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The ICC Appelas Chamber Was Not Wrong (But Could Have Been More Right) in Ntaganda

by Luigi Prosperi

[Luigi Prosperi received his PhD in “International legal order and human rights” from Sapienza University of Rome, honorary fellow in International Law at Sapienza University, formerly Associate Legal Officer at ICTY.]

Last week, the Appeals Chamber (AC) of the ICC unanimously rejected Bosco Ntaganda’s Defence appeal against the 4 January decision of the Trial Chamber VI (TC), which had found that the Court has jurisdiction over the war crimes of rape and sexual slavery (provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute) when the perpetrators and the victims are members of the same armed force or group.

The decision caused a stir among several prominent ICL experts, and was harshly criticized in this post by Professor Heller. The aim of this post is not so much to respond to their criticisms, but to shed some light on a fundamental step in the AC’s reasoning, which I will refer to as the “systematic argument”. Since the AC’s systematic approach reverberates throughout the decision, in this blog post I will present the arguments in the same order as the judges.

First of all, the AC identifies the scope of the appeal:

  1. The principal issue arising in this appeal is whether the Trial Chamber erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be “protected persons” in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the 1949 Geneva Conventions (“Common Article 3”) (…).

Interestingly, the first argument wielded by the TC against this conclusion had been a systematic one. According to the judges, provided that “the Statute is first and foremost a multilateral treaty which acts as an international criminal code for the parties to it”, in order to determine if the crimes of rape and sexual slavery provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) are limited to acts constituting grave breaches of the Geneva Conventions or serious violations of Common Article 3, they have first to consider the “statutory framework”, and then eventually turn to the laws and customs of international and non-international armed conflicts (TC decision, paras. 35-39).

Even though it upholds this systematic argument, the AC does not refer to the TC’s interpretation of the law in this regard, but proposes a different reading. On the one hand, the AC subscribes to the TC’s findings that neither the chapeaux of Article 8(2)(b) or (e), nor the two provisions criminalizing rape and sexual slavery expressly circumscribe the group of potential victims (para. 46), and that only in relation to “other form[s] of sexual violence” the Statute makes an express reference to grave breaches of Geneva Conventions or serious violations of Common Article 3, with the aim of requiring that the unenumerated conducts meet a “gravity threshold” (para. 49). On the other hand, the AC rejects the theory that including the “Status Requirements” would run contrary to the structure of Article 8, and render the world “other” in the chapeaux of Article 8(2)(b) and (e) meaningless (para. 47). It also finds no indications that the drafters intended to avoid any potential overlaps between the different categories of war crimes listed in the sub-paragraphs of Article 8(2) (para. 48).

However, at para. 48 the AC supports one of the TC’s main findings in relation to the structure of Article 8, and holds that:

while the drafting history is silent as to whether the drafters intended the war crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (e)(vi) to be subject to the Status Requirements, it is clear that the drafters intended these crimes to be “distinct war crimes”, as opposed to merely illustrations of grave breaches of the Geneva Conventions or violations of Common Article 3.

Accordingly, the AC concludes that it is not possible to infer that the drafters intended to circumscribe the protection afforded under Article 8(2)(b)(xxii) and (e)(vi) to a particular group of potential victims. Therefore, the TC did not err in law in finding that, based the ordinary meaning, context and drafting history of the above-mentioned provisions, the statutory framework does not require the victims of the crimes of rape and sexual slavery to be “protected persons” in terms of the Geneva Conventions or “persons taking no active part in the hostilities” in terms of Common Article 3 (paras. 50-51).

In other words: given that the Statute is a multilateral treaty which acts as an international criminal code for its parties, the judges are bound to apply its provisions in light of Article 21 and of the rules of treaty interpretation before turning to secondary sources. It is in fact the ordinary meaning to be given to the terms of Article 8(2)(b) and (e) in their context, together with the drafting history of these provisions, that militate in favour of the view that under the Rome Statute, rape and sexual slavery may amount to war crimes when committed against members of the same armed group as their perpetrator.

According to this very principle, the AC has to consider whether any limitations in relation to the Status Requirements may arise from the broader international legal framework.

Pursuant to Article 21 of the Statute, in the absence of any indication to the contrary, the AC considers that the reference to “the established framework of international law” permits recourse to customary and conventional international law “regardless of whether any lacuna exists” in that provisions (para. 53). It is because of this reference (and not in light of a duty to apply Article 8 consistently with pre-existing norms of customary or conventional international humanitarian law) that the Court may introduce additional elements in respect of a given war crime listed in its sub-paragraphs, if required under customary or conventional international law (para. 54).

In relation to the Status Requirements, it should therefore be demonstrated that as a general rule, international humanitarian law circumscribes the group of potential victims of war crimes to persons protected under the Geneva Conventions or persons not taking active part in hostilities under Common Article 3, or that a specific exclusionary rule exists in relation to the war crimes of rape and sexual slavery. In other words, the AC finds that in order to determine that the Court has no jurisdiction over such crimes, it has to be demonstrated that Geneva Conventions and Common Article 3 categorically exclude the members of the same armed group from protection, either in general or in relation to the crimes of rape and sexual slavery.

In this regard, the AC argues that on the one hand, Geneva Conventions I and II respectively afford protection to the wounded and sick on land, and the wounded, sick and shipwrecked at sea, irrespective of their belonging to enemy armed forces or to a party’s own armed forces (para. 59); and on the other, Common Article 3 “provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation” – unless (s)he is taking active part in the hostilities (para. 60).

Moreover, the AC relies upon the updated commentary of the ICRC, which observes that Common Article 3 “protects members of armed forces against violations committed by the armed force to which they belong”, referring as supporting practice to paras. 78-80 of the PTC II decision on the confirmation of charges issued in this very case (para. 61).

Accordingly, the AC finds that “international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group” (para. 63).

As to the argument that an exclusionary rule would be specifically applicable to the war crimes of rape and sexual slavery, the AC upholds the TC’s finding that despite most of the express prohibitions appear in contexts protecting civilians and hors de combat in the power of a party to the conflict, the prohibitions of rape and sexual slavery in armed conflict are well established under conventional (see Article 75 of AP I and Article 4(2)(f) of AP II) and customary international humanitarian law (see Rules 93 and 94 of the ICRC Study on Customary IHL). The AC also agrees that “there is never a justification to engage in sexual violence against any person” in the context of armed conflicts (para. 65). Therefore, the AC concludes that there is “no reason to introduce Status Requirements” to Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute “on the basis of the ‘established framework of international law’ ” (para. 66).

This is indeed the only part of the decision which I find slightly disappointing, since it could have been based on a more solid reasoning.

In particular, having taken a strong stance on the Rome Statute’s nature, I would expect the AC to thoroughly apply the rules on interpretation, as provided for in Article 21. Pursuant to Article 21(3) of the Rome Statute and Article 31(1) of the Vienna Convention on the Law of Treaties, Article 8 shall in fact be interpreted also in light of “internationally recognized human rights” and of the object and purpose of the Rome Statute – or, as the Prosecution had put it before the PTC, pursuant to “a purposive or teleological interpretation of article 8(2)(e)(vi), consistent with the protective rules applicable to children during warfare” (Prosecution submissions, para. 183).

Indeed, I find it somehow disappointing that the AC did not refer to the Statute’s object and scope (to fight impunity “for the sake of present and future generations”), nor to the “internationally recognized human rights” – including everybody’s right not to be victim of rape and sexual slavery. In this spirit, it is of the utmost relevance the fact that under international human rights law, there is never a justification to engage in sexual violence against any person, irrespective of this person’s status.

Moreover, the AC may have held that the Court should especially exercise its jurisdiction over rape and sexual slavery committed against members of the same armed group, when such status had been determined by the perpetrator’s unlawful conduct. In this regard, the AC could have enhanced the TC’s references to the duty not to recognise situations created by certain serious breaches of international law, and to the principle that one cannot benefit from one own’s unlawful conduct (TC decision, para. 53). These considerations may in fact contribute to defining, in the specific circumstances of the case, the “purpose” of fighting against impunity (of individuals that had enlisted the same underage kids they would abuse of).

In other words: provided that international humanitarian law does not generally and categorically prohibit the prosecution of those conducts, it is the evolutionary nature of the Rome Statute, which should at any time be interpreted in light of international human rights law, to justify the adoption of the broadest possible interpretation of Article 8(2)(b)(xxii) and 8(2)(e)(vi).

In order to prevent a likely objection in relation to the (unwanted) effects of this decision, in the final paragraphs the AC underlines that it does not blur in any way the distinction between war crimes and ordinary crimes:

  1. The Appeals Chamber emphasises in this context that the Elements of Crime for each war crime contain an express nexus requirement which must be established in each particular instance. Thus, it must be established that the conduct in question “took place in the context of and was associated with an armed conflict” of either international or non-international character. In the view of the Appeals Chamber, it is this nexus requirement, and not the purported Status Requirement, that sufficiently and appropriately delineates war crimes from ordinary crimes. To that end, as rightly observed in the Impugned Decision with reference to the judgment of the ICTY Appeals Chamber in Kunarac, the Trial Chamber may have regard, inter alia, to “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.” The Appeals Chamber considers that any undue expansion of the reach of the law of war crimes can be effectively prevented by a rigorous application of the nexus requirement.

According to the AC, any undue expansion of the reach of the law of war crimes may in fact be prevented by a rigorous application of the principles concerning the nexus requirement. It is in fact the absence of a link to the armed conflict situation (which according to the same Kuranac AC consists in the fact that the crime “is shaped by or dependent upon” the armed conflict) that would put hundreds of potential war crimes (of rape and sexual slavery) back into Pandora’s box.

Finally, a further consideration has to be made in relation to the impact of this decision.

Considering that it is jurisdictional in nature, and that the ICC judges are not bound by a principle of precedent, it is foreseeable that the saga is far from over. In the meantime, it is noteworthy that Prosecution witnesses have testified about the child soldiers’ status and their participation to the UPC military operations.

Is Now a Good Time to Go Back to that U.S. War Power Debate?

by Deborah Pearlstein

Cross-posted at Balkinization

Because it’s too easy for our growing war in Syria to get lost amidst other also-pressing news, I want to be sure to note that last week ended with the Senate Foreign Relations Committee formally requesting the Trump Administration’s legal justification for a growing set of clashes between the U.S. military and armed forces allied with Syrian President Bashar Assad. The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014. But this recent violence – including the incident last week in which the U.S. military shot down a Syrian jet it said was firing on U.S.-allied non-state forces on the ground, as well as multiple U.S. efforts to defend its creation of a “de-confliction zone,” an area in Syria surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously undertaken. Apart from the mammoth policy implications of this kind of escalation, it is far from clear what domestic legal authority supports it. In this post, I’ll address the notion that an existing statute authorizes these operations. In a later post, I’ll take up the suggestion the President’s inherent power under Article II of the Constitution does the job.

One possibility the Administration has advanced to justify its recent conduct is that the anti-Syria actions are (at least implicitly) authorized by the 2001 authorization for the use of military force (AUMF), which gave the President the power to use “all necessary and appropriate force” against those nations, organizations or persons he determines were responsible for the attacks of September 11. The Obama Administration indeed relied on the 2001 AUMF for its operations against ISIL in Syria. And while many of us have written critically (e.g. here) about the plausibility of relying on a 2001 AUMF to attack a group that did not come into existence until years after 2001 (and is indeed today the sworn enemy of the group, Al Qaeda, that all agree was responsible for the attacks of 2001), we might just for a moment set those arguments aside to consider the new claim on its own. The new claim is that to the extent the AUMF supports U.S. operations in Syria at all, it surely also must include the implied authority to defend U.S. forces operating there against whomever might subject them to attack.

The notion that the AUMF contains some implied authority for U.S. troops engaged in operations under its auspices to defend themselves against foreign attack is in one sense entirely plausible. If, as the Supreme Court held in 2004’s Hamdi v. Rumsfeld, the AUMF contains the implied authority to detain war prisoners under its auspices because such detention was a recognized incident of the use of force under international law, then surely self-defense of one’s own forces (at least to the extent permitted by international law) should also be within the realm of implied statutory authority. The problem is, U.S. self-defense is not what most (or maybe all) of these recent incidents have involved. (For a nice list of recent actions in Syria, see here.) By the United States’ own account, the Syrian SU-22 we shot down last week was firing on local anti-Assad fighters the United States supports, but there was no indication U.S. forces themselves were remotely at risk. CENTCOM rather explained that the move was in “collective self-defense” of coalition-partnered forces – a concept that appears pulled from Article 51 of the UN Charter (to which the United States is of course party) providing in relevant part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Even if one were to assume the text of the AUMF should be interpreted with guidance from relevant international law, Article 51 by its terms limits the right of “collective” self-defense to UN member states. Local anti-Assad forces, whatever their merits, aren’t states. More, especially to the extent that what we are doing in establishing our “de-confliction zone” is effectively seizing an area inside Syrian territory for our use and defending it from incursion by Syrian or other forces, we are not engaging in defense (self or otherwise) at all, but rather in the partial armed occupation of another country – which is, without putting too fine a point on it here, the opposite of a recognized incident of force under international law.

So what about finding a relevant implied authority in the AUMF under other principles of statutory interpretation? Ignore international law for a moment – could the AUMF be read based on its text, context or legislative history to authorize the military operations we’ve carried out against Syria and Iran on behalf of anti-ISIL allies here? To pursue this theory, it is impossible to look just at the Administration’s latest interpretive move, but rather at the set of inferences one would have to draw from the AUMF itself. For buying the notion that the 2001 AUMF authorizes U.S. bombing of Syrian aircraft or Syrian-allied forces in Syria in all the circumstances we have in recent weeks requires us to embrace not just one dicey inference, but three: (1) that a statute limited by its text to authorizing force against the groups that attacked us in 2001 extends to a group that did not exist in 2001 (and is itself at war with the group that did attack us in 2001); (2) that the statute includes some implied authority to defend our own forces from attack not only against those nations and organizations the statute authorizes us to fight, but as against any nations and organizations anywhere worldwide our AUMF operations, whether or not our assertion of self-defense complies with international law; and (3) that statute further authorizes us to “defend” any local group with which we might ally in the course of global AUMF operations – up to and including apparently excluding a sovereign state from its own territory for the purpose of carving out some training space for the local group.

It is, to put it mildly, implausible that the Congress that passed the 2001 AUMF thought it was authorizing all this. The textual limitation of the 2001 AUMF to the groups responsible for the attacks of 9/11; the Charming Betsy canon of interpretation and others that would favor reading a statute to accord with our binding treaty obligations where possible; and the total absence in legislative history of any intention to authorize force against Syria and Iran – all weigh against any such construction. Which leaves us, alas, with the President’s power under Article II of the Constitution. I’ll pick up in a future post there.

No Justice for Sri Lankan Male Survivors

by Charu Hogg

[Charu Lata Hogg is the Director of the All Survivors Project at the UCLA School of Law and an Associate Fellow, Asia Program, Chatham House. This post is based on primary research conducted by Mirak Raheem, Deanne Uyangoda and Marisa De’Silva in Sri Lanka.]

Eight years since Sri Lanka’s nearly three-decade conflict came to a brutal end following the defeat of the Liberation Tigers of Tamil Eelam, the country is still coming to grips with the legacy of massive human rights violations committed by all sides. Egregious abuses by state security forces and armed groups also took place during other insurgencies in Sri Lanka, specifically during the armed insurrections in the south by the Marxist Janatha Vimukthi Peramuna (JVP) first in 1971 and then 1987-1989. However, sexual violence against men and boys, particularly in the context of detention under a previous infamous security legislation, has only recently begun to be recognised as among the numerous abuses that have taken place within the context of the armed conflict. A proposed Counter Terrorism Act (CTA) which is awaiting Parliamentary approval threatens to continue prolonged detention without charge. If approved this counter-terrorism bill could continue to facilitate human rights abuses in detention.

A 2015 report resulting from UN investigations concluded that men were as likely to be victims of sexual violence as women within the context of detention (The investigations were mandated by the Human Rights Council (Resolution 25/1) to investigate allegations of violations of international law following the breakdown of the 2002 Ceasefire Agreement to the end of the conflict. See, Report of the Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL)), but the issue remains largely hidden and stigmatized. At the core of this silence is the lack of legal protection for men and boys against sexual violence which informs social attitudes and contributes to an environment in which violations can take place with virtual impunity. In addition to law reform, a fundamental gap in knowledge and expertise on preventing, investigating and responding to sexual violence constitutes a significant barrier. Training of all relevant government, official and professional stakeholders including members of law enforcement and security forces, the judiciary, national human rights institutions, medical and mental health professionals and humanitarian workers could provide a crucial first step.

In numerous cases of sexual violence against men and boys documented by the UN and other international organisations, victims were detained under the 1979 Prevention of Terrorism Act (PTA) which has been widely used to detain LTTE suspects and under which many fundamental rights and guarantees to protect detainees are suspended. There have been repeated calls for its repeal and the new government which came into power in 2015 has promised to do so. Yet, the PTA remains on the statute books and continues to be applied, permitting the administrative detention for up to 18 months with only limited judicial supervision, irregular access to legal representation, and without the possibility of challenging the legality of detention. The PTA also creates an environment in which forced confessions are effectively encouraged by permitting statements made to police officers at any time while in custody to be admitted in court as evidence, with the burden placed on the accused to prove that the confession was extracted under duress.

A complex set of factors prohibit male victims of sexual violence in Sri Lanka from coming forward to report this violation. But even if they did, Sri Lanka does not recognise the possibility of male rape under the law. Rather men are defined only as perpetrators of rape. Article 363 of the Penal Code states “a man is said to commit rape who has sexual intercourse with a woman under any of the following descriptions…” (See Section 363 of the Penal Code (Ordinance No. 2 of 1883 as amended). Similarly, the prohibition of statutory rape applies only to girls under the age of 16 years and not to boys (Section 363(e) of the Penal Code in describing conditions for statutory rape refers to “…with or without her consent when she is under sixteen years of age).) Similarly, the prohibition of statutory rape applies only to girls (under the age of 16 years) and not to boys (Section 363(e) in describing conditions for statutory rape refers to “…with or without her consent when she is under sixteen years of age” [emphasis added]). Other provisions under the Penal Code mischaracterize or define sexual violence in a way that they do not reflect the lived experience of survivors, are inconsistent with the more inclusive, gender-neutral definitions under international law, or are otherwise inadequate for prosecuting sexual violence against males.

This legal discrimination against men and boys which is so acutely reflected in Sri Lankan law also permeates other institutions and sectors and contributes to the pervasive lack of medical, counselling and other support services available to male survivors. While services for women are equally inadequate, increased attention on this issue during the post-war phase has triggered a recognition of this issue which remains entirely absent in the case of male survivors. Some medical teaching institutions continue to put forward the understanding that only women can be raped and do not recognise the rape of men. Other representatives of the humanitarian community have admitted to All Survivors Project that sexual violence against men is neither monitored nor responded to during the conflict or outside of it. Added to this is the widespread discrimination against homosexuals which is prescribed in law and the criminalization of consensual same sex acts which may also discourage male survivors from reporting or accessing services for fear that they may be accused of homosexual activity. Specifically, Sections 365 and 365A criminalize certain homosexual acts categorizing them as ‘unnatural offences’. These provisions have been used to persecute members of the LGBTIQ community and serve to reinforce discriminatory gender stereotypes.

During our research, (more…)

William Bradford Fails Upward — and Is Still Lying About His Credentials

by Kevin Jon Heller

When last we met William Bradford, he had just published an article in the National Security Law Journal (NSLJ) accusing centrist national-security-law professors of treason and advocating prosecuting them for providing material support to terrorists. After many scholars, including me, pointed out that the article was both absurd and deeply offensive, the NSLJ repudiated the article. (Alas, the journal has since scrubbed the repudiation from its website.)

Bradford’s article was not his first brush with controversy He was forced to resign from Indiana University at Indianapolis after Inside Higher Education revealed that he had lied about his military service, falsely claiming, inter alia, that he had fought in Desert Storm and Bosnia and had won a Silver Star. Bradford then later resigned from West Point — whose decision to hire him still boggles the mind — after it came to light that he had falsely claimed that he had been an assistant professor at the National Defense University (NDU), run by the Department of Defense. According to the NDU, to quote the Guardian, “he was not a professor there, nor even a staff employee…. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.”

You would be forgiven for thinking that someone who has accused respected law professors of committing treason and who was forced to resign from two academic institutions for lying about his credentials might have a difficult time finding a new — and more important — position. But if you do think that, you have never met Donald J. Trump, for whom no one is too dishonest or too incompetent to hire. Because Trump has recently appointed Bradford to the be the Director of the Office of Indian Energy at the Department of Energy (DoE).

That’s appalling in and of itself. But the awfulness doesn’t end there, because Bradford is still lying about his credentials. Here is a screenshot of Bradford’s bio on the DoE website (in case the DoE reads this and decides to scrub it):

Notice the text inside the red rectangle: Bradford is still claiming to have been a faculty member at the NDU — the same claim that led to his resignation from West Point.

In any sane administration, Bradford would be fired in the next 48 hours. But this is the Trump administration, so I’m not holding my breath.

The Downing of the Syrian Fighter Jet and Collective Self-Defence

by Kinga Tibori-Szabó

[Kinga Tibori-Szabó is the author of the monograph Anticipatory Action in Self-Defence, which won the 2012 Francis Lieber Prize. She currently works at the Kosovo Specialist Chambers. The views expressed herein are those of the author and do not necessarily reflect the views of the employing organization.]

On 18 June 2017, a US Navy Super Hornet shot down an SU-22 fighter jet of the Syrian government south of Tabqah, in Syria. The US-led anti-ISIS Coalition’s statement indicated that the Syrian fighter jet was shot down after it dropped bombs near Syrian Democratic Forces (SDF) positions in the area. The Coalition statement averred that the action was taken

“in accordance with rules of engagement and in collective self-defense of Coalition partnered forces”.

Let’s analyse that statement. The action seems to have been a standard exercise of unit self-defence, a tactical level application of national or collective self-defence. It allows commanders to defend their unit, other units of their armed forces as well as other specified units (friendly forces) against hostile acts or hostile intent (see annex D of the San Remo Rules of Engagement (ROE) Handbook). But as aptly discussed in a post on Opinio Juris, unit self-defence should be viewed as a ROE concept that has underlying legal consequences but is not a legal term in and of itself. So the fact that the downing of the Syrian aircraft was in accordance with ROE does not answer the question of its legal basis in jus ad bellum. That brings us to the second part of the statement, the reference to collective self-defence.

According to the statement, the Coalition acted in collective self-defence to protect the SDF against an attack by the Syrian regime without itself seeking to fight that regime.

First, a few points need to be made regarding the reference to collective self-defence to underline that the Coalition does not seek to fight the Syrian regime.

  • The jus ad bellum basis of Coalition actions on Syrian territory has attracted criticism because of reliance on a controversial interpretation of collective self-defence. In a nutshell, the request of Iraq for the assistance of the international community to fight ISIS was interpreted as a legal basis for the exercise of collective self-defence not only on the territory of Iraq, but also on the territory of Syria (see opinions on this here, here and here)
  • Be that as it may, the Coalition has repeatedly emphasized and the quoted statement expressly states that “[t]he Coalition does not seek to fight [the] Syrian regime”. This cautious approach was somewhat overshadowed by the evident US support for ‘vetted Syrian opposition forces’, but until recently, the US and its Coalition partners had avoided direct confrontations with the Syrian regime. However, the US strikes against the Syrian airbase in early April amounted to use of force against the Syrian regime and have initiated an international armed conflict between the two states in the sense of Common Article 2. The downing of an Iranian UAV in early June and of a second one two days after the shooting of the Syrian aircraft made it clear that these confrontations are no longer isolated incidents, but clashes in the context of an international armed conflict between Syria and the leader of the Coalition (US).
  • Nonetheless, the existence of an armed conflict between the US and Syria is a separate issue from the question whether (collective) self-defence can be invoked by the Coalition as a justification for some of the clashes within the context of that armed conflict. Simply put, the invocation of collective self-defence in the Coalition statement does not protect the US from the obvious: that it is now in armed conflict with the Syrian regime and potentially with its allies.

Second, the exercise of collective self-defence requires, in addition to the core conditions of self-defence, at least a request for assistance from a state. This is unsurprising, as the right of self-defence enshrined in Article 51 of the UN Charter pertains to states rather than armed groups. While it is widely accepted that an armed attack may be carried out by an armed group and self-defence may be exercised against such a group, the possibility of armed groups having the right to invoke self-defence is not contemplated. Nonetheless, it seems that the Coalition invoked collective self-defence to protect a ‘friendly’ armed group notwithstanding the fact that such a group does not have the right to invoke self-defence in the first place and request assistance on that basis. The question thus arises whether there is room for an expansive view on the right of self-defence permitting a state to invoke ‘collective’ self-defence on behalf of an armed group and assist the group on that basis. The wording of Article 51 of the UN Charter leads to a prima facie negative answer. Nonetheless, the proliferation of conflicts involving armed groups and the current reality of states defending such groups without themselves being the target of the same attack may bring this question to the fore and further complicate the interpretation and application of self-defence in relation to non-state actors.

ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL

by Kevin Jon Heller

One of the most basic assumption of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL). Article 6(b) of the London Charter criminalised “War Crimes: namely, violations of the laws or customs of war.” Article 3 of the ICTY Statute provides that “[t]he International Tribunal shall have the power to prosecute persons violating the laws or customs of war,” while Article 4 of the ICTR Statute provides that “[t]he International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.” And Article 8 of the Rome Statute criminalises “[g]rave breaches of the Geneva Conventions of 12 August 1949”; “[o]ther serious violations of the laws and customs applicable in international armed conflict”; [i]n the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949″; and “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character.” In each and every case, war crimes are limited to violations of IHL.

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

The judgement itself addresses allegations that Ntaganda is criminally responsible for two war crimes — rape and sexual slavery — involving children forcibly recruited into his organised armed group, the UPC/FPLC. Ntaganda challenged that allegation, arguing that “crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law.” The Trial Chamber (TC) disagreed, in a judgment ably discussed and critiqued by Yvonne McDermott. Ntaganda appealed, giving rise to this judgment. Here is the AC’s “key finding”:

2. Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2) (b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group.

Before turning to the logic of the judgment, it is important to be very precise about the terms of my quarrel with the AC. I completely agree with the AC that there are situations in which a member of an armed force can, in fact, commit the war crime of rape or the war crime of sexual slavery against a member of the same armed force. As the AC rightly notes, although the Third and Fourth Geneva Conventions do not apply to acts committed by a combatant against someone from the same side of the conflict — whether by virtue of membership in that same armed force (GC III) or by nationality (GC IV) — the First and Second Geneva Conventions contain no such limitation:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Nothing in GC I or GC II suggests, however, that IHL protects all members of the armed forces against member-on-member violence. On the contrary, let’s take a look at the AC’s statement again, with the critical language in bold:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Under GC I and GC II, in other words, member-against-member violence violates IHL only if the victim is wounded, sick, or shipwrecked. If the victim is none of those things — if he or she is not hors de combat — that violence may well violate a state’s domestic criminal law, but it does not violate IHL.

If the AC had limited the scope of its judgment to rape and sexual slavery committed against child soldiers who were hors de combatdefined by the ICRC, in relevant part, as “anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness” — it would have been on firm ground. But that is not what it has done. On the contrary, the AC goes to great lengths to make clear that member-against-member rape and sexual slavery are war crimes even if the victim is an active combatant –– ie, one who is not hors de combat. Here is the relevant paragraph (emphasis mine):

64. With regard to the second issue – namely whether Status Requirements exist in international humanitarian law specifically for the war crimes of rape and sexual slavery – the Appeals Chamber observes that the prohibitions of rape and sexual slavery in armed conflict are without a doubt well established under international humanitarian law. As noted by the Trial Chamber, protection under international humanitarian law against such conduct generally “appear[s] in contexts protecting civilians and persons hors de combat in the power of a party to the conflict”. In this regard, the question arising before the Appeals Chamber is whether such explicit protection under international humanitarian law suggests any limits on who may be victims of such conduct. In the view of the Appeals Chamber, there is no conceivable reason for reaching such a conclusion.

Notice the bold language, because it’s critical — and wrong. IHL protection does not “generally” apply only to civilians and combatants hors de combat. On the contrary, each and every IHL convention applies only to those two categories of individuals. As we have seen, the AC itself acknowledges that limitation with regard to all four of the Geneva Conventions. It cites no other source of IHL, instead simply noting that the ICRC states in its new commentary to GC I “that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong.” But that statement is incomplete and misleading, because the ICRC makes unequivocally clear that CA3’s prohibitions apply only to individuals who are hors de combat:

518  Subparagraph (1) covers all ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The article does not expand on these notions and this part of the article did not give rise to much discussion at the 1949 Diplomatic Conference. The protection afforded under this subparagraph requires that the person be in the power of a Party to the conflict (see section E.4).
519  The protection of persons not or no longer participating in hostilities is at the heart of humanitarian law. The persons protected by common Article 3 are accordingly described by way of explicit delimitations: ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’ (emphasis added). Parties to a non-international armed conflict are under the categorical obligation to treat these persons humanely, in all circumstances and without any adverse distinction.

The Trial Chamber’s judgment is no better. The TC rests its conclusion that member-against-member rape is a war crime even when the victim is an active combatant solely on two things: the Martens Clause and Art. 75 of the First Additional Protocol (AP I). Here is paragraph 47:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. In this regard, the Chamber recalls the Martens clause, which mandates that in situations not covered by specific agreements, ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The Chamber additionally notes that the fundamental guarantees provisions [in Art. 75] refer to acts that ‘are and shall remain prohibited at any time and in any place whatsoever’ and as such apply to, and protect, all persons in the power of a Party to the conflict.

I don’t have time to get into a detailed discussion of the Martens Clause. Suffice it say here that it is very unlikely that the Clause can ever be relied upon to expand IHL not only beyond conventional law, but even beyond customary IHL — and as the AC itself acknowledges (para. 60), there is literally zero state practice indicating that member-against-member mistreatment is a war crime even when the victim is an active combatant. Even Antonio Cassese, no stranger to judicial activism, dismisses this “norm-creating” reading of the Martens Clause as “radical.” As he says, “[s]urely the Clause does not envisage — nor has it brought about the birth of — two autonomous sources of international law, distinct from the customary process.”

As for Art. 75 of AP I, the Protocol’s “fundamental guarantees” provision, the TC’s position is deeply problematic. Here is n. 111:

Article 75 of Additional Protocol I refers to ‘a Party to the conflict’ (emphasis added) and therefore does not limit the fundamental guarantees to persons in the power of the opposing party.

The TC conveniently fails to note that Art. 75 applies only to international armed conflict — and that Art. 4 of AP II, the “fundamental guarantees” provision in the NIAC Protocol, is specifically limited to “persons who do not take a direct part or who have ceased to take part in hostilities” (ie, civilians and combatants hors de combat).

Given that conventional IHL uniformly requires the victim of member-against-member mistreatment to be hors de combat, on what basis does the AC hold that the status of the victim is irrelevant? The answer comes from this paragraph (emphasis mine):

65. The Appeals Chamber agrees with the Trial Chamber’s finding that “there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law”. Accordingly, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.

This is simply incorrect. To begin with, there is a specific rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: namely, the rule that says violence in member-against-member situations violates IHL only when the victim is hors de combat. The AC’s judgment suggests that states not only had to specify that rule in the various IHL conventions, they also had to add: “oh, and by the way, this limit means that mistreating active combatants doesn’t violate IHL.” But that’s silly: the former implies the latter. After all, expressio unius est exclusio alterius is a basic rule of treaty interpretation.

But even if that was not the case, there would still be a general rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: the rule that says a war crime must involve a violation of IHL. As noted at the beginning of this post, that is one of the most basic assumptions of IHL. Not all violations of IHL are war crimes, but all war crimes are violations of IHL. So the burden of proof was not on Ntaganda to show that rape and sexual slavery cannot be war crimes in member-against-member situations if the victim is an active combatant. The burden was on the prosecution to prove that such acts actually violate IHL. Because if they don’t — and they don’t, as we have seen — the Court has no jurisdiction whatsoever over Ntaganda’s acts, at least insofar as they are legally characterised as war crimes.

In the end, the AC’s decision in Ntaganda is little more than the latest iteration of the Court’s willingness to rely on teleological reasoning when the Rome Statute does not protect victims as much as the judges think it should. No one is in favour of raping and sexually enslaving child soldiers. But the solution isn’t to detach the law of war crimes from its moorings in IHL by holding — if only implicitly — that an act can be a war crime even if it does not violate IHL. To do so is not only legally indefensible, it risks delegitimising both the Court and the law of war crimes itself.

Comparing U.S. Strategies in Constructing Cybernorms with China

by Duncan Hollis

I’ve got a new draft article up on SSRN (you can download it here) entitled China and the U.S. Strategic Construction of Cybernorms: the Process is the Product.  It was written for a really great inter-disciplinary workshop held at Stanford Law School earlier this Spring by the Hoover Institution’s National Security, Technology and Law Working Group (which is chaired by Ben Wittes and Jack Goldsmith). The article will be published shortly in Aegis, the Hoover Institution’s Paper Series with some cross-linking on Lawfare (Hoover already has one of the Workshop’s other papers posted – a great piece by by Adam Segal on Chinese Cyber Diplomacy).

In the meantime, here’s my abstract:

This paper explores the role norms—shared expectations about appropriate behavior within a given community—play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents – on what they say.

In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms—incentives, persuasion, socialization—by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.

As always, comments and feedback are most welcome.

Dear Secretary Tillerson (and the World Media): Qatar is NOT Under a “Blockade”

by Julian Ku

Longtime readers of this blog may have noticed that one of my pet peeves is the incorrect usage of international legal terms in public and diplomatic discourse.  Hence, Israel did NOT commit “piracy” during the 2010 Gaza flotilla raid despite lots of governments claiming otherwise.  Cuba is not under a “blockade” despite tons of Cuban government propaganda otherwise. So you can imagine my dismay when U.S. Secretary of State Rex Tillerson issued this statement yesterday calling the situation in Qatar a “blockade.”

We call on the Kingdom of Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt to ease the blockade against Qatar. There are humanitarian consequences to this blockade.

(Emphasis added). Global media is using the term  “blockade” as well.

I don’t doubt that Qatar is under severe economic pressure.  It is reported that all of Qatar’s neighbors in the Gulf have cut off air, land and sea trade with Qatar.  Saudi Arabia has blocked the only land border into Qatar, which is a peninsula.  But as powerful as these economic pressures are, they do NOT constitute a blockade as defined by international law.  As this definition from the Max Planck Institute Encyclopedia of Public Law explains:

A blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy and neutral from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.

There is no evidence, as far as I know, that Saudi Arabia and other Gulf nations are preventing “vessels and/or aircraft of all nations” from entering Qatar ports.  Instead, the Gulf nations are simply preventing anyone in their territories from traveling to or trading with Qatar.  A blockade would mean that the Gulf nations actually used military force to interdict all shipping and flights into Qatar by any nation and through international waters.  Israel has essentially established such a blockade of the Gaza Strip, but that has not happened to Qatar (yet). Until that happens, there is no blockade.

Why is it so shocking that Secretary Tillerson did not recognize this legal distinction? Because the U.S. frequently engages in economic sanctions of the sort currently being imposed against Qatar.  The U.S. has either strict economic sanctions or full-scale embargoes on countries like North Korea, Cuba, and Iran.  Cuba in particular has tried to label the US embargo on it as a “blockade” even though the U.S. does not use military force to prevent other countries from trading with Cuba. The U.S. should not and cannot water down the legal definition of “blockade” without imperiling an crucial tool in its diplomatic toolbox.   Moreover, since “blockades” are traditionally seen as an “act of war,” they would probably constitute a “use of force” under Article 2(4) of the U.N. Charter.  The U.S., more than any country, should want to maintain the legal right to impose embargoes.

So please, Secretary Tillerson, consult your many talented and knowledge State Department lawyers.  Qatar is NOT being blockaded, and the U.S. (of all countries) should avoid saying so.

Emailing Does Not Pass the Kiobel Test: US Court Dismisses ATS Case Against Anti-Gay Pastor

by Julian Ku

Distracted by #ComeyDay and other international crises, I missed this recent U.S. federal court decision in Sexual Minorities of Uganda v. Livelydismissing an Alien Tort Statute lawsuit on Kiobel extra-territoriality grounds.  While using unusually critical language to denounce U.S. pastor-defendant Scott Lively’s involvement in Uganda’s anti-homosexual laws and actions, the U.S. District Court for Massachusetts held:

…Defendant’s status as an American citizen and his physical presence in the United States is clearly not enough under controlling authority to support ATS extraterritorial jurisdiction. The sporadic trail of emails sent by Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669.

What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor, did not provide any

financial backing to the detestable campaign in Uganda, he directed no physical violence, he hired no employees, and he provided no supplies or other material support. His most significant efforts on behalf of the campaign occurred within Uganda: itself, when he appeared at conferences, meetings, and media events.

On these facts, this seems like the right result.  Kiobel requires something more than communications from the United States to “displace the presumption against extraterritoriality.” But caselaw continues to be a little muddy and I fully expect this to be appealed.


Civilian Casualties and the Law-Policy Conundrum

by Charles Kels

[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]

While Syrian atrocities and North Korean provocations have garnered headlines of late, it is the threats posed by non-state actors (and their transnational pursuit by powerful militaries) that have most bedeviled scholars and practitioners of international law in the new millennium. This challenge is unlikely to abate anytime soon. Aside from the preliminary matter of resort to armed force, foremost among the dilemmas is how best to minimize civilian casualties in a context where the use of both human shields and surreptitious baiting is prevalent, distinction is difficult to begin with, and collateral damage exacts a strategic toll on top of its moral and legal burden.

In this vein, the uptick in civilian casualties from coalition airstrikes this year has raised the specter of a “more cavalier” approach toward civilian deaths accompanying the transition of US administrations. The US military, for its part, maintains that its standards have not changed. In a May press conference, Defense Secretary James Mattis reiterated that “there has been no change to our rules of engagement and there has been no change to our continued extraordinary efforts to avoid innocent civilian casualties.” What has changed, according to the Pentagon, is a delegation of authority to launch attacks and a shift toward surrounding rather than evicting ISIS fighters from their strongholds.

The concern over a purported “loosening” of counterterrorism rules begs the question of how protective of civilians the Obama-era policy really is or was. An excellent window into that issue is provided by a debate earlier this year over at Just Security between Gabor Rona and Ryan Goodman. To oversimplify, Gabor argued that the presidentially-mandated Director of National Intelligence (DNI) report claiming that only one non-combatant death resulted from US counterterrorism strikes outside areas of active hostilities in 2016 was not credible, due in large part to “an inappropriate application” of international humanitarian law (IHL) or the law of armed conflict (LOAC) outside of armed conflict. Ryan responded that Gabor was making “a category mistake” by confusing a “policy innovation” (i.e., “areas of active hostilities”) with the legal definition of non-international armed conflict (NIAC). Gabor conceded that “areas of active hostilities” and NIAC are not synonymous, but pointed out that it nonetheless remained unclear where the US government considered itself at war. Ryan, together with Stephen Pomper, replied that such lack of clarity shouldn’t be a reason to distrust the DNI report since, in any event, national self-defense targeting in response to imminent armed attacks is more restrictive than IHL targeting.

Simply put, I think that Gabor is more likely to be right for the basic reason that his main point is unassailable: how you define the terms can influence the result you get. The input (definitions) determines the output (numbers). What constitutes a non-combatant death outside an area of active hostilities is dependent, among other considerations, on the applicable legal regime (which under this formulation must be IHL, or else the entire exercise is futile), a shifting policy determination of where active hostilities exist, and an idiosyncratic definition of “non-combatant” that appears to apply the notion of combatancy outside the context of armed conflict in a “national self-defense” strike. The stark reality is that any time combat power is employed innocents are likely to be harmed, no matter how cutting-edge the technology, prescriptive the policy framework, or conscientious the warfighters. This is why the talk of “zero” civilian casualties was always disconcerting, and why, in Gabor’s words, claiming one civilian casualty in a year strains credulity.

Recently, Bobby Chesney provided another useful reminder that the phrase “areas of active hostilities” is not a legal term and is not meant to denote the applicable legal regime. He also offered an astute analysis of what the policy framework was intended to do: namely, “to eschew the full range of authority that LOAC would permit, in favor of a more constrained approach,” so as to enable the Obama administration to downplay the practical gap between the US position of “a borderless armed conflict and the position of those who reject that view.” In so doing, however, the administration continued to offer assurances of compliance with IHL, whether or not it was the relevant legal framework, while claiming that its policy overlay was a heightened standard rather than a failure to comply with international human rights law (IHRL).

The result is what Naz Modirzadeh aptly called “folk international law,” the mixing and matching of IHRL, IHL, and jus ad bellum standards into a hodgepodge of norms that provided a shiny veneer of legal and policy frameworks for US counterterrorism operations. The problem is not that these standards weren’t well-intentioned or crafted by some of the best legal minds the US has to offer—indeed, they almost certainly were—but that they sowed legitimate confusion among supporters and critics alike by using policy to bend rather than supplement the law.

For example, the location of active hostilities per US policy “does not turn exclusively on” the existence of armed conflict, yet the “scope and intensity of US counterterrorism operations” are a key factor in making that determination. If this sounds a lot like the first Tadić factor for determining the existence of a NIAC, that’s because it does. So Gabor can perhaps be forgiven for his alleged “category mistake” of assuming that active hostilities have something to do with armed conflict, and the American Civil Liberties Union (ACLU) and other human rights organizations cannot be totally off base for highlighting the cognitive dissonance of a policy framework that specifically applies outside areas of active hostilities yet “contains some standards that are contrary to what is legally required outside of armed conflict situations.”

Where does that leave us today, now that the rhetoric of US political leadership has shifted from interagency “coordination and review” to “total authorization” and “annihilation”? Perhaps the best, even if not wholly satisfying, answer is a return to first principles and an acknowledgement that the law has not changed. It is axiomatic that IHL is triggered by armed conflict and does not apply outside it. No policy framework, no matter how much legal-sounding terminology it incorporates, can alter this. Nor is any policy that risks blurring this crucial distinction, and is thereby dependent upon the supposedly “unique moral nobility” of a particular leader or cabinet for its responsible application, one that is ultimately sustainable.

IHL “sets the outer limits” of what is permissible in war. Within that construct, how much authority to delegate, or what level to call in strikes, is a matter of discretion. Exceeding IHL’s outer limits, or transposing those limits outside armed conflict, is not. Policy innovations like “areas of active hostilities,” even if conceived to exceed humanitarian safeguards, risk couching over-application in the language of constraint. The best way to avoid policy being misconstrued as law is to clearly differentiate law from policy. And the best way to address the myriad international legal challenges posed by non-state actors is to avoid further muddling an already complicated terrain.

Actually, President Trump CAN Unilaterally Withdraw the U.S. From NATO

by Julian Ku

The estimable professor-pundit Daniel Drezner has a typically smart blogpost on President Trump’s refusal to affirm the U.S. commitment to Article 5’s collective defense provision of the North Atlantic Treaty.  I don’t have a problem with his views here, but I can’t help jumping in to correct this paragraph from his post:

So why is this such a big deal of a story? The United States is a member of NATO, which means that Article 5 is legally binding whether Trump says so out loud or not. Unlike NAFTA or the Paris climate treaty, I’ve been assured by smart lawyer types that Trump cannot unilaterally withdraw.

[Emphasis added].

Actually, as a matter of U.S. constitutional law, Drezner and his smart lawyer friends have things kind of backwards here, at least with respect to NAFTA and NATO. The broad consensus view is that the President has the unilateral authority to terminate a treaty pursuant to that treaty’s termination provisions or consistent with international law.  This means that as long as the President follows Article 13 of the North Atlantic Treaty — which requires the U.S. provide one year’s notice before termination — President Trump can terminate US membership in NATO without first getting consent from the Senate or the Congress as a whole.

The U.S. Supreme Court has never ruled on this question definitively, but it strongly hinted that the President has this power in its seminal 1979 Goldwater v. Carter decision refusing to require senatorial consent before President Carter’s termination of the U.S.-Republic of China (Taiwan) Mutual Defense Treaty.  The American Law Institute’s newly approved section on Treaties in the forthcoming Restatement (Fourth) on U.S. Foreign Relations Law explicitly endorses the President’s unilateral treaty termination power, and this was not even a change from the earlier Third Restatement.

Terminating NAFTA is the more complex problem, as John Yoo and I have argued here.  Although the President also has the power to terminate NAFTA’s international agreement status, he has to separately nullify the domestic legal effect of NAFTA. Some of that might be done via executive action, but it is our view that he will need another statute to completely eliminate all domestic legal effects of NAFTA.

It is also worth noting that the President’s unilateral termination power calls into question those who criticized President Obama for failing to submit the Paris Agreement to the Senate on the theory that this would have somehow insulated Paris from a unilateral President Trump termination.  In fact, President Trump could have terminated the Paris Agreement unilaterally, whether or not it was approved by the Senate.

None of this is meant to encourage or endorse any of President Trump’s actual or threatened treaty terminations.  But as a matter of U.S. constitutional law, there is no reason to doubt he can take the U.S. out of NATO, Paris, and many other international agreements.

Beyond the Globalism/Nationalism Divide: The Rise of Cities and Corporations Seeking International Obligations

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

In withdrawing from the Paris Accord, President Donald Trump emphatically rejected globalism in favor of nationalism. “As president, I can put no other consideration before the well-being of American citizens,” he explained. “I am fighting every day for the great people of this country. Therefore, in order to fulfill my solemn duty to protect America and its citizens, the United States will withdraw from the Paris Climate Accord.” But might this strong endorsement of nationalism exacerbate divisions within the state, leading sub-state actors (like cities) and non-state actors (like corporations) to seek to undertake international obligations beyond the state?

The old domestic political divide between left and right, liberal and conservative, is giving way to a new division between globalists and nationalists. As White House advisers H.R. McMaster and Gary Cohn recently explained of Trump and his America First policy:

 The president embarked on his first foreign trip with a clear-eyed outlook that the world is not a “global community” but an arena where nations, nongovernmental actors, and businesses engage and compete for advantage. We bring to this forum unmatched military, political, economic, cultural, and moral strength. Rather than deny this elemental nature of international affairs, we embrace it.

Similar rhetoric has emerged in other domestic confrontations, such as in Marine Le Pen’s description of the battle in the French election as being one between “globalists” and “patriots.”

But focusing on the nationalist/globalist divide may encourage one to overlook how divided the “national” has become. In particular, cities are frequently more open, plural and cosmopolitan than their surrounding rural areas, and this is often particularly true of “global” cities like New York and London. Think of London’s vote to remain in the European Union as an example, or how votes are divided between the east and west coasts of America and much of the rest of America.

If many cities are more globalist than the nation states in which they are located, we may expect them to buck a return to nationalism. For instance, in withdrawing from the Paris Accord, Trump explained that: “I was elected to represent the citizens of Pittsburgh, not Paris.” Pittsburgh’s Mayor Bill Peduto quickly took to Twitter to reject his city’s name being taken in vain: “Pittsburgh stands with the world & will follow Paris Agreement. As the Mayor of Pittsburgh, I can assure you that we will follow the guidelines of the Paris Agreement for our people, our economy and future.”

Pittsburgh is not alone. A group of 30 mayors, three governors, more than 80 university presidents and more than 100 businesses are now trying negotiate with the United Nations to sign up to the Paris Accord. This effort is being led by Michael Bloomberg, the former New York City mayor. Such an attempt is extraordinary given that international law is generally premised on obligations being accepted by states, not sub-state units or non-state actors. But it is also echoes McMaster and Cohn’s statement that the international system is one “where nations, nongovernmental actors, and businesses engage and compete for advantage.”

The possibility of non-state actors or sub-state actors taking on international obligations is controversial, but not unheard of. Sandesh Sivakumaran and I have argued that certain non-state actors should be permitted to issue binding unilateral declarations through which they commit to international law obligations. There is some practice in support of such an approach. For example, Geneva Call, a Geneva-based organization, created a Deed of Commitment on anti-personnel mines that can be signed by “armed non-state actors.” The Deed largely parallels the commitments incumbent upon states parties to the Ottawa Convention on the Prohibition of Anti-Personnel Mines.

Such an approach might cross-apply to other non-state actors, like corporations. We did not consider whether a similar approach could apply to sub-state actors, like cities and states within a federal system. This approach may well be prohibited by the domestic laws of particular states that prevent sub-state entities from engaging in foreign relations. But perhaps, as a matter of international public policy, this approach should be permitted when non-state and sub-state actors seek to take on obligations in excess of those accepted by their state.  This would surely be controversial, however, as states jealously guard their law-making powers as a key attribute of statehood.

Yet in a world in which many cities and some companies are more globalist and environmentally concerned than their states, perhaps pressure for this sort of action will begin to mount. Indeed, we are starting to see collaborations emerging among cities and mayors both within and across nation states to deal with global issues like climate change. Consider, for example, the climate alliance established by California, New York and Washington and the Global Parliament of Mayors. If this trend continues, we will not have a nationalist world or a globalist one but a far more complicated reality where states, sub-state actors and non-state actors collaborate and compete both within and across state borders.

Far from a strong assertion of nationalism resulting in the primacy of the state, a strong America First approach in these circumstances may actually undermine the pre-eminence of the state, leading to greater domestic divisions between globalist, cosmopolitan cities and more nationalist, parochial rural areas. If global cities find that they have more in common with each other than with their states, what will this mean for the stability of a neo-nationalist approach? It may well be that in reasserting the primacy of nationalism, Trump will end up kicking another own goal.