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China’s Rising Geolegal Sphere

by Malcolm Jorgensen

[Malcolm Jorgensen is a Research Fellow at the Berlin Potsdam Research Group “International Law–Rise or Decline?”]

In their new book The Internationalists: How a Radical Plan to Outlaw War Remade the World, Oona Hathaway and Scott Shapiro assert that Chinese occupation of maritime features in the South China Sea is “worth little as long as the rest of the world refuses to recognize them.” That conclusion follows a sophisticated argument that legal prohibitions against territorial conquest, tracing back to 1928, remain the necessary source of legitimacy for exercising effective global power. Evidence from the South China Sea, however, suggests an important exception to this claim, with China increasingly demonstrating effective exercise of regional power without the authority of international law.

The observation that international law facilitates effective power turns on a globally recognised order in which legal rules inform states’ rational calculations about what actions will likely be challenged as threats to that order. In Hathaway and Shapiro’s words: “Real power—power useful for achieving important political objectives—does not exist in the absence of law. Law creates real power. States can reach their goals only if others recognize the results of their actions.” To demonstrate this point, they argue that the outlawing of war in the 1928 Kellogg-Briand Pact ensured that Japan’s 1931 occupation of Manchuria yielded little benefit, since “it was not enough if no one treated Manchuria as Manchukuo.” The “Stimson Doctrine” of 1932 confirmed this as US policy against recognising territorial claims achieved by conquest.

Excessive Chinese maritime claims are plainly illegal, with the “Nine-Dash line” they have long been based upon firmly discredited in the 2016 award of the Permanent Court of Arbitration, initiated by the Philippines. Yet China now enjoys unchallenged de facto possession of the artificial island features it claims, which have been described as “unsinkable aircraft carriers” allowing the projection of military power far from China’s mainland. Of the seven artificial islands, up to three may be capable of accommodating fighter jets, being equipped with runways, radars and surface-to-air missiles. Likewise, physical possession secures potential Chinese access to maritime resources it has long claimed.

Moreover, the relative decline of US power in the region ensures there is now no reasonable prospect of China being dislodged from its possession of these features – the calculus of the military violence required to disrupt the status quo favours no state or coalition of states. The US military conducts freedom-of-navigation operations, and calls on allies to support them in emphasising the illegitimacy of China’s possession. But this does not extend to measures for returning the region to a legitimate situation under international law. Southeast Asian leaders have now dropped criticisms of “land reclamation and militarization” long included in official statements. The calculus has already shifted from preventing to managing Chinese occupation.

The limitation of The Internationalists is that it does not take account of the way that international law is refracted through geographical configurations of power and thus operates in differentiated ways across regions. The Asia-Pacific now resembles a “geolegal” sphere of Chinese influence, in which China’s growing regional dominance over multilateral institutions and legal development amplifies its rising geopolitical power. China’s primary geostrategic interest is to establish uncontested military power within its “near seas,” rather than global hegemony, and is now leveraging its geolegal sphere to shift states towards acquiescence to a nationalist maritime order, and away from international law.

China’s geolegal sphere is built on its record as an effective rule maker – leading a major diplomatic defeat in establishing the Asian Infrastructure Investment Bank against US objections and promoting the Regional Comprehensive Economic Partnership as a free trade alternative to the Trans-Pacific Partnership. Proponents of Chinese integration into existing rules and institutions have long argued that a Chinese stake commensurate to its growing power will ultimately complement the existing legal order, and is therefore “unlikely to undo the rules, norms, and structures that exist today.” Yet China’s greater legal role arguably now enables rather than constrains incentives to carve out zones of non-law in the maritime domain that are insulated against legal sanctions.

Increasing geolegal power manifests as pressure on states to accede to China’s will, including its preference to resolve disputes bilaterally rather than through legal institutions. In 2012 the Philippines deployed navel assets to protect the disputed Scarborough Shoal, which provoked Chinese economic retaliation – ranging from tourism bans to leaving tonnes of banana imports rotting at port. Increasing governance of international economic rules will only heighten such powers, and increase costs of opposition. The Philippines has now effectively set aside the definitive 2016 legal ruling made in its favour, to pursue a joint development agreement with China. This so-called “modus vivendi” leaves the status quo legal position of China undisturbed, who frames the agreement as a mere political concession.

The submission of the Philippines speaks to a broader dynamic in China’s favour, which is the unwillingness of individual states to risk isolation when openly defying Beijing. This is a classic prisoner’s dilemma, in which China divides and conquers opponents until they submit to its rules whether legal or not. The core problem for the arbitral ruling, and the broader legal system it represents, is that they are now sufficiently detached from regional geopolitical power that China can openly assert alternative non-legal principles for allocating rights and resources, and that these facilitate effective use of political power. As between the pronouncements of the PCA and the CPC, the latter’s account is increasingly a more accurate description of effective rules operating in the South China Sea.

China continues to assert claims in the language and symbols of international law, but drawn from “historical rights” as a concept largely unknown to the law. China’s latest iteration of the Nine-Dash Line adapts the rules of the UN Convention on the Law of the Sea itself to make territorial claims around the “Four Sha” island groups located within that line. Yet these are rights only available to an archipelagic state – which China is not. At best these various claims resemble “Folk International Law”: “a law-like discourse that relies on a confusing and soft admixture of [principles] to frame operations that do not, ultimately, seem bound by international law.” Yet, the geographically limited aim of controlling China’s near seas means that lack of global legal recognition is of secondary relevance. China’s sui generis rules now inform states’ rational calculations about what actions will likely be challenged as threats to the existing order.

The assumption of a positive relationship between a rising Chinese stake in the international legal system and respect for that system does not appear to be holding, as China leverages its geolegal sphere to carve out a maritime domain of non-compliance. There is thus no prospect of returning to an Asia-Pacific in which maritime order aligns with the rules set out in UNCLOS – previously signed or ratified by all states in the region, including China. Continued denial of the legality of this nascent order remains crucial, as it undoubtedly renders Chinese power less efficient, but the terms of UNCLOS are no longer an effective blueprint for rational behaviour by regional stakeholders.

Hathaway and Shapiro’s conclusions are dangerous if they treat the ideal of the rule of international law as a description of political reality. Their own argument concludes that the foundation of an effective international legal order remains American willingness to underpin it with real hard power – the continuation of Pax Americana. Here the Trump administration’s withdrawal from the TPP may well have foreclosed the last major initiative capable of meaningfully slowing the transfer of geolegal power. The TPP was crucial not merely as the embodiment of liberal trading rules, but as a demonstration of the US role as anchor to that order. The region is now witnessing the global pretentions of international law following the fate of fragmenting geopolitical power.

The South China Sea remains an ongoing dialogue between embryonic Chinese maritime rules and the rule of international law, but one that will be increasingly difficult to untangle. The anchor of Western legal policy in a regional “rules-based order” is thus almost literally one embedded in shifting sands. The strategic objective for regional stakeholders should be effective geolegal balancing by denying the lawfulness of Chinese claims, but as complimentary rather than an alternative to effectively balancing geopolitical power. Failing to defend the rule of international law will ensure that the pockets of non-law asserted by a single state expand to eclipse the previous order, and ultimately become international law itself.

Events and Announcements: October 8, 2017

by Jessica Dorsey

Call for Papers

  • The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. Published since 1962, it is among the oldest publications at the international level in the areas of military/security law and the law of war. For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world. For its coming issue (vol. 55/2), the Review’s editorial board welcomes submissions from scholars and practitioners that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). The deadline for submission is 15 November 2017. Submissions should be sent by e-mail to brussels [at] ismllw [dot] org and will be subject to double-blind peer review. Articles should normally not be longer than 15.000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address. Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue is scheduled to come out in Spring 2018.

Announcements

  • The European Research Council funded research project on “The Individualization of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict”, based at the European University Institute, Florence & the Oxford Institute for Ethics, Law and Armed Conflict seeks a postdoctoral researcher. The successful applicant will work closely with Professor Dapo Akande (who is based in Oxford and is co-investigator on the project). She or he will conduct research on the application of human rights law in armed conflict and on the relationship between human rights law and international humanitarian law.  Candidates should have an outstanding PhD in international law but should be excited about working in an inter-disciplinary team which includes international relations scholars and moral philosophers. The position is for one year and will start in December 2017 or January 2018. Further details on the project is available here the position. Full details about the position and the application process can be found here.
  • At the occasion of its bicentennial, the Faculty of Law of Ghent University will host a two-day international conference on 7 and 8 December 2017 entitled ‘Freedom under Pressure’. The conference will gather legal scholars and practitioners to discuss key fundamental rights and freedoms under pressure in three distinct areas: (1) property protection; (2) data protection and privacy, and (3) freedom of movement in the EU. Panels will tackle a range of issues, including, for instance, the use and abuse of international investment arbitration, immunity from execution, or the use of targeted financial sanctions as a foreign policy tool. Confirmed speakers include Judge James Crawford (International Court of Justice), Judge Siofra O’Leary (European Court of Human Rights), Judge Allan Rosas (Court of Justice of the EU), Prof. Joseph Cannataci (UN Special Rapporteur on the right to privacy) and Mr. Gilles de Kerchove (EU Counter-Terrorism Coordinator). The full programme as well as further practical information is available on the conference website. Early-bird registration rates expire on 15 October.

If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Upcoming Event on UN Accountability

by Kristen Boon

I am pleased to announce an upcoming experts workshop on UN Accountability on October 19 at Seton Hall Law School.

This workshop will explore the liability of International Organizations for international wrongs, as well address direct, indirect or shared responsibility. It will offer a detailed examination of accountability, and what models of external and internal international dispute resolution currently exist, and should exist in the future. In light of the recent suggestion that victims of international wrongs should be made whole by charitable contributions, it will also discuss redress and compensation for victims of international wrongs.  

The keynote address will be given by Professor Philip Alston on The Strengths and Weaknesses of External Accountability.

The program will end with a book launch of the Research Handbook on UN Sanctions and International Law, edited by Professor Larissa van den Herik.

We would welcome participants interested in the subject. After the event, a group will go to the opening panel of ILW at the NYC Bar Association.

For the complete program, and to RSVP please see the webpage here.

 

Apparently Perfidy Is Not Prohibited in 2256

by Kevin Jon Heller

I have just started watching Star Trek: Discovery, the first new Star Trek series in a decade. It’s excellent — dark, well-acted, with beautiful special affects. But I have to say that it was shocking to see the Captain of a Federation starship engage in a blatantly perfidious act in the second episode. The Federation has just come out on the losing end of a major battle with the Klingons. Captain Georgiou transports a photon torpedo into the torso of a dead Klingon, the lead Klingon ship retrieves the dead Klingon for burial, and… boom, the Klingon ship is disabled, with hundreds if not thousands dead.

As I have explained in a scholarly article, it is perfidious to use a booby-trap in a manner that violates the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. Art. 2(4) of the Protocol defines a booby-trap as “any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.” And Art. 7(1)(b) specifically provides that “it is prohibited in all circumstances to use booby-traps and other devices which are in any way attached to or associated with… sick, wounded or dead persons.” Captain Georgiou’s use of a booby-trapped dead Klingon to disable the Klingon ship was thus unequivocally perfidious.

The Star Trek universe always presents the Federation as the height of legal and moral rectitude. At least for one episode of Star Trek: Discovery, that was not the case.

The Kampala Amendments on the Crime of Aggression Before Activation: Evaluating the Legal Framework of a Political Compromise (Part 2)

by Astrid Reisinger Coracini

[Astrid Reisinger Coracini is is Lecturer at the University of Salzburg and Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS). This is the second of a two-part post on the subject. The first can be found here.] 

1. Does the non-application of Art. 121(5) second sentence violate the law of treaties?

Article 40(4) of the Vienna Convention in the Law of Treaties (VCLT) stipulates that unless the treaty provides otherwise, ‘[t]he amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement’. The rule reflects the consent principle, which is also the basis of the general rule regarding third States formulated in Art. 34 VCLT, ‘[a] treaty does not create either obligations or rights for a third State without its consent’.

The Rome Statute does provide otherwise than the VCLT in its general amendment procedure. Art. 121(4) of the Statute foresees an entry into force erga omnes partes after acceptance of an amendment by seven-eighths of the States parties. The Statute also provides otherwise for amendments to provisions of an institutional nature, which are expressly listed in Art. 122. The amendment procedure according to Art. 121(5), on the other hand, follows the default rule. The first sentence of Art. 121(5) guarantees that an amendment (to articles 5 to 8 of the Statute) only enters into force for those States parties that have accepted it. Differently, Art. 121(5) second sentence does not deal with questions of treaty law but with the consequences of exercising (international) criminal jurisdiction over individuals. It defines conditions for the exercise of jurisdiction over crimes covered by an amendment and it thereby establishes a separate jurisdictional regime, different from Part 2 of the Statute.

Art. 15bis equally establishes a distinct jurisdictional regime, which differs from Part 2 of the Statute as well as from Art. 121(5). The common denominator, however, is that all three jurisdictional regimes, the one under Part 2, the one under Art. 121(5), and the one based on Art. 5(2), may affect nationals or the territory of a State that has not accepted the treaty or an amendment and that is consequently not bound by them. Whether the consequences of the exercise of international criminal jurisdiction over individuals (the Court’s jurisdictional reach) are binding or in any way create obligations or rights for third States was extensively discussed in the aftermath of the Rome Conference. The general view has been that consequences of the jurisdictional reach do not affect treaty relations and that there was no requirement of State consent for the exercise of (international) criminal jurisdiction. Consequently, the Court’s jurisdictional reach does not establish a new treaty regime, let alone one with obligations erga omnes. The requirement of 30 ratifications remains a condition for the Court’s exercise of jurisdiction over the crime of aggression.

The aggression amendments also do not establish cooperation obligations for States parties that do not adhere to them. It has been argued that a general obligation to cooperate fully with the Court in its investigation and prosecution of the crime of aggression already stems from Art. 86, which, at the time of adoption, acceptance or ratification of the Statute, referred to all ‘crimes within the jurisdiction of the Court’. If such a general duty to cooperate in the investigation and prosecution of crime of aggression did not exist in the Statute prior to the aggression amendments, but was created by them, it would only create obligations for States that accept them.

What remains, is the claim that the non-application of Art. 121(5) second sentence violates a treaty right that was established by the Statute for States parties to shield their nationals and their territory from the Court’s exercise of jurisdiction of the crime of aggression. Still, the same right is granted to States parties under the aggression amendments. The dispute is consequently reduced to the modification that while Art. 121(5) second sentence grants this right unconditionally, under the Kampala compromise it is granted upon declaration. However, this claim remains a theoretical one. If Art. 121(5) does not apply to the provision on aggression in the first place, the aggression amendments cannot affect any obligations or rights of States parties enshrined therein. The same is true, if the application of Art. 121(5) second sentence is subjected to the mandate of setting out conditions for the exercise of jurisdiction under Art. 5(2). In that case, all obligations and rights would lawfully be subjected to possible alterations within the mandate of Art. 5(2).

2. Does the non-application of Art. 121(5) second sentence violate general international law?

It has been argued that the crime of aggression is different from the other three core crimes because it requires the Court to determine a question of State responsibility as a precondition for the exercise of jurisdiction and that the determination of an act of aggression may require consent of the States concerned [for a detailed discussion, see Astrid Reisinger Coracini & Pal Wrange, ‘Is the Crime of Aggression Different from the other Crimes under International Law?’ in: Claus Kreß/Stefan Barriga (eds.), The Crime of Aggression – A Commentary (Cambridge University Press, 2016) p. 307-350].

The discussion is somewhat moot as the jurisdictional regime established by the aggression amendments is factually a consent-based regime. The Kampala compromise imposes an even stricter regime than Art. 121(5) second sentence. The requirement of a double consent (of the State where the conduct occurred and of the State of nationality of the accused) for the exercise of jurisdiction is required with regard to States parties and non-States parties. But independent of the Kampala compromise, is there a consent requirement under international law for the exercise of jurisdiction of the crime of aggression?

A noteworthy case was made in that regard on the basis of the ICJ’s jurisprudence based on Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America). The consent principle is without doubt a fundamental principle under international law. It also underlies the jurisdiction of international courts adjudicating disputes between States and was therefore applied by the ICJ and other consent based jurisdictions in proceedings against States. It is however contended whether the principle is directly applicable in the context of international criminal jurisdictions, the consequences of which may affect nationals or the territory of non-consenting States, in proceedings against individuals.

Even under the ICJ’s consent-based jurisdictional regime, an indirect determination of acts of non-consenting States may be possible, if it remains without legal consequences for these States. In Certain Phosphate Lands in Nauru (Nauru v. Australia), the ICJ held that it was in no way precluded from adjudicating upon the claims against one out of three States that shared responsibility in the administration of the territory in question, provided the legal interests of the third States which might possibly be affected did not form the actual subject-matter of the requested decision.

It is undisputed that an act of aggression by a State is one of the elements of the definition of the crime of aggression that needs to be established for individual criminal responsibility to arise. Assessing the elements of a crime is not a formal determination of State responsibility. It requires the establishment of facts and their legal evaluation as a precondition for reaching a verdict. There are no consequences for a State that follow from the Court’s determination of an act of aggression. The ‘very subject-matter’ of the Court’s decision remains the innocence or guilt of an individual.

The ‘requirement’ to determine an act of State may be unique to the crime of aggression, however, this distinction is merely semantic. A consent requirement cannot be based on the frequency of the determination of an act of State but it is a matter of principle. Either the determination of an act of State by an international criminal jurisdiction requires State consent or not. In that regard, all four core crimes can be (and frequently are) committed by State organs. Each determination of guilt or innocence of an organ of a State or any other person whose conduct is attributable to a State, comprises ipso facto a determination of an act of State. This indirect determination of State responsibility has not been an obstacle to establishing a Court with jurisdiction over nationals of non-consenting States.

In conclusion

  1. The political compromise that was reached in Kampala excludes the application of Art. 121(5) second sentence to the crime of aggression. This non-applicability can be reasonably argued on the basis of the relevant provisions of the Rome Statute.
  2. Art. 121(5) is not the starting point but one out of several possible answers to the question which procedure applies to the provision of aggression. The mandate of Art. 5(2) to adopt such a provision is vague and allows for different interpretations. While there were competing claims as to which procedure was the best position under international law, a full application of Art. 121(5) was only one of them. The compromise decision taken in Kampala is based on a different legal position, which acknowledges the special position of the crime of aggression under the Statute, and which was overwhelmingly supported by a majority of States.
  3. The majority understanding of Art. 121(5) second sentence is that it establishes a specific jurisdictional regime for crimes covered by an amendment, which differs from Part 2 of the Statute. The Kampala compromise does not establish agreement on a different reading of Art. 121(5) second sentence. The Kampala compromise establishes agreement on a reading of Art. 5(2) and Art. 12(1) that leads to the non-applicability of Art. 121(5) second sentence to the crime of aggression.
  4. If Art. 121(5) second sentence does not apply, the aggression amendments cannot infringe upon a right, enshrined in this sentence. The agreement reached at the Review Conference, which is based on one of several possible and reasonable interpretations of the applicable law, cannot violate rights a State may have enjoyed if an alternative interpretation had been agreed upon. This simply falls beyond the scope of Art. 34 and Art. 40(4) VCLT.
  5. Consent to be bound by a treaty and consent to the jurisdictional reach by the Court are two separate matters. Only States that adhere to the aggression amendments are bound by them (as a matter of treaty law). The fact that nationals or the territory of a State may be affected by the exercise of the Court’s criminal jurisdiction over individuals does not qualify as a binding effect for that State.
  6. It is difficult to comprehend how a view that the Court cannot exercise its jurisdiction regarding the crime of aggression over nationals of a State or committed on the territory of a States unless that State accepts or ratifies the aggression amendments could be ‘clarified’ without re-opening the text of the amendments. Any subsequent agreement in that regard would clearly reverse the contents of the compromise of Kampala and refute the negotiations process. It would also pose difficulties for the 35 States that have taken legal steps on the basis of the Kampala compromise.
  7. Reopening the compromise, which was a package deal, would not only affect the exercise of jurisdiction over a crime of aggression, arising from an act of aggression by a State party that does not adhere to the aggression amendments. It would equally affect other components of the compromise. If Art. 5(2) was not the legal basis to establish conditions for the exercise of jurisdiction over the crime of aggression that might differ from Part 2 and from Art. 121(5) second sentence, Art. 15bis and Art. 15ter would need to be interpreted through the jurisdictional regime of 121(5). This would undermine compromise decisions relating to the opt-out regime, the preferential treatment of opting-out States parties as victims of an act of aggression, referrals by the Security Council, and ultimately the exercise of jurisdiction over nationals and the territory of non-States parties.
  8. It was suggested that the opt-out regime of Art.15bis would not be deprived of its meaning if interpreted in light of Art. 121(5) second sentence, because it could allow States parties to opt out in order to fall within the Court’s jurisdictional protection as a victim of aggression. But there is no rational consolidated reading of these two provisions. An interpretation that suggests an opt-out from a jurisdictional regime that States do not consider themselves ‘in’ is unreasonable.
  9. Furthermore, the possibility to opt out of the Court’s jurisdictional reach was a concession to those States parties that believed they had acquired a right under Art. 121(5) second sentence to be exempt from the effects of the Court’s exercise of jurisdiction over the crime of aggression. The drafters transposed such a right to the aggression amendments. In order to counterweigh the requisite of depositing a (low impact, yet public) declaration, they even added another right. States parties that opt out in accordance with Art. 15bis, remain under the Court’s protection should they become a victim of an act of aggression. This additional privilege was not given to States parties without a cause. It was a trade-off in order to establish consensus on the basis of the non-applicability of Art. 121(5) second sentence.

At the upcoming session of the Assembly of States Parties, it will be the responsibility of States to defend the compromise they have reached at the Kampala Review Conference. Discussions on the crime of aggression and the jurisdiction of an international criminal court over this crime have started at the time of the League of Nations and they could be easily continued ad infinitum; but it is time for a closure. It lies in the nature of a compromise decision that it cannot reflect all positions. States which supported a meaningful exercise of the Court’s jurisdiction over the crime of aggression under the existing framework of the Statute have succeeded in upholding some structural principles, but have made major concessions when it comes to the factual exercise of jurisdiction by the Court. In that regard, the Kampala compromise was particularly sensitive towards the concerns of some States. Eventually, the aggression amendments are not all that was wished for, but evidently, they are what lies on the table and what will be subjected to an activation decision in December.

Against the never-ending fascination to discuss legal aspects of one sentence of one article of the Rome Statute, the larger issues at stake must not be let out of sight. The Court’s jurisdiction over the crime of aggression should not be considered a mere nuisance when it comes to a decision on the use of armed force. Even under a narrow definition and with limited jurisdiction, the crime of aggression still protects one of the fundamental principles of international law, the prohibition of the use of force. Seven years after Kampala, the significance and urgency of strengthening the protecting scope of this principle unfortunately seems to have increased rather than declined.

The Kampala Amendments on the Crime of Aggression Before Activation: Evaluating the Legal Framework of a Political Compromise (Part 1)

by Astrid Reisinger Coracini

[Astrid Reisinger Coracini is is Lecturer at the University of Salzburg and Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS). This is the first of a two-part post on the subject. The second can be found here.] 

In December 2017, the Assembly of States Parties of the Rome Statute of the International Criminal Court will hold its sixteenth session with the ‘activation of the Court’s jurisdiction over the crime of aggression’ on its agenda. Almost twenty years after the crime of aggression was included within the subject-matter jurisdiction of the Court as one of the four core crimes and seven years after the adoption of a ‘provision on the crime of aggression’ in accordance with article 5(2) of the Rome Statute (hereinafter all articles refer to the Rome Statute, unless otherwise clarified), the Review Conference’s determination to activate this jurisdiction ‘as early as possible’ (preambular paragraph 6 of Resolution 6) will be put to a test. Once the ‘decision to be taken after 1 January 2017’ (common para. 3 of Arts. 15bis and 15ter) will have been reached, the Court will be able to exercise jurisdiction ‘with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties’ (common para. 2 of Arts. 15bis and 15ter), a temporal condition that was met on 26 June 2017.

In preparation of its upcoming session, the Assembly established ‘a facilitation, based in New York, open only to States Parties, to discuss activation of the Court’s jurisdiction over the crime of aggression’ (ICC-ASP/15/Res.5, annex I, para. 18(b)). The activation decision is a mere procedural step. However, given the continuing unease voiced by a few States, the facilitation seems to also provide a platform for discussions on substance. This post will address arguments that were presented during the facilitation process by academic experts, Prof. Dapo Akande, Prof. Roger Clark, Prof. Kevin Heller, and Prof. Noah Weisbord. Considering that the current discussion has narrowed down to the question of the Court’s jurisdictional reach, so will this post.

1. The Kampala compromise

Notwithstanding the two temporal conditions for the exercise of jurisdiction over the crime of aggression (entry into force of a minimum number of ratifications and the activation decision), the Kampala compromise is embedded in the jurisdictional regime of the Rome Statute. Following a referral by the Security Council of the United Nations, the Court may exercise its jurisdiction in accordance with Art. 13(b) (Art. 15ter). Following a referral by a State party to the Rome Statute or a proprio motu investigation by the prosecutor, the preconditions for the exercise of jurisdiction as defined in Art. 12 apply (Art. 15bis referring to Art. 13(a) and (c)), albeit with two restrictions.

First, Art. 12 only applies in situations involving ‘a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar’ (Art. 15bis(4)). In other words, the Court may not exercise jurisdiction over an act of aggression committed by a non-State party or committed by a State party that has previously opted-out.

Second, the Court shall not exercise its jurisdiction over the crime of aggression when committed by nationals or on the territory of a non-State party (Art. 15bis(5)). Accordingly, the exercise of jurisdiction is further excluded over any crime of aggression arising from an act of aggression committed against a non-State party as well as over any non-State party national contributing to a crime of aggression over which the Court otherwise could exercise its jurisdiction. As part of the compromise reached in Kampala, States parties further decided that the provision on aggression shall enter into force only for those States that ratify or accept the amendments (in accordance with Art. 121(5)). A more detailed analysis can be found here, here, and in this Chart.

The conditions for the Court’s exercise of jurisdiction over the crime of aggression allow for broad exceptions from the Court’s default jurisdictional regime. Those regarding non-States parties are absolute exceptions and unprecedented in the general jurisdictional regime of the Statute. Those regarding States parties are less expansive but still represent serious deviations from Part 2 of the Statute. The exceptions were strongly criticised, for being too far-reaching as well as for not being sufficiently far-reaching, for establishing a different jurisdictional regime relating to States parties that do not accept the amendments on the one hand and to non-States parties on the other hand, or for establishing a third jurisdictional regime different from Part 2 of the Statute and from Art. 121(5). Still, they represent the compromise that was negotiated in good faith and adopted by consensus in Kampala in 2010. It is a compromise that determines who should be covered by the Court’s jurisdiction over the crime of aggression, which has so far been ratified by 34 States parties, and on the basis of which an opt-out declaration has once been lodged.

2. Does the political compromise of Kampala include application of Art. 121(5) second sentence?

A preliminary note on the meaning of Art. 121(5) second sentence: the overwhelming view holds that Art. 121(5) second sentence establishes a distinct jurisdictional regime for crimes covered by an amendment when committed by nationals or on the territory of a State party that does not accept that amendment. Art. 121(5) second sentence is not directed at non-States parties. The Court’s jurisdictional reach over nationals and the territory of non-States parties remains governed by Part 2 of the Statute and any deviation thereto would require a formal amendment (States should therefore refrain from eroding Part 2 through an enabling resolution). But Art. 121(5) second sentence provides a privileged position for States parties regarding the Court’s jurisdiction over amended crimes. I have argued elsewhere that this provision should be interpreted systematically and in light of the object and purpose of the Statute to not have such a wide scope. The subject-matter jurisdiction of the Court, which is ‘limited to the most serious crimes of concern to the international community as a whole’ (Art. 5(1)), sets a high threshold for amendments. Either a crime is generally accepted to fulfil this criterion and warrants inclusion in the Statute, or it does not and should consequently not be the subject of an amendment. If all crimes equally fulfil this criterion, it is debateable why the sole fact of a later inclusion should submit ‘amended most serious crimes’ to a different jurisdictional regime. Applying two different jurisdictional regimes leads to particularly odd results in the interpretation of the ‘Belgian amendments’ that expand war crimes in the context of a non-international armed conflict. The Court’s jurisdictional reach over the same conduct includes nationals and the territory of States parties when it is committed in the context of an international armed conflict. When it is committed in the context of a non-international conduct, the Court’s reach over nationals or the territory of States parties that have not (yet) accepted the amendment is excluded. The precluded reach over ‘territory’ deprives a non-accepting State party from the protection it otherwise enjoys in the context of an international armed conflict. The precluded reach over ‘nationals’ seems to privilege foreign fighters that join an organized armed group in a fight against governmental authorities. They would be exempt from the Court’s reach, whereas members of the regular armed forces (which under the same constellation would internationalize the conflict) could be prosecuted by the Court. For these reasons, I uphold my previous position, but this interpretation remains a minority view and was not further discussed or acted upon during the negotiations on the crime of aggression. The Kampala compromise is without doubt based on the generally accepted interpretation of Art. 121(5) second sentence. This post will therefore proceed on this basis.

The main controversial issue is currently whether Art. 121(5) second sentence applies to the aggression amendments. To answer this question, it is fundamental to first establish whether the application or non-application of that provision is part of the compromise adopted in Kampala.

A textual interpretation of Art. 15bis and 15ter suggests that the jurisdictional regime established for the crime of aggression differs and partly directly contradicts Art. 121(5) second sentence. First, Art. 15bis and 15ter foresee different conditions for the exercise of jurisdiction for different trigger mechanisms. Art. 121(5) second sentence applies to all trigger mechanisms; at least in the ordinary meaning of its words. Second, Art. 15bis defines an absolute exception to the exercise of jurisdiction over crimes committed by nationals or on the territory of non-States parties. Art. 121(5) second sentence does not exclude the exercise of jurisdiction with regard to non-States parties and it was argued that the main purpose of the provision was not to open such an exception, but instead to privilege States parties and thus provide an incentive for non-States parties to join the Statute. Third, Art. 15bis is based on the assumption that nationals and the territory of States parties that do not accept an amendment are within the Court’s jurisdictional reach. Art. 121(5) second sentence is generally interpreted to provide the contrary. Fourth, a State party that opts-out in accordance with Art. 15bis is still be protected by the Court’s jurisdictional reach as a victim of an act of aggression. Art. 121(5) second sentence on the other hand does not concern itself with State acts and would provide for the same limited jurisdictional regime for aggressor States and their victims.

The aggression amendments do not only constitute a compromise in substance. A major component of the Kampala compromise was to establish agreement on the question of which of the three available amendment mechanisms was to be applied. This also included the question of how the conditions for the exercise of jurisdiction were to be consolidated with the consequences that these mechanisms may provide. The possibility that a compromise may not include Art. 121(5) second sentence had been discussed in detail prior to Kampala. The travaux préparatoires of Kampala provide clear evidence that the non-applicability of Art. 121(5) second sentence was part of the negotiations leading to the compromise. This is particularly underlined by the explanation of position by the delegation of Japan, criticizing ‘cherry picking’ from the relevant provisions of the Statute from a legal point of view.

Finally, it would be incomprehensible why States should have invested in lengthy and arduous negotiations to find a compromise if its essence would subsequently be reversed by way of an amendment procedure. It is therefore understood that the reference to article 121(5) in operative para. 1 of Resolution 6, in the context of the expressions ‘adoption, in accordance with Art. 5(2)’ and ‘shall enter into force in accordance with Art. 121(5)’, must be read as referring to the entry into force leg of article 121(5), namely its first sentence.

3. Does the non-application of Art. 121(5) second sentence violate the Statute?

Having established that the non-applicability of Art. 121(5) second sentence was part of the political compromise reached in Kampala, the key question remains whether this was lawfully so.

In order to address this question, it is necessary to recall the relevant provisions of the Rome Statute, which were themselves the result of a compromise that allowed removing the brackets around the crime of aggression during the final days of the Rome Conference. Accordingly, the crime of aggression falls within the subject-matter jurisdiction of the Court, but the Court shall only exercise its jurisdiction once a provision would be adopted, in accordance with articles 121 and 123, defining the crime and setting out the conditions for the exercise of jurisdiction thereover (Art. 5(1)(d) and Art. 5(2)).

The mandate of Art. 5(2) has generally been interpreted as giving the negotiators wide discretion in order to agree upon a provision on the crime of aggression. That includes that the conditions for the exercise of jurisdiction over the crime of aggression might differ from the general jurisdictional regime established in the Statute. On the procedural level, Art. 5(2) refers to ‘adoption’ in accordance with Art. 121 at a review conference (Art. 123). This reference is indisputably imprecise and it has therefore generated three readings: (i) that a provision on the crime of aggression merely required adoption in accordance with Art. 121(3); (ii) that it required adoption and entry into force in accordance with Art. 121(4); and (iii) that it required adoption and entry into force in accordance with Art. 121(5).

It is inherent in the vagueness of Art. 5(2) that all three readings may be legally substantiated or criticised. However, the decision taken in Kampala renders these competing arguments obsolete. The question today is not anymore, which argument is the strongest one (and therefore merits reflection in the compromise decision). The question today is rather whether the decision taken in Kampala can be reasonably argued within the legal framework of the Statute. Against this background, the provisions of the Statute may support different justifications, which are not mutually exclusive, on the non-applicability of Art. 121(5) second sentence to the provision on the crime of aggression; a position that was expressed in academia and that was supported by a majority of States in the negotiation process.

The Kampala compromise has its foundation in the Art. 5(1) and Art. 12(1) ‘jurisdiction’ argument. Art. 5(1) clearly provides that the crime of aggression falls within the jurisdiction of the Court. This understanding is emphasised by Art. 12(1), which provides that States parties accept the Court’s subject-matter jurisdiction, including over the crime of aggression, upon acceptance or ratification of the Statute. The crime of aggression has a specific position, insofar, as it was expressly listed in the Statute at the time of its adoption. Since the Court’s jurisdiction was already accepted by all States parties, it may be argued that the provision on the crime of aggression does not require further acceptance.

The Art. 5(2) ‘adoption’ argument comes to a similar result. It contends that the aggression amendments are based on Art. 5(2) and require mere adoption in accordance with Art. 121(3). This view was supported by some States during the negotiation process. In Kampala, this minority view was joined by a large number of States that shared arguments based on the specific position of the crime of aggression within the Statute but would not accept a solution without an entry into force mechanism. Under the premise not to be bound by either Art. 121(4) or 121(5), the Kampala conference consequently agreed on an individual entry into force of the amendments in accordance with (and as provided by) the first sentence of Art. 121(5).

According to the Art. 5(2) ‘conditions’ argument, Art. 121(5) may in principle apply to the aggression amendments, albeit subject to the mandate provided by Art. 5(2). Given the broad authority to define specifically the conditions for the exercise of jurisdiction of the crime of aggression in the mandate of Art. 5(2), it is not convincing that the drafters would have been mandated to override conditions prescribed in Part 2 with regard to the crime of aggression but would be limited by conditions foreseen in Art. 121(5) second sentence.

All these elements were part of debates before and in Kampala and helped pave the way for the compromise. They were reflected in the decision of the review conference ‘to adopt’ the provision on aggression ‘in accordance with article 5, paragraph 2’.

Do Kurds Have the Right to Self-Determination and/or Secession?

by Milena Sterio

[Milena Sterio is a Professor of Law and Associate Dean for Academic Enrichment at the Cleveland-Marshall College of Law.]

On September 25, 2017, Kurds voted in a self-declared independence referendum organized by the Kurdistan Regional Government (KRG). , According to the referendum results, it appears that about 78 per cent of Kurds actually participated in the referendum and that nearly 93 per cent of participants voted in favor of independence). This post will briefly analyze the Kurdish proposal for independence via a unilaterally organized referendum in the larger context of international law on self-determination and secession.

Although the Kurdish independence referendum resulted in a “yes” vote, does this mean that Kurds automatically have the right to separate from Iraq and form their own independent state? Under international law, the answer is no (despite the Kosovo “precedent,” which should continue to be viewed as exceptional). In international law, one of the main vehicles by which groups have achieved statehood in the post-World War II era is self-determination. Self-determination is a principle of international law which posits that specific groups called “peoples” have the right to auto-determine their political fate. The right to self-determination entails self-governance for peoples and the idea that every people should have a government representative of its interests. This idea is reflected in several important international documents, such as the 1970 Friendly Relations Declaration, which proclaims that peoples are to be “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Within the decolonization paradigm, it was widely accepted that colonized peoples did not possess governments representative of their interests and the principle of self-determination was interpreted in that context as entailing the right to separate from the colonizer and form a new independent state. This type of self-determination has been described as “external,” and is widely seen as the more disruptive form of self-determination because it entails the dismembering of the territory of the mother state. Almost all scholars of international law would agree that colonized peoples had the right to external self-determination. External self-determination is typically exercised through the process of secession – a separation from the larger mother state by the smaller territorial unit inhabited by the self-determination-seeking people. While international law recognizes the right to self-determination, international law does not contain a positive law norm on secession. In other words, no people or other minority group can claim an international law-bestowed right to secede (more on this below).

While everyone in the international community agrees that the principle of self-determination applies squarely within the decolonization paradigm, when this principle was one of the main theoretical foundations toward the creation of new states, it is uncertain as to how this principle applies within other non-decolonization contexts. Outside of the decolonization paradigm, the principle of self-determination has typically been interpreted to entail internal autonomy for the relevant people within an existing mother state- the right to form a representative regional parliament and to elect regional and perhaps national government officials, as well as the respect of other non-political minority rights (such as the right to speak a separate language, to have education choices, to freely exercise a different religion, to have respect for a regional culture, etc.). This type of self-determination has been described as “internal,” and many in the international community argue that outside of the decolonization paradigm, peoples only have internal self-determination rights. Unlike the exercise of external self-determination, the implementation of meaningful internal self-determination rights does not entail disrupting the territorial integrity of the larger mother state. This is why most scholars argue that peoples outside of the decolonization paradigm can only exercise self-determination rights within the territory of their mother state, in an internal manner.

Nonetheless, external self-determination has occurred outside of the decolonization context and is supported by some scholars in limited circumstances. A minority scholarly view recognizes that in instances of extreme persecution by the mother state, a non-colonized people ought to be able to exercise external self-determination through remedial secession (.pdf). According to this argument, if a mother state is completely non-representative of the interests of a particular people, then the people accrues the right to exercise external self-determination through a remedial secession. However, even those who espouse this view do not claim that international law contains a positive right of secession. Instead, secession is a process through which external self-determination may be achieved, and international law at best tolerates secession, in instances of legitimate external self-determination or in exceptional situations, like in Bangladesh or Eritrea. Precedent for this argument exists in recent history – in 2008, Kosovar Albanians unilaterally declared independence and seceded from Serbia, through the exercise of external self-determination. While many other states almost immediately recognized Kosovo as a new sovereign state, it is important to note that almost no such states argued that Kosovar Albanians were indeed exercising external self-determination, or that they had a right to remedial secession. Instead, most argued that Kosovo was sui generis, an exceptional case which does not constitute any sort of precedent in international law. However, the Kosovo “precedent” exists, for better or for worse, and it has been relied upon in the rhetoric of other independence-seeking groups, in South Ossetia and Abkhazia, and by Russia, to justify its annexation of Crimea. The issue of the Kosovar declaration of independence was also the subject of an International Court of Justice advisory opinion in 2010; the world court, in an opinion disappointing to many scholars of international law, avoided issues of self-determination and secession and instead decided that the Kosovar declaration of independence was not prohibited by international law. Thus, in the Kosovo case, secession was tolerated by the international community, not as a right but as the outcome of a self-determination quest (because, inter alia, the Serbian government was deemed as non-representative of Kosovar Albanian interests). This is why the Kosovo case will likely remain exceptional: while it may be viewed as setting a factual precedent, it may not be easily interpreted as crafting new legal precedent on self-determination and secession. In fact, one scholar has argued that Kosovo is a “hard case” which should not be used as precedent for making “bad law.”

What does all of the above imply for the Kurds? Kurds, assuming that they are a people, should have internal self-determination rights respected within Iraq. If those rights are not respected by Iraq, then it may be argued that Kurds would accrue rights to external self-determination, which they could potentially exercise through remedial secession. It is questionable whether, as of today, Kurds can demonstrate that their autonomy/internal self-determination rights are not respected by Iraq. The current government of Iraq may be willing to grant the Kurds meaningful autonomy within Iraq, and if this were the case, then Kurds would have to satisfy themselves with the exercise of internal self-determination. Thus, putting aside the Kosovo “precedent,” it is unclear that the Kurds have the right to secede from Iraq under international law. If the government of Iraq were willing to authorize the Kurds to have an independence referendum and to negotiate a separation agreement, this would then become a matter of domestic/Iraqi law and international law would no longer be relevant. Regardless of the ultimate outcome in Kurdistan, this situation remains pertinent and it will be of particular interests to other independence seeking groups in the near future, such as the Catalan in Spain.

The Law Applied by the UN Syria Commission to the Al-Jinah Strike is Correct – And Reflects US Doctrine: A Reply to LTC Reeves and Narramore

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva.]

A few days ago, US Army Lieutenant Colonel Shane Reeves and Lieutenant Colonel Ward Narramore published a harsh criticism of the U.N. Commission of Inquiry (COI) on Syria for its “emphatic, and faulty, conclusion that the U.S. violated the Law of Armed Conflict (LOAC)” in an airstrike that hit a religious complex in the village of Al-Jinah. The two authors challenge both the factual and the legal findings of the Commission. In this post, I do not engage in the factual controversy – as long as the facts underlying the legal analysis are withheld from public or judicial scrutiny, everyone will inevitably retain room to influence the narrative. However, I challenge the surprising legal claim made by the authors that there is no duty to take all feasible precautions to minimize incidental civilian harm. This reading of the law contradicts a host of sources, including US military doctrine (for a strong critic of other arguments they raised see this on point reply by Adil Haque).

LTC Reeves and LTC Narramore argue that the COI applied a “non-existent legal standard” when it found that “United States forces failed to take all feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in violation of international humanitarian law”. Let us first note that the COI did not, as the authors argue, “impose an absolute requirement on commanders to avoid or minimize incidental loss of civilian life”, but only a duty to take all feasible precautions to achieve this aim–an obligation of means rather than of results.

According to the authors, the COI mistakenly interpreted an obligation to refrain from causing excessive civilian harm as a more demanding duty to take all feasible precautions to minimize incidental civilian harm. It supposedly did so by borrowing the standard of Art. 57(2)(a)(ii) AP I to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding or minimizing incidental [civilian harm]” (emphasis added) and by unduly applying this standard to the proportionality rule (reflected in Art. 51(5)(b) and Art. 57(2)(a)(iii)).

I would respectfully suggest that their view conflates proportionality and precautions, and fails to recognize the full scope of the customary obligation to take precautions. It is clear that the Commission’s findings are not based on proportionality but on precaution rules. These rules include the duty to take all feasible steps to avoid or minimize incidental civilian losses. This obligation derives from Art. 57(1) – which the authors’ analysis omits. That paragraph provides that: “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” This general obligation is to be implemented by taking different precautions including those described in other parts of Article 57. The general aim of “sparing civilians” includes protecting civilians both from deliberate targeting and from incidental harm. In relation to the later aspect, not only is it prohibited to cause excessive collateral damages, there is also a positive obligation to take feasible measures to minimize even those collateral damages that might be deemed acceptable under the proportionality rule.

This duty is stated explicitly in Rule 15 of the ICRC Study on Customary IHL and confirmed by state practice and scholarship. The U.S., which is not a party to AP I, has unambiguously recognized that, as a matter of customary law, “[a]ll practicable precautions, taking into account military and humanitarian considerations, shall be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects” (see here p. 233). This obligation further appears in the U.S. Law of War Manual (see section 5.3.3 on “Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects” and section 5.11 on “Feasible Precautions In Conducting Attacks To Reduce The Risk Of Harm To Protected Persons And Objects”) as well as in the U.S. Operational Law Handbook (“If civilians are present, a duty also exists to take feasible… precautions to minimize civilian casualties”, p. 24). The Commission applies this exact rule. So LTC Reeves and LTC Narramore’s blunt statement that “this is simply not the legal standard” is more than a little surprising.

In their example of an enemy leader in a crowd of civilians, they claim that:

“[T]he law, as currently structured, allows a commander the discretion to drop a bomb on the hypothetical leader assuming the resultant civilian death and injury is not excessive in relation to the expected military advantage gained.”

I argue that the lawfulness of the strike depends on the rest of the story. The commander may well act in compliance with the principle of distinction and proportionality, but if she failed to take feasible precautions that could have brought the foreseeable civilian casualties down to, say, 30 instead of 50, then there is a LOAC violation (although no war crime would be committed).

As to the possible measures aiming at minimizing incidental losses, some are listed in Art. 57 (or in corresponding customary rules of the ICRC’s Study). But they are not limited to that list–and certainly not limited to the choice of means and methods of attack, as the authors seem (?) to suggest when they mention Art. 57(2)(a)(ii). The U.S. Law of War Manual Section 5.11 supports that finding:

“Feasible precautions in conducting attacks may include the following:…”

Feasible precautions could include for instance adjusting the timing or point of impact of the strike. Logically, collecting sufficient intelligence (on the nature of the target, possible collateral damages and how to minimize them) is the first component of the obligation to take precautions. This aspect is an important part of the COI’s findings.

Ultimately, whether the COI was correct when it concluded that the US airstrike on Al-Jinah violated the LOAC depends, as always, on the facts. The views of CENTCOM and the two authors on these facts are important. However, calling into question the law applied by the COI is not warranted here. There is a duty to take all feasible precautions to avoid or minimize incidental civilian casualties and damages–even below the threshold of proportionate collateral damages. Restating this is not an attempt “to usurp the LOAC by injecting some version of human rights laws” but a correct reading of the LOAC. It would be important for the authors to clarify their view, as this rule is too significant to leave the wrong impression that the US does not agree with it (anymore?). There is a number of complex legal questions implicated in this event (such as what precautions were “feasible” in this context, or what the commander could have “reasonably” known and how this relates to the COI’s findings on public knowledge about the religious nature of the building and the frequency of religious gatherings there) – but the existence of this specific rule is simply not one of them.

 

In Celebratus: M. Cherif Bassiouni (1937-2017)

by Mohamed Helal

[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.]

Cherif Bassiouni, Distinguished Research Professor of Law Emeritus and President Emeritus of the International Human Rights Law Institute at the DePaul University College of Law, Honorary President of the Siracusa Institute (formerly known as the International Institute of Higher Studies in Criminal Sciences (ISISC) – Siracusa, Italy), and Honorary President of L’Association Internationale de Droit Pénal, passed away on September 25, 2017.

International law academe customarily mourns the passing of great jurists by authoring In memoria tributes to the departed leaders of our field. However, as I reflected on what to write to honor Cherif’s memory, I felt that an In memoriam was not exactly the suitable tribute. This is because Cherif’s legacy is in no danger of being forgotten. Cherif, or MCB, as his friends and close associates called him, has left us a mammoth scholarly record of thirty-five books, forty-four edited volumes, and over two hundred and seventy law review articles. These publications have been authored in and translated into multiple languages, including Arabic, English, French, Italian, and Spanish and have been cited by the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Supreme Court of the United States, and other judicial bodies.

Through these writings and in over six decades of teaching at the DePaul College of Law, in various universities in the United States and around the world, and at the Siracusa Institute, Cherif made a permanent mark on international law. He is essentially the father of International Criminal Law as we know it today; he is the authority on extradition law and practice; he has made immense contributions to international human rights law; he has written widely on Islamic law and Middle East politics; and he is one of the authors of the Rome Statute of the International Criminal Court. Cherif was also a consummate educator who cared deeply about his students. He always sought to nurture their ability to apply the law rigorously and to live up to the highest ideals of justice to which the legal profession aspires. For his contributions to humanity, Cherif was nominated to the Nobel Peace Prize in 1999, and was awarded numerous medals and decorations from the Egypt, Italy, France, Germany, Austria, Croatia, Bahrain, and the United States.

So in short, Cherif’s legacy is ineffaceable. This makes an In celebratus that commemorates Cherif’s life and contributions a more fitting tribute to this giant of international law.

***

There is one saying that encapsulates Cherif’s worldview. He repeated this saying often and it was included in a final message that he personally authored and that was sent out to his students, friends, and colleagues after his passing. It is this hadith by the Prophet Mohamed:

“If you see a wrong, you must right it:
with your hand if you can,
or, with your words, or with your stare, or with your heart
and that is the weakest of faith.”

Cherif’s life was dedicated to the righting of the many wrongs that afflict our world. He did this through his writings, his teaching, his advocacy, his volunteerism, and his involvement with the United Nations, all of which were all motivated by a commitment to confront tyranny and defend the defenseless. One way to celebrate and honor Cherif is to reflect on his scholarly work and discuss how he helped elucidate concepts such as Double Criminality for the purposes of extradition and articulate principles such as aut dedere aut judicare. Or one could recount his instrumental role in the drafting of the Convention Against Torture and the Rome Statute. However, having been a mentee, friend, and adoptive son of Cherif’s for many years, I would like to recount four stories from different stages in Cherif’s life which I knew were dear to his heart and that reflect his passion for the pursuit of justice.

The first story is from his childhood. As he tells us in his soon-to-be-published memoirs, one afternoon in 1943 his father, who was an Egyptian diplomat, received an unfamiliar guest in their home. Although he was not in the room, an ever-curious and ever-mischievous Cherif listened-in on the conversation. He saw this man roll-up his sleeve to reveal a number that had been tattooed on his forearm. Later, Cherif’s mother explained to him that there was a “bad man” in Europe who was taking certain people, tattooing numbers on their arms, and killing them. Who were these people, and why was the “bad man” killing them, asked Cherif. Unable to reveal the full extent of the terrible truth to her young son and unable to contain her emotions, Cherif’s mother simply told him that these people were Jewish like Mr. so-and-so and Ms. so-and-so who were Jewish friends of the Bassiouni family, and added that the “bad man” didn’t like these people only because they were Jewish. This experience left a lasting impression on Cherif. It introduced this seven year old boy to the existence of evil and ingrained in him a reflexive desire to defend the meek, the voiceless, and the powerless, and to resist those who commit such atrocities.

A few years later, Cherif witnessed another instance of injustice. This time, however, it was not tyranny directed at specific individuals or at particular peoples. Rather, it was imperialism that sought to subjugate an entire nation. In 1956, while he was studying law at the Faculté de Droit of the Université de Dijon in France, Egypt’s revolutionary President Gamal Abdel Nasser nationalized the Suez Canal. Shortly thereafter, Britain, France, and Israel signed the Sevres Protocol pursuant to which they launched the Suez War, which Egyptians call “The Tripartite Aggression,” in a bid to regain control of the Suez Canal and emasculate Nasser’s burgeoning influence across the Arab World and throughout the Third World. Cherif immediately dropped everything, returned to Egypt, joined the National Guard, and fought against the Anglo-French-Israeli invasion forces. For his bravery and for the injuries he sustained in combat, Cherif was awarded the Medal of Military Valor First Class, one of Egypt’s highest decorations at the time. This was Cherif at his finest. In the face of injustice that was manifesting itself at the level of relations among nations, Cherif left the relative safety of a quaint French university campus to risk his life fighting for his country.

The third story comes from the early 1990’s. By then Cherif had been teaching for decades and had become recognized as a leading authority on international criminal law. It was, therefore, natural for his compatriot UN Secretary General Boutros Boutros-Ghali to appoint him to serve on and then chair the Commission of Experts established by the Security Council to investigate the crimes being committed in the former Yugoslavia. The commission had an important impact on the development of international criminal law. It paved the way for the establishment of the International Criminal Tribunal for the former Yugoslavia and the evidence it gathered proved invaluable to the tribunal’s prosecutors as they commenced their investigations. One aspect of the commission’s work that has received relatively lesser attention was its role in shedding light on the use of rape as a weapon of war. The commission conducted interviews with hundreds of female and some male victims of rape, and documented patterns of sexual assault that were undertaken by belligerents to achieve tactical gains on the battlefield, to realize the strategic objective of ethnic cleansing, or for the mere entertainment of troops. Meeting victims of these horrendous crimes deeply affected Cherif. One summer night in his beloved retreat in Michigan he recounted this experience and began telling his wife Elaine Klemen and myself how for years after the end of the commission’s mandate he would get nightmares about the interviews he conducted with rape victims, and how one of his proudest moments was when rape was included as a war crime and crime against humanity in the Rome Statute.

The final story comes from the Bahrain Independent Commission of Inquiry (BICI), which Cherif chaired. I had the privilege of serving as the commission’s Legal Officer and worked closely with Cherif and the other commissioners on BICI’s Final Report. During a visit to a women’s detention facility, Cherif, BICI’s Chief Investigator Khaled Ahmed, and I met two high-profile detainees. These were Jalila Al-Salman, the Vice President of the Bahrain Teachers’ Association, who had been detained for allegedly inciting teachers to participate in anti-government protests, and Rula Al-Saffar, the President of the Bahrain Nursing Society, who had been detained for providing medical assistance to injured protestors. Both of these detainees recounted to us the inhumane and degrading treatment to which they were subjected. As we left the detention facility, Cherif appeared visibly shaken. He told Khaled and myself that he was determined to secure the release of these women and that he would raise the matter with H.M. King Hamad of Bahrain. Being the disciplined positivist that I am, I looked to Cherif and said: “But that’s not in our mandate. Our job is to investigate allegations of human rights abuse and faithfully report our findings. We’re impartial investigators not activists.” He looked at me and said: “Yes, we’re investigators, but we’re also here to do good.” He then went on to tell us about the following incident that happened during his service as the UN Independent Expert for Human Rights in Afghanistan.

He had located a detention facility in which 852 Afghan men where being held in despicable conditions. When he investigated the matter, Cherif discovered that these men had been held incommunicado for over two years because US Attorney General John Ashcroft wanted them to remain detained until they were interrogated. That night after witnessing the agony and misery of these detainees who were neither charged nor indicted of any crime, Cherif knelt to the ground and prayed to God. He said: “I truly want you to make me an instrument of these people’s freedom. I do not want reward or recognition – I just want the satisfaction of getting these people out.” The next morning, Cherif launched a campaign to set these men free. He met US Ambassador Khalilzad and virtually everyone in the Afghan government to secure the release of these men, including the Chief Justice, the Attorney General, the Minister of Interior, and President Hamid Karzai. In each of these meetings, Cherif gave the Afghan Government an ultimatum: he threatened to announce and widely publicize this unjust mass incarceration in his report to the UN Secretary General, unless these men were released. Sure enough, a few days after he returned to Chicago, his representative in Kabul, Hatem Aly, called to inform him that the 852 men had been released and returned to their families.

Naturally, having heard this moving story and seeing Cherif’s resolve to intercede on behalf of Jalila Al-Salman and Rula Al-Saffar, I relented (not that it was up to me whether Cherif discussed the matter with H.M. King Hamad anyway!) Sure enough, weeks later, these two women were released from detention to spend Eid Al-Fitr with their families. This was only one example of many interventions that Cherif and Khaled made on behalf of victims of human rights abuses in Bahrain. They helped reinstate hundreds of students and employees who had been expelled from their schools or jobs for demonstrating against the government and they helped establish a compensation commission to provide financial reparation for the victims of human rights abuses.

***

In addition to his professional pursuits, Cherif was a multifaceted man of many talents and multiple layers of identity.

Cherif was an immensely proud Egyptian. I think there is no story he enjoyed telling as much as that of his fighting in the 1956 Suez War. But Cherif was also a citizen of the world and a proud naturalized American. He unwaveringly believed in those universal self-evident truths that are the foundation of the ideals that make America great. He was an unrelenting advocate of the unalienable right of every human being to pursue a life of liberty, dignity, and happiness.

Cherif was a force of nature. He wrote his latest book on the former Yugoslavia while battling multiple myeloma. Cherif was also a perfectionist. As Kelly McCracken-Pembleton, Giovanni Pasqua, Assia Buonocore, Filipo Musca, Stefania Lentinello, Neil Townsend, Jessica DeWalt, Daniel Swift, Deirdre McGrory, Douglass Hansen, Molly Bench, Kandy Christensen, Meredith Barges, Jennifer Gerard, Kari Kammel, Mohamed Abdel Aziz and all those who worked with him know, Cherif was a tough taskmaster. He was an obsessive micro-manager who paid close attention to every substantive and procedural detail of his work. But he also cared deeply about our lives. To many of us, especially Khaled Ahmed, Yaser Tabbara, Ahmed Rehab, Kelly McCracken-Pembleton, and myself he was our adoptive father. He advised us on our education, counseled us on our careers, consoled us during life’s trials and tribulations, and mediated arguments with our significant others. Cherif was omnipresent in the lives of all those around him, and for many of us, including myself, he was our anchor.

Cherif was a patron of the arts, a connoisseur of fine wines, and an amateur singer (although I wouldn’t count this as one of his outstanding talents!) He was an aristocrat who ‘walked with Kings, but never lost the common touch’. His charm, his charisma, and his sense of humor were enrapturing. His soul was generous and his heart compassionate; he was an unmatched orator; an inspiring teacher; a gifted wordsmith; a spectacular storyteller; and a supreme scholar of encyclopedic knowledge.

Cherif was a warrior for justice. He confronted the worst in man with the best in man, he fought might with right, and stood for virtue in the face of evil.

– Farewell, MCB! Gone, but never forgotten. May you rest in peace.

A Farewell Note from Professor M. Cherif Bassiouni

by Julian Ku

As most of our readers know, Professor M. Cherif Bassiouni, a leading figure in the creation of the field of international criminal law, passed away yesterday at the age of 79. Professor Bassiouni had a large email list of friends and acquaintances, and his email account sent out one last posthumous message last night. We are posting it here for those of you who did not receive it. Please feel free to leave any notes and comments below on your memories of Professor Bassiouni or how his work affected you. 

Oona Hathaway and Scott Shapiro’s New Book “The Internationalists”

by Deborah Pearlstein

I have a review up at the Washington Post. A great read.

If President Trump Ends the Iran Deal, Can He Trigger the Security Council Snapback?

by Jean Galbraith

[Jean Galbraith is an Assistant Professor of Law at the University of Pennsylvania Law School]

President Trump has reportedly made a decision about whether or not to end the Iran deal – although he won’t yet say what he’s decided.  The Iran deal, more formally known as the Joint Comprehensive Plan of Action (JCPOA), is a political commitment rather than an agreement that is binding as a matter of international law.  President Trump can thus abandon the Iran deal without violating international law, although there will be plenty of other repercussions from such a step.

But abandonment will nonetheless raise at least one interesting legal question.  If the United States ends the Iran deal, can it thereby trigger the re-imposition of Security Council sanctions against Iran?

First, a bit of background (discussed more here).  Prior to the JCPOA, the Security Council had imposed various sanctions against Iran – sanctions which all countries were legally obligated to enact.  The core bargain in the Iran deal involved the lifting of sanctions, including these Security Council sanctions, in exchange for Iran’s commitments not to develop nuclear weapons and its acceptance of a monitoring regime.  But what would happen if Iran failed to honor its commitments?  In that case, would there be the votes on the Security Council to re-impose sanctions or instead might Russia or China veto such a resolution?  In order to address this concern, negotiators included innovative provisions in the JCPOA and in Security Council Resolution 2231, which was passed in July of 2015 to help implement the JCPOA.  These provisions have been referred to as the “snapback” provisions, and I have called them “trigger termination” provisions.

Summarizing a bit, Resolution 2231 provided that the pre-existing Security Council resolutions imposing sanctions on Iran are terminated, but they can be reinstated at any time during the next 10 years by any single P5 country (including the United States) or by Germany, under certain conditions.  Specifically, the country seeking reinstatement must notify the Security Council “of an issue that [it] believes constitutes significant non-performance of commitments under the JCPOA.”  If the Security Council does not pass any resolutions on this issue in the 30 days following notification, then the prior resolutions imposing sanctions are automatically reinstated.  These resolutions would not apply retroactively to contracts signed prior to their reinstatement.

If President Trump simply ends the Iran deal without trying to trigger the snapback provision, then he can only re-impose U.S. sanctions.  (He could try to persuade other countries to re-impose sanctions, but his ability to do that in practice will likely be fairly low.)  But what if instead of or in addition to announcing an “end” to the deal, President Trump states that Iran is not complying with the deal and attempts to trigger the snapback provision?  Will this be effective as a matter of law, even if President Trump’s claim of Iranian non-compliance looks like a pretext?

In a comment I wrote in the October 2015 issue of the American Journal of International Law (draft version here), I addressed the issue of a pretextual snapback.  I wrote as follows:

Resolution 2231’s trigger termination has some protections against arbitrar[y use], but not very strong ones.  The activator can be a single state – any one of the P5 [including the United States], Germany, or theoretically Iran.  The standard is that this state must ‘believe’ that there is ‘significant non-performance of commitments under the JCPOA.’  While ‘significant non-performance of commitments under the JCPOA’ is a reasonably clear criterion, the fact that the activator is only required to ‘believe’ this nonperformance to have occurred makes the standard a fairly flexible one.  But although flexible, it is not a grant of total discretion.  It must require a good faith belief in significant nonperformance, for otherwise it would be meaningless.  Indeed, if such a good faith belief is demonstrably absent, other states would have grounds for considering that the trigger termination has not been properly activated.  In that case, they could presumably treat Resolution 2231 as continuing in force and thereby have a legal basis for declining to reinstitute the prior sanctions.

If President Trump tries to trigger the snapback provision now, other countries will have reasonable grounds for disputing the legal effectiveness of such a trigger.  Of course, if the United States walks away from the Iran deal and re-imposes its own sanctions, Iran may then cease its implementation of the deal and ramp up its pursuit of nuclear weapons.  After that point, the United States will have good faith grounds to believe in Iran’s significant non-performance – but if Iranian non-compliance is clearly due to U.S. non-compliance, states might raise other arguments for doubting the legal ability of the United States to trigger the snapback.

In closing, my thanks to the editors of the Opinio Juris blog for letting me contribute this guest post.