figure prominently in both the prosecution’s opening and closing arguments, as the Trial Chamber notes in its judgment, there was also considerable testimony concerning sexual violence during trial. The judgment points out in a footnote (n. 54) that 30 different witnesses, 18 female, 12 male, “referred to acts of sexual violence which they either suffered or witnessed.” And it discusses testimony given by one witness, P-0046, at length. Here is just a snippet of P-0046’s testimony:

890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. Some fell pregnant, resulting in abortions; and there were instances of multiple abortions. The witness gave evidence that the psychological and physical state of some of these young girls was catastrophic.

891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.

Should the Lubanga trial have included specific crimes of sexual violence? Absolutely. But the absence of those charges and the (relatively) limited testimony concerning sexual violence cannot be attributed to the Trial Chamber. If you are looking for someone to blame — and you should be — blame Luis Moreno-Ocampo.

NOTE: I have not addressed the victims’ efforts to add sexual-violence charges in the middle of trial. If you want to blame the Chamber for rejecting that request, fair enough. But I have already explained why I think the Chamber was correct.

Don’t Forget About Hors De Combat — Shovel Version

by Kevin Jon Heller

On January 9, Command Sergeant Major John Wayne Troxell, the senior enlisted adviser to the Chairman of the Joint Chiefs of Staff, posted a rather incendiary statement on Facebook about the future of ISIS:

ISIS needs to understand that the Joint Force is on orders to annihilate them. So, they have two options should they decide to come up against the United States, our allies and partners: surrender or die!

If they surrender, we will safeguard them to their detainee facility cell, provide them chow, a cot and due process.

HOWEVER, if they choose not to surrender, then we will kill them with extreme prejudice, whether that be through security force assistance, by dropping bombs on them, shooting them in the face, or beating them to death with our entrenching tools.

The statement has provoked horror in many quarters — particularly concerning Troxell’s colourful endorsement of beating ISIS members to death with shovels. That horror, in turn, has elicited a long post at Lawfare from Laurie Blank explaining that, in fact, beating ISIS members to death with a shovel is completely lawful. As Blank explains, IHL permits lethal force to be used against combatants, a shovel is neither an indiscriminate weapon nor one that necessarily causes superfluous injury and/or unnecessary suffering, and there is no obligation not to attack a combatant who has not affirmatively surrendered. Blank thus concludes that “[i]n fact, though gruesome, the use of a shovel to kill an enemy in combat is entirely within the bounds of the law.”

As far as it goes, Blank’s analysis of IHL is absolutely correct. Her conclusion, however, overlooks one of the most basic principles of IHL: namely, that it is categorically unlawful to intentionally attack — or continue to attack — a combatant who is hors de combat because he is unconscious or incapacitated by wounds. As Jonathan Horowitz pointed out a few days ago at Just Security, essentially anticipating Blank’s post, once an ISIS fighter was rendered unconscious or incapacitated with a shovel, it would violate IHL and be a war crime to continue to hit him:

Someone who surrenders is only one of three types of fighters that the laws of war protect from attack, known as hors de combat. The other types are 1) anyone who is in the power of an adverse party (such as an unwillingly captured ISIS fighter) and 2) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. What this means is that, similar to ISIS fighters who surrender, these others types of people hors de combat also can’t be legally bombed or “beaten to death with entrenching tools.” If an ISIS enemy fighter is wounded and unconscious, he surely can’t surrender. But U.S. soldiers equally can’t then legally shoot that unconscious fighter in the face. Doing so would be a war crime.

Blank knows  all three prongs of the hors de combat rule (Art. 41(1) of the First Additional Protocol) as well as anyone, which is what makes her failure to discuss that critical limitation on the lawfulness of using a shovel as a weapon all the more odd. Words don’t just matter in war, as Jonathan powerfully notes. They also matter in popular discourse. It would be very unfortunate if a reader not particularly familiar with IHL came away from Blank’s post thinking it is “entirely within the bounds of the law” to beat an ISIS fighter — or any combatant — to death with a shovel. That isn’t the law, nor should it be. Just as you can’t beat an ISIS fighter to death with a shovel after he has surrendered or been captured, you can’t beat him to death with a shovel after he is unconscious or incapacitated.

Trump’s Threat of Destruction of North Korea and Proportionate Defensive Force: An Assessment of Similar Observations in Legal Scholarship and US Practice

by Sina Etezazian

[Sina Etezazian serves as Digest of State Practice Regional Coordinator for the Journal on the Use of Force and International Law. He recently completed his PhD at Monash University. His doctoral thesis was titled “Ambiguities Regarding the Necessity and Proportionality Criteria for the Exercise of Self-Defense in International Law”. In 2017, he won the 2016 Monash Law School Students’ Publication Prize for his article providing a detailed reappraisal of proportionate self-defense].

On 19 September 2017, President Donald Trump stated in the UN General Assembly that if the US is “forced to defend itself or its allies, we will have no choice but to totally destroy North Korea”. This assertion appears to have constituted one of the most expansive positions the United States has taken during the UN era with regard to the scope of the right of self-defense in international law. The predominant academic view (see footnotes 84–5 and accompanying text) is that, like physical acts, individual statements that can be attributed to states may amount to evidence of state practice for the purpose of identifying and modifying a rule of customary international law. Trump’s threat of force against North Korea can thus be understood to provide evidence of US practice concerning the right of self-defense.

Of course, it is difficult to argue that Trump’s statement only applies to North Korea’s army. In contrast, this statement appears to extend to the whole country, including the North Korean civilian population, while it is clear that the law governing the use of force does not underpin such a broad reading of proportionate self-defense. However, Let us suppose for the sake of argument that President Trump only meant the destruction of North Korea’s army, rather than that of the whole country. This post clarifies why even this possible interpretation of Trump’s statement would run counter to the nature of the self-defense proportionality requirement.

It is worth emphasizing at the outset that – setting aside domestic criminal and constitutional law – the conduct of targeted killing and US officials’ legal arguments, as will be discussed in this post under the section “Drone strikes and non-compliance with proportionality since 2002”, implicate three distinct regimes in international law: international humanitarian law (IHL), international human rights law (IHRL) and international law on the use of force (the jus ad bellum regime) (see, for example, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here and here. See also here and here). However, this post will focus only on the last; it does not entail a discussion of IHL and IHRL. Similarly, as this post aims to discuss the relevant practice exclusively in the context of the proportionality requirement, it does not address the content of the two other principal requirements for taking forcible self-defensive measures: “necessity” and “armed attack”. Nor does it aim to consider the concepts of “consent” and “intervention by invitation” and their applicability to the given situation.

Trump’s statement and Dinstein’s formula

Trump’s reliance on possible annihilation of North Korea’s army as being lawful defensive force, when examined through the lens of jus ad bellum proportionality, appears consonant with Yoram Dinstein’s observation that, in the event of a “war of self-defense”, the victim state not only is allowed to halt the large-scale attack that provoked the response but is permitted to engage in forceful measures to seek the “the destruction of the enemy’s army” (p 262). It is, however, noteworthy that Dinstein distinguishes small-scale armed attacks from an unlawful forcible action that prompted a “war of self-defense”. Accordingly, in relation to a minor forceful action, which typically occasions an “on-the-spot-reaction”, proportionality requires that the responding state must use force such that it causes harm only to the same degree as the initial attack. Yet, when a “war of self-defence” begins as a lawful response to an “all-out” aggression, Dinstein argues, the victim state is entitled to pursue the absolute military defeat of the attacker – that is, “the destruction of the enemy’s army”. This is because, in Dinstein’s view, there is no foundation in state practice for the idea that jus ad bellum proportionality continues to exist in a situation involving war, and that it has to be monitored constantly throughout the entire conflict. For this reason, Dinstein reiterates that, once a “war of self-defense” lawfully commences, given that a state is responding to a large-scale armed attack, that response need not be halted before the attacker is defeated except when the Security Council issues a binding resolution calling for the termination of hostilities (p 262). Dinstein’s characterisation of the destruction of the attacker’s army as being proportionate defensive force may thus be equated with Trump’s statement on 19 September 2017 with respect to the annihilation of North Korea’s army and the US’s right of individual and collective self-defense.

The nature of the self-defense proportionality requirement and Trump’s statement

As I have argued elsewhere, despite arguments to the contrary (see, for example, here p 235, 237, 240, 258, 262, 282; see also here), a detailed analysis of state practice concerning the self-defense proportionality requirement makes it possible to identify that states have mostly discussed this requirement in the context of the defensive aim of halting and repelling an attack. In other words, while in many instances of claimed self-defense actions, such as the 1964 UK aerial raid against Yemen, the 1965 US intervention in the Dominican Republic, Israel’s 1972 incursion of Lebanon and Russia’s 2008 action against Georgia, the reacting states have found the extent of the response and the level of casualties to be a relevant factor in measuring proportionality (see, for example, UN Doc S/PV.1108 (6 April 1964) pp 7–8, 10; “The Situation in the Dominican Republic”, Yearbook of the United Nations (1965) p 142; UN Doc S/PV.1644 (27/28 February 1972) p 19; UN Doc S/PV.1643 (26 February 1972) pp 3, 15; UN Doc S/PV.5953 (10 August 2008)), it appears that they have, to a certain degree, done so in the context of the purpose of halting the initial attack. This is demonstrated – at least to some extent – by the reaction of several states to the Israeli measures allegedly aimed at Hezbollah bases in Lebanon in 2006. Most of the states rejecting Israel’s assertion of self-defense highlighted the disproportionate nature of the action by reference to the extent of the harm inflicted on the infrastructure of the Lebanese state and the number of civilian victims. However, when the matter was addressed more thoroughly, it became clear that some states were underscoring the gravity of Israel’s action to argue that it had been disproportionate to the objective of self-defense, being the mere repelling of the initial attack (and possibly the impending attacks). Thus, the Russian representative expressed the view that “the scale of the use of force, the casualties and the destruction demonstrate that the actions stated for achieving this purpose go far beyond a counterterrorist operation” (UN Doc S/PV.5493 (Resumption 1) (21 July 2006)). Qatar took a similar stance, stating:

Everyone is fully aware of the grave situation in the Middle East; it has suddenly deteriorated as a result of the excessive use of military force by Israel against Lebanon on the pretext of self-defence. However, the greatest majority of the targets of the Israeli military aggression have been civilian targets, including the international airport, residential buildings, factories, power plants, bridges, highways and even grain silos and houses of worship. This leaves no doubt that the aim of this war goes beyond its stated objective (UN Doc S/PV.5493 (21 July 2006) 14).

Moreover, when reflecting on the definition of aggression during 1970–71, many states likewise clarified that jus ad bellum proportionality requires an action undertaken in self-defense to be weighed against the purpose sought by that action (See, for example, UN Doc A/AC. 134/SR. 67–78 (19 October 1970) pp 88, 89, 90, 89; UN Doc A/AC.134/SR. 79–91, (7 June 1971) pp 43–44). Similarly, Uganda, in the Armed Activities case in 2005, evaluated the proportionality of its response with respect to the objective of defense in the circumstances (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) rejoinder submitted by the Republic of Uganda, pp 121, 124–25. See also ibid, memorial of the Democratic Republic of Congo, para 5.26; ibid, reply of the Democratic of Republic of Congo, para 3.159). It is worth noting that this position was shared by the states parties in the Oil Platforms case (Oil Platforms (Iran v US) counter-memorial submitted by the United States of America, p 141; ibid, rejoinder submitted by the United States of America, para 174–76), although Iran ultimately shifted to a more quantitative approach. Furthermore, in 2008, Panama employed the same reasoning when contending that Russia’s response against Georgia was “disproportionate” to what had been stated as the legitimate aim of self-defense in the given case, namely “protecting Russian citizens” from the initial attack by Georgian troops (UN Doc S/PV.5953 (10 August 2008) p 15). It therefore appears that, based on an assessment of customary international law, a precise equivalence between the magnitude of the attack and the harm done is a not a necessary aspect of the proportionality criterion for defensive force. Nevertheless, a response that has brought about much greater loss and damage than the initial attack is unlikely to be viewed as proportionate self-defense, as it has clearly gone beyond the mere halting of the attack.

Returning to Trump’s threat of force against North Korea and his self-defense justification in the General Assembly, it thus seems clear that the overthrowing of the attacker’s regime or defeating its army would not constitute a proportionate response unless it could be demonstrated that, under the exceptional circumstances of the case, this was the only way to achieve the objective of halting the forceful activities that accounted for the necessity of defense. However, while the destruction of a state’s army might be proportionate to the aim of repelling a nuclear attack by that state, as Kevin Jon Heller observes, it is clear that Trump has threatened to destroy North Korea in response to “any attack” by this country against the US or its partner nations; any such possible forcible action by the US would clearly be disproportionate under the law governing self-defense.

Drone strikes and non-compliance with proportionality since 2002

President Trump explicitly clarified – at least concerning response to a possible attack by North Korea – that the US’s version of proportionate defensive action is predicated upon the notion of the destruction of the attacker’s army. An examination of its recent practice relating to the exercise of the right of self-defense against both states and non-state actors, however, reveals that the US has engaged in disproportionate forcible measures since 2002, when it initiated its first drone strikes beyond the Afghan combat zone.

This can be seen – at least in part – from the position taken by then-Legal Advisor for the US Department of State Harold Koh, who claimed in 2010 that the United States was permitted to carry out drone attacks outside Afghanistan because it was still involved in self-defense operations against the al-Qaeda and Taliban groups in a continuation of Operation Enduring Freedom, which had begun on 7 October 2001. In a similar vein, then-Deputy National Security Advisor for Homeland Security and Counterterrorism John Brennan argued in 2012 that because the United States is engaged in an armed conflict with al-Qaeda, “it takes the legal position that – in accordance with international law – we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time”.

However, the US managed to overthrow the Taliban regime and install an interim government, soon after it claimed defensive force in October 2001 to intervene in Afghanistan. Thus, even assuming that the removal of the Taliban government of Afghanistan could be regarded as proportionate self-defense, because it was necessary to effectively respond to al-Qaeda (for support of this view, see Lindsay Moir, Reappraising the Resort to Force: International Law, Jus ad Bellum and the War on Terror (Hart Publishing, 2010)), the aim of the defensive action had been achieved in the circumstances; this suggests that a separate series of unilateral forcible measures at least against the Taliban had required a separate justification based on Article 51 of the UN Charter. Despite this, the United States has extended its self-defense operations against the Taliban militants based in Pakistan since 2004, without providing a renewed self-defense assertion. It has continued to do so under the Trump administration.

Like Trump’s threat of force against North Korea, Koh’s and Brennan’s reasoning would appear to be based upon Dinstein’s formula of a “war of self-defense”, which maintains that “[t]here is no support in the practice of States for the notion that proportionality remains relevant – and has to be constantly assessed – throughout the hostilities in the course of war”. (For a similar viewpoint concerning John Brennan’s argument and its resemblance to Dinstein’s theory of the “war of self-defense”, see Kevin Jon Heller, “The Use and Abuse of Analogy in International Humanitarian Law” in Jens D Ohlin (ed), Theoretical Boundaries of Armed Conflict & Human Rights (Cambridge University Press, 2016) pp 252–4.) As regards the proportionality requirement in the exercise of self-defense, Trump’s statement cannot therefore be regarded as a total departure from the manner in which the US has invoked Article 51 to explain its drone strikes targeting alleged terrorists outside Afghanistan.

Conclusion

Trump’s reference to the possible destruction of North Korea’s army as permissible defensive action, coupled with the self-defense justifications advanced for the US’s wide-scale extraterritorial drone program since 2010, may reflect serious attempts to reinterpret and loosen the well-accepted rules on the principle of proportionality to the point of irrelevance. These expansive readings of self-defense, however, have never been endorsed by the rest of the international community or even the majority of them. On the contrary, the requirement of halting and repelling an armed attack still represents the only primary benchmark for the application of jus ad bellum proportionality. As noted above, this position is underpinned by an extensive reexamination of customary international law concerning proportionate defensive force, and such a reexamination provides a convincing rebuttal to the doctrine of a “war of self-defense”.

Some Thoughts on Negotiating a Treaty on Autonomous Weapon Systems

by Maziar Homayounnejad

[Maziar Homayounnejad is currently a PhD researcher at the Dickson Poon School of Law, King’s College London. His research primarily focuses on law of armed conflict aspects of autonomous weapon systems, with a secondary focus on arms control and non-proliferation.]

On November 13-17, 2017, the UN, acting under the auspices of the Convention on Certain Conventional Weapons (CCW), convened its first Group of Governmental Experts meeting (GGE) on lethal autonomous weapons systems (LAWS). After three detailed but informal meetings in 2014, 2015, and 2016, there were strong sentiments that mere informative discussion had run its course, and that the time was right to proceed with a more formal mandate, to “explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS”.

Once confirmed, this raised expectations amongst some non-governmental organizations (NGOs) that a ban on ‘killer robots’ may follow. However, as other commentators noted at the time, the formal mandate made no reference to negotiating a LAWS treaty, and this was clearly a result of divergent views within the CCW’s membership over how best to deal with LAWS. So, it may have been over-optimistic to expect anything other than continued talks, as a result of this move.

Fast-forward to the first GGE last November, and it remains clear that sharp divisions between States still bedevil the diplomatic process. As Denise Garcia explained in a recent piece, there are at least three groups of States with divergent positions.

  • Those, like China, Russia, and the US, which oppose a ban or any specific regulation in the near-term, but instead want continued talks on more basic issues, like arriving at a proper definition of LAWS.
  • A group consisting mainly of EU States, which advocates a path towards a politically binding agreement where the concepts of ‘autonomy’ and ‘human control’ serve as a foundation for future discussion.
  • The so-called Non-Aligned Movement, which consists of a large number of diverse States, and which tends towards either a ban treaty, or at least moratoria on the production and use of LAWS.

With significant States taking one position, and a group of smaller but much more numerous States going the opposite way, it is difficult to imagine any binding solution in the near-future.

Making matters worse is the rapid and unpredictable pace of technological change, which makes conventional attempts to regulate weapons particularly problematic when applied to LAWS; akin to trying to pin down a moving target. As Paul Scharre writes, much of the technology of AI and autonomy has gone from science-fiction to viable concept, just in the three years since the CCW began informal talks. On the one hand, this should not be a complete surprise, as the “perfect storm of parallel computation, bigger data, and deeper algorithms”, which is giving rise to stronger AI, was apparent even in 2014. Yet, the precise level of success and its sheer speed of arrival was not easily foreseeable back then. Now, neural networks can beat humans at poker and Go, and a genetic algorithm has triumphed over a human fighter pilot in a simulated aerial dogfight. The Report of the GGE also acknowledged this instability (see paragraph 16e of the main Report, and paragraph 29 of Annex II), which formed part of its reasoning for extending formal talks into 2018 (paragraph 17a).

Looking ahead, there are still some significant weaknesses in AI, but the pace and unpredictability of technological progress will very likely accelerate, and this may or may not resolve these shortcomings. In particular, developments in neuroevolution and newer applications of quantum physics in the defense and national security sphere seem set to create major technological disruption. Not surprisingly, this has raised legitimate questions on how best to approach a lagging (and somewhat divided) diplomatic process for regulating LAWS. The question is all the more important, now that the first week of the 2018 GGE has been confirmed and brought forward to February.

One solution – suggested by Scharre, and also several State delegations at the November GGE – is to move the focus away from the technology, and back to the one constant in war: the human. Namely, even if the technology was able to perform every task in the targeting process, what decisions do we believe still require uniquely human judgment, and why? Hence, what role would we still want humans to play in the application of lethal force? This argument is not necessarily new, but was advanced in various forms throughout the earlier informal meetings, not least by London-based NGO Article 36 in its ‘meaningful human control’ concept. The difference now is that it carries greater weight and urgency because of the bewildering pace of technological change, which will likely render any tech-specific instrument obsolete by the time it comes to be ratified.

On the other hand, Rebecca Crootof is less sanguine about a purely tech-neutral approach to LAWS regulation. In a recent Twitter discussion, she noted there are pros and cons to both tech-specific and tech-neutral approaches, and that a robust regime should incorporate both, to address known and unknown issues alike. Conversely, Crootof argued, if we restrict our focus to tech-neutral questions, we lose the opportunity to address the specific known problems.

Accordingly, the dual LAWS problem at the CCW would seem to be a) a deeply divided membership, and b) rapid technological change, which causes uncertainty over the continued viability of any negotiations, and over the extent to which there should be a tech-focus. This arguably calls for a departure from the standard CCW approach to weapons regulation.

In a recent paper published by the Transnational Law Institute at King’s College London, I examine various ways to ensure that LAWS can be developed, deployed and used in compliance with international humanitarian law. Specifically in relation to development (at pages 40-48), I argue in favor of an approach modelled on the Convention on Cluster Munitions (CCM). This imposes a strict and unambiguous ban in Article 1, with a very wide scope of application that appears to spell the death knell for ‘cluster munitions’. Interestingly, the CCM proceeds in Article 2(2)(c) to allow for technical developments, which the chapeau to the Sub-Paragraph presumes will “avoid indiscriminate area effects and the risks posed by unexploded submunitions”. This it does by excluding from the definition of the (prohibited) ‘cluster munition’ weapons that cumulatively possess five specific technical characteristics aimed at improving their reliability and accuracy (see technical criteria). According to the CCM Commentary, these criteria should avoid or sufficiently reduce the likelihood that (sub)munitions will create significant humanitarian problems.

The dual humanitarian problem of cluster munitions (as also gleaned from the second preambular clause) is understood to be “indiscriminate area effects” at the time of use; as well as the “risks posed by unexploded submunitions” when they fail to function as intended, or when they are left abandoned. By articulating these two problems that the subsequent technical characteristics are intended to avoid, the chapeau to Sub-Paragraph (c) serves an important dual role. It provides:

  • A justification for the exclusion of weapons that meet the five technical criteria; and
  • A potential mechanism for determining if these technical criteria function as intended (paragraph 2.120, CCM Commentary).

Namely, the chapeau links the definition of what is prohibited to the humanitarian effects that are the basis for prohibition and, as such, is an important legal innovation. While cluster munitions are not designed to create these humanitarian problems, Paragraph (2)(c) stipulates that (sub)munitions must be deliberately designed to avoid such effects if they are to escape prohibition. Accordingly, the Sub-Paragraph as a whole takes both a design-led and an effects-based approach, via inclusion of the technical criteria and the chapeau, respectively.

Importantly for the 2018 GGE, this turns out to be the most ‘LAWS-relevant’ part of the CCM. To transplant it into a LAWS treaty would enable lawyers to define the legal and humanitarian standards that autonomous technologies must reach to fully comply with IHL, leaving the programmers and engineers to try to build those systems. Should the state of technology fail to reach the prevailing legal standards, there will be a de facto ban on LAWS. Conversely, if and when the relevant technologies are able to perform to those standard, they will potentially be lawful. Accordingly, this approach may also help to allay some of the fears of the ban proponents, while also affording the more hesitant States an opportunity to demonstrate what specific technologies may be consistent with humanitarian standards, while offering genuine military utility; consistent with the well-established precautionary principle.

Thus, by drafting a rule similar to Article 2(2)(c), CCM, a LAWS regulation treaty could bring clarity in several ways.

  • Firstly, it can articulate the humanitarian risks posed by LAWS that are poorly designed, or otherwise not fit for purpose (similar to the CCM’s chapeau). These might include, for example, the ‘risk of indiscriminate attack’, ‘distinction failure’ and ‘insufficient civilian risk mitigation’, amongst others. In turn, this would provide a legal basis for the presumed permissibility of LAWS that are deliberately designed not to pose such risks.
  • Secondly, the rule can set specific technical criteria. Mainly, these will consist of baseline technical requirements for sensory, processing and computational capabilities, which are deemed necessary to obviate the humanitarian risks identified (similar to the CCM’s technical design criteria). However, it can also lay down specific context-based programming requirements (such as ‘conservative use of lethal force’); stipulate appropriate shut-off capabilities; and it can mandate intelligent reversion to remote piloting, where appropriate.
  • Finally, as LAWS are yet to be used in battle, the technical requirements and capabilities can be periodically compared with the statement of humanitarian risks, to ensure that they function as intended (similar to the second role of the Article 2(2)(c) chapeau). If they do not, it may be possible to amend the technical criteria at regular intervals, for example, using evidence-based data presented to a Meeting of State Parties or Review Conference (paragraph 2.38, CCM Commentary). Arguably, even in the intervening periods, there can be a duty on State Parties to do everything feasible to gauge the humanitarian effects of a given LAWS (using onboard sensors), and to refrain from continuing deployments in the face of clear evidence of humanitarian harm.

Of course, another compelling reason for periodic review and amendment of the technical criteria is the rapid and unpredictable rate of change of technical progress, outlined above. It is not inconceivable that the current state-of-the-art in LAWS-relevant technologies might appear relatively basic in five years’ time. Thus, it would be beneficial for the continuous improvement of humanitarian standards to keep the state of technology under review, and to update the technical criteria accordingly; notwithstanding the possibility that extant criteria may already meet the chapeau’s humanitarian standards.

Why the New Weapons Amendments (Should) Apply to Non-States Parties

by Kevin Jon Heller

Although aggression received most of the attention at the Assembly of States Parties (ASP) last month, the ASP also adopted a series of amendments to Art. 8 of the Rome Statute, the war-crimes provision, prohibiting the use of three kinds of weapons in both international armed conflict (IAC) and non-international armed conflict (NIAC):

[W]eapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production.

[W]eapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

[L]aser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.

Because the weapons amendments were adopted pursuant to Art. 121(5) of the Rome Statute, they will only apply to state parties that ratify the amendments. This is, of course, the effect of the second sentence of Art. 121(5), which caused so much controversy in the context of aggression: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”

Art. 121(5), however, applies only to states parties. It does not apply to states that have not ratified the Rome Statute. In the context of aggression, that limitation raised the possibility of the Court prosecuting an act of aggression committed by a non-state party on the territory of a state party — something the Court’s normal jurisdictional regime permits for war crimes, crimes against humanity, and genocide. To avoid that possibility, the ASP amended the Rome Statute to include a new provision, Art. 15bis(5), that specifically (and also controversially) completely excludes non-states parties from the crime of aggression:

In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

I had assumed that no such jurisdictional limitation applied to the new weapons amendments. As Patryk Labuda recently pointed out on twitter, however, the ASP appears to believe otherwise. Here is the second preambular paragraph to the amendments (emphasis mine):

Noting also article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted this amendment applies also in respect of States that are not parties to the Statute.

The bolded language is intended to exempt non-states parties from the normal jurisdictional regime of the Court. Clause 2 states that if a state party does not ratify the weapons amendments, the Court cannot prosecute the use of a prohibited weapon either when committed by a national of that state or on the territory of that state. Clause 3 then puts non-states parties in the same position as a state party who has not ratified the amendments.

This limitation regarding non-states parties is very odd, because the ASP had every right to make the new weapons amendments applicable to non-states parties. Non-states parties are currently prohibited from using certain weapons on the territory of a state party — those that are criminalized by the Rome Statute as adopted in 1998. The new weapons amendments thus fragment the Court’s jurisdiction over non-states parties: although they cannot use poisoned weapons, asphyxiating gases, and expanding/flattening bullets on the territory of a state party, they are still permitted to use biological, fragmentation, and blinding laser weapons — even on the territory of a state party that has ratified the new weapons amendments.

I see no persuasive rationale for this asymmetry. Exempting non-states parties from the crime of aggression is one thing: aggression is a sui generis crime and was not previously within the Court’s (active) jurisdiction. But the drafters of the Rome Statute had no problem making non-states parties subject to the original war crimes involving prohibited weapons, nor did the 124 states who ratified the Rome Statute have a problem accepting the potential criminal liability of non-states parties. So why should things be any different for the new war crimes? If Russia cannot use napalm (an asphyxiating gas) on Georgian territory, why should it be able to use ricin (a biological weapon) on it?

To be sure, the same exclusion of non-states parties was included in the war-crimes amendments adopted at Kampala in 2010, which criminalized the use of poisoned weapons, asphyxiating gases, and expanding or flattening bullets in NIAC. But that limitation was largely superfluous regarding non-states parties, because the Rome Statute already criminalized the use of those weapons in IAC, the primary type of conflict in which a non-state party can be subject to the Court’s war-crimes jurisdiction. (Transnational NIACs aside.) The limitation is anything but superfluous for the new weapons amendments, because they are specifically designed, inter alia, to criminalize the use of certain weapons in IAC.

I also believe — and this is the reason I have written this post — that the exclusion for non-states parties included in the preamble to the new weapons amendments has no legal effect. The argument is a complicated one, and I have made aspects of it at length in a JICJ article on the legal status of the aggression “Understandings” that were adopted at Kampala in 2010. The basic problem is this: nothing in the amended Rome Statute excludes non-states parties from the new war crimes. That limitation exists solely in the preamble. So it is difficult to see why or even how the judges could enforce it, given that Art. 21(1)(a) of the Rome Statute specifically provides that “[t]he Court shall apply… [i]n the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence.” If the judges simply apply the Rome Statute, the Court has jurisdiction over every war crime in Art. 8 that is committed by a non-state party on the territory of a state party — including the new ones.

To be sure, one could fashion a fancy argument for applying the limitation based on Art. 31 of the VCLT, which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and deems a preamble to be part of a treaty’s context. I would be sympathetic to such an argument, because I think the point of treaty interpretation is to give effect to the intent of the drafters. But that is by no means the dominant approach to treaty interpretation. Most international-law scholars favour a “plain meaning” approach — and the Court seems to, as well. (At least when doing so expands the ambit of criminal responsibility. When it doesn’t, object and purpose tend to take over.)

Moreover, all of the other parts of the Rome Statute also qualify as “context” under Art. 31. And here the aggression amendments are, in my view, not only relevant but dispositive: if non-states parties could be excluded from the normal jurisdictional regime of the Court simply by saying as much in a preamble to an amendment, why did the ASP specifically amend the Rome Statute to exclude non-states parties from the crime of aggression? Perhaps the ASP was just being overly cautious, but that seems unlikely given how carefully almost every word of the aggression amendments was negotiated and drafted. It seems far more likely that the ASP realized — correctly, in my view — that the exclusion had to be included in the text of the Rome Statute to be given force by the judges.

In short, despite what the preamble to the new weapons amendments says, I believe that the OTP now has have every right to charge a national of a non-state party who uses (say) a biological weapon on the territory of a state party that has ratified the amendments — and the judges would have every right to convict the perpetrator of the relevant war crime. The ASP exclusion of non-states parties from the amendments has no legal effect.

NOTE: Dapo Akande has posted at EJIL: Talk! an excellent analysis of the relationship between the new war crimes and customary international law. I completely agree with him — including with his statement that, in practice, excluding non-states parties from the crimes will solve some tricky immunity problems.

Events and Announcements: December 31, 2017

by Jessica Dorsey

Call for Papers

  • The Frankfurt Max Planck Institute for European Legal History will be hosting “Key Biographies in the Legal History of European Union 1950-1993” on 21-22 June 2018 and have issued a call for papers. “Legal History of the European Union” is a recently established research field at the Max Planck Institute for European Legal History at Frankfurt. The MPIeR attempts to situate the history of European law in a longue durée perspective, with a strong comparative dimension and taking into account the broader political and socio-economic context. The convenors welcome proposals of not more than 150 words by 15th January 2018. For more information please click here. Please email your proposal and a short CV to bajon [at] rg [dot] mpg [dot] de.

Announcements

  • Call for contributions for the 2018 Francis Lieber Prize. The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both books and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

    • Criteria: Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize. Works that have already been considered for this prize may not be re-submitted. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

    • Eligibility: Anyone may apply for the article or book prize. For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.

    • Submission: Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail.

  • Frankfurt Investment Law Workshop 2018: International Investment Law and Constitutional Law (9-10 March 2018). For many years, the Frankfurt Investment Law Workshop – jointly organized by Rainer Hofmann (Frankfurt), Stephan W. Schill (Amsterdam), and Christian J. Tams (Glasgow) – has been a forum for the discussion of foundational issues of international investment law. The 2018 workshop addresses the increasingly relevant relationship between international investment law and constitutional law. While both fields, for a long time, have kept maximum distance to each other, they are beginning to interact as constitutional courts around the world, such as the German Federal Constitutional Court, the French Conseil Constitutionnel, and the Court of Justice of the European Union, are being called to address the constitutional limits of international investment law and investment dispute settlement. Similarly, investment tribunals increasingly face constitutional law arguments, and investment law scholarship promotes the use of constitutional legal analysis to step up to the challenges the field is facing as an instrument of global governance. The 2018 Frankfurt Investment Law Workshop will explore the different facets of the increasing interaction between international investment law and constitutional law and critically analyze the opportunities and challenges this interaction creates. The Workshop will bring together academics and practitioners and provide them with a forum for open and frank exchanges.The program is available here; for edited collections that have grown out of earlier Frankfurt Investment Law Workshops see hereherehere, and here. If you are interested in attending, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, E-Mail: S [dot] Schimpf [at] jur [dot] uni-frankfurt [dot] de by 23 February 2018.

If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

How Did Carter Page Get a PhD from SOAS?

by Kevin Jon Heller

The Guardian is reporting today that Carter Page — Donald Trump’s bumbling former foreign-policy advisor, who has been interviewed quite extensively by the FBI regarding his contacts with Russia — earned a PhD from SOAS in 2011 after failing his defence twice. Here are some snippets from the story:

Page first submitted his thesis on central Asia’s transition from communism to capitalism in 2008. Two respected academics, Professor Gregory Andrusz, and Dr Peter Duncan, were asked to read his thesis and to examine him in a face-to-face interview known as a viva.

Andrusz said he had expected it would be “easy” to pass Page, a student at the School of Oriental and African Studies (Soas). He said it actually took “days and days” to wade through Page’s work. Page “knew next to nothing” about social science and seemed “unfamiliar with basic concepts like Marxism or state capitalism,” the professor said.

The viva, held at University College, London, went badly. “Page seemed to think that if he talked enough, people would think he was well-informed. In fact it was the reverse,” Andrusz said. He added that Page was “dumbfounded” when the examiners told him he had failed.

Their subsequent report was withering. It said Page’s thesis was “characterised by considerable repetition, verbosity and vagueness of expression”, failed to meet the criteria required for a PhD, and needed “substantial revision”. He was given 18 months to produce another draft.

Page resubmitted in November 2010. Although this essay was a “substantial improvement” it still didn’t merit a PhD and wasn’t publishable in a “learned journal of international repute”, Andrusz noted. When after a four-hour interview, the examiners informed him he had failed again, Page grew “extremely agitated”.

[snip]

After this second encounter, Andrusz and Duncan both resigned as Page’s examiners. In a letter to Soas, they said it would be “inappropriate” for them to carry on following Page’s “accusation of bias” and his apparent attempts to browbeat them. Andrusz said he was stunned when he discovered Page had joined Trump’s team.

Soas refuses to identify the academics who eventually passed Page’s PhD thesis, citing data protection rules.

In a statement, Soas said it had “proper and robust procedures for the award of PhDs”. It added: “All theses are examined by international experts in their field and are passed only where they meet appropriate high academic standards.”

I don’t think it is technically accurate to say that Page “failed” his defence twice. It seems more likely that each time he received a “not pass, but with major corrections” — which is not the same thing as a fail under SOAS’s PhD regulations. If a student fails, he or she cannot resubmit.

That said, I have never heard of a SOAS doctoral student being offered “not pass, but with major corrections” twice. The current regulations, which date back to at least 2014, specifically provide (section 6.9) that “[c]andidates for MPhil or PhD who are ‘not pass, but with major corrections’ are permitted one re-entry to examination.” They also require the revised dissertation be submitted within 12 months of the defence, while Page was given 18 months. It is possible, of course, that the regulations were different in 2010. But I think it’s unlikely.

It is also strange that SOAS would simply replace the original examiners with new ones after two “not pass” results and a subsequent allegation of bias. Why would a student who failed to correct his dissertation twice be given a third bite of the apple with different examiners? Page is hardly the first student to allege bias when he received a failing mark — and it’s not like he’s Saif Gaddafi or anything.

Something is seriously wrong here. SOAS is a world-class university with very high academic standards — one I’m proud to be associated with. The administration owes all of us an explanation. Hiding behind data privacy is not acceptable.

NOTE: SOAS’s Guidance for Examiners says candidates have 18 months to resubmit and at least mentions the possibility of examiners recommending “a further referral to revise and resubmit the thesis.” I am not sure how the Guidance can be reconciled with the PhD Regulations, and I presume the latter are binding.

Cyber Operations and GCII Obligations to “Respect and Protect”

by Jeffrey Biller

[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]

The use of hospital ships in wartime has always been a contentious issue. Although serving a humanitarian need recognized by most parties, profound suspicion of their misuse led to many attacks against these protected vessels, particularly during the First and Second World Wars. Although some attacks resulted from misidentification, many were quite intentionally targeted. Unrestricted submarine warfare campaigns often included deliberate attacks on hospital ships. One such example was the Soviet hospital ship, the Armenia. On 7 November 1941, a German torpedo bomber attacked the Armenia, sinking her without warning. All but 8 of the 7,000 on board died in the attack.

Although a tragedy by any measure, there were several questions as to her status as a hospital ship. The Armenia was clearly marked with large Red Cross symbols and was certainly being used appropriately at the time. However, she also had light anti-aircraft weapons on board, was under armed escort, and had been previously used in the conflict to transport military supplies. This incident, and many others like it, demonstrated the need to clarify and progress the rules related to the protection of hospital ships in the Second Geneva Convention (GCII). This post, the fourth in a series (see here, here, and here) examining the impact of cyber on the law of naval warfare through the lens of the updated commentary to GCII, analyzes the obligation to “respect and protect” hospital ships and coastal rescue craft, found in Articles 22, 24 and 27, in the light of cyber operations.

First, it should be stated that Article 22’s obligation to respect and protect includes the more specific language that protected vessels “in no circumstances be attacked or captured.” Although the obligation to respect and protect is broader than these specific terms, it is helpful nonetheless as “attack” is an IHL term of art that has been frequently analyzed in the cyber context. Para 1985 explicitly states that the prohibition on attack includes “the use of means and methods that, by whatever mechanisms or effects, severely interfere with the functioning of the equipment necessary for the operation of a military hospital ship, such as so-called ‘cyber-attacks’.” Given that the commentary references the Tallinn Manual’s Rule 70 here, it is helpful to follow the reference for further analysis.

The black letter rule in the Tallinn Manual states that medical personnel and transports, including those vessels identified in GCII, “may not be made the object of a cyber attack.” Recall, cyber attack is the exact phrase used in para 1985. Although not defined in the commentary, Tallinn’s Rule 30 defines cyber attack as “a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction of objects.” It is well understood that the Tallinn Manual is only the opinion of a group of experts and therefore not primary law. However, Rule 30’s definition tracks with the Additional Protocol (I) definition of attack, requiring “acts of violence against the adversary.” Thus, the commentary and the Tallinn Manual appear to agree that cyber operations resulting in injury or death, and (at least) physical damage and destruction, to a protected crew or vessel are prohibited. The logical follow-on question is whether “damage” to a network system includes the pure loss or degradation of functionality. The law here is unsettled and thus the loss of functionality, on its own, cannot be read definitively to qualify as an attack.

However, both the updated commentary and the Tallinn Manual agree the requirement to respect and protect goes beyond attacks. The commentary summarizes the extended obligation to respect and protect in para 1996 as the obligation “to refrain from all actions that interfere with or prevent such ships from performing their humanitarian tasks.” Therefore, cyber operations are prohibited that result in loss or degradation of network functionality necessary to a protected vessel’s performance of its humanitarian function.

Para 1996 does include a qualifier to that protection, referencing the Article 31 allowance for parties to the conflict to “control and search the vessels mentioned in Articles 22, 24, 25 and 27.” This includes the right to “control the use of their wireless and other means of communication” and “put on board their ships neutral observers who shall verify the strict observation of the provisions contained in the present Convention.” These “control and search” provisions are in place “to verify whether their employment conforms to the provisions of Articles 30 and 34 and to the other provisions of the Convention,” as para 2276 puts it. Recognizing that a physical presence in no longer required to verify compliance, para 2277 suggests “innocent employment of these vessels can often be ascertained by other means, at least to some extent, in particular by satellites and other means of reconnaissance.” This could indicate that cyber intelligence operations are appropriate that, while not affecting the functionality of the vessel, are used to verify its compliance with the convention. Indeed, this was the conclusion drawn by the Tallinn Manual’s group of experts in the commentary to Rule 71, governing the requirement to respect and protect computer systems related to medical units and transports.

This analysis leaves open questions regarding several potential categories of cyber operations. For example, cyber intelligence operations not for the purpose of compliance verification, but rather the collection of intelligence regarding associated forces. Another potential is the use of protected naval vessels as a pass through to levy cyber effects against non-protected enemy systems. These and other examples may not explicitly violate the terms of protection in GCII, but nevertheless open the possibility of protected vessels becoming a cyber-battleground. This could divert protected vessels from focus on their missions and raise the likelihood of unintentional damage to network systems vital to the performance of their humanitarian mission. Given the ambiguity present in this aspect of the law, and the importance of protecting humanitarian missions, perhaps the obligation to respect and protect is an area where nations can work together to develop ever-elusive cyber norms.

Article 18 Mechanism

by Mohammad Hadi Zakerhossein

[Dr. Mohammad Hadi Zakerhossein is a Lecturer at Tilburg University.]

On 9th November 2017, the Judges at PTC III of the International Criminal Court sprung a great surprise by unsealing an unexpected decision, thereby authorizing the Prosecutor to open a full investigation into the situation in the Republic of Burundi. The Chamber’s decision sparked off a lively debate on Article 18 of the Rome Statute. This apparently uncontroversial article obliges the Prosecutor to notify all States Parties and those States which would normally exercise jurisdiction over the crimes concerned within a situation of her decision to open an investigation (paragraph 1), and to defer to the State’s investigation if within one month of receipt of the notification a State informs the Court that it is investigating or has investigated crimes referred to in the notification (paragraph 2). According to Article 18 (1), when the Prosecutor activates the Court’s jurisdiction over a situation based on her proprio motu power, this notification should be made when the Prosecutor ‘initiates’ an investigation pursuant to articles 13 (c) and 15.

Some believe that Article 18 applies to ‘investigation stage’ that commences upon concluding a preliminary examination, and after issuing an authorization by the PTC. According to this reading of Article 18, during the preliminary examination there is no need for notifying States in order to enable them to challenge the Prosecutor’s determination on the admissibility of a situation. In addition, in the authorization process, States ,contrary to victims, lack a ‘participatory right’. The Prosecutor concurs with this interpretation. In all Prosecutors’ requests seeking authorization of an investigation into the situations in Kenya, Cote d’Ivoire and Georgia, it has been explicitly mentioned that only upon an a judicial authorization, the Office of the Prosecutor would notify States under Article 18. In the Burundi situation, the Prosecutor filed a request under seal and ex parte on 5 September 2017, and, inter alia, requested the PTC III to issue its decision in an ex parte procedure, namely, a procedure without participation of States and victims. As to the participation of States, the Chamber concurred with the Prosecutor that Article 15 of the Rome Statute “does not confer any rights of participation on the States which would normally exercise jurisdiction over the alleged crimes”. Indeed, the Chamber believed that pursuant to Article 18, States “acquire rights of participation only once the Prosecutor initiate an investigation following authorization by a Pre-Trial Chamber”.

Upon uncovering the decision, Heller wrote a piece casting doubt of the mainstream understanding of Article 18. He argues that the Article 18 notification should be made during the preliminary examination not after initiating an investigation following a judicial authorization. He asserts that the current Court’s approach stands Article 18 on its head. Dov Jacobs reacted to Heller’s piece by rejecting his position. According to him, all procedural steps of Article 16 need to have been followed before the notification obligation of Article 18 kicks it.

Here, I would like to elaborate on Heller’s arguments and add more reasoning to enhance the interpretation that understands the Article 18 mechanism as a component of Article 15.

To figure out the correct position of the Article 18 notification, we need to understand the meaning of the concept of ‘investigation’ in the Rome Statute. Generally speaking, it is possible that a single term in a legal text carries different meanings. For this reason, provisions should be understood contextually, and the Rome Statute should be read as a whole. The term ‘case’ is an example here. The meaning of the term ‘case’ in the situation phase ( as referred to in Article 53 (1)) differs from its meaning in the case stage (as referred to in Article 53(2)). ‘Investigation’, as referred to in the chapeau of Article 53 of the Rome Statute, is a pre-trial phase that links the preliminary examination stage to the case stage; “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation”. The dividing line between the investigation stage and the case phase is the issuance of an arrest warrant or a summons to appear. So, the investigation phase is distinct from the preliminary examination. A preliminary examination is a process within which the Prosecutor finds out if there is a reasonable basis to initiate an investigation. If a situation is brought to the Prosecutor’s attention through ‘communications’, the Prosecutor shall obtain a judicial authorization if she believes that the statutory requirements to initiate an investigation are met. Only by issuing an authorization, the Prosecutor initiates the ‘investigation’ phase. Taking into account this procedure, at first sight, it seems that Article 18 is a mechanism within the investigation phase; i.e. after conducting the preliminary examination and the automation process, because Article 18(1) obliges the prosecutor to notify States when she initiates an ‘investigation’.

However, Article 18 includes a hint for interpretation. It refers to initiation of an investigation under Article 15. It means that this provision should be interpreted in the context of Article 15. Article 15 (1) uses the term ‘investigation’. “The Prosecutor may initiate investigations proprio motu on the basis of information of crimes within the jurisdiction of the Court”. According to the common interpretation, this provision refers to the ‘investigation phase’, that might be initiated by the Prosecution on her proprio motu, namely, in the absence of referrals. However, reading this paragraph in light of paragraph 6 of Article 15 that states “after the preliminary examination referred to in paragraphs 1 and 2” makes it clear that the term ‘investigation’ referred to in Article 15(1) differs from the term ‘investigation’ referred to in Article 53 and paragraph 4 of Article 15. Indeed, paragraph 1 of Article 15 employs the word ‘investigation’ to refers to the preliminary examination as a pre-investigation phase. Paragraph 1 uses word ‘investigation’ because a preliminary examination is an investigation in nature but in a narrower scope. According to the first paragraph of Article 15, the Prosecutor ‘may’ initiate a preliminary examination (investigation). This possibility refers to the fact that all communications received by the Prosecutor do not lead to identifying a situation that undergoes a preliminary examination. Here, proprio motu power of the Prosecutor does not refer to her power to initiate the investigation phase, but refers to her power to open a preliminary examination in the absence of referrals and State’s demands. Indeed, the drafters of the Rome Statute have authorized the Prosecutor to open a preliminary examination on her own discretion and based on information she receives.

‘Complementarity principle’ is also helpful here to enhancing this contextual interpretation. Article 18 is meant to bolster the complementarity principle. During the preliminary examination, the Prosecutor, according to Article 53, should examine the admissibility of a situation by taking into account the complementarity requirement, in addition to the gravity of the situation. Adopting a teleological interpretation by giving considerations to the complementarity principle as a cornerstone of the Court enhances the approach that sees the Article 18 mechanism as a part of the ‘phase three’ of the preliminary examination, i.e. when the prosecutor begins examining the admissibility of a situation. In this phase of the preliminary examination, the Prosecutor shall take into account the domestic proceedings and the position of national jurisdictions. Following her examination, the Prosecutor shall be satisfied that there is no concurrent jurisdiction at the domestic level over the same situation. The Court functions selectively due to its broad inabilities. So, when there are proceedings in parallel over the same situation, the Court shall refrain spending time and money on the same situation whose impunity has already been ended at the domestic level. There is no justification to postpone discharging the notification obligation under Article 18. Without notifying the States concerned and Stets that have normally jurisdiction over a situation, the Prosecutor is unable to effectively examine the complementarity requirement to believe that there are no proceedings at the domestic level. In addition, the positive complementarity endorses this interpretation. Under positive approach to complementarity, the Prosecutor shall not be passive during the preliminary examination and should engage with States to encourage and assist them to activate their own jurisdictions. Notifying States of the Prosecutor activities and intent is a necessary condition for such an engagement.

Defining the Article 18 mechanism as a part of investigation stage, instead of preliminary examination, premises on the belief that preliminary examination is a marginal and instrumental stage that should be passed as soon as possible. A lengthy preliminary examination, from this perspective, is a deficit for the Court. However, it is a misunderstanding of the preliminary examination. This pre-investigation phase has some expressive mandates. It is a platform for positive complementarity activities. The Court is much more effective if it manages to activate the domestic jurisdiction during the preliminary examination. The preliminary examination is a bridge that should be passed, provided that it does not result in activating the States’ jurisdiction. The ICC is not a rival to States. It should not be eager to seize situations which are primarily objects for States’ actions. Primary in prosecution is with States. The Court should assume a more managerial and supervisory role. Conducting preliminary examination behind closed doors and in ex parte procedures in order to facilitate the Court to reach the investigation phase is in contradiction with the soul of the complementarity principle. The ICC, sooner or later, should notify states who has primary jurisdiction over the ICC crimes. What does justify postponing such a notification? According to Article 18, if a State requests a deferral, the Prosecutor ‘shall’ defer to the requesting State. It is something that should happen during the preliminary examination when the Prosecutor examines the complementarity requirement under Article 17. Based on this interpretation, if a State request a deferral but the Prosecutor objects, then the Prosecutor may request a judicial authorization under Article 18.

One Step Forward for International Criminal Law; One Step Backwards for Jurisdiction

by Jennifer Trahan

[Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS and Chair of the International Criminal Court Committee of the American Branch of the International Law Association]

On Thursday, December 14, 2017, the ICC’s Assembly of States Parties (ASP) took the historic and significant decision, by consensus, to activate, effective July 17, 2018, the ICC’s jurisdiction over its 4th crime, the crime of aggression. (The Kampala crime of aggression amendment had been “adopted” in 2010 at the Kampala Review Conference, but there was a delay mechanism such that jurisdiction did not yet “activate”, but first required 30 States Parties to ratify the amendment (35 now have), and one more decision by the ASP to activate.)

The decision made by the ASP was a step forward for international criminal law, a step forward for completing the Rome Statute as envisioned in 1998 (which already included jurisdiction over 4 crimes), a step forward for carrying on the legacy of the International Military Tribunal at Nuremberg, and a step forward in trying to create more deterrence behind UN Charter article 2(4). But, it was a step backwards in how to read the Court’s jurisdiction over the crime.

While many had hoped that at the ASP, it could be agreed to simply “activate” jurisdiction by consensus (for instance, simply reflected in a sentence in a resolution), already over the past year it appeared that would not be the case. As many readers will know, there have been two different readings of what was accomplished in Kampala.

The differences in reading pertained to which States Parties would be covered by the ICC’s crime of aggression jurisdiction after activation in the situation of State Party referral or proprio motu initiation of investigation (Rome Statute article 15 bis). (Activation also triggers the possibility of UN Security Council referrals covering the crime of aggression (article 15 ter); non-States Parties were completely exempted from the crime’s jurisdictional reach already during the Kampala negotiations (art. 15 bis, para. 5).)

One reading (let us call it the Liechtenstein/Swiss/majority reading) was that after the activation decision, for purposes of State Party referrals and proprio motu initiation, ALL States Parties could be subject to crime of aggression jurisdiction, absent their lodging an “opt out” declaration, but only also if either the aggressor or victim State Party had also actively ratified the crime of aggression amendment. The other reading (let us call it the UK/French reading), was that no State Party could be covered by the crime of aggression after activation unless it had also actively ratified the amendment. (This reading results in an extremely restrictive jurisdictional regime, because, frankly, ratifying States Parties such as Liechtenstein and Botswana are not invading each other.)

After a year of a “facilitation” process, led by Austria, to try to resolve this issue, negotiations opened during the ASP. What I am calling the Liechtenstein/Swiss/majority group proposed various draft texts that could have helped bridge the gap between the two readings, with Brazil and Austria also proposing helpful suggestions. Yet, the UK/France (at times joined by Norway, Japan, Colombia, Australia, Canada and Denmark) insisted on their view simply prevailing, and, in the end, the UK and France never moved from that position. (This narrative reflects my understanding of negotiations gleaned from discussions with representatives of States Parties, as, unfortunately, members of civil society were excluded from the “closed door” negotiations.)

The desire to achieve consensus activation (meaning any State Party could block consensus) provided any single State Party (or two States Parties, as was the case here) with enormous leverage. A vote would require 2/3rd of States Parties voting for it, and a few delegations did not stay to the close of the ASP (so the full 123 States Parties were not present towards the end of the conference). Additionally, a vote suggests a divided commitment that States Parties did not appear to want, and how the vote would turn out seemed uncertain as well.

In the end, States Parties had (for many of them) the very difficult decision to make—whether to activate the crime in an historic and important decision, if it meant accepting the extremely restrictive reading of jurisdiction given by the French/UK group. (This is quite ironic because it means that the 4 states that had conducted the Nuremberg prosecutions are either now caved out of crime of aggression jurisdiction (the US and Russia as non-States Parties) or can easily do so by not ratifying the amendment (the UK and France).) On the other hand, a decision not to accept the UK/French reading meant that the negotiations would conclude with no agreement, and no clear commitment when, where or whether to resume negotiations, and no certainty that any resumed negotiation would conclude any differently in the future.

This author believes States Parties made the right decision. It was not what many of them had wanted and thought they had negotiated in Kampala. Yet, international law often moves forward in imperfect ways (the war crimes amendment also adopted at this ASP dropped a key war crime along the way). And, really, in the end of the day, all States Parties agreed that the crime of aggression is a consensual regime—and it was only how to achieve that (basically an “opt in” or “opt out” approach).

It was a large concession, which now means, at present when the crime of aggression activates on July 17, 2018 (the activation date selected in the activating resolution, ICC-ASP/16/L.10*), it will have extremely limited jurisdictional reach. The good news is the ICC will hardly be overwhelmed with cases (for those who worried about this)—it could even take years before there is a case of aggression within its jurisdiction. The bad news of course if that if one hoped the activation of the crime could have some deterrent impact in trying to prevent aggressive uses of force, including war, that deterrent impact is now lessened. (Deterrent impact is more likely now to be created through the possibility of U.N. Security Council referral—which could cover States Parties (whether or not they ratify) and non-States Parties). In terms of increasing the jurisdictional reach for purposes of non-Security Council referrals, it is now up to the ICC, civil society and States Parties to press for additional crime of aggression ratifications.

The Draft Resolution’s Curious Paragraph 3

by Kevin Jon Heller

A friend who is even more jaded than I called my attention to the following curious paragraph in the Draft Resolution the ASP has just adopted by consensus:

3.    Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court.

This paragraph is new — it was not included in the earlier Draft Resolution I blogged about. For those of you who are not total Rome Statute nerds, here is the text of the two referenced articles:

Art. 40(1): “The judges shall be independent in the performance of their functions.”

Art. 119: “Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.”

I think my friend is right: Paragraph 3 likely represents the last gasp of the opt-out camp — a shameless plea to the judges to ignore the text and drafting history of the Draft Resolution and require states that have not ratified the aggression amendments to opt-out. Fortunately, as jaded as I am about the ICC’s judges, I think the likelihood of the plea ever succeeding is essentially zero. The text and drafting history are too clear. Moreover, a decision to adopt the opt-out position despite the text and drafting history of the Draft Resolution would be catastrophic for the Court. It would be bad enough if the OTP brought aggression charges against a state party that had not ratified the amendments. It could be the end of the Court — and I am not being Chicken Little here — if the judges permitted such charges to proceed. Such a decision could easily lead to the UK, France, Japan, and others to withdraw from the Court. And they would be justified in doing so.

The judges’ relentless judicial activism has damaged the Court enough. If the Court is to have any future — one in which states cooperate with it and use their muscle to ensure that it succeeds — states have to be confident that the judges will respect their will, even when that will is less than ideal.

Paragraph 3 should never have been included in the Draft Resolution.