Recent Posts

When the Left Shoots Itself in the Foot (IHL Version)

by Kevin Jon Heller

Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya’alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article:

Israeli defense minister Moshe Yaalon on Tuesday said Israel would attack entire civilian neighborhoods during any future assault on Gaza or Lebanon.

Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”

I probably should have known better than to rely on an article entitled, in relevant part, “Israeli defense minister promises to kill more civilians.” Prompted by a skeptical commenter, I watched the video of Ya’alon’s speech. And the video makes clear that the author of the article, Asa Winstanley, selectively quoted what Ya’alon said in order to make it seem like Ya’alon was advocating deliberately attacking civilians. In fact, Ya’alon was discussing a possible attack on a rocket launcher located in a civilian house and acknowledging that, if the IDF launched the attack, it was clear they were “going to hurt Lebanese civilians to include kids of the family.” The IDF launched the attack anyway, believing that the military advantage outweighed the certain civilian damage.

Bothered by being suckered into making such a significant mistake, I tweeted Winstanley about his selective quotation. Perhaps he had not actually seen the video? His response was disappointing, to put it mildly. Instead of acknowledging his mistake, he repeated the selective quote. I replied that the video made clear Ya’alon was talking about Israel’s proportionality calculation, not deliberate attacks on civilians, and pointed out that civilian damage is permissible under IHL unless the anticipated civilian damage caused by an attack is excessive in relation to the expected military advantage. I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate.

At that point, it’s safe to say, Winstanley simply lost it. Here are some of his tweets, with my thoughts in the parentheticals…

Guest Post: The Death Penalty for Drug Offences: ‘Asian Values’ or Drug Treaty Influence?

by Rick Lines, Damon Barrett and Patrick Gallahue

[Dr Rick Lines is Executive Director of Harm Reduction International, and a Visiting Fellow at the Human Rights Centre, University of Essex. Damon Barrett is the Director of the International Centre on Human Rights and Drug Policy at the Human Rights Centre, University of Essex and a doctoral candidate in the Department of Law, Stockholm University. Patrick Gallahue is the Communications Director at the ACLU-Connecticut, and former Coordinator of the Death Penalty Project at Harm Reduction International. He is a doctoral candidate in the Human Rights Centre, University of Essex.]

Recent mass executions by the Government of Indonesia have thrown the international spotlight on the death penalty for drug offences, and ignited debates between abolitionist and retentionist States on the legality and efficacy of this sanction. This international attention is to be welcomed.

When we established the death penalty for drugs project in 2007 at the NGO Harm Reduction International, it was the first and only project specifically dedicated to research, analysis and advocacy on what at the time was a little understood issue. Our reports tracked State practice, estimating that up to 1,000 people a year were executed for drug offences worldwide, promoted the case that the death penalty for drugs constitutes a violation of international human rights law and documented direct links between UN Office on Drugs and Crime (UNODC) country assistance programmes and executions for drug offences.

But despite the clear evidence of the illegal nature of the sanction, and the growing chorus of voices calling for its abolition, a small and increasingly isolated group of countries continues to kill people for drug offences. In executing fourteen people in a matter of months, the Government of Indonesia has aligned itself with the extreme fringe of even this isolated group, joining just four other States (China, Iran, Saudi Arabia, Vietnam) that execute people for drug offences with regularity and/or in great numbers.

Political leaders and commentators often try to excuse or explain the death penalty for drug offences in Asian or Middle Eastern countries on the basis that the practice reflects unique values and traditions of the regions, or that the application of international human rights law represents a foreign intervention into domestic matters. However, like so many defenses of this indefensible practice, this one crumbles under scrutiny.

For the majority of States actively executing drug offenders, the practice is about as ‘traditional’ in legal or historical legal terms as the microwave oven is in cooking terms, and in most cases even less so. Most of the dozen States that actively execute drug offenders adopted these laws from the 1980s onwards, suggesting that rather than reflecting traditional ‘values’ of the region these policies are instead a response to the anti-drugs climate of the period, and the drafting and adoption of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the third UN drug treaty that established State obligations in international law to enact harsh penal provisions for drug offences at domestic level.

Consider some of those States actively executing drug offenders, and compare the dates of enacting these laws against their signing or ratification of the 1988 drug treaty.

State Treaty Signed Treaty Ratified Capital Drug Law
Indonesia 1989 1999 1995
Viet Nam 1997 1999
Saudi Arabia 1992 1987
Kuwait 1989 2000 1995
Thailand 2002 1979
Pakistan 1989 1991 1997
Egypt 1988 1991 1989
Yemen 1988 1996 1993
Singapore 1997 1975
Malaysia 1988 1993 1975

With the exception of China and Iran, which have had capital punishment for drug offences since the 1940s and 1950s respectively, only Singapore, Malaysia and Thailand have capital drug laws that predate the drafting process of the 1988 drug treaty. Even then, those 1970s laws fall squarely with the era of the modern international drug control treaty regime, in which penal approaches to drug suppression were increasingly prioritised. More specifically, they fall within the period of the global ‘war on drugs’, launched by the U.S. in the early 1970s, which formed the international political backdrop for the drafting of the 1988 treaty.

Indonesia is actually a case that neatly proves the fallacy of this argument. Far from being a longstanding ‘traditional’ part of the domestic criminal justice system, the first person executed for drug offences in Indonesia was in 1995, six years after the State signed the 1988 convention. Indonesia executed five people in total for all offences between 2009 and 2014, all in the year 2013. In the other five years, the Government executed no one at all. Yet now in the first few months of 2015, the Government has executed fourteen people, all for drug offences. How to we explain this pattern? Did Indonesian ‘traditions’ or ‘values’ change between 1995 and 2009, then change again in 2009, and again in 2015? Or did the Government, and Government policy, change in response to domestic political considerations and the perceived political weakness of its leader?

A 2001 UN report recorded a more than 50% increase in the number of countries prescribing the death penalty for drugs into domestic law between 1985 and 2000. Surely this dramatic shift in State practice in a relatively short span of fifteen years did not reflect changes in national traditions or cultures.   Rather, the use of the death penalty for drug offences reflected developments in international drug control law, and the increasingly punitive nature of the regime throughout the 1970s, as codified in the 1988 drug convention. As we have pointed out elsewhere, this dramatic increase in States prescribing the death penalty for drug offences runs exactly opposite to the overall international trend towards the abolition of capital punishment documented during that same period. The irony here is obvious, as many death penalty States are all-too-happy to amend domestic laws based on UN drug control treaties, while at the same time claiming that UN human rights treaties represent an inappropriate infringement on domestic affairs.

Perhaps the most obvious fact exposing these arguments as baseless is that the vast majority of countries in the region do not execute people for drug crimes. There are 49 countries in the huge region of Asia and the Middle East. Of these, only a dozen actively execute people of drug offences, and only four or five execute people with any regularity or in any great number. Rather than capital punishment being a ‘shared’ regional approach to drugs, the countries executing drug offenders are a minority, and those executing with regularity represent a tiny minority of only one in ten.

If we take State practice as a guide, the true regional approach to drug enforcement is the non-use of capital punishment. Placed in this broader context, the tiny group of high-executing States can be seen as the extreme fringe their policies actually represent.

Regulation 55 and the Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

It’s becoming an old story: the Pre-Trial Chamber (PTC) rejects a charged mode of liability after a confirmation hearing, so the OTP simply asks the Trial Chamber (TC) to give the defendant notice that it will consider convicting him on the basis of the rejected mode anyway. This time, the defendant is Laurent Gbagbo. The OTP initially alleged that Gbagbo is responsible for various crimes against humanity on the basis of Art. 25 in the Rome Statute — indirect co-perpetration; ordering, soliciting or inducing; and otherwise contributing to the commission of crimes — as well as command responsibility and superior responsibility. Following the confirmation hearing, the PTC confirmed all of the modes of liability in Art. 25, but declined to confirm command and superior responsibility, because those modes “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.” Undeterred, the OTP then asked the TC to invoke Regulation 55:

The Office of the Prosecutor (“Prosecution”) requests that Trial Chamber I (“Chamber”) give notice to the Parties and participants pursuant to regulation 55(2) of the Regulations of the Court (“RoC”) that the legal characterisation of the facts confirmed by Pre-Trial Chamber I (“Pre-Trial Chamber”) may be subject to change to accord with a further alternative form of participation of the Accused Laurent Gbagbo (“Gbagbo”): superior responsibility under article 28(a) and (b) of the Rome Statute (“Statute”) for all crimes (“Request”).

I have explained at length in this article why the Rome Statute — Art. 61 in particular — does not permit the Trial Chamber to convict a defendant on the basis of an unconfirmed mode of liability, so there is no need to repeat the argument here. Suffice it to say that the OTP’s request, which will almost certainly be granted by the TC (if past practice is any guide), continues the confirmation hearing’s long, slow slide into irrelevance. Given how the TC and Appeals Chamber have (wrongly) interpreted Regulation 55, the confirmation hearing actually “confirms” nothing; it just provides suggestions to the TC concerning how it might choose to convict the defendant. If the TC wants to go a different direction and convict the defendant on the basis of an unconfirmed mode of participation, no problem. It can simply “recharacterize” the facts and circumstances proven at trial.

Discerning readers might wonder how a defendant is supposed to prepare his defence in such a situation. Isn’t the entire point of the confirmation hearing to inform the defendant of the crimes and modes of liability he will have to rebut during trial? Yes — which is the fundamental problem with Regulation 55 as the judges have interpreted it. Because of their interpretation, defendants now have only two potential strategies at trial: (1) prepare a defence to every possible legal characterization of the facts and circumstances in the charge sheet — all possible crimes and all possible modes of liability; or (2) ignore the law entirely and focus solely on rebutting the facts and circumstances themselves. The first strategy is effectively impossible — and it’s very unlikely the TC would even let a defendant do it. (“Sorry, you have to pick one or two theories of the case — even though we can pick any theory we want down the track.”) And the second strategy is inconsistent with the nature of the adversarial trial contemplated by the Rome Statute. Defendants are (supposed to be) charged with specific crimes on the basis of specific modes of liability; they are not charged with bare facts and circumstances.

It’s a shame that the ICC’s judges have allowed Regulation 55 to metastasise into the ultimate judicial hammer — a one-size-fits-all tool for saving the OTP from its own poor charging decisions and ineffective trial advocacy. (See, e.g., Katanga.) But, of course, it’s not a surprise. After all, the judges wrote the Regulation themselves.

Two Interesting New Reports on ILC Website

by Kristen Boon

There are two important new reports up on the International Law Commission’s website.

First, Sean Murphy’s First Report on Crimes Against Humanity is now available.  The UN Doc symbol is A/CN.4/680; link to the report here.

The report is a terrific overview of the current gaps in the international legal architecture, and maps out steps towards a future convention.   The report also proposes two draft articles: one on prevention and punishment of crimes against humanity and the other on the definition of such crimes.   For background, see Leila Sadat’s Crimes Against Humanity Initiative here.

Hat tip to James Stewart for flagging this report.

Second, Sir Michael Wood’s Third Report on the Identification of Customary International Law is available now as well. The UN Doc symbol is A/CN.4/682, and the link is available here.    Readers may recall that last summer I asked whether Security Council acts are relevant to Customary International Law, and noted that the ILC’s treatment of the topic to date had not included a discussion of IOs.   This report remedies this lacuna in part in that it specifically addresses the acts of IOs.  However, its conclusion is that acts of IOs are generally irrelevant to the formation of custom.  Instead, the Report’s guiding assumption is that the practice of IOs is to be attributed to the states themselves, not to the IOs. As the report notes:

if one were not to equate the practice of such international organizations with that of States, this would mean not only that the organization’s practice would not be taken into account, but also that its Member States would themselves be deprived of or reduced in their ability to contribute to State practice.

This conclusion will be controversial:  even the report’s footnotes cite numerous scholars and states that express opposing views.

Both of these reports are likely to spur important scholarly debates.

Events and Announcements: May 17, 2015

by Jessica Dorsey

Events

  • Today and tomorrow, at the Cardozo School of Law, New York, New York, the conference, Constitutional Conflicts and the Judicial Role in Comparative Perspective will be held. This conference, which marks the launch of the Israeli Supreme Court Project at Cardozo Law, will explore the Court’s jurisprudence on complex and challenging questions facing open and multi-cultural societies everywhere. Because these issues are salient in, but by no means peculiar to, Israel, a comparative perspective will enrich our understanding of how such issues are, and might be, dealt with in other democratic societies. Panels will address the general question of the value and challenges of comparative legal study, differing conceptions of the role of the judiciary and doctrines of justiciability, and substantive areas of current controversy, including the role of the courts in overseeing national security and intelligence gathering; immigration, asylum, and treatment and status of refugees; and religion in the modern nation-state. The conference is free and open to the public, but registration is required. Please email ISCP [at] yu [dot] edu with your name, affiliation, and contact information. For more information, see here.
  • Delegates are now able to reserve places for The Chagos Litigation: A Socio-Legal conference, which takes place on 29th June 2015 at the University of Greenwich. The keynote speaker is Professor Philippe Sands QC (University College London), who recently represented Mauritius in its proceedings against the United Kingdom at the Permanent Court of Arbitration. The conference is free to attend and is open to academics, legal practitioners and postgraduate students. Delegates can reserve their place by emailing: lawevents [at] gre [dot] ac [dot] uk. Further information can be found here.

Calls for Papers

  • The TAU Buchmann Faculty of Law is pleased to invite submissions to its third annual  workshop for junior scholars in law, which will take place in October 26-27, 2015. Through law, theory comes into our daily lives in many ways. The workshop will explore the connection between theory and life: how different theories are applied through legal doctrines, how theory comes to life through its application and how theory influences society and our lives. Relevant papers could, for example, discuss more specific questions like: How does theory come into life in different fields of law, such as criminal law, public law, corporate law, civil law, international law, cyber law, environmental law and others? What is the connection between human rights theories and their acceptance or rejection by different actors? How does legal theory deal with rapid changes in science and technology? What are the potential theoretical justifications to recognize obligations of states towards foreign individuals or communities? How can different actors, such as governments, philanthropists, public litigators and human rights organizations use theory to further their cause? How do lessons learned from historical events affect the formation of theory and practice? For details regarding submission and funding possibilities please see the call for papers

Announcements

  • The South China Sea Institute of Xiamen University, and Center for Polar and Deep Ocean Development of Shanghai Jiao Tong University, announce their annual summer program – Marco Polo- ZHENG He Academy of International Oceans Law and Policy, to be held from July 5 – July 31, 2015. These centers are leading interdisciplinary research institutes in China in the area of Oceans Law and Policy. This is the 10th anniversary of the summer academy which has been attended in past by the scholars, practitioners, diplomats and students from -: Australia, Bangladesh, Belgium, China, Colombia, Hong Kong, India, Indonesia, Iran, DPR Korea, Rep. of Korea, Malaysia, Poland, Russia, Singapore, Switzerland, U.S., and others. The four week intensive summer program is divided into two sessions to be held in Chinese cities of Xiamen and Shanghai. The participants have an option to attend either or both the sessions. The program offers a unique chance to learn about the Chinese perspectives on Law of the Sea and its policies. The structure of the program is such that the class lectures are held in morning sessions and in the afternoon sessions trips to Chinese courts, law firms, and governmental agencies related to oceanic administration, museums, etc., are planned. Participants also have the option of taking tests and getting credits transferred to their own schools. Limited number of scholarships is offered to outstanding candidates upon application and subsequent review. Please find more information about Xiamen Session here and Shanghai Session here.

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.

Weekend Roundup: May 10-16, 2015

by Jessica Dorsey

This week on Opinio Juris, Duncan posted his thoughts on the fog of technology and international law with respect to drone strikes and Kevin defended (!) Jeb Bush for his somewhat botched answer to Fox News’ Megyn Kelly about the Iraq war.

We had three great guest posts. The first, garnering a large amount of discussion, was from Eugene Kontorovich on Iran’s relief ship and the blockade of Yemen. Our second came from Emma Irving, highlighting the news this week that Mathieu Ngudjolo Chiu, acquitted by the ICC, was sent packing from the Netherlands back to the DRC without asylum, despite the risk he claims he faces in the DRC. Finally, Rishi Gulati weighed in on the recent case of Anders Kompass, the senior UN official who leaked an internal UN report on sexual abuse by UN staff in the Central African Republic to the French authorities, and gave some insights into the UN’s internal justice system.

We’ve announced our third annual Emerging Voices symposium–abstracts are due by 31 May 2015 and I rounded up the news here and the events of the week here.

Thanks for following us and have a great weekend!

Guest Post: The Anders Kompass Case–A Moment of Opportunity for the UN Internal Justice System

by Rishi Gulati

[Rishi Gulati practices as a barrister in Melbourne. The author has not had any involvement with the Kompass case; and this post should not be construed as legal advice in any form whatsoever.]
Highlighting Mr Anders Kompass’s suspension from duties as a senior official at the UN, the Guardian recently reported that Mr Anders Kompass, a senior UN staff member:

“leaked an internal UN report on the alleged sexual abuse of children by French troops in Central African Republic to French prosecutors last summer. The French immediately mounted an investigation and revealed…they were investigating up to 14 soldiers for alleged abuse. The French authorities wrote to thank Kompass for passing on the internal report detailing the abuse”.

Notably, the UN suspended Mr Kompass from his job at the UN, arguing that Mr Kompass engaged in misconduct warranting his suspension from duties. It is apparent that the “misconduct” in question concerns allegations that Mr Kompass breached confidentiality by sharing with French authorities “confidential un-redacted preliminary investigative notes” about allegations of sexual abuse of children in the Central African Republic.

As is reported in the article in the Guardian cited above:

The confidential internal report leaked by Kompass contained interviews by a UN official and a member of Unicef with a number of children, aged between eight and 15, who say they were sexually abused at a camp for internally displaced people in Bangui, the capital of CAR, by French troops last year. The interim report identified about 10 children effected but the UN said it was possible many more children had been abused.

A procedural background to Mr Kompass’s suspension

The key facts are contained at paragraphs 1-12 of the judgment of the United Nations Dispute Tribunal (UNDT) in Kompass v Secretary General of the United Nations, Order on an Application for Suspension of Action, 5 May 2015. In summary (footnotes omitted):

  • Mr Kompass is employed at the Director level at the Office of the High Commissioner for Human Rights (OHCHR), Geneva,
  • In July 2014, another senior OHCHR official provided Mr Kompass a copy of a report containing serious allegations of paedophilia allegedly committed in the Central African Republic by French military. Mr Kompas says that “he brought the content of the report to the attention of the Deputy Ambassador of France”. Mr Kompass states that “he informed the Deputy High Commissioner (his supervisor at the OHCHR) that he had seen the report and had discussed the allegations with the Deputy Ambassador of France.
  • Mr Kompass said that in response to a request from the French Permanent Mission to the UN in Geneva, he shared the report with the Permanent Mission. Mr Kompass said that he shared this information with his supervisor at the OHCHR, the Deputy High Commissioner (a disputed fact).
  • On 6 March 2015, the High Commissioner for Human Rights (High Commissioner) became aware that Mr Kompass allegedly leaked confidential investigative notes concerning allegations of sexual abuse.
  • It is uncontested that on 12 March 2015 Mr Kompass was asked to resign by the Deputy High Commissioner who was ultimately relaying the request of the Under-Secretary-General for the Department of Peacekeeping Operations. Mr Kompass refused to resign.
  • Upon a request by the High Commissioner, the body at the UN that conducts investigations of internal staff misconduct, the Office of Internal Oversight Services (OIOS) was then asked to conduct an investigation into Mr Kompass’s actions.
  • Whilst the OIOS investigation was on foot, on 17 April 2015, Mr Kompass, under the internal rules of the UN, was placed on administrative leave with pay (ALWP).

ALWP, as the name suggest disallows the affected staff member from continuing in his or her duties. Being placed on ALWP obviously can cause professional and reputational damage, leaving aside the emotional distress it may cause to a staff member.

On 29 April 2015, Mr Kompass accessed the UNDT requesting relief that the ALWP be suspended, meaning that if Mr Kompass succeeded in his application, then he could return to his duties. To obtain relief, Mr Komposs amongst other things, needed to show that the decision to place him on ALWP was prima facie unlawful, and the decision would cause Mr Kompass irreparable damage.

Why did Mr Kompass have to access the UNDT as opposed to a domestic employment tribunal?

As the UN enjoys immunities before domestic courts, an aggrieved UN staff member cannot approach a domestic court. Employment disputes between the UN and its staff are heard by a tribunal set up by the UN, the United Nations Dispute Tribunal (UNDT), and an appeals tribunal, known as the United Nations Appeals Tribunal (UNAT). These tribunals apply a specialised body of law known as international administrative law (IAL). IAL governs the employment relationship between the UN and its staff. IAL is a specialised body of law that includes aspects of administrative, contract and international law. It is based on both, the common and civil law traditions. While links are discernible, strictly speaking, IAL should be distinguished from the broader notion of Global Administrative Law (GAL), which is an emerging body of law focusing on the “increasing use of administrative law-type mechanisms, in particular those related to transparency, participation, accountability and review, within the regulatory institutions of global governance.” See here for information on the GAL movement.

It is worth noting that in the past, serious criticisms have been levelled at the UN concerning the deficiencies in its internal justice system where cases often took years to resolve. In 2009, after decades of effort, the UN comprehensively redesigned its internal justice system, creating the UNDT and the UNAT. For a discussion, see an earlier article by the author here.

So, is the redesigned system working? The Kompass case is a prime example that while much more needs to be done, progress has been made.

What did the UNDT decide in the Kompass case?

Bearing in mind that the merits of the case have not yet been determined, on the issue of prima facie unlawfulness, the UNDT concluded at para 34 that the UN official who placed Mr Kompass on ALWP did not have the authority to do so; and critically, the decision did not comply with the internal rules of the UN:

39. The Tribunal finds that neither the interest of the Organization, nor the avoidance of any interference with the investigation are reasons in the exhaustive list …of the respective administrative instruction. Therefore, as such, they cannot be accepted as valid reasons for placing the Applicant on administrative leave.

On the issue of irreparable damage, the UNDT said:

49. Therefore, and since the Applicant is currently being prevented from carrying out his functions as a result of being on administrative leave, which is of public knowledge, the Tribunal finds that if the suspension is not granted, the harm done to the Applicant’s reputation will be irreparable and could not be adequately compensated at a later stage.

Mr Kompass has now been reinstated to his position. This decision of the UNDT is undoubtedly a decision consistent with the maintenance of UN accountability to its very own staff members: ensuring that UN management acts within the purview of its internal rules and procedures. This is especially critical as UN staff cannot approach domestic courts for remedies for breach of their terms of employment. Most critically, the fact that Ms Kompass could seek justice within a few days of being placed on ALWP is a testament to the initial success of the new internal justice system. Undoubtedly significant issues with whistle-blower protection exist at the UN, but the Kompass case provides an example that there is reason for cautious optimism regarding access to justice for aggrieved UN staff members.

It bears noting that as per the information in the UNDT’s judgment, Mr Kompass’s appointment at the UN expires on 8 July 2015. It can only be hoped that any renewal of Mr Kompass’s employment does not attract retaliatory action. This case could yet be subject to several more twists, and it is crucial to maintain a close watch.

Guest Post: The End of the Road for Ngudjolo and the Stacked Odds Against ICC Acquitted

by Emma Irving

[Emma Irving is a PhD Researcher at the University of Amsterdam School of Law, and a visiting researcher at Cornell University.]

Earlier this week was the final instalment of the story of the International Criminal Court’s (ICC) first acquittal, with the removal of Mathieu Ngjudjolo Chui from the Netherlands back to the Democratic Republic of Congo (DRC).

It was not altogether surprising when the Appeals Chamber of the ICC upheld the Ngjudjolo’s acquittal on the 27th February this year. What was surprising was the events that followed. Immediately following the judgment, Ngudjolo was escorted by Dutch police to Schiphol International Airport to be deported back to the Democratic Republic of Congo. The plane made it all the way to the runway before being dramatically called back: Ngudjolo was to have his asylum application heard a second time.

Ngudjolo first applied for asylum in the Netherlands in 2012 after he was acquitted by the ICC Trial Chamber. In this case too he made it all the way to Schiphol Airport, but not quite onto a plane, before the Dutch authorities halted the deportation. Ngudjolo contended, and still does, that he would be at risk if returned to the DRC. The Dutch authorities responded to these claims by stating that Ngudjolo had not provided enough evidence of the risks he faced, and that in any event he was excluded from refugee protection as a suspected war criminal. The issue was appealed all the way to the Council of State, the highest administrative body in the Netherlands, which ultimately sided with the Dutch government. It held that Article 1F of the 1951 Refugee Convention, which disqualifies an individual from refugee status if they are suspected of having committed war crimes or crimes against humanity, could be applied despite an acquittal by the ICC. The Council deemed that the evidentiary standard for exclusion was lower than in criminal cases, and that Ngudjolo’s acquittal did not remove suspicion of his involvement in other crimes. The asylum application was denied.

Such is how matters stood up until the appeal judgment. Ngudjolo’s legal team secured a second asylum hearing after he was acquitted on appeal, stopping his immediate deportation. However, on the 23rd of April 2015, this application was also refused. While Ngudjolo can appeal this decision, an appeal will not have suspensive effect, and his deportation was scheduled for the 1st May. For a more detailed procedural history see here and here.

After an application for residence in Switzerland on humanitarian grounds was turned down, Ngudjolo reached the end of the road in terms of preventing his return to the DRC. And that road seemed to be a dead-end all along. The odds were stacked against Ngudjolo from the beginning: 1) he was in a catch-22 position as regards acting as a witness in his own defence, 2) the ICC did not act to assist him, and 3) he could not cast his asylum seeking net beyond the Netherlands.

To begin with Ngudjolo’s role as a witness, he was caught in a no-win situation. Although important in securing his acquittal, the content of Ngudjolo’s testimony prejudiced his position on release. It both prevented him from returning home, and prevented him from remaining in the Netherlands. As regards returning home, Ngudjolo made statements against the DRC government, and in particular, provided a letter that incriminated the DRC government in the attack on the village of Bogoro, for which he himself was standing trial. Speaking out against the powers-that-be in the DRC, Ngudjolo claims, has placed him at great risk. As to remaining in the Netherlands as a refugee, Ngudjolo’s testimony handed the Dutch authorities the evidence they needed to exclude him from refugee protection. In order to prove that he was not involved in the Bogoro attack, Ngudjolo provided details as to his position in the militia hierarchy. The Dutch authorities then used this information, combined with other reports about the conflict, to invoke Article 1F. For reasons that the ICC has kept confidential, Ngudjolo was also excluded from ICC witness protection. He was therefore stuck in a lose-lose situation: give evidence in his own defence but have nowhere to go if acquitted, or do not give evidence and increase the chance of conviction.

Then there was the inaction on the part of the ICC. The dilemma of acquitted persons who cannot return to their home countries is by no means new. The International Criminal Tribunal for Rwanda (ICTR) has been dealing with this thorny issue for years, and still has no firm resolution – while the Tribunal may have wrapped up at the end of last year, there are still acquitted persons living in a safehouse in Arusha. It is perhaps this legacy that has prompted the ICC to act the way it has: to simply open its doors and allow acquitted persons to walk out (and be arrested). Granted, when a person is cleared of all charges, the right to liberty requires their release, as does the Rome Statute (Article 81(3)(c)). However, as Ngudjolo’s case demonstrates, this is not always ideal. When it comes to acquitted persons, the Rules of Procedure and Evidence also have something to say. Rule 185 obliges the Court to make such arrangements as it considers appropriate for the transfer of an acquitted person, taking into account the person’s views, to a State. This can be a State that is obliged to receive the acquitted person, a State that has agreed to receive the person, or a State that has sought the acquitted person’s extradition.

From a reading of the text of Rule 185 alone, it would seem that the ICC can order a transfer to any State willing or obliged to receive the individual. But then there is Article 21(3) Rome Statute. This Article requires that all law applicable to the ICC be interpreted and applied in accordance with internationally recognised human rights norms, of which non-refoulement is one. It is argued that when Rule 185 is read with Article 21(3), it must mean that the ICC cannot order a transfer to a State where the individual would be at risk. This application of Rule 185 would require the creation of a procedure to decide where the acquitted person is to go before they are released. A comparable process is undertaken when an accused is considered eligible for interim release; a hearing must be held in which a State willing to host the accused is identified. Neither this approach to Rule 185, nor apparently any other, was taken in Ngudjolo’s case. His release and hand over to the Dutch police seems to have been done with no formal decision on where he would be taken, at least none that is transparent and publicly available.

The final obstacle facing Ngudjolo was the fact that the Netherlands was his only option for seeking asylum. The construction of the Refugee Convention is such that no other State is obliged to hear an asylum application from him, as he is neither on their territory nor at their border. For this reason he is only able to make applications for humanitarian residence, or variations of, which are entirely discretionary (this limitation is what led to the chronic problem of acquitted persons at the ICTR). The consequence is the overburdening of The Netherlands with asylum claims from not only acquitted, but also witnesses. It is perhaps not surprising that the Netherlands has fought hard against such applications, for fear of establishing a precedent.

In the end it was May 11th, rather than May 1st, that saw Ngudjolo deported from the Netherlands. Interestingly, the website for the 1533 Sanctions Committee still lists Ngudjolo as being subject to a UN travel ban, although this does not seemed to have proven a hindrance. The Ngudjolo case is another instalment in the story of the ICC’s growing pains, and in The Netherlands’ fight to minimise the impact of it hosting the Court. This story will go on as the ICC continues its operations and more judgments are rendered, and it is hoped that in future the odds become a bit more evenly distributed.

The Fog of Technology and International Law

by Duncan Hollis

[Note: This piece is cross-posted to the SIDIblog, the blog of the Italian Society of International Law, which was kind enough to ask for my views on these topics; for those interested in their other posts (in multiple languages), see here.]

 

  • War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty.

Carl von Clausewitz, Vom Kriege (1832), Bk. 1, Ch. 3.

  • It is a cruel and bitter truth that in the fog of war generally and our fight against terrorists specifically, mistakes — sometimes deadly mistakes — can occur.  But one of the things that sets America apart from many other nations, one of the things that makes us exceptional is our willingness to confront squarely our imperfections and to learn from our mistakes. 

U.S. President Barack Obama, April 23, 2015

I arrived in Rome for a month-long visit at LUISS Universita Guido Carli to find a country wrestling with the tragic news of the death of one of its own – Giovanni Lo Porto.  As President Obama himself announced, the United States inadvertently killed Lo Porto and Warren Weinstein, a USAID contractor, as part of a January drone strike targeting an al Qaeda compound in the Afghanistan-Pakistan border region.   Both aid workers were Al Qaeda hostages; Lo Porto had been kidnapped in 2012, while Weinstein was abducted in 2011.

The story made global headlines for Obama’s apology that the United States had not realized these hostages were hidden on-site, and thus their deaths were a tragic mistake:

As President and as Commander-in-Chief, I take full responsibility for all our counterterrorism operations, including the one that inadvertently took the lives of Warren and Giovanni.  I profoundly regret what happened.  On behalf of the United States government, I offer our deepest apologies to the families.

President Obama directed a “full review” of the strike, and there are calls for other investigations as well, including here in Italy.

Amidst this tragedy – and some of the apparent missteps by the U.S. (not to mention Pakistani) governments (painfully noted by Mr. Weinstein’s family) — there is something remarkable in the Obama statement.  Unlike so many other reports of U.S. errors or controversial programs in recent years (think Wikileaks or this guy), here was the U.S. Government, on its own, declassifying and disclosing the facts surrounding a drone strike that by all accounts appears to have included a major mistake in its execution.  For lawyers, moreover, such disclosures are critical – without them we are left with what I’d call the “fog of technology” which precludes the application of the rule of law in an open and transparent way.

Clausewitz’s concept of the “fog of war” is simple, and well known:  it describes the situational uncertainty that military actors face, their lack of perfect information about an adversaries’ intentions and capabilities (not to mention incomplete knowledge of their allies’ intentions and capabilities).   What looks good on paper before an armed conflict may prove unworkable as the conditions of war – physical hardship, the need for immediate decision-making, emotional strains, etc. – complicate decision-making, and with it, the achievement of military objectives.

I use the term “fog of technology” to identify a similar situational uncertainty that lawyers face when confronting the deployment of new technology.  Simply put, new technology can cloud how lawyers understand the content of law.  Of course, lawyers can assess new technology and find it analogous to prior cases, allowing for what I call “law by analogy”, where the nature or function of a new technology is regulated according to how an analogous technology or function has been regulated in the past.  But the more novel the technology – the more it can function in non-analogous ways, or with effects previously unimagined – the more lawyers may (or at least should) struggle with interpreting and applying the law to it.

Now, the fog of technology can emerge in all sorts of legal systems and all sorts of contexts from 3D printing to nanotechnology to driverless cars.  But President Obama’s explicit reference to Clausewitz makes me think about it in the particular context of warfare itself.  We are very much in a fog of technology when it comes to applying law to modern conflicts, whether it’s the remotely-piloted drone that killed Lo Porto and Weinstein, Stuxnet, or rumors of truly autonomous weapon systems (or “killer robots”).  Which domestic and international legal frameworks regulate the deployment of these technologies?  Does international humanitarian law (IHL) govern these operations, and, if so, does it do so exclusively, or do other regimes like international human rights apply as well?  To the extent a specific regime applies – IHL – how do its rules on things like distinction or neutrality apply to technologies and operations that may have no prior analogues?  More specifically, how does the law treat specific cases – was the killing of Lo Porto and Weinstein, tragic but legal, or was it an internationally wrongful act?

Of course, technology is not the only reason we have such questions.  Indeed, several scholars (most notably Michael Glennon) have identified the idea of a “fog of law.”  The rise of new types of non-state actors such as Al Qaeda continue to generate legal uncertainty; more than a decade after September 11, debates persist over whether and when U.S. counter-terrorism operations fall within a criminal law framework, or, as the U.S. insists, within the laws of armed conflict.   Similarly, when the United States targets and kills a U.S. citizen abroad (such as Ahmed Farouq, the American affiliated with Al Qaeda, who died in the same strike that killed Lo Porto and Weinstein), the question is not so much how the technology did this, but whether the U.S. Constitution regulates such killing.

Still, I think there are features of technology itself that make lawyering in this context significantly more difficult.  My co-blogger Ken Anderson recently summarized a few of the most important aspects in a recent post at the Hoover Institution.  He identifies several commonalities among cyberweapons, drones, and killer robots:  (i) their ability to operate remotely; (ii) their capacity for extreme precision (at least when compared to earlier weapons); and (iii) the diminished ease of attribution.  Of these, I think the problem of attribution is foundational; law will have little to say if legal interpreters and decision-makers do not know how the technology has been deployed, let alone how it functions or even that it exists in the first place.   In such cases, the fog of technology is tangible.

Consider the story of drones and international law. (more…)

Emerging Voices 2015: Call for Abstracts

by Jessica Dorsey

This summer we will host our Third Annual Emerging Voices symposium, where we invite doctoral students and early-career academics or practicing attorneys to tell Opinio Juris readers about a research project or other international law topic of interest.

If you are a doctoral student or in the early stages of your career (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing your final degree) and would like to participate in the symposium, please send a 200-word summary of your suggested post and your CV to opiniojurisblog [at] gmail [dot] com by May 31, 2015.

We’ll let you know by mid-June if you are invited to submit a full post. Submitted posts should be  between 1000-1500 words will then be reviewed by our editors. Final essays will be posted on Opinio Juris in July and August.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

Wherein I Defend Jeb Bush (Really!)

by Kevin Jon Heller

Both the liberal media and the conservative media are pulling out the fainting couches over something Jeb Bush said to Megyn Kelly during an interview on Fox News. In response to a question about whether he would have invaded Iraq in 2003 if he knew what we know now about WMDs and the like, Jeb supposedly said yes — he would still invade. That’s how both Josh Marshall and Byron York (polar opposites, they!) read Jeb’s answer. (And Kevin Drum. And Ed Kilgore.)

But that’s not what Jeb said. Here is the exchange, taken from York’s post:

Fox News’ Megyn Kelly asked Bush a straightforward, concise question: “Knowing what we know now, would you have authorized the invasion?” Bush’s answer was an unhesitating yes.

“I would have, and so would have Hillary Clinton, just to remind everybody,” Bush said, “and so would have almost everybody that was confronted with the intelligence they got.”

“You don’t think it was a mistake?” asked Kelly.

“In retrospect, the intelligence that everybody saw, that the world saw, not just the United States, was faulty,” Bush answered.

Jeb now says that he misunderstood the question. And that does, in fact, seem to be the case. Note the verb tenses in his first answer: he “would have” invaded Iraq, as “would have” Hillary Clinton and anyone else who had seen the intelligence “they got.” He didn’t say he or Hillary or anyone else “would” invade Iraq given the intelligence “they have now.” The tenses thus clearly indicate that Jeb was answering a different question — namely, whether he would have invaded Iraq given what decision-makers knew at the time. That reading is then confirmed by his second answer, in which he acknowledges that “in retrospect” — ie, based on what we now know — the invasion was a mistake.

To be sure, Jeb deserves some criticism for his answer. A number of important people opposed the invasion of Iraq even in the face of the faulty intelligence George Bush and Hillary Clinton received. And, of course, if Jeb wants to be president, he should probably pay attention to the questions journalists ask him in televised interviews.

But Jeb didn’t say he would have invaded Iraq knowing what we know now. He just didn’t.

Guest Post: Iran’s Relief Ship and the Blockade of Yemen 

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern University School of Law.]

Iran has announced that it will be sending a ship with humanitarian supplies to Yemen, departing the evening of May 10th. Many parts of the Yemeni conflict raise law of war questions, from the legality of the pan-Arab intervention to questions about the use of force and civilian casualties. The Iranian relief ship puts into focus the blockade maintained by Saudi Arabia and its allies, with logistical and intelligence support from the United States.

Saudi Arabia imposed a blockade of Yemen’s ports from the start of the campaign. Since then, the humanitarian situation has become dire, according to many reports, with significant shortages of medicine, food and water.  (Saudi Arabia also bombed the Sanaa airport to prevent Iranian relief planes from landing.) According to Oxfam, “there is no exit” for Yemen’s 10 million people, half of whom are already going hungry.

Blockade is an entirely valid military tactic, which necessarily puts pressure on the civilian economy and well-being. However, there is a theory, which in recent years has attracted considerable support, that international law prohibits blockades in a non-international armed conflict (NIAC). This limitation on blockade has been discussed almost exclusively in connection with Israel’s blockade of Gaza. Assuming that the Yemeni conflict is a NIAC, as most observers seem to view it (a civil war with foreign assistance to both sides), the Saudi blockade raises the same questions as the Gaza blockade, as Tehran has gleefully noted.

To be sure, considerable authority concludes that blockade is entirely permitted in NIACs. The Saudi blockade gives a good occasion to revisit the debate, which has thus far proceeded with an incomplete account of state practice.

Israel’s blockade of Gaza appears to be the first one where said to be illegal because of the nature of the conflict. In the Gaza context, the illegality argument was based largely on what was said to be scanty affirmative precedent for such actions in such contexts, though a lack of precedents does not normally create a prohibition in international law.

Though it was not mentioned in the extensive discussions of Israel’s Gaza policy, there is not only historical precedent, but also contemporary practice supporting NIAC blockades. In particular, Georgia’s blockade of the separatist Abkhazia region, which has been in effect since 2008. The details of the blockade are murky, in part because it has generated not only no international protest, but also no international interest. It is clear that the blockade has been used to interdict neutral vessels carrying non-military supplies. Indeed, the blockade is so well accepted, that the commentators on the legality of the Gaza blockade appear to have been entirely unaware of it.

Then there is Sri Lanka’s blockade of Tamil-held areas during their decades-long civil war. Douglas Guilfoyle, the author of one of the major analyses of the legality of the Gaza blockade, dismissed the relevance of the Sri Lankan precedent:

Most reported maritime interceptions appear to have occurred with Sri Lanka’s territorial sea or contiguous zone, ostensibly on suspicion the vessels were engaged in smuggling weapons or supplies… The practice certainly involved no assertion of rights against neutral vessels on the high seas.

Unfortunately, this account appears to be mistaken on all major points. The blockade certainly applied to neutral ships carrying food and relief supplies, even under Red Cross emblem. Indeed, the blockade resulted in major shortages of basic necessities. The seizure Guilfoyle points to as being within the contiguous zone was, according to all other news accounts, well outside it (and was in any case after the cessation of hostilities and defeat of the Tamils). Nonetheless, the international community does not appear to even have questioned the legality of this blockade.

In another precedent that has not factored into the NIAC-blockade discussion, Indonesia imposed a naval blockade on East Timor when it invaded the territory in 1975, according to accounts of the conflict. Despite fairly strong international condemnation of the invasion itself, I have not found specific criticism of the legality of the blockade.

Incidentally, in 1992, a  “peace ship” carrying activists, Western politicians, and a slew of journalists was turned back by the Indonesian navy after attempting to symbolically challenge that blockade. In that incident, the ship turned back of its own accord after Indonesian threats to open fire; despite the strong international focus on the incident at the time, no one suggested the illegality of such actions in a NIAC.

There may be other recent state practice that has gone unnoticed as well. The episodes discussed here generated relatively little legal controversy – ironically, permissive precedent is most likely to go unnoticed. (The discussion’s of Israel’s blockade dwelt mostly on the United States blockade of Confederate ports in the Civil War and the France’s blockade of Algeria, rather than more current ones, no doubt because they attracted more attention, and better sourced in English and French publications than the Indonesian, Georgian and Sri Lankan measures.)

The blockades discussed here, including the Saudi one, all appear to proceed without all of the formality of the a traditional international armed conflict blockade; for example, it is not clear that there were formal declarations, and the blockaded enemy does not seem to have been always been recognized as a belligerent. This suggests state practice supports a less legally restrictive blockade regime for NIACs.

Thus if Riyadh and its allies are inclined to maintain the blockade, and intercept the Iranian relief ship, it has a strong legal basis. Of course, the Saudi blockade itself becomes part of the state practice on this issue, and on other blockade issues such as proportionality.  One may have thought that, prior state practice to the contrary, Gaza suggested an interest by some states in changing the rules about blockade in NIACs. The Yemen blockade, in force since late March, has not been denounced as illegal, suggesting that no new rule is taking shape.

In regards to the conduct of the blockade, it is interesting to note that Human Rights Watch today criticized the coalitions conduct of the blockade, in particular urging for allowing in fuel. The report, which is well worth reading for more detail on the naval blockade, paints an absolutely catastrophic picture of the situation in Yemen, with much of the population facing death by hunger, water shortage and associated diseases.

Interestingly, HRW does not challenge the legality of the blockade, or its apparently very narrow list of “free goods” (those permitted to pass the blockade after being subject to inspection). In particular, HRW does not call for the US or the UN to condemn the operation, as it has for other blockades. While HRW interestingly reports that the Saudi’s contraband list is not public (generally a legal problem for blockade), it also does not protest what appear to be its fairly comprehensive scope.