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Events and Announcements: March 1, 2015

by An Hertogen

Events

  • On Tuesday, 3 MarchOpinio Juris‘ own Kevin Jon Heller will be giving a Supranational Criminal Law Lecture at the T.M.C. Asser Instituut in The Hague entitled “What is an International Crime?” The event starts at 19:00 and seating is on a first-come, first-served basis.

Calls for Papers

  • The Board of Editors of Trade, Law and Development [TL&D] is pleased to invite original, unpublished manuscripts for publication in the Winter ’15 Issue of the Journal (Vol. 7, No. 2). The manuscripts may be in the form of Articles, Notes, Comments, and Book Reviews. All manuscripts received by September 15, 2015, pertaining to any area within the purview of international economic law, will be reviewed by the editorial board for publication in the Winter ’15 issue. TL&D aims to generate and sustain a democratic debate on emerging issues in international economic law, with a special focus on the developing world. For more information, please go through the submission guidelines available at www.tradelawdevelopment.com or write to editors[at]tradelawdevelopment.com
  • International Law Weekend 2015 (ILW 2015) – the premier international law event of the fall season  – is scheduled for November 5-7, 2015, in New York City.  The event is sponsored by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). The theme for 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. The ILW Organizing Committee invites proposals to be submitted online on or before Friday, March 20, 2015 via the ILW Panel Proposal Submission Form located here. ILW 2015 is scheduled to be held at 42 West 44th Street on Thursday evening, November 5, and at Fordham Law School at Lincoln Center on November 6 – 7, 2015. For questions regarding ILW 2015, please contact conferences [at] ilsa [dot] org.  2015 ILW Program Committee Members: Chiara Giorgetti (University of Richmond Law School), Jeremy Sharpe (Office of the Legal Adviser, U.S. Department of State), David Stewart (President ABILA, Georgetown University Law Center), Santiago Villalpando (Office of Legal Affairs, United Nations), and Tessa Walker (ILSA).
  • The Canadian Council on International Law’s 44th Annual Conference will take place at the Department of Foreign Affairs, Trade and Development Canada in Ottawa, Canada from November 5 – 7, 2015. This year, the theme is International Law: Coherence or Chaos? International law scholars, practitioners, and graduate students are invited to submit proposals for panels or papers. All proposals should be submitted to manager [at] ccil-ccdi [dot] ca no later than March 20, 2015. More information is available here.
  • The Independent Panel on Global Governance for Health (a collaboration between the University of Oslo and The Lancet medical journal) is preparing a report to be published in The Lancet in 2015. The topic is the implications for health and the social determinants of health of trade and investment treaties, agreements, and negotiation processes. International trade and investment agreements can have major effects – both positive and negative – on people’s health and wellbeing.  These agreements are formalized and interpreted according to legal procedures that are complex and technical. Powerful states and corporations exert a strong influence on the outcome because of the greater resources they bring to the negotiating table. As a result, affected communities and stakeholders may be excluded from the process. The Panel hereby invites submissions of evidence on this topic from all interested parties – academia, civil society, business, public administration etc. Submissions may be in various forms, ranging from peer-reviewed research papers to qualitative or quantitative evidence of the implications for health and the social determinants of health of trade and investment treaties, agreements, and negotiation processes. Also welcome are descriptive essays, personal stories, news and media articles, visual items etc. Submissions should describe the context, methods, and processes involved in gathering the evidence; specific lessons; and wider global lessons. Submissions may also include recommendations for action; these should be as specific as possible, with regard to identified actors, processes etc. Please send your submission to: globalgovhealth-contact [at] sum [dot] uio [dot] no by April 30, 2015.

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. 

Guest Post: The Mirage of Hybrid Justice in Africa?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, Sudan and South Sudan.]

Although international criminal law is increasingly assimilated with the International Criminal Court (ICC), hybrid justice remains surprisingly common thirteen years after the establishment of the landmark Special Court for Sierra Leone. Last month a UN-mandated International Commission of Inquiry made headlines when it recommended a hybrid tribunal for the Central African Republic (CAR). Citing the collapse of the country’s judicial system, Philip Alston, one of the Commission’s members, suggested that the international community should ‘act fast’ to ‘fund a tribunal’ if it wanted to break the ‘cycle of impunity’ fueling the conflict. His plea came on the heels of similar calls for a hybrid judicial mechanism in South Sudan, which has received the endorsement of international advocacy groups and the UN in recent months.

It is clear that the establishment of the ICC, the only permanent court with (potentially universal) jurisdiction over international crimes, has not eliminated the need for more tailored, country-specific responses to mass violence. Different kinds of hybrid tribunals have operated, or continue to operate, in the aftermath of violence in Bosnia and Herzegovina, Cambodia, Indonesia (East Timor), Iraq, Lebanon, Chad and Kosovo. What is less known is that blueprints for mixed international-national jurisdictions have also emerged in many other conflict- and post-conflict settings, including Liberia, Burundi, Kenya, the Democratic Republic of Congo (DRC), Sudan and Somalia. Two names can now be added to that long list of African states: South Sudan and CAR.

What these proposals have in common is that not one of these hybrid tribunals has actually been set up, despite – in some cases – years of lobbying by local civil society groups and oft-repeated assurances from African governments that accountability is essential for national reconciliation. This prompts the question: why are hybrid tribunals so frequently debated but so rarely established in the aftermath of African conflicts?

Hybrid and internationalized tribunals emerged in the early 2000s as a corrective to other forms of international criminal justice. There is no single definition of ‘hybridity’, but the notion is used conventionally to refer to institutions that mix national and international elements. Unlike purely international courts, such as the International Criminal Tribunal for Rwanda or the ICC, hybrid tribunals have either mixed jurisdictional bases (domestic and international law) or mixed staffs (domestic and international judges or prosecutors). The hope was that this blending of international and local elements would allow such tribunals to overcome the limitations of both purely domestic courts and fully international bodies.

International justice activists advance three broad claims about hybrid justice. First, by bringing together local and international partners, mixed tribunals have the potential of building domestic capacity and increasing the legitimacy of prosecutions among affected populations. Second, despite the growing number of ratifications of the ICC Statute, hybrid tribunals remain an important alternative where the ICC cannot exercise jurisdiction. Last but not least, the hybrid model should decrease the tension between international demands for accountability and state sovereignty. By giving states a say in the design of hybrid mandates, it was hoped that state concerns about international criminal law could be adequately addressed.

Debates around proposed hybrid tribunals in Africa reveal that, if there is still some consensus on the first two points, reconciling state interests with internationally-driven accountability has proved elusive in practice.

Contrary to expectations, hybrid justice now looks like the most invasive form of international intervention. Many African governments – Kenya being the prime example – understand that the prospect of a hybrid tribunal is far less appealing than the much-demonized ICC. Notwithstanding the high-profile standoff between the AU and the ICC, individual African states have learned to skillfully manipulate the ICC to their advantage. By outsourcing sensitive cases to The Hague while trying minor perpetrators before domestic courts, the governments of the DRC, Uganda, Kenya and Cote d’Ivoire have all, to different degrees, used the ICC’s interventions to bolster their domestic standing. Due to the ICC’s limited enforcement powers, it is relatively easy for states to project an image of compliance where cooperation is convenient, and obstruct the ICC’s investigations where national or regional interests are at stake.

It is doubtful that hosting a hybrid tribunal on one’s own territory offers the same flexibility. Established for more or less defined periods of time (mandates vary), hybrid tribunals operate under the watchful eye of international staff, which prevents national authorities from controlling investigations and prosecutions. A key stumbling block in negotiations over the establishment of hybrid tribunals in Africa, notably in the DRC, has been the composition of their staff. Echoing political disputes from the Extraordinary Chambers in the Courts of Cambodia, where a preponderance of national staff allowed Cambodian magistrates to outvote their international peers, the Congolese government has rejected UN attempts to secure a majority of international judges and prosecutors. Loath to finance projects it cannot control, the international community has sought to craft mandates that give them an outright majority, for instance in Kenya and Liberia. Early reports from CAR suggest this may emerge as a sticking point in negotiations between the government and international donors. While the Central African authorities have emphasized hybridity and the need to bolster domestic capacity, Alston’s remarks imply that a more robust international presence will be required due to a lack of independent national judges.

The obstacles to establishing hybrid tribunals in Africa vary from country to country, so it is important to not overstate the dismal success rate of such proposals. As with the ICC, complex political dynamics at the domestic, regional and international levels explain these setbacks. However, it is precisely the AU’s repeated condemnations of the ICC, coupled with its advocacy of ‘African solutions to African problems’, that prompts a critical look at its efforts to pursue hybrid justice.

Though last week’s decision to commit Hissène Habré to trial has rightly been praised by human rights advocates, it is important to remember the convoluted process by which the Extraordinary African Chambers in Senegal were established. Similar problems have arisen in relation to Darfur, Kenya and South Sudan. Despite years of mediation led by Thabo Mbeki, the Sudanese government’s refusal to act on the AU’s calls for a hybrid tribunal has elicited practically no follow-up from the AU. In Kenya, the AU’s support for President Kenyatta has been a one-way street, with no sustained pressure to resurrect the Waki Commission’s idea of a Special Tribunal (or a purely domestic accountability mechanism). This also explains why last month’s decision to ‘indefinitely shelve’ the report of the AU’s South Sudanese Commission of Inquiry has caused so much consternation. The AU appears, yet again, to be prioritizing peace over justice.

The Central African Republic is the next test case for the viability of hybrid justice in Africa. At first blush, the prospects of the proposed ‘Special Criminal Court’ in CAR – where the interests of the national government, the AU and international actors coincide – seem good. The transitional government signed a memorandum of understanding with the UN several months ago, and investigations would focus on non-state actors: rebels from the Seleka and anti-balaka movements. Yet the track record of African hybrid tribunals suggests a good dose of caution. Progress on legislation needed to bring the Special Court into existence has been slow, and it remains unclear who will fund a tribunal operating alongside the ICC. One thing is certain, the money will not come from the AU which is busy laying the groundwork for its institutional alternative to the ICC: the revamped African Court of Justice and Human Rights with criminal jurisdiction and immunities for heads of state and senior officials.

In the end, there is a distinct possibility that the Central African court will join the ranks of most other African hybrid ventures, which remain in the realm of promising but unfulfilled ideas. If this happens, it might well be time to ask whether hybrid justice on the continent resembles something of an African mirage… as one approaches and strains for a closer look, the prospect of justice recedes on the horizon.

One War Begins, Another Ends?

by Jens David Ohlin

Yesterday, as members of Congress continued to debate the need for a new AUMF against ISIS, lawyers for Guantanamo detainee Al Warafi have filed a new habeas petition to the D.C. District Court, arguing that the basis for detaining Warafi evaporated when the war in the Afghanistan ended. Specifically, the petition argues that the administration has conceded in prior litigation that the basis for Warafi’s detention was his membership in the Taliban. In the past, Warafi had argued in that he was a medic for the Taliban and his continued detention violated IHL’s rules on the treatment of medics. That argument was ultimately rejected by a district court which concluded that Warafi’s status was not analogous to that of a medic in a traditional army.

Warafi’s new argument takes as its starting point that last legal conclusion. Since Warafi was deemed detainable as a regular member of the Taliban, the authority for his continued detention evaporated with the conclusion of the war in the Afghanistan.

How do we know that the war in Afghanistan is over? On this point, Warafi’s petiton relies exclusively on Obama’s own statements that the conduct of hostilities in Afghanistan is over:

On December 15, 2014, President Obama stated that “[t]his month, after more than 13 years, our combat mission in Afghanistan will be over,” and “[t]his month, America’s war in Afghanistan will come to a responsible end.” Exhibit A, p. 2. Then, in the State of the Union Address on January 20, 2015, the President stated, without any qualifications or conditions, that “our combat mission in Afghanistan is over.” Exhibit B, p. 1.

These pronouncements had been foreshadowed during the preceding two years by repeated presidential statements that the United States’ war in Afghanistan would be ended, and its combat mission would be terminated, by the end of 2014. On February 12, 2013, President Obama declared in the State of the Union Address that “[b]y the end of [2014], our war in Afghanistan will be over.” Exhibit C, p. 5. On May 23, 2013, he stated that “[t]he Afghan war is coming to an end.” Exhibit D, p. 7. On November 25, 2013, he stated that ‘[t]he war in Afghanistan will end next year.” Exhibit E, p. 1. On December 20, 2013, he stated that, “[b]y the end of next year, the war in Afghanistan will be over.” Exhibit F, p. 2. In the State of the Union Address on January 28, 2014, he repeated that “we will complete our mission there [Afghanistan] by the end of this year, and America’s longest war will finally be over.” Exhibit G, p. 6. The President followed up with a prepared statement on May 27, 2014, that “this year, we will bring America’s longest war to a responsible end,” that “this is the year we will conclude our combat mission in Afghanistan,” and that “America’s combat mission [in Afghanistan] will be over by the end of this year.” Exhibit H, p. 1. On December 28, 2014, the United States Case 1:09-cv-02368-RCL Document 80 Filed 02/26/15 Page 3 of 7- 4 – marked the end of the war in Afghanistan with a ceremony in Kabul.1 Exhibit I. On that date, President Obama released a statement that “the ceremony in Kabul marks a milestone for our country” because “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.” Id.

The argument relies exclusively on the President’s own statements regarding the conduct of hostilities, rather than engage in an underlying assessment of the actual situation on the ground. This strategy seems designed to appeal to the D.C. Circuit, which might be more inclined (than another court) to view the President’s assessment as dispositive of the issue:

The D.C. Circuit has also stated that the “determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.” Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010). “Whether an armed conflict has ended is a question left exclusively to the political branches.” Al Maqaleh v. Hagel, 738 F.3d 312, 330 (D.C. Cir. 2013), cert. dismissed sub nom. Al-Maqaleh v. Hagel, 135 S. Ct. 782 (2014). Under these precedents, a conflict is over when the President says it is over.

The argument also suggests an estoppel point which goes unexpressed in the petition: since the administration has conceded that the war is over in public statements, it is estopped from arguing before the judiciary that the war continues (for the purposes of justifying Wafari’s continued detention).

One issue is whether Obama’s multiple statements regarding the conclusion of “our combat mission in Afghanistan” is the same thing as saying that hostilities there are over. Does the former imply the latter? It seems like a viable and legitimate inference to draw, although none of the Obama quotes in the petition include the actual words: “the hostilities are over.” Is that distinction important? Or would it be overly legalistic to insist that the political branch use the phrase “hostilities” in its public pronouncements?

The petition also tees up another important legal issue. Is there a “wind up” period after the conclusion of hostilities when continued status-based detention is still justified, or must law-of-war detainees be released immediately upon the conclusion of hostilities? As this ICRC analysis notes, the Hague Regulations once required that POWs be released as soon as possible after the conclusion of peace, but the Third Geneva Convention requires that “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” (article 118). Most legal experts assume that it was significant that the codified law moved from a “conclusion of peace” standard to a “conclusion of hostilities” standard, because the latter requires repatriation of soldiers after fighting ends, even if there is a delay in negotiating a formal state of peace. Also, article 118 of the Third Geneva Convention requires release “without delay” as opposed to the older and looser requirement of “as soon as possible,” which is vague and somewhat indeterminate. So the law has moved over time to require quicker repatriation of captured soldiers. Of course, this assumes that IAC principles of detention are the relevant principles governing Gitmo detention, which is itself a contested and controversial question.

Overall, the Warafi petition highlights that extinguishing or ending an armed conflict is often just as legally complex as declaring or authorizing an armed conflict. Both involve questions of inter-branch allocations of constitutional authority (Article I versus Article II of the US Constitution), as well as the relative value of public statements versus actual events on the ground.

Elders Proposal for Strengthening UN

by Kristen Boon

If you haven’t seen it yet, the Elders Proposal for Strengthening the UN is a must read.  Chaired by Kofi Annan, The Elders is an independent group of global leaders who work together for peace and human rights.

Released earlier this month at a conference in Munich, the four proposals are generating a lot of attention include:

1)  A new category of Security Council membership is needed: non-permanent members but who are immediately eligible for re-election, thus making them de facto permanent members if they secure the confidence of fellow member states.

2)  A pledge for non-use of the veto:  P5 states must also be more responsible in using their veto, especially during a crisis where people are threatened with genocide or other atrocities.

3)  Consultation with civil society:  the Security Council should take care to regularly consult those people who are affected by its decisions, especially in conflict zones.

4)  A new, more transparent and accountable system for choosing the next Secretary-General.

The last proposal, a new process for choosing the Secretary General, is where the Elders really break new ground.  They propose:

At the United Nations, it is the Secretary-General who has to uphold the interests and aspirations of all the world’s peoples. This role requires leadership of the highest calibre. Yet for 70 years the holder of this post has effectively been chosen by the five permanent members of the Security Council, who negotiate among themselves in almost total secrecy. The rest of the world is told little about the process by which candidates are identified, let alone the criteria by which they are judged. This barely follows the letter, and certainly not the spirit, of the UN Charter, which says the Secretary-General should be appointed by the General Assembly, and only on the recommendation of the Security Council.

To remedy this, we call on the General Assembly to insist that the Security Council recommend more than one candidate for appointment as the Secretary-General of the United Nations, after a timely, equitable and transparent search for the best qualified candidates, irrespective of gender or regional origin.

We suggest that the next Secretary-General be appointed for a single, non-renewable term of seven years, in order to strengthen his or her independence and avoid the perception that he or she is guided by electoral concerns. She or he must not be under pressure, either before or after being appointed, to give posts in the Secretariat to people of any particular nationality in return for political support, since this is clearly contrary to the spirit of the Charter. This new process should be adopted without delay, so that the United Nations can make full use of it to choose the best person to assume the post in January 2017.

By tradition, the post rotates amongst different geographical areas of the world, and the next Secretary General would, under this system, come from Eastern Europe.  Because of tensions at the UN between Russia and Western States, however, many predict it will be impossible to find a candidate acceptable to all.   The proposal for implementing a merit based search with multiple candidates, and for a non renewable 7 year term therefore comes at an excellent time.  Member states should take up the call and consider updating the SG selection procedure. What will be required to implement it is a new GA resolution.   Ban Ki Moon’s term will be up at the end of 2016:  the time to act is now.

A helpful overview of the UN Charter requirements for the post (Article 97), relevant GA resolutions on the selection process, and recent proposals for reform of the office of the SG can be found here.

Weekly News Wrap: Monday, February 23, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

  • US-led air strikes against the Islamic State of Iraq and the Levant (ISIL) group in Syria have killed more than 1,600 people since they began five months ago, according to the Syrian Observatory for Human Rights.
  • The UN special envoy to Syria is travelling to Damascus to try to reduce the fighting which has intensified in Aleppo, where rebels claim to have killed 300 government soldiers in the past week.
  • A Moroccan court sentenced a former Spanish soldier to eight years in jail on Friday on charges of leading an Islamist network in the kingdom that was plotting terror attacks, the state news agency MAP said.

Asia

  • North Korea has banned foreign runners from participating in an international marathon scheduled to be held in the capital in April, citing fears about the spread of the deadly Ebola virus, a Beijing-based travel agency said.
  • Nearly three months after police cleared away the last of Hong Kong’s pro-democracy street protests, lingering anger is stoking a new front of radical activism that has turned shopping malls and university campuses into a fresh battleground.

Europe

Americas

  • High-level nuclear negotiations between the United States and Iran resumed in Geneva on Monday as both sides work through technical and political differences to come up with an initial deal by a March 31 deadline.
  • Indonesia has recalled its new ambassador to Brazil after the South American country stopped him taking part in a credentials ceremony following the execution of a Brazilian national for drugs trafficking.

Oceania

UN/World

Events and Announcements: February 22, 2015

by Jessica Dorsey

Events

  • This Friday, February 27, from 12pm to 1pm ET, join the American Society of International Law New Professionals and International Criminal Law Interest Groups for a special online event featuring speakers from the international courts and tribunals in The Hague and other organizations engaged in international criminal law.  “Getting Started in International Criminal Law” is part of the ASIL New Professionals Interest Group’s “Getting Started” series. The webinar will be broadcast live through the ASIL website. Speakers will include staff from the Office of the Prosecutor of the Special Tribunal for Lebanon and the International Criminal Court, legal officers from the chambers of judges on the International Criminal Tribunal for the former Yugoslavia, and defense counsel from the Special Tribunal for Lebanon, as well as academic and non-governmental practitioners working in the field.  The event will be moderated by Professor Beth van Schaack of Santa Clara Law School. Viewers can stream the event on their personal computers and submit questions during the livestream by emailing events [at] asil [dot] org.  For more information and to register, go here.

Announcements

  • The Academy on Human Rights and Humanitarian Law is pleased to announce that the Program of Advanced Studies on Human Rights and Humanitarian Law is now accepting applicationsThe program will take place from May 26 to June 12, 2015. This Program offers 18 courses in English and Spanish lectured by over 40 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 150 participants from more than 25 different countries and with different levels of professional experience. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission on Human Rights and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance for lawyers, law students and HR professionals of any country, ABA Credits for U.S. students and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. You can review the brochure here and the application form for this program will be available here. For more information, please contact: hracademy [at] wcl [dot] american [dot] edu.

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. 

3.5 Lecturer/Senior Lecturer Positions at SOAS

by Kevin Jon Heller

Here is the advertisement, which I hope will be of interest to Opinio Juris readers:

3 x full-time posts & 1 x part-time (0.5 fte) post

Lecturer: £33,476-£48,088 p.a / pro rata inclusive of London Allowance

Senior Lecturer: £49,462-£56,975 p.a / pro rata inclusive of London Allowance

The SOAS School of Law invites applications for 3 full-time and 1 part-time (0.5) Lectureships/Senior Lectureships in Law tenable from 1 September 2015.  The successful candidates will be expected to have expertise and interest in teaching in at least one of the following areas, at both undergraduate and post graduate level: International Trade Law; Law & Economics; Refugee & Migration Law; Alternative Dispute Resolution; Legal Systems of Africa & Asia; and Property Law (including the English Law of Land & Trusts but ideally encompassing non UK centric areas such as African Land Rights, Cultural Property, Property Theory, Intellectual Property etc). The School of Law is also keen to recruit scholars with additional & specific expertise in the laws of particular countries within Africa or Asia although applicants without such expertise are also encouraged to apply.

Successful candidates will be expected to have research interests relevant to the mission of the School, including a strong interest in issues of particular importance to law in the developing world. These applicants should have (or be nearing completion of) a PhD in Law (or a related discipline) and a strong record of (or potential for) excellence in research and publications appropriate to a research intensive law school that was ranked fifth, by reference to the proportion of world class publications it produced, in the recent REF.

Prospective applicants seeking further information about SOAS or the School of Law may contact the Head of the School of Law, Paul Kohler (pk3 [at] soas [dot] ac [dot] uk).

To apply for this vacancy or download a job description, please visit www.soas.ac.uk/jobs. No agencies.

This is an exciting time to be at SOAS. We ranked 10th in the UK in the 2015 Guardian law table, we’ve made a number of excellent new hires over the past couple of years, and we will be moving into a beautiful new building — a renovated North Block of Senate House — early in 2016.

Any readers serious about applying should feel free to contact me with questions. The closing date for applications is March 19, and interviews will be held in late April.

Weekend Roundup: February 7-20, 2015

by An Hertogen

This fortnight on Opinio Juris, Kevin recommended an article on China’s proposed broad definition of terrorism, argued that there is no practice supporting the “unwilling or unable” test, and was surprised by the news that David Hicks’ conviction for material support for terrorism has been voided.

Julian questioned whether the Outer Space Treaty allows for private exploitation of the Moon’s resources.

Kristen advanced four reasons why the Security Council’s new Terrorist Financing Resolution is significant, and Jens explained why he remains troubled by the draft proposal to authorise the President to wage war against ISIS.

Other proposals that caught our attention were a proposal to make it easier for some US citizens overseas to renounce their citizenship without facing a hefty tax penalty and Duncan’s proposal (with Tim Mauer)  for a Red Cross-like movement in Cyberspace.

In guests posts this fortnight, Jonathan Horowitz looked into the drafting history of APII to argue that IHL does not regulate NIAC internment and Charlotte Peevers discussed the Chilcot Inquiry (1, 2)

Finally, Jessica listed events and announcements (1, 2) and wrapped up the international news (1, 2).

Many thanks to our guest contributors and have a nice weekend!

U.S. May Let Go of Accidental Americans (Eliminating Tax Hurdle to Renunciation)

by Peter Spiro

It’s finally seeping into the mainstream consciousness that the U.S. tax system works very aggressively against citizens abroad, even those who are citizens in name only. Boris Johnson, the mayor of London, is renouncing his U.S. citizenship after he had to pay a hefty IRS tab on capital gains on the sale of his London home. Johnson was born in the U.S. and spent some of his toddler-hood here before moving back home, permanently, with his parents to the UK.

In the future, shedding U.S. citizenship may be a lot cheaper for those with similarly thin connections to the United States.

Existing tax law treats renunciation as if it were a liquidation event. If you have more than $2 million in assets, you have to pay capital gains on all of your assets as if they were sold as of the date of expatriation — an exit tax, in effect. Prospective renunciants must also show that they have been tax compliant for the past five years on regular income taxes, which all U.S. citizens must file regardless of residence. External Americans who haven’t been filing have to pay hefty back taxes and penalties on the way out the door (including some under the hated FBAR and FATCA regimes relating to foreign accounts that fall heavily on external citizens). Even so, every quarter now we are hearing that record numbers of individuals are renouncing their U.S. citizenship.

The Obama Administration’s 2016 Green Book  includes a proposal under which an individual would not be subject to the exit tax requirements if the individual:

1. became at birth a citizen of the United States and a citizen of another country,
2. at all times, up to and including the individual’s expatriation date, has been a citizen of a country other than the United States,
3. has not been a resident of the United States (as defined in section 7701(b)) since attaining age 18½,
4. has never held a U.S. passport or has held a U.S. passport for the sole purpose of departing from the United States in compliance with 22 CFR §53.1,
5. relinquishes his or her U.S. citizenship within two years after the later of January 1, 2016, or the date on which the individual learns that he or she is a U.S. citizen, and
6. certifies under penalty of perjury his or her compliance with all U.S. Federal tax obligations that would have applied during the five years preceding the year of expatriation if the individual had been a nonresident alien during that period.

This would exempt those whose citizenship really is nominal (or even unknown to them). It may be the smart U.S. citizen parent outside the U.S. who doesn’t register a child’s birth with a U.S. consulate, a trend that is now being reported.

It would still leave covered a lot of folks whose connections are very tenuous (maybe Boris used a U.S. passport here and there). It’s only a proposal, requesting and requiring congressional action. This very informative post from the Canadian law firm Moodys Gartner explains how the Obama Administration might be able to accomplish the same end through a regulatory backdoor allowing it to backdate the expatriation of birthright dual citizens.

In any case, the proposal does evidence some understanding that the imposition of U.S. taxes on accidental Americans is unsustainable. The Moodys Gartner post plausibly suggests that foreign governments (including Canada) may be pushing for the reform as their constituents get caught in FATCA’s net. This is a continuing story.

CMCR Voids David Hicks’ Conviction for Material Support

by Kevin Jon Heller

Big news — and news I wasn’t expecting:

A former prisoner at the U.S. Navy base at Guantanamo Bay, Cuba, from Australia on Wednesday won a legal challenge to his terrorism conviction before a military court.

The U.S. Court of Military Commission Review struck down the March 2007 conviction of David Hicks in a unanimous ruling that reverses what had been one of the government’s few successes in prosecuting prisoners at Guantanamo.

Attorney Wells Dixon said he immediately called Hicks’ attorney in Australia, where it was the middle of the night, to pass on the news to his client.

“David is aware of the decision and he is thrilled,” Dixon said. “He is free to live his life without this conviction hanging over his head.”

Hicks, 39, pleaded guilty to providing material support to terrorism. It was a plea bargain in which all but nine months of his seven-year sentence was suspended and he was allowed to return home by the end of that year.

In 2014, an appeal’s court ruled that material support was not a legally viable war crime for the special wartime court at Guantanamo known as a military commission. Prosecutors argued his conviction should still stand because he agreed not to appeal as part of the plea deal, an argument rejected by the U.S. Court of Military Commission Review.

Quite a journey for Hicks. When he was first charged, he was one of the most hated men in Australia. By the time the military-commission farce was through with him, he was a national hero.

Kudos to the CMCR for doing the right thing.

A Global Cyber Federation? Envisioning a Red Cross Movement in Cyberspace

by Duncan Hollis

Lately, I’ve spent a lot of time thinking about the future of cyberspace and how to deal with the coordination and collective action problems that are leading to the normalization of cyber insecurity. As I’ve written previously, I’m skeptical that the standard legal regulatory move — proscription — will work at either the individual or the State level.  Thus, I’ve tried to examine ways law can help regulate and promote resilience in cyberspace independent of identifying and punishing bad actors, including an idea for some sort of e-SOS system.  Much of the feedback I received on that idea involved questions on operationalizing any duty to assist.  Certainly, it could be something States (or other actors) adopt unilaterally; or it could be something States might coordinate in some form of international agreement such as a treaty (or more likely these days) some form of political commitment.  There is, however, another option based on one of the most successful humanitarian organizations in history — the Red Cross.  Simply put, why not have a Red Cross-like movement in cyberspace where interested entities (including CERTs) combine to coordinate and offer assistance to victims of severe cyberthreats impartially, neutrally, and independent of governments and their particular interests (e.g., surveillance)?

Together with Tim Mauer of New America, I’ve got a populist call for such a movement in Time today.  To be clear, the idea is not to hand over cyberspace to the Red Cross (even if it may have a clear role to play in future cyber conflicts).  Rather, it’s to see the potential of using the movement’s evolution, its structure and its norms (e.g., neutrality, independence, and impartiality) to improve resilience and cyber security at a global level.  Here’s the opening salvo:

Here’s an understatement: 2014 was a bad year for cybersecurity. The Sony hack was the highest profile hack of the year, a cyber-attack against a German iron plant caused massive physical damage, and the Heartbleed vulnerability was considered “catastrophic” even among experts not known to be alarmist. In the meantime, large-scale data breaches hit household names such as Target, Home Depot and JP Morgan Chase, with new reports emerging almost weekly. In the history of cybersecurity, 2014 marks a new low. As 2015 gets underway, news of the insurance company Anthem being hacked suggests cybersecurity is unlikely to improve anytime soon. That’s why conversations in national capitals, boardrooms, international conferences and on-line discourse feature a growing call to action.

The time is ripe for a bolder approach to cybersecurity, one not beholden to the existing politics of Internet governance nor linked to particular governments or intergovernmental organizations. We believe cyberspace could use a global cyber federation, a federation of non-governmental institutions similar to the role that the Red Cross and Red Crescent movement and humanitarian assistance organizations more broadly have with respect to armed conflicts and natural disasters.

Obviously, there are lots of questions (and details) that require elaboration. For now, however, I’m going to push this idea and see whether it might get traction among those who would be in a position to actually participate in such a movement.  After all, if a few committed individuals like Henry Dunant could create the Red Cross, what’s to stop a similar idea from taking hold in cyberspace?

Guest Post Part II: The Chilcot Inquiry–The Publication Saga of an Official History

by Charlotte Peevers

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013). Part one of this guest post can be found here.]

Legal-Political Authority and International Law

Any review of the inquiry hearings would be incomplete without a word from Tony Blair. In this extract from his so-called ‘recall’ to the inquiry on 21 January 2011 Sir Roderick Lyne asks him about his statement to the House of Commons in February 2003. The statement referred to the apparent exercise of an “unreasonable veto” in relation to a second resolution – that is, beyond 1441 – a subject upon which Lord Goldsmith had already advised was not a justifiable legal position to take against the French or Russian postures within the Security Council.

Video clip begins at 109.26 and ends at 116.05

Transcript (line 11 page 71 – line 6 page 75)

In this extract, Blair’s rather tortured distinction between legal and political arguments highlights a particularly interesting aspect of the relationship between international law and politics. His is an attempt to parse political and legal authority, to justify his deployment of legalistic language as a pure political exercise that was not only permissible, but that his audience would have appreciated and known was not premised upon legal authority. This parsing of authority highlights the difficulty faced by those who might oppose government policy or at least question its bases: without the contemporary knowledge as to the legal advice proffered by government experts, there is no way of holding statements such as Blair’s to account. The ambiguity of his articulation – that encompasses the possibility of legal justification, but not necessarily being explicit about it – leaves him able to claim ex post facto that he was merely making a political point. If this was interpreted the ‘wrong way’ by his audience, or indeed by Sir Roderick Lyne in his questioning, that that was not his fault, nor was it his intention.

In addition, this parsing can be seen as an attempt at making a representation of legal authority in the absence of having political authority. In other words, in the absence of majority public support – a democratic mandate – for using force without UN backing. And this is particularly problematic when, as Roderick Lyne seeks to point out, the government had been advised explicitly that there was no legal authority for such a claim. Blair’s evidence therefore seeks to claim an excessive sovereign right to wage war on the premise of an internationalized legal authority, avoiding the strictures of democratic mandates, or indeed international authority vested in the UN Security Council’s authorization of force. The boundaries of that legal authority were, at the time, entirely subject to secrecy and could therefore be publicly represented in any way deemed justifiable by the government; and then later as merely a political argument that did not in fact rely upon legal authority!

The Chilcot Inquiry as International Legal Archive

These two brief extracts from the present Chilcot Inquiry archive illustrate the wealth of material that can be analysed now, regardless of when the final report will be published together with the promised publication alongside it of 1,500 or so declassified documents. (See the video of Sir John Chilcot’s evidence before the Foreign Affairs Committee on 4 February 2015 at 27.05 where he discusses the publication of declassified material alongside the final report, available here.) Perhaps the most important thing we have learnt is that there is still a huge amount to learn from secrecy. Secrecy as a structural, structuring force on the generation of public policy and the place of law – not just international law – in the exercise of sovereign power.

In addition, we have learnt more of the ‘inner life’ of international law – how international law actually works in policy-making. It exists not just in formal sources, or texts, but behind closed doors, in corridors of extreme power. It is given life in memoranda, letters and meeting records. In order to understand how international law works, we need to consider the processes of advice-giving, the means by which decisions are taken in government – sofa government, ad hocism, inner war cabinets, limited disclosures to Cabinet and to Parliament, and the like – and the production of a government archive.

The archive disclosed through the Chilcot Inquiry, like any archive, is already constructed, is incomplete and partial. Reflecting, by way of comparison, on the Suez Crisis archive is particularly instructive (see Charlotte Peevers The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (OUP: 2013): despite the existence of an Israeli copy of the Protocol of Sèvres – the document proving collusion and that the Anglo-French occupation of the Suez Canal in late October 1956 was a pretext for invading Egypt following the nationalization of the Suez Canal Company – it has never surfaced in the British archive, in any form. Collusion was suspected for many years before the Israeli copy finally surfaced, but was always denied by the British government and no amount of archival material could have resolved the question of collusion one way or another – evidence had been destroyed and all reference to it expunged from the records (including presumably the direction that all reference be expunged!).

Despite the ‘constructedness’ of any archive, the ability to rake back over documents and oral evidence in relation to the Iraq War ought to be considered a hugely rich potential source for us as international lawyers, and of course as historians and political scientists. The danger with the saga generated over the publication of the Chilcot Inquiry report is that in all the dramatic distraction we miss the opportunity for reading the current archive for ourselves. An official history, however critical or otherwise, will act as the final word over the Iraq Affair, framing our future treatment of the archive and guiding our interpretations of it, whether in opposition or affirmation of the Inquiry’s final conclusions.

Again, the Suez Affair gives pause for thought. There was never an official inquiry into or official history of the Suez Crisis, its scandalous nature rumbling on in Parliament, behind-closed-doors in Whitehall, and in the public imagination without any final word being drafted. Whilst the absence of any holding to account of Anthony Eden’s government is not necessarily something to celebrate, one lesson that might be learned is this: an official history would not have been able to substantiate collusion – which went to the very heart of the question of accountability. In the absence of an official accounting, Suez has become the mythologized nail in the coffin of the British Empire, a supreme act of folly that was, unquestionably, illegal. We can continue to discover the lessons to be learned from Suez, particularly in relation to how international law was used to justify military action, by reading the archive for ourselves. I hope we will continue to quarry the mine of material produced by the Inquiry process, going beyond the limiting – and limited – question of whether the Iraq War was legal or illegal, instead proposing unofficial histories of the place of international law in domestic and international politics.