Archive for
August, 2012

My Response to Ken About Bin Laden’s Death (Updated)

by Kevin Jon Heller

A recent post at Mother Jones mentions my view of UBL’s killing and provides Ken’s brief thoughts on his death:

Kenneth Anderson, a law professor at American University Washington School of Law, disagrees. “Being wounded does not necessarily render one hors de combat; hors de combat means they’re not actually posing a threat to you,” Anderson says, citing moments where wounded combatants have used hidden guns or explosives to kill American servicemembers who thought they were surrendering or incapacitated. “There have been far too many incidents in the past, including in Afghanistan and Iraq…cases where American soldiers get killed because they were mistaken about the other side, or parts of the other side surrendering… There’s still no obligation to pause the attack, you’re allowed to put your own safety first.”

Ken had not read my post when he offered these comments, so it was inaccurate for me to say — as I did in an earlier version — that he misstated my argument.  To be clear, though, I am not claiming that being wounded necessarily makes a combatant hors de combat.  I chose my words carefully: UBL was hors de combat because he was “otherwise incapacitated by wounds” — the language in Art. 41(2)(c) of the First Additional Protocol.  Wounding is not enough; incapacitation is required.  So of course a combatant who is wounded but still able to fight continues to be a lawful target.  Nothing I wrote indicates otherwise.

I also think that Ken’s comments are difficult to reconcile with Owens’ account of UBL’s death.  Owens clearly states that UBL was shot and fatally wounded by someone else; after “[taking] their time entering the room,” Owens and his fellow SEAL found UBL lying on the floor, “blood and brains” spilling out of his skull, being attended to by his wives.  Only at that point did they shoot him.  It is thus problematic to see UBL’s death as part of a continuous attack — or to imply, as Ken does, that viewing UBL’s death as a war crime requires imposing “an obligation to pause the attack” on Owens and his fellow SEAL.  The facts clearly indicate that their attack on UBL began when they first discovered his prone, dying body.

Finally, and most importantly, we need to recognize the implication of the “danger” argument made by Ken and a number of commenters on my previous post: if a combatant who is in his death throes with his brains spilling out of his head does not qualify as “incapacitated by wounds,” Art. 41(2)(c) is a complete nullity, because by that standard no wounded combatant could ever be considered incapacitated. If UBL’s wounds were not incapacitating, what wounds could be?  Nor is it an adequate response to say that the key is whether the wounded combatant had been captured prior to his killing (and thus presumably neutralized); that response also renders Art. 41(2)(c) a nullity, because Art. 41(2)(a) already deems a combatant “in the power of an adverse Party” to be hors de combat.

Here is my question for Ken or for anyone else who believes UBL’s killing was consistent with IHL: can you please identify a situation in which a wounded but non-captured combatant cannot be lawfully killed?

NOTE 1: Ken’s response, like many of the comments, appears to assume that fear or suspicion that a wounded soldier might continue to engage in combat justifies killing him.  That assumption is incorrect.  As the ICRC’s authoritative commentary on the First Additional Protocol makes clear, the wounded soldier loses his presumptive hors de combat status only if he engages in some kind of positive act that indicates he intends to continue fighting (emphasis mine):

The wounded and sick in the sense of Article 8 (Terminology), sub-paragraph (a), of the Protocol, are those persons who need medical care as a result of a trauma, disease or other physical or mental disorder or disability, and who refrain from any act of hostility.…  On the other hand, there is no obligation to abstain from attacking a wounded or sick person who is preparing to fire, or who is actually firing, regardless of the severity of his wounds or sickness.

In other words, a soldier cannot simply assume — even based on past experience with different wounded combatants — that a seemingly incapacitated combatant will continue to fight if given the chance.  That is an important limitation in the context of UBL’s death; nothing in Owens’ account indicates that they believed UBL was capable of harming them — much less that he actually tried to harm them.

NOTE 2: Don’t forget that the First Additional Protocol was adopted in the immediate aftermath of the Vietnam War.  The Viet Cong relied heavily on nearly every perfidious tactic imaginable, yet the drafters of AP I still adopted Art. 41(2)(c).  So it impossible to argue that al-Qaeda’s tactics somehow render the “incapacitated by wounds” provision obsolete.

Weekday News Wrap: Friday, August 31, 2012

by Jessica Dorsey

Weekday News Wrap: Thursday, August 30, 2012

by Jessica Dorsey

Author of “No Easy Day” Admits to Committing a War Crime

by Kevin Jon Heller

Of the 1500+ posts I’ve written for Opinio Juris over the past seven years, none angered my fellow progressives more than the post in which I claimed that the killing of Usama bin Laden was perfectly legal under international law. Here is what I wrote:

To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (“original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality. And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.

I based the conclusion that bin Laden’s death was legal under IHL on Nicholas Schmidle’s account of the bin Laden operation in The New Yorker. He described bin Laden’s final moments as follows:

The Americans hurried toward the bedroom door. The first SEAL pushed it open. Two of bin Laden’s wives had placed themselves in front of him. Amal al-Fatah, bin Laden’s fifth wife, was screaming in Arabic. She motioned as if she were going to charge; the SEAL lowered his sights and shot her once, in the calf. Fearing that one or both women were wearing suicide jackets, he stepped forward, wrapped them in a bear hug, and drove them aside. He would almost certainly have been killed had they blown themselves up, but by blanketing them he would have absorbed some of the blast and potentially saved the two SEALs behind him. In the end, neither woman was wearing an explosive vest.

A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye. On his radio, he reported, “For God and country—Geronimo, Geronimo, Geronimo.” After a pause, he added, “Geronimo E.K.I.A.”—“enemy killed in action.”

As recounted by Schmidle, the SEALs’ actions were consistent with IHL. A member of an organized armed group engaged in a non-international armed conflict (like a government soldier involved in an international armed conflict) can be targeted with lethal force at any time, subject to the exception stated in Art. 41(1) of the First Additional Protocol: “A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.” A combatant is hors de combat in three situations: (1) “he is in the power of an adverse Party” (ie., captured); (2) “he clearly expresses an intention to surrender”; or (3) “he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself.” In Schmidle’s account, bin Laden was not in the power of the U.S. when he was killed; he was not wounded or sick; and — most relevantly — he had not clearly expressed an intention to surrender. That intention requires an affirmative action, such as waving a white flag, raising arms, or verbalizing a desire to give up. (Examples mentioned in the U.S. Soldiers Manual.) It is thus perfectly lawful to kill a combatant who is unarmed and making no attempt to resist capture; indeed, the drafters of the First Additional Protocol specifically rejected an earlier draft of Art. 41 that would have deemed an unarmed or defenseless combatant hors de combat.

The author of the new book “No Easy Day,” however, provides a very different account of bin Laden’s death — one that has to be taken seriously, because the author is one of the two SEALs who fired the fatal shots…

Weekday News Wrap: Wednesday, August 29, 2012

by Jessica Dorsey

Draft Republican Party Platform Opposes Law of the Sea Treaty

by Julian Ku

It is a draft platform, but these parts of the 2012 GOP Platform are certainly interesting. It appears to have strong language in favor of “American Exceptionalism” and American sovereignty.

Under our Constitution, treaties become the law of the land. So it is all the more important that the Congress — the senate through its ratifying power and the House through its appropriating power — shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development. Because of our concern for American sovereignty, domestic management of our fisheries, and our country’s long-term energy needs, we have deep reservations about the regulatory, legal, and tax regimes inherent in the Law of the Sea Treaty and congratulate Senate Republicans for blocking its ratification. We strongly reject the U.N. Agenda 21 as erosive of American sovereignty, and we oppose any form of U.N. Global Tax.

Unlike Josh Keating, I don’t read this platform as “black helicopter” stuff.  I think there are reasonable policy arguments against all of the above treaties, especially UNCLOS.  I do agree, though, that this might herald an important policy shift. A majority of the GOP has previously supported US ratification of UNCLOS, but it looks like UNCLOS opposition is now going to be in the GOP mainstream.  And that means that US ratification of UNCLOS looks even more unlikely.

Weekday News Wrap: Tuesday, August 28, 2012

by Jessica Dorsey

Weekday News Wrap: Monday, August 27, 2012

by Jessica Dorsey

Upcoming Events: August 26, 2012

by An Hertogen

Calls for Papers

  • The Irish Yearbook of International Law has a call for papers for a special symposium issue regarding Climate Justice in International Law (Word document). Submission deadline is August 31, 2012.
  • The University of Sydney is hosting a post-graduate conference on November 1-2, 2012 entitled Crossing Boundaries (Word document), open to post-grads in the Asia-Pacific region. Deadlines of abstract submission (no more than 250 words) is August 31, 2012 at 5:00 p.m.
  • The Whitney R. Harris World Law Institute at Washington University School of Law is holding The Inaugural Benjamin B. Ferencz Essay Competition. The essay, of maximum 6000 words, should address the following question: “Under what conditions may acts that constitute illegal use of armed force and that result in the widespread or systematic attack upon a civilian population be prosecuted as crimes against humanity by the International Criminal Court, pursuant to the Rome Statute?” Entries are due by 31 August 2012.

Upcoming Events

  • On 31 August 2012, application close for The Hague Academy of International Law’s Seminar for Advanced Studies in Private and Public international Law for Professionals on Les immunités en droit international public et privé. The seminar takes place in The Hague from January 13-19, 2013. All lectures are in French.

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Weekend Roundup: August 11-24, 2012

by An Hertogen

With the start of the US academic year just around the corner, activity picked up here at Opinio Juris this week. There certainly wasn’t a shortage of international law items to discuss…

First, there is of course the diplomatic spat between the UK and Ecuador over Julian Assange’s extradition to Sweden. Once Kevin was done banging his head on the table after yet another news article confusing the ICJ and the ICC, he reposted Mark Klamberg’s discussion on the likelihood of Assange’s extradition from Sweden to the US. Julian argued that his notorious namesake has no right to safe passage out of the UK to take up diplomatic asylum in Ecuador, and assumed that Assange’s legal team must be bluffing with its threats of taking the case to the ICJ.

Then, there are the growing territorial tensions in Asia. Julian argued that Korea’s refusal to accept Japan’s invitation to have the ICJ settle their dispute over the Dokdo/Takeshima islands does not bode well for the future of international arbitration in Asia. He also posted about his recent article about China’s wariness towards international adjudication.

As always, Kevin kept us up to speed with the latest developments in international criminal law. He questioned why the UN’s Human Rights Council’s Commission for Inquiry on Libya did not investigate whether the rebels (Thuwar) committed the crime against humanity of persecution or even genocide against the Tawerghans. He also discussed why a non-state actor cannot – and should not be able to – challenge admissibility at the ICC.

Kevin also donned his advertiser hat; he plugged Sandy Sivakumaran’s book on the Law of Non-International Armed Conflict, welcomed Google’s tool visualizing small arms trade and gleefully announced that his current hometown, Melbourne, was voted the world’s most liveable city by the Economist Intelligence Unit.

In other posts, Kevin accused Israel’s Foreign Ministry of being tone-deaf for using apartheid rhetoric in response to South Africa’s decision that goods imported from the Occupied Palestinian Territories have to be labelled as such. Julian drew a parallel between the Bush Doctrine and Obama’s recent statement that the use of chemical or biological weapons in Syria could trigger a military response by the US and its allies. Peggy discussed the Pussy Riot sentence in Moscow, and Duncan published an update of his six essential international law cases for the classroom.

Finally, we also provided you with a list of upcoming events and weekday news wraps.

Have a nice weekend!

Ecuador Has Got to Be Bluffing About its ICJ Case For Assange

by Julian Ku

I hope this statement by Assange’s legal team is just seeking leverage for negotiations, because I think their claim would be blown out of the water by the ICJ. It would be an international embarrassment for Ecuador. Actually, it would be a further international embarrassment for Ecuador, which is already beginning to seem a little ridiculous in its involvement in this case.

JULIAN Assange’s legal team will likely apply to the International Court of Justice (ICJ) to get the activist out of London to diplomatic asylum in Ecuador.
Former judge at Spain’s top criminal court, and head of Mr Assange’s legal team, Baltasar Garzon, says they are exploring a number of ways to guarantee his safety.

The ICJ is the world’s top arbitration body for disputes between states.

Speaking through an interpreter on the sidelines of the International Council of Archives Congress in Brisbane, Mr Garzon said the United Kingdom is bound by international law to offer his client safe passage to asylum.

The UK could be ordered into negotiations with Ecuador if the ICJ finds in favour of an application.

The lawyer said they would request many provisional measures be taken by the UK, on humanitarian grounds, to guarantee Mr Assange’s safety.

Doesn’t Ecuador’s government have anything better to do than waste its resources on this matter? Well, maybe it is for the best. Otherwise, they might find more local journalists to harass.

Weekday News Wrap: Friday, August 24, 2012

by Jessica Dorsey

Israel’s Tone-Deaf Foreign Policy

by Kevin Jon Heller

South Africa recently decided that, in order to avoid consumer confusion, goods imported from the Occupied Palestinian Territories must include special labels that make clear they were not produced in Israel.  Israel’s outrage was predictable — but its rhetoric was anything but:

The Israeli Foreign Ministry said it would summon South Africa’s ambassador to lodge a protest over the decision on labelling goods from Jewish settlements in the West Bank.

“Unfortunately it turns out the change that has begun in South Africa over the years has not brought about any basic change in the country, and it remains an apartheid state,” Deputy Foreign Minister Danny Ayalon said in response to Pretoria’s move.

“At the moment South Africa’s apartheid is aimed at Israel,” added Ayalon, a nationalist hardliner in right-wing Prime Minister Benjamin Netanyahu’s governing coalition.

Substantively, Israel’s criticism is absurd.  The South African government isn’t even banning settlement goods, which it would be well within its rights to do; it is simply making it possible for consumers to avoid purchasing goods produced in settlements that it — like nearly every other government in the world — considers to be illegal.  How that qualifies as apartheid is anyone’s guess.  (The Reuters article notes that Ayalon didn’t bother to explain his claim.)

Israel, of course, is free to disagree with South Africa’s decision.  But you’d think that a government that is often accused of pursuing apartheid-like policies would avoid using the rhetoric of apartheid itself — especially to describe a South African state that is still struggling to overcome its racist past.  Israel has obviously decided that it has no reason to maintain even the semblance of cordial diplomatic relations with South Africa.  It better be right — because South Africa is unlikely to forget Israel’s offensive rhetoric anytime soon.

Essential International Law Cases for the Classroom (Six Years Later)

by Duncan Hollis

As summer winds down, I’m beginning to look ahead to the coming semester in which I’ll be teaching public international law after a couple of years’ hiatus.  As a result, I’ve spent the week, re-working my syllabus (and thanking Ecuador for giving me a wonderfully topical way to start off the class).  Beyond current events, however, I’ve once again spent some time procrastinating thinking about those international law cases I “must” have my students read — essential elements of the international law canon if you will.  I’ve done this before — six years ago, in fact, I posted a top-5 list of public international law cases and encouraged readers to contribute their own “must-reads” for students entering the field of international law.  Here’s the list I came up with then:

(1) The S.S. Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No.10
(2) Mortensen v. Peters, 8 Sess. Cas. (5th Ser.) 93 (1906)
(3) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) 1984 ICJ 169, 1986 ICJ 14
(4) Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
(5) United States-Import Prohibition of Certain Shrimp and Shrimp Products (“Shrimp Turtle”) DS58/AB/R (1998)

I still like this list a lot.  But, on reflection I’d probably remove Shrimp Turtle in favor of an older chestnut like the Reparations Case given that earlier cases’ import for the field of international institutional law (I also wonder about Filartiga as the best read on human rights, and although I’m inclined to keep teaching it in a U.S. classroom, I can see the argument for a case like Soering instead).

Of course, I hold no monopoly on making these sorts of lists.  So, I thought I’d get those of you prepping your own courses (not to mention students preparing to continuing their international law studies) to chime in with further suggestions. What cases would you say every international lawyer must read?

Weekday News Wrap: Thursday, August 23, 2012

by Jessica Dorsey

Weekday News Wrap: Wednesday, August 22, 2012

by Jessica Dorsey

Klamberg on Extraditing Assange from Sweden to the U.S.

by Kevin Jon Heller

Mark Klamberg, who is a lecturer in public international law at the University of Stockholm, has a detailed post on his personal blog about the likelihood — or unlikelihood, to be more precise — that Sweden would extradite Julian Assange to the United States.  He has kindly given me permission to reprint a significant portion of it (I’ve made minor edits):

How does procedure work if somebody is to be extradited from Sweden? Pursuant to section 14 of the Extradition of Criminal Offences Act, a “request for extradition shall be made in writing. It may be transmitted by telefax or, subject to agreement in the individual case, by other means. The request shall be made to the Ministry of Justice.” The request shall according to section 15 of the same act be rejected immediately if there is a manifest reason why it should not be granted. Otherwise, the request is forwarded to the office of the Prosecutor-General, who shall deliver a statement of opinion on the matter. In addition, if the person referred to in the request has not consented to being extradited, the case shall be tried by the Supreme Court. Section 20(1) provides that if the Supreme Court has considered that there is a legal obstacle to extradition the request may not be granted. Even if the Supreme court has found that there are no obstacles, the Government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person “may” not “shall” be extradited. In other words, even if the Prosecutor-General and the Supreme Court find that all conditions for extradition are fulfilled, the Government may veto such extradition. It does not work in the reverse way: the Government cannot grant extradition if the Supreme Court has found that any of the required conditions are lacking.

As I understand, Assange wants the Swedish Government to guarantee that it will not grant extradition to the US. The US has not made any request to the Sweden on this matter. In other words, Assange wants the Swedish Government to pledge to use its veto power in relation to a non-existing request and before the Prosecutor-General and the Supreme Court has evaluated this non-existing request. There is nothing in the Extradition of Criminal Offences Act that deals with this scenario, but it would depart from established practice. Cameron and et. al write in a general way about this in their book “International Criminal Law from a Swedish Perspective“, Intersentia, 2011, p. 171.

Assange fears that he will be extradited to the US where he may be at danger of being tortured or receiving the death penalty. There are at least three obstacles that make it difficult or even impossible to extradite Assange to the US…

Can We All Admit that Assange Has No Legal Case for “Safe Passage”?

by Julian Ku

I will refrain from adding too much to the increasingly ridiculous battle over Julian Assange’s refuge at the Ecuador Embassy in the UK. Assange is acting like a paranoid lunatic and it is astonishing to me that so many folks who should know better instinctively side with an accused rapist whose main argument is that the Swedish (Swedish!) justice system is being controlled by the CIA and US government.

However, I agree with the good folks at EJILTalk! that  the UK would be unwise to “terminate” Ecuador’s diplomatic rights to its embassy in this case.  I agree with Eric Posner that the UK would not act in clear violation of international law by stripping Ecuador of its diplomatic status, but I doubt Assange is worth such a drastic step.

Having said all that, can we also admit that Assange cannot credibly claim any “right” to safe passage, as his lawyers (including Spanish judge Baltasar Garzon) seem to be arguing here?

Baltasar Garzon, who is working on Assange’s defence, told Spanish newspaper El Pais that Britain was legally required to allow Assange to leave once he had diplomatic asylum.

“What the United Kingdom must do is apply the diplomatic obligations of the refugee convention and let him leave, giving him safe conduct,” he said. “Otherwise, he will go to the International Court of Justice.”

How the Refugee Convention applies here baffles me. I suppose Assange is going to claim that he faces a “well-founded fear” of persecution due to his politics.  This might make sense if the US was seeking his extradition (which it isn’t), or if the US could impose the death sentence on Assange (which would be pretty hard under US law and would also prevent any extradition from Sweden).  In any event, how does the Refugee Convention apply to Sweden? And how does the general requirement that the UK not “expel” a political refugee apply in this instance? This is just a lame argument, from what I can tell.
In the end, I think Daniel Drezner has the right take on this on twitter: Ecuador will quickly tire of Assange after a few months and kick him out, especially after the global media start forgetting about him.

China and the (Not Very Positive) Future of International Adjudication

by Julian Ku

While I am at it, I might as well flog my most recent piece on China’s relationship with international tribunals and international adjudication more generally.  This study, which attempts to document all of China’s treaties that include compulsory dispute resolution clauses (excepting bilateral investment treaties), concludes that China is unlikely to become a strong supporter and participant in mechanisms of international adjudication.  Like the United States, China is consistently wary and cautious about such international mechanisms. The abstract is below:

Traditionally, the People’s Republic of China (PRC) has shunned participation in international adjudication, preferring to settle all disputes through direct negotiations. But in the past two decades, this wholly negative approach to international courts and arbitration tribunals has begun to shift. In addition to the acceptance and active participation in the Dispute Settlement Body of the World Trade Organization, the PRC has also accepted limited jurisdiction for arbitration under the International Center for the Settlement of Investment Disputes (ICSID) and the International Tribunal for the Law of the Sea. Despite this shift, the PRC still follows a policy of strictly limiting its exposure to international adjudicatory mechanisms. This strategy, which is similar to that practiced by the United States, suggests that international adjudication faces difficult prospects in the long term.

Weekday News Wrap, Tuesday, August 21, 2012

by Jessica Dorsey

President Obama Adopts the Bush Doctrine in Threatening Force Against Syria

by Julian Ku

President Obama emerged from his campaign bunker to face the press, and he issued what the NYT seems to think is a pretty serious military threat against Syria.

“We cannot have a situation in which chemical or biological weapons are falling into the hands of the wrong people,” Mr. Obama said in response to questions at an impromptu news conference at the White House. “We have been very clear to the Assad regime but also to other players on the ground that a red line for us is, we start seeing a whole bunch of weapons moving around or being utilized.”

“That would change my calculus,” he added. “That would change my equation.”

The president said the Pentagon was drafting a range of contingency plans, working with American allies in the region, including Israel and Turkey. He expressed little confidence that the Syrian government could keep its weapons stockpile under lock and key, given the widespread strife in the country.

The Pentagon contingency plans include worst-case scenarios that would require tens of thousands of American troops, two senior United States officials said on Monday. The officials, who declined to specify precisely how many troops might be needed, emphasized that the plans were the kind of worst-case contingency options that the Pentagon routinely draws up in crises, and that no American deployments were imminent.

“The problem is that the material is so dispersed,” said an expert who has been consulted by the administration. While the intelligence about the stockpiles is sketchy — there are widely varying estimates of how much material Mr. Assad has amassed, and where it is stored — American estimates indicate there could be as many as two dozen sites around the country.

I think the policy basis for the U.S. to use military force here is pretty sound. But then again, the threat of spreading WMDs, and the rights of the U.S. and other nations to invade to prevent the spread of WMDs, was the primary policy and legal justification for the invasion of Iraq. The right of a nation to take action against the spread of WMDs, even if they are not being directly used to threaten it, is a key part of the Bush Doctrine.

It is fascinating, and telling, that there is no concern in President Obama’s comments, or in the article, about the tenuous international legal basis for such an action against Syria.  Certainly, there would be no UNSC authorization in this case.  And yet I doubt there will be much grousing about legality in the NYT or Washington Post if there was an intervention in Syria.  Which suggests that there might be an emerging bipartisan consensus here in the US  in favor of the international legality of the Bush Doctrine. Wow!

Why Won’t Korea Accept Japan’s Invitation to Go to the ICJ?

by Julian Ku

I’ve been trapped in an August blogging-slump. But I am roused to my keyboard by the surge of territorial disputes in Asia.  China has aggressively asserted ever stronger and more expansive claims in the South China Sea, sparking dissension amongst the Association for Southeast Asian Nations (ASEAN) and serious protests in Vietnam and the Philippine.  China, Taiwan, and Japan are trading diplomatic barbs over the disputed Diaoyu/Senkaku Islands.  And Korea and Japan are at loggerheads over the Dokdo/Takeshima islands.  All of these disputes are getting worse, not better, and are exacerbating tensions all over Asia. This is shocking for most folks over here in the States, as it is hard to imagine why all of these countries are squabbling over (for the most part) a bunch of rocks.

Of these various disputes, the Korea-Japan battle over Dokdo/Takeshima seems the best candidate for resolution by international arbitration.   Japan, in fact, has formally asked Korea to submit the dispute to the ICJ for binding arbitration and has even threatened some mild economic penalties if the Koreans don’t agree.  And Korea has flatly turned down Japan, which is somewhat surprising given that Korea is one of the most enthusiastic supporters of international organizations and international dispute resolution in general.  The President of the ICC is a Korean national, and Korea has a judge sitting on the International Tribunal for the Law of the Sea. (Oh yeah, that UN Secretary General is from Korea too!).

According to news reports, Korean diplomats have said that the ICJ is inappropriate because the Dokdo/Takeshima islands plainly belong to Korea under international law.

“Dokdo is clearly part of Korean territory historically, geographically and under international law, and no territorial dispute exists,” said Cho Tai-young, spokesman at the Ministry of Foreign Affairs and Trade. “The Japanese government’s proposal to take the Dokdo issue before the ICJ is not worth attention.”

From a legal perspective, this is a pretty unpersuasive response. Japan has agreed to accept any ICJ judgment.  Korea has no shortage of brilliant international lawyers who could put on a terrific case at the ICJ.  This whole case could be definitively resolved and a ongoing source of tension between the two neighbors could be settled amicably.  The U.S. and Canada used international arbitration to settle some key disputes over the US-Canada border, with pretty good success over the years.

I suppose the answer is simply that Korea currently controls the islands, and the ICJ judgment will get Korea nothing except confirmation of what Korea already has.  But if Korea continues to refuse Japan’s offer, then it is even less likely that any of these other disputes could go to international arbitration.  Indeed, it suggests that international adjudication in Asia has a pretty bleak future. Korea and Japan are two of the most pro-international adjudication countries in the world. If they can’t agree to go to international arbitration, what are the chances that China (with its numerous territorial disputes with all of its neighbors) will ever agree to such arbitration?

Weekday News Wrap: Monday, August 20, 2012

by Jessica Dorsey

New Google Tool for Visualizing the Arms Trade

by Kevin Jon Heller

Fresh off the failure of the Arms Trade Treaty — aka The UN’s Secret Plan to Disarm the Defenders of Freedom and Enslave Mankind — Google has released an amazing new tool that maps global flows of light weapons and ammunition.  Here is how the Huffington Post describes the tool:

The Peace Research Institute Oslo (PRIO), a Norwegian initiative focused on the dealing of small arms, provided information for the undertaking, including “[m]ore than 1 million data points on imports and exports […] across 250 states and territories,” according to a post on the Google Blog. The project was developed by Google’s Creative Lab and the Brazil-based Igarape Institute.

The tool allows the user to search by country and view where imports come from and where exports go each year; it also shows how much each country spends and receives as a result of this trade. Civilian and military purchases are displayed as well. (Note: The Google Blog defines “light weapons” as revolvers, assault rifles and light machine guns. The blog also states that “three quarters of the world’s small arms lie in the hand of civilians — more than 650 million civilian arms.”)

I really want to hate Google for its cavalier attitude toward privacy.  Projects like this one don’t make it any easier.

Upcoming Events: August 19, 2012

by Jessica Dorsey

Call for Papers

Upcoming Events

  • The 6th Annual International Humanitarian Law Dialogues are taking place August 26-28, 2012 at the Chautauqua Institute. The theme is: Hybrid International Courts: A Tenth Anniversary Retrospective on the Special Court for Sierra Leone. More information about the program and speakers can be found here.
Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Could a Non-State Actor Challenge Admissibility?

by Kevin Jon Heller

A friend of mine asked me that question the other day.  Imagine that a non-state actor (NSA) had both a legislative branch that enacted criminal laws and a functioning criminal-justice system that prosecuted violations of those laws.  Could the NSA challenge the admissibility of a case pending at the ICC on the ground that it was already investigating or prosecuting the case itself?

I think the answer has to be no.  The first thing to note is that Article 19 of the Rome Statute limits admissibility challenges to the suspect being prosecuted and states that have jurisdiction over the case.  By definition NSAs are not states.  The admissibility issue could only come up, then, if the suspect for some reason preferred to be prosecuted by the NSA instead of by the ICC.  It’s difficult to imagine why that would be the case.  A government soldier captured by an NSA would obviously prefer an ICC prosecution, and a member of the NSA would probably prefer an ICC prosecution, as well — at least insofar as the NSA was genuinely willing and able to prosecute him.

That said, let’s assume, for sake of argument, that a member of an NSA did prefer domestic prosecution to ICC prosecution and thus challenged the admissibility of his case pursuant to Article 19(2)(a).  The problem then would be Article 17(1), which deems a case inadmissible only when it is “being investigated or prosecuted by a State which has jurisdiction over it.”  Again, NSAs are not states.  So once again the challenge would fail.

But what about Article 17(1)(c), which deems a case inadmissible when “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.”  That provision does not specifically mention states, and Article 20(3) — the ne bis in idem provision — provides only that “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”  To begin with, Article 17(1)(c) would be of no help in our hypothetical, because the issue is whether the Court has to defer to the NSA prosecution in the first place, not whether the Court could retry the suspect subsequent to an NSA prosecution.  Moreover, even if we altered the hypothetical to involve a suspect who was, say, acquitted in a genuine NSA prosecution and was challenging retrial at the ICC, I think it’s clear from the context of Article 20(3) that the other court in question must be a state court.  The absence of the word “state” in Article 20(3) seems to be little more than a drafting artifact.

The bottom line is that there does not seem to be any room in the Rome Statute’s complementarity regime for NSA prosecutions.  And that, I would suggest, is precisely as it should be.  I realize that there is growing support in the scholarly community for permitting NSAs to play a more formal role in the creation of international law.  (See here, for example.)  I’m skeptical of that idea, for reasons beyond the scope of this post, but I would hope that even its most passionate defenders would view requiring the ICC to defer to an NSA prosecution as a bridge too far.  States would rightly view such deference as tantamount to recognizing the legitimacy of the NSA, which is something that states are desperate to avoid.  So it is not difficult to imagine how a state that has ratified the Rome Statute would react to the Court permitting a rebel group to prosecute one of its members for, say, massacring civilians loyal to the government — it would do everything it could to impede the NSA prosecution and would perhaps even withdraw from the Court (Article 127).  Simply substitute “Afghanistan” for “state” and “Taliban” for “NSA” to see the truth of that claim.

Readers, your thoughts?

[Kevin Bangs Head Repeatedly on Table]

by Kevin Jon Heller

For the love of God, is it really too much to ask for reporters to do five minutes of research before they write about international law?  See if you can spot the mistake in this article about Britain’s silly threat to invade the Ecuadorian embassy to arrest Julian Assange:

Ecuador has said it may appeal to the International Criminal Court (ICC) if the UK refuses to grant Julian Assange safe passage out of the country.

Ecuadorian presidential staff adviser Alexis Mera said his government would pursue every legal means to bring Assange to Ecuador.

“We are open to discuss with Britain the solution to this problem, and if there is no diplomatic solution, we may resort to the International Court of Justice,” Ecuadorian daily EL Commercio quoted Mera as saying.

You’d think the fact that the International Court of Justice cannot be abbreviated “ICC” would be something of a red flag.  But I guess not.

Predictably, RT’s article has been picked up by dozens of newspapers around the world.

Was the Pussy Riot Sentence Excessive?

by Peggy McGuinness

News sites and blogs are full of condemnation for what appears to be an excessive sentence for the political protest/stunt pulled by the Russian punk band Pussy Riot in an Orthodox church earlier this year. (Even President Putin had hoped the group would not be judged “too harshly.”)  Over at the CLR Forum, my St. John’s colleague Mark Movsesian, who knows more than a little about comparative approaches to religious liberty and protection of religious sites, agrees that the sentence may have been a bit harsher than the behavior merited. But he has a different take on whether the punk rockers chose a wise method (trespass and desecration) to make their point about Russian politics and the role of the Orthodox Church:

A Russian court today convicted three members of Pussy Riot, a punk band that stormed the altar of the Christ the Saviour Cathedral in Moscow last winter to perform a “punk prayer” to protest Prime Minister Vladimir Putin, of criminal hooliganism and sentenced them to two years in prison. By Western standards, it’s a harsh and disproportionate sentence. By way of comparison, when members of a group called ACT-UP disrupted a Mass at New York’s St. Patrick’s Cathedral in 1989, they received only misdemeanor convictions and no jail time. Similarly, in June, a New York court convicted Occupy Wall Street protesters of trespassing on property owned by Trinity Church; again, only misdemeanor convictions and no jail time.

But Russia is different. Before we get all sanctimonious about how much better we are in the West, though, it’s worth reflecting on a couple of things. First, as I’ve written before, the Cathedral of Christ the Saviour has a sad history. The Communists dynamited the first version of the cathedral as part of an anti-Christian campaign in the 1930s, and Christians remain very sensitive about it. Notwithstanding the politicization and corruption in the Russian Orthodox Church, many believers genuinely feel pain at the desecration of the cathedral and what they see as anti-Christian animus. (Right on cue, in response to today’s sentencing, a topless female protester got a chain saw and cut down a cross in central Kiev that commemorated the victims of Communism. Way to win people over to your point of view!). Second, the media’s selective outrage is a little hard to take. Putin’s human-rights record has been poor for a long time now. Many less well known protesters remain in prison. Yet not so long ago, bien-pensant types like Goldie Hawn and Sharon Stone gave Putin a standing ovation when he crooned “Blueberry Hill” at a charity fundraiser. So what’s so different now? It’s hard to avoid the conclusion that, had the members of Pussy Riot not been so telegenic, and had their target not been the bad old Orthodox Church, the media would have paid much less attention.

It is certainly the case that the politics of today’s Orthodox Church leadership may have led some to overlook or minimize the protection international human rights law affords to religious practice and sites.  Mark’s written about the case before, and has more on the legacy of Soviet persecution of the Orthodox Church here.

Weekday News Wrap: Friday, August 17, 2012

by Jessica Dorsey

Weekday News Wrap: Thursday, August 16, 2012

by Jessica Dorsey

Weekday News Wrap: Wednesday, August 15, 2012

by Jessica Dorsey

Melbourne World’s Most Livable City

by Kevin Jon Heller

It’s been a slow blogging week, so I think I can get away with a completely self-serving post about the awesomeness of Melbourne.  And yes, Melbourne is awesome.  The Economist Intelligence Unit’s Global Livability Survey says so — again:

1. Melbourne
2. Vienna
3. Vancouver
4. Toronto
5. Calgary
5. Adelaide
7. Sydney
8. Helsinki
9. Perth
10. Auckland

The survey assesses 140 cities on factors in five categories: stability, healthcare, culture and environment, education and infrastructure.  Melbourne received a perfect score on infrastructure, healthcare and education.

Perhaps this is a good time to mention that my law school is currently advertising two entry-level positions, though at least one of the people we hire will need to teach business law.  Applications close in a week — August 22nd.

Weekday News Wrap: Tuesday, August 14, 2012

by Jessica Dorsey

Did the Thuwar Persecute and Commit Genocide Against the Tawerghans?

by Kevin Jon Heller

As I noted last week, I have just finished a long chapter critically assessing the work of the Human Rights Council-created International Commission of Inquiry on Libya (COI).  My basic conclusion is that although the COI generally did an excellent job, particularly in terms of its fact-finding methodology, it seems clear that it was less interested in holding the rebels — the thuwar — accountable for serious violations of international law than the Qadhafi government.  I thought readers who don’t have the time to read the entire chapters might be interested in what I consider the COI’s most serious oversight: its failure to consider whether the Misratan thuwar‘s treatment of the inhabitants of Tawergha, a city that Qadhafi forces used as a base for military operations against Misrata, qualifies either as the crime against humanity of persecution or as genocide.  I think a strong case can be made for both.

Before getting to persecution and genocide, it is important to note that the COI condemned the Misratan thuwar‘s attacks on the Tawerghans in no uncertain terms.  Here are a couple of illustrative paragraphs from the COI’s final report:

485. The Commission finds that the Misrata thuwar targeted the Tawerghan community in a widespread and systematic manner.

486. As detailed above, the Commission finds that Misrata thuwar have extra-judicially executed, otherwise unlawfully killed and tortured to death Tawerghans during Phase II and III of events in Libya. The Commission found that Misrata thuwar have arbitrarily arrested Tawerghans in locations across Libya, including but not limited to Tawergha, Al Khums, Tripoli and Sirte; that, in the majority of cases, they have transported them to Misrata, where most are held in various detention centres; that some of these arrests have been accompanied by extortion and looting.  The Commission found that Misrata thuwar tortured Tawerghan men on multiple occasions and subjected them to cruel, inhuman or degrading treatment.

487. The Commission finds that, in respect of Tawergha itself, the Misrata thuwar have looted and destroyed properties during the period of time that hostilities were ongoing. It also found that the continuing destruction of Tawergha in the post-conflict period has been done with the intent of making Tawergha uninhabitable and so preventing the return of displaced Tawerghans.

488. The instances of cruel treatment and pillaging which occurred during the hostilities constitute a war crime. Where they have continued since, they violate international human rights law.  The torture and killing committed against the Tawerghans by the Misrata thuwar, and other Misratans, would each individually, given the widespread and systematic manner in which they have occurred here, be capable of constituting a crime against humanity and the facts indicate crimes against humanity have taken place.

Those paragraphs, however, simply accentuate the COI’s failure to consider persecution and genocide…

Sivakumaran, The Law of Non-International Armed Conflict

by Kevin Jon Heller

I am delighted to report that Oxford has just published my friend Sandy Sivakumaran’s massive tome, The Law of Non-International Armed Conflict.  Here is the publisher’s description:

This book brings together and critically analyses the disparate conventional, customary, and soft law relating to non-international armed conflict. All the relevant bodies of international law are considered, including international humanitarian law, international criminal law, and international human rights law. The book traces the changes to the legal framework applicable to non-international armed conflict from ad hoc regulation in the nineteenth and early twentieth century, to systematic regulation through the 1949 Geneva Conventions and 1977 Additional Protocols, to the transformation of the law in the mid-1990s. Armed conflicts ranging from the US civil war, the Algerian War of Independence, and the attempted secession of Biafra, through to the current conflicts in the Colombia, Philippines, and Sudan are all considered.

The identification and analysis of the law is complemented by a consideration of the practice, allowing both violations of, and respect for, the law, to be ascertained. Given that non-international armed conflicts are fought between states and non-state armed groups, or between armed groups, particular attention is paid to the oft-neglected views of armed groups. This is done through an analysis of hundreds of statements, unilateral declarations, internal regulations, and bilateral agreements issued by armed groups. Equivalent material emanating from states parties to conflicts is also considered. The book is thus an essential reference point for the law and practice of non-international armed conflicts.

I have only read bits and pieces of the book — which is now at the top of my wish list (along with my camera/GPS Swatch) — but Sandy’s work on IHL is always careful, thorough, and convincing.  I predict that the book will be required reading for years to come.

Weekday News Wrap: Monday, August 13, 2012

by Jessica Dorsey

Upcoming Events: August 12, 2012

by An Hertogen

Upcoming Events

  • The Institute for Global Law and Policy is organizing its 4th Annual Workshop which will bring together 50-100 doctoral, post-doctoral scholars, and junior faculty in Doha, Qatar, from January 4-14, 2013. More information can be found here. Applications to participate should be submitted online by October 15, 2012. The event is intended to be cost-free for all selected participants.
  • The ABA Section on International Law is organizing its 2012 Fall Meeting in Miami Beach, Florida, October 16-20, 2012.

If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Weekend Roundup: August 4-10, 2012

by An Hertogen

It may be summer break in the US, but in Australia the academic year is in full swing with Kevin keeping the spotlight on Libya. First, he linked to his new essay on SSRN, entitled “The International Commission of Inquiry on Libya: A Critical Analysis.”

Kevin also posted Saif Gaddafi’s unsigned statement about the fairness of his trial in Libya, discussed the OPCD’s response to Libya’s admissibility challenge and particularly the argument that Libya is unable to obtain custody of Saif. Kevin also questioned Libya’s integrity in its motion requesting more time to reply to OPCD’s response. Libya’s problem obtaining custody of Senussi, whom Mauretania wants to prosecute first, was the topic of another of Kevin’s posts. Last week Kevin added this swatch to his wishlist, but now that an image of it has been released, it may look more appropriate on his better half. As it turned out, Libya didn’t only make claims about a video pen and GPS swatch, but now also claims that the OPCD team was on a mission to assassinate their own client.

This concluded our week of Libya coverage. As always, we also provided you with weekday news wraps and a weekly listing of upcoming events.

We wish all our readers a great weekend!

Weekday News Wrap: Friday, August 10, 2012

by Jessica Dorsey

Weekday News Wrap: Thursday, August 9, 2012

by Jessica Dorsey

How Do You Know the Libyan Government is Lying? Its Lips Are Moving

by Kevin Jon Heller

I honestly believed that the Libyan government couldn’t make a public claim more ridiculous than the one about the Swatch with a hidden camera and GPS locator.  Silly me for my lack of imagination!  Mark Kersten, whose Justice in Conflict blog should be prominently featured in your newsreader, called my attention to this recent gem from the prosecutor in charge of Saif’s case (offered during an interview with al-Arabiya):

[Interviewer]: Mr.Milad, what about the case from a legal perspective and what had happened with the ICC delegation? Can you please briefly explain it to us? What was the serious misconduct that was committed by this delegation sent by the ICC? We heard about pens containing cameras, we heard about documents signed en blanc…

[Milad]: Here is what happened. As I am the coordinator for this case, I went to the ICC delegation in the Hotel, then, we went to Zintan. They were put under an administrative search. During the search, a video-recording pen was found; the Prosecution was, by coincidence, present on site in order to continue the interrogation of Saif Al-Islam. The Prosecution was informed about this incident, then the President of the Prosecution, who was in charge of the investigation, ordered the continuation of the interrogation. He decided to take all necessary measures fearing for the life safety of the Accused. The group’s main preoccupation was the possibility of Saif Al-Islam’s assassination or poisoning, because there was, in addition to the pen, a watch containing a camera and a GPS.

News headlines running across the screen. Milad Abdul-Nabi Dekali: We were afraid that the ICC team would assassinate or poison Saif Al-Islam.

[snip]

What did the ICC team say when they were confronted with this evidence?

M: they confessed to these accusations, in detail and in the presence of a French lawyer that was appointed by the ICC.

So, the Libyan government now claims not only that Melinda Taylor and her team were in Libya to kill Saif Gaddafi, but also that they confessed to wanting to kill him.  Yep, that’s convincing.  After all, who would want Saif dead more than his formally-appointed OPCD attorneys?

Weekday News Wrap: Wednesday, August 8, 2012

by Jessica Dorsey

Evening Wear Accoutrement Can Be So Destabilizing

by Kevin Jon Heller

For you, dear reader, I risked life and limb to obtain the schematics of the video/GPS Swatch that the OPCD’s interpreter used to undermine Libya’s national security.  After assuming deep cover, prowling some of the world’s most dangerous locales, and making contact with too many shadowy characters to count, I finally succeeded.  Here it is — look at your own risk:

The threat is self-evident.  Thank God for the Libyan government’s vigilance!

Weekday News Wrap: Tuesday, August 7, 2012

by Jessica Dorsey

The ICC’s Chickens Come Home to Roost

by Kevin Jon Heller

At Justice in Conflict, Mark Kersten calls attention to a recent motion filed by the Libyan government asking for more time — read: stalling — to reply to the OPCD’s response to its admissibility challenge.  The government doesn’t actually want a deadline to respond; it would like to have 18 days from whenever it gets around to appointing a new Ministry of Justice team (para. 14).  That request in itself is a mockery of the ICC’s rules for filing motions and responses, but what is particularly chilling about the motion is the way that it attempts to use the Libyan government’s illegal detention of Melinda Taylor and her team as grounds for removing the OPCD from the case.  I can’t cut-and-paste the relevant paragraphs — thanks, Registry! — so I’ll summarize them:

8. This paragraph points out that Taylor and her team were detained because the Libyan government feels their actions threatened Libya’s national security.  It also notes the ICC’s initial statement “deeply regretting” those actions.

9. This paragraph notes that the ICC promised to investigate the OPCD’s actions.

10. This paragraph complains that the ICC has not updated the Libyan government about the investigation and suggests that the OPCD should not be allowed to continue to represent Saif Gaddafi because “communications between the Libyan Government and the OPCD appear to have irretrievably broken down,” casting into doubt “the OPCD’s ability to properly and genuinely represent Mr Gaddafi’s views on the admissibility challenge.”

14b. This subparagraph asks for “an informed and open discussion” regarding “the propriety of the continued appointment of the OPCD as counsel.”

14d.  This subparagraph asks for “a new timetable for the proceedings, which takes into account the possible need for new and independent counsel for Mr Gaddafi to take instructions on him on the issue of admissibility.”

The entire motion is positively Orwellian — an attempt to create a parallel universe in which the Libyan government didn’t repeatedly lie to the ICC, didn’t illegally detain four members of the OPCD, didn’t intentionally undermine Saif’s right to counsel, and didn’t lie to the Security Council about its actions.  The motion also conveniently fails to mention, when expressing concern for Saif’s wishes on admissibility — how touching! — either Saif’s handwritten statement that leaves no doubt where he stands (the one that the Libyan government prevented him from signing and then confiscated) or the fact that the Libyan government has intentionally denied Saif’s right to domestic counsel for months.  But really, the government just has Saif’s best interests at heart!

In the end, though, it’s difficult to get too upset at the Libyan government for filing the motion.  It has already demonstrated, time and again, that it has nothing but contempt for the ICC.  Sadly, the Court has no one but itself to blame for the Libyan government’s cynical attempts to manipulate it.  As I have pointed out before, the Court’s willingness to apologize for the OPCD’s actions on the basis of lies fed to it by the Libyan government made this kind of motion inevitable.  Even worse, by apologizing, the Court has provided every state it investigates with the perfect blueprint for getting rid of attorneys who will zealously represent their clients.  All a government has to do is illegally detain the attorneys, lie about their actions, and then claim that the lack of communication between the two parties means that the attorneys have to be replaced.

The ICC needs to put a stop to the Libyan government’s unconscionable behavior — and it needs to put a stop to it now.  It needs to deny the Libyan government’s motion, reaffirm that the OPCD will continue to represent Saif, and order Libya to file its reply to the OPCD’s response in a set amount of time — not when the government feels like it.  And it needs to make clear to the Libyan government that it will be investigating its actions as well as the OPCD’s.

The ICC’s ability to function effectively in the future hangs in the balance.

Mauritania Will Not Extradite al-Senussi to Libya

by Kevin Jon Heller

In my previous post, I noted that Libya’s admissibility challenge should fail regarding Saif Gaddafi because the government cannot demonstrate that it is able to obtain him from the Zintan militia that is holding him.  It’s now clear that the Libyan government has even less chance of obtaining al-Senussi:

Mauritania’s president has said former Libyan intelligence chief Abdullah al-Senussi must be tried there before being extradited.

President Mohamed Ould Abdel Aziz said Mr Senussi, who fled after last year’s uprising, must first face charges of illegal entry into Mauritania.

Libya is seeking to try Mr Senussi for crimes committed during his time as Muammar Gaddafi’s right-hand man.

He is also wanted by France and the International Criminal Court.

Mr Senussi was held at Nouakchott airport after flying in from Morocco in March, five months after the capture and death of Gaddafi.

Two months later he was charged for illegally entering the country and for the use of forged documents, judicial officials at the time said.

“Senussi has problems with Mauritania’s judiciary and has to face court for entering Mauritania under a false identity,” President Abdel Aziz said overnight on Sunday in the town of Atar.

“The passport Senussi used to enter Mauritania was not falsified but it presents him as Malian and under a fake name, which is why he must undergo trial in Mauritania,” Mr Abdel Aziz said, according to AFP news agency.

He said the Mauritanian stance had already been made clear to Libyan and French officials.

If you’re scoring at home, it looks like Libya is going to be 0-2 with its admissibility challenges.

Weekday News Wrap: Monday, August 6, 2012

by Jessica Dorsey

The Primary Reason Why Libya’s Admissibility Challenge Must Fail

by Kevin Jon Heller

In my earlier post on Libya’s admissibility challenge, I explained how the Libyan government’s failure to provide Saif with due process could be relevant to the admissibility of the case against him.  There is, however, a far stronger argument against Libya’s admissibility challenge, one that I’ve discussed before: namely, that Article 17(3) deems a case admissible if “the State is unable to obtain the accused,” and Libya is unable to obtain Saif from the Zintan militia that has him in custody.  The OPCD’s response makes the argument at length, with considerably more information than has appeared to date.  (I just wish the OPCD had foregrounded the argument more clearly in the motion; it doesn’t appear until page 80).  Here are the relevant paragraphs…

Saif Gaddafi’s Statement About the Possibility of Justice in Libya

by Kevin Jon Heller

In my post on the detention of Melinda Taylor and her team, I mentioned that the “guard” planted by the Libyan government to spy on the OPCD’s official meeting with Saif first intervened when Saif tried to sign a statement describing his attitude toward the Libyan criminal-justice system.  I thought readers might be interested in the statement itself:

Unsigned statement/sentiments from Mr, Saif Al Islam Gaddafi 7 June 2012, Zintan

1. I want to face justice.

2. I want to do so because I believe that Libya, the victims in Libya, the internationally community and myself all have a right to the truth, and for the truth to be made public.

3. I would have liked to have been tried in Libya by Libyan judges under Libyan law in front of the Libyan people. But what has been happening in my case cannot be called a trial,

4. The truth is only possible in a fair and impartial trial,

5. There will be no truth if I am kept locked up and silenced in a remote mountain village, with no or very limited possibility to speak to my lawyers in order to convey my defence,

6. There will also be no truth if witnesses are faced with possible life sentences for simply testifying in my favour, there is no security or protection for them, nor any consequences if these witnesses are threatened and killed,

7. There will certainly be no justice in the case, if the prosecution is based on evidence extracted from torture and other inadmissible evidence, or persons who are too scared to say the truth,

8. I am not afraid to die but if you execute me after such a trial you should just call it murder and be done with it.

9. I would also prefer to live to see Libya become a democracy based on human rights and respect for the rule of law, but you cannot expect democracy to flourish if all the Libyan people see are show trials run by political expediency,

10. Over a year ago, representatives of the NTC asked the international community to intervene so that the Libyan people could have justice, I am asking for exactly the same thing — the only way for Libya and the Libyan people to have justice is for the ICC to try this case in a fair, impartial and independent manner, and, in so doing, set standards, which Libya can follow on its future path to democracy and the rule of law.

It’s a fascinating statement — and one that completely contradicts everything the NTC has been saying about Saif’s desires.  It’s obviously much easier to misrepresent what a suspect wants when he’s being held incommunicado…

Upcoming Events: August 5, 2012

by Jessica Dorsey

Call for Papers

Upcoming Event

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

New Essay on SSRN

by Kevin Jon Heller

I have just uploaded a new essay to SSRN, entitled “The International Commission of Inquiry on Libya: A Critical Analysis.”  The essay is a chapter of a book on international commissions of inquiry that is being edited by the LSE’s Jens Meierhenrich.  Here is the introduction:

This chapter provides a critical assessment of the International Commission of Inquiry on Libya, established by the United Nations Human Rights Council in February 2011 to investigate violations of international law committed in the Libyan Arab Jamahiriya. The chapter is divided into four sections. Section I provides a brief summary of the Commission’s creation, investigation, and findings. Section II assesses whether the Commission’s mandate and methods satisfied international standards of independence and impartiality. Section III raises a number of questions about the legal framework the Commission applied. Finally, Section IV asks whether, in light of the law it applied and the facts that it found, the Commission’s legal conclusions withstand analysis.

The chapter concludes — oversimplifying a bit — that the the Libya Commission was independent and impartial, generally got the law right (with some significant exceptions), and produced a wealth of useful evidence of international-law violations by the Qadhafi government and by the thuwar.  But it also argues that, perhaps unsurprisingly, the Commission exhibited an unfortunate tendency to downplay violations committed by the thuwar and by NATO.

As always, comments most welcome!

Weekend Roundup: July 28 – August 3, 2012

by An Hertogen

This week on Opinio Juris we provided a forum to two guest posters, Gabor Rona and Michael W. Lewis, who continued their earlier conversation on targeted killing over at Lawfare. In his first post, Gabor asked whether the politicians and military leaders in charge of defining the criteria for targetability will take a more liberal attitude because their own risk is zero and argued that the concept of ‘co-belligerency’ cannot as easily be transposed from an international armed conflict to a non-international armed conflict. Michael Lewis disagreed that leaders are willing to take higher risks with civilian lives and argued that the application or IHL or HRL should not depend on whether a group focuses on military, or only on civilian targets. Since Michael had the final word over at Lawfare, Gabor was given the final word this time.

Ken Anderson marked the passing of Sir John Keegan and reminisced on his own interactions with him.

As you may remember, in June Kevin intensively covered Melinda Taylor’s detention in Libya. He followed up on this with a discussion of the OPCD’s response to Libya’s admissibility challenge which contains a detailed account of the facts leading up to, and during, her detention. He also added a swatch with hidden spy capacities to his wish list for his next 29th birthday. In another post, Kevin fine-tuned his earlier argument that an ICC case does not become admissible simply because the national investigation or prosecution does not live up to international standards of due process. The added nuance is that a case would be admissible if a state does not live up to its domestic standards of due process.

Kevin gleefully noted how the climate change denial camp lost a high profile member whose research funded by the Charles G. Koch Charitable Foundation revealed results that the donors probably were not too thrilled about.

As always, we provided you with our daily news wraps and with a list of upcoming events. Junior Faculty Members may also be interested to read more about the Second Annual Junior Faculty Forum for International Law to take place at Nottingham in May 2013.

Thank you to our guest posters and have a nice weekend!

Where Can I Get One of Those Swatches?

by Kevin Jon Heller

When I wrote my account of Melinda Taylor and her team’s detention, I somehow missed this gem in the OPCD’s response:

381.  The inability of the particular prosecution authorities assigned to the case of Mr. Gaddafi to conduct credible or effective investigations and prosecutions is amply demonstrated by the fact that these same prosecution authorities claimed that an ordinary swatch watch worn by the ICC interpreter, was in fact a ‘spy watch’ (with video or GPS capabilities so hidden that even she and the swatch makers were unaware of them), and proceeded to detain her and charge her on this patently fallacious basis.

That’s one heck of a swatch!  The ones I wore in the 80s were nowhere near as cool.

The Last Word (for now) on Targeted Killings: Rona Responds to Lewis

by Gabor Rona and Jocelyn Getgen Kestenbaum

[Gabor Rona is the International Legal Director for Human Rights First and he is responding to a post by Michael W. Lewis]

OK, let’s forget about drones for a sec. After all, drones are simply a form of targeting. And targeting in war is a good thing. (Since killing is legal in war under certain circumstances, the alternative to targeted killing is indiscriminate killing, which is a war crime.)

Let’s look at existing US targeting policy. First, it is not at all clear that it is restricted to contexts of armed conflict. Exactly who is the US at war against in Yemen, in Somalia? And even if our various wars do extend to those countries, what exactly is the basis under IHL for killing people who we may label “terrorist,” “insurgent,” or the most popular “militant,” but who may not be members of an enemy armed force or who may not be civilians directly participating in hostilities in that armed conflict? None.

To understand how we got here, remember that the Bush administration thought it necessary to create a previously non-existent category of people in order to DETAIN them outside the protections of the Geneva Conventions. No longer did we have the categories recognized n IHL, combatant and civilian, but instead, we now had “unlawful enemy combatant.” (And to those who cite Quirin, which uses the term, I respond that the case was about PRIVILEGED BELLIGERENTS – members of the German armed forces – whose CONDUCT was in violation of the laws of war. Not about unprivileged belligerents and not about the recognition of a new STATUS.) The Obama administration famously retired the term “unlawful combatant,” replacing it with “unprivileged enemy belligerent,” but is less apt to tout that the definition and consequences of the two designations remain essentially the same.

So what? Well, after the US manufactured a new status and a name, “unlawful enemy combatant,” for the purpose of justifying detention in violation of the Geneva Conventions, the notion began to take hold that if you meet the criteria for detention, you also meet the criteria for…

Sir John Keegan, Ave Atque Vale

by Kenneth Anderson

For various family reasons, I have been mostly off-line during the last few months, but I could not let slip by the sad news of the passing of Sir John Keegan, the renowned military historian and author of many works that certainly shaped my thinking and, I would guess, that of many readers.  The Telegraph, for which he served as defense editor for many years, has an obituary here.  For my part, I exchanged occasional cordial letters and, later, emails with Keegan beginning in the early 1990s.  The discussion over all those years that most engaged us both began with a review Keegan wrote in the Times Literary Supplement in 1995 of a book on the laws of war by another intellectually towering figure in these fields, Sir Adam Roberts (the review is probably in the TLS archives, but I can’t find an open source link).  Keegan’s review was, as with everything he wrote, crisp, lucid, and elegant; although his reputation justly rests on his many books, I myself am drawn in a literary sense to his exquisitely written critical reviews in the TLS and elsewhere.

Keegan’s review of Adam Roberts’ book remained with me, and I quoted it in my own 1998 TLS review of Caroline Moorehead’s powerful history of the Red Cross movement, Dunant’s Dream: War, Switzerland, and the History of the Red Cross.  Keegan got in touch after my essay appeared to tell me that this notion of honor was far from being a throwaway point, but was in fact central to his view on the nature of the military professional and added, I’m pleased to say, that he embraced the passage in which his own comment is embedded.  Fifteen years later, the intellectual conversation around these topics is significantly different, of course – but not entirely:

The dream of an international culture of legality that has all the virtues of a settled and legitimate domestic legal order is the ancient dream of a deus ex machina. Faith in legality as the engine driving such adherence as exists to the laws of war seems to me, however, entirely misplaced; it is a fantasy tailor-made for lawyers, and especially for American lawyers. Lawyers believe the problem is one of enforcement, whereas in fact it is one of allegiance. Codifications of international law are a useful template for organizing the categories of a soldier’s duties. But, in the end, the culture relevant to respect for inter-national humanitarian law is not the culture of legality and the cult of lawyers, but instead it is the culture of the professional honour of soldiers, and what they are willing or not willing to do on the battlefield.

Which is why the profoundest remarks in some years about war and law were those written three years ago in this paper [TLS] by John Keegan. “The experience of land war in two world wars”, Adam Roberts observes in The Laws of War, the book Keegan is reviewing, “‘must necessarily raise a question as to whether formal legal codification is necessarily superior to notions of custom, honour, professional standards, and natural law’ in making for battlefield decencies.” Keegan answers simply, “There is no substitute for honour as a medium for enforcing decency on the battlefield, never has been, and never will be.” (TLS, November 24, 1995.) Despite the ICRC’s affection for international legalism, it surely knows that Keegan is right in a way that other human rights and humanitarian organizations do not, precisely because it has lived so long with the dilemmas that other organizations avoid. Should it ever cease to comprehend this, it will also cease to be an organization with a unique mission, legitimacy and insight – the organization it has always claimed to be – and become instead, in David Rieff’s words, “just another NGO”. The loss would be profound.

Weekday News Wrap: Friday, August 3, 2012

by Jessica Dorsey

Why the Failure to Provide Saif with Due Process Is Relevant to Libya’s Admissibility Challenge

by Kevin Jon Heller

Of all my writing, my article on the relationship between national due process and the Rome Statute’s principle of complementarity is almost certainly the most unpopular. (Except in the OTP.)  My thesis is a simple one: the failure of a national investigation or prosecution to live up to international standards of due process does not make a case admissible before the ICC.  Indeed, the drafters of the Rome Statute specifically rejected a proposed version of Article 17 (by Italy) that would have permitted the Court to consider whether “the said investigations or proceedings… were or are conducted with full respect for the fundamental rights of the accused.”  States simply did not want the ICC to function as a supranational court of human rights, imposing its own practices and procedures on national criminal-justice systems.  Ensuring that national systems lived up to international standards, they believed, was the responsibility of human-rights bodies like the Human Rights Council, not the Court’s judges.

I remain convinced that my thesis is correct.  Scholars have tried to get around it, normally by arguing that Article 17(2)’s reference to “the principles of due process recognized by international law” undermines it or that Article 17(2)(c)’s expression “bring the person concerned to justice” includes a due process requirement.  I deal with both in the article.  The first argument takes the language in question out of context, because all of the grounds for holding a case inadmissible under Article 17(2) require the national deficiency in question to make it more difficult to convict a defendant.  The second argument is acontextual and is contradicted by the clear intent of the drafters.  (It is also a strained “plain reading” of the text.  When the U.S. Marshal in a Western tells his deputies to bring the bad guy to justice, no one thinks he is actually instructing his deputies to ensure that the bad guy has a good lawyer.)

So does that mean a national criminal-justice system’s failure to provide a defendant with due process can never make a case admissible?  I’ve been thinking about the issue again lately, because of Libya’s treatment of Saif Gaddafi.  To be honest, I never imagined that a state would so blatantly deny due process to a suspect wanted by by the ICC.  I expected that states in Libya’s situation would at least pretend to treat the suspect fairly.  And what I have realized is that although my thesis is correct, it ignores a potentially very important situation: where deficiencies in a national investigation or prosecution makes it more difficult to convict a suspect because the state’s own criminal-justice system requires due process.  If a state’s code of criminal procedure authorizes the judiciary to dismiss charges against a suspect on the ground that the executive has denied the suspect rights guaranteed to him under national law, the executive’s failure to provide the suspect with those rights means that the state is, in fact, conducting the proceedings in a manner “inconsistent with an intent to bring the person concerned to justice.”  Intentionally or not, the state is making it more difficult to convict the suspect — and that is all that Article 17(2)(c) requires for the Court to find a case admissible.

Before turning to Libya and the OPCD’s response, let me illustrate the difference between this situation and the situation that Article 17 forecloses…

Weekday News Wrap: Thursday, August 2, 2012

by Jessica Dorsey

The Most Complete Account to Date of Melinda Taylor’s Detention

by Kevin Jon Heller

The OPCD has filed its formal response to Libya’s admissibility challenge.  It’s a monster of a brief — 92 pages — so it will take a number of posts to deal with it adequately.  In this first post, I want to pull together the various sections of the brief that provide unprecedented detail concerning Melinda Taylor’s detention.  Before I do, though, I just want to say how lucky the ICC is to have professionals like Melinda Taylor and her detained colleagues (and their boss, Xavier-Jean Keita) working for it.  They are a credit to their profession, to the Court, and to international criminal justice in general.  They make me very proud to have spent the majority of my career working to protect the rights of criminal defendants.

Now, Taylor’s detention.  It’s a sordid tale — and one that makes the ICC’s ill-advised and counterproductive apology to Libya seem even more ill-advised and counterproductive. First, some background to the OPCD’s appointment:

249. On 6 December 2012, the Pre-Trial Chamber appointed the OPCD to represent the interests of Mr. Gaddafi in the proceedings before the ICC. In January 2012, the OPCD liaised with the Libyan authorities in order to establish contact with Mr. Gaddafi with a view to advising him on his rights before the ICC.

250. The Prosecutor-General refused to conduct communications with the OPCD by telephone or to confirm by facsimile whether it would be possible for the OPCD tvisit Mr. Gaddafi.  The OPCD was eventually instructed to Uaise with Dr. Gehani. Dr. Gehani informed the OPCD that it would not be feasible for the OPCD to communicate with Mr. Gaddafi due to the fact that Mr. Gaddafi had refused to see any ICC officials.

251. On 19 January 2012, the OPCD requested Dr. Gehani to convey a letter to Mr. Gaddafi, explaining the appointment and mandate of the OPCD, so that Mr. Gaddafi could make an informed decision regarding a potential visit. It is, however, apparent that Dr. Gehani failed to convey this letter to Mr. Gaddafi.

252. On 23 January 2012, the Libyan authorities averred to the Pre-Trial Chamber that Mr. Gaddafi had apparently refused to receive visits from a local or international lawyer, or from any ICC officials.

253. Pursuant to an order of the Chamber, the Libyan authorities arranged for representatives of the Registrar and the OPCD to meet with Mr. Gaddafi on 2 March 2012, that is 1 month after the Chamber had ordered that the visit be implemented ‘as soon as possible’.

The OPCD initially met with Saif on March 3. As that meeting made clear, the Libyan authorities had blatantly lied to the ICC from the beginning about Saif’s desires…

Michael Lewis’ Response to Gabor Rona on Targeted Killing

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

I want to thank Gabor for continuing a discussion started over on Lawfare a couple of weeks ago and to thank Opinio Juris for allowing me an opportunity to respond.  As I had the last word on Lawfare I believe Gabor will be given the final word here.

Gabor is correct that drones themselves are “stupid” in that they do not make any targeting decisions themselves.  Should that ever change it will fundamentally alter how IHL regulates the use of such weapons.  But we are a long way from having “untethered” drones loosed on the battlefield and I have found no appetite for such a development amongst operational military commanders.

However this “stupidity” does not change the fact that, as a weapons system, drones are capable of more accurately discriminating between civilians and legitimately targetable individuals than any other weapons system we currently possess.  This is because drones allow for a dispassionate assessment of each weapon employment by both senior military commanders and trained legal officers before the shot is taken.  No other weapons system (special forces, artillery, manned aircraft, regular ground troops) currently available allows senior commanders and legal officers such access to individual weapons employment decisions.

While Gabor seems to agree that drones as a weapons system possess this ability to distinguish between civilians and legitimate targets, he concludes that the military will be disinclined to take advantage of that capability.  Curiously he concludes that…

Weekday News Wrap: Wednesday, August 1, 2012

by Jessica Dorsey