Under any view, the privilege of combatancy is key to the basic architecture of the law of war. It stands at the fault line between domestic criminal law and International Humanitarian Law, between impermissible killing and lawful belligerency. Simply put, the privilege of combatancy transforms, almost magically, what would otherwise be an unlawful act of murder into a lawful killing consistent with jus in bello. How does this transformation happen? However it happens, it is a powerful legal mechanism, and one whose exact contours demand definition and clarity.

The privilege has recently taken center stage in debates about targeted killing, and it featured prominently in the background of the debate over the killing of U.S. citizen Anwar al-Awlaki, and the associated drone memo drafted by the Justice Department’s Office of Legal Counsel. In particular, that memo examined the foreign murder statute and concluded that the statute incorporated the standard homicide justifications, including the public authority justification, which arguably includes acts of privileged combatancy consistent with the laws of war.  At issue here is whether CIA officers—who do not wear uniforms or carry arms openly—are eligible for the privilege of combatancy.

For some, the entire discussion of the privilege of combatancy is misplaced because the privilege only applies in international armed conflicts (IAC), and never in non-international armed conflicts (NIAC). Under this well-known view, the concept of “combatant” is an element of the legal structure of IAC, and has no place in NIAC, which includes government forces and rebels.  Allegedly, to talk of privileged or unprivileged combatants in NIAC is to make a category mistake.

In a new draft article I reject this orthodox position, and I conclude that in some situations the privilege of combatancy might apply in NIAC.  In particular, the 19^th Century view of the subject was far more complex; scholars believed that NIACs that shared the functional characteristics of international conflicts should be treated in the same manner.  I argue that this sophisticated view carried over into the 20^th Century and was preserved in Common Article 3 of the Geneva Convention, though it got misplaced in overly simplistic textbook definitions of the privilege of combatancy.

What about the right of the government to prosecute rebels in a NIAC?  If the privilege applies, such prosecutions would arguably be illegitimate. First, I argue that 19^th Century scholars concluded that both sides in such conflicts were moral and legal equivalents, and therefore prosecutions during the war were inadvisable or even impermissible. However, at the conclusion of the conflict, a victorious government was permitted to prosecute defeated rebels for their decision to take up arms against their government. However, the best reading of this rationale is that prosecutions for treason were appropriate because rebels had violated a duty of loyalty to their own government, but prosecutions for murder were inappropriate because they suggested that rebels were not professional soldiers.  What was criminal about a rebel was his or her decision to violate a duty of loyalty to the sovereign.

This suggests to me that the literature has over-simplified the relevant law regarding NIAC and the privilege of combatancy. The two concepts are not mutually exclusive. Therefore, it makes sense to ask whether government forces in the armed conflict against al-Qaeda are privileged or not.  Terrorists in general don’t qualify for the privilege because they don’t wear uniforms or carry their arms openly, but in theory one could imagine a non-state actor that meets the functional requirements of belligerency.  Whether government personnel qualify for the privilege is another question entirely.

The standard answer is that CIA personnel involved in drone strikes are not eligible for the privilege because they don’t wear uniforms or carry arms openly – I think this is absolutely correct.  However, I also think there has been insufficient attention paid to uniformed soldiers deployed during covert actions under Title 10. As most readers of OJ know, covert action isn’t simply the purview of the CIA anymore. Military deployments by JSOC (Joint Special Operations Command) remain officially unacknowledged for various complex reasons.  In some case the territorial government is unwilling to acknowledge U.S. military presence on their territory and therefore conditions their consent on the covert nature of U.S. conduct. In other cases, a state may wish to proceed covertly, even with uniformed military troops, because they believe their actions might violate jus ad bellum.

I believe that these covert deployments of uniformed military personnel are deeply problematic from the perspective of the privilege of combatancy. Despite what some others have written regarding the Geneva Conventions, I believe that by custom even regular armed forces are required under the law of war to meet the standard criteria for belligerency: a responsible command, uniform or emblem, carrying of open arms, respect for customs of warfare. This point is almost definitional.  These criteria define what it means to be a regular armed force, since almost all armies in the world fulfill these requirements. The point of the Geneva Convention was to extend privileged belligerency to other non-standard militias that are functional equivalents to regular armed forces. This doesn’t mean that regular armed forces are exempt from those requirements; it simply means that regular armed forces are assumed to meet the criteria based on universal custom. It would be very odd to say that a fighting group that meets none of the criteria would be entitled to the privilege just because they are called a regular army.

I make two related arguments in my Article. First, the privilege is collective in nature and attaches to a collective unit that meets the functional requirements of belligerency—the group as a whole must carry arms openly, wearing a fixed emblem or uniform, etc. There is no such thing as a purely individual privileged soldier. In short, the privilege of combatancy is a collective privilege that the political entity asserts on behalf of the individual soldier – a process that is logically impossible if the state denies that it used force in the first place. In order to assert the privilege of combatancy, a state must always acknowledge that the forces were operating on its behalf – precisely what covert action denies.

Second, I’m not sure that covert action is consistent with the requirement of carrying arms openly. Generally, the commentaries discuss that requirement in the context of rifles and grenades and the phrase is given a physical description. I think it requires a more conceptual understanding. Carrying arms openly is related to the requirements of distinction, which means more than just separating civilians from combatants. It also requires separating friendly forces from enemy combatants – a process which is totally obscured when a state refuses to acknowledge the use of force.  I therefore question whether a covert deployment is a form of “open” warfare consistent with the laws of war and the privilege of combatancy.  If this is correct, then for the privilege it doesn’t matter whether drones are deployed by CIA or uniformed personnel – both are unprivileged insofar as the deployment remains unacknowledged.

This departs significantly from the traditional analysis of covert action, and suggests to me that we need more research into how basic principles of jus in bello apply in the covert context.

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.]

The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.

(more…)

According to Standard & Poor’s, Argentina has defaulted on at least some of its sovereign bonds, after last minute negotiations failed to reach a deal with its holdout bondholders, who had won a series of victories in U.S. court.  Although there are reports that some U.S. banks representing the rest of the bondholders are exploring ways to buy out the holdout bondholders on Argentina’s behalf (no doubt by having Argentina borrow even more money to do so), Argentina seems ready to go to the mattresses, so to speak. Or, at least in this case, to take the U.S. to the ICJ:

[Argentina Cabinet Chief] Capitanich said Argentina would denounce the “vulture funds” before the International Court of Justice at The Hague and the United Nations General Assembly.

Argentina has been going all out to try to convince other countries and the international community to support its cause including full page ads in major US newspapers, a diplomatic offensive at the recent Organization of American States meeting, and finally this threat to sue the U.S. government for failing to reign in its courts in the holdout creditor litigation against Argentina.

As far as the ICJ goes, this is a pretty idle threat. The ICJ would not have compulsory jurisdiction over the U.S. in this matter, so at best the ICJ would be asked to issue an advisory opinion.  But even in that case, what exactly is Argentina’s claim? That the U.S. has violated international law by blocking some of Argentina’s debt payments?  What international law obligation is being violated? Until someone explains what the legal theory is, I will classify this part of Argentina’s campaign to justify its latest default as just more hot air.

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.]

In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’.

Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel’s use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity.

But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn. (more…)

[Jens Iverson is a researcher at the Law Faculty of the University of Leiden.]

Imagine there is a potential peace agreement that would end a civil war, but only at the cost of leaving portions of the country in question in the hands of a group that systematically violates the human rights women and girls.  The government is backed by a foreign state who, in the past, effectively occupied the country.  Some policy considerations are obvious – continued armed conflict can be devastating to most involved, but resolving the armed conflict with a solution that denies at least half of the population their rights is deplorable.  But is this a purely pragmatic, policy question?

In this post, I assert that foreign states may be obliged to push for peace agreements that protect the rights necessary for a modern democracy, not only on the basis of a general concern for human rights but also based on a more ancient legal and ethical tradition.  The obligation emerges from a source one might not expect—the logic behind the exception to the prohibition of transformative occupation, and ultimately on self-interest.

Traditionally, radical transformation of the laws of occupied territory was prohibited.  There is, however, an exception to this rule, dating at least back to Immanuel Kant.  An occupying power is not obliged to protect a legal system that is itself geared towards war—it is acceptable to create a less war-like constitution for an occupied nation.  This is not a human rights argument, nor an argument based on sparing a civilian population, nor a purely pragmatic public policy argument.  Rather, the legitimate transformative role of an occupying power responds to the traditional justifications for going to war (satisfying the justa causa of the war).  If the war is being fought in response to aggression that has disrupted international peace, then the justa causa may be to restore a system of international peace.  But what does that have to do with the rights of women that would be protected in a modern democracy?

The general modern form of the hypothesis that democracy, including non-discrimination, is important for peace is the “democratic peace hypothesis.”  This hypothesis states that as the democratic nature of the two states increases, the probability for substantial armed conflict between those states during a given year decreases.  If this hypothesis is accurate, and should protecting and promoting the rights of women be an important component of the democratic nature of the state, then promoting and protecting the rights of women is not only important for its own sake but also because of the positive correlation with the sustainability of the peace.

Considered under this analysis, protecting the rights of women is not a side-issue or epiphenomenon that can be considered once the “primary” issues of national security and inter-state relations are resolved—rather such protection can be determinative as to whether the war was justified in the first place.

There are, of course, strong reasons to protect the rights of women based purely on a human rights analysis, and powerful points to be made in favor of protecting women’s interests purely on ethical and humanitarian grounds.  The argument in this post is not intended in any way to undermine such arguments or impugn their moral force.  It does suggest that there is a supplementary analysis that should be helpful in addressing the gap between the ideal of respect and promotion of women’s human rights in the transition to peace and the reality.  This supplementary analysis requires an analysis of the moral and legal justification of the foreign military intervention as a whole.  It is essentially rooted in a traditional framework for public international law-the legal relationship between sovereign states.

Protecting the rights of women during the transition out of armed conflict is critical for establishing a just and sustainable peace.  This is not a new insight.  The UN Security Council has passed several resolutions on women, peace, and security (UNSC Res. 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010)). These resolutions provide evidence of the seriousness of the issue, and provide but have proven unsuccessful in fully addressing the problem.  Women are frequently victimized during armed conflict, underrepresented at the peace table, and disserved by the peace.

So why is this need not being fully addressed?  One difficulty may be the foundations upon which efforts to protect the rights and interests of women are typically built.  During conflict, the main foundation is International Humanitarian Law.  During early peace, there is an increasing role for human rights law and public policy.  International Humanitarian Law has numerous protections for civilians generally and in certain cases for women in particular, but many of those interests are short-term, often simply avoiding death or damage.  Human rights concerns and public policy concerns may be at their weakest when the terms of the new peace are being resolved.  There is a need for an additional rationale that would align the long-term self-interest of powerful actors (such as foreign states) with the self-interest of those placed in an unequal situation by systematic discrimination.

This logic does not, of course, limit itself to women.  Protecting the human rights of children, religious minorities, ethnic minorities, and other minorities is important if the armed intervention is to be justified, and the peace is to be democratic and durable.

Sometimes grasping an immediate, imperfect peace will be ethically and legally preferable to ongoing armed conflict, even if continued conflict comes with the hope of a better peace later.  There is a rationale to say that a foreign state should be reluctant to get in the way should local elites desire peace.  But too often, the foreign state has been too ready to consolidate a peace around a new government that does not respect human rights.  Foreign states, if they continue to have any role, should weigh the obligations they have based on their prior acts, and not jump too quickly to compromise the rights of women.

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, “The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles”.  According to the story, the State Department will publicly issue a report that says, among other things:

The United States has determined that the Russian Federation is in violation of its obligations under the I.N.F. treaty not to possess, produce or flight test a ground launched cruise missile (GLCM) with a range capability of 500 kilometers to 5,500 kilometers or to possess or produce launchers of such missiles,”

In addition, President Obama has notified Russian President Putin of the U.S. charges in a letter delivered today.

The U.S. move adds a new brick to the wall of tensions building in the U.S.-Russian relationship (others include Crimea, Russian support for Eastern Ukrainian separatists, the MH17 tragedy, not to mention Edward Snowden’s continuing presence in Moscow).  I assume the timing of the U.S. accusations is no accident.  Moreover, I find it interesting that in so many of these recent crises with Russia, the United States has consistently relied on law and legal argumentation to push against Russia’s actions (or inaction).  This case may be the most extreme example of such an approach since the issue here is entirely one of international law and treaty interpretation.  As such, it’s very much in the wheelhouse of Opinio Juris and its readers. I thought I’d start the conversation with a few preliminary thoughts (emphasis on the “preliminary” since we don’t have too many details to go on as yet).

For starters, the precise language used to describe Russia’s tests — a violation of its obligations under the I.N.F. Treaty” — appears quite significant (especially where it comes after reportedly extensive deliberation). Certainly, the concept of a violation is easy to grasp and has important political implications. For treaty lawyers, however, the term “violation” is not the language we’d expect to see where there’s non-compliance with a treaty’s terms. The Vienna Convention on the Law of Treaties (VCLT), which sets the customary international law rules in these cases, describes violations in terms of a treaty’s “breach”  More specifically, it articulates a set of remedies where breaches are “material” (see VCLT Article 60 here).  In this case, however, that key adjective — “material” — is nowhere to be found, suggesting the United States is not looking to invoke this VCLT provision.  But even if it were, in a move that has stumped generations of international law students, the VCLT’s remedies for a treaty’s material breach are quite limited — they entitle the non-breaching party to suspend or terminate its own obligations under the treaty in whole or in part (the VCLT also adds some procedural hurdles but these are largely ignored in State practice). Of course, there’s no evidence suggesting that the U.S. has any intention of suspending or terminating the INF Treaty; on the contrary, U.S. interests seem to lie squarely on keeping Russia obligated by the treaty as long as possible and forestalling any Russian move to withdraw from the INF Treaty (which Article XV allows it to do).  Simply put, the United States does not appear to consider Russia’s behavior as a material breach of the INF treaty nor want the remedies that label conveys; such a path would actually undercut the stability of the INF treaty’s continued performance for which the United States is pushing.

Second, just because the VCLT remedies are undesirable does not foreclose the United States from all legal leverage in this case. By using the term “violation . . . of obligations” the United States may be invoking a different set of international law rules … those of State responsibility.  Although the United States has been ambivalent to the UN’s Draft Articles on State Responsibility, those articles elaborate a detailed sets of obligations, rights and remedies where a State commits an internationally wrongful act (defined to include a breach of treaty obligations).  The offending State is required to cease (and not repeat) non-compliant behavior and the injured State(s) may engage in “counter-measures” to induce such a return to compliance. These counter-measures may include behavior previously categorized as a retorsion (lawful behavior such as canceling foreign assistance done in response to a prior breach) and a reprisal (behavior that would be unlawful but for the existence of the prior breach).  At present, the types of U.S. responses on offer described in Michael Gordon’s story are likely retorsions, but I assume other measures, including reprisals, could follow if Russia does not respond appropriately.

Taken together, these moves lend support to Bruno Simma and Christian Tams argument in my book that the law of state responsibility has proven more attractive to States than the VCLT’s remedies for treaty breach. That said, I do not mean to suggest that the VCLT is entirely irrelevant to this case.  On the contrary, its provisions on interpretation (Articles 31-33) are likely central to the U.S. claim of a Russian violation.  What’s more, I’d expect Russia to offer its own interpretation to the contrary employing the same interpretative framework (not to mention counter-claims of U.S. violations as described in tonight’s story).

All in all, there’s quite a bit here that should be of interest not just to those who care about arms control and nonproliferation, but international law and international relations more generally.  I’d be interested to hear what others think the U.S. claim suggests and how you see things playing out? Comments welcome.

Since the recent al Bahlul en banc decision before the D.C. Circuit, I have been thinking a lot about the Common Law of War. As others have already analyzed in detail (Steve, Peter, Jonathan, Marty & Steve), the D.C. Circuit upheld Bahlul’s conviction for conspiracy but threw out his conviction for material support for terrorism and solicitation. Material support and solicitation are unavailable for pre-2006 conduct because they are neither international crimes nor historically charged before military commissions. Conspiracy, on the other hand, is a different story. While it seems pretty clear that conspiracy is not a stand-alone offense under international law, the government has relied on the argument that conspiracy is historically chargeable before a military commission as part of the “common law of war.”

The exact status of the common law of war theory remains unknown because the court’s majority applied “plain error” review and not de novo review on the merits. Some judges concluded that Bahlul waived his objections by not raising them at trial (when Bahlul was declining legal assistance). For his part, Judge Kavanaugh appeared sympathetic to the common law of war argument, which arguably departs from his previous notes of skepticism regarding the theory in Hamdan II.

Since the common law of war idea is still wide open, I’ve been trying to come to terms with it and articulate precisely why I’ve been uncomfortable with it in the past. Indeed, when I first heard the government’s assertion of this theory, I was deeply skeptical and found it almost outrageous. The law of war is international by definition—it is the same for everyone and that’s the whole point of it. The law of war is based on reciprocity and it makes no sense to think of it as a creature of domestic law.

That being said, I think the issue is more complicated than I initially assumed.  In particular, it is important to note that Lieber himself makes reference to the common law of war in article 13 of the Lieber Code. Also, Richard Baxter, in his famous article on spies and unprivileged belligerency, concludes that acts of belligerency by an unprivileged belligerent simply aren’t violations of international law at all – they are violations of domestic criminal law. That’s absolutely correct. The absence of the privilege means that the unprivileged belligerent cannot exempt himself from the demands of domestic law. That’s something far different from an international crime. Unfortunately, Baxter also says in the preceding sentence that the saboteurs in Ex Parte Quirin were “no doubt” triable under the statutes and “military common law of the captors” – though he never explains what he means by this. Presumably he felt that the saboteurs in Quirin were subject to military commission jurisdiction despite the fact that their crimes were domestic violations, though he never articulates his reasoning. Of course, I don’t want to parse Baxter’s article like it’s gospel; I find there’s too much of that already with people treating semi-authoritative Commentaries like treaties. But I still find it interesting that both Baxter and Lieber used the phrase or something close to it.

So why is it so difficult to understand the common law of war? Here are four possible reasons:

1. We no longer live a common law world. Well not exactly. The U.S. is still part of the common law, in the historical sense, but really the common law doesn’t play the role it once did. It has substantially evolved. Statutes and regulations play a much larger role now – and this applies in almost every field of law. This certainly applies in the criminal law, where even the idea of a common law crime sounds just bizarre to today’s students. It’s just so far removed from how the law operates today.

2. Although state courts in the U.S. continue to evolve the common law in each jurisdiction in subject areas that are not covered by a particular statute (say tort law), this endeavor is temporally removed from its historical roots in common law England. Although the law in each jurisdiction can all be traced back to a common source, the doctrines have been developed in unique and different ways in each court. The common law – as something truly common across jurisdictions – has receded into history.

3. The law of war in general, and the jurisdiction of military commissions in particular, were woefully under-theorized in previous generations. This was certainly true in the Civil War, when other than Ex Parte Milligan as an enduring constraint on military jurisdiction, there was insufficient attention paid to developing a deep theory of military jurisdiction. Famously, Ex Parte Quirin was a rush decision, arguably fast-tracked because the Supreme Court was concerned that the administration might execute the prisoners before a decision was reached – which would have dealt a near-fatal blow to the Supreme Court’s institutional legitimacy and its self-asserted purview, announced in Madison v. Marbury, to say what the law is. It is no surprise that we now look back on Quirin as “not this Court’s finest hour” (Hamdi v. Rumsfeld, Scalia J. dissenting). One way of putting the point is to follow Steve Vladeck and say that the Court has never fully rationalized why military commissions are exempt from the Article III requirement of trial before a regular court. Another way of putting the point is that during the Civil War the concept of military jurisdiction was under-theorized and we are only now playing catch-up.

4. There is something that unites our use of the terms “international law” today with how the term “common law” might have been used in previous generations. This might help explain why there is an international law of war today and a common law of war in the past.  Although they are different, what unites them is a shared participation in a larger legal culture. For international law, the larger legal culture is the international order, with its unique sources for lawmaking (treaties, custom, etc.) and international organizations. For the common law, the larger legal culture is the law that is “common” to many jurisdictions who are all participating in a common legal culture and apply its law together – the “common law.” Although the common law is not the same as international law, it is something larger than pure domestic law, and as such it could, in theory, and historically as well, fulfill some of the demands of reciprocity that the laws of war demand. The problem, of course, is that the common law doesn’t function that way in today’s world. The whole point of the law of war is that it has to be bigger than just domestic law. And maybe the common law in the past was just big enough to support the law of war in some limited sense. Whether that’s enough in today’s world, I really don’t know.

[Rosemary Grey is a PhD Candidate at the Faculty of Arts and Social Sciences, University of New South Wales.]

The case of The Prosecutor v Bosco Ntaganda, which is currently before the International Criminal Court (ICC), is the latest of several cases in the ICC and Special Court for Sierra Leone (SCSL) to address the issue of sexual violence against female child soldiers by members of their own group.

The accused, Ntaganda, is the alleged former commander of the Union des Patriotes Congolais-Forces Patriotiques pour la libération du Congo (UPC-FPLC), an armed group which in 2002 and 2003 was involved in the non-international armed conflict in the Democratic Republic of Congo (DRC).

On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Ntaganda, including charges for the rape and sexual slavery of female child soldiers in the UPC–FPCL by their commanders and fellow soldiers, which the ICC Prosecutor characterized as war crimes under Article 8(2)(e)(vi) of the Rome Statute. This was the first time that Article 8(2)(e)(vi) had been used to prosecute sex crimes committed against child soldiers by members of the same armed group.

I recently discussed the Pre-Trial Chamber’s decision on Beyond The Hague; here I will focus on the parties’ interpretation of Article 8(2)(e)(vi), and highlight some important gender issues raised by this case.
(more…)

Some lawyers at Shearmen & Sterling are no doubt celebrating what may be the largest single arbitration award in history (text of award here). Their client, a shareholder of the expropriated Russian oil company Yukos, has won a $50 billion award against Russia in an investor-state arbitration (seated at the Permanent Court of Arbitration) under the Energy Charter Treaty.   Michael Goldhaber at the American Lawyer has the first and fullest coverage of this historic award.

There are lots of legal battles ahead. Enforcement is going to be challenging, as it always is against sovereign states. And the award has some very interesting observations on legal issues such as the “unclean hands” doctrine under international law.  But for now, this is quite a victory for the plaintiffs to savor and it is already taking a toll on Russia’s stock market.  (And it is a rough few months for the folks over at Cleary Gottlieb, who are also representing Argentina in its unsuccessful battle with its holdout bondholders).

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

Africa

• The Liberian government has closed most of the West African nation’s border crossings and introduced stringent health measures to curb the spread of the deadly Ebola virus that has killed at least 660 people across the region.
• Nigerian Boko Haram militants kidnapped the wife of Cameroon’s vice prime minister and killed at least three people on Sunday in a cross-border attack involving more than 200 assailants in the northern town of Kolofata, Cameroon officials said.

Asia

• China will hold military exercises in southeast coastal areas beginning on Tuesday, the Ministry of National Defence said on Sunday. 
•  The U.S. government urged Pakistan on Friday to prevent displaced Haqqani militants from returning to their traditional sanctuary after a Pakistani military offensive near the Afghanistan border.
• Indian officials indicated late on Wednesday that they would not be able to support the implementation of the WTO’s Trade Facilitation Agreement (TFA) unless they see their concerns on food security addressed, according to multiple media reports.

Europe

• International experts have been forced to abandon their plans to visit the site where the Malaysian airliner crashed because of fighting between pro-Russian rebels and Ukrainian troops in the area. 
• Russia reacted angrily on Saturday to additional sanctions imposed by the European Union over Moscow’s role in the Ukraine crisis, saying they would hamper cooperation on security issues and undermine the fight against terrorism and organized crime.
• Norway closed part of the airspace over its second city Bergen and tightened border checks on Saturday, two days after the country upped security following what it described as a “terror alert”.
• British police have arrested two people in London on suspicion of conspiracy to carry out female genital mutilation (FGM) and placed a young girl in the care of social services, a police statement said on Saturday.
• France is to repatriate the bodies of all 118 people who were aboard an Air Algerie plane that crashed in Mali, as it declared an unofficial three-day period of mourning.

Middle East and Northern Africa

• European nations and the US have called on their citizens to leave Libya as heavy fighting between troops loyal to a renegade general and militias in the eastern city of Benghazi left more than 36 people dead.
• U.S.-Israeli tensions rise as hostilities in Gaza subside.
• Syrian army said on Sunday it recaptured a gas field east of the central city of Homs that was seized by hardline Islamic State fighters earlier this month.
• The UN has sent its first humanitarian aid convoy into rebel-held areas of Syria without government consent on Thursday, as UN chief Ban Ki-moon accused warring parties of denying assistance to millions as a tactic of war.
• Egypt summoned the Turkish charge d’affaires on Saturday for the second time in a month to complain about comments by Prime Minister Tayyip Erdogan deemed insulting to the leadership in Cairo, the Egyptian Foreign Ministry said.

Americas

• A former Venezuelan military intelligence head detained on the Caribbean island of Aruba over U.S accusations of drug-trafficking was released and flew home on Sunday.
• President Barack Obama has urged the leaders of three Central American countries to work with him to stem the flow of child migrants who have surged across the US border, warned that most of them would not be allowed to stay.
• EU and Ecuadorian negotiators have agreed upon terms that will allow Quito to join an existing trade agreement that Brussels has with Colombia and Peru, officials confirmed last week, bringing to a close a prolonged – and sometimes acrimonious – process dating back several years.

Oceania

• The first of 157 asylum-seekers who attempted to enter Australia by boat arrived on the country’s mainland on Sunday, after being held at sea for weeks

UN/Other

• The UN has reported alarming rates of malnutrition in the Somali capital where aid agencies cannot meet the needs of 350,000 people due to insufficient funds, drought and conflict.
• UN aid chiefs have begged donors to increase efforts to stave off a looming famine in South Sudan, where a third of the population are in crisis after months of war.
• The new UN human rights envoy for Myanmar has expressed serious concern about conditions in camps for more than 100,000 mostly minority Muslims displaced by violence led by Buddhist extremists, and has warned that the country’s human rights situation may be deteriorating.
• The UN atomic watchdog IAEA said it needs 1 million euros in extra funding to help pay for its monitoring of a four-month extension of an interim nuclear deal between Iran and six world powers.
• The U.N. civil aviation agency will hold a broad international meeting to discuss airline safety in the industry’s most coordinated response to the downing of a Malaysian airliner, two sources familiar with the matter said on Thursday.