[Mohamed Helal is an Assistant Professor of Law  at the Moritz College of Law & Affiliated Faculty – Mershon Center for International Security Studies, The Ohio State University.]

Even the most cursory scan of the foreign policy and international affairs commentariat in the western world reveals a pervasive sense of uncertainty, unease and apprehension, or even hysteria, about the state of the world. Journals such as Foreign Affairs and Foreign Policy, leading newspapers such as The New York Times, The Washington Post, The Wall Street Journal, magazines like The Atlantic and The New Yorker, and major think tanks such as IISS and Stratfor, have, for several years, been discussing what has been variably dubbed: the crisis of world order, the demise of the liberal world order, the retreat of western liberalism, etc. Whatever the label used to describe the current political moment, the core idea is the same: the political and socio-economic values that the United States and Western Europe articulated and advocated since World War II, and which were globalized, institutionalized, and thought to have achieved a resounding victory in 1989, are now being challenged and dismantled.

For many writers, this crisis or demise of the liberal world order is lamentable. This order, they argue, brought relative stability by avoiding a major confrontation between the Great Powers, promoted increased volumes of world trade which lifted billions of people from poverty, and advanced democratic governance leading to greater protections of human rights and human dignity. For others, the liberal world order, was neither liberal nor orderly. Rather, the past seven decades are described as having been marred by ideological battles, nuclear standoff, and proxy wars between the Great Powers and a post-Cold War era marked by state failure, genocidal civil conflicts, and terrorism combined with American imperial wars, neoliberal economic and commercial expansion, and rampant inequality within and between countries.

However one views the path of history since World War II and whatever ones’ views about the state of the world, one thing I have noticed is that we – the invisible college of international lawyers – are largely absent from this conversation. That, I believe, is unfortunate. Of course, as lawyers, our primary preoccupation is with the description, elucidation, development, and critique of the rules and institutions of international law. It is imperative, however, as we engage in academic and policy debates about the doctrinal content and institutional infrastructure of our field, that we consider the broader political and strategic climate within which international law operates. We must neither retreat nor exile ourselves to what Felix Cohen so memorably called the “heaven of legal concepts.” International lawyers could make valuable contributions to debates about the so-called crisis of world order and would add an important voice to ongoing discussions about the principles and values that ought to govern the world in the future. After all, international law is the lingua franca of international relations, the instrument of justification and the standard of critique of state policy, and the medium through which much of international politics occurs.

Our participation in debates about the future of world order is also necessary because the content of international law, its institutional forms, and its trajectory will be determined by the outcome of these debates. Law, all law, is the continuation of politics by other means. This is especially true with international law, where the layer of recognized doctrine, settled precedent, accepted practice, and institutionalized norms is thinner and less evolved than entrenched domestic legal systems. Therefore, major political developments, such as realignments in the balance of power that lead to significant revisions in the values, principles, and norms underlying the international system, invariably reshape the content of international law and redirect its orientation. In short, the future of international law is inextricably linked to the future of world order.

Thinking about the past, present, and future of world order will generate a broad range of questions for international lawyers. Among those are definitional questions such as: What does the term “liberal” mean in the context of international law and what do it mean to speak of a “world order”? Other questions are of the historical/genealogy-of-ideas type such as: When and how did the ideas associated with the “liberal world order” emerge and how did these ideas shape international law in the 20^th century? Other questions could be critical in nature: Was the post-World War II order truly liberal? What were the politics underlying the ostensible or declared liberalism of the post-World War II order? (I explore some of these question in a forthcoming article titled: The Crisis of World Order and the Constitutive Regime of the International System).

Numerous scholars of international law, global governance, international relations, and history have investigated these questions and generated a valuable body of literature that interrogates the historical origins and political and ideological commitments of our field. (Mark Mazower’s Governing The World is an especially enlightening contribution). However, few, if any, have examined these questions in the context of discussions on the crisis of world order. Little, if any, has been written by international lawyers about how international law will be affected by recent political developments all of which portend deep transformations in the international system (a notable exception is this article by William Burke-White). These developments include China’s reemergence as a global power, Russia’s resurgence, America’s flirtation with isolationism, the continued spread of Euro-skepticism, populism and nativism in the West, the global retreat of democracy, anti-immigrant sentiments in western and non-western countries, the rising specter of trade wars, and decades of secular stagnation in many western economies. Viewed in isolation, none of these trends or phenomena is unprecedented. What makes our current political moment unique, however, is the combination and confluence of these developments within a short period, which is why we are living in a period of systemic instability and uncertainty.

It is impossible to address or even comment on all of these developments in a blog post or even in a law review article. However, in my view, the most significant development for the future of international law is the ongoing shift in the global balance of power. For centuries, the North Atlantic region has been the center of global material, economic, and ideational power. As Opinio Juris readers are well aware, international law as we know it today is a European innovation that was exported to and imposed upon the rest of humanity. Western (or western-educated) jurists were (and remain) the leading voices in designing the rules of international law and constructing the institutions through which it is implemented. If current political and economic trends continue, however, we will gradually move towards a multipolar world (or, according to some commentators, a non-polar world) in which power is distributed among multiple power centers, the most significant of which are South and East Asia, in addition to the North Atlantic region. I cannot fully predict the impact of these developments on international law. However, because the law is, ultimately, an institution and child of power, as the topography of global power shifts, so will the ideological orientation and doctrinal content of the norms that govern international relations.

“The ultimate problem of our day,” Henry Kissinger has written, is “the crisis in the concept of world order.” It is imperative for international lawyers to engage in debates on the nature and scope of this problem and to participate in the articulation of future visions of world order. This is not a question of mere academic interest; this is a matter of professional responsibility. As students, scholars, and practitioners of international law, we (and, I realize, “we” are a lawyerly community of immense ideological diversity) are duty-bound to consider how the rules, tools, ideas, and institutions at our disposal can be employed, reformed, and reimagined to minimize the potential for conflict and maximize the possibilities of realizing a modicum of justice in an uncertain world.

[Alonso Gurmendi Dunkelberg is Professor of International Law at Universidad del Pacífico, in Peru.]

I want to draw readers’ attention to a recent decision of the Brazilian Tribunal Superior Eleitoral (TSE), Brazil’s top electoral court, regarding the mandatory nature of UN treaty body decisions. The case centers on former President Luis Inazio da Silva’s (better known as “Lula”) disqualification from the 2018 Brazilian Presidential elections. Lula is currently serving a 12-year sentence for corruption charges in the context of “Operação Lava Jato” (Operation Car Wash, in Portuguese) the largest corruption scandal in Latin America’s history.

Lula has long held that his (controversial) trial and conviction are part of a political plot by his enemies to prevent him from running, particularly considering he holds a comfortable lead in the polls, even after his incarceration. In 2016, he petitioned the UN Human Rights Committee to rule on due process violations. One important fact of Lula’s situation is that even though he has been convicted on appeal, he has not yet exhausted all available remedies to challenge his case before Brazil’s judiciary. In Lula’s view, his conviction is a violation of his right to be presumed innocent for the duration of his trial.

On August 17, the UN Human Rights Committee issued provisional measures noting a possible irreparable harm to Lula’s right to participate in the October elections. The Committee requested Brazil “not to prevent [Lula] from standing for election at the 2018 presidential elections, until the pending applications for review of his conviction have been completed in fair judicial proceedings and the conviction has become final”. Lula used these provisional measures to demand his registration as candidate, even when Brazil’s “Lei da Ficha Limpa” (or “Clean Slate Law”) bars convicted individuals from running for office, specifically arguing that Brazil was legally bound to comply with the Committee’s decision.

The deliberations at the TSE came barely 15 days after the Spanish Supreme Court issued its groundbreaking decision holding that UN treaty body decisions are binding on Spain. The Brazilian TSE decision, however, markedly disagreed. Presiding Judge Barroso held that the Human Rights Committee is an “administrative organ” whose recommendations “lack binding effect”. He also argued that the specific decision on provisional measures lacks “procedural requirements” that make it impossible to comply. After expanding on several unconvincing arguments (going as far as to citing the European Human Rights System’s margin of appreciation doctrine!), Barroso complained that the provisional measures had been issued without explaining the imminent and irreparable danger requirements. In particular, Barroso objected to the fact that the Committee’s final decision would –by its own admission- only occur after the elections had taken place, potentially causing its effects to be irreversible, rather than interim.

Barroso’s position was shared by 5 other judges, bringing the tally to a one-sided 6-1 result against complying with the Committee’s measures (click here for the press release summarizing each judges’ vote, in Portuguese). The lone dissent, by Judge Luiz Edson Fachin, placed particular importance in General Comment No. 33, where the Committee affirmed the binding nature of its own decisions. He recognizes that General Comment No. 33 was strongly opposed by Member States; a wide majority of which stated that Committee rulings were not binding. According to Judge Fachin, however:

“The reasons presented by States are relevant, but the criteria by which a treaty must be interpreted can only be, in the terms of Article 31 of the Vienna Convention, ‘the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Therefore, it is the Committee’s conclusions in its own General Comment that is most in line with the treaty’s object, at least as far as provisional measures are concerned”.

In his view, it would not make sense to allow the Committee to issue decisions on individual cases if the State is simply free to ignore them. “[N]othing can be more contradictory” – he says – “than to grant the Committee a power that can be unilaterally disregarded”. Just recently, in a letter addressed to Lula’s lawyers, dated September 10^th, the Human Rights Committee agreed, stating that “failure to implement such interim or provisional measures is incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol”.

The case has now been sent to the Supremo Tribunal Federal (STF), Brazil’s Supreme Court, for final decision. By Constitutional provision, three TSE judges also sit at the STF, including judges Barroso and Fachin. Considering the STF’s usual reticence to give effect to human rights judgments, it is likely that it will agree with the TSE.

There is still a long road ahead when it comes to States accepting the binding nature of UN treaty body decisions, as the Brazilian example shows, and there is constructive criticism to be made on both Brazil’s and the Committee’s actions. For instance, there was never any concrete attempt by the Brazilian Executive to engage with the Committee itself. The Brazilian Ministry of Foreign Affairs’ press release addressing the provisional measures was completely dismissive, stating that “the conclusions of the Committee have advisory nature and do not possess mandatory legal effect”. Brazil could have sent a written submission to the Committee expanding on its concerns, asking it to lift the measures. In not doing so, it delegitimized the Committee’s role as the decider of its own case-law.

The Committee itself, however, also made mistakes. The original communication of provisional measures is a scant two-paragraph long, one-page document, that never evaluates the reasoning behind the decision. This was misguided, particularly considering the potential game-changing consequences for Brazil’s entire political system.

This is not a new problem. There has been consistent discussion of the way UN treaty bodies handle these individual complaints. In a 2012 article at EJIL Talk!, Professor Joanna Harrington already warned that the “lack of support for interim measures requests also reveals a need for efforts at the international level (…) to tighten the grounds for issuing such requests”. Specifically, she noted “the concern that some have used an interim measures application as a last-ditch effort to stall for extra time or as an act of grandstanding to obtain publicity for a cause” – exactly what Lula’s political rivals maintain. To avoid such suspicions, UN bodies need to establish clear guidelines for granting these measures, including a requirement of appending the full reasoning of each decision. This is of course not to say that the result at the TSE would have been different had there been more analysis by the Committee, but it could have potentially robbed the majority opinion of one of its more reasonable complaints.

In short, this particular episode in Brazil is evidence that while the Spanish precedent is an encouraging development, there is still work to be done before UN treaty body opinions achieve universal recognition as binding legal decisions.

[Adam Irish is an Assistant Professor of Political Science at California State University, Chico.]

President Donald Trump’s pronouncements that the United States needs to develop a “Space Force” were initially met with derision by national security establishment. In a letter to lawmakers, Secretary of Defense, James Mattis, wrote that he did not “wish to add a separate service that would likely present a narrower and even parochial approach to space operations.”

However, three Space Policy Directives, one speech by the Vice President, and one report by the Department of Defense (DoD) later, a US Space Force seems poised to move from campaign rhetoric to bureaucratic reality. Even General Mattis has changed his position.

As policy makers contemplate a US Space Force, they should keep in mind US commitment to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (The Outer Space Treaty). A US Space Force could, and likely would, run afoul of international space law. In addition to motivating reciprocal action by other states, a US Space Force would almost certainly endanger the peaceful use of space status quo enshrined in The Outer Space Treaty.

Goals, Justification, Structure, and Uses of a US Space Force

The Trump administration’s 2018 National Space Strategy (NSS) reframes the space in “America First” terms. It diverges from both the 2010 NSS and the 2011 DoD Report, both of which frame space in terms of international cooperation and commercial importance. After calling for peace through strength, the 2018 NSS asserts that “our competitors and adversaries have turned space into a warfighting domain” and identifies four pillars for future space policy:

• Transform to more resilient space architectures,
• Strengthen deterrence and warfighting options,
• Improve foundational capabilities, structure, and processes, and
• Foster conducive domestic and international environments for development.

Despite some early resistance by the Air Force and DoD, the 2018 DoD report falls in line with the 2018 NSS, even advancing two objectives of its own:

• “Protecting U.S. vital interests in space – ensure unfettered access to, and freedom to operate in space, in order to advance America’s security, economic prosperity, and scientific knowledge; and
• Deploy next-generation capabilities to support the warfighter” (DoD 2018, 5).

The 2018 DoD report drops the “congested, contested, and competitive” justification for US space leadership in favor of a focus on the power of rival states to affect US capabilities during times of conflict. Singling out China and Russia, the DoD pays special attention Russian directed-energy weapons the 2007 Chinese Anti-Satellite (ASAT) test, the later of which created more than 3,000 pieces of space debris. Beyond deterring attacks on US commercial satellites, the 2018 DoD report expresses concern over the “counterspace functionality” of such weapons. Specifically, that during a conflict, ASAT weapons could be used to reduce US military effectiveness by interrupting satellite communications.

The proposed structure for a US Space Force includes a Space Operations Force operating under the Space Command of a four-star general or flag officer, along with an economically and technologically focused Space Development Agency, as well as Service and Support department. This Space Operations Force poses legal complications under current international space law because it will be tasked with providing “human capital needed to develop, field, and integrate space capabilities into multi-domain warfighting” (DoD 2018, 10). In short, training and fielding a military in space.

The warfighting emphasis in the 2018 DoD report does not appear to be solely the result of DoD jargon. President Trump’s own explanation of the ends of a Space Force strikes an imperial note. At recent campaign rally, President Trump is quoted as saying, “It is not enough to merely have an American presence in space. We must have American dominance in space.” Several weeks later, when speaking at the Pentagon, Vice President Pence backed the President’s view, asserting, “…our adversaries have transformed space into a warfighting domain already. And the US will not shrink from the challenge.”

The pivot to use of force becomes clear when you compare the 2011 and 2018 DoD reports. The former report advocates for interagency cooperation while the latter calls for military leadership of a new military branch. Perhaps most striking is the 2018 DoD report’s repeated references (some two dozen) to the “battlefield” of space or “warfighting” in space. Meanwhile, neither word appears in the 2011 DoD report. As outlined, the US Space force seems destined to be used to project US power rather than explore space.

US Space Force Legality Under the Outer Space Treaty

As noted in prior writing on space law (Lee (2003); Bourbonniere and Lee (2007)), Article IV of the Outer Space Treaty specifies that “nuclear weapons or any other kinds of weapons of mass destruction” shall not be placed in orbit, installed in space, or constructed on celestial bodies. Thus, as written, the treaty does not prohibit conventional weaponry (e.g. missiles) from being placed aboard satellites (or in outer space) or states using those weapons in self-defense. However, any non-defensive use of such weaponry is also likely to violate international laws of armed conflict. And any debris generated would likely to trigger liability under both Articles VI and VII of the Outer Space Treaty as well as the 1972 Space Liability Convention should it cause or otherwise create the risk of damage to the property of other states.

The Trump administration’s Space Force proposal is a riskier proposal though. Paragraph two of Article IV of the Outer Space Treaty, reads:

“The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon or other celestial bodies shall also not be prohibited.” (Art. 4, Para. 2).

Subject to an ongoing interpretative dispute between the US and other states, “peaceful purposes” does not rule out military craft or personnel acting peacefully in outer space; scientific research by military personnel is even singled out for protection. Rather, the wording of Article IV makes specific reference to “the Moon and celestial bodies” and effectively demilitarizes those bodies from the building of bases and fortifications, testing of weapons, or conducting of military maneuvers. Thus, any of the future military infrastructure built on these bodes would be in violation of existing law. As written the treaty only leaves open the question of a space-based military. A US Space Force confined by these prohibitions would be limited to operation in the space between celestial bodies, presumably in orbit aboard space stations or on ships located at Lagrange points in space, i.e. locations with unobstructed exposure to the sun for a near constant supply of solar power.

Even operating within the limited environment of outer space, a US Space Force tasked with securing US interests and space access, risks violating the broader restrictions of the Outer Space Treaty. Specifically, Article I that states “space exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries,” and Article II’s restriction that outer space and celestial bodies are “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

As with legal limitations faced by the US Navy on the high seas, a US Space Force that dominates space by imposing regulatory authority on transit or, through US occupation of space, limits the access of other states to outer space would doubtless provoke legal challenges. Yet, as the comments above indicate, that appears to be exactly the intended purpose of a US Space Force – to dominate and control space for the benefit of US national security and commerce. How this dominance is realized will matter for the US Space Force. The use of force laws extends to self-defense or UN sanctioned actions. Thus, any threatening, preemptive, or forceful behavior without provocation would still violate international law. Lastly, even if nary a shot is fired, under Article VII and IX of the Outer Space Treaty, collisions, pollution, and space debris from a US Space Force stationed in orbit or at a Lagrange point would all expose the US to legal liability should any of these items affect the well-being of other states.

In sum, there exists a small legal window in existing international space law to realize a US Space Force. Much of the dominance and warfighting language being thrown around now would undoubtedly lead the US into legally treacherous waters. Beyond a basic capacity for self-defense, the view through that small legal window is less Star Wars and more Star Trek.

[Andrea Raab is a graduate of the University of Oxford and has worked at Women’s Initiatives for Gender Justice as well as the UN International Residual Mechanism for Criminal Tribunals. Siobhan Hobbs is the Legal and Programme Director at Women’s Initiatives for Gender Justice.]

The opening of the Al Hassan case before the ICC earlier this year has the potential to re-ignite the debate surrounding the appropriate legal characterisation of forced relationships. Discourse has thus far centred on whether forced relationships are best qualified as sexual slavery, forced marriage as an other inhumane act, enslavement, or whether the Rome Statute ought to be amended to include a distinct crime of forced marriage. Yet, what has not been sufficiently explored in these discussions is the utility of, and tools available for, instilling survivors’ perspectives into this legal categorisation of forced relationships. 

The qualification of forced relationships as slavery or, somewhat problematically, forced marriage may have profound impacts on survivors, especially if the superimposed crime label does not match the survivors’ own perceptions, which may lead survivors to consider that justice was not rendered and that they cannot identify with the judgment. This, in turn, may obstruct their healing and recovery from the wide array of physical, mental, and emotional harms and consequences flowing from conflict-related forced relationships. These impacts may increase over time and be most severe for survivors when trying to reintegrate or return to a normal life in society. The situation of Ugandan survivors epitomises this: considered as having “liaised with the enemy” as a result of the domestic nature of the tasks the survivors were required to perform, the exclusivity of the forced relationship with the perpetrator, as well as the perpetrators’ perception of the women as “wives” (see eg Ongwen CoC Decision, para 111), some survivors and their children from the forced relationship have been ostracised and stigmatised by their communities. As such, some survivors have been left to recover and provide for children born during the forced relationship on their own, and are often considered ineligible for marriage or face divorce from their pre-conflict marriage. The categorisation and realities of forced relationships further have profound impacts on the lives of the children from forced relationships: In Uganda, they cannot be registered due to lack documentation of the “father”, which exacerbates inaccessibility and ineligibility to services and rights such as higher education and land rights. These direct and indirect impacts on children can lead to transgenerational harm and aggravated inequality. In situations like these, conflict-related forced relationships thus perpetuate structural gender inequalities, compounding patriarchal societal norms and a conservative construction of a woman’s roles in society and the home.

By contrast, and based on a perception of victimisation by sexual slavery, Baba Sheik, the senior religious leader of the Yazidis, has welcomed survivors back into the community with honour. This embrace seems to be propelled by ISIS’s characterisation and treatment of the captured Yazidi women and girls as slaves and chattel, including the repeated selling of female captives among the group’s fighters. Moreover, the assaults on women and girls are seen by the Yazidis as acts of violence against the group in furtherance of a strategy of genocide, rather than against females as individuals alone. As Nadia Murad indicates, many survivors struggle to reconcile their experiences with the tenets of the Yazidi religion, which prohibits intercourse before marriage, and prescribes that Yazidis may only enter into relationships with other Yazidis. As a result, the categorisation of the forced relationships as slavery, and the connotations of involuntariness and coercion attaching to the notion of slavery, may also play an important role in individual and the community’s recovery processes, and deviating from it may prove detrimental.

Beyond the impacts on the survivors themselves, deviating from the survivors’ views may also negatively affect reconciliation efforts, as it may leave survivors and their communities to consider that these harms remained insufficiently addressed, potentially inhibiting peace processes and/ or preventing full participation in peace processes leading to festering frictions between groups. Moreover, bypassing survivors and administering justice removed from the survivor’s realities may finally also jeopardise the Court’s own legitimacy in leaving its wider audience to ask who justice is administered for, and whether the Court renders justice in a manner contributing to reconciliation.

International jurisprudence, recent and dated alike, affords the flexibility necessary to transpose and incorporate survivors’ perceptions into the legal characterisation of forced relationships, holding that forced relationships may come within the ambit of both the crimes of slavery and other inhumane acts, depending on the circumstances.

With the notable absence of prosecutions before the ICTR despite reports of forced relationships during the Rwandan genocide, the SCSL became the first international criminal tribunal to consider forced relationships. The Trial Chamber in Brima et al. by majority held that forced relationships fell within the scope of the crime of sexual slavery, reasoning, inter alia, that “[…] the use of the term “wife” by the perpetrator in reference to the victim is indicative of the intent of the perpetrator to exercise ownership over the victim, and not an intent to assume a marital or quasi-marital status with the victim in the sense of establishing mutual obligations inherent in a husband wife relationship” (para 711). The Appeals Chamber overturned the Trial Judgment in this respect, holding forced relationships in Sierra Leone came within the ambit of the crime of other inhumane acts, as victims were forced into a conjugal association not of a predominantly sexual nature (paras 187-196). The Appeals Chamber did not, however, exclude that in different circumstances, forced relationships may give rise to sexual slavery.

The ICC has adopted this flexible approach: In Katanga and Ngudjolo, the Pre-Trial Chamber held that “sexual slavery also encompasses situations where women and girls are forced into ‘marriage’, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors” (para 431). The Pre-Trial Chamber in Ongwen considered that forced marriage may per se come within the ambit of the crime of “other inhumane acts”, and is hence distinct from sexual slavery (paras 91-95). The Judges did not, however, exclude that forced marriage may also give rise to sexual slavery, depending on the circumstances. Rather, the Pre-Trial Chamber found that forced relationships in Uganda gave rise to both crimes (see paras 116-119).

Recent atrocities in Mali bring the issue of forced marriages again before ICC. In Timbuktu, as the town was under the control of two fundamentalist Islamic groups, Ansar Dine and Al Qaeda in the Islamic Maghreb, between January 2012 and April 2013, women and girls were subjected to a veritable policy of forced relationships, referred to as “marriages” by the groups. UN reports on the situation in Mali at the time were replete with cruel details of forced relationships, describing how women and girls were “often ‘married’ to several rebels in camps, where they are gang-raped every night and then abandoned after a swift divorce.” In the arrest warrant for Al Hassan issued in March 2018, a Pre-Trial Chamber considered that forced relationships in this context gave rise to both forced marriage as “other inhumane act” and sexual slavery (para 9).

Going forward, this flexibility ought to be built on and utilised to factor survivors’ perspectives into the legal characterisation of forced relationships. The assessment of the circumstances giving rise to either the crime of other inhumane acts or sexual slavery has thus far been characterised by a perpetrator-centric approach. In Brima et al., the Trial Chamber analysed the use of the term “forced wife” by the perpetrator, without expressly considering the survivors’ stance. In establishing the elements of the crime of other inhumane acts, the Appeals Chamber noted that being labelled a “forced wife” by perpetrators subjected survivors to mental trauma (para 193), but did not contemplate any long-term consequences of their judicial determination to the same effect. Along similar lines, the ICC found the “imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s ‘wife’” determinative (Ongwen CoC para 93), rather than the survivors’ perceptions. That, as outlined above, survivors’ perceptions often appear to be informed by the perpetrators’ views does not render circumventing survivors’ agency defensible: not only may their perceptions, and the underlying reasoning change over time, but it is arguably unprincipled to disregard survivors’ views on that basis.

As judges are generally bound by the confines of the indictment, the Prosecution is ascribed a key role in engendering a survivor-centric approach to justice, and instilling survivors’ perceptions into the legal process—and prosecutorial discretion provides it with the necessary tools to do so. In the first place, the Prosecution should adduce evidence for and initially charge all relevant crimes. While we have seen this multiple charging both in Ongwen and thus far in Al Hassan, it is paramount that the Prosecution go even further and allow its prosecutorial strategy to be guided by survivors’ perceptions and agency during the trial: it ought to accommodate survivors’ perspectives as necessary by dropping charges not, or no longer, reflecting their perceptions.

As cumulative charging has been practiced before and endorsed by other international tribunals (see the seminal Celebici judgment, para 400), such approach does not place any additional burden on the defence. It rather paves the way to administering survivor-centric justice, responsive to the realities facing survivors, and cognisant of the broader impacts and effects of international criminal justice.

[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs.]

Monday, at the Federalist Society, National Security Adviser John Bolton delivered a major foreign policy address, devoted almost entirely to attacking the International Criminal Court, a court established to prosecute the most egregious crimes of concern to the international community. At a time when the US does indeed face many national security challenges, including North Korean nuclear weapons development, the topic was in itself an odd choice, but consistent with Bolton’s earlier preoccupation with the ICC during the George W. Bush Administration.

Many of Bolton’s arguments were a re-hash of those early US attacks on the Court during the Bush Administration, and a repeat of earlier flawed arguments that a foreign institution such as the ICC may not exercise jurisdiction over US nationals. I would like to dismiss Bolton’s remarks as “unhinged” and “ridiculous sabre-rattling” as Kevin Jon Heller has, but here in the US, alas, there is a segment of the public his speech will appeal to, so it is important to address the arguments, particularly the threats made against ICC personnel and others.

Most Opinio Juris readers will know the history that under the Bush Administration, the US engaged in a multi-pronged attack on the International Criminal Court, led by John Bolton. The US appears to be returning to this approach. It consisted of attempting to withdraw the US signature from the ICC’s Rome Statute, passing the so-called “American Servicemembers Protection Act” that contained a variety of anti-ICC measures, including standing authorization to liberate American’s from ICC custody (which would involve invading the ICC’s detention facility in The Hague), as well as obtaining over 100 bilateral immunity agreements by which countries agreed never to surrender Americans to the ICC, and, for two years, under Security Council resolutions 1422 and 1487, rendering peacekeepers from non-ICC States Party immune from ICC prosecution.

By most accounts, these measures backfired. When the US threatened states that they needed to enter into these immunity agreements (which Bolton refers to in his speech as “one of [his] proudest achievements”), various states resisted, and rather than bending to US threats of losing military assistance, instead turned to China to receive that assistance. This is then an odd example for Bolton to invoke proudly as it had the net effect of increasing China’s sphere of influence. Insisting on peacekeeper immunity led other states to questions why nationals of any country should be above the rule of law, and the measures were not renewed by the Security Council. All in all, most states saw this approach for what it was—bully tactics against a judicial institution. These measures did not help protect the US, but damaged its reputation internationally and US interactions and credibility with US allies, including European allies who are generally staunch supporters of the ICC.

The argument that a foreign institution cannot exercise jurisdiction over Americans absent US consent is of course deeply flawed, and John Bolton would know this. If an American commits murder in Paris, he or she may be tried under the French legal system. Under terrorism statutes, when a country (e.g. the US) tries terrorist for crimes committed abroad, the US don’t seek permission from the country of nationality. For example, in conducting prosecutions at Guantanamo, the US didn’t ask permission of Afghanistan, Saudi Arabia, Yemen or any other foreign country – nor does the US do so when conducting terrorism prosecutions in US federal courts. The ICC’s jurisdiction over crimes by US nationals in Afghanistan is based on Afghanistan having ratified the ICC’s Rome Statute, which, under Rome Statute Article 12, created ICC jurisdiction over genocide, crimes against humanity or war crimes committed by Afghan nationals and crimes committed on Afghan territory; as to crimes in Afghanistan, it is worth noting that the ICC is investigating exceedingly horrific and massive crimes by the Taliban, as well as crimes by Afghan forces, so is by no means singling out US nationals.

But, alas, Bolton’s speech is not only rehashing old arguments, but contains a new threat towards ICC personnel, states and companies (i.e., NGOs) that assist any case involving US nationals or if a situation involving Israel or “other U.S. allies” proceeds before the Court:

Bolton states:

If the Court comes after us, Israel or other U.S. allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers’ Protection Act and our other legal authorities: . . .

We will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.

So, added to the US travel ban will be ICC officials trying to implement the rule of law? And ICC judges and prosecutors are threatened with having assets frozen and being prosecuted? And any “company” (e.g., NGO) or state that assists an investigation involving US nationals can be dealt with similarly? Of course, the ICC Prosecutor and ICC President have to regularly travel to the US to report to the UN Security Council on the Libya and Darfur situations referred by the Council to the ICC. That could prove difficult given these new threats.

Such threats of extra-legal measures appear aimed at trying to subvert a judicial process and stifle the work of US-based NGOs. The Prosecutor’s request to move the Afghanistan situation from the initial Preliminary Examination phase to the Investigation phase is pending. And, whereas Bolton complains of the Prosecutor’s “unaccountable powers,” in fact, this decision regarding the Afghanistan situation will not be made by the Prosecutor, but by the Judges. The ICC judges are, in this way, exactly the “check” that Bolton claims does not exist; other checks and balances are similarly built into the Rome Statute at various stages of proceedings.

Finally, it is not lost, particularly on an American audience, that Bolton made his speech one day shy of 9/11. But it is wrong to link his speech to that horrific day and all those who tragically died. His speech is not about protecting US national security, but ensuring that any American nationals (CIA or Department of Defense) implicated in torture in Afghanistan are above the rule of law. Such a policy of “exceptionalism” actually works against US interests.

As I wrote on Opinio Juris last fall, the US has a very easy solution to the ICC Afghanistan inquiry and that is to conduct “complementarity”—that is, to prosecute any cases itself, thereby divesting the ICC of jurisdiction. The ICC is a court of last resort that only acts when the domestic legal system fails to do so. Bolton states that the US has “the most robust system of investigation, accountability and transparency in the world.” In that case, the US should have no trouble prosecuting these cases itself. I am not advocating exposing Americans to ICC proceedings; if the US can prosecute these cases domestically (which it can) then it should do so. But the years of delay that have occurred thus far suggest the US has no interest in this approach. US prosecutions would clearly be the best approach for solving this situation, and avoiding the US/ICC showdown that Bolton threatens, and which will benefit neither the US nor the ICC.

To be completely clear: the US is made safe by following the rule of law. We are not made safe by banning ICC Prosecutor (Fatou Bensouda) or any of the ICC judges from traveling to the US, nor by threatening US-based NGOs, or other states, nor by ensuring American nationals are above the rule of law. These bully tactics do not well-serve the US, and will be seen for what they are.

[Steven Kay QC is Head of Chambers at 9 Bedford Row. He has appeared as leading counsel in many significant international criminal trials (Tadic, Milosevic, Musema, Gotovina, Kenyatta) – and represented heads of state and leading figures at UN tribunals and the International Criminal Court (ICC). Joshua Kern is a barrister at 9 Bedford Row. He specialises in complex criminal cases with an emphasis on international and transnational criminal law. He has defended clients at the ICC (Kenyatta), the Extraordinary Chambers in the Courts of Cambodia (ECCC) (Ieng Sary), and the International Criminal Tribunal for the former Yugoslavia (ICTY) (Prlic).]

On the eve of 9/11, John Bolton affirmed the Trump Administration’s intention to rely on the full force, and more, of the American Servicemembers’ Protection Act 2002 to shield US and its allied nationals from ICC jurisdiction. Given the ferocity of his attack (and as foreshadowed in the discussion following Kevin’s contribution here), the question of whether the ICC may exercise its jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again. Dapo Akande’s landmark analysis has, to date, broadly been considered dispositive. But perhaps the question is worth revisiting considering Mr Bolton’s remarks. 

Jurisdiction over nationals of non-states parties absent a Security Council referral

In its Request to investigate the Situation in Afghanistan (“Request”) the OTP drew heavily on Dapo Akande in stating in its clearest terms to date its reasons for finding that states parties are not prohibited from delegating their territorial jurisdiction by treaty. As a result, the OTP argues that the Court may exercise jurisdiction over nationals of non-states parties even in the absence of a Security Council referral.

In its Request, the OTP does not expressly distinguish between prescriptive, adjudicatory, and enforcement jurisdiction and asserts that:

“the conclusion of an agreement pursuant to article 98 of the Statute between the Government of Afghanistan and a third State does not impact on the exercise of jurisdiction by the Court… Indeed, the very purpose of article 98 is to regulate how the Court’s exercise of jurisdiction should be enforced.”

While this statement may be accurate with respect to exercise of the Court’s prescriptive jurisdiction, it fails to acknowledge that the exercise of enforcement jurisdiction must be permitted under customary international law too. This because, although international law poses no limits on a state’s jurisdiction to prescribe rules absent a prohibitive rule to the contrary, pursuant to Lotus states are precluded from exercising their enforcement jurisdiction in another state’s territory absent a permissive rule…

[William S. Dodge, Anthea Roberts, and Paul B. Stephan served as co-reporters for the jurisdictional sections of the Restatement (Fourth) of Foreign Relations Law. They write here in their personal capacities.]

In a recent post, Dean Austen Parrish questions whether the soon-to-be-published Restatement (Fourth) of Foreign Relations Law is “remaking international law” when it says that “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” As reporters for Restatement (Fourth), we thought it might be useful to explain why this statement fairly reflects customary international law today.

We recognize that, once one gets past first principles, some controversy exists over the correct methodology for ascertaining international legal obligations. Two of us have written about the phenomenon of “comparative international law,” although we are not prepared to say that our disagreement with Dean Parrish is evidence for this. In our work as reporters for the Restatement (Fourth), we followed the approach for identifying customary international law articulated by the International Court of Justice (ICJ) and adopted by the International Law Commission (ILC).

Customary international law results from a general and consistent practice of states followed out of a sense of international legal right or obligation. This is the approach the ICJ has repeatedly applied in areas ranging from the law of the sea (North Sea Continental Shelf) to the jurisdictional immunities of states (Jurisdictional Immunities of the State). It is also the approach that the International Law Commission has adopted in its project on the Identification of Customary International Law. States often limit their jurisdiction to a greater extent than international law requires. But unless such limits result from a sense of international legal obligation, they reflect international comity rather than customary international law.

One of the objectives of the Restatement (Fourth) is to clarify distinctions among different kinds of jurisdiction under international law. Customary international law imposes different limits on a state’s exercise of jurisdiction, depending on what kind of jurisdiction is at issue. State practice today distinguishes among jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce. Dean Parrish seems to resist this basic point, arguing that “[p]ublic international law constrains state action, regardless of the form in which the power is exercised.” But the distinctions among different categories of jurisdiction are not new. In The Lotus (pp. 18-19), the Permanent Court of International Justice recognized that jurisdiction to enforce was strictly territorial but that the same was not true of jurisdiction to prescribe and jurisdiction to adjudicate. The rules of customary international law depend on state practice and opinio juris with respect to each category of jurisdiction.

Customary international law evolves as state practice and opinio juris change. Today, state practice and opinio juris demonstrate that jurisdiction to enforce remains strictly territorial, a rule restated in Section 432 of the Restatement (Fourth). With respect to jurisdiction to prescribe, state practice and opinio juris have evolved (contrary to what The Lotus suggested) to require a “genuine connection” with the state seeking to regulate, a rule restated in Section 407 of the Restatement (Fourth). Typically, this genuine connection is found in one or more of the recognized bases for prescriptive jurisdiction—territory, effects, active personality, passive personality, the protective principle, and universal jurisdiction (Sections 408-413).

But state practice and opinio juris today do not treat jurisdiction to adjudicate the same as jurisdiction to prescribe or jurisdiction to enforce. Preliminarily, we should make clear that customary international law does impose some limits on jurisdiction to adjudicate in the form of various immunities from suit. In Jurisdictional Immunities, for example, the ICJ held that states are immune from suit in the courts of another state from claims based on the activities of armed forces during armed combat. (Parenthetically, we note that the ICJ applied different rules with respect to immunity from jurisdiction to enforce, again demonstrating that customary international law treats different kinds of jurisdiction differently.)

But the question that concerns Dean Parrish is whether customary international law limits states in the exercise of personal jurisdiction, apart from questions of immunity. To be clear, this is separate question from whether a state has jurisdiction to prescribe rules to govern a particular dispute and from whether a state may exercise measures to compel compliance with judicial orders.

State practice and opinio juris indicate that customary international law does not limit personal jurisdiction. Many states exercise personal jurisdiction on bases that other states consider exorbitant. The examples typically cited are the French practice of exercising personal jurisdiction based on the nationality of the plaintiff, the German practice of exercising personal jurisdiction based on property unrelated to the suit, and the U.S. practice—followed in some other common-law countries as well—of exercising personal jurisdiction based on service of process while the defendant is temporarily present (“tag” jurisdiction). States have not, however, protested such exercises of personal jurisdiction as violations of customary international law. Instead, states have simply refused to recognize and enforce the judgments rendered in such cases. In other words, they have treated exorbitant jurisdiction as a reason not to extend international comity rather than as a violation of international law.

The practice of the European Union is particularly revealing on this point. Under the Brussels I Regulation (Recast), member states are prohibited from exercising personal jurisdiction on exorbitant bases over persons domiciled in other member states (Article 5(2)). But member states are expressly permitted to use such exorbitant bases against defendants domiciled elsewhere (Article 6(2)). What is more, member states are required to recognize and enforce the judgments of other members states, including those rendered on exorbitant bases of jurisdiction against non-EU defendants (Article 36(1)). If it were true that the exercise of exorbitant jurisdiction violates customary international law, one would have to read the Brussels Regulation as an authorization to EU member states to violate that law and as a commitment by other EU member states to assist in such violations. This is certainly not how the EU member states see it.

To be sure, states generally do not exercise personal jurisdiction without a basis for doing so that is widely recognized by other states. But the fact that many states maintain the right to exercise jurisdiction on other bases, and the fact that other states do not protest such exercises as violations of customary international law, forecloses the conclusion that the limits generally observed are followed out of a sense of legal obligation. In other words, states limit adjudicative jurisdiction as a matter of international comity, not customary international law.

Dean Parrish also asserts that Restatement (Fourth)’s position on adjudicative jurisdiction under customary international law is a departure from the past positions of the American Law Institute. First, the Principles of Transnational Civil Procedure that Dean Parrish invokes are not on point. They are standards recommended to national legal systems, not restatements of customary international law. Second, Dean Parrish is mistaken that the Restatement (Second) of Foreign Relations Law took the position that customary international law limited adjudicative jurisdiction. In fact, the Restatement (Second) recognized only two categories of jurisdiction—jurisdiction to prescribe and jurisdiction to enforce (see Section 6)—and thus did not separately treat jurisdiction to adjudicate. Third, while the Restatement (Third) did set forth “international rules and guidelines” for adjudicative jurisdiction, it also conceded that “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” Restatement (Third), Part IV, Chapter 2, Introductory Note.

The Restatement (Third) did identify one particular state practice, the exercise of “tag” jurisdiction based on the service of process to a person with only a transitory presence in the jurisdiction, as “not generally acceptable under international law.” Section 421 comment e. Yet the U.S. Supreme Court rejected a constitutional challenge to this practice three years later in Burnham v. Superior Court of California. In light of this additional practice by the United States, the practice of the EU member states already mentioned, and the absence of protests from other states, we concluded that “tag” jurisdiction—like other exorbitant bases of personal jurisdiction—does not violate customary international law. As this example illustrates, we looked at the general question again in light of current state practice and opinio juris.

Finally, Dean Parrish suggests that what the Restatement (Fourth) says concerning customary international law and adjudicative jurisdiction may be “controversial.” Certainly there were a number of questions that arose during the drafting of the Restatement (Fourth) that generated controversy. But the question whether customary international law places limits on adjudicative jurisdiction (other than immunity) was not one of them.

One of us has previously described on this blog the exacting process for restatements in general and for the Restatement (Fourth) of Foreign Relations Law in particular. We had the benefit of counsel from a wide range of advisers (including foreign advisers) with deep experience in customary international law and of vigorous debates on many issues. The resulting product does not simply reflect the views of the reporters about the content of customary international law governing jurisdiction. It reflects the best judgment of the American Law Institute based on an evaluation of state practice and opinio juris today.

Much has been made of how relations between the ICC have improved since the second term of Bush the Younger. I think we all expected that to change in the wake of Trump’s election, particularly after the OTP announced its intention to investigate detention-related abuses in Afghanistan and in CIA black sites in Eastern Europe For a while, nothing much of note happened…

Enter John Bolton, comic-book villain, stage right:

Mr. Bolton also planned to threaten to impose sanctions against the International Criminal Court if it moves ahead with investigations of the U.S. and Israel.

“If the court comes after us, Israel or other allies, we will not sit quietly,” Mr. Bolton planned to say, according to his prepared remarks.

Among the responses, Mr. Bolton says, the U.S. would ban ICC judges and prosecutors from entering the country.

“We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system,” Mr. Bolton adds. “We will do the same for any company or state that assists an ICC investigation of Americans.”

I am not going to bother taking these statements seriously, other than to note my curiosity about what provision in the US Code criminalises working with an international tribunal properly exercising its jurisdiction. Suffice it to say that the statements are completely unhinged and should be met with a hardy guffaw by the OTP.

I’m old enough to remember when Bolton’s patented brand of ridiculous sabre-rattling would have met with astonishment, if not outrage, in the US and elsewhere. In the age of Trump, though, we are just delighted to see a senior Trump administration official make threats in complete sentences — and without random capitalization.

A number of commentators — including me — have questioned whether the OTP should open an investigation into Myanmar’s treatment of the Rohingya if that investigation would be limited to the crime against humanity of deportation. Here, for example, is what I wrote in April:

[T]here is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

The PTC’s decision yesterday fundamentally changes that calculus. The OTP will no longer be limited to investigating “deportation and deportation alone.” On the contrary, the PTC did everything but order the OTP to also investigate the crimes against humanity of persecution and “other inhumane acts.”

Nor is that all. I think it is now clear that the OTP can investigate genocide, as well — at least the form in Art. 6(c) of the Rome Statute, “deliberately inflicting conditions of life calculated to bring about physical destruction.”

Recall the central principle of the PTC’s analysis:

74. The Chamber considers it appropriate to emphasise that the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well. If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute.

As Kip Hale and I discussed today on Twitter, the PTC notably did not limit the Court’s territorial jurisdiction to crimes whose essential elements necessarily take place in two states. If that was the case, the Court’s jurisdiction might indeed be limited to deportation as a war crime and as a crime against humanity. (I’d have to think about other possibilities.) Instead, the PTC adopted a much broader approach, holding that the Court has jurisdiction over any crime committed primarily on the territory of a non-state party as long as, as a factual matter, either an essential element or part of the crime is committed on the territory of a state party. That is why the PTC implies that the Court “might” — nudge, nudge; wink, wink — also have territorial jurisdiction over the crimes against humanity of persecution and other inhumane acts. Neither crime necessarily takes place in more than one state, but in fact both did take place in two states in the context of Myanmar’s violence toward the Rohingya: their persecution took place in part in Bangladesh because the crime of persecution was connected to a deportation that was only complete once they were driven out of Myanmar; their inhumane treatment took place in part in Bangladesh because the prohibited act –causing the Rohingya great suffering — was not permitting them to re-enter Myanmar.

And here’s the rub: under this approach, the Court also has jurisdiction over “conditions of life” genocide. That form of genocide has the following elements:

1. The perpetrator inflicted certain conditions of life upon one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.

5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

Let’s assume that these elements are satisfied not only within Myanmar — as the Independent International Fact-finding Mission on Myanmar has found — but in Bangladesh, as well. In other words, let’s assume that the Myanmar military drove the Rohingya into Bangladesh not just to ethnically cleanse Mynamar, but also — echoing the Armenian genocide — to subject the Rohingya to conditions of life that would naturally (without outside intervention) lead to their destruction. That assumption seems sound, given the horrific conditions in the refugee camps in Bangladesh. Here, for example, is a snippet of a report by UNICEF:

As of 27 January 2018, the Inter-Sector Coordination Group (ISCG) reported that almost 688,0001 Rohingya refugees have entered Bangladesh since the attacks. Per ISCG’s rapid needs assessment, 58 per cent of new arrivals are children and 60 per cent are girls and women including a high number of pregnant (3 per cent) and lactating women (7 per cent). The estimated total affected population of existing refugees, new arrivals and host communities is 1.2 million people. 2 This includes 720,000 affected children in need of urgent humanitarian assistance including critical life-saving interventions.

Existing basic services for refugees and host communities have been overwhelmed due to the sudden and massive increase in population. The high population density in the settlements has increased the risk of disease outbreaks and 1.2 million people urgently require water and sanitation services. More than 17 million litres of clean water per day are needed and approximately 50,000 latrines with semi-permanent structures need to be constructed or maintained. Vaccination coverage amongst new arrivals is very low and deadly outbreaks of communicable diseases (measles and diphtheria) have already occurred. In the densely-populated settlements, with poor sanitation and hygiene conditions, an outbreak of cholera or acute watery diarrhoea (AWD) is a risk that is being addressed in the rainy/cyclone season preparation plan. Urgent nutrition needs have been prioritized for children under five (including infants), pregnant and lactating women (PLW) and adolescent girls, with 3 per cent of children suffering from life-threatening severe acute malnutrition (SAM) in the biggest settlement (Kutupalong). An estimated 400,000 Rohingya children are also in need of psychosocial support and other protection and education services.

If these conditions amount to “conditions of life… calculated to bring about the physical destruction” of the Rohingya, at least one of the essential elements of that form of genocide is taking place on the territory of a state party, Bangladesh. And that means, pursuant to the PTC’s decision yesterday, that the Court has jurisdiction over conditions of life genocide in the Rohingya situation.

I am somewhat surprised that the PTC did not discuss genocide in its decision, given (1) the structural similarities between genocide and the crime against humanity of persecution, and (2) the similar argument made by Global Rights Compliance, under the able leadership of my friend Wayne Jordash QC, in its excellent brief on behalf of Rohingya victims. The PTC’s silence likely reflects its belief that the factual predicates for conditions of life genocide are less clearly established than for the crimes against humanity of persecution and “other inhumane acts.”

The point of an OTP investigation, however, is to establish the facts necessary to bring charges against individuals responsible for international crimes. So there is no reason why the OTP shouldn’t investigate whether Myanmar officials have committed conditions of life genocide against the Rohingya in Bangladesh. If the necessary factual predicates can be established, the Court clearly has territorial jurisdiction over that crime.

NOTE: I want to acknowledge Toby Sterling of Reuters, whose email this morning started me thinking about this issue. He anticipated many of the points I make above.

[Emma Irving is an Assistant Professor of Public International Law at Leiden University.]

The OHCHR Fact Finding Mission on Myanmar drew the world’s attention last week by issuing a report finding that genocide, war crimes, and crimes against humanity against the Rohingya and other ethnic groups took place in Myanmar last year. The Mission went further, drawing up a non-exhaustive list of perpetrators, and pointing the finger directly at six members of the Myanmar military who the Mission found exercised effective control over the perpetrators. In addition to these features of the report, there is another development that is worthy of discussion: the attention paid to the role of Facebook in the violence in Myanmar.

Facebook and the Fact Finding Mission Report

On a general note, the Fact Finding Mission describes ‘the role of social media’ as ‘significant’ in the spreading of hate speech in Myanmar (§74). The report describes in detail the ratcheting up of ethnic tensions and systematic discrimination and abuse over decades; a key part of which was the spreading of hate speech by non-state actors and the military (and the civilian government’s failure to address this). In recent years, Facebook’s prominence in the country – the report notes that Facebook is the internet in Myanmar – means that it has become a ‘useful instrument for those seeking to spread hate’ (§74). The preponderance of hate speech is one of the factors that is said to have created a climate in which the catastrophe inflicted on the Rohingya and other ethnic groups was entirely predictable.

Beyond commenting on Facebook’s general role in facilitating the spreading of hate speech, the report uses specific Facebook posts to support its findings. In one instance, the report cites a Facebook post from the Myanmar State Counsellor Office as its source for the Government’s position on when the operations in Rakhine State ended (§49). In other instances, the use of Facebook posts is more interesting. One particular post by the military’s Commander-in-Chief attracted attention: ‘The Bengali problem was a long-standing one which has become an unfinished job despite the efforts of previous governments to solve it. The government in office is taking great care in solving the problem.’ (§35) This statement is used in the report to support two findings. First, it supports the Mission’s finding that the ‘nature, scale and organisation of the operations suggests a level of preplanning and design on the part of the’ military leadership (§35). This is an important consideration for establishing criminal responsibility. Second, it supports the Mission’s finding of the existence of genocidal intent (§86). Without genocidal intent, the acts perpetrated against the Rohingya cannot be labelled as genocide, making this element of particular importance for the claim that genocide took place. While the Facebook statement is not the only piece of information on which the two findings are based, it is the only one that is expressly set out in the report.

The Fact Finding Mission’s inclusion of Facebook posts as an important source of information fits within a broader trend among international accountability mechanisms. In August 2017, the ICC issued its first arrest warrant to be based largely on seven videos obtained from social media (commentary on Al-Werfalli arrest warrant). In the second arrest warrant for Al-Werfalli, issued in July 2018, the Pre-Trial Chamber reaffirms position that the videos are sufficient to establish ‘reasonable grounds to believe’. The IIIM, for its part, has formed partnerships with organisations that specialise in the collection of open source digital information (including social media) in order to pursue its mandate of accountability for Syria (here). The report of the OPCW Fact Finding Mission in Syria also lists open source information among the types of information it relied upon, and the annex to the report lists Twitter, Facebook, and YouTube posts. This trend is a consequence of technological developments and the digitisation of conflict facilitating remote investigations, and is new ground into which international accountability mechanisms are carefully but surely treading.

Facebook’s Response

The same day that Fact Finding Mission report was released, Facebook announced a number of measures that the platform was taking in response to the report. Admitting that it was ‘too slow to act’, Facebook claimed that it is now making progress, and has developed better technology to identify hate speech. As part of the response in relation to Myanmar, Facebook has removed a total of 18 Facebook accounts, one Instagram account, and 52 Facebook pages. Among the removed accounts is that of the Commander-in-Chief Senior-General Min Aung Hlaing, the same individual whose posts have been used in the Fact Finding Mission report to support the finding of genocidal intent. In its response, Facebook doesn’t mention whether it will address the Mission’s ‘regret’ at its unwillingness to provide data about the spread of hate speech in Myanmar, suggesting that Facebook’s uncooperative tendencies may continue in this regard.

There is one element of Facebook’s response which is particularly noteworthy and welcome. In relation to the accounts and pages that have been removed, Facebook has stated that it has preserved the data and content associated with them. This is significant, as concerns have emerged over the last year concerning the take-down policies of prominent social media platforms (here and here). In summer of last year, many organisations that use social media to document conflicts, including those in Syria, Yemen, and Myanmar, noticed that either their social media accounts had been shut down, or large amounts of their content had been removed. These take-downs were part of a new strategy to remove extremist and terrorist content from social media platforms, but the algorithms behind the process lacked nuance, and insufficient account was taken of the fact that certain content related to documentation and accountability efforts. While some content has been restored, much remains unavailable, and it is not clear whether the removed content has been preserved or destroyed. If the latter, this could have a detrimental impact on accountability efforts. In light of this, Facebook’s assurance that the content from the removed pages and accounts in Myanmar is being preserved is important.

Facebook’s response of taking accounts and pages offline, while an improvement on the inaction of the past, is unlikely to be sufficient to reign in hate speech. Removing accounts and improving systems for reporting hate speech are not enough when the very algorithms that power Facebook are promoting hateful content. Reports show that Facebook posts drawing on negative, primal emotions such as anger, fear, and tribalism perform better on the platform and are made more visible. A study looking at anti-refugee violence in Germany made similar findings, positing that Facebook made ordinary individuals more prone to xenophobic violence. This problem is not unique to Facebook, with similar concerns being raised about YouTube.

Conclusion

The Fact Finding Mission on Myanmar did not shy away from using an important source of information about the violence in Rakhine State: Facebook posts. It relied on Facebook posts (among other sources) to support significant findings on the planning of the violence and on genocidal intent. In doing so the Mission remained cautious, indicating that only corroborated and verified information had been relied upon, and thereby pre-empting the criticisms that justly accompany the use of open source information. Beyond Facebook, the Mission also relied on another form of digital technology: satellite imagery. Before and after images of burned and razed villages were used to establish a pattern of widespread and systematic violence. Technologically-derived information therefore has a clear place in the work of the Fact Finding Mission, and in this sense the Mission joins the other international accountability mechanisms that are incorporating technology into their work.

One of the main take-aways from the Fact Finding Mission report, apart from the important findings on events and crimes committed in Rakhine State, is the signal that international accountability mechanisms do not have a blind spot when it comes to social media. Where possible and appropriate social media will be used to support findings of fact and intention; and where social media platforms are part of the problem, these mechanisms can generate international pressure to do better.

Okay, it didn’t directly say that. But that is the logical consequence of the Pre-Trial Chamber’s new decision upholding the Court’s jurisdiction over the deportation of the Rohingya from Myanmar. According to the PTC (para. 71), the crime against humanity of deportation (unlike forcible transfer) necessarily takes place in two states, because one of the essential elements of the crime is that the civilians are forcibly displaced across an international border. The Rohingya were forcibly displaced from the territory of a non-state party (Myanmar) into the territory of a state party (Bangladesh). Hence the Court has territorial jurisdiction.

But that is not all the PTC said. It also essentially holds that the Court has jurisdiction over two other crimes against humanity — crimes it practically begs the OTP to charge: persecution and “other inhumane acts.” Here is what it says about the crime against humanity of persecution: