Recent Posts

The First Annual Michael Lewis Memorial Teleforum on “Defining the Law of War”

by Julian Ku

As many of our readers may recall, the late Professor Michael Lewis was a great friend of this blog and an important voice in U.S. international law and national security scholarship.  To honor his memory, the Federalist Society has recently launched the first annual Michael Lewis Memorial Teleforum in his honor.  The podcast features Maj. Gen. Charles Dunlap (Professor of the Practice of Law Executive Director, Center on Law, Ethics and National Security, Duke University School of Law) and Prof. Michael A. Newton (Professor of the Practice of Law, Vanderbilt University Law School).

The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are.” So begins the new U.S. Department of Defense Law of War Manual, published last June, which had not been updated for nearly 60 years. At 1180 single-spaced pages and with 6,916 footnotes, the manual would seem to be thorough and exhaustive. Our experts will critique the Department of Defense Manual. Does it provide the guidance necessary to troops on the ground, commanders, and all actors in between? How does it address modern warfare, terrorism, and asymmetrical war? How does it define lawful and unlawful belligerents? What does it say about interrogation and detention? These and other questions were addressed by our experts.

It’s a wonderful way to remember a great guy, but continuing to discuss and debate those issues about which he cared the most.

Weekly News Wrap: Monday, February 8, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • An elderly Australian woman kidnapped with her husband in Burkina Faso by a group affiliated to al Qaeda has been freed, neighboring Niger’s President Mahamadou Issoufou said on Saturday.
  • Some of the 267 asylum seekers Australia wants to deport to an offshore immigration center following a court ruling are suffering from cancer and other terminal illnesses, a senior government official said on Monday. The premier of an Australian state offered on Saturday to look after this group of asylum seekers facing repatriation to a camp on a remote Pacific island, adding to opposition to the federal government’s policy of offshore detention.

UN/World

Events and Announcements: February 7, 2016

by Jessica Dorsey

Announcements

  • The GlobalTrust research project published a call for applications for post-doctoral fellowships for the academic year 2016-17. The GlobalTrust Research project at Tel Aviv University Faculty of Law is funded by a  European Research Council Advanced Grant, and studies the extent to which states that exercise regulatory functions should take into account the interests and preferences of foreign individuals and communities located outside their boundaries. Participants in this project explore the possible moral and legal grounds for requiring states to take other-regarding considerations into account and the institutional mechanisms that could legitimize the external review of states’ compliance with such obligations.

Calls for Papers

  • Pluricourts at the University of Oslo, are pleased to announce a call for papers for their conference entitled ‘Strengthening the Validity of International Criminal Tribunals’ which will take place in Oslo on 29th -30th August 2016. The conference will explore different controversies surrounding the field of international criminal law and seeks practical solutions to make international criminal justice more effective and relevant. They are interested in hearing perspectives from both practitioners and scholars and welcome contributions from different disciplines. Abstracts are to be submitted by 29 February 2016. Further details of the call can be found on Pluricourts’ website.
  • The Society of Legal Scholars, the British Institute of International and Comparative Law, and the ESIL Interest Group on International Legal Theory are organising a conference on Monday 25th April 2016. For the conference, they’ve issued a call for papers.The theme is “Beyond our comfort zone? Situating the authority of international lawyers, institutions, & other international actors.” Here’s the call.
  • The Journal on the Use of Force and International Law (Routledge) is now requesting submissions for Volume 3(2). Deadline is 20 May 2016 for both articles and book reviews. The Journal attracts contributions both from scholars writing on the general nature of the law in the area of the jus ad bellum and those examining particular uses of force or developments in this field of law. The Journal invites submissions of unsolicited manuscripts. For articles, the suggested word length is between 8,000 and 25,000 words including footnotes, and for book reviews, which should significantly engage with the book under review, the preferred length will be 3-4,000 words including footnotes. All submissions will be double-blind peer reviewed and should comply with the Journal’s style guidelines. Articles and book reviews can be submitted online here.
  • Proposals are invited for contributions to an interdisciplinary workshop,”International Criminal Justice On/And Film” at the London School of Economics Centre for International Studies and the LSE Department of Law 12 – 13 September 2016. Proposals for contributions (in the form of academic papers for the most part, though we would welcome contributions in other media, particularly film) should take the form of an abstract of 500 words and contain a filmography, where applicable. They should be accompanied by a 1 page CV and sent by email to the three organisers (see here) by 15 March 2016. PhD and junior faculty applications are particularly encouraged.

Events

  • State Department Legal Adviser’s Office Presents Program on Iran Nuclear Deal – The sixth annual live and webcast program presented by the Office of the Legal Adviser of the Department of State will be held on February 18, 2016, from noon until 1:30 pm EST, on the subject of the Iran nuclear deal. Presenters include Mary McLeod, the Principal Deputy Legal Adviser, Newell Highsmith, a Deputy Legal Adviser, and Paul Dean, the Assistant Legal Adviser for Nonproliferation and Arms Control. Persons can attend the program at the Burns Moot Court Room at George Washington University Law School or participate remotely via the webcast of the program. An email address for questions during the program will be provided to registrants for the webcast. This program is cosponsored by the Section of International Law of the American Bar Association, George Washington University Law School, and the American Society of International Law. The event is free but registration is required (non-members of the ABA may register by establishing a free “new customer” account). Details are found here.
  • A one-day conference entitled The European Convention on Human Rights and the Crimes of the Past is organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by judges from the European Court of Human Rights, as well as international law scholars. The conference will take place on Friday 26 February 2016 at the premises of the Court in Strasbourg. Registration is now open (deadline: 19 February). In order to register, please send an email to: ESIL-ECHR-Conf2016 [at] echr [dot] coe [dot] int

  • The concluding conference of the MultiRights project, “Reforms of the Individual complaint mechanisms in the UN treaty bodies and the European Court of Human Rights: Symptoms and Prescriptions – Mutual Lessons?” will take place at the University of Oslo on February 29 and 1 March 2016. The conference will focus on analyzing and comparing the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR) aiming at finding mutual learning experiences. A particular focus will be given to the following issues:
    • Procedure of selection of members and judges
    • Case load situation
    • Quality of reasoning
    • Margin of appreciation and subsidiarity

    For more information and to register for the event, please visit the conference website.

Our previous events and announcements post can be found here. 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.

Al Jazeera Panel Discussion on Siege Warfare in Syria

by Kevin Jon Heller

Sorry for the endless self-promotion, but I thought readers might be interested in the following episode of Al Jazeera’s Inside Story, which includes a 30-minute panel on siege warfare in Syria that I participated in. It was quite a wide-ranging discussion, focusing less on international law than I expected.

As always, comments welcome! I hope readers don’t think I was too soft on either Assad or the UN…

Dear Fox News South Carolina: Shariah Law is Not “Also Known As International Law”

by Julian Ku

So local TV news in the U.S. is hardly the most sophisticated part of the U.S. media.  Still, I was taken aback by this passage from a news report from WACH Fox Channel 57  in South Carolina.

COLUMBIA, SC (WACH) – A measure that would ban the use of Sharia Law in South Carolina court rooms is working its way through the State House.

Sharia Law, also known as International Law, is closely tied to Islam. It covers an entire way of life, but one rule under Sharia Law is if someone is caught stealing, they would have their hand cut off as punishment.

(Emphasis added).  You can also watch the video version of the report.

It is worth noting that most state laws banning “international law” have been invalidated under the U.S. Constitution free exercise of religion clause because federal courts have held that the ban on “international law” is really aimed at “sharia” law.  This report confirms that this is indeed the case in South Carolina, and that some state legislators may not even know the difference between sharia law and international law.

One other note for our non-U.S. readers:  South Carolina is the third U.S. state to hold primary elections in our presidential race.  Its voters have a pretty big role in deciding who will be the nominees.  Just noting this fact, without comment.

 

Weekly News Wrap: Tuesday, February 2, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  • German Interior Minister Thomas De Maiziere promised Afghanistan financial help to help reintegrate returned migrants during a visit to Kabul on Monday overshadowed by the latest in a series of deadly suicide bomb attacks.
  • China accused the United States on Monday of seeking maritime hegemony in the name of freedom of navigation after a U.S. Navy destroyer sailed within 12 nautical miles of a disputed island in the South China Sea.

Europe

Americas

  • A special mission sent by the Organization of American States met Haiti’s President Michel Martelly on Sunday as part of intensifying efforts to resolve an electoral crisis that threatens stability in the Caribbean nation.

Oceania

  • Human Rights Watch blasted Australia’s asylum-seeker policy as “abusive” and says a serious rethink is needed to restore the country’s standing globally; HRW also has said in its yearly report that Australia, while having a solid record on civil and political rights, was failing to respect international standards for asylum seekers and this was taking “a heavy human toll”.

UN/World

As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.

Discussing Gbagbo on BBC World News

by Kevin Jon Heller

I had the pleasure of going on BBC World News a couple of days ago to discuss the opening of Laurent Gbagbo’s trial at the ICC. The clip they sent me is very low quality; the sound isn’t even synced correctly. But I’m posting it just in case anyone wants to hear what I had to say. It’s about three minutes long.

I have to admit, being in that giant BBC studio was intimidating. I’ve done television before, but it was always remote from a tiny recording room. I hope I acquitted myself okay!

Eichmann Called Himself an Instrument

by Jens David Ohlin

The New York Times reported yesterday that Adolf Eichmann apparently wrote, by hand, an 11th-hour request to the Israeli President for a pardon of his conviction for crimes against humanity (or commutation of his death sentence). The request was denied and Eichmann was executed a few days later–the only execution ever carried out by the Israeli criminal justice system. The letter had been filed in archives and was only recently rediscovered as papers were being prepared for digitization.

Eichmann’s arguments are disturbing. Here is an excerpt:

There is a need to draw a line between the leaders responsible and the people like me forced to serve as mere instruments in the hands of the leaders… I was not a responsible leader, and as such do not feel myself guilty.

What is striking about the letter, in addition to its obvious obliviousness to his own moral responsibility, is the invocation of the language of “instrumentalities” in the argument. The notion of an “instrument”–a human instrument, analogous to a weapon or other physical object–was incredibly important for Claus Roxin, the German criminal law theorist who used the Eichmann case as an inspiration for the development of his theory of indirect perpetration, called Organisationsherrschaft, which translated means roughly “indirect perpetration through an organized apparatus of power.”

For Roxin, Eichmann was a classic case of someone who used others as instruments to perpetrate his crimes. But instead of simply using other individuals, Eichmann used an organization–which was characterized by the fungibility of its members and the automaticity of its execution of orders received from above. In that sense, the organization became the “through element” by which the order was carried out and the criminal plan brought to fruition by Eichmann.

The ironic thing is that in Eichmann’s letter, he claims that he was the mere instrument–presumably an instrument in the hands of Hitler himself. Obviously the Israeli Court disagreed and viewed Eichmann as something more than a mere instrument–they concluded that he was an active participant and indeed architect of the specifics of the so-called “Final Solution,” the extermination of Jews in Germany, Europe, and beyond.

Although Eichmann’s factual argument is implausible and self-serving (and inconsistent with the facts), it does raise, in the abstract, a complex legal question: how to treat the responsibility of mid-level or upper-level perpetrators who control subordinates below them but who are arguably not at the top of the chain of command. Should Organisationsherrschaft (and the Control Theory more broadly) apply to them?  How should we model individual criminal responsibility in this context?

Incidentally, this issue is discussed by Kai Ambos in Volume 1 of his treatise, pages 115-116, especially with regard to a case in Argentina that declined to apply Organisationsherrschaft for similar reasons (the court concluded that it could only be applied to the top-level Junta, and not subordinate officers below the top level). I’m curious what others think of this argument.

Guest Post: The ACHPR’s New General Comment on the Right to Life–A Missed Opportunity for the Prohibition of the Death Penalty?

by Nader Diab

[Nader Diab is an Associate Legal Adviser at the International Commission of Jurists. LL.M Geneva Academy of International Humanitarian Law and Human Rights. Twitter : @NaderiskDiab]

In the GC the ACHPR reiterated its call for the abolition or imposition of a moratorium on the death penalty (for previous similar calls see two resolutions of the ACHPR on this issue here and here). It did not provide for a legal basis for such a call neither in the GC nor in the resolutions.

Despite the call for abolition in the GC the ACHRP does not seem to view the imposition of the death penalty, per se, as a breach of article 4, which protects the Right to Life under the African Charter. The GC, echoing the UN Human Rights Committee, stated that the imposition of the death penalty would violate article 4 of the African Charter if it is not used for the most serious crimes and the proceedings did fully comply with the right to a fair trial (para. 24). Similar conditions had been set out for example in its 2008 resolution on the moratorium on the death penalty, which states:

“1. Exhorts State Parties to the African Charter on Human and Peoples’ Rights that still retain the death penalty to:

  • Fully comply with their obligations under this treaty; and

  • Guarantee that every person accused of crimes for which capital punishment is applicable, benefits from all the guarantees of a fair trial included in the African Charter and in other relevant regional and international norms and treaties.”

This might seem the unwavering the position of the ACHPR’s stance on the issue. However, recent developments and previous statements suggest that the outcome of the GC regarding the death penalty could have been different, and could have gone so far as to prohibit the death penalty as a violation of article of the African Charter protecting the right to life.

The African Charter, unlike the ICCPR, does not address the issue of the death penalty. The ICCPR does not necessary exclude recourse to of the death penalty when it is imposed pursuant to a final judgment rendered by a competent court only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. (The death penalty is, however, prohibited for those States that are party to the second Optional Protocol of the ICCPR). Therefore, unlike the Human Rights Committee, the ACHPR is not restricted by a provision in its founding treaty that narrows the scope of interpretation of the right to life provisions of the treaty as concerning the death penalty. (It should be noted that the ICCPR was adopted in 1966, when only a relatively small minority of States were retentionist. The adoption of Optional Protocol two was seen as a means of progressively reducing the number of States two, which the death penalty provisions would apply).

Furthermore, the General Comment was adopted the same year the ACHPR achieved a big step towards the abolition of the death penalty with the adoption of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa. A year earlier the ACHPR convened a continental conference on the abolition of the death penalty in Africa. The Cotonou Declaration that came out of the conference ‘recalls’ and ‘bears in mind’ in its preamble in several instances the right to life in abstracto in international treaties and declarations, seemingly implying that the right to life and the death penalty in all circumstances are inherently contradictory. It would have been expected that the culmination of this process, i.e the general comment on the right to life, would have taken a different position on the issue.

At the global political level, the trend is inexorably towards abolition. The periodic resolutions of by the UN General Assembly since 2008 calling for all retentionist States to implement a moratorium on the death penalty with a view to full abolition have been adopted with increasing majorities. In December 2014 (69/186), the resolution passed with 117-37 (34 abstentions). The vast majority of AU member States supported or at least abstained from the resolution. While the GA resolutions do not expressly identify all instances of the death penalty as violations of the right to life, it does situate the moratorium within “the progressive development of human rights”. This GA resolutions, because of their universal reach, could therefore also have been relied on as evidence of an emerging international opinion that the use of the death penalty is incompatible with general human rights principles.

Finally, as previously mentioned the ACHPR’s position has not been consistent, and in some instances it has considered that the imposition of the death penalty amounts to a violation of the right to life regardless of any other circumstances. In May 21 2015, it issued a press release condemning the execution of six individuals in Egypt. It stated in communiqué: “its opposition to the imposition of the death penalty as it constitutes a violation of Article 4 of the African Charter on Human and Peoples’ Rights (the Charter), which specifically prohibits the arbitrary deprivation of the right to life and enshrines the integrity of persons. Article 5 of the Charter also prohibits cruel, inhuman or degrading punishment and treatment.” In the communiqué the ACHPR did not raise any issues regarding the fairness of the trial or the gravity of the crime (which it did previously a year earlier, see here). This indicates that the ACHPR has viewed the imposition of the death penalty as a violation of the right to life in all circumstances, and not just when imposed when the conditions laid out in its GC are not met (a position that happens to be shared by its Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary killings in Africa.)

Guest Post: On Business and Human Rights in Illegal Territorial Regimes

by Valentina Azarova

[Valentina Azarova is a Research Fellow in the Institute of Law, Birzeit University. She has assisted and advised in the suits filed by Al-Haq against foreign corporations for involvement in abuses in occupied Palestinian territory and is a member of the legal committee, Global Legal Action Network (GLAN)].

On 19 January 2016, Human Rights Watch (HRW) released Occupation, Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, a report detailing the involvement of foreign and Israeli business in settlements and their support for unlawful Israeli acts. The report is an important piece of one-stop-shop documentation that brings together the work of Who Profits and others on the involvement of foreign businesses in the occupation through financing, servicing, or trading with Israeli settlements. As HRW argues, any business operations in settlements are associated with the human rights abuses and international law violations that ensue from Israeli settlement activity. However, the legal basis of HRW’s claims merit further consideration. The report takes the position that “to comply with their own human rights responsibilities” all companies should “stop working with and in Israeli settlements.” This responsibility derives, the report asserts, from the UN Guiding Principles on Business and Human Rights, which requires businesses to mitigate their involvement in abuses. According to HRW, businesses operating in the settlements cannot “mitigate,” and therefore must pull out to comply with these obligations.

Yet states, companies and scholars have argued that the UN Guiding Principles prescribe only a duty of due diligence on businesses and states (an obligation of means, not result, to reflect on how to mitigate involvement in abuses). In practice, this duty has been understood by even the most law-abiding states as having the purpose of warning business of the risks they incur to their reputation and economic integrity, rather than as being a positive obligation to firmly prohibit all business operations. Businesses’ involvement with the system of abuses underlying and ensuing from Israeli settlement activity has prompted some state measures – such as the recommendatory government advisories that have now been issued by 18 EU Member States (see e.g. the UK advisory). But home-states have stopped short of enforcing international law-based obligations by adopting measures that could redress the immitigable business involvement in the harm resulting from operations under the auspice of Israel’s illegal legislative and administrative regime in settlements – where all legislative acts are predicated on the entitlement of Israel to exercise sovereign authority in occupied territory.

Moreover, states perceive their obligations under the business and human rights framework in international law (set out in the UN Guiding Principles and the OECD Guidelines) as voluntary and politically discretionary. Home-states legal machinery to enforce human rights and other international law obligations against business has in practice been limited to the gravest forms of complicity in abuses that could result in civil or even criminal suits. As with other transnational enforcement actions, the success of such lawsuits is hinged on foreign policy concerns and considerations of non-interference in the domestic affairs of another state, even though the state’s own corporate nationals are involved. Home-states are unlikely to crack down on their corporate nationals abroad if their involvement in violations lacks sufficient proximity to the principal perpetrator or is not sufficiently substantial. Cases that meet these criteria are allowed to go forward only when they are meticulously evidenced and deemed politically prudent. Yet the track record on lawsuits for foreign business involvement in Israeli wrongdoing is dismal: French, Canadian and Dutch courts succumbed, to different degrees, to political and procedural barriers and brought an end to several straightforward claims against their corporate nationals’ involvement in wrongdoing.

While the HRW report focuses on businesses’ human rights responsibilities in international law, it also addresses demands to third states. Yet given the nascent nature of state practice on the enforcement of business and human rights, the following three issues (or caveats) are of note in relation to the report’s claims concerning the definition of the scope of corporate wrongdoing and the prescription of legal consequences under international and domestic law for business involvement in Israeli unlawful acts in relation to the settlements:

1) The report does not capture the scope or the nature of wrongdoing by business in settlements. The report’s case studies document settlement quarries that benefit from financial incentives while Palestinian quarries are subject to “discriminatory” restrictions; a bank that finances construction and a real estate company that sells properties in settlements, which profit from land confiscation; a company that supports settlement infrastructure by collecting garbage and operating a landfill; and a textile company that contributes to labor abuses against Palestinian employees. But not only are there types of less direct foreign business involvement in settlements that are not captured by this list – e.g. investment in Israeli companies operating in settlements, or procurement of products originating from settlements – it does not address the key underlying form of wrongdoing in international law resulting from the administrative and territorial regime that Israel maintains in occupied Palestinian territory.

What unifies all companies that have any kind of activity in the settlements is that they operate under the auspices of Israel’s illegal extension of its domestic administrative and legal jurisdiction in occupied territory, which is premised on its sovereign claims and the extension of Israeli sovereignty into occupied territory.

The report notes that Israel’s actions create a duty for third states not to recognise Israel’s illegal acts as lawful, but it appears to limit this duty to the specific types of wrongdoing on which the report focuses. Yet the duty of non-recognition is instead triggered by the simple, but crucial fact that all activities in settlements are conducted under Israeli domestic jurisdiction, which Israel extended into occupied territory (legislative and executive) — a state of affairs that constitutes an illegal territorial regime no state recognises as lawful. Since the report does not address per se the illegal territorial regime maintained by Israel in occupied Palestinian territory when it defines the scope of corporate wrongdoing, the report fails to substantiate its claim that “the only way settlement businesses can avoid or mitigate contributing to abuses is by stopping to operate in settlements or engage in settlement-related commercial activity.” The report’s claim that all business should cease and desist from all settlement activities risks appearing ambitious, given the lower-level demand of to exercise due diligence in international law.

2) The report makes the unfounded, aspirational claim that the duty of non-recognition requires states to stop or prevent their corporate nationals from becoming involved in settlements. The duty of non-recognition in international law addresses states, not businesses. A state has horizontal obligations to protect individuals from private abusers under human rights law, but the reality is that the legal force of these obligations is weak: most states consider them obligations of means and not result, and only a few states have developed national action plans to implement them (see 3). Moreover, the duty of non-recognition – which states interpret, as discussed above, as a mere ‘due diligence’ responsibility of means – does not have concrete content in terms of what it requires states to do. The duty of non-recognition does not require states to prevent their businesses from conducting any activities in a conflict zone. This claim (like arguments that base the demand that states ban trade with settlements on the duty of non-recognition) is aspirational, given the minimalist view that is reflected in state practice recorded in ILA recognition/non-recognition committee reports (.pdf) and in scholarly works. The duty of non-recognition – which Talmon calls a “hollow shell,” and is a “soap bubble” for Focarelli – can mean anything and nothing.

The most effective way to regulate the conduct of businesses and make sure they are not involved in settlements is based on states’ need to ensure consistency between their domestic public policy positions on the illegality of settlements, and the implementation of their domestic laws on corporate governance (intended to protect consumers, procurers, and investors). Since the application of Israeli domestic laws in the occupied territory is considered unlawful by all states, to uphold the integrity of their domestic rule of law, state authorities must ensure that their domestic law does not give legal effect to the basis for business activities in Israeli settlements. All business activities carried out under Israel’s illegal regime by the corporate nationals of law-abiding states would entail concrete legal risks under the company’s home-state law, insofar as those activities oblige the state to give legal effect to Israel’s internationally unlawful acts as though they were lawful.

3) The report’s recommendations to states fall short of adequately addressing foreign corporate involvement in extraterritorial wrongdoing. The report calls for states, in accordance with the UN Guiding Principles, to issue “guidelines” to prevent business from conducting activities in settlements. Many states continue to consider their UNGP obligations as soft norms and recommendatory standards, and do not enforce them as exigently as domestic law (most have not even initiated the implementation of a “national action plan”). Since the government advisories issued by foreign ministries and trade departments of EU countries are non-binding recommendations (suggesting compliance with human rights), they are insufficient to trigger exigent enforcement action.

However, if the home-state line ministries were to transpose and streamline these standards through specific domestic law provisions (e.g. procurement, consumer protections, proceeds of crimes laws), they would become as enforceable as any other domestic laws regulating corporate actors to business operations in a settlement (in whatever capacity or manner) by virtue of the legal basis for any activity, transaction or title there being Israeli domestic law. Such measures, intended to guarantee the consistent application of domestic law with public policy by ensuring non-recognition of Israeli unlawful acts as lawful, first require state authorities to provide their nationals with guidance to enable their ‘informed compliance’ with specific domestic law provisions.

While the HRW report should become a reference point for its case studies of business involvement in Israeli abuses, its recommendations to third states merit further consideration. The measures that can actually trigger vigorous domestic enforcement action to ensure the protection of consumers, procurers and investors from wrongdoing, are premised on the need to uphold the integrity of the home-state’s legal order by excluding internationally unlawful acts from their internal domain. Indeed, the wave of divestment from the settlements by European private actors, following EU’s ‘differentiation’ measures, coupled with a series of government advisories waiting to be operationalized, signals that this process is already underway.

Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict

by Jonathan Horowitz

[Jonathan Horowitz is a Legal Officer on National Security and Counterterrorism in the Open Society Justice Initiative. This post is based on his recently published article in Emory International Law Review, “Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict,” and will also appear in a longer form and under a different title in a forthcoming book, Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens Ohlin for Cambridge University Press.]

If a foreign State asked you (a government official) permission to let it kill an individual on your government’s territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren’t allowed to do?

These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.

The underlying assumption of a global NIAC is that the US, or any State, may chase its enemies around the world using international humanitarian law (IHL) targeting rules. John O. Brennan, when serving as assistant to the US president for homeland security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are more permissive than the host State’s international human rights law (IHRL) obligations. This is because, under our scenario, the host State is not in a NIAC with the attacking State’s enemies and so the host State’s IHRL obligations still apply in full.

A second observation it that under the obligations to respect and protect the human rights of people on its territory, a State must not take part in unlawful and arbitrary deprivation of life and it must protect people in its territory from the same.

When this second observation is linked with the first one, the situation arises whereby even if the foreign State sought to carry out a killing in complete conformity with IHL, the way the killing occurred may still have gone far beyond what IHRL allows the host State to permit. That being the case, the host State would be barred from providing its consent; and, as I explain in more detail in a new article, this significantly undercuts the notion of a global NIAC.

This conclusion, however disappointing it may be for attacking States that wish to use consent as a legal sanitizer, isn’t exactly legal nuclear science. But I do think it’s an area that has largely gone unexplored and allows consenting States to get off the hook for their unlawful role in permitting killings that they have no right to permit.

The problems that IHRL poses for a State that is asked to grant its consent in the context of a global NIAC doesn’t, however, mean that a State can’t defend itself from the serious threats of non-State actors abroad. It means that such use of force must be based on other legal authorities, be them host State law enforcement measures, relying on the inherent right to self-defense, UN Security Council authorization, joining a host State’s armed conflict with a common enemy, and so on.

And while it’s true that distinguishing between using a legally permissible framework or a legally impermissible framework may lead to no material difference in the final outcome (i.e., use of lethal force and casualties may still result), the distinction remains important. A global NIAC stands for something far greater than the consequences of any single lethal attack or group of lethal attacks that a State may wish to carry out. It permits a State to engage in long-lasting armed conflict whereby human rights law is sidelined and the more permissible IHL targeting rules are routinely applied without geographic constraint. Such a legal framework dramatically expands a State’s use of force beyond what international law had envisaged to date.

But herein lays a considerable problem. It will be an uphill battle to persuade host States to respect their human rights obligations (in this case by refusing to grant consent) within the extremely politicized and highly insecure sphere of terrorism, counterterrorism, and armed conflict, especially when the request for consent comes from an attacking State that has considerable military, political, and economic resources to provide or withhold. In turn, this will require a sustained focus and intensified discussions on the legal obligations of the host State and will have to include holding the host State accountable for its breach of international law.