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Contextualizing the Debate on First Strikes

by Charles Kels

[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]

The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstein (see here), Jonathan Horowitz (see here and here), and Kevin Heller (see here and here) over the criteria for non-international armed conflict (NIAC) risks overlooking the proverbial elephant in the room: what to do about the phenomenon of states, notably the United States, invoking jus ad bellum principles to both justify and regulate the use of force?

One way of looking at Adil’s “first strike” proposal is as a solution to the problem of so-called “self-defense targeting” or “naked”/“robust” self-defense: it preserves the distinction between the jus belli branches by ensuring, in Daniel Bethlehem’s formulation, that “any use of force in self-defense [is] subject to applicable jus in bello principles governing the conduct of military operations.” Adil’s framework would, at least presumably, complicate the current White House’s efforts to distinguish between “the use of force in armed conflict or in the exercise of the nation’s inherent right of self-defense,” since the very fact of a military strike against certain non-state actors would automatically trigger a NIAC.

Of course, solving one problem can engender others. As Kevin notes, the lex lata is clearly on the side of Adil’s critics in insisting upon a substantive organization and intensity test for NIACs. Perhaps more to the point, the traditional critique of post-9/11 U.S. counterterrorism operations—particularly of the targeted killing variety—has been that a geographically unbounded conflict, whether framed as a war on terrorism or against specific terrorist groups, is essentially asserting the right to render the entire world a warzone. There is at least some (and maybe more than some) validity to this concern, as evidenced by the malleability of extralegal terms such as “areas of active hostilities” that the president can apparently turn on or off depending upon policy preferences.

This is the problem that Jonathan highlights with his Trojan horse analogy: lowering the NIAC threshold triggers humanitarian protections, but also invites wartime rules for targeting and detention. In this view, Adil’s proposal threatens to undo the hard work of those in academia and elsewhere who have persistently rejected the notion of a transnational NIAC without territorial limitations, or what they perceive as powerful states playing fast and loose with the concept of armed conflict in order to inflict lethal force with relative impunity.

Adil’s response to this critique is as brilliant as it is unsettling. Essentially (and to oversimplify), he maintains that the only real consequence of applying international humanitarian law (IHL) to first strikes is to create war crimes accountability for flagrant violations. Otherwise, the co-application of human rights law (IHRL) operates to negate deadly force as a first resort except where states have formally derogated from applicable treaties and such derogating conduct proves necessary (necessity here can only be understood in the IHRL, rather than IHL, sense). Central to Adil’s argument is the notion that IHL does not authorize conduct which it fails to prohibit: comportment with IHL is a necessary, but not sufficient, condition of lawful killing in armed conflict.

It probably comes as no surprise that as a military practitioner, I have deep misgivings about Adil’s cramped reading of IHL (or put another way, his rendering of IHL-IHRL co-application in a manner that appears to swallow IHL in seemingly every case but pitched battle on Napoleonic terrain). His conception of IHL as solely constraining, and never enabling, seems to cut against the way law in general works. To borrow Adil’s driving analogy, is a speed limit of 75 miles per hour not, at least in some way, permission to drive 70?

More specifically, while Adil astutely emphasizes that IHL does not confer “affirmative” legal authorities on states, it does privilege and immunize certain conduct that would otherwise be illegal. This is the point that Deborah made in her colloquy with Adil: IHL provides the legal framework for status-based targeting in armed conflict, not necessarily because it grants the power to kill, but because it removes the presumption that killing is unlawful in virtually all cases besides self-defense. “War,” as Telford Taylor famously wrote, “consists largely of acts that would be criminal if performed in time of peace.” (To Adil’s point that combatant immunity is inapplicable in NIACs anyway, I would only proffer that the convergence of IAC/NIAC norms may increasingly cut against this, and that better minds than mine—notably Ian Henderson and Jen Ohlin—have taken this issue head-on.)

Indeed, what Adil terms the “mistaken view” of states is, in my estimation, the very key to IHL’s cogency and moral force as a self-contained system of licenses and limitations regulating armed conflict and “alleviating as much as possible the calamities of war.” In my own limited experience and understanding, it is hard to overstate the significance of IHL as not just a set of restrictions overlapping and complementing IHRL, but as a moral lodestar critical to defining what it means to be an honorable warrior. Military lawyers tend to perceive IHL less as a barrier or obstacle telling the client what it cannot do—although it serves this function as well—and more “as a prerequisite to the meaningful exercise of power” in the first place. As Geoffrey Corn recently reminded us, IHL “serves to mitigate the potential moral corrosion that is often produced by mortal combat,” in large part by “providing the warrior with a rational and morally grounded framework” undergirding their actions.

It is notable in this regard that many of the pivotal developments in IHL have “owed less to professors, statesmen, or humanitarians, than to soldiers” themselves, resulting in a set of rules both by and for warriors that reflects the accrued wisdom of history and hardship. Armed conflict denotes a specially-defined space wherein soldiers can act effectively, decisively, justly, and—yes—violently pursuant to a unique code of conduct.

This is why it was important to rebut Ryan Goodman when he admirably, but erroneously, argued for a duty to capture under IHL by offering novel conceptions of military necessity and humanity. Under Adil’s proposal, it is worth noting, whether or not IHL imposes a least-restrictive-means requirement wouldn’t terribly matter, since IHRL would sweep in to impose such a requirement in nearly all cases. The difference between Ryan and Adil’s contentions is mostly the locus of the duty to capture—IHL for Ryan and IHRL operating in parallel with IHL for Adil—but the practical effect of undermining clarity in status-based targeting would be similar.

Adil has done us a great service with his erudite discussion shaking up the sometimes stale debate over NIAC definitions. Personally, I find his proposal to lower the NIAC threshold preferable to any suggestion of raising or complicating the categorical IAC threshold, as erring on the side of some realistically effective regulation of violence seems preferable to the prospect of an enforcement vacuum. But we shouldn’t lose sight of the fact that IHL matters, and not just because it puts war crimes culpability on the table. Armed conflict brings into play both the aspects of IHL that human rights lawyers tend to like, and also those that they don’t. Eroding the boundaries between war and peace can’t help but yield this result.

The Corrosive Risks of Lawless Leadership

by Geoffrey Corn

[Geoffrey S. Corn is Professor of Law at South Texas College of Law Houston in Houston Texas. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, retiring in the rank of Lieutenant Colonel. He served a subsequent year as the Army’s senior civilian law of war expert advisor. ]

Leadership is the sine qua non of great military forces. And the reason why is clear: because what military leaders demand from subordinates is a complete willingness to go into harm’s way, put life on the line to achieve the collective mission, and to employ deadly force on command.

There is no easy answer to the question of what attributes that define great leaders. Even if there were a list of objective criteria, the intangible qualities – qualities subordinates and enemies alike recognize – probably defy definition. There is, however, one indispensable attribute: trust. The bond of trust between leader and subordinate – a bond based on commitment to the core values that define the nation for which the military fights – is essential to genuine combat effectiveness.

For the American soldier, integrity is the glue that cements the essential bond of trust between leader and subordinate. Integrity is a core value of the U.S. Army, and demands that soldiers and leaders, “Do what’s right, legally and morally . . . a quality you develop by adhering to moral principles.” Respect for law and a genuine commitment to moral interests advanced by the law are therefore central to truly effective leadership and the development of combat effective units.

Respect for law is therefore central to the maintenance of good order and discipline in the military unit, and in that sense is a genuine, “force multiplier” for the unit commander. But true good order and discipline requires more than blind obedience to superior orders. It requires trust – trust that the leaders issuing those orders adhere to the same core value of integrity as the subordinate tasked to obey them. Indeed, it is a myth that military leaders develop units willing to endure the challenges, dangers, and deprivations of war through despotic or dictatorial leadership detached from commitment to law and morality. Indeed, any leader who thinks obedience is ensured by leveraging fear for the consequences of disobedience does not understand the time-tested link between quality leadership and combat effectiveness. Ultimately, the fear of what the subordinate is asked to do will almost always outmatch the fear of sanction for refusing to do it; subordinates confront those fears and the risks of combat that produce them not because they are afraid of their leaders, but because they trust them.

In the U.S. military, commitment to values plays a critical role in building the mutual trust and respect essential to good order and discipline and genuine combat effectiveness. Doctrinal publications that address leadership are replete with this message, emphasizing that men and women who volunteer to serve the armed forces of our great democracy expect their leaders to embrace the values that define our nation. This reflects a recognition that true motivation flows from building genuine trust between the leader and the led; trust that flows from mutual respect. This is what lays the foundation for developing a commitment to a common cause; a passionate desire to make the maximum individual contribution to the collective effort. Indeed, as an officer candidate, the first piece of, “required knowledge” I and my fellow candidates had to commit to memory and recall on demand emphasized this central truism of military leadership. It was General Schoffield’s Definition of Discipline, which warns that, “The discipline which makes the soldiers of a free country reliable in battle is not to be gained by harsh or tyrannical treatment. On the contrary, such treatment is far more likely to destroy than to make an army.”

Prior to the U.S. presidential election, numerous highly respected experts expressed significant concerns about Donald Trump’s commitment to rule of law in relation to military and national security policy development and execution. These concerns have not abated since his victory, and while the signs are still cryptic, many observers fear he, and those he has appointed to senior positions within his administration, will seek to revert back to the type of law avoidance that in many ways defined U.S. national security policy in the aftermath of the tragic terrorist attacks of September 11th, 2001.

This would be a tragic error, and some commentators, including me, have already warned of the adverse strategic consequences of such backsliding. But these potential adverse consequences are not the only reason to be opposed to the dismissal of international legal obligations related to the conduct of hostilities and treatment of detainees. Another, and perhaps even more profound reason, is the corrosive effect on our armed forces such an approach will produce.

The legal regulation of armed conflict advances a range of important interests. The most commonly referenced is the mitigation of human suffering resulting from the effort to limit the destructive and harmful effects of war to only those that are justified by military necessity. However, there is another interest that is often overlooked, an interest directly linked to effective leadership and good order and discipline: providing the warrior with a rational and morally grounded framework that contributes to mitigating the moral hazard resulting from the brutal reality of war. This is no trivial or inconsequential benefit. Men and women who have been subordinate to command directives related to warfare understand, perhaps uniquely, the consequences of unleashing mortal combat power. Indeed, the very essence of military duty is the obligation to employ deadly combat power on order; to kill on demand.

The law of armed conflict serves to mitigate the potential moral corrosion that is often produced by mortal combat. This benefit of legal compliance is perhaps best articulated by Telford Taylor, World War II Army intelligence officer, and subsequently a principle prosecutor of high ranking Nazi war criminals in his book, Nuremberg and Vietnam: An American Tragedy,:

Another, and to my mind, even more important basis of the laws of war is that they are necessary to diminish the corrosive effect of mortal combat on the participants . . .

Unless troops are trained and required to draw the distinction between military and non-military killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives . . .

As Francis Lieber put the matter in his 1863 Army regulations: “Men who take up arms against one another in public war do not cease on this account to be moral beings . . .

Law, or more importantly fidelity to the law, enables this effect, as well as the derivative benefit of building the bond of trust between superior and subordinate. Commanders and other leaders in a military unit are looked to by subordinates to make decisions that advance the objective of mission accomplishment. But there is also an expectation that they will do so consistently with institutional core values, which means subordinates expect that the tasks they are assigned, no matter how brutal or violent, are aligned with their legal obligations.

Responsible commanders understand this, and build units that are prepared to unleash combat power violently and decisively. But that willingness is built on a foundation of trust: that the orders they are executing are consistent with the core values of their military institution and with their nation. Accordingly, commanders must recognize that subordinates simply assume that when, where, and how they use that power must align with the law of armed conflict. As I discussed in an article written last year, international law has historically linked the qualification to engage in hostilities – the “privilege” of belligerency – with operating under responsible command. If all “responsible” meant in this equation were developing subordinates who obey orders, then units like the Japanese forces in Nanking or the German Einsatzgruppen would be icons of responsible commands. But we know they are not; that they are icons of leadership failure. Why? Because their obedience was disconnected from the imperatives of law and morality.

Any high level decision that compels, or even encourages disconnection from the legal underpinnings of truly responsible leadership risks corroding the bond of trust and confidence between leader and led. Even where a short term tactical or operational advantage is perceived from such policies, this must be outweighed by the long term negative consequences to good order and discipline, and to the moral integrity of the men and women who accept the burden of service. Leaders bear an obligation to protect from the hazards of war, not only physical, but also moral. As James McDonough expressed so prophetically in his seminal memoir of small unit leadership in Vietnam,

I had to do more than keep them alive. I had to preserve their human dignity. I was making them kill, forcing them to commit the most uncivilized of acts, but at the same time I had to keep them civilized. That was my duty as their leader . . . War gives the appearance of condoning almost everything, but men must live with their actions for a long time afterward. A leader has to help them understand that there are lines they must not cross. He is their link to normalcy, to order, to humanity. If the leader loses his own sense of propriety or shrinks from his duty, anything will be allowed . . . War is, at its very core, the absence of order; and the absence of order leads very easily to the absence of morality, unless the leader can preserve each of them in its place.

It is imperative that all military leaders, including our commander in chief, understand this vital relationship between law and leadership. This is why U.S. commitment to law must be manifested in every aspect of our military operations, and projected globally as a defining aspect of our global identity. Disconnecting leadership from the time-tested and credible legal foundation provided by the law of armed conflict risks corrosion of the essential bond of trust between leader and led. The decisions made by our president, and the tone those decision project, will reverberate through the force with intense magnitude. As a desktop leadership reminder that I inherited from a former commander emphasizes, “leader actions are exaggerated and repeated.” What needs to be exaggerated and repeated is commitment to law, and to the integrity and honor that such commitment manifests. And that must start with our President.

A Brief Rejoinder to Haque on the ICRC’s Interpretation of NIAC

by Kevin Jon Heller

My thanks to Adil Haque for his response to my post. Adil and I rarely disagree in any profound way about IHL, so it’s enjoyable to spar with him about whether a first-strike by government forces against an organized armed group automatically creates a NIAC — thus triggering IHL — or whether a certain intensity of hostilities between the two is required.

I will have more to say about Adil’s response soon, but I wanted to quickly address one particular implication in his post: namely, that the ICRC’s Commentary on AP II supports his claim that a single military operation by government forces or by an organized armed group is sufficient to trigger a NIAC because it is more than a “sporadic act of violence.” Here is what he writes:

In my view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a “sporadic act of violence” within the meaning of APII 1(2). On this point, I follow the ICRC Commentrary to APII, which negatively defines “isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups.” APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe “acts of violence against the adversary in offence or defence” (that is, attacks as defined by API).

With the exception of ambiguous quotes like the one above, there is little support in the ICRC’s Commentary on AP II or in any of the ICRC’s commentaries for Adil’s position. The ICRC clearly believes that any kind of NIAC — AP II or Common Article 3 — requires adequately intense hostilities.

Let’s start with the AP II Commentary Adil cites. The Commentary opens its discussion of AP II by emphasizing (p. 1343) that CA3 and AP II have the same structure — and that neither applies in the absence of sufficiently intense hostilities (emphasis mine):

The content and scope of all of these articles will be analysed in the respective comments on them. Before doing this it seems useful to have a closer look at the basic pattern of Part I, which reveals the similarity of the ideas which inspired Protocol II and common Article 3. To understand the scope of the Protocol one should indeed always bear in mind the fact that this instrument supplements and develops common Article 3; it is an extension of it, and is based on the same structure.l Their common characteristics find expression, explicitly or implicitly, in Part I. These can be summarized as follows…

The threshold where Protocol II becomes applicable is determined by the criteria expressed in Article 1 (Material field of application), which means that it is intended to apply only to conflicts of a certain degree of intensity.

Later, the Commentary discusses (p. 1355) what AP II means by “internal disturbances,” taking the position that such disturbances include situations in which military operations by government forces — even against an organized armed group — do not lead to sufficiently intense hostilities (emphasis mine):

[T]he ICRC gave the following description of internal disturbances during the first session of the Conference of Government Experts in 1971:

“This involves situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules.”

[snip]

In short, as stated above, there are internal disturbances, without being an armed conflict, when the State uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.

Finally the Commentaries specifically point out (p. 1356) that such “internal disturbances” do not create a NIAC and do not trigger IHL:

Internal disturbances and tensions are not at present within the field of application of international humanitarian law; the ICRC has carried out activities in this field on an ad hoc basis. However, this does not mean that there is no international legal protection applicable to such situations, as they are covered by universal and regional human rights instruments. 31 It is not within the scope of this commentary, however, to go into that subject.

The ICRC’s position on CA3 and AP II NIACs — as requiring hostilities of a certain intensity, and thus as not being triggered by “first strikes” — is an old one. Here is what Pictet said (p. 49) in the ICRC’s 1952 Commentary on the First Geneva Convention (emphasis mine):

[I]t was suggested that the term “conflict” should be defined or, which would come to the same thing, that a certain number of conditions for the application of the Convention should be enumerated. The idea was finally abandoned — wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list of those contained in the various amendments discussed; they are as follows:

(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

This statement only implicitly endorsed an intensity requirement, so Pictet clarified that the was talking about actual hostilities between government forces and an organized armed group in the ICRC’s 1960 Commentary on the Third Geneva Convention (p. 37):

Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities –conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.

And just in case that statement remained ambiguous (“both” would have been more precise than “either”), the ICRC clarified in its 2016 Commentary on the First Geneva Convention that of the various indicia of NIAC that Pictet discusses, intensity is one of the two most important ones (emphasis mine):

387  A situation of violence that crosses the threshold of an ‘armed conflict not of an international character’ is a situation in which organized Parties confront one another with violence of a certain degree of intensity. It is a determination made based on the facts.

421  Over time, of the criteria enumerated in the Pictet Commentaries, two are now widely acknowledged as being the most relevant in assessing the existence of a non-international armed conflict: that the violence needs to have reached a certain intensity and that it must be between at least two organized Parties/armed groups. The existence of a non-international armed conflict thus needs to be assessed according to these specific criteria.

422  The wording of common Article 3 gives some rudimentary guidance on its threshold of application: what is required is an ‘armed’ ‘conflict’ not of an international character, in which ‘Part[ies] to the conflict’ are involved. This indicates that for common Article 3 to apply, a situation of violence must have reached a certain level of intensity, characterized by recourse to arms by non-State armed groups that are capable of being Parties to an armed conflict.

According to the ICRC, in short, all NIACs require adequately intense hostilities. The difference between a CA3 NIAC and an AP II NIAC is one of degree rather than kind.

The ICRC Commentaries are only as good as the analysis they contain, so Adil is obviously free to defend an interpretation of Art. 1 of AP II and of Common Article 3 that reads the intensity requirement out of NIAC. In doing so, however, he is clearly breaking with the ICRC.

Second Thoughts on First Strikes: A Reply to Heller

by Adil Ahmad Haque

[Adil Ahmad Haque (@AdHaque110) is a Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School.  His first book, Law and Morality at War, will be published by Oxford University Press in January.]

My sincere thanks to Kevin Heller for thoughtfully engaging with my view that the law of non-international armed conflict (NIAC) applies to first strikes between State armed forces and organized armed groups. Kevin’s post raises a number of important issues, and I am grateful for the opportunity to discuss them. At the outset, I should note that my original post mostly discussed common article 3 of the Geneva Conventions and the customary law of NIAC. However, since Kevin primarily discusses Additional Protocol II, so will I.

Kevin writes that

the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities . . . is based squarely on Art. 1(2) of Additional Protocol II, … which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

Kevin goes on to write that

[t]he text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government?

In my view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a “sporadic act of violence” within the meaning of APII 1(2). On this point, I follow the ICRC Commentrary to APII, which negatively defines “isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups.” APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe “acts of violence against the adversary in offence or defence” (that is, attacks as defined by API).

Unfortunately, the ICRC Commentary goes astray when it suggests that APII only applies to “sustained and concerted” military operations. According to the Commentary,

[a]t the beginning of a conflict military operations rarely have such a character; thus it is likely that only common Article 3 will apply to the first stage of hostilities.

Indeed, common article 3 applies to the first stage of hostilities. So does APII. The ICRC’s contrary view is hard to square with the text of APII 1(1), which refers to

organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

APII 1(1) requires that a group has the ability to carry out sustained and concerted military operations, not that the group has already carried out such operations. In other words, this clause bears on the organization criterion, not on the intensity criterion.

The only term in APII 1(1) that bears on the intensity criterion is “armed conflict.” On the prevailing view, an “armed conflict” between States begins with the first use of military force by one against the other. In my view, an “armed conflict” between a State and an organized armed group begins with the first military operation by one against the other. Nothing in the text of APII 1(1) or APII 1(2) precludes this symmetrical approach.

As Kevin notes, I believe that we should interpret the term “armed conflict” in light of the object and purpose of IHL, namely to protect human beings against dangers arising from military operations. In general, we interpret all the terms of a treaty in light of the object and purpose of the treaty as a whole. If protecting human beings from military operations is the primary purpose of APII as a whole, then we should interpret every term of APII in light of that purpose. The term “armed conflict” should be no exception.

In contrast, Kevin argues that while IHL’s protective purpose should inform our interpretation of IHL’s substantive rules, it should not inform our interpretation of IHL’s field of application. I find this argument hard to accept. After all, there is no easier way to subvert the object and purpose of a legal rule than to deny its application. Indeed, according to the ICRC, “Common Article 3 . . . gave rise to a great variety of interpretations and in practice its applicability was often denied.” APII 1(1) was drafted in order “[t]o improve the protection of the victims on non-international armed conflicts” by ensuring that “the authorities concerned could no longer deny the existence of a conflict” and, with it, all the protections of IHL. Whether it succeeded in that aim is another matter.

Now, Kevin also suggests that we don’t need to look to the object and purpose of APII to interpret the term “armed conflict” because, in the language of the Vienna Convention, subsequent practice in the application of the treaty establishes the agreement of the parties that it does not apply to first strikes. It’s an empirical question, and Kevin may be right. We would have to look at State practice and see what we find. If Kevin is right, then I would indeed make the normative argument that States should change their view. As Kevin knows, I am quite fond of normative arguments.

However, I suspect that States haven’t thought this question through. If they did, I suspect that they would insist that IHL requires humane treatment of a single soldier captured by an armed group, and that IHL constrains the initial advance of a group like Daesh. Or so I argued in my initial post.

Finally, Kevin argues that my purposive approach entails that IHL should apply to military operations by State armed forces against unorganized armed groups. As Kevin puts the point, “[a]ll of Adil’s arguments against the intensity requirement apply equally to the organization requirement.”

Of course, APII 1(1) expressly states that APII applies only to armed conflicts between State armed forces and organized armed groups that possess responsible command, territorial control, and the ability to carry out sustained and concerted military operations as well as to implement APII. While the terms of APII’s organization requirement should be interpreted in light of APII’s object and purpose, they cannot be ignored.

For their part, common article 3 and the customary law of NIAC apply to all organized armed groups, irrespective of territorial control. Importantly, it is a structural principle of IHL that IHL applies equally to opposing parties and their armed forces. The legal obligations that IHL imposes on armed groups presuppose that such groups are sufficiently organized that they are capable of conforming to those obligations. Where such organization is absent, individuals must seek legal protection in human rights law, the law of genocide and crimes against humanity, and domestic criminal law. IHL is designed to protect human beings from one source of danger. Unfortunately, there are others.

First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate

by Kevin Jon Heller

I have been following with great interest the debate at Just Security between Adil Haque and Jonathan Horowitz over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a “first strike” at an organized armed group or whether hostilities of a certain intensity between the two are required. Adil takes the former position (see here, here, and here); Jonathan takes the latter one (see here and here).

Though Adil’s posts exhibit his typical brilliance, my sympathies lie with Jonathan. To begin with, as a matter of the lex lata, I don’t think the argument is even close: the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).

Adil, it is worth noting, has a different interpretation of AP II, one that does not require intensity:

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict. The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

This is a difficult position to defend. The text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government? More importantly, despite some stray practice cited by Michael J. Adams and Ryan Goodman in this post, states have simply never interpreted the AP II standard to require only organization.

Even more problematic, though, is Adil’s argument that the “object and purpose” of IHL counsels against conditioning the application of IHL on adequately intense hostilities:

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

As regular readers know, whenever I see arguments based on the supposed “object and purpose” of a treaty, I reach for my pen. All too often, such arguments simply use object and purpose to justify interpreting a treaty in a manner that specifically contradicts the intention of the states that drafted and concluded it. And unfortunately I think that is what Adil does here. He defends applying IHL to first strikes by claiming that the “object and purpose” of IHL is “to protect human beings against dangers arising from military operations” (emphasis mine). But that is misleading: the object and purpose of IHL is to protect human beings against dangers arising from military operations in armed conflict. If there is no armed conflict, IHL has nothing to say about the danger of military operations — because IHL doesn’t apply. And as discussed above, states have always insisted that a first-strike military operation is not enough to create an armed conflict — IHL applies only once there are adequately intense hostilities between government forces and the organized armed group.

Adil is free, of course, to normatively argue that IHL should apply to first strikes in NIAC because doing so would better protect human beings. I would disagree, but the claim is coherent and deserving of discussion. What he can’t do is base that claim on the object and purpose of IHL, because that would be to use an object and purpose that only applies within armed conflict to justify changing the definition of armed conflict itself. The definition of when IHL applies cannot be determined by reference to what the goals of IHL are once it applies. That definition has to be sought outside of the IHL system — and again, it is clear that states do not want IHL to apply to first-strike military operations against organized armed groups.

There is, however, an even deeper problem with Adil’s argument that the need to protect human beings from military operations counsels a definition of NIAC that does not require adequately intense hostilities: if that is true, there is also no reason why the application of IHL should require armed groups to be organized. All of Adil’s arguments against the intensity requirement apply equally to the organization requirement. If we need to protect human beings from the dangers of first-strike military operations by states against organized armed groups, surely we also need to protect them from the dangers of first-strike military operations by states against unorganized armed groups. After all, Adil’s central argument is that the inherent danger of military operations means that IHL should apply to a first-strike regardless of whether that military operation leads to any kind of hostilities.

I see no convincing response to this criticism. It is tempting to argue that the organization requirement is important because a first-strike military operation against an organized armed group is much more likely to lead to actual hostilities than a first-strike military operation against an unorganized armed group. But Adil rejects the idea that hostilities are relevant to the application of IHL. He believes IHL should apply even if a first-strike military operation meets with no response whatsoever.

Another potential response would be to argue that first-strike military operations against organized armed groups pose greater dangers for innocent civilians than first-strike military operations against unorganized armed groups. But that would be a difference of degree, not of kind — and thus far from a convincing basis for applying IHL to the former and not the latter. I’m also not sure whether the claim is even empirically sound. It is at least equally plausible to assume that states are more willing to use military force against unorganized individuals whom they can assume will not fight back (or will not fight back effectively) than against an organized armed group with the capacity to respond to a first strike with military operations of its own.

Adil’s desire to protect human beings from the dangers of military operations is laudable, but his claim that IHL should apply to first strikes against organized armed groups cannot be sustained. Not only have states insisted that IHL applies only to hostilities that reach a certain level of intensity, the idea that protecting individuals from the danger of military operations requires eliminating the intensity requirement is underinclusive. Those dangers exist for all military operations, even those against unorganized armed groups. So the only consistent — if still objectionable — position is that IHL applies to any military operation launched by a state, regardless of its object. I’m curious whether Adil would be willing to take that position.

Clarifying the Alternative: International Criminal Justice Options for African Union Member States

by Oliver Windridge

[Oliver Windridge is a British lawyer specializing in international human rights and international criminal law. Oliver is founder of The ACtHPR Monitor, an independent blog and website dedicated to the African Court on Human and Peoples’ Rights, on twitter @acthpr_monitor. In June 2014 he was one of five non-African lawyers to be appointed to the Court’s inaugural list of Legal Aid Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organization affiliated to the author.]

Following moves from Gambia, Burundi and South Africa in the past weeks to withdraw from the ICC, much thought is now being given, and keyboards worn down, by the international community as it considers what this news will mean for these countries individually, Africa more generally and of course the ICC.

I want to slightly side-step some of these issues though and address the seemingly confused narrative circulating on the African alternative to the ICC. This seems especially important given the South African Minister for Justice Michael Masutha’s first statement on South Africa’s withdrawal from the ICC which reportedly included the line “South Africa will work closely with the African Union and with other countries in Africa to strengthen continental bodies, such as the African Court on Human and People’s Rights, created to deal with such crimes and to prosecute the perpetrators, whilst at the same time continuing to participate and honour its commitments under international human rights instruments.”

Let’s be clear, the African Court on Human and Peoples’ Rights does not and will not, barring an extraordinary turn of events, ever have the jurisdiction to try cases of genocide, crimes against humanity and war crimes. The African Court is a human rights court, similar in many ways to its European and Inter-American cousins. It has jurisdiction to consider alleged violations of the African Charter on Human and Peoples’ Rights and other international human rights instruments to which the member state in question has signed up to, but nothing in the African Court’s statute, Protocol or Rules gives the African Court the power to prosecute individuals for crimes such as genocide, crimes against humanity and war crimes. To point to the African Court as an alternative to the ICC is like Germany or France withdrawing from the ICC and then pointing to the European Court of Human Rights to handle things from now on.

There is another possibility for AU member states though on the horizon and one that not only has the same jurisdiction as the ICC but actually one much greater; the African Court of Justice and Human Rights (ACJHR). At present however this court exists on paper only in the form of the Protocol on the Statue of the African Court of Justice and Human Rights and the subsequent 2014 Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Read through this second Draft Protocol and there emerges details of a mega-court that would subsume the current African Court on Human and Peoples’ Right which would then exist as a “Human and Peoples’ Rights Section”, alongside a “General Affairs” section and an “International Criminal Law” section. The International Criminal Law section would have three chambers, a Pre-Trial Chamber, a Trial Chamber and an Appellate Chamber and have jurisdiction to try individuals on charges of genocide, crimes against humanity and war crimes. Sound familiar?

There are however a number of differences between the ICC and the International Criminal Law Section of the ACJHR. To start with, in addition to genocide, crimes against humanity and war crimes, the ACJHR would have jurisdiction over a further 11 crimes including corruption, mercenarism and the trafficking in persons and drugs, creating an ambitious roster of 14 crimes under its jurisdiction (Article 28A, Draft Protocol). Additionally, the International Criminal Law Section of the ACJHR would include immunity from prosecution for serving AU heads of state or government and other “senior state officials” whilst in office- a vague definition if there ever was one (Article 46A bis, Draft Protocol). But above concerns over immunity and jurisdiction exists the real kicker; to take the ACJHR off the page and into reality requires at least 15 AU member states to ratify the amended Protocol (Article 11, Draft Protocol). Currently however, not a single AU member state has ratified the Draft Protocol and its international criminal law section- not one. This complete lack of ratification goes some way to demonstrate the clear gap that exists between those advocating for withdrawal from the ICC ostensibly to allow the AU to handle matters, and those who have actually signed up to the AU’s alternative.

So as Gambians, Burundians, South Africans and the wider world starts to come to grips with what withdrawal from the ICC could mean, let’s be clear on the regional alternative – the African Court of Justice and Human Rights and where it currently exists- on paper only.

Torture and the U.S. Military

by Deborah Pearlstein

Cross-posted at Balkinization

There should by now be little doubt that various members of the incoming administration, including the President himself, would be willing to torture terrorist suspects should opportunity arise. On the campaign trail, Donald Trump expressed a desire to return to “waterboarding” terrorism suspects and “worse.” Mike Pence declined to rule out torture when asked about it expressly this past weekend. Nominee for CIA Director Mike Pompeo opposed President Obama’s decision in 2009 to close C.I.A. black-site prisons and also to require interrogations to comply with the rules of the Army Field Manual. Army Lt. Gen. Michael Flynn, the choice for national security adviser, is perhaps more equivocal. As a firsthand witness to the counterproductive effects of abusive interrogation, he has said that “I would not want to return to ‘enhanced techniques,’ because I helped rewrite the manual for interrogations.” On the other hand, “if the nation was in grave danger from a terrorist attack involving weapons of mass destruction, and we had certain individuals in our custody with information that might avoid it, then I would probably OK enhanced interrogation techniques within certain limits.”

Even with all best intentions, Congress and the courts are unlikely to play much role at the outset in reining in this particular kind of presidential ambition. There are clear statutory prohibitions against the use of torture as it is; and the courts are empowered to act only once an actual case or controversy is before them. It was in no small measure in the face of the same dilemma during the first George W. Bush administration that so many legal scholars turned to focus on the role of internal, intra-branch checks on executive power – the Justice Department Office of Legal Counsel, agency Inspectors General, and others. It also became apparent that the uniformed military could be included among potentially available checks on executive power.

After the attacks of 9/11, military lawyers and others in the Pentagon played a critical role resisting efforts by the Bush Administration to evade laws barring torture and cruelty to detainees in U.S. custody. Not only was such treatment illegal, they argued, authorizing techniques the troops had long been trained were prohibited was disastrous policy: it sowed confusion in the field, compromised operational effectiveness, endangered our troops, and undermined the mission they had been sent to carry out. Well beyond the Pentagon, it was a young Army specialist who helped blow the whistle on the torture that permeated the U.S.-run Abu Ghraib prison in Iraq, and a Major General whose investigation made clear to Congress how inadequate resources, training, and accountability helped allow the abuse to endure and spread. Elsewhere, military lawyers urged Congress to investigate whether war crimes trials at Guantanamo could ever actually succeed in delivering justice. And it was an Army Reserve lieutenant colonel whose declaration about his experiences at Guantanamo extraordinarily persuaded the Supreme Court to change its mind and agree to decide whether the detainees there had a constitutional right to have their cases heard. Entirely apart from the military’s duty to disobey manifestly unlawful orders, both active duty military, and retired leaders, played a pivotal role in preventing America’s torture crisis from becoming worse than it was.

Yet as laudable as this service was, and especially as the incoming administration peoples itself with retired generals galore, the idea that the military might limit the President in the pursuit of his goals should seem at some level exactly backwards. The President is, after all, the Commander in Chief of the military, a symbol of our country’s bedrock principle of civilian control. That principle was born in part from a (Revolutionary War-era) fear of military oppression in ordinary life, a fear that seems unlikely today. But it was also driven by the worry that the military – whose political popularity is unsurpassed in contemporary American life – was capable of exercising outsized influence over democratic decision-making. The image of the “man on horseback” came to symbolize the concern that a particularly successful and charismatic commander could effectively lead the public down a path contrary to its own democratic interests, undermining the ability of elected leaders to accomplish the policy goals the People wanted them to fulfill.

While the military has of course changed dramatically since the Constitution was drafted, the enduring concern that the military might unduly influence politics led to a series of regulations beginning in the early twentieth century restricting active-duty military from engaging in political activities. Congress came to prohibit officers from holding civil elective office, and to impose criminal penalties for using “contemptuous words” against the President, members of Congress, or other elected officials. Today, active duty military personnel are prohibited from participating in partisan political fundraising, rallies, or conventions; using official authority or influence to interfere with an election; or soliciting votes “for or against a partisan political party, candidate, or cause.”

Such proscriptions are sensible. But these rules, coupled with powerful career incentives, have too often been understood to limit the honest expression of professional military dissent. There was in Washington’s time, and today remains, a critical difference between a military expression of partisan alliance and one of professional judgment. And there is certainly a difference between expressions of political disagreement, and an insistence on adherence to law. The era of Abu Ghraib taught us that there is a range of ways in which the military can, consistent with their own duty to uphold the nation’s Constitution and laws, help to steady the ship of state. Of course the military is no panacea. Plenty of troops supported Donald Trump, and not all would oppose a return to torture. But it is also clear that the military is capable of performing at least a part of the same service Americans should expect of all our political institutions: as a platform from which people of good will and a commitment to law can make their voices heard. Those concerned about a return to torture should reach out. For it is as least as likely as any of our institutional checks to help constrain whatever policy adventurism is to come.

Trump and the UN

by Kristen Boon

Like most policy issues in his campaign, Trump’s references to the UN and multilateralism have been brief.   If one searches for Trump & the UN, the main hit are statements made in 2005 that he could do a much better job renovating the UN than the UN itself!

Apart from disparaging remarks about the Paris climate change agreement, the TPP, NATO and NAFTA made in the heat of the campaign, there has been no consistent message about multilateralism. Moreover, as Deborah noted in her post earlier this week, he has already (thankfully) retreated from some of these remarks.

To the extent we can make predictions at this point however, an observation in an IPI editorial last week has merit:   “a Trump presidency may challenge a post-World War II American record of establishing long-term global security alliances.”  Although the Trump World Tower is directly across the street from the UN, it seems unlikely it will be much of a pied-a-terre for real engagement with the UN.

At present, we know his top pick for UN ambassador is Richard Grenell, a former UN Spokesman and current media strategist.   His writings and thoughts on foreign policy are available here.  We also know Trump plans to pull the US out of the Paris Agreement that only entered into force in early November. Although Ban Ki Moon has gone on record to say that he is “sure [Trump] will understand …. [and] make a good and wise decision” and shift course on global warming and climate change, a source in the Trump campaign said it was “reckless” for the agreement to enter into force before the election.

There will be important reputational effects for the US as it seeks to withdraw from this treaty, particularly if the normal exit process is disregarded. That is to say nothing of the effect on the world’s climate. Moreover, the statement runs up against a basic tenet of international law that the legal entity in international law is the state, and the government is only the representative of the state.   The Obama Administration was clearly within its rights to sign the accord, and any “recklessless” must be attributed to Trump.    Unfortunately, Trump’s determination to upend the Iran deal may have a similar effect: destabilizing an important pact that took years to engineer while threatening to open up the nuclear race once again.

A few issues to watch as Trump takes over the presidency in the new year include the effect of a more like-minded approach between the US and Russia at the UN.   If Trump and Putin engineer a rapprochement, some of the recent deadlocks we have witnessed between the super-powers will evaporate, and may reinvigorate partnerships at the UN.   But what would this look like in practice? Less opposition to Russia’s expansionist tendencies?  Less use of the veto?   More opposition to references to human rights, protection of civilians in Security Council resolutions? Less activism? Shifting priorities for which regions the Security Council should engage with? Certainly for Syrians, the Trump presidency does not seem hopeful.   Yesterday Asad called Trump a natural ally in the fight against terrorism.

Moreover, institutions that challenge the US – take for example, the signal that the ICC may open an investigation into events in Afghanistan that implicate Americans – will both test his diplomatic mettle and provide easy fodder for critics of international institutions.   Trump’s relationship with the new Secretary General Antonio Guterres will also relevant. As both assume new leadership roles, their view on issues like migration and refugees could not be more diametrically opposed.  With two of the five P5 states (the UK and US) moving towards a more isolationist position, the global appetite for multilateralism has changed significantly, and the effects on dynamics within the UN will clearly be profound.

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

Dualism is Overrated – As is Monism: A Response to Julian Ku

by Odile Ammann and Benedikt Pirker

[Odile Ammann is a PhD candidate at the University of Fribourg, Switzerland and a visiting researcher at the University of Oxford. Benedikt Pirker is a Senior Lecturer (Maître d’enseignement et de recherche) at the University of Fribourg, Switzerland, where he teaches and does research in international law and EU law.]

In his Opinio Juris blogpost of November 3, Julian Ku contends that “dualism may save the United Kingdom from Brexit.” To make this claim, he starts by emphasizing an alleged correlation between dualism and a State’s propensity to “violat[e] international law obligations by failing to enforce those obligations (usually treaties) domestically.” However, according to Ku, the decision of the High Court of Justice of England in Wales in Miller v Secretary of State for Exiting the European Union of November 3 tells us otherwise, namely that dualism “makes it harder [for a State] to withdraw from [its] international obligations.” Ku places an emphasis on the High Court’s statement that while the conduct of foreign affairs (and more specifically “the making and unmaking of treaties”) is a prerogative of the Crown, the Crown cannot change domestic law when making use of these powers. More specifically, the Crown, in using these powers, “cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights” (Miller, paragraphs 32 and 33; see also para. 89).

We argue that, contrary to Julian Ku’s assessment, dualism is overrated – as is monism, for that matter. In other terms, the domestic procedure that governs the State’s withdrawal from its international obligations does not hinge on whether a State is monist or dualist. It may be equally difficult (or easy) for dualist States to withdraw from (or to violate) their international obligations as for monist States.

Our response has three parts. First, we show that Miller is not a case about dualism. Instead, it addresses the question of the domestic procedure that applies when the State terminates an international agreement. Secondly, neither dualism nor monism encourage (or hamper) the State’s termination of its international obligations. In a third step, we draw an example to Switzerland to demonstrate that monism creates a number of challenges, too, as regards the termination of international agreements and, more generally, State compliance with international law. We also highlight the fact that the Swiss law on the termination of treaties is similar to the procedure identified by the High Court in Miller. In short, neither monism nor dualism encourage or discourage a State’s termination of its international obligations.

I. Miller v. Secretary of State is not a case about dualism

Some passages of the High Court’s decision in Miller could indeed suggest that the case is about dualism. Besides stressing that 1. the Crown cannot, when exercising her prerogative powers to make or unmake treaties, unilaterally change domestic law (para. 32), the High Court notes that 2. domestic courts do not have the power to interpret international law, since “treaties […] are not self-executing,” (para. 33) and 3. that domestic courts cannot examine the legality of the Crown’s exercise of her prerogative powers (para. 33).

Only the second point is a consequence of dualism, however. The issue at stake in Miller does not pertain to the relationship between domestic law and international law, of which monism/dualism is only one aspect besides the issue of rank and direct effect (three distinct issues that are often conflated in practice). Nor is the question one of international law (e.g. the question of the UK’s right under international law to withdraw from the EU), as the Court rightly clarifies (para. 55 f). Rather, and as Aurel Sari’s response to Julian Ku’s post already convincingly suggests, the High Court’s decision is mainly concerned about determining the appropriate domestic procedure to trigger art. 50 of the Treaty on European Union – a procedure that does not hinge on whether a given State is monist or dualist, but rather on the domestic separation of powers.

Ku’s post is pointing at a conjunction of two facts: first, due to dualism, the United Kingdom’s treaty obligations need to be implemented by a domestic statute in order to be valid in the domestic legal order; second, under UK constitutional law, this domestic statute then takes on a life of its own, as the Crown cannot alter it unilaterally. This second point, however, is not a logical consequence of dualism. Dualism per se does not make it more difficult for a State to alter its international obligations. In monist States, domestic law may create similar hurdles, as the Swiss example shows (below, III.). 

II. Neither monism nor dualism allow inferences as to the termination of international obligations under domestic law

As Ku notes, most of us have, at some point, read that dualism encourages violations of international law, while monism is conducive to compliance with international law. However, such phrases spark confusion instead of providing clarity, and they do so for a number of reasons.

To begin with, the notion of “compliance with international law” is indeterminate, especially given the absence of an international court with general jurisdiction that could clarify what States’ international obligations require in practice. Second, monism and dualism pertain to the conditions under which an international legal obligation takes effect in the domestic legal order, but have no bearing on whether State organs 1. actually apply international law (or, in dualist States, the version thereof transposed into domestic law), 2. interpret domestic law in conformity with international law, so as to avoid normative conflicts, and 3. grant international law direct effect. Courts in monist States may be reluctant to apply international law, they may emphasize rather than downplay or avoid conflicts between domestic and international law, and they may refuse to grant international law direct effect – and vice versa. In other terms, monism or dualism should not be taken to mean more than they actually do. Thirdly, the distinction between monism and dualism is not an on-off-switch: rather, it allows for a range of intermediary forms, and whether a State is monist or dualist can vary depending on the norm, source and substantive area of international law that is at stake. One example is what Melissa Waters calls “creeping monism,” i.e. the tendency of some courts in dualist States to rely on international human rights treaties although these treaties have not been incorporated into domestic law.

Importantly, the fact that a State is dualist or monist allows no inference as to the domestic procedure that applies to the termination of international agreements. As a matter of fact, a dualist State may have an analogous procedure to a monist one, as is the case of the United Kingdom and Switzerland (below).

III. A Brief Comparison with Swiss Monism

Neither dualism nor monism have a bearing on the procedure through which States can enter into international legal obligations and withdraw from them under domestic law. Switzerland provides an illustration of this. It also shows that monism does not necessarily go along with compliance with international law (taking into account the fact that the notion of compliance leaves room for indeterminacy, see above, II.). Switzerland is a monist State: contrary to the United Kingdom, international treaties do not require to be transposed into Swiss law to have effect in the Swiss legal order.

First, the Swiss case illustrates that monism does not ensure compliance with international law. Under Swiss law, constitutional amendments must only respect “peremptory norms of international law”, while they can conflict with non-peremptory norms. This risk has materialized through a number of popular votes that have triggered constitutional amendments, while conflicting with some of Switzerland’s international obligations. Moreover, due to the special system of judicial and constitutional review in place in Switzerland, federal laws that conflict with international law must in principle be applied by the courts (art. 190 of the Swiss Constitution). The Swiss Federal Tribunal accepts that domestic laws enacted with full legislative intent to deviate from international obligations take precedence over such obligations (so-called Schubert practice), although the Tribunal has later created some exceptions to this rule, e.g. in the case of domestic laws conflicting with obligations of international human rights law or under the Swiss-EU Agreement on the Free Movement of Persons.

Second, monist and dualist States may have (at least in some respects) analogous laws as regards the domestic procedure to enter into international agreements. In Switzerland, for instance, the federal government has the competence to enter into some international treaties, considered to be “of limited scope” (art. 7a para. 2 and 3 of the Federal Government and Administration Organization Act, FGAO), without an intervention of the federal parliament. In spite of the fact that Switzerland is monist, this competence has proven controversial in some instances. One example pertains to the so-called “UBS-Agreement” of August 19, 2009, initially concluded by the federal government based on its independent powers. Shortly after the Swiss Federal Administrative Court had found that the treaty would have required the approval of the federal parliament, the parliament, in a somewhat awkward pirouette, approved the treaty a posteriori.

Moreover, and notwithstanding the monism of the Swiss legal order, the issue of which authority has the power to terminate international agreements remains unclear (see e.g. Blum/Nägeli/Peters (BNP); Keller/Balazs). Some authors argue that treaties of limited scope can be terminated unilaterally by the Swiss government, while a flexible approach with parliamentary approval is advocated fort he case of „important“ treaties (BNP, S. 542 f.). Other authors consider that parliamentary approval is always required in the context of treaty termination (see the references in Keller/Balazs, footnote 107).

The possibility of terminating international agreements is often raised in the Swiss political debate (see e.g. BNP, p. 552 with further references). Already in 1988, Swiss parliamentarian Hans Danioth requested the federal government to consider withdrawing from the European Convention on Human Rights, and even as Switzerland was celebrating its 40th anniversary of ECHR ratification, some members of the federal government and of the federal parliament were still advocating withdrawal, even if their views were isolated. Swiss voters will soon be required to express their opinion on a proposed constitutional amendment based on which existing international agreements that conflict with the Swiss Constitution must be renegotiated or terminated. On the other hand, the question as to whether a specific international agreement should be terminated is rarely explicitly put to vote, presumably due to its political sensitivity and, hence, of its slight chances of succeeding at the ballot box. The practice of some political parties to avoid the issue of termination, while triggering votes that may eventually require a renegotiation of international agreements, is criticized by some as a way of misleading voters (see e.g. BNP, p. 557).

The Swiss popular vote of February 9, 2014 “against mass immigration” shows that in practice, dualist States like the UK face similar challenges as monist States. The vote led to a constitutional amendment pursuant to which immigration must be subjected to quantitative restrictions – a regulation that flies in the face of the Swiss-EU Agreement on the Free Movement of Persons. While a “Switzerleave” is not up for discussion given that Switzerland is not an EU member, the federal government has three months left to renegotiate its Agreement on Free Movement with the EU – a situation that British negotiators may find eerily familiar.

To conclude, the power of dualism to act as a safeguard against Brexit (or, more generally, against States withdrawing from their international obligations) is overrated – as is monism. What is decisive in this regard are the mechanisms in domestic law to anticipate and address conflicts between domestic and international law. In this respect (and despite the obvious differences that exist between their respective legal orders and the international obligations they have taken on), Switzerland and the UK might well have things to learn from one another in the course of the next few months.

Trump and International Human Rights #1: The Man and the Government

by Peggy McGuinness

As I recover from the gut-punch delivered last Tuesday, I plan to get back to blogging – something I have put aside for other priorities in the past years. The times and the issues are urgent, and I am anxious to engage with our readers and colleagues around the world at what I see as an extremely fragile period for the U.S. and the globe.  Trump is not a normal president-elect, and we are not in normal times.  In that spirit I plan to resist attempts to normalize Trump. This will the first in an ongoing series on the Trump transition and US engagement with international human rights.

For over 40 years, the U.S. has maintained a bipartisan commitment to the promotion of human rights around the globe.  The depth and the breadth of that commitment has, to borrow a phrase from President Obama, zigged and zagged.  It has bent to presidential national security policies and priorities, and the scope of what is meant by “human rights” has been subject to ideological interpretation by particular administrations.  But a commitment to the broad international project of human rights has remained a constant and ingrained feature of U.S. foreign policy.  Will President-elect Trump – who campaigned on a deeply isolationist rhetoric that explicitly disclaimed an interest in the human rights practices of other states – maintain this commitment?  It will take some time to fully understand the implications of a Trump presidency on US human rights policy, but I want to start by discussing two dimensions to U.S. foreign policy engagement with international human rights:  presidential policy and the human rights bureaucracy.

Let’s be frank:  We have no idea what Trump’s “policy” on human rights – or much else for that matter – will be, since he campaigned on virtually no policies in the traditional sense.  So we start with Trump himself.  We know that he is a man who has acted and spoken as a bigot, sexist and misogynist.  He is a man who admires authoritarian and anti-democratic regimes.  He is a man who has – at least implicitly if not explicitly – emboldened racists and anti-Semites among his supporters, groups that are a very small but sadly resilient element of American politics.  And he has among his closest advisers leaders of the so-called alt-right movement that fuels vile conspiracy theories, including the racist “birtherism” movement against President Obama that Trump himself used as the platform that launched his political campaign.  He has never, as far as I am aware, in his long public life, expressed genuine empathy or concern for the suffering of others.  And the scope of his business interests, the details of which remain largely undisclosed, poise him to embody as president the kind of personal corruption and conflicts of interest that the U.S. usually makes the focus of its anti-corruption and good governance efforts. He has acted and spoken in ways that would subject him, quite properly, to criticism and condemnation by the U.S. government if he were a foreign leader.  Trump, the man, is no defender of human rights.  At best, Trump is an empty vessel, a self-absorbed “bullshit artist” (hat tip:  Fareed Zakaria). At worst, Trump’s contempt for democratic norms and institutions poses a serious danger to American democracy and his rhetoric and behavior will completely undermine the ability of the U.S. to speak with any authority – moral or otherwise —  on questions of human rights.

Given the range of possibilities here, my first question is whether Trump can be constrained, in the ways Michael Glennon argues all presidents are constrained(and in the way Deborah suggested earlier), by the institutions of the government he will lead?  Throughout the executive branch, at the Departments of State, Defense, Homeland Security, Labor, Commerce and Justice, as well as the intelligence agencies and the national security staff at the White House, hundreds of lawyers, diplomats and other government officials monitor and report on the human rights practices of governments all over the world.  Hundreds more work on creating, funding and implementing projects designed to promote human rights, democracy and the rule of law .  This federal “bureaucracy of international human rights” cannot be easily or swiftly dismantled.  The central human rights institutions and networks within the Executive Branch (the Bureau of Human Rights Democracy and Labor, for example) are creatures of statute and of congressional funding priorities.  And it is not clear the Republican House or Senate are interested in eliminating or restructuring of these.  Keep in mind that funding for democracy promotion and other rule of law programs was a favorite of the George W. Bush administration.

The Republican party platform suggests that one dimension of the US commitment to human rights may receive special attention: International Religious Freedom. The US Commission on International Religious Freedom – a favorite of the evangelical right — will continue to be funded, and the platform further states:

At a time when China has renewed its destruction of churches, Christian home-schooling parents are jailed in parts of Europe, and even Canada* threatens pastors for their preaching, a Republican administration will return the advocacy of religious liberty to a central place in its diplomacy, will quickly designate the systematic killing of religious and ethnic minorities a genocide, and will work with the leaders of other nations to condemn and combat genocidal acts.

(*I am not familiar with the anti-religion policies in Canada that are referenced here, but maybe a reader can help me out.)  This is a robust statement in favor of reinforcing the UDHR and ICCPR rights that are mentioned in the 1998 International Religious Freedom Act, the statute that created both USCIRF and the office of International Religious Freedom at the State Department. But it also includes some strong language regarding genocide that would trigger  U.S. obligations under the Genocide Convention.  The platform goes on to endorse continuing engagement on anti-human trafficking programs (and, presumably, continuing the annual trafficking report required by Congress).  As to the broader question of human rights diplomacy, the platform states:

The United States needs a radical rethinking of our human rights diplomacy. A Republican administration will adopt a “whole of government” approach to protect fundamental freedoms globally, one where pressing human rights and rule of law issues are integrated at every appropriate level of our bilateral relationships and strategic decisionmaking. Republican policy will reflect the fact that the health of the U.S. economy and environment, the safety of our food and drug supplies, the security of our investments and personal information in cyberspace, and the stability and security of the oceans will increasingly depend on allowing the free flow of news and information and developing an independent judiciary and civil society in countries with repressive governments such as China, Russia, and many nations in the Middle East and Africa. 

Supporting rule of law projects that promote the “free flow of news and information” and develop “an independent judiciary and civil society” is precisely what the human rights bureaucracy within the Executive has been doing for at least three decades under presidents of both parties.  But if the Republicans want to pitch this as a “radical rethinking,” that’s fine by me.  (They may even want to share their view on a free press with the President elect.)

Taken together, I think it unlikely that the Trump administration will dismantle the bureaucracy of human rights – at least not soon, and certainly not in areas that are important to the Republican Congress.  But unlike the national security functions whose purpose lies at the heart of immediate security and safety of the American people, the human rights bureaucracy can be deeply damaged by the tone and priorities set by the President and his key foreign policy appointees – State, Nat’l Security Adviser, DHS, and the UN Ambassador, among others.  And of course, more than ever, the actual human rights practices of the U.S. at home – issues of domestic rule of law, criminal justice, gender equality, LGBT rights – will either strengthen or weaken the ability of the U.S. to practice human rights diplomacy abroad.  Appointments at the Dept. of Justice and nominees for the bench will send the clearest signal on that front.

 

 

 

The Unknown Unknowns

by Deborah Pearlstein

While I would like to be able to offer some meaningful insight into what we might expect from the foreign policy of Donald Trump, I don’t think it’s possible to overstate at this stage the depth of current uncertainty surrounding what he will actually do. Part of this uncertainty is a function of his preternatural ability to take every position on every topic. (Latest case in point: After Trump repeatedly criticized NATO as overpriced and obsolete over the course of his campaign, we learned from President Obama today that Trump assured the President in their oval office meeting that “there is no weakening” in America’s commitment “toward maintaining a strong and robust NATO alliance.”) Another part of the uncertainty flows from the apparent depth of Trump’s own ignorance of the possibilities of the executive branch. (Again only the most recent example, the Sunday Wall Street Journal reported of Trump’s meeting with President Obama: “Mr. Trump seemed surprised by the scope [of the duties of running the country], said people familiar with the meeting. Trump aides were described by those people as unaware that the entire presidential staff working in the West Wing had to be replaced at the end of Mr. Obama’s term.”)

And then there is the scope and strength of the federal bureaucracy – the career professional staffs of the Departments of State, Defense, Justice, Homeland Security, the intelligence agencies, and more – who, to judge by both newspaper reporting and my entirely non-scientific and idiosyncratic Facebook feed, are grappling mightily with whether to stay or go in the face of extraordinary new leadership. As U.S. Presidents have found time and again (and as I’ve written about in the context of the military in particular, e.g., here), this apparatus makes it difficult sharply to turn the ship of state even with the clearest of intentions and the greatest of bureaucratic skill. There is little indication (as yet) that the incoming administration has either. This is hardly intended to offer comfort or reassurance; I am incapable of greeting with anything but dread the election of a President who has, for example, openly advocated policies that would violate the law – including torturing prisoners with waterboarding “and a lot worse,” and killing the families of those he thinks threaten the United States. It is intended as a check on my own worst speculative instincts. And as a plea to those who are part of that apparatus to start out, at least, by trying to stay.