Recent Posts

Final Compendium of High-Level Review of UN Sanctions Proposes Reforms to System

by Kristen Boon

The Compendium of the 2014 UN High Level Review of Sanctions, including its 150 recommendations, is now available here on the UN Website.  The Document number is A/69/941 – S/2015/432.  The review, sponsored by Australia, Finland, Germany, Greece and Sweden, took place from May –  November 2014, and involved a series of meetings between Member States, the Secretariat as well as other UN bodies.

The starting point of the review was to look at the 16 regimes in place, and discuss how to improve the existing sanctions system from there.  The compendium has many useful recommendations and observations.  Here are a few:

  • It emphasizes the move towards using sanctions to address trafficking in wildlife products and natural resources;
  • It highlights the importance of using sanctions to address transnational threats and new technologies; (Recommendation 146)
  • It recommends using sanctions to better address existing and emerging threats on, for example, incitement to genocide, sexual violence in conflict, and gross violations of women’s rights; (Recommendation 132)
  • It advocates the establishment of a Trust Fund for sanctions implementation assistance, a proposal originating from Jordan. (Recommendation 126).  While not going so far as to reference Article 50 of the UN Charter (special economic problems), together with recommendations 123 – 125 on assessments for assistance, it charts a future path towards better coordination and provision of assistance.
  • The Compendium also proposes better coordination between the ICC and the UN, highlighting the absence of clear processes in the past, and the possibility of future synergies.  For example, the compendium makes the very sensible recommendation of automatically listing individuals (where a relevant sanctions regime applies) after an arrest warrant has been issues by the Pre-Trial Chamber.  (Recommendation 100).

The compendium is a useful and current document, that gives a current state-of-play of UN sanctions while adding onto the Interlaken, Bonn and Stockholm and Greek initiatives of prior years.  Nonetheless, it must be noted that an attempt to pass a Security Council resolution last November on some of these same issues failed.   See the Security Council report assessment here of a draft resolution that was debated but never brought to a vote.   Attempts to strengthen capacity building, assistance and implementation for UN sanctions remain controversial – whether because of ongoing hesitation about the robustness of the tool, or because of opposition to strengthening the Secretariat’s policy making capacities.

What impact this document will have remains to be seen, but as the race heats up for the next Secretary General, one hopes that the recommendations will form part of the campaign, and further that future Secretary Generals will play a greater role in sanctions implementation, by for example, including substantive reports on sanctions in their briefings to the Security Council.  (See recommendation 50).

Guest Post: Colombia–How Much Justice Can the Peace Take?

by Kai Ambos

[Kai Ambos is Professor for Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg August Universität Göttingen, Judge at the District Court in Göttingen,  Director of the Centro de Estudios de Derecho Penal y Procesal Latinoamericano (CEDPAL) of Göttingen University and has worked in Colombia in various capacities over the last 25 years.] 

On 23 September, the Colombian President Juan Manuel Santos achieved a major breakthrough in the peace negotiations with Latin America’s oldest guerilla movement, the “Revolutionary Armed Forces of Colombia People’s Army” (FARC). After over three years of negotiations and reaching agreement in principle on other, less controversial matters (land reform, political participation and the drugs problem), the question of how to deal with the crimes committed by the parties to the conflict – especially by the FARC – remained the last and greatest obstacle to the successful conclusion of negotiations. Now, the FARC – much to the astonishment of many observers – have accepted the creation of a “Special Jurisdiction for Peace”. Essentially, this special jurisdiction’s aim is to ascertain the criminal accountability of all parties involved in the armed conflict with a dual procedural model: those actors who submit to the new jurisdiction of their own volition and confess to their acts can expect a maximum – so-called alternative – sanction of up to eight years, while those who refuse to cooperate will be subject to ordinary criminal proceedings ending in a prison sentence of up to 20 years. All concerned must contribute actively to the ascertainment of the truth, to the reparation of victims, and to guaranteeing the non-repetition of the crimes committed. A truth commission will – at long last – be established. The FARC must lay down their weapons at the latest 60 days after the signing of final accord, which is planned for 23 March 2016. The agreement makes a distinction between (political) crimes for which amnesty is possible and the core crimes under international criminal law, namely genocide, crimes against humanity, and serious war crimes, for which there is no amnesty. In return for submitting to the abovementioned special jurisdiction, the FARC is granted the status of a political movement.

While the agreement marks a key step towards achieving lasting peace in Colombia, it also raises some difficult legal and political questions that may – apart from the short period until 23 March 2016 – hinder its implementation. As far as the composition of the abovementioned special jurisdiction is concerned, the accord in principle follows the model of the so-called “hybrid” tribunals created in other transition processes, albeit with three “Salas previas” (kinds of pre-trial chambers) – responsible for fact-finding, amnesties and pardons and the determination of the legal situation of the respective responsible individual – and the more important “Tribunal para la Paz” (Tribunal for Peace), which will conduct the main trials. The structure is not set out clearly in the public part of the agreement. It is clear, however, that the judges will mainly be Colombians – insiders speak of 20 – , with a small number of foreigners (three to five). Here, the key question is: how will these judges be selected? Besides their professional suitability, the main concern will be their neutrality towards and independence from the parties to the conflict, which will make the selection of the Colombian judges quite a challenge, given the fact that the Colombian judiciary is highly politicised. The case is similar for the selection of the members of the abovementioned truth commission.

As regards the ratione materiae jurisdiction, any amnesty is excluded not only for the core crimes mentioned above (albeit with the qualifier “serious” for war crimes), but also for individual acts such as forced expulsion, forced disappearance, torture and – very broadly – “sexual violence”. The explicit prohibition of amnesty was welcomed by the Chief Prosecutor of the International Criminal Court (ICC), but it goes beyond the crimes contained in the Court’s Statute and thus beyond the prohibition of amnesty recognised under international law. Otherwise, as broad an amnesty as possible – pursuant to Art. 6(5) Additional Protocol II to the Geneva Conventions – will be granted for political and related offences (“delitos políticos y conexos”). The opposition, led by former President Álvaro Uribe and the Prosecutor General (Procurador General) Ordóñez Maldonado, have already criticised in this respect that the crimes of drug trafficking and kidnapping could be granted amnesty as “related offences” according to this approach. While this is indeed the case, it neither is prohibited under international law nor under Colombian law. On the contrary, it is in line with the special political offence tradition enshrined in Colombia’s legal history and Constitution. Indeed, the Colombian Supreme Court has explicitly acknowledged that the offence of drug trafficking is not excluded from the transitional justice regime (Judgment of 30 April 2014, Sala de Casación Penal, case no. 42534) and, furthermore, that it is linked to the offence of rebellion if it serves to finance the armed struggle (Concepto de extradición CP117-2015 of 24 September 2015).

As to the ratione personae jurisdiction, in principle all parties to the conflict, including the members of the state security forces, will be subjected to the special jurisdiction, but the prosecution will need to concentrate upon the main persons responsible – in accordance with international practice. This is not stated explicitly in the agreement, but can be deduced from its reference to “the most serious and representative acts” and “cases”.

The most difficult and controversial issue is that of the enforcement of the abovementioned sanctions. In their public statements, the FARC leaders have repeatedly made it clear that they would not accept a usual prison sentence in a normal detention facility; however, they appear to have yielded in this regard also. Strictly speaking, the agreement sets out a threefold differentiation, whereby any sanction must include “an element of restriction of liberty”: those who admit their acts will receive the abovementioned alternative punishment of between 5 and 8 years, with the type of enforcement depending on whether the individual concerned has admitted to their acts immediately or only “later” (“tardía”). which needs to be determined more precisely. In the first case, the punishment is enforced under “special conditions”, and in the second under “ordinary conditions”. These “ordinary conditions” will also be applied to those who refuse to cooperate and can thus expect a prison sentence of up to 20 years. Accordingly, it seems clear that only those who confess at once can expect special treatment, that is, to serve their sentence outside a normal detention facility. The Colombian legislator will have to determine the exact details of these special conditions, with international (criminal) law leaving a broad margin of appreciation.

As it stands now, there are no objections to the agreement from the point of view of international law, and the ICC will also be happy with it. Of course, the much more detailed basic document which contains 75 points has not been published so far. In any case, on the domestic front the main concern will be less with international law and more with the Colombian population’s political acceptance of the agreement. Ultimately, this can only be achieved by a referendum.

The author is grateful to Margaret Hiley, M.A., Ph.D., for her assistance in the preparation of this English version.

Update to Open Letter from International Lawyers to EU States, the European Union and European Publics on the Refugee Crisis in Europe

by Başak Çalı

[Dr. Başak Çalı is Director for the Center of Global Public Law and Associate Professor of International Law at Koç University, Turkey. She the secretary general of the European Society of International Law. The following is written in her personal capacity. This is a follow-up post to the open letter we published 24 September.]

The open letter from international lawyers to the EU, EU states and the European Publics public concerning the existing international legal obligations to those seeking international protection has attracted signatures from over 900 international lawyers after it has been reopened for signature. The signatories include leading experts in international refugee law, Professors Deborah Anker (University of Harvard); Chaloka Beyani (LSE); Vincent Chetail (Graduate Institute of International and Development Studies);  Bhupinder Chimni (Jawaharlal Nehru University); Michelle Foster (University of Melbourne); Geoff Gilbert (University of Essex, Editor in Chief, International Journal of Refugee Law); Guy Goodwin-Gill (Emeritus Fellow, All Souls College, Emeritus Professor of International Refugee Law, University of Oxford); Elspeth Guild, (Radboud University Nijmegen); James Hathaway (Professor of Law and Director, Program in Refugee and Asylum Law, University of Michigan & Distinguished Visiting Professor of International Refugee Law, University of Amsterdam); Jane McAdam (University of New South Wales (UNSW)); Boldizsár Nagy, (Central European University & Eötvös Loránd University, Budapest); Gregor Noll (University of Lund); Thomas Spijkerboer (Professor of Migration Law, VU Amsterdam) and many others.

On 30th September, the office of the President of the European Commission, Mr Jean-Claude Juncker, responded to the Open Letter explaining that the Member of the Commission responsible for Migration, Home Affairs and Citizenship, Mr Dimitris Avramopoulos ‘is looking into the points you have raised and will respond to you rapidly.’

In summary, the Open Letter urges European states and the EU to:

  •  meet their obligations of international responsibility-sharing, to resettle significant numbers of refugees and provide aid to countries hosting large numbers of refugees.
  • as regards those seeking protection in Europe, abandon those policies which prevent safe and legal access to protection. The UNHCR estimates over 2,860 people have died at sea trying to get to Europe this year alone. Suspending carrier sanctions and issuing humanitarian visas would largely prevent the need for those seeking refuge to make dangerous journeys.
  • respect and protect the human rights of those seeking refuge once they are in Europe, including by enabling them to access asylum procedures or ensuring safe passage to countries where they wish to seek international protection.
  • immediately suspend Dublin returns of asylum-seekers to their first point of entry, but ensure that its rules on family reunification are implemented fully and swiftly.
  • relocate asylum-seekers and refugees in a manner that respects the dignity and agency of those relocated, and increases Europe’s capacity to offer protection.
  • replace the Dublin System with one which accords with international human rights law and respects the dignity and autonomy of asylum-seekers, and supports international and intra-European responsibility-sharing.
  • implement fair and swift procedures to recognize all those in need of international protection.
  • while claims are being examined, afford those in need of international protection, at a minimum, the reception conditions to which they are entitled in international human rights and EU law.
  • respect the right to family life, including positive obligations with regard to family unity, facilitation of swift family reunification and family tracing.
  • treat all refugees, asylum-seekers and migrants with dignity and respect, respecting and protecting their human rights, irrespective of status.

Read the entire Open Letter here (.pdf).

Under the New “Investor-State Arbitration” in the Trans Pacific Partnership, Claimants May Have to Pay Attorneys’ Fees

by Julian Ku

The U.S. and eleven other Pacific Rim countries announced they have reached agreement on the Trans Pacific Partnership trade agreement, which will more tightly integrate 40% of the world’s economy into a single regional bloc. There will be a huge fight in Congress over the TPP by progressive Democrats in the U.S. Even presidential candidate Hillary Clinton has already announced her opposition (sort of).

One area of ire for critics will certainly be the TPP’s provisions for investor-state dispute resolution (See Sen. Elizabeth Warren’s attack on this area here).  The TPP negotiators seem to have recognized that those provisions needed modifications and they seem to have focused on providing more transparency in arbitral proceedings.  But I was particularly struck by the U.S. Trade Representative’s official summary of the agreement’s provisions on investor state arbitration below.

The chapter also provides for neutral and transparent international arbitration of investment disputes, with strong safeguards to prevent abusive and frivolous claims and ensure the right of governments to regulate in the public interest, including on health, safety, and environmental protection.  The procedural safeguards include:  transparent arbitral proceedings, amicus curiae submissions, non-disputing Party submissions; expedited review of frivolous claims and possible award of attorneys’ fees; review procedure for an interim award; binding joint interpretations by TPP Parties; time limits on bringing a claim; and rules to prevent a claimant pursuing the same claim in parallel proceedings.

I find this provision on attorneys’ fees fascinating. I presume this will allow state-respondents to actually recover attorneys’ fees from investor-claimants if those claims were somehow deemed frivolous.  I didn’t realize frivolous claims were actually a huge problem in investor-state dispute resolution.  I am not aware of data showing lots of weak claims being filed with state-respondents just settling to avoid the costs of arbitration.

I am also not aware of any other kind of international dispute resolution, public or private, which has this kind of arrangement. It is worth the wait to see the details, but it is sign the TPP negotiators are getting ready to take fire on this area from folks like Sen. Warren, and have added a little armor ahead of time.

Crossing Lines Is Back! (And Actually Better Than Ever)

by Kevin Jon Heller

I stopped watching Crossing Lines about five episodes into Season 2 – about the time the ICC started investigating a series of home invasions. (Yes, really.) I had no intention of watching again, but I decided to give the show one more try at the urging of my friend Mel O’Brien. So a couple of nights ago I watched the double episode that kicks off Season 3, which features an almost entirely new cast, including the excellent Elizabeth Mitchell and Goran Višnjić (who is Croatian, a nice touch).

To be sure, the show still has its fair share of minor annoyances. Our protagonists remain, inanely, the “cross-border team.” The magic hologram machine has yet to make an appearance, but the team does have a virtual chalkboard that would be at home in Minority Report. Donald Sutherland’s barrister robe has these weird little stubs that make it look like it came from an S&M dungeon. The South African judge is a little too gleeful when he pronounces the defendant guilty (which annoyed Mel) – and why are there approximately 10 other judges sitting around him?

There are still substantive problems, as well. The double episode revolves around the team trying to establish the reliability of documents before they are excluded by the judges – which, of course, would never happen at the ICC, given its civil-law-oriented “free proof” evidentiary regime. The judges would simply admit the documents and then take reliability issues into account when determining their probative value. And the defendant appears to be formally charged with “ethnic cleansing” – which is, of course, a non-technical term. The correct charge would have been, given the facts of the case, forcible transfer.

That said, I have to admit the double episode was pretty darn good. The defendant was a Congolese warlord accused of massacring an entire village in the eastern part of the DRC. An actual international crime – and one that didn’t even cross a border! Better, the warlord was acting on behalf of an American corporation that needed to ensure the continued supply of coltan, a rare metal necessary for its telecommunications products. The village was sitting on a particular valuable deposit of the metal, so the warlord killed its inhabitants to open the area to mining.

That is a quite sophisticated story line – and one that is very realistic. It was also particularly enjoyable to see the ICC bring the sleazy American CEO to justice – in a US court, another nice touch. (Although the substantive international criminal lawyer in me would have liked to see Donald Sutherland litigate the jurisdictional issues involved in prosecuting a national of a non-State-Party for aiding and abetting an international crime that was committed on the territory of a State Party.) If only the real ICC would go after a multinational corporation!

All in all, a job well done by the show’s writers. We’ll see if the progress lasts…

Weekly News Wrap: Monday, October 5, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


Middle East and Northern Africa






Events and Announcements: October 4, 2015

by Jessica Dorsey


  • iCourts (Center of Excellence for International Courts), The Faculty of Law, University of Copenhagen, Denmark is seeking applications for two or three positions as postdoc within the research area of one of the Faculty’s research centres – iCourts (the Center of Excellence for International Courts). The positions are available from 1st February 2016, and for duration of two (2) years. Start date is negotiable under special circumstances.
  • A new blog has joined us in the ether, Rights! a free, open online platform to read, write, discuss, share and act on human rights and democratisation: On one single platform, Rights! gathers together think pieces, comments from the field, case studies, interviews, critiques and provocations from established and emerging human rights professionals from all regions of the world. Find more here.

Calls for Papers/Abstracts:

  • The Leuven Centre for Global Governance Studies is organizing an international conference on global public goods, global commons and democracy (22-23 February 2016, Leuven, Belgium). The conference will explore the economic, legal and political underpinnings, premises and implications of global public goods and global commons for global governance institutions and international organizations, especially in relationship with the debate on their (non)-democratic nature. The aim is to assess, from an interdisciplinary perspective, how the respective discourses surrounding global public goods and global commons diverge in their relation to global democracy, and, in particular, to the advancement of democracy in global governance and international organizations. Abstracts (no longer than 500 words) should be submitted by the 8th of October 2015. More information can be found here.
  • The Russian-Armenian (Slavonic) University (RAU) in cooperation with the Delegation of the International Committee of the Red Cross (ICRC) in Armenia announce the 8th Yerevan International Conference for Young Researchers on International Humanitarian Law, which will be held from 19 November to 21 November 2015 in Yerevan, Republic of Armenia and will be held under the theme “IHL Development: New Agenda and Reality Check”. The Yerevan Conference is a unique international platform for the discussion of contemporary issues and perspectives related to IHL development among the young scholars. Over the years the conference hosted a number of renowned international experts in the field of IHL, international criminal law and constitutional law thus providing a unique possibility to the young participants not only to be heard by the established professionals and experts, but also to engage with them in the open discussion over their opinions and views. Finally, the Conference provides the unique cultural experience of visiting always beautiful and hospitable Armenia and meeting old and new friends from all over the world. More information about the Conference can be found here. Young researchers in the field of IHL under the age of 35 are invited to take part in the Conference participants pre-selection process. In order to apply the applicants should submit a research paper strictly within the scope of the announced conference topics presented in the Call for papers found here. The deadline for submitting the application package is October 18, 2015.
  • The Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXV), which will be published in June 2016. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works. Submissions should not exceed 15,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available at the PYIL’s webpage. Please send manuscripts to pyil [at] inp [dot] pan [dot] pl. The deadline for submissions is 31 January 2016.


  • International Conference: “International Humanitarian Law and Modern Warfare” Rome, 23-24 October 2015. The relationship between warfare and international humanitarian law is an ever-evolving one. New combat methods, novel technologies and the evolution of weaponry pose critical challenges to international humanitarian law; at the same time, the high task of protecting the principles of humanity during wars requires an evolution and an adaptation of the law. International humanitarian law is “law in motion”. Carabinieri are involved in a number of international missions and operations, so we have decided to organize this conference, because we consider it as an important objective to contribute to fostering the study and understanding of such important issues, in the interest of members of the military and society at large. The conference in Rome will last two days and the debate will spread across four panels: one will deal with new weaponry and the law; one will focus on the relationship between human rights and humanitarian law in the context of modern warfare; another will cover recent judicial developments in international humanitarian law and the last one will address the evolving relationship between the general principles of international humanitarian law and the features of modern warfare. Each panel will be composed of four/five experts, and it will be moderated by a young scholar in the field. The deadline for registration is today! For more details, please click here.
  • The American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA) present: International Law Weekend 2015This year’s conference will be held in New York City on November 57, 2015. The theme of International Law Weekend (ILW) 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. ILW 2015 will explore the many roles that international law plays in addressing global challenges. The conference will offer engaging panels on current problems and innovative solutions in both public and private international law. Register Now for ILW 2015. ILW begins Thursday evening, November 5, with a distinguished opening panel at the New York City Bar. The opening panel, “The Rule of Law and the Post 2015 Development Agenda,” will feature dialogue with senior UN officials and representatives of member states on efforts to advance the UN Rule of Law Initiative and to achieve the Sustainable Development Goals (SDGs) over the next fifteen years.  A reception will follow and is open to all conference attendees. The conference continues Friday, November 6 and Saturday, November 7 at Fordham University School of Law. Friday’s activities feature a keynote address by Miguel de Serpa Soares, United Nations Under-Secretary-General for Legal Affairs and United Nations Legal Counsel. View the ILW 2015 Program (subject to change).

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.

ASIL’s Research Forum

by Duncan Hollis

I wanted to flag for interested readers the upcoming ASIL Research Forum in Washington, D.C., on October 23-24, 2015  I’ve been to a couple of the previous iterations and can attest that it’s a great way to catch up on some new scholarship and to hear a mix of new and old voices in the field.  This year’s event looks to continue that tradition.  Here’s how ASIL’s Executive Director Mark Agrast pitches the event:

This year’s Forum offers an exceptionally rich and diverse program, including expert-led discussions of 70 innovative papers, a luncheon program featuring remarks by former ICJ Judge and ASIL Honorary President Tom Buergenthal; and a ticketed dinner discussion of “Dispute Settlement with Iran: From the Hostage Crisis to the Nuclear Accord” with key negotiators from the U.S. Department of State.

The Forum will also include events specifically designed for students and new professionals. Our “International Law Career Panel and Speed Mentoring Event” will feature practitioners from a variety of international law fields and a networking reception, and two leading law librarians will lead a session on “International Law Research Strategies.”

This will be an outstanding opportunity for lawyers interested in the latest developments in international law to connect with thought leaders in their areas of interest.

If interested, you can see the full program and submit your registration here.  I’ll be commenting on a few treaty papers on Saturday, so feel free to say hello if you see me there.


Defending the FSA Against Russia — the Jus ad Bellum Perspective

by Kevin Jon Heller

It’s been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution — the Commander-in-Chief Clause — would permit the US to defend the FSA, which it has been equipping and training. As Bobby points out, rather skeptically I think, the USG seems to believe it would (internal block quote omitted):

[I]t is an interesting legal question, especially in light of recent testimony from Under Secretary of Defense for Policy Wormuth to the effect that Article II could be invoked to permit U.S. forces to defend DOD-trained Syrian forces in the event of an attack on them by Assad regime forces.  Wormuth’s position was repeated by an unnamed “senior administration official” a few days ago.

Given this position, is there any reason to think the answer would be different if we are talking instead about Russian forces attacking those same DOD-trained units?  I see no reason why that would be the case, though the policy stakes obviously are immensely different.  Next, is there anything different if instead we are talking about CIA-trained, rather than DOD-trained, Syrian forces.  Again, I can’t see why this would alter the analysis; under the apparent theory of the Obama administration, the government already possesses whatever legal authority would be needed to use force to prevent Russian jets from striking U.S.-sponsored Syrian units.

I have no doubt Bobby’s right — as I said on Twitter, he has forgotten more about Art. II than I ever knew. I just want to point out that invoking Art. II to defend the FSA against Russia would be more than a little perverse given the status of such an attack under international law — the jus ad bellum, in particular.

Let’s start with Russia. Although its attacks on the FSA might have violated the jus in bello — I certainly wouldn’t be surprised — they did not violate the UN Charter’s prohibition on the use of force with regard to Syria, because they were conducted with the Syrian government’s consent. Nor is there any plausible argument for viewing the Russian actions as an armed attack on the US — whatever the Art. II argument about the US’s “national interest” (see this skeptical Jack Goldsmith post), an attack on the FSA is not a use of force against the US’s “territorial integrity or political independence.”

What this means, of course, is that the US could not invoke self-defense under Art. 51 to justify using force against Russia to defend the FSA — say, by destroying a Russian bomber. Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US.

(To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an aggressive act against a major Western power — one that is also a permanent member of the Security Council.)

Again, I have no idea how these jus ad bellum considerations affect the Art. II analysis. Knowing the US, the fact that attacking Russia would qualify as an unlawful act of aggression might be irrelevant. The optics of using Art. II to justify such an attack would nevertheless be deeply troubling, to say the least.

The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter

by Julian Ku

The UN General Assembly is set to vote once again (for the 24th consecutive year) on a Cuba-sponsored resolution condemning the United States’ economic, commercial, and financial embargo against Cuba.  This resolution will probably get near majority support, and perhaps even unanimous support.  Indeed, there are rumors that the U.S. government itself may abstain from voting against the resolution, which is certainly odd and perhaps unprecedented.  Cuban President Raul Castro’s speech at the UN reiterated his demand that the U.S. end its embargo and sanctions on Cuba.

I don’t want to get into the merits of whether the U.S. should have an embargo on Cuba here, but I am baffled by the implication that the embargo violates international law.  The GA resolution doesn’t quite condemn the US embargo as illegal, but it comes close.  From last year‘s resolution:

2. Reiterates its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation;

Now Cuba has long called the U.S. embargo a “blockade”, which would be illegal under international law.  But despite some economic penalties on third-party countries trading with Cuba (largely never applied and always suspended), the U.S. does not actually prevent, militarily or otherwise, other countries from trading with Cuba.

I am heartened to see that the GA thinks the UN Charter reaffirms the freedom of trade and navigation, but I am not aware of any authority for the proposition that a country’s choice not to trade with another country is a violation of the Charter’s non-existent textual references to the freedom of trade and navigation.

Here’s the problem with U.S. (and other nations’) acquiescence with the Cuba resolution’s language.  It strongly suggests that a country cannot impose a unilateral embargo on another country without somehow violating its UN Charter obligations.  This can’t possibly be something the EU or Canada can or should sign onto as a matter of principle.  And it is even odder for the U.S. administration to agree to this idea, when its main policy for dealing with foreign aggression (e.g. Russia in Ukraine) is the unilateral imposition of sanctions.

So I think it would be perfectly appropriate (and indeed necessary) for the U.S. and other countries that impose unilateral sanctions to oppose this resolution on principle.  They won’t of course, but they should.

Guest Post: Promising Development in Protecting Cultural Heritage at the ICC

by Matt Brown

[Matt Brown is a current LLM student at Leiden University, studying Public International Law, with a specific interest in international criminal law, transitional justice and cultural heritage law. He tweets about these and other topics @_mattbrown.]

The International Criminal Court concerns itself with the ‘most serious crimes of concern to the international community.’ Often we understand this term to reflect examples such as the atrocities currently taking place in Syria, where the specific target is human and impact is measured by death toll. Last weekend’s surrender of Mr Ahmad Al Mahdi Al Faqi to the ICC however, challenges us to rethink our conception of war crimes to include the broader, but often forgotten concept of cultural destruction. It also serves as a positive example of domestic cooperation with the Court as it was Niger who transferred Mr Al Faqi to the Court.

Mr Al Faqi is suspected under Article 8 (2) (e) (iv) ‘of committing war crimes in Timbuktu between 30th June and 10th July 2012, through ‘intentionally directing attacks against buildings dedicated to religion and or historical monuments’. Specifically, the charges relate to the destruction of nine mausoleums and the Sidi Yahia mosque in Timbuktu and form part of the Court’s three-year interest in Mali, originating from Mali’s self-referral in 2012. To this day, UNESCO is working with other international actors and local groups to rebuild the mausoleums.

This case, although a first for the ICC, builds upon a body of law developed by the ICTY. This includes the Pavle Strugar case, where Strugar was found guilty on the basis of superior criminal responsibility for the ‘destruction of institutions dedicated to, inter alia, religion, and the arts and sciences’. International Criminal Law’s approach to cultural heritage has several drawbacks, but chiefly it suffers from a fragmentation and hierarchical approach between instances of international armed conflict, non-international armed conflict and internal disturbances. The decision therefore of the ICC to prosecute ‘cultural crimes’ could help to consolidate the principles of cultural heritage law and bring greater consistency to the protections afforded between the different forms of conflict.

It also promises to resolve a second issue, namely that the enforcement of cultural heritage protection and subsequent prosecution is too often lacking. With the destruction that ISIS continues to cause in Palmyra, it offers a promising hint that if the jurisdictional issues that currently prevent prosecuting senior ISIS leaders can be overcome, the prosecution of cultural damage will be on the agenda.

Important questions remain however about the Court’s interpretation of the regrettably narrow Article 8 provision within the Rome Statute­­, which reflects the traditional and outdated interpretation of culture as constituting solely of tangible objects. This approach finds its roots in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which refers in Article 1 (a) to ‘movable or immovable property of great importance to the cultural heritage of every people’. This conception of culture based on the tangible nature of buildings, libraries, churches and historical sites is furthered in the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage that refers in Article 1 to monuments and architectural works of outstanding universal value. Reflecting a definition of cultural heritage heavily influenced by Western thought, steeped in the value of archeological, literary and scientific importance.

Even with the entry into force of the Convention for the Safeguarding of the Intangible Cultural Heritage, the charges reflect both a promising intention to bring the perpetrators of cultural destruction to justice, but equally illustrate the constructed nature of culture, which overlooks the intangible aspect of cultural heritage that cannot be rebuilt with simple bricks and mortar. This case will be interesting for a variety of reasons, but we can hope that it offers an opportunity to build on the Prosecutor’s acknowledgment that the charges reflect the ‘callous assault on the dignity and identity of entire populations and their religious and historic roots.’

We should consider this an important breakthrough in strengthening both the enforcement of cultural heritage law and the ICC itself. In dealing with a definition that is slowly emerging from decades of Western bias, this case offers the victims of cultural heritage destruction the chance to be heard and to push for greater recognition of the impact is has upon them as people(s). The ICC therefore has a golden opportunity to improve its reputation in Africa by listening to victims and demonstrating that international law is responsive to the voices and concerns of third-world approaches and can evolve to take account of these. The domestic co-operation between Mali, Niger and the Court to bring Mr Al Faqi to The Hague also offers great hope that the Court can work effectively with African State Parties, despite the recent problems it faced in South Africa.

This news is an exciting development in efforts to enhance protection of cultural heritage and bring the perpetrators of cultural attacks to justice. At the same time however, it throws up many more questions about the broader definition of ‘culture’, victim participation in cultural matters, and whether this could give the Court a unique opportunity to tackle an issue of growing importance in international law.

That “Broad Consensus” for Unwilling/Unable Just Got Less Broad

by Kevin Jon Heller

A few days ago, I pointed out that Kate Martin’s “broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack” actually includes no more than four of the world’s 194 states. That consensus is not exactly broad — and it looks even shakier now that Russia has apparently rejected the “unwilling or unable” test in the context of Syria:

On Saturday, France launched a campaign of airstrikes against the Islamic State in Syria. Commenting on the effort, Russian Foreign Ministry spokeswoman Maria Zakharova pondered what kind of conception of ‘self-defense’ would drive one country to carry out an operation to bomb another without that country’s explicit permission.

Earlier, Prime Minister Manuel Valls was cited by French media as saying that Paris’s bombing campaign constitutes self-defense. “We are acting in self-defense,” Valls noted, according to Reuters.

In a post on her Facebook page, Zakharova pondered that “it would be nice to know more about this concept of self-defense, in the form of air strikes [on the territory of Syria,] a state which did not attack anyone, and without its consent, and about this concept’s compliance with international law.”

The spokeswoman referred to the fact that in its air campaign against ISIL, the Western coalition never once found the need to consult with Syria’s legitimate government, and on the contrary, has repeatedly declared that the elected government of Bashar Assad cannot be part of Syria’s future.Zakharova noted that she found it entertaining that “the referendum in Crimea is called an annexation, but air strikes conducted without the approval of the Security Council or of the receiving side is self-defense.”

The spokeswoman emphasized that while “it’s clear that the Islamic State is a threat to the entire world,” first two questions must be answered: “First, who was it that created ISIL? And second, on what basis are you acting on the territory of a sovereign state, bypassing a legitimate government which not only does not support, but is selflessly fighting against ISIL?”

Zakharova concluded that “this is not international law; this is its abolition in front of a shocked international community.”

If I was being picky, I would acknowledge that Zakharova did not specifically reject “unwilling or unable.” Her emphasis on the requirement of Syria’s consent nevertheless implicitly rejects “unwilling or unable” far more clearly than the statements by various governments that supposedly — according to Ashley Deeks — support the test. So it is more than fair to count Russia in the anti-“unwilling or unable” camp.

If you’re keeping score at home, that makes it: at most four states that support “unwilling or unable”; at least one state that rejects it.

And yet scholars claim that there is a “broad consensus” in favour of the test. Thus does method die not with a bang, but a whimper.