On 11 June 2013,Judge Sanji Mmasenono Monageng asked the Presidency to excuse her from the Appeals Chamber concerning the recent denial of Libya’s admissibility challenge to the case against Saif Gaddafi, which Libya is appealing. Judge Monageng’s request was based on her previous participation (as Presiding Judge) in the Pre-Trial Chamber’s decision to issue an Arrest Warrant for Saif — the same Arrest Warrant that played a critical role in the (differently constituted) Pre-Trial Chamber’s later conclusion that Libya is not currently investigating the same case as the ICC.

Yesterday, the Presidency denied Judge Monageng’s request. Here is its reasoning (emphasis mine):

The Application is dismissed. The Presidency notes that the notice of appeal is not directly contesting the Decision on the Warrant of Arrest or the Warrant of Arrest which the judge issued as a former member of the pre-trial bench. Rather it is challenging the decision of the Pre-Trial Chamber, as currently composed, on the admissibility of the case before the Court, which, in considering whether Libya was investigating the same case as the Court, inter alia, compared the alleged crimes in the Decision on the Warrant of Arrest and the Warrant of Arrest with conduct allegedly under investigation by the Libyan authorities. As such, the excusal is not warranted at present. However, should the situation change, directly or indirectly, and in this vein the Presidency notes that the Document in Support of the Appeal setting out the grounds for the appeal has yet to be filed and the Appeals Chamber has yet to determine the scope of the appeal, the judge may decide to seek a request for excusal.

With respect to the Presidency, this decision is patently incorrect. Here is the relevant provision in the Rome Statute, Art. 41(2)(a), on which both Judge Monageng’s request and the Presidency’s denial focused (emphasis mine):

A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence.

As should be obvious, the Presidency’s test for disqualification — whether the judge in question was previously involved in the specific decision being appealed — has no basis whatsoever in the text of Art. 41(2)(a). The provision says “any capacity” in the same case requires (“shall”) disqualification. Judge Monageng presided over the Arrest Warrant decision, which clearly qualifies as participating in “any capacity” in the case against Saif. The Presidency was thus required to disqualify her.

In my last post, I introduced my recent article rethinking the concept of responsibility to protect. Today, I consider how the discussion of R2P often obscures the reality of how states go about choosing to intervene by speaking of duties and responsibilities. Some commentators have expressed concern about the selective nature of R2P or about the disappointment of R2P in Syria. But this disappointment simply glosses over the real problem, which is that states simply have no responsibility or duty in these circumstances—rather, they have a choice, which they exercise selectively based on myriad factors.

R2P lumps together two distinct responsibilities that actually have very different foundations. First, the responsibility of a state to its own people; and second, the responsibility of all states to people victimized in other states.

The responsibility of a state for its own people reflects well-established understandings about the nation state—it is an essential aspect of the social contract that the state provides basic human security to the people within its borders. Although state practice often violates these principles (creating the asserted need for intervention), states have widely accepted the basic responsibility to their own people. For instance, no state contested this responsibility in the 2005 United Nations World Summit that affirmed certain principles of R2P.

A responsibility to protect between a state and its people primarily begins with the negative right to be left alone, the right to enjoy life without interference from the state. The social contract, however, includes more than this because within a political society individuals have a claim to be kept safe—for the state to ensure certain conditions of safety to individuals and their property. All governments provide some form of protection from private actors through their criminal justice systems. This demand, however, is inherently a political one within the state. It concerns the type of public resources that should be allocated to crime prevention, law enforcement, incarceration, and rehabilitation.

Importantly, even within the most liberal, rights-respecting countries, there are not enforceable rights to safety or protection from private actors. The United States Supreme Court has repeatedly affirmed that the government does not have an affirmative obligation to protect individuals, even though it may have an obligation to refrain from harmful activities. Instead, the political process determines what the state provides with respect to protection—increased security is balanced against civil liberties, not to mention costs.

The second responsibility between a state and people in other states lacks this political foundation. The claim of victims in other states to protection is essentially a positive claim for rescue from the harms inflicted by their government or by private actors while their government stands by. Consider that victims in Syria have no particular political claim to the assistance of France, England, or the United States. Their plight may present a moral demand for assistance and political pressure may mount through interest groups, the media, international organizations, and former Presidents. Yet the claims of foreigners will invariably present a different calculus than domestic claims and rightly so.

The responsibility to protect people in other states is a positive claim and positive claims require resources (diplomatic, humanitarian, and military). Although proponents of R2P often prefer to shift the language away from “rights,” at its foundation R2P depends on having some conception of the “rights” of people to protection from other states. It is not about leaving the Syrians alone, but rather protecting them from harm. Yet what precisely this right to assistance includes in Syria or elsewhere, no one is able to say.

Even accepting a basic moral responsibility, there remain difficult questions about what action best respects rights and what will serve to promote human rights and security overall. The responsibility will always be contingent on political, military, and other calculations and will be uncertain in any particular instance. Calling this choice a responsibility dilutes the meaning of rights and duties and obscures the actual mechanisms for promoting intervention.

ICJ Judge Giorgio Gaja (who was also the special rapporteur on the International Law Commission for the Responsibility of International Organizations) has made the case that International Organizations have a duty to prevent.  The context was a talk he gave at the University of Amsterdam in April 2013 on the European Union and the ILC’s Articles on the Responsibility of International Organizations.

If one takes the approach followed by the International Law Commission on the issue of attribution and applies it to the European Union, the Union would be internationally responsible when its organs or agents commit a breach of one of the obligations that the Union has under international law.

Depending on the content of the international obligation, a breach could consist in the failure to comply with a rule requiring the European Union to ensure that Member States do something or in the failure to prevent them from taking certain actions.

This type of obligation does not necessarily consider the conduct of Member States in a specific way. It may be an obligation of result, like arguably those under UNCLOS that were at stake in the Swordfish case between the European Community and Chile. The fact that the European Union does not achieve the required result of the conservation of swordfish stocks would be sufficient to cause a breach, whether the failure is caused by its organs or agents or by its Member States. The WTO agreements may provide further examples of obligations of result that may be breached by the Union because of the conduct of its Member States.

The emphasis on the conduct rather result indicates there is no requirement to suceed.  But he goes on to say that this obligation is linked to an IO’s capacity to influence the actions of member states, such that an IO might incur its own responsibility if it fails to prevent a breach of an international obligation.

The simplest, and probably most frequent, scenario of a possible responsibility of the European Union is that the Union is bound not only by the obligation breached by the Member State but also by an ancillary obligation to prevent the relevant wrongful act of member States or at least not to contribute to it. Failure by the European Union to comply with that ancillary obligation would give rise to the Union’s responsibility. The Union would then incur responsibility for the breach of this distinct, though connected, obligation. The responsibility of the European Union would be normally additional to the responsibility incurred by the Member State.

These ideas about an International Organization’s duty to prevent are noteworthy for a few reasons.

• First, they give more context and detail on the duty to prevent than the Draft Articles on the Responsibility of IOs, which refer in general ways to omissions and the Swordfish case, but do not play out scenarios of ancillary IO liability.
• Second, this logic suggests that IOs may be independently liable for the failure to prevent acts by their member states.   In other words, states and IOs could be concurrently liable for acts and omissions. For terrific work on shared responsibility generally, see the University of Amsterdam’s SHARES project (where I am spending some of my sabbatical).
• Third, it raises the stakes for IO “supervisory” capacity generally.  Indeed,  a pivotal question in this regard is what are the circumstances that would trigger the duty to prevent?

An IO must be bound by a relevant primary norm of course, and the acts in question must constitute breaches of those norms by act or omission. These are the two key preconditions for application of the Draft Articles.  An additional third factor would be capacity: the ICJ’s Bosnia decision specifies in this regard that the duty to prevent is heavily contextual, in that an actor must use all means available to them, and it will depend on their capacity to influence.  For IOs that operate on a consensus basis (ie, NATO) or that work through advice and assistance rather than coercion (ie, the WHO), it might be hard to argue they have much capacity to prevent.  On the other hand, IOs like the EU or the UN that can coerce member states, might be facing more liability going forward.

What substantive areas will the duty to prevent be most likely to arise?  I would wager to guess that we can expect to see this duty argued in three cases: the use of force, conservation of scarce resources, and situations involving massive human tragedies that trigger the Genocide Convention or other human rights treaties.  I would be interested if our readers predict other areas of activity with regards to the duty to prevent.

• Brazil is experiencing its biggest wave of protests in decades over a wide variety of grievances, ahead of a range of high-profile international events in the next few years.
• Russia and Iran have warned against intervention in Syria and oppose the arming of Syrian rebels.
• Syrian President Assad has warned Europe that it will pay the price for arming the rebels in the form of more terrorism at home.
• More pretrial hearings were held at Guantanamo Bay for the five 9/11 accused. The trial is unlikely to start before the end of 2014.
• The US and the EU have officially announced their intention to negotiate a trans-Atlantic free trade agreement. Right on time, because scientists have discovered a new subduction zone that will move Europe closer to the US, in 220 million years from now…
• The Egyptian Foreign Minister is meeting his Ethiopian counterpart over Ethiopia’s decision to build the Grand Ethiopian Renaissance Dam on the Blue Nile, which Egypt fears will divert water it needs.
• Diplomatic efforts are also gearing up between North Korea, South Korea and the US.

I have refrained from weighing in on the recent scandal at the ICTY concerning a letter written by the Danish judge, Frederik Harhoff, that accuses the President of the Tribunal, Judge Theodor Meron, of pressuring his fellow judges into acquitting high-profile defendants such as Gotovina and Perisic. I have done so not because the scandal isn’t worth mentioning, but because I have little to add to what Dov Jacobs has written in two excellent posts – here and here – at Spreading the Jam. Like Dov, I think the scandal is vastly overblown, revealing little more than business as usual at the international tribunals. In fact, if I have any disagreement with Dov at all, it’s concerning the propriety of Judge Harhoff writing the letter in the first place. Dov says one can “question the propriety” of the Judge writing the letter and sending it to 56 of his friends and colleagues. I’d go much further than that — I think it was deeply unethical, and far more scandalous than any of the allegations in the letter, for Judge Harhoff to reveal confidential discussions between the judges. Can you imagine if a legal officer or intern had written the letter? He or she would have been fired immediately. The fact that Judge Harhoff still has a job indicates the need, as Michael Bohlander has pointed out, for a binding code of judicial ethics at all international criminal criminal tribunals, not just at the ICC.

That said, the brouhaha about Judge Harhoff’s letter did lead me to a WikiLeaks cable dated 27 July 2003 that recounts a discussion between Judge Meron, then also the President of the ICTY, and an unnamed American ambassador — presumably to the UN — about Carla Del Ponte, who was nearing the end of her term as Prosecutor at the time. Judge Meron’s statements, as summarized by the cable, are truly shocking. Here is the summary…

• The members of the G8 are meeting in Northern Ireland this week. The meeting takes place amidst revelations that US and UK intelligence agencies spied on their allies during G20 meetings in London in 2009.
• The latest round of climate change talks concluded in Bonn on Friday. Earth Negotiations Bulletin has a detailed summary here.
• The Armed Groups and International Law Blog has published its roundup of recent scholarship on issues relating to armed groups or non-international armed conflict.
• A car bomb detonated in a Damascus suburb, killing at least 20.
• Hassan Rouhani has unexpectedly won the Iranian presidential election in the first round.
• Julian Assange is confident that a deal will be reached between the UK and Ecuador to resolve his current situation.
• Chen Guangcheng, the Chinese activist who made a high-profile escape to the US Embassy in Beijing last year, has accused NYU of bowing to Chinese pressure to end his fellowship. NYU has denied the allegations.

I have been making my way through the defence response to Libya’s admissibility challenge. It’s excellent, both with regard to why Libya is not prosecuting the “same conduct” as the ICC and with regard to why Libya is currently unable to genuinely prosecute Al-Senussi. I was particularly struck by the defence argument that Libya does not currently have complete control over the detention centre in which Al-Senussi is being held, making the “inability” argument more similar than I imagined to the one in Saif’s case. It’s an interesting, and potentially powerful, argument.

That said, in this post I want to quibble with the defence’s adoption of what I’ve called the Due Process Thesis (DPT) — the idea that a national prosecution’s failure to live up to international standards of due process makes a case admissible before the ICC. The DPT is incorrect: due process is relevant to a national prosecution only insofar as a national prosecution’s failure to live up to domestic due-process requirements threatens the viability of a prosecution.

It’s unfortunate that the defence response adopts a number of problematic arguments in favor of the DPT, such as focusing on the statement in Art. 17(2)(c) of the Rome Statute that a case is admissible if “[t]he proceedings were not or are not being conducted independently or impartially.” Here is what the defence says…

Calls for Papers

• The Antonio Cassese Initiative for Justice, Peace and Humanity is inviting students and young professionals born after July 1, 1983 to hand in an abstract on a subject dealing with new perspectives in international criminal law. The abstract should be submitted by July 1, 2013 and should be limited to 400 words. Five abstracts will be selected, setting out the most innovative perspectives. The authors of these abstracts will be invited to elaborate upon their ideas in a paper of around 8000 words. From these papers, the best one will be awarded with the Cassese Initiative Prize, receive a collection of books from OUP and his/her paper will be submitted for publication in the Journal of International Criminal Justice. More information is here.
• The University of Seville (Spain) will hold an international conference on The Implementation of the UN Guiding Principles on Business and Human Rights in Spain that will take place on 4-6 November 2013. The conference is now calling for paper proposals related to the themes of the conference (more information here).
• The World Trade Institute (WTI) of the University of Bern invites the submission of papers and abstracts for its conference on November 8, 2013, entitled “The Role of the State in Investor-State Arbitration”. The conference will examine the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration. More information is here.
• To commemorate the 50th Anniversary of the Signing of the Vienna Convention on Consular Relations, the Southern Illinois University Law Journal is pursuing a Fall 2013 “paper” symposium related to the topic. For the symposium, the Journal is soliciting articles from experts in the field regarding the past and/or future of the VCCR and consular relations law. Final drafts of approximately twenty pages are requested by the end of August. If you are interested in submitting an article for publication, please contact the Journal editors, Jessica Sarff or Dean Davis, for additional details.

Events

• The ABA Section of Administrative Law and Regulatory Practice is organizing the 8th Annual Homeland Security Law Institute on June 19-21, 2013, at the Capital Hilton Hotel in Washington DC. More information is here.

Announcements

• The Faculty of Law, University of Copenhagen, is seeking applications for a position as professor of law to be affiliated with iCourts – The Danish National Research Foundation´s Centre of Excellence for International Courts, which is a research centre at the Faculty of Law. More information is here.

On 6 February 2103, the PTC ordered Libya to surrender Al-Senussi to the ICC. Libya failed to comply with that order; instead, on April 2, it filed an admissibility challenge in the case and argued that Art. 95 of the Rome Statute entitled it to postpone surrender pending resolution of its challenge. Yesterday, the PTC agreed with Libya.

The PTC correctly found — in light of previous ICC jurisprudence — that a state is entitled, as a matter of right, to postpone surrendering a suspect pending resolution of an admissibility challenge. The more important question was whether Libya had properly filed its admissibility challenge to the case against Al-Senussi. Art. 19(5) of the Rome Statute requires a state to challenge admissibility “at the earliest opportunity.” According to the Appeals Chamber in the Kenya admissibility proceedings, that means a state must “challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions.”

The PTC rejected the defence argument that Libya had not challenged the admissibility of the case against Al-Senussi “as soon as possible.” Here are the relevant paragraphs (emphasis mine):

30. The Admissibility Challenge was filed by Libya on 2 April 2013, almost seven months after Mr Al-Senussi’s transfer to Libya from Mauritania. The Chamber notes the Defence argument to the effect that this fact “shows without a doubt that Libya [...] has not filed its challenge expeditiously”. The Chamber is not persuaded that this mere chronology per se renders the Admissibility Challenge tardy, and, as such, abusive. Indeed, the Chamber must take into account the circumstances of the individual case, with a view to determining whether the challenge was filed in violation of article 19(5) of the Statute.

[snip]

32. In the case at hand, and without entertaining, for the purposes of the present decision, the validity of the arguments advanced by Libya in support of its Admissibility Challenge, the Chamber is of the view that the information before the Chamber does not appear to indicate that Libya, despite being in a position to properly and timely challenge the admissibility of the case against Mr Al-Senussi, unduly failed to do so, in violation of article 19(5) of the Statute.

There are three very significant problems with the PTC’s analysis. To begin with, the PTC provides no explanation — literally, none — for why Libya’s decision to wait seven months after Al-Senussi’s extradition qualifies as challenging admissibility “as soon as possible.” We are just supposed to trust that the PTC took the matter seriously, considered all of the available information, and decided that Libya had a good reason for waiting so long. Al-Senussi deserves better, given that he has already spent seven months in detention without access to a lawyer — and that the PTC’s decision means that, if its dilatory approach to the Saif admissibility challenge is any indication, he will spend another ten months or so in the same situation.

Even worse, the PTC seriously misrepresented the defence’s argument concerning the length of time Libya waited to file its admissibility challenge. The PTC says, as the bolded text in para. 30 indicates, that the defence claimed Libya waited seven months. But that is not what the defence argued. Here is the relevant paragraph from the defence response to Libya’s request to postpone Al-Senussi’s surrender (emphasis mine):

35…. The chronology of these proceedings outlined above shows without a doubt that Libya – which has been filing pleadings in respect of admissibility for Mr. Gaddafi for over a year – and has held Mr. Al-Senussi for over 7 months – has not filed its challenge expeditiously. It should therefore not be allowed to use article 95 to cause further unacceptable and unnecessary delay.

Nothing can justify the PTC’s mischaracterization of the defence’s argument. But perhaps the PTC could be forgiven if seven months was the correct length of time that Libya waited to challenge admissibility. But it is easy to see that the defence claim, not the PTC’s, was far closer to the truth. As the defence noted in its response, Libya initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, which it filed with the PTC on 1 May 2012. On May 4 — only three days later — the PTC informed Libya that it did not consider its Al-Senussi challenge to have been properly filed:

8. As a preliminary matter, the Chamber has considered Libya’s submissions as to the scope of the Article 19 Application and considers that it must be understood to only concern the case against Mr Gaddafi. Accordingly, the Chamber will not consider the admissibility of the case against Mr Al-Senussi in resolving the Article 19 Application.

In short: (1) Libya believed that it was in a position to challenge the case against Al-Senussi sometime prior to 1 May 2012 (whenever it began work on the joint admissibility challenge); (2) Libya formally challenged the admissibility of the case on 1 May 2012; (3) Libya learned that it had not filed a proper admissibility challenge on 4 May 2012; yet (4) Libya waited until 2 April 2013 — more than 11 months later — to file a proper admissibility challenge. At a minimum, therefore, the PTC should have determined whether Libya’s decision to wait 11 months, not seven, was reasonable under the circumstances.

Perhaps the PTC would have still given Libya the benefit of the doubt. We have no way to know, of course, because the PTC did not bother to explain its decision concerning a seven month delay. From my perspective, I cannot see how even seven months was reasonable — after all, Libya not only initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, it subsequently formally submitted to the Court (see para. 175) its intention to try the two men together. Both of those facts strongly imply that Libya considers the case against the two men to be substantially similar. So if Libya felt able to challenge the case against Saif on 1 May 2012, it is difficult to understand why it needed an additional 11 months to challenge the case against Al-Senussi.

The PTC’s decision to permit Libya to keep Al-Senussi in custody was clearly erroneous. The defence should appeal — and, at a minimum, the Appeals Chamber should order the PTC to consider whether Libya’s failure to file a proper admissibility challenge for 11 months, not seven, is consistent with Art. 19(5).

This week on Opinio Juris, there was a lot of news to cover with NSA leak and the US administration’s decision to arm Syrian rebels. On the first, Julian thought Hong Kong was a dumb choice of refuge for the NSA leaker. Chris dug deeper into domestic data-mining with earlier stories about the NSA’s activities. Peter addressed the position of expat Americans in PRISM. Further on cyber-issues, Duncan highlighted Japan’s new Cybersecurity Strategy.

On the second bit of news, Julian argued why the “red line” crossed by Syria is meaningless in terms of the legal framework restricting US intervention in Syria. Neomi Rao contributed a guest post on the implications of the Syria crisis for the R2P doctrine. As announced by Julian here, Neomi will continue to blog on R2P next week, so stay tuned!

Other internationally relevant news can be found in the weekday news wraps.

First in string of guest posts, Michael Lewis argued that Pakistan has withdrawn its consent to US drone strikes in its territory. James Stewart then responded to Kevin’s defence last week of the ICTY’s new “specific direction” standard for aiding and abetting. Finally, Elizabeth Wilson returned to the discussion of Kiobel to refute Samuel Moyn’s argument in his ForeignAffairs post, by delving into the historical background of anti-Shell protests in Ogoniland.

In other posts, Duncan pointed to a recent article by Jean Galbraith on the treaty-implementing power of Congress in historical practice, and Kristen reported back from a conference in Leiden on privileges and immunities of international organizations. If this inspires you to write or to attend a conference, check out this week’s listing of calls for papers and events here.

Have a nice weekend (especially Jessica who has a big day today!)

The White House’s recent statement that it would begin supplying Syrian rebels with arms demonstrates how military assistance and intervention remain a choice of states rather than an obligation. Recent events confirm the arguments I make in a recent article The Choice to Protect: Rethinking Responsibility for Humanitarian Intervention. I am pleased to be guest blogging about this topic over the next few days and thank the editors at Opinio Juris for the opportunity.

The comparison between the intervention in Libya and the foot dragging with respect to Syria should cause some rethinking about the doctrine of responsibility to protect (R2P). As readers here are aware, R2P posits that states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. When states fail in this responsibility, the international community and individual states have a responsibility to protect people from serious human rights violations. In the context of Libya, President Obama appeared to invoke this doctrine when he said the United States had a “responsibility to act” to prevent the slaughter of civilians by Gaddafi’s forces. In the latest statement on Syria, “responsibility” is notably absent. There is no mention of the 93,000 people killed in the conflict. Rather, the Administration’s statement focuses on the fuzzy “red line” of chemical weapons, not the humanitarian nightmare of the ongoing fighting.

Action in Syria will depend, the statement made clear, on the Administration’s assessment of the threat and its appropriate response: “[W]e will make decisions on our own timeline. Any future action we take will be consistent with our national interest, and must advance our objectives….” Commentators have considered the legality for intervention in Syria. While these may be important questions of international law, whether the United States chooses to intervene invariably will depend less on considerations of international law as on whether Administration chooses to intervene.

The pragmatism of the Administration’s statement should come as little surprise—powerful states will make their own choices in light of their own interests, regardless of the humanitarian credentials of the foreign policy team. Yet international law scholars and proponents of intervention often ignore these realities and continue to speak of an emerging norm of intervention or of the responsibility of states to people outside their borders. While emerging norms may tolerate intervention, state practice hardly suggests that an emerging norm requires intervention.

Focusing on the choice of intervention and the domestic processes of choosing intervention should be relevant both for proponents of intervention and its critics. In subsequent posts, I will discuss why the responsibility to protect people in other states is theoretically problematic and also explain why the scope of any such obligation rests entirely with the states considering assistance.