Archive for
August, 2013

Syria Insta-Symposium: Obama’s Constitutional Surrender?

by Peter Spiro

President Obama’s decision to seek authorization for military intervention in Syria is a watershed in the modern history of war powers. At no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force. Foreign Policy’s David Rothkopf gets it exactly right:

Whatever happens with regard to Syria, the larger consequence of the president’s action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval. . . .

Obama has reversed decades of precedent regarding the nature of presidential war powers — and whether you prefer this change in the balance of power or not, as a matter of quantifiable fact he is transferring greater responsibility for U.S. foreign policy to a Congress that is more divided, more incapable of reasoned debate or action, and more dysfunctional than any in modern American history. . . .

Will future offensive actions require Congress to weigh in? How will Congress react if the president tries to pick and choose when this precedent should be applied? At best, the door is open to further acrimony. At worst, the paralysis of the U.S. Congress that has given us the current budget crisis and almost no meaningful recent legislation will soon be coming to a foreign policy decision near you.

The request makes all the difference. Just compare this episode to Kosovo, in which Congress tried and failed to get its act together to agree on an institutional position on the NATO bombing. But President Clinton had not requested authorization, and so there was no concession that congressional approval was needed. So he left himself free to ignore Congress’ failure to approve the action.

Obama will have no such out. (He claimed authority to go it alone in his statement today, but this is a context in which actions speak louder than words.) If Congress doesn’t authorize the use of force in Syria, his hands will be tied. The request shifts the default position.

In the past, presidents have been able unilaterally to initiate uses of force short of real war so long as Congress doesn’t formally disapprove. Institutional incentives have always pointed away from such disapproval. In fact there are only two partial examples of Congress limiting presidential uses of force in the modern era — Lebanon (Reagan) and Somalia (Clinton) — and that happened only after unilateral presidential actions had headed south. But of course those incentives also point against formally approving these sorts of lesser operations. Kosovo proved both sides of the coin, as measures both to approve and disapprove went down in defeat.

Over at Lawfare, Jack Goldsmith congratulates Obama for the move. Future presidents will not be so thankful, and maybe the rest of us shouldn’t be, either. Assuming a limited operation with no American casualties, Obama could have sweated the political heat just like he did during Libya. Through Democrat and Republican administrations presidents have for the most part used the power to initiate lesser uses of force in ways that served the national interest. American power would have been embarrassed by the requirement of congressional approval, which in many cases wouldn’t have been forthcoming.

The rest of the world can basically forget about the US going to military bat in these kinds of situations if congressional action is a precondition. This is a huge development with broad implications not just for separation of powers but for the global system generally.

Syria Insta-Symposium: Will President Obama Reveal the International Law Justification for His Attack on Syria?

by Julian Ku

In a surprise announcement, President Obama announced today that he will seek congressional approval for his plan to launch military strikes against Syria.  This is a smart decision, both politically and legally, since it will force many of his congressional critics to reveal their preferences, and take a position on this very difficult issue.  If they approve the strike, the President gets (some) political cover. If they disapprove it, the President gets some political cover as well, and maybe a way to wriggle out of his red line. (But note the President leaves himself an out: “Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.”)

Interestingly, President Obama also made it clear that he’s “comfortable going forward without the approval of a United Nations Security Council that, so far, has been completely paralyzed and unwilling to hold Assad accountable.”

This sets up an interesting question for international law scholars.  If (as is still more likely than not) the U.S. goes forward with strikes, but without UNSC support, what will the U.S. government’s legal theory be?  Will the U.S. go forward with some version of the “humanitarian intervention” theory lately advanced by the UK and by folks like Professor Jennifer Trahan?  Will it argue, as Professor Hurd argues, that international law has evolved to allow humanitarian interventions of this kind?

Or will the argument lean more closely toward a self-defense theory, that the President alluded to today when he reminded his listeners that:

Make no mistake — this has implications beyond chemical warfare. If we won’t enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules? To governments who would choose to build nuclear arms? To terrorist who would spread biological weapons? To armies who carry out genocide?

I think this last point is going to be developed more in the next week as the debate in the U.S. heats up, largely because I think it is the part that is most attractive to members of the U.S. Congress.  I think the “humanitarian intervention” rationale is more legally attractive to international lawyers, but (as Prime Minister Cameron discovered) the rationale is simply not all that attractive to the voting public.

Still, President Obama has also suggested that “international law” matters here, and indeed, he is going to strike in order to uphold the system of chemical weapons regulation the U.S. has supported.  So it will be interesting to see if his advisers reveal an international law justification for this strike, and whether that justification will have any impact on the congressional debate.  I’m guessing no, and no.  But we’ll see.

 

Syria Insta-Symposium: John Quigley on Intervention

by John Quigley

[John Quigley is the President’s Club Professor Emeritus of Law at Moritz College of Law, The Ohio State University]

It is hard to find a basis for justifying air strikes against Syria. The British Government has said that humanitarian intervention would be a lawful basis. Prime Minister Cameron’s office says that such a doctrine exists in international law, that it has three elements, and that all are met. Cameron’s three elements: There is convincing evidence of extreme, large scale humanitarian distress; there is no practical alternative to the use of force if lives are to be saved; and the use of force must be proportionate and aimed at relieving a human crisis.

French President Francois Hollande says that “international law must evolve with the times,” so as not to allow mass murder to go unchecked.

Even if Hollande and Cameron are correct that humanitarian intervention has somehow entered into customary law, thereby trumping the UN Charter, the requisites do not seem to be present. One requisite – which Cameron omitted – is that a plan for intervening on humanitarian grounds must be rationally calculated to secure protection for the presumably endangered population. Chemical weapons cannot safely be bombed. Degrading delivery systems, which is the apparent plan, leaves the weapons intact. Whether Syria would or would not be able to deliver them after a 2-day bombing raid is speculative. Or even if the bombing does seriously degrade, it would be a matter of time before a delivery capability were re-constituted.

Air strikes would result in deaths. One would need a very strong case that those deaths are justifiable.

The House of Commons was uncomfortable authorizing action before the evidence was in. The videos that Secretary of State Kerry cites as compelling evidence have been challenged as evidence on the basis that if an agent like sarin were involved, medical personnel would not be able safely to treat victims.

Another argument that some are making is that while the strikes may not be legal, they are legitimate. Call me a positivist, but in my simple-minded view of international law, an action is either legal or it is not.

Some in the Administration are apparently invoking self-defense, on a rationale that chemical weapons in the possession of Syria’s government might “fall into the wrong hands” and be used against the United States or against US-friendly states in the region, naming Jordan, Israel, and Turkey. Apart from this being too distant from the “armed attack” required by UN Charter Article 51, self-defense could apply only to the United States, absent a request from another state for “collective” self-defense, a request that could be valid only if the other state had been attacked. The possibility of weapons falling into unfriendly hands, in any event, provides no justification for missile attacks. The attacks are apparently not aimed at the weapons themselves but at delivery systems. The attacks are not aimed at securing the chemical weapons to keep them from being obtained by others.

Still another assertion apparently emanating from the Administration is that US inaction might be an invitation to others to use chemical or other banned weapons. That assertion is too speculative to constitute an argument under self-defense. The Administration inadvisedly set a “red line” that use of chemical weapons would bring action by it. One now hears, in particular from Mike Rogers, chair of the House intelligence committee,  that the US must attack, lest its credibility suffer. It would be unfortunate if military action were undertaken for that reason. One is reminded of the last few days before NATO’s bombing of Serbia in 1999, when NATO officials said that NATO had been threatening Serbia for so long that if NATO did not attack, NATO’s credibility would be undermined.

UN Secretary-General Ban Ki-moon is right on this one. The Security Council remains the only route whereby strikes could lawfully be conducted.

Syria Insta-Symposium: Ian Hurd–On Law, Policy, and (Not) Bombing Syria

by Ian Hurd

[Ian Hurd is an Associate Professor of Political Science at Northwestern University. This contribution is cross-posted at the Ethics and International Affairs Blog.]

The debate sparked by Syria’s chemical weapons attack last week includes at least three separate controversies: 1) which (if any) international legal instruments govern Syria’s use of chemical weapons; 2) whether outside military action against the Syrian regime violates international law; and 3) whether US military intervention against the Assad regime is advisable in these circumstances. Each of these questions is complex. My recent op-ed in the New York Times contributed to conflating them. The question of whether the US should use its military against Assad is separate from the questions of legal interpretation. The legal question does not address the likely consequences of the use of force.

No-one can know for sure the outcome of military intervention in Syria. But the risks of making the situation worse are substantial. International outrage over Assad’s use of chemical weapons should be channeled into escalating the political, diplomatic, and economic pressure on the regime and those that keep it in power.

It was taken for granted in most discussions after the Ghouta attack that Syria had violated international law. This is probably incorrect, but the answer depends on one’s view of how customary law relates to treaty law. Among treaties, Syria is not a party to the Chemical Weapons Convention and its actions cannot be considered illegal under that treaty. It is a party to the Geneva Gas Protocol of 1925, which prohibits “the use in war of asphyxiating gases, poisonous and other gases.” Whether this covers the Syrian regime’s use of these weapons against its own people depends on whether the word “war” in the treaty includes internal as well as inter-state conflicts. The drafters of the 1245 Protocol most likely had in mind international war. Unless one were to make an argument for the more expansive version of the word, and as horrible as it sounds, one would have to conclude that Syria has accepted no treaty obligation that prohibits the use of chemical weapons domestically.

Customary law however may ban the use of chemical weapons. This has been raised in many arguments over Syria, and can be found in the ICRC’s position and in a recent a post by Charli Carpenter. It also appears in the UK legal brief of August 29th 2013. Customary law involves a ‘general practice of states’ that is accepted by them as legally binding. The almost universal support for the CWC convention (189 state parties) is strong evidence for this. But Syria’s refusal to accept the treaty is presumably evidence that it contests that norm – and its practice certainly contradicts it. The dilemma at the heart of customary law is that it searches for a coherent narrative in a world that is full of contradictions.

This examination of chemical-weapons law does not exonerate Assad’s atrocities, and it does not exempt his regime from legal condemnation under other treaties that he has signed, notably the Geneva Conventions (1949).

But even if Assad has violated it himself, there is nothing in chemical weapons law, including the CWC, to authorize the use of force in response to their use. The relevant treaties do not include enforcement powers, beyond referring matters to the Security Council. It is well known that the Charter forbids the use of force except as self-defense or as sanctioned by the UN Security Council. Everything else amounts to aggression and is illegal.

There is no provision in the Charter that provides for the enforcement of treaty obligations or for humanitarian need. This was vividly on display when Romeo D’Allaire and the UNAMIR mission confronted legal obstacles to protecting people from the Rwandan genocide of 1994. The doctrine of the Responsibility to Protect has developed as a ‘norm’ rather than a ‘law’ (in part as a response to this genocide) precisely because it conflicts with the law of the Charter (at least insofar as R2P is used as justification by individual states rather than the Council itself).

Many countries have sought to differentiate between aggressive war and other kinds of unilateral, cross-border uses of force. India, for instance, justified its invasion of Goa in 1961 on the grounds of anti-colonialism. In the Times I suggested that ‘humanitarian intervention’ without Council approval might sometimes be legally distinct from ‘aggression.’ This is highly contested, but it would not be the first time that the Charter has undergone substantive reinterpretation without a formal amendment. The UN Security Council treats an abstention by a permanent member as something other than a veto. This contradicts the plain language of the Charter, but it has ceased to be controversial.

Regardless of how one interprets international law on the use of force, however, these rules do not answer the question of whether intervention in any particular case is warranted. This is a question that law on its own cannot answer.

The US has earned a reputation as a foreign-policy bully, and for sending its military and its money abroad to promote American economic and political interests at great expense to other states and societies. It imposes on others costs and constraints that it would never accept to have foisted upon it. It is no wonder that so many people protest whenever the US government suggests that is military can be the ‘answer’ to some ‘problem’ in another country — we have heard this, and been horrified by the results, so many times before.

Despite what the title of my op-ed implies, there are numerous ways the US could continue to try to limit Assad’s capacity to harm his people that do not involve bombing Syria. Hathaway and Shapiro suggest some of the possibilities. Richard Falk has outlined clearly the risks, drawbacks, and dangers of a military response against Assad. The more considered response would be to intensify economic and diplomatic pressure on Assad and his supporters abroad.

My piece in the Times has been interpreted as an argument in favor of military action at any cost. This was not its intent. It is irresponsible to fold the question of how the US and others should respond to the tragedy in Syria into legal discussions about which treaties apply to whom, when and where. My intention was to suggest that international law has changed such that it now encompasses the use of force on humanitarian grounds in certain extremely grave circumstances. An understanding of the history and politics of international law contributes to an informed debate over the international response to the Syrian crisis. But understanding the treaties, their limitations, and the politics surrounding their interpretation does not answer the question of how to respond. As Kenneth Anderson says, “It is not clear that any of the legal arguments – on any side – are adequate to address the real world stakes.”

Syria Insta-Symposium: Jennifer Trahan-The Legality of a U.S. Strike on Syria

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor, NYU Center for Global Affairs, chair of the American Branch of the International Law Association International Criminal Court Committee, and member of the American Bar Association 2010 ICC Task Force]

As the U.S. prepares, with or without coalition partners, for a potential military strike against the Bashar al-Assad regime in Syria , it is important to consider the legality of such a strike as a matter of domestic and international law.  At the international level, with a U.N. Security Council resolution, such action would be clearly legal.  Without such a resolution, the law is in somewhat of a grey area, but the legality is supportable.

The “responsibility to protect” doctrine, developed in recent years, makes clear that the international communitydoes have a responsibility to protect a people in peril from grave atrocity crimes.  Recent formulations of the “responsibility to protect” doctrine suggest that large scale war crimes and/or crimes against humanity — acknowledge to have occurred in Syria — are such atrocity crimes.

While the clearest path to utilizing forceful intervention under the “responsibility to protect” framework is through Security Council authorization (as happened in the case of Libya ), tragedies such as genocides in Rwandan and Darfur dramatically pose the question:  what should the world do when the votes are not there at the Security Council level?  Should one simply allow massive humanitarian tragedies to be inflicted by a regime on its own people absent a Security Council resolution?  Does one really need to wait for recalcitrant China and Russia (permanent members of the Security Council possessing veto power) to do the right thing?

A legitimate argument exists that even when the Security Council does not authorize humanitarian intervention, it is arguably still permissible.  As formulated by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, while the decision to intervene should be made by the Security Council, if the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation.”

Clearly, intervention through a coalition of partners, such as a NATO coalition (as occurred with Kosovo) lends greater legitimacy (although even that is technically not sufficient under a strict reading of the U.N. Charter).  But when a broad coalition or regional actor is unavailable, does that mean that countries must stand by and let mass atrocities, such as the use of chemical weapons (a necessarily indiscriminate weapon), occur?  The answer is arguably no.

While the U.N. Charter only clearly permits intervention in two scenarios:  U.N. Security Council authorized action and article 51 individual or collective self-defense, the Charter also contains a clear commitment to human rights.  Committing mass atrocity crimes is about the clearest violation of human rights that one can get.  Thus, while humanitarian intervention is not clearly legal under the U.N. Charter, it is not clearly illegal either.  We are in a grey area where the demands of morality and those of international law are not yet fully harmonized in a clear manner.  Should thousands more die while we wait for international law (which can take decades to form) to catch up to where it should be?

We might have not reached this point had Assad regime members (as well as others actors in Syria ) felt much sooner that the international community was scrutinizing their actions.  This could have happened through a Security Council referral of the situation to the International Criminal Court.  Unfortunately, that has not happened, and any chance to deter crimes through a referral has been squandered.

While the U.S. contemplates a strike, important criteria for consideration include those formulated by the Secretary-General’s High-Level Panel on Threats, Challenges and Change.  Namely, last resort:  “Has every non-military option for meeting the threat in question been explored . . . ?”  Proportional means:  “Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question”? Balance of consequences:  “Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?”

The Administration is facing a difficult choice as the U.S. contemplates moving ahead, hopefully along with coalition partners such as France .  Yet, a flexible reading of international law does not demand that countries stand impotent in the face of over 100,000 fatalities and the use of chemical weapons.

Syria Insta-Symposium

by Jessica Dorsey

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the ongoing situation in Syria. We also are going to follow in our own footsteps from our Kiobel symposium, by inviting young academics and practitioners to submit guests posts for possible publication.

We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new and emerging voices. So if you want to write a guest post for Opinio Juris about Syria of approximately 500 to 1000 words, please do so in the next couple days and send it to me and An Hertogen at opiniojurisblog [at] gmail [dot] com. Our editorial team will review the posts and publish as many as we deem appropriate.

Weekend Roundup: August 24-30, 2013

by An Hertogen

This week on Opinio Juris, the possible intervention in Syria  took centre stage. Julian rounded up statements by the UK, Russia and France on the legality of a military intervention without UN authorization, and declared that the doctrine of humanitarian intervention suffered a massive blow when the UK House of Commons rejected a resolution on military strikes. Deborah discussed why the doctrine of humanitarian intervention cannot provide legal support for US context. In the US context, Julian wondered why President Obama takes a different position from candidate Obama on the need for congressional authorization.

Kevin provocatively asked what sets chemical weapons apart from conventional weapons that makes their deployment a relevant factor for intervention. Kevin also argued why the UNSC cannot ask the ICC to investigate only the crimes committed by the Assad regime, and pondered the ICC’s options should the UNSC make such a referral anyway. He also referred to a post by Bill Schabas on the dynamic interpretation of the Rome Statute to include chemical weapons, and posted this tumblr as an accurate depiction of his position.

On August 28, Roger marked the 50th anniversary of Martin Luther King’s “I Have a Dream” speech, whereas Chris joined the Peace Palace‘s 100th birthday bash. While in The Hague, Chris visited the Permanent Court for Arbitration which will handle the Philippines-China arbitration. Chris had further visits scheduled with the ICC and the Special Tribunal for Lebanon, and will report more about those visits in the next few days.

In international courts related news, Julian wondered whether recent comments by Colombia’s Vice President indicated that Colombia was set on ignoring the ICJ ruling in its dispute with Nicaragua, and Kevin shared his thoughts on Judge Harhoff’s disqualification in the Seselj case.

In our Emerging Voices symposium, Drew Cohen examined Botswana’s call on the South African Development Community to examine election fraud in Zimbabwe; Matiangai Sirleaf advocated a thicker conception of justice that would include issues of distributive justice in transitional justice efforts; and David Attanasio proposed a change to the Inter-American Human Rights system to deploy it in the fight against drug cartels and other militarized criminal organizations in Latin America. Efrat Bouganim-Shaag and Yael Naggan finished the week with a post on peace-time crimes against humanity and the ICC.

Peter posted about international law on Twitter, and looked for our 5000th follower (we’ve reached that milestone since!).

Finally, as always, we listed events and announcements and Jessica provided you with her weekday news wraps.

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

Not Even the Brits Can Make the Case Bombing Syria Is Lawful

by Deborah Pearlstein

Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo).

The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

But it just can’t support U.S. action here. Here’s why.
Continue Reading…

Emerging Voices: Peace-Time Crimes Against Humanity and the ICC

by Efrat Bouganim-Shaag and Yael Naggan

[Efrat Bouganim-Shaag, LL.B, The Hebrew University of Jerusalem (2012); Yael Naggan, LL.B and B.A. in International Relations graduate from The Hebrew University of Jerusalem (2013)]

Last February, a report by the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea concluded that there are “nine patterns of violation” of rights, which “may amount to crimes against humanity, committed as part of systematic and/or widespread attacks against civilian population”. The violations mentioned were, inter alia, in respect of the right to food, torture, arbitrary detentions, discrimination, the right to life and enforced disappearances. Following this report, a UN special panel has recently begun to investigate human rights violations in the DPRK. Persecutions, arbitrary detentions and torture reportedly committed in Eritrea are another example of state-sponsored human rights violations, possibly amounting to crimes against humanity (see, e.g., here and here). These all-too-common situations, in which the civilian population in a given country is continuously subjected to human rights violations which could amount to crimes against humanity, presumably warrant the International Criminal Court’s attention.

Indeed, the framework of the Rome Statute allows for the investigation and prosecution of peace-time crimes against humanity; i.e. those taking place without any connection to an armed conflict.  Nonetheless, a review of the current situations handled by the ICC suggests that crimes of this nature have been somewhat outside of the Court’s focus. In this post we will highlight what we identify as a gap between the Court’s subject matter jurisdiction and its practice.

Under article 7 of the Rome Statute, the definition of crimes against humanity does not require that the acts in question occur in connection with an armed conflict. In all the “situations” presently before the Court the charges brought forward have included crimes against humanity (except for the situation in Mali, in which no charges have been brought as of yet) (see Prof. Sadat’s recent study). Nevertheless, seven out of the eight current situations have to do with armed conflicts; the post-election violence in Kenya being the exception. Furthermore, an overview of the current preliminary examinations being held by the Office of the Prosecutor (as of August 2013) may suggest a similar focus on situations in which armed conflicts have occurred. Even events presently being discussed by the international community as meriting the Court’s attention involve armed conflicts, namely Syria (see, e.g., here and here).

While this trend is not necessarily a negative one, it certainly calls for further consideration…

Schabas on Chemical Weapons

by Kevin Jon Heller

Bill Schabas makes a great point regarding whether the Rome Statute should be interpreted to directly criminalize chemical weapons as part of its direct criminalization of poisoned weapons:

I know that some colleagues are debating this elsewhere in the blogsphere. The argument seems to be that a broad construction of the notion of poison or poisonous weapons, whose use is criminalised by article 8(2)(b)(xvii) of the Rome Statute, might do the trick and encompass chemical weapons. It is fine for academics to make this argument, but it is a big trap for the United Kingdom, France and the United States and I doubt that they will fall into it. That is because if we consider chemical weapons to fall into the archaic category of poison or poisonous weapons, by some form of dynamic and evolutive interpretation of the Rome Statute, then we will also have to include nuclear weapons. What could be more poisonous than nuclear weapons? And London, France and Paris won’t go along with that.

Exactly! We call it “radiation poisoning” for a reason. Do defenders of the poison-weapons-includes-chemical-weapons position believe that the Rome Statute directly criminalizes nuclear weapons in the same way?

RIP, The Doctrine of Humanitarian Intervention?

by Julian Ku

It might be premature to declare the death of the doctrine of humanitarian intervention under international law, but there is no doubt that doctrine suffered a massive blow when the British Parliament voted against a preliminary motion in favor of military strikes on Syria.  To be sure, humanitarian intervention was not directly before the Parliament, but the UK government’s international law justification for the Syria strikes without UN Security Council authorization was almost wholly based on a version of the humanitarian intervention doctrine.  And since the UK government’s motion would have only supported strikes after a report from UN inspectors confirming the use of chemical weapons by the Syrian government, I don’t think doubts about the use of the weapons were the top reason the motion failed.

More likely, the MPs voted against the motion on the theory that even if the Syrian government’s responsibility for the use of chemical weapons was established, the UK should not launch strikes.  To be sure, I doubt many MPs voted no just because they didn’t accept the government’s legal justification, but it obviously didn’t gain a majority support.

Since the UK is one of the few states to openly adhere to the doctrine of humanitarian intervention, and this vote casts doubt on the UK’s future commitment to this doctrine, I would not be optimistic about the future acceptance of this doctrine by other states.  Of course, there is one state out there that might jump on the humanitarian intervention bandwagon, even at this late hour.  But it has not done so yet.

Brief Thoughts on Judge Harhoff’s Disqualification

by Kevin Jon Heller

I hate when interesting things happen while I’m sleeping. As I predicted, and as Marko Milanovic and Dov Jacobs have already well discussed, Judge Harhoff has been disqualified from the Seselj case as a result of the “private letter” he sent to 56 of his friends and acquaintances. Here is the key paragraph from the majority decision:

13. By referring to a “set practice” of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority, Judge Liu dissenting, considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction. This includes for the purposes of the present case. This appearance of bias is further compounded by Judge Harhoff”s statement that he is confronted by a professional and moral dilemrna, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal. In the circumstances, the Majority considers that the Letter, when read as a whole, rebuts the presumption of impartiality.

Not surprisingly, I think this is the correct outcome. I agree with Marko that “the decision does seem to be based on a rather cursory and acontextual assessement of the Harhoff letter.” But I doubt that’s an accident — my guess is that Judge Harhoff’s fellow judges did not want to embarrass him any more than was necessary to justify his disqualification. Differently put, I think a less cursory and less acontextual assessment would only have made Judge Harhoff look worse. In my view, Judge Harhoff’s evidence-free allegation that Judge Meron coerced his fellow judges into acquitting high-ranking military commanders because of his loyalty to Israel and the US demonstrates far greater actual bias in favour of conviction than his (also absurd) comment that the ICTY’s “set practice” until recently was to convict such commanders.

I disagree with Marko, however, that “to the extent that Judge Harhoff had any difficulties in applying the current jurisprudence of the Tribunal (assuming that the jurisprudence he takes issue with would actually be central to the Seselj case), one assumes that any errors of law he made could be corrected on appeal.” True enough — but I don’t see how it’s relevant to whether Judge Harhoff should have been disqualified. A judge who wrongly decided a case because of a bribe could have his error corrected on appeal, as well, but I don’t think we would want him sitting on the case in the first place. Moreover, given that defendants have a right not to remain in detention any longer than necessary, I don’t see how it is sufficient to say that the Appeals Chamber could always reverse a wrongful conviction on appeal.

Finally, I think it’s very disappointing that the decision was not unanimous. Judge Liu was obviously well within his rights to dissent, but I find the dissent very unpersuasive. I’m particularly troubled by the following statements:

7. Such an interpretation fails to take into account, or at least acknowledge, the consideration that the Judges of the Tribunal are professional, experienced judges and that they may be relied upon to bring an impartial and unprejudiced mind to the evidence and issues arising in the case before them.

8. In my view, an evaluation of the relevant circumstances in the present case is crucial to a proper interpretation of the Letter and its contents. Such circumstances include, for example, the high eligibility standard for Judges of the Tribunal as embodied in Article 13 of the Statute, the oath taken by judges to exercise their powers “honorably, faithfully, impartially and conscientiously”, and a judge’s professional experience.

9. In the instant case, the Majority at no point mentions or indicates that it took into account Judge Harhoff’s experience as a Judge of the Tribunal and a professor of law.

Judge Liu’s argument basically reduces to the idea that no one qualified to be a judge at the ICTY, especially a law professor, could ever be sufficiently biased to warrant disqualification. I have great respect for international judges, but that is not an acceptable approach to disqualification. A light thumb on the unbiased side of the scale because of a judge’s training and oath is one thing; relying on that training and oath to ignore the most inappropriate and tendentious public comments ever made by an ICTY judge is quite another. If Judge Harhoff’s letter was not enough to question his impartiality, what would be enough?

Any Questions: The International Criminal Court and the Special Tribunal for Lebanon

by Chris Borgen

[Travel and other expenses related to my participation in the “100 Years Peace Palace” program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

Finishing up my week of meetings and interviews related to international legal institutions at the Peace Palace and the Hague more generally, I will be meeting tomorrow with President Sang-Hyun Song of the International Criminal Court and with Marten Youssef, spokesperson for the Special Tribunal for Lebanon.

As before, I invite readers to submit any questions.

I will have posts in the coming days recapping meetings at the ICJ, the Peace Palace centennial, and other Hague-related topics, as well as these upcoming meetings at the ICC and STL.

Emerging Voices: Drug Cartels, Bacrim, and Other Militarized Criminal Organizations–A New Role for the Inter-American System?

by David Attanasio

[David L. Attanasio is a professor of international law at the Jorge Tadeo Lozano University in Bogotá, Colombia]

The last few years have seen a rapidly changing landscape for serious human rights violations in the Americas.  Instead of government abuses committed in the alleged fight against left-wing guerilla groups, militarized criminal organizations now perpetrate many, if not most, serious human rights violations (or what would be such violations were they committed by state actors). While the Mexican drug cartels operating throughout Mexico and Central America are well known, Colombia has a serious problem with similar groups, the so-called Bacrim (criminal bands).  Although less known, Bacrim groups are representative of the regional trend, violently seeking control of drug production and trafficking routes—among other activities.  Reflecting their national significance, the Colombian Constitutional Court recently held that Bacrim victims have the right to reparations similar to those for other armed conflict victims.

The contentious case mechanism of the Inter-American Human Rights system has been an important tool to combat serious human rights violations, as individuals can use it to denounce specific state human rights violations.  But, given the new dynamics of human rights violations in the hemisphere, the mechanism must adapt to the sharp increase in violations committed by non-state, criminal actors.  To do so, the system should embrace a role as a secondary guarantor of human rights.   It should leave states with the primary responsibility for stopping violations by these non-state actors but should review state efforts to protect in a broad range of circumstances.  The dynamics of Bacrim indicate that there is a large risk of inadequate state protection against such militarized criminal organizations, a risk the Inter-American system could help to correct.

Adapting the contentious case mechanism to the changing dynamics of serious human rights violations is difficult because it is designed primarily to enforce state compliance with human rights norms: contentious suits can only be brought against states.  This mechanism is not directly useful to combat violations by non-state actors like militarized criminal organizations.  However, the Inter-American Court has recognized a state obligation to protect since its first merits decision in Velasquez Rodriguez v. Honduras, providing a potential way for the system to engage with non-state human rights violations. The system could adapt to become a secondary guarantor of human rights against militarized criminal organizations by ensuring that states adequately protect against the threats they pose.  While the system would not (and cannot) directly enforce human rights norms against these groups, it could require states to aggressively protect against them.

Unfortunately, current Inter-American Court doctrine allows review of state protection efforts only in a small set of cases: state officials must have known of (or should have known of) a particular threat to the non-state actor’s victim (or a small group to which the victim belonged).  But Bacrim and other militarized criminal organizations are by nature clandestine, at least to an extent. States currently can escape international review and responsibility even when their officials knew that a violent group was operating in a given area and failed to act with available resources.  The narrowness of current review prevents the system from adequately ensuring that states protect against these organizations. If the system is to be an effective guarantor of human rights against Bacrim and similar groups, review must be allowed in a broader set of circumstances.  For example, the mere knowledge of group presence and activity in a particular region should be sufficient for reviewing the measures that local state security forces took to reduce group activity, even when the state lacked knowledge of a threat to the specific victim.

It is important for the Inter-American system to take on this role as a secondary guarantor of human rights because of the substantial risk that states will take inadequate measures to protect against militarized criminal organizations.  Action by the Inter-American system could defuse some of this risk.

The nature of these groups and of the human rights violations they commit creates a risk of inadequate state protection for a number of reasons.

Fundamentally, these organizations are not revolutionary or even particularly political in nature, characteristics that might otherwise…

Weekday News Wrap: Thursday, August 29, 2013

by Jessica Dorsey

Yep, Exactly

by Kevin Jon Heller

Once again, the invaluable tumblr International Relations as Depicted by Cats captures my position perfectly.

tumblr_mm57q9E5kA1rlnfh7o1_1280

Stirrings in the U.S. Congress on Syria Could Highlight President Obama’s Startling Reversal on Congressional Authorizations

by Julian Ku

There are growing signs of opposition in the U.S. Congress to the Obama Administration’s plans to strike Syria. Over 116 Congressmen (98 Republicans, 18 Democrats) signed a letter rejecting the administration’s (Harold Koh) interpretation of the War Powers Act in the Libya case, and demanding that the President seek Congress’s authorization for any strike. Here is a link to the letter spearheaded by Rep. Scott Rigell of Virginia, a pretty conservative Tea Party-ish Republican.

With polls in the U.S. continuing to show strong opposition to a Syria intervention, it is possible that opposition in Congress could grow in coming days.  And, as Jack Goldsmith notes, a Syria strike would be one of the most brazen exercises of unilateral presidential authority to wage war in the last 100 years at least, since there is not even a hint of a self-defense rationale here, nor a threat to U.S. persons or property.  In the past, the President’s power to unilaterally engage in military actions have almost always been justified (even if untruthfully) as an act to defend U.S. territory, persons, or property, or that of U.S. allies.  Only Libya and Kosovo comes close to Syria in its departure from this pattern of justifications.  The President is going out of his way to avoid the self-defense rationale here, even though it is the only one that has a chance of winning broad public support. And he has given no signs that he will go to Congress.

But given Candidate Obama’s rather unequivocal statements during his campaign, it is  amazing that he is not criticized more for his rather startling reversal on the need for congressional authorization.  Here is a statement he gave the Boston Globe in 2008:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action

Given this statement, shouldn’t he at least have to explain what happened since 2008 to change his view?

Non-Syria News: Update on that Philippines-China Arbitration

by Julian Ku

I’ve been distracted the last few days by all this Syria stuff (and a nasty case of poison ivy), so I neglected to keep up with the latest on that Philippines-China UNCLOS arbitration now seated at the Permanent Court of Arbitration at The Hague.  Luckily, Luke Petersen of Investment Arbitration Reporter is on the case and has this great post analyzing the information released so far about the arbitration.  Note that the Philippines has until March 2014 to file their memorial.  This seems ridiculously long given that they’ve been preparing their case for at least a year already, and they have an interest in moving this along more quickly.  But that’s another conversation.

I don’t have much to add to Luke’s post except I would point readers to Luke’s interesting discussion of other arbitrations where one party doesn’t participate (like China is refusing to do here).  Those cases, he notes, can go all the way to an award, and even (in one case) to enforcement. Wouldn’t bet on that here, but you never know.

“I Have a Dream”

by Roger Alford

Fifty years ago today, on the morning of August 28, 1963, Martin Luther King looked out from his suite at the Willard Hotel as crowds began mulling around the Washington monument. He had stayed up until four in the morning drafting and redrafting his speech. As King looked on, his aides were furiously typing the finished draft for distribution to the press. King’s greatest fear was that the march would turn violent. “If that happens,” King told Ralph Abernathy, “everything we have done in Birmingham will be wiped out in a single day.” Turn-out was a close second on King’s list of concerns. He had hoped for 100,000 marchers, but at the scheduled start date of 9:30 a.m., less than 25,000 had gathered at the Washington monument.

Within an hour the numbers surged to 90,000 with many more on the way. By the time entertainers had finished their warm-up act and the formal speeches began, the crowd exceeded 200,000. The following day the New York Times described it as “the greatest assembly for a redress of grievances that this capital has ever seen.”

The program called for ten speakers representing many of the leading civil rights, religious, and labor groups in the nation. The program started late and progressed slowly, with several spotty and uninspired speeches. The first speaker to capture the audience was young John Lewis, who gave a defiant jeremiad indicting “politicians who build their careers on immoral compromises and ally themselves with open forms of political, economic, and social exploitation.” Lewis demanded federal legislation that would provide real protection. “We are tired of being beaten by policemen. We are tired of seeing our people locked up in jail over and over again, and then you holler ‘Be patient.’ How long can we be patient? We want our freedom and we want it now.”

Roy Wilkins, executive-secretary of the National Association for the Advancement of Colored People, used humor to praise Kennedy’s bill by promising to “emancipate” Southern politicians from office if they did not support the civil rights bill. Mahalia Jackson, the Queen of Gospel, sang a Negro spiritual that brought the crowd to tears. Finally, Martin Luther King took the podium to a thunderous applause.

King began the speech by proclaiming that today would “go down in history as the greatest demonstration for freedom in the history of our nation.” He recalled the broken promises of the Emancipation Proclamation. “We’ve come to our nation’s capital to cash a check…. America has defaulted on this promissory note in so far as her citizens of color are concerned…. And so we’ve come to cash a check, a check that will give us upon demand the riches of freedom and the security of peace.” He warned of future civil rights demonstrations until these demands were met. He admonished his followers against “drinking from the cup of bitterness and hatred.” He praised redemptive suffering. He urged his listeners to go back home with the confidence, without “wallowing in the valley of despair.”

Then, midway through his speech, King went off script. He embarked on a theme he had preached many times before: the prophetic dream of a future harmonious America. For members of the civil rights movement, it was nothing new; King routinely preached that God would redeem America. But on this day, millions of Americans watched for the first time as a black preacher, the most eloquent one in the country, prophesied about a future day of racial reconciliation:

So I say to you, my friends, that even though we must face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream that one day this nation will rise up and live out the true meaning of its creed—we hold these truths to be self-evident, that all men are equated equal.

I have a dream that one day one the red hills of Georgia, sons of former slaves and sons of former slave-owners will be able to sit down together at the table of brotherhood.

I have a dream that one day, even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, … one day, right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today!

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places shall be made plain, and the crooked places shall be made straight and the glory of the Lord will be revealed and all flesh shall see it together.

The crowds were on their feet in thunderous applause. Millions watched that day, and the country was transfixed by the peaceful demands for racial equality. What could have been a day of violence and riots was a day of dignity and hope.

President Kennedy, after meeting with civil rights leaders, issued a statement praising the march. “One cannot help but be impressed with the deep fervor and the quiet dignity that characterizes the thousands who have gathered in the nation’s capital from across the country to demonstrate their faith and confidence in our democratic form of government.”

International Law on Twitter (Looking for Follower No. 5000)

by Peter Spiro

Just a note to highlight OJ’s Twitter feed, which you can find here.  We link to posts on the blog, but there’s added content in the form of pointers to other items that might be of interest to OJ readers.

For those of you that haven’t taken up the habit, some serious material is floating around the Twitterverse at the same time that it’s easy to avoid the dreck.  If you’re looking for a starter package in international law, check out feeds from Ryan Goodman, Rob Howse, Blake Hounshell, David Kaye, David Bosco, and  Dan Drezner.  Most major NGOs, IOs, and governmental entities now have multiple feeds (the Department of State has dozens).  And don’t forget personal (opinionated!) feeds from OJ bloggers Kevin Heller, Julian Ku, and Ken Anderson.

Lots of interesting exchanges this week on legal aspects of the prospective Syria intervention. Updates from the 100th Anniversary Peace Palace gathering that Chris Borgen is reporting from are going up with the hashtag #peace100.

OJ is following 200+ accounts, which you can find here.  Thanks to the almost 5000 of you who are following us.

Weekday News Wrap: Wednesday, August 28, 2013

by Jessica Dorsey

Could the Security Council Refer Only Assad’s Use of Chemical Weapons?

by Kevin Jon Heller

An interesting discussion recently broke out on twitter about whether the Security Council could refer the Syrian government’s use of chemical weapons — and only the Syrian government’s use of chemical weapons — to the ICC. Instead of breaking my thoughts into 60 tweets or so, I thought I’d be old-fashioned and write a blog post instead.

The issue raises a number of difficult and important questions. The first is whether such a narrow referral would qualify as a “situation” under Art. 13(b) of the Rome Statute, which provides in relevant part that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if… (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” Interestingly, the answer may depend on the theory of interpretation we adopt — an issue that Dapo Akande and I recently debated herehere, and here. Read literally, Art. 13(b)’s “one or more of such crimes” language would seem to permit the Security Council to refer crimes committed only by Syrian government using chemical weapons — the referral would simply have to include at least one crime within the Court’s jurisdiction.

The literal interpretation of Art. 13(b), however, is completely inconsistent with the provision’s drafting history. All of the major scholarly works on Art. 13(b) agree that the drafters did not intend to permit the Security Council to refer crimes committed solely by one side of a conflict. Typical in this regard is Bill Schabas and Sharon Williams’ entry in the definitive Triffterer article-by-article commentary on the Rome Statute:

Indeed, this is why the concept of referral in the Rome Statute relates to “situations” rather than “cases.” The language was adopted specifically to avoid the danger of one-sided referrals, which could undermine the legitimacy of the institution.

Antonio Marchesi makes a similar point in the Triffterer book with regard to, Art. 14, which includes the same “one or more of such crimes” language with regard to State referrals:

Although the proposal that the object of State complaints should be “situations” rather than specific crimes was well-received by the participants in the preparatory process, concern was expressed that the complainant State should not be able to “limit the referral to include crimes committed by one side to a conflict in a situation… or restrict the nationality of those who can be investigated and prosecuted. In other words, “the prosecutor must be free to investigate all persons who may be responsible for crimes within the Court’s jurisdiction in a situation.”

There are, of course, ways to avoid the debate between literal and intended meaning…

Peace Palace 100: Getting Reintroduced to the Permanent Court of Arbitration

by Chris Borgen

[Travel and other expenses related to my participation in the “100 Years Peace Palace” program provided by the Government of the Netherlands and Radio Netherlands Worldwide.]

It is a bit surreal to be attending programs commemorating 100 years of the Peace Palace on a day when the news is filled with the possibility of US military intervention in Syria. Kevin and Julian have been parsing through the Syria issues so, for now, I’ll focus on the Hague meetings I have been attending.

For this post, a few snapshots from conversations today with Secretary General Hugo Hans Siblesz and Senior Counsel Sarah Grimmer of the Permanent Court of Arbitration.

The main take-away from the PCA meetings is how rapidly its case-load has increased and changed  in the last ten years. Founded in the 1899 Convention on the Peaceful Settlement of Disputes (“With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a Permanent Court of Arbitration…”), the PCA was largely moribund for about 100 years, overtaken by the Permanent Court of International Justice and then the International Court of Justice in state-to-state dispute resolution.

However, according to its website, the PCA:

has developed into a modern, multi-faceted arbitral institution that is now perfectly situated at the juncture between public and private international law to meet the rapidly evolving dispute resolution needs of the international community. Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.

The PCA actually now has about eighty pending cases, fifty-four of which are investor-state arbitrations. Only eight cases are state-to-state disputes. While the PCA still has boundary cases like the Abyei arbitration or the Ethiopia-Eritrea boundary commission and other state-to-state cases such as the Ethiopia-Eritrea claims commission, the PCA has transformed into being primarily an investor-state dispute resolution mechanism.

Blame it on the BITs. The proliferation of bilateral investment treaties in recent decades caused an increased number of cases, which effected both ICSID and the PCA. While the PCA has a cooperation agreement with ICSID, most PCA investor-state disputes are under UNCITRAL rules and are enforceable under the New York Convention, rather than the ICSID Convention. The differences between ICSID versus UNCITRAL procedural rules, as well as any differences between the New York Convention and  the ICSID Convention (such as in the enforcement of awards or provisions for challenging arbitrators) may drive some arbitrations into the PCA as opposed to ICSID. Moreover, while ICSID publishes a list of all of its investor-state cases, the PCA does not. (This may, of course, make the PCA more attractive to parties who want to settle their disputes in private.)

Last August, Luke Eric Peterson observed in the Kluwer Arbitration Blog that in many cases the decision to go to ICSID or the PCA may be determined due a combination of contract clauses that are decades old.

Nonetheless, I think that the question of potential regulatory competition between ICSID and the PCA will be an interesting issue to track in the coming years.

 

Emerging Voices: Making Room for the Distributive in Transitional Justice

by Matiangai Sirleaf

[Matiangai Sirleaf  is a Sharswood Fellow, University of Pennsylvania Law School. B.A. New York University; M.A. University of Ghana-Legon; J.D. Yale Law School]

The knee-jerk reaction to institute formal transitional institutions like trials or truth commissions following massive violence needs to be seriously rethought.  For one, it is not evident that societies recovering from mass atrocity will undoubtedly want to pursue truth-telling or trials.  For example, surveys conducted in Sierra Leone and in Liberia indicate that punishing perpetrators was a low priority for victims.  Additionally, data compiled for the truth commission in Liberia indicates that less than 5% of statement givers recommended utilizing a restorative or retributive justice approach.  As such, much more attention needs to be given to truly “victim-centered” approaches following mass violence.  One that attempts to respond to the needs of survivors of human rights violations for a more transformative form of justice, which places meeting basic needs (those needs that are central for survival including food, health, shelter, sanitation and education) front and center.  For instance, in Liberia, a survey conducted by the Human Rights Center at U.C. Berkeley found that 45% of respondents indicated that the top priorities for victims were the “provision of housing” and “education, for their children.”  During my field research in Liberia and Sierra Leone, interviewees also did not indicate that any of these priorities were in particularly large supply prior to the conflicts.  If anything, they expressed sentiments indicating that they were already marginalized and the conflicts just further exacerbated their precarious positions.

These findings suggest that the overwhelming faith that scholars and practitioners place in international criminal justice and formal transitional institutions to adequately respond to gross atrocities is misplaced.  Transitional societies particularly following a conflict, are marked by injustice.  In these societies, people do not simply experience injustice through specific acts of violence orchestrated by a couple of bad actors, but mainly through widespread structural forms of violence.  Structural violence can include systematic discrimination in employment, land deprivations, forced deportations or removals, structural inequalities for particular groups or ethnicities in terms of access to political power, in voting or legislative representation, cultural power, or access to education amongst others.  Liberia and Sierra Leone are paradigmatic cases of this.  In Liberia, 60% of the respondents to the Human Rights Center at U.C. Berkeley’s survey indicated that “greed and corruption” were the root causes of the conflict, with 40% attributing it to ethnic conflict, 30% to poverty and 27% to inequality.  Yet, historically, transitional institutions have not been specifically designed to address many of these root causes of conflict.  Indeed, much of the existing literature ignores the particularities of post-conflict societies when designing transitional institutions.

The large number of those seeking redress in post-conflict societies, as well as the enormous number of perpetrators who must also be integrated back into society, means that a thicker conception of justice is required.  One that goes beyond the confines of the legal institutions usually employed and impacts the lived realities of those that have been affected by war in some tangible way.  In post-conflict societies, it is far less likely that a quick-fix mechanism such as a truth commission or a court alone would be able to address the underlying causes of conflict.  Distributive justice approaches are both forward and backward-looking seeking to improve political and socio-economic conditions overall, but without presuming equality or ignoring historical grievances.  The reason for pursuing distributive justice approaches is simple – by addressing real (and perceived) distributive inequities, we can help to prevent future conflicts.  Accordingly, distributive justice efforts cannot afford to be treated as mere afterthoughts (if conceived of at all), where the aim of transitional institutions is to address the underlying causes that led to massive human rights violations.  In short, scholars and practitioners need to broaden the scope of the post-conflict “tool-box” and pay much more attention to the use of distributive justice approaches following mass violence.

Weekday News Wrap: Tuesday, August 27, 2013

by Jessica Dorsey

What’s So Terrible About Chemical Weapons?

by Kevin Jon Heller

Yes, the title is intended to be provocative. And yes, I think chemical weapons are indeed terrible. But statements like this — offered by John Kerry in thinly-veiled support for using military force against the Syrian government — still give me pause (emphasis mine):

What we saw in Syria last week should shock the conscience of the world. It defies any code of morality. Let me be clear. The indiscriminate slaughter of civilians, the killing of women and children and innocent bystanders by chemical weapons is a moral obscenity. By any standard, it is inexcusable. And despite the excuses and equivocations that some have manufactured, it is undeniable.

I don’t get it. Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons? Why should the US be willing to intervene if chemical weapons kill 1,000 civilians, but not if ordinary weapons kill tens of thousands? I’m with Stephen Walt concerning the US’s apparent belief that the Syrian government did not cross the (blurry) red line until it used chemical weapons:

But why? Nobody should be pleased that Assad’s forces (may) have used chemical weapons, but it is not obvious to me why the choice of weapon being used is a decisive piece of information that tips the balance in favor of the pro-intervention hawks. It’s been obvious for decades that the entire Assad regime was nasty, and it’s been equally clear that the government forces were using lots of destructive military force to suppress the opposition. How else did 70-80,000 Syrians die over the past two years? It’s not as though Assad has been acting with great restraint and sensitivity to civilian casualties and then suddenly decided to unleash sarin gas. Does it really matter whether Assad is killing his opponents using 500-pound bombs, mortar shells, cluster munitions, machine guns, icepicks, or chemical weapons? Dead is dead no matter how it is done.

If there was significant reason to believe that the attack near Damascus was merely the tip of the iceberg — that the Syrian government intended to launch a full-scale chemical attack in the near future, one that could kill hundreds of thousands of civilians — I could understand the obsession with chemical weapons. But I have not seen any evidence of that. And in any case, I’m not sure why we are supposed to believe that the Syrian government would not respond to US military intervention by using chemical weapons even more indiscriminately. (As an aside, why is it that dictators are expected to fight to the death in order to avoid being prosecuted by the ICC, but are expected to roll over meekly in the face of US military might?)

It’s also worth noting that US outrage at Syria’s use of chemical weapons is more than a little hypocritical. Just yesterday, FP.com published a blockbuster article detailing — on the basis of declassified CIA documents — the US’s knowing support for Saddam Hussein’s use of chemical weapons against Iranian soldiers during the Iran-Iraq War. Apparently it is only unacceptable to use chemical weapons when you’re an enemy of the US; if you’re an ally (as Saddam was at that point), they’re fine.

The bottom line, it seems to me, is this: either the US believes in unilateral humanitarian intervention or it doesn’t. If it does, it should have been willing to use militarily force in Syria long ago, when tens of thousands of civilians were being indiscriminately slaughtered by the Syrian government. If it doesn’t, the fact that civilians are now being indiscriminately slaughtered by the Syrian government through the use of chemical weapons should be irrelevant.

Murder by chemical weapons is terrible. But so is any kind of murder. As Walt says, “[d]ead is dead no matter how it’s done.”

Blogging from The Hague: The Peace Palace Centennial

by Chris Borgen

[Travel and other expenses related to my participation in the “100 Years Peace Palace” program provided by the Government of the Netherlands and Radio Netherlands Worldwide]

August 28th will mark the 100th anniversary of the opening of the Peace Palace at The Hague. In commemoration of this, the Government of the Netherlands and Radio Netherlands Worldwide have brought a group of ten bloggers and online journalists from around the world to The Hague for a series of programs, meetings, and interviews surrounding the festivities. I am here on behalf of Opinio Juris.

Over the course of the next few days, I will post on the various meetings and events in which I will be participating. For those of you who like to use Twitter, there will also be tweets from various participants with the hashtag #peace100.

Tuesday we will begin in earnest with meetings with International Court of Justice President Peter Tomka, Secretary General of the Permanent Court of Arbitration Hugo Hans Siblesz, and various officials from the Netherlands Ministry of Foreign Affairs.

The day will conclude with an event focusing on women’s rights, peace, and international law that will include presentations by 2011 Nobel Peace Prize Laureate Leymah Gbowee, currently the Special Gender Advisor to the International Criminal Court, Brigid Inder, the Executive Director of the Women’s Initiative for Gender Justice, and Stephen Rapp, the U.S. Ambassador for War Crimes Issues.

I invite Opinio Juris readers to post any questions you would like posed to Judge Tomka, Hugo Hans Siblesz, Leymah Gbowee, Brigid Inder, or Stephen Rapp. I will blog on these events in the coming days and if I ask any of the reader questions, I will post the answers.

Stay tuned…

The Legality of a Syrian Military Intervention: Russia, France, and the UK Weigh In

by Julian Ku

It looks like the tragic events surrounding a likely chemical weapons attack in Syria will spark a military intervention by the United States, France, and Britain without the authorization of the U.N. Security Council.  We have already heard President Obama publicly state that international law is a factor in the decisionmaking process in the U.S. and the NYT suggests U.S. officials are looking at Kosovo as a precedent for an intervention.  Now other leading powers are weighing in.  First to the plate, Russia:

“Using force without the approval of the UN Security Council is a very grave violation of international law,” Foreign Minister Sergei Lavrov told reporters.

Speaking at a news conference urgently convened just a few hours before, he added that the West was currently moving towards “a very dangerous path, a very slippery path”.

Next into the fray, France, whose foreign minister seems to concede Russia’s point about legality, but then makes a mysterious reference to bypassing the UNSC.

France’s foreign minister said on Monday no decision had been made yet on whether to take military action against Syria, but doing so outside the auspices of the U.N. Security Council would be problematic.

“It is a problem that will be difficult,” Laurent Fabius told Europe 1 radio.

“International law is defined by the United Nations, but at same time there are countries (on the council) that are blocking (military action)- China and Russia have blocked and would probably block again so it would be a problem…

“In certain circumstances we can bypass it, but international law does exist,” he said without elaborating.

I have no idea what he is talking about in terms of “international law is defined by the United Nations.” I am also wondering what circumstances would allow France to bypass the UN Charter, given that it is defined by the U.N. itself.

It may be that France is following the UK’s lead, as the UK’s foreign minister is also hinting that an attack without UNSC authorization is going to happen.

Mr Hague said diplomatic methods to resolve the civil war in Syria had “failed so far”.

He said the UN Security Council, split over Syria, had not “shouldered its responsibilities”.

The council is made up of 15 members including permanent members China, Russia, France, the US and the UK which have the power to veto any resolution.

But any action could be taken “without complete unity on the UN Security Council”, he said.

He said a response could be “based on great humanitarian need and distress” and “in accordance with international law”.

It sounds like the UK and France are both going to need to come up with some international law theory to justify their support for an attack, and the UK seems interested in the “humanitarian intervention” justification.  If the U.S. goes along with this, it would be interesting to see if the “invisible college of international lawyers” will endorse this legal theory.

Emerging Voices: Teeth but No Bite–Can SADC Curb Election Fraud in Zimbabwe?

by Drew Cohen

[Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.  He is also a contributing columnist for US News and World Report where he writes about comparative constitutional law, international human rights and global legal affairs.]

Recently, Botswana called on the South African Development Community (SADC) to open an investigation into voting irregularities in the recent Presidential election in Zimbabwe where the incumbent Robert Mugabe won with 61-percent of the total votes amid voluminous allegations of ballot fraud.  Two members of the Zimbabwe Electoral Commission, concerned with voting irregularities, have already resigned.  And Zimbabwe’s Movement for Democratic Change (MDC), the major opposition party, is currently gearing up to legally challenge the election results.

Botswana’s request for SADC to intervene is an intriguing one.  One the one hand, Botswana stressed that any initial inquiry should be limited to fact-finding (i.e. an independent audit) out of fear that launching a more invasive investigation into the alleged voting irregularities would hamper relations between the two countries.  On the other hand, SADC has been gaining traction in the region as an sharp, effective check against state-sanctioned human rights abuses as well as a mechanism to uphold the rule of law.

A bit of background about the SADC Treaty – which provides a binding framework to adjudicate disputes amongst Member States – is useful to understand how the organization could be deployed to ferret out, remedy and, in the future, prevent instances of election fraud.

SADC was constituted under a Treaty signed in Windhoek in August 1992 by a number of Southern African states, including Zimbabwe and Botswana.  The treaty was ratified by the signatory states and came into force in 1993.  The Preamble of the Treaty states that its Members are committed, inter alia, to ensuring “through common action, the progress and well-being of the people of Southern Africa.”  Article 4 of the Treaty, in turn, requires SADC and its Members to act, broadly, in accordance with the principle of “human rights, democracy and the rule of law”.  To give effect to that principle, SADC can create “appropriate institutions and mechanisms,” pursuant to Article 5(2)(c).  This provision, in conjunction with Article 4 of the Treaty, would presumably provide the legal basis for Botswana’s proposed commission to investigate Zimbabwe’s presidential election results.

In the event that Member States are unable to resolve their disputes through internal executive and legislative institutions…

Weekday News Wrap: Monday, August 26, 2013

by Jessica Dorsey

Events and Announcements: August 25, 2013

by An Hertogen

Events

  • Applications for the 2014 Workshop of the Institute for Global Law and Policy will close on September 15, 2013. The workshop will take place from January 3-11, 2014 in Doha, Qatar. More information is here.

Calls for Papers

  • The ASIL International Law in Domestic Courts Interest Group Conference will hold its annual paper conference on Friday, December 6, 2013 at Yale Law School. Proposals to present should be sent by Friday, September 6to interest group co-chairs Chimene Keitner and David Moore, who will select five or six for the conference. Preference will be given to papers authored by people who have not presented at the conference in the recent past, and to papers that focus on U.S. domestic courts, but they are open to all proposals. The final paper will need to be circulated to the attendees not later than November 22, which is two weeks beforehand. Additional information for those wishing to attend the meeting is available on the interest group website.
  • International Law Reseasrch, a double-blind peer-reviewed journal published by the Canadian Center of Science and Education is calling for papers on public international law, private international law, supranational law, comparative law, transnational law and environmental law. You can find the journal’s profile and submit manuscripts online via its website or you can e-mail your paper. Its submission guide can be found here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Is Colombia Going to Just Ignore the ICJ’s Ruling on Nicaragua?

by Julian Ku

Although the government of Colombia was far from pleased when the ICJ issued a judgment last November in a long-running territorial dispute with Nicaragua, it did not go so far as to say it would simply ignore the ruling.  But Colombia’s vice president Angelino Garzon seems to be hinting in recent comments that Colombia is prepared to do just that.

“The judgement of the Court of The Hague is unenforceable in our country. It cannot apply now, in five years or ten years time,” emphasized Vice President Angelino Garzon.

“The judges in The Hague instead of helping to resolve the differences between Colombia and Nicaragua, have only exacerbated them,” added Garzon.

I get the feeling there is more to this story than this quotation reflects, but it would not be shocking if Colombia simply walked away (it has already withdrawn from the ICJ’s jurisdiction under the Bogota Treaty).  Nicaragua is not in a position to force Colombia’s compliance.  Still, it would be strange for Colombia to ignore the ruling while it is supposedly preparing to ask the ICJ to reconsider its ruling.  Maybe VP Garzon is simply going off the reservation? Developing…

Weekend Roundup: August 17-23, 2013

by An Hertogen

This week on Opinio Juris, Harold Koh, Bill Dodge and Hannah Buxbaum wrote an obituary for Professor Detlev Vagts, who passed away on August 20.

As part of our ongoing Emerging Voices symposium, Peter Stockburger provocatively asked whether the R2P doctrine is the greatest marketing campaign international law has ever seen? Tamsin Paige shared some of the findings of her field work on piracy enforcement in the Seychelles. Laura Salvadego discussed the obligation to protect witnesses in the fight against transnational organized crime, whereas Sven Pfeiffer examined the feasibility of an international convention to ensure cooperation in the domestic prosecution of international crimes. HJ van der Merwe discussed the transformative influence of international criminal law on domestic law, and looked at the South African experience post-Apartheid.

Continue Reading…

President Obama Cites International Law as Limitation on U.S. Response to Syria’s Chemical Weapons Attack

by Julian Ku

As regular readers may recall, I am skeptical that the use of chemical weapons, by itself, can justify the use of military force under current international law absent authorization from the U.N. Security Council.  Of course, I wouldn’t oppose the use of military force by the U.S. to stop the use of chemical weapons in Syria, I just doubt its legality under international law.  More importantly, so does President Obama. Although reports are out suggesting the U.S. is preparing to launch cruise missiles into Syria, President Obama also told CNN yesterday:

“If the U.S. goes in and attacks another country without a U.N. mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it, do we have the coalition to make it work,” he said in the interview on CNN’s “New Day” show. “Those are considerations that we have to take into account.”

And unlike me, he treats the questionable legality of a U.S. action (at least under international law) as a real constraint.  (Interestingly, the President doesn’t seem particularly concerned about whether Congress would approve his action, so I guess that legal bridge has already been crossed.)

I should also note here that Prof. Jordan Paust has offered a legal theory I hadn’t previously considered: that NATO might be able to strike into Syria pursuant to Art. 52 of the U.N. Charter, which may be interpreted to authorize regional organizations to act to maintain “peace and security.” I guess I have to side with Prof. (and former ICJ judge) Bruno Simma to reject this reading of Article 52, especially given Article 53’s plain language subordinating Art. 52 to Article 51’s broad prohibition on the use of force. (See Art. 53: “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”).

In any event, given President Obama’s comments, international law is going to matter here.  I expect his lawyers are working overtime to come up with a plausible legal justification for a Syria strike (too bad he has no confirmed adviser at State yet).  Maybe Turkey (a NATO member) can manufacture an incident of some sort to serve as a useful casus belli?  In any event, it will be interesting to see what they come up with.  Lots of luck!

Syria, Chemical Weapons, and the Incoherence of the VCLT

by Kevin Jon Heller

My friend Dapo Akande has a superb post at EJIL: Talk! discussing whether the ICC could prosecute the use of chemical weapons by the government in Syria. I agree almost entirely with Dapo’s analysis, but I do want to offer a couple of thoughts about his discussion of the Vienna Convention on the Law of Treaties:

The argument that chemical weapons are not covered by Art. 8 is thus based on the removal of the explicit prohibition and the fact that it was thought that it would be the annex to the Statute that would set out those weapons like chemical weapons that are deemed are indiscriminate and cause unnecessary suffering.

However, it is erroneous to interpret a treaty primarily by reference to drafting history. Under Art. 32 of the Vienna Convention on the Law of Treaties, the drafting history is only to be used as a supplementary or secondary tool of interpretation to resolve ambiguity. As Art. 31 of the VCLT indicates and ICJ has stated, the interpreter must start with the text of the treaty. Thus one must start by looking to see what the words of the treaty as agreed actually means.  It seems to me that the words “poison or poisoned weapons” and more clearly “asphyxiating, poisonous or other gases” would cover a variety of chemical weapons. The latter wording is taken from the Geneva Gas Protocol which was intended to cover chemical weapons. Although the Chemical Weapons Convention of 1993 does not use this wording (referring instead to “Toxic chemicals”), this does not mean that the wording of the ICC Statute does not extend to chemical weapons. Although weapons not in the form of a gas are not covered by para xvii, it is also arguable that ‘poison’ and ‘toxic chemicals’ are largely synonymous.

I have no doubt that Dapo is correctly applying the VCLT. But that means — as I have long thought — that the VCLT’s approach to treaty interpretation is incoherent. Treaties are an expression of sovereign will; states are free to draft treaty provisions however they want, subject only to peremptory norms of international law, and no state is required to ratify a treaty that does not reflect its values, even one it played an important role in drafting. States should thus be able to expect that the VCLT will not lead judges to interpret critical treaty provisions in a manner that runs directly counter to their intended meaning.

Yet that is precisely what the VCLT seems to allow with regard to chemical weapons. No one contests the idea that numerous states in the Global South would not have ratified the Rome Statute if Art. 8 had directly criminalized the use of chemical and biological weapons (the poor man’s WMD), but not nuclear weapons (the rich man’s WMD). That is why the explicit prohibition on their use was removed during the drafting of the Rome Statute. So what possible justification could there be for the VCLT analysis Dapo provides above, one that ignores the actual intent of the Rome Statute’s drafters in favor of a mechanical application of dictionary definitions? That analysis quite literally says the following to all of the states that opposed including chemical weapons in Art. 8: “sorry, we know you would have refused to ratify the Rome Statute if it had directly criminalized chemical weapons, but Art. 8 criminalizes chemical weapons anyway because you allowed a word to remain in Art. 8 (“poison”) whose dictionary definition can be construed to include them. Better luck next time the international community creates a permanent international criminal court.”

I’m not exaggerating. That is precisely what the VCLT says to states in the Global South if Dapo’s analysis is correct — which, again, I’m sure it is, because he knows more about the VCLT than I ever will. That said, I can imagine at least one analysis that is both arguably VCLT-consistent and would not directly undermine the sovereign will of the numerous states that ratified the Rome Statute thinking it did not directly criminalize the use of chemical weapons. That analysis would emphasize Art. 31(4), which provides that “[a] special meaning shall be given to a term if it is established that the parties so intended” — a provision that indicates the drafters of the VCLT recognized, however imperfectly, that it is impossible to separate the “ordinary meaning” of a word from its intended meaning. Given that Art. 8 was specifically drafted to exclude a direct prohibition on chemical weapons, it seems clear that the drafters intended “poison” to have a special meaning, one that did not include chemical weapons.

I agree with Dapo that, under the VCLT, “it is erroneous to interpret a treaty primarily by reference to drafting history.” But it shouldn’t be. When the intent of the drafters is clear, there is no conceivable justification for ignoring it in favor of “ordinary meaning.”

When is a Treaty Ceding Territory Not a Treaty Ceding Territory?

by Julian Ku

I am not sure if it is a trend, but recently several nations have raised dubious legal claims  over territory that was ceded away by treaty.  For instance, Spain has zero legal claim to Gibraltar, as far as I can tell, unless the 1713 Treaty of Utrecht ceding it to Britain “in perpetuity” can be wished away.  Bolivia has zero legal claim to the port it seeks from Chile, unless the 1904 treaty ceding it to Chile can be ignored as well.  And in the latest example, Nicaragua is raising a claim to portions of territory it ceded to Costa Rica, despite having signed a clear treaty of cession doing so.

The problem with this trend is obvious.  If treaties can’t settle territorial claims because they can always be reopened later, then the utility of having the treaty in the first place is decreased substantially. This poses a danger to the whole point of having international law for defining territorial boundaries.  I expect and hope the ICJ will reject these silly but dangerous claims in the Bolivia case.  But the broader international law community should be worried about this trend as well.

Guest Post: Do drones cause fewer civilian casualties than traditional combat?

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University]

Mark Bowden’s cover story in this month’s The Atlantic magazine (available here) is one of the best things I’ve seen written on drones in the past several years. The Black Hawk Down author’s descriptions and takeaways on most aspects of the drone program are consistent with my own experience in military aviation and the information I have gathered from human rights organizations, drone operators, military lawyers, senior military, and CIA personnel who have run the drone programs, as well as from senior military policy advisors who were involved in changing the way drones are used.

Perhaps most importantly, his description of the drone operator’s reaction — one of shock and uncertainty — to performing a specific mission clearly undermines the widely circulated but exceptionally irresponsible criticism that drones have created a “Playstation mentality” among their operators. An additional fact that the article did not include, but that has been understood (although not widely reported) for several years now, is that drone operators suffer from PTSD-like symptoms at rates similar to — and sometimes greater than — those experienced by combat forces on the ground. It turns out that even from 8,000 miles away, taking human life and graphically observing your handiwork is nothing like playing a video game.

Another highlight is his treatment of the question of civilian casualties. Continue Reading…

Emerging Voices: Is The R2P Doctrine the Greatest Marketing Campaign International Law Has Ever Seen?

by Peter Stockburger

[Peter Stockburger is an attorney with the international law firm of McKenna Long & Aldridge LLP and an Adjunct Professor with the University of San Diego School of Law where he teaches international law and appellate advocacy.  The views of this post are the author’s own views and are not attributable to either McKenna Long & Aldridge LLP or the University of San Diego School of Law]

Much has been written about the Responsibility to Protect (“R2P”) doctrine.  Operationally, many have questioned the doctrine’s practical impact in places such as Syria.  Legally, the doctrine’s legacy has been questioned in places such as Libya and the Ivory Coast.  But in both, the R2P doctrine is generally described in one of two ways:  (1) either as an emerging norm of customary international law or (2) as a new binding principle of customary international law.  But what if it is neither?

The purpose of this post is to query whether it is possible that the R2P doctrine represents one of the greatest marketing campaigns ever attempted within the field of public international law.  Specifically, I pose the question of whether the R2P doctrine is, at its core, the re-packaging of already existing State obligations under both positive and customary international law put together for the purpose of facilitating political consensus and widespread legal compliance rather than operational or legal novelty.

This inquiry begins with the 2001 report written by the International Commission on Intervention and State Sovereignty (“ICISS”) entitled “The Responsibility to Protect.”  In it, the ICISS identifies the R2P doctrine as a new legal doctrine and defines it as follows – the concept of State sovereignty under international law “implies responsibility,” and if a population is suffering “serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.”  In other words, the ICISS argues that the long-standing customary principle of non-intervention, enshrined in Article 2(4) of the United Nations Charter, encompasses a new exception – the “international responsibility to protect” – which may be triggered when there is “serious harm” as the result of “internal war, insurgency, repression or state failure[.]”  The questions raised by this statement are too numerous to list.  What does “serious harm” mean?  Who defines “internal war, insurgency” and/or “repression?”  The ICISS goes on to note that the substantive mandate of the R2P doctrine could also include natural disasters and/or economic disparity

Despite this broad mandate, the ICISS also limits the legal novelty of the R2P doctrine by arguing the United Nations Security Council “should be making the hard decisions in the hard cases” about “overriding state sovereignty.”  On its face, this statement represents already existing principles of international law relating to the Security Council and its Chapter VII authority to regulate matters of international peace and security.  However, this statement does beg the question…

In Memoriam: Detlev F. Vagts (1929-2013)

by Harold Hongju Koh, William S. Dodge and Hannah L. Buxbaum

[Harold Hongju Koh is Sterling Professor of International Law, Yale Law School. William S. Dodge is Associate Dean for Research and Professor of Law at the University of California, Hastings College of the Law. Hannah L. Buxbaum is Interim Dean and John E. Schiller Chair in Legal Ethics at Indiana University Maurer School of Law. They are the co-authors of Vagts, Dodge, Koh & Buxbaum, Transnational Business Problems (5th ed., forthcoming 2014).]

Our friend and esteemed co-author Detlev F. Vagts, Harvard’s Bemis Professor of International Law Emeritus, quietly passed away earlier this week. Although Det was a deeply modest man, exceedingly gentle and hardworking, his legacy as a scholar and teacher is far too great for him to pass without fanfare among international lawyers. We three had the great privilege of carrying on the work that he and his friend and co-author Henry J. Steiner began. Steiner and Vagts’ Transnational Legal Problems evolved from the path-breaking Harvard casebook first developed by Milton Katz and Kingman Brewster. From Transnational Legal Problems grew Transnational Business Problems, which Vagts authored alone in 1986. Koh joined Transnational Legal Problems in 1994, Dodge and Koh joined Transnational Business Problems in 2003, and Buxbaum has added her pen for the fifth edition due out in 2014. But although we styled ourselves Det’s co-authors, in truth, we always considered ourselves, first and foremost, Det’s students.

The son of a lawyer who had fled Nazi Germany, Vagts was a studious man: an expert on international and corporate law who spent countless hours sitting in his office deep in the stacks of Langdell Library, with his door open, writing thoughtfully or absorbed in a book he had pulled from the library shelves. He was a man of great moral fiber, unafraid to preach at Memorial Church or to speak with passion at contentious faculty meetings. In the flesh, Det surprised us by being supremely gentle, wise, and gracious. He revealed a wry sense of humor and an unshakeable sense of decency. Each of us corresponded with Det in different ways, but we invariably learned from the example of his humanity and his daunting work ethic, which regularly led him, even in the later years of his life, to send us extensive comments on whatever we had sent him.

But Det’s modesty should not overshadow his stature. Quietly, and through many channels, Vagts asserted enormous influence over what Oscar Schachter once called “the invisible college of international lawyers.” He wrote regularly in the American Journal of International Law and for a number of years, served as Editor-in-Chief with Theodor Meron. He was Counselor on International Law at the State Department and Associate Reporter of the historic Restatement (Third) of the Foreign Relations Law of the United States. And long before the term became politically controversial, Vagts was a committed transnationalist. All transnational legal issues, he and his co-author Henry Steiner once wrote, “occupy different positions on a spectrum between the extremes of ‘national’ and ‘international’ law, or on one between ‘private’ and ‘public’ law.” Accordingly, Steiner and Vagts’ Transnational Legal Problems spanned virtually the entire spectrum of public and private international law, international dispute resolution, comparative law, military law, the law of development, professional responsibility, securities regulation, and corporate law.

After September 11, Vagts’ scholarship reaffirmed his unwavering commitment to the rule of international law even in times of crisis. He drew cautionary lessons from the role of international lawyers in Nazi Germany to challenge overly expedient resort to the military paradigm in a time of terror. Some of his last works reminded us of the critical role of international lawyers as guardians of ethical professional behavior in international dispute resolution.

By the end of his career, Vagts was acknowledged as one of the fathers of transnationalism. As proof of his legacy, one need only leaf through the pages of his sweeping Festschrift, edited by his devoted friends Pieter Bekker, Rudolf Dolzer, and Michael Waibel, which unites the varied subject matters of Vagts’ life’s work. Under the title Making Transnational Law Work in the Global Economy, this collection of essays brings together works by many of Vagts’ most illustrious colleagues and students under four headings: International Law in General; Company & Commercial Law; Investment; and Dispute Resolution. The essays together highlight key leitmotifs of Vagts’ career: his reflections on the critical role of the transnational lawyer, the function of transnational law in the global economy, and the value of transnational law and institutions as tools for the peaceful resolution of disputes.

Detlev Vagts was a practical yet idealistic man, never one to toot his own horn, or to complain when life took a difficult turn. He lived and died quietly, but throughout his life, he was the supreme gentleman, scholar, and teacher. He should be remembered with deep admiration and gratitude for all he taught us.

So Why Does the U.S. Need Seven Years to Decide Whether to Sign the Maritime Labor Convention?

by Julian Ku

It is not surprising that the U.S. has not ratified the Maritime Labor Convention, which came into force yesterday seven years after its text was adopted by the ILO. As David Kaye reminds us,  the Senate is not exactly in a ratifying mood these days.

But it is worth remembering that treaty enthusiasts can’t put always blame on the Senate’s “sovereigntists” for treaty ratification problems. This appears to be a case of massive Executive Branch dilatoriness.  Not only has the U.S. State Department failed to submit the text to the Senate, the U.S. government has not even signed the treaty yet. Apparently, the five years of negotiation leading up to the agreement on the MLC’s text, plus the seven years since its adoption has not been enough time for the U.S. government’s various agencies to come up with a position on this treaty. Is there some secret controversy here that I don’t know about? What is the Coast Guard up to?   Did it just get lost in the bureaucracy somewhere?

 

Guest Post: Criminal Law Pays – Penal Law’s Contribution to China’s Economic Development

by Margaret K. Lewis

[Margaret K. Lewis is Associate Professor of Law at Seton Hall Law School]

The current trial of former high-ranking official Bo Xilai has shined the international spotlight on China’s criminal justice system. Headlines are simultaneously emphasizing the Chinese leadership’s concern that its rule is “vulnerable to an economic slowdown” after China’s meteoric rise to become the world’s second largest economy in terms of nominal GDP. What is lacking in both the media and academic literature is an in-depth discussion of the role criminal law has played in China’s stunning economic growth to date as well as the role it might play in the future. This inquiry is particularly timely on the heels of a once-a-decade leadership transition and as China’s ability to maintain a robust growth rate is facing rising skepticism.

As explained in more detail in my article here, not only has the PRC leadership historically used criminal law in service of economic ends but also, going forward, criminal law will likely play a multifaceted role in the leadership’s strategy to sustain growth during what promise to be turbulent times. The debate about the role of law in China’s development has thus far largely focused on the Washington Consensus’s support for a market economy’s need for clear and enforceable contract and property rights, often referred to as the “rights hypothesis.”

The law and development literature’s emphasis on empowering private actors by creating a neutral bureaucracy subject to objective judicial review has shifted the debate from the most basic function of law: creating order. And creating order starts with the coercive power of the state exercised through criminal law. Not only is criminal law a direct way for the government to deprive people of money, liberty, and life, it is cheaper and faster than building the civil and administrative law systems on which the rights hypothesis relies. If a these systems are not credible enough to deter activities that are detrimental to economic growth, the government can invoke the heavy hand of criminal law.

Continue Reading…

Goodbye ATS? U.S. Appeals Court Dismisses South African Apartheid ATS Case and Rejects Narrow Reading of Kiobel

by Julian Ku

The Second Circuit’s decision in Balintulo v. Daimler (already discussed at length by John Bellinger at Lawfare) is one of the first major U.S.court opinions to apply the Supreme Court’s decision in Kiobel.  It is pretty much a complete smackdown of the ATS plaintiffs, and for any hopes they might have that the Kiobel decision’s bar on extraterritoriality for ATS suits would be read narrowly.  While they were at it, the Court pretty much kills every other kind of ATS lawsuit as well. In particular, it rejects the notion that mere corporate nationality in the U.S. would be enough to overcome the Kiobel bar.  Here is a key passage (emphasis mine).

Emerging Voices: The Transformative Influence of International Criminal Law in Domestic Perspective

by HJ Van der Merwe

[Dr. HJ van der Merwe is a Lecturer in Public Law Studies at the Law Faculty of the University of the Western Cape, South Africa]

The degree to which states are able and willing to dynamically reflect international criminal norms within their domestic legal systems is crucial to the success of the project of international criminal justice. This is exemplified by the existence of the complementarity-centred International Criminal Court (“ICC”), which aims to establish a system of international criminal law (“ICL”) where domestic jurisdictions are primarily responsible for and capable of prosecuting core international crimes. It may be argued that the dawn of the ICC-era of international criminal justice has brought with it the goal of a global transformation as regards the pursuit of accountability and respect for human rights that occurs primarily from within states. However, various legal and political hurdles continue to inhibit the effective incorporation and enforcement of international criminal norms on the domestic level. A constructive way to engage with these challenges is to conceptualise the interaction between international criminal norms and domestic legal systems in terms of its ability to produce a kind of transformative synergy (my doctoral thesis elaborates on the idea that ICL holds transformative value i.e. the ability and potential to produce change that may be beneficial to the civitas maxima or the abstract notion of an international community in which the collective interest transcends that of individuals). This argument is presented here by way of closer examination of developments relating to international criminal justice within post-apartheid South Africa.

International criminal law as transformative

International criminal law is historically and ontologically purpose and value driven. It exists due to a widely held belief in the notion that a supranational framework of criminal law can address problems of state criminality and mass violence, as well as play a role in the future deterrence of these phenomena. Whether one agrees with this notion or not, the fact remains that this supranational framework for criminal liability under international law has received increasing support from and within states, especially since the end of the Cold War. This development alludes to the international community’s desire, based on an increasing commonality of basic human values, to transform the global landscape by altering the status quo characterised by injustices that have gone unabated under the system of traditional Westphalian sovereignty. The existence and enforcement of international criminal norms may be viewed as an effort to protect the values of the international community as well as to project these values onto groups of individuals (perpetrators of international crime and also perhaps their supporters) which have not yet embraced such values, as it is believed that this would be to the benefit of all. These norms are not only repressive, but also expressive of the international community’s values. As such, they aim to shape a new consensus and to create new social expectations within the international community. Consequently, it may be said that a transformative purpose lies at the heart of modern ICL.

Transformative value from a South African perspective

As a consequence of its post-apartheid openness towards international law as well as its history of systematic oppression under apartheid, democratic South Africa has acceded to the ideal of international (criminal) justice, both indirectly by way of its Constitution (which provides for, and regulates, the domestic application of international law) and directly through national legislation. Notable in the latter respect is the Implementation of the Rome Statute of the International Criminal Court Act (“ICC Act”), which has transformed the crimes of the Rome Statute into South African criminal law. The recent South African judgment in Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others (“SALC”) is particularly illustrative…

Weekday News Wrap: Thursday, August 22, 2013

by Jessica Dorsey

ILC Report Bleg (Updated)

by Kevin Jon Heller

Does anyone out there in the blogosphere have a copy of the Draft Report of the International Law Commission on the Work of Its Forty-Seventh Session, in which the ILC decided not to include drug trafficking in the Draft Code of Crimes Against the Peace and Security of Mankind? It is not available on the ILC section of the UN treaty website, and I need it for an article I’m writing. If you have the report, please email it to kheller [at] unimelb [dot] edu [dot] au. I’d be in your debt.

UPDATE: It took less than an hour for Remy Jorritsma, a lecturer at Maastricht, and Diane Bernard, a Professeure Invitée at l’Université St-Louis-Bruxelles, to send me the report. My thanks to them. The internet is awesome!

Emerging Voices: International Cooperation for the Domestic Prosecution of International Crimes

by Sven Pfeiffer

[Sven Pfeiffer is an Associate Expert at the United Nations Office on Drugs and Crime. The views expressed in this post are those of the author, writing in his personal capacity, and do not necessarily reflect the views of the United Nations.]

National authorities are increasingly involved in the fight against impunity for perpetrators of genocide, war crimes and crimes against humanity. Since the entry into force of the ICC statute, many states have enacted new laws or used existing ones to investigate and prosecute these international crimes. As this trend continues, domestic courts increasingly require the cooperation of foreign judicial authorities to gather evidence, interview witnesses or ensure the presence of accused.

Such inter-state cooperation is often impossible in the absence of applicable extradition and mutual legal assistance treaties. The idea that a multilateral convention could fill this legal gap was recently brought to the attention of the UN by several countries, at the initiative of the Netherlands, Belgium and Slovenia. At the 2013 Commission on Crime Prevention and Criminal Justice, these countries called for a discussion on the matter, but not all of its members agreed that the Commission was the right body to deal with genocide, war crimes and crimes against humanity. In this post, I explore the arguments for the proposed convention and identify the most controversial aspects of the proposal, namely the definition of crimes, the extent of domestic jurisdiction and states’ international obligation to prosecute.

Let us first take a closer look at the extent of the legal gap and at how an international cooperation convention could close it. Many countries can extradite and provide mutual legal assistance only on the basis of an international treaty. In addition, even where countries can do so on the basis of their domestic law, treaty provisions may speed up the transmission and execution of requests, e.g. by mandating the establishment of central competent authorities or by establishing minimum requirements concerning the form and content of assistance requests.

Concrete examples for the need of a treaty basis for cooperation were discussed at a side event during the 2013 UN Crime Commission. For instance, in the absence of treaty provisions, Dutch authorities found it difficult to gather evidence from other countries against Frans van Anraad, a Dutch national who was eventually convicted of complicity in war crimes. With reference to proceedings in Uganda against leaders of the Lord’s Resistance Army, it was highlighted that international cooperation was crucial, not only to investigate atrocities or extradite perpetrators operating across national borders, but also to protect witnesses who have fled abroad and to ensure their appearance in court. The difficulties experienced by Rwandan authorities in obtaining extradition of genocide suspects now residing in Europe provide another example (see here).

In practice, identifying applicable treaty provisions that are binding on all would-be cooperating states can be difficult. Multilateral conventions dealing specifically with extradition and mutual legal assistance have a limited, often regional, membership. There is a good chance that the counterpart country is not among the parties to these conventions. On the other hand…

Weekday News Wrap: Wednesday, August 21, 2013

by Jessica Dorsey

David Kaye on “Stealth Multilateralism”

by Chris Borgen

The new issue of Foreign Affairs has an article by David Kaye, entitled “Stealth Multilateralism.” He begins the piece by describing the point of view of the “sovereigntists,” (often conservative Republicans) who view treaty-making as a threat to national sovereignty.  (See, for example,  this recent post by Peter on sovereigntist views.)

After arguing that treaty-making is actually an expression of sovereignty, Kaye closes the introductory section in this way:

Yet rejection is just the beginning of the story. Over the past two decades, the executive branch has developed and expanded a variety of lower-profile methods for asserting the country’s interests abroad in ways that do not require Senate involvement. The Clinton, Bush, and Obama administrations figured out that on some issues, they could circumvent the Senate entirely, and they developed new ways to participate in international forums, sometimes even exercising leadership in institutions that the Senate had refused to allow the United States to join.

Call it “stealth multilateralism.” Using a patchwork of political and legal strategies, the United States has learned how to respond to the global problems that are pulling it into the world even as Senate Republicans are trying to hold it back. As sound and effective as such measures can be, however, stealth multilateralism has its limits, since treaties establish more stable, transparent, and predictable relationships than political commitments. Both the United States and the rest of the world would benefit from a return to responsible multilateral engagement in which treaties regain their central role.

What follows for the rest of the article is a careful examination of the foreign policy costs of near-wholesale treaty rejection, the “subtle form of rejection” in the U.S. practice of treaty reservations, and, how Presidents have found work-arounds, such as non-binding agreements, to remain engaged in a policy area despite the Senate’s refusal to ratify. Crucially, Kaye explains the limits of those tactics and why the American public loses when we do not have a real discussion of the pros and cons of a particular treaty.

Kaye’s essay is a great primer on the interplay of U.S. domestic politics with international treaty-making. Check it out.

Fish Fight! Faroe Islands Will Take the European Union to UNCLOS Arbitration

by Julian Ku

The Faroe Islands has announced it has filed a referred the European Union to arbitration under the UN Convention for the Law of the Sea.  Apparently, it is a dispute over herring.

“The Faroe Islands have today referred the use of threats of coercive economic measures by the European Union, in relation to the Atlanto-Scandian herring, to an arbitral tribunal under Annex VII of [UNCLOS],” the Faroese prime minister’s office said on Friday.

On July 31, the EU’s fisheries and aquaculture committee approved a proposal to use trade sanctions against the Faroe Islands over their unilateral decision to triple their quota of Atlanto-Scandic herring for 2013.

OK, so this is not exactly Philippines-China, and much as I enjoy my herring, I can probably survive without it.  Still, to an international lawyer, this arbitration it is an unusual example of non-state entities invoking international dispute resolution mechanisms.  The Faroe Islands are a self-governing entity within the “Realm of Denmark”. So they are not a fully sovereign state, but apparently they are not just a part of Denmark either.  Still, it is Denmark, and not the Faroe Islands, that is a signatory to UNCLOS.

Similarly, the EU (or the European Communities) is not a state but it is a signatory to UNCLOS for certain competences that EU members have transferred to it. Oddly enough, Denmark has transferred its competence for these matters to the EU, but not for the Faroes.

Confused? I certainly am. In any event, the result is that a non-state subnational entity is seeking arbitration against a non-state supranational entity before an international arbitral tribunal created under the auspices of an international organization (the UN).  Why the Faroes didn’t seek some internal European mechanism to resolve this is beyond my understanding  It would be like Puerto Rico bringing a case against the U.S. in an international court. Sounds like a messy fight is brewing.

Emerging Voices: The Joint Obligation to Protect Witnesses in the Fight against Transnational Organized Crime

by Laura Salvadego

[Laura Salvadego is a Postdoctoral Fellow at the Department of Law, University of Ferrara. This work has been developed during a research stay at the New York University School of Law – Center for Research in Crime and Justice, funded by Unicredit bank and by 5 per thousand contributions given to the University of Ferrara in 2010]

The need to ensure appropriate protection of witnesses plays a crucial role in the fight against transnational organized crime both at the universal level and in the European context. Rules concerning cooperation among states in this context suggest the existence of a joint obligation to protect witnesses that is functional to punishment of the authors, which in turn is perceived as a goal of the international society as a whole. Indeed, criminal networks of organized crime originate a threat to the entire international society (cf. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, at 2), particularly because of their transnational ramifications. The global nature of threat requires that states’ efforts are integrated in a common and coordinated repressive project of multilateral nature (Kramer, at 4).

The idea that witnesses in criminal trials enjoy specific rights has gradually gained acceptance in international law (Fenwick, at 318), leading to the explicit acknowledgement of a positive obligation for states to adopt specific legislative and operative measures to assure witnesses’ self-determination and safety (Cf. Council of Europe, Rec. No. R (97) 13Council of the European Union, Res. No. 95/C 327/04 and, among others, Ecthr, Artico v. Italy, para. 33 ff.).

It is actually possible to construe an overall, coherent “statute” for witnesses under international law, drawing from the various rules set by a number of different instruments dealing with the matter. Thus, for example, the 2000 United Nations Convention on transnational organized crime and its Protocols, set forth innovative rules concerning measures to be adopted by Parties to provide for protection and assistance of witnesses subject to reprisals and intimidation (Article 24).

The extent of the required protection and the resulting burdensome obligations for states are justified by the particular vulnerability of this category of persons, whose protection from the trial is functional to the fight against transnational organized crime. In fact, adequate repression of criminal offences would be widely thwarted if the high risk of negative consequences for witnesses’ health and safety could influence their deposition in the trial and, as a consequence, the outcome of the criminal proceedings. Witnesses’ fact-finding contribution is essential to contrast transnational criminal networks; however their fruitful participation is extremely difficult to obtain without appropriate mechanisms to neutralize dynamics of intimidation largely widespread in this context.

Imposing to adopt “appropriate measures within its means” for the purpose of granting witness’ protection, the Palermo Convention sets up a particular due diligence obligation (see Pisillo Mazzeschi, “Due diligence” e responsabilità internazionale degli Stati, 1989) that is not easy to appreciate. In fact, no specific and analytical indication is given concerning the so called…

Weekday News Wrap: Tuesday, August 20, 2013

by Jessica Dorsey

The Specific-Direction Requirement Would Not Have Acquitted the Zyklon-B Defendants

by Kevin Jon Heller

Criticism of the specific-direction requirement endorsed by the ICTY Appeals Chamber in Perišić has officially jumped the shark. According to James Stewart, the requirement would have required the British military court in Hamburg to acquit the two German businessmen who provided the Zyklon-B that the SS used to gas Jews in the death camps:

In any event, let’s assume that specific direction exonerates someone who provides assistance that can be used for dual purposes, only one of which is an international crime. (Please note, I have struggled at length to think of a way of reconciling this definition with a defensible notion of actus reus, but failed. If others have not, I would be grateful for their thoughts).

Assuming, however, this is what “specific direction” is meant to mean, it leads to the acquittal of corporate officers in the Zyklon B case since officers of the company were actually supplying Zyklon B to the S.S. for two uses: (a) to exterminate insects and germs within labor and concentration camps (a massive sanitary problem); and (b) to gas Jews.

Given these two uses for their merchandise, I take it that the company’s assistance was not “specifically directed” at the international crimes that took place at Auschwitz. If this reading is correct (it is hard to say, due to the inherent ambiguities I mention), this new standard not only leads to deeply counterintuitive results, it undoes much established case-law.

Moreover, this new standard is even higher than “purpose”. As is well known, the ICC followed the US Model Penal Code on complicity (a strange choice, given that, to the best of my knowledge, only 2 out of 194 states do). As a result, the mental element of aiding and abetting in the ICC statute requires that the aider and abettor assisted with “purpose” to facilitate the crime.

The thing is, if we modulate the facts in the Zyklon B case slightly, so that the corporate officers didn’t just know about use of the chemicals on people at Auschwitz, they positively wanted to kill these people, then “specific direction” still exonerates them. They had the purpose to destroy the people, provided the chemicals that did so, but are acquitted based on the second use for sanitary purposes. Thus “specific direction” is MORE onerous that even the “purpose” standard. To my mind, this is patently absurd.

Stewart’s argument is both historically and legally problematic. To see why, recall what the Appeals Chamber said about the specific-direction requirement (emphasis mine):

The types of evidence required to establish such a link will depend on the facts of a given case. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.

The bolded text is critical, because it indicates the fatal flaw in Stewart’s argument: the SS was not an organization that was engaged in lawful and unlawful activities. On the contrary, all of the SS’s activities were unlawful, which is precisely why the IMT specifically deemed it a criminal organization:

The SS was utilized for purposes which were criminal under the Charter, involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labour programme and the mistreatment and murder of prisoners of war….

The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph, who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes.

Stewart’s argument is not simply ahistorical. It is also theoretically flawed, because it implies that no aiding-and-abetting case could survive the specific-direction requirement. That is clearly not true. To begin with, although modern international criminal tribunals no longer rely on the concept of criminal membership, the Appeals Chamber made clear in Perišić that individuals remain individually responsible for knowingly providing assistance to organizations whose activities are solely criminal…

Emerging Voices: Pirates of the Indian Ocean–Enforcement in the Seychelles

by Tamsin Paige

[Tamsin Paige is an M.Phil (Law) Candidate, Australian National University College of Law]

Piracy originating from the coast of Somalia hit its peak in 2011, with 236 attacks occurring in the Red Sea, Gulf of Aden and the Somali region of the Indian Ocean in that year, according to the IMB’s 2012 piracy report. So far in 2013 the IMB has reported only 9 attacks originating from Somalia, resulting in two hijackings, indicating that significant headway has been made through counter-piracy efforts. As part of my thesis examining the role the law has played in the rise and fall of piracy, in Somalia and throughout history, I had the privilege of being invited by the Seychelles Attorney-General to spend January 2013 observing piracy prosecutions in the Seychelles and conducting confidential interviews with those involved in the investigation, prosecution and incarceration of Somali pirates. This fieldwork yielded a wealth of interesting data, some of which I will share here.

The first thing that struck me about the broader regional prosecution process was the importance that was put on the Seychelles involvement and how it was viewed as key to the continued efforts to engage in regional prosecutions of Somali pirates. The esteem in which the Seychelles government is being held for its efforts in counter piracy is tempered by two of the key issues being faced by the legal enforcement regimes: capacity and the repatriation of convicted pirates to United Nations Office on Drugs and Crime (UNODC) established and mentored prisons Somalia.

The repatriation of convicted pirates from Seychellois prisons to UNODC mentored prisons in Somaliland and Puntland are the key to the continued regional prosecutions. In January 2013 it was estimated that convicted and suspected pirates made up 20% of the prison population in the Seychelles. The repatriation program is referred to as the conveyor belt, as the Seychellois government is reluctant to take any more suspected pirates for prosecution unless it can repatriate an equal number of convicted pirates to Somali prisons. However, a number of capturing nations are disinclined to authorise these transfers as the prisons in Somalia did not meet European standards, even though evidence overwhelmingly shows that they more than meet human rights standards. However, more recently there have been indications that the EU has agreed to future repatriation transfers.

The capacity issues that were highlighted by my observations and by the interview participants are in no way restricted to the size of the prisons. The capacity and structure of the court systems in the region, the administrative capacity of the investigatory bodies and the investigatory capacity of the enforcing navies were all raised (along with other issues) as stumbling blocks to the effective prosecution of Somali pirates. Beyond highlighting the need for more nations within the region to engage in prosecuting captured piracy suspects, the issues being faced with the court system were varied.

One participant argued…

Weekday News Wrap: Monday, August 19, 2013

by Jessica Dorsey

Events and Announcements: August 18, 2013

by Jessica Dorsey

Announcements

  • A prize has been established by the Society of International Economic Law and Cambridge University Press for the best essay submitted on any topic in any field of international economic law. The competition is open to all current undergraduate and graduate students of any university or other tertiary education institution, and those who have graduated from a university or other tertiary education institution no earlier than five years before the submission deadline (i.e., those who graduated prior to 30 September 2008 are not eligible for the 2013 Prize). The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication, and the prize winner will be invited to present the winning entry at the 2014 SIEL Conference at the World Trade Institute, Bern.The deadline for submission is 30 September 2013. For more information, click here. 

Event

  • The American Bar Association Section of International Law will host a one-day International Legal Education Summit in London, England on Saturday, October 29, 2013. Registration will be FREE but space is limited.  (Please register ONLY if you are sure you can go.)  The International Legal Education Summit is designed to foster innovative exchanges and networking.  There will be special programming for students and new lawyers, small group information and innovation exchanges for educators and lawyers, and plenary session roundtables on the changing aspects of international legal practice and the future of international legal education. Programs will be held at the University of Law in Moorgate (City of London). Download information about the London Education Summit 2013. The registration link is included in the flier.

Call for Papers

  • A call for papers has been issued for a conference on Constitutionalisation and Fragmentation of International Law Revisited November 18-19, 2013, at the Institute of Law Studies, Polish Academy of Sciences, in Warsaw. The call can be found here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Time Journalist Defends Murdering Julian Assange

by Kevin Jon Heller

It’s been quite a month for the mainstream media. First, at FP.com, Elias Groll completely misstated the mens rea of the Espionage Act and refused to correct his mistake. (He obviously reads my tweets, because he re-tweeted a criticism I offered of a different article.) Then, at the Guardian, Owen Bowcott misrepresented the specific-direction requirement, eliding the distinction between aiding and abetting and ordering/instigating.

But that pales in comparison to a new tweet from Michael Grunwald, Time‘s Senior National Correspondent:

Screen Shot 2013-08-18 at 10.30.45 AM

Yes, Time‘s Senior National Correspondent can barely contain his enthusiasm for murdering Julian Assange. And let’s be clear: that is what Grunwald is so excited about. We can debate the legality of drone strikes. We can have a rational argument about whether the killing of Anwar al-Awlaki was consistent with IHL and/or IHRL. But there is no conceivable rationale for killing Julian Assange.

And that’s not the worst of it. Where, exactly, does Grunwald hope Assange will be murdered? In the Ecuadorian embassy in London? Does Grunwald think that all of the Ecuadorians in the building and any British passers-by would simply be justifiable collateral damage? Or does Grunwald simply not care where and when Assange is murdered? That seems to be the most plausible interpretation of the tweet — given that Grunwald has announced in advance that he will defend murdering Assange no matter what.

Grunwald has since deleted his tweet. But not because of any sense of shame. No, here is his reason:

Yes, how dare Assange supporters have a persecution complex! It’s not like journalists for major US newsmagazines think Assange should be murdered or anything.

Michael Grunwald is an embarrassment to Time and to journalism. Time should not let him cover anything related to US national-security activities ever again.

PS. I’ve removed the sentence calling for Grunwald to be fired. That might be an overreaction to one tweet. But Time has to prohibit him from covering national-security issues in the future. And a suspension for his complete lack of objectivity and judgment doesn’t seem unwarranted.

Weekend Roundup: August 10-16, 2013

by Jessica Dorsey

This week on Opinio Juris, Kevin welcomed the new international criminal law blog Beyond The Hague to the blogosphere and sparked much debate with his post based on Judge Harhoff’s recent comments about the ICTY Appeals Chamber’s Perisic adoption of the specific-direction requirement and followed-up with a second post on the topic clarifying what the specific-direction requirement entails. Kevin also questioned the latest in the Libya and Saif Gaddafi situation, with Libya’s statement that they aren’t able to surrender him, but they could, in fact, prosecute him.

Kristen pointed to the recently released fifth report from the UN Secretary General on R2P and highlighted several interesting topics that are strangely missing, including discussion about Libya, military intervention or the Security Council, extraterritorial obligations of states, the ICC and new technology. Duncan called our attention to a novel agreement between the US and Germany not to spy on one another and asked wondered how it would work in practice. 

In our Emerging Voices series, Žygimantas Juška spoke about the role of standby counsel based on his experience at the ICTY on the Karadzic Defense Team, Elizabeth Stubbins Bates’s post investigated whether the dissemination of IHL was sufficient in promoting the compliance thereof, a spirited exchange of commentary ensued with John Heieck’s piece controversially suggesting that Russia and China breached their duty to prevent war crimes in Syria, Bharat Malkani pondered whether international law may forbid complicity in the death penalty in light of a recent sentencing in Kenya, and Elizabeth Holland rounded out the week talking about the effect of counterterrorism measures balanced against humanitarianism needs, particularly about access to areas controlled by armed groups.

We also listed events and announcements and we provided you with your daily news wraps, as usual.

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

Libya’s Says It Can’t Surrender Saif — But It Can Prosecute Him

by Kevin Jon Heller

Just when I thought its position couldn’t get more ridiculous, Libya argues the following — presumably with a straight face — in response to the defence’s complaint that it is violating its obligation to surrender Saif to the ICC:

It is clear, as Mr. Gaddafi noted in the Request, that the issue of admissibility – in particular ability to pursue a domestic criminal process – is distinct from that of whether there is a failure to comply with the co-operation provisions of the Rome Statute. Libya has submitted on appeal that “the central Libyan Government [is] exercising its authority in Zintan in relation to the domestic
proceedings alongside the Zintan Brigade, which is responsible for supervising his detention.” It has submitted further that the progressive integration of the local authorities into new Libyan democratic institutions, and the negotiated transfer of Mr. Gaddafi from Zintan to Tripoli, is taking place “in a transitional context where the consolidation of the State is necessarily a complex and gradual process.” Libya has submitted that these circumstances do not constitute inability “to obtain the custody of Mr. Gaddafi”, at least at the investigative stage of proceedings. Equally, they do not constitute bad faith on the part of Libya in “deliberately refusing” to surrender Mr. Gaddafi as alleged by the Defence.

Translated: Libya has enough control over Zintan that it cannot be deemed unable to prosecute Saif, but not enough control over Zintan for it to be found in violation of its obligation to surrender Saif to the Court. Now that’s chutzpah!

The next Libyan motion will no doubt claim that the government cannot transfer Saif to the ICC because the dog ate its transfer order.

Emerging Voices: Counterterrorism and Humanitarianism–Assessing the Current (Im)Balance

by Elizabeth Holland

[Elizabeth Holland is an attorney with the law firm Foley Hoag LLP, where she focuses on international law and corporate social responsibility. The views expressed here are her own.]

There is clear need for effective counterterrorism measures.  Equally compelling is the humanitarian imperative to address civilian need in situations of armed conflict.  It has been questioned, however, whether the balance struck currently by counterterrorism measures impedes unacceptably the ability of humanitarian organizations to operate — particularly in areas controlled by listed armed groups (see, e.g., the Counterterrorism and Humanitarian Engagement Project at Harvard Law School and the Safeguarding Humanitarianism in Armed Conflict report published by the Charity & Security Network.  In the interests of full disclosure: I’ve been involved with both.)

Such a question belies simple answer. Policy and operational considerations are implicated in any analysis of the impact of counterterrorism measures on humanitarian action, and measuring the impact of such legislation is difficult.  A recent report commissioned by the UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council presented evidence of such negative impact, including “halts and decreases in funding to blocking of projects” as well as “suspension of programmes;” also listed are “planning and programming design not according to needs, as well as the slowing of project implementation.”

What follows will focus on U.S. counterterrorism legislation and measures, their potential impact on humanitarian operations, and possible responses.  This is simply a snapshot – a range of similar measures exist in other major donor states (e.g., Canada, the U.K., Australia), the EU, and the UN.   These measures, as well as requirements found with increasing frequency in agreements with key donor states, as well as more informal listing mechanisms (such as that seen in Afghanistan in the context of DoD contracts) raise issues of criminal, civil and contractual liability for humanitarian organizations.  Often their stringency, including the lack of a humanitarian exemption, make operating in an area controlled by an armed group very difficult for humanitarian organizations.  Not only may the legal risks be significant, but some of the measures imposed on the humanitarian organizations may require cooperation of a sort that jeopardizes their neutrality and independence.

Under the U.S. material support statute (18 U.S.C. § 2339(A),(B)) the provision of material support to a foreign terrorist organization (“FTO”) is categorically prohibited.  There are a number of armed groups — also parties to an armed conflict — who are also listed as FTOs (see, e.g., Al-Shabaab, Hamas, Al Qaida).  The definition of material support is broad, and includes both tangible and intangible property, currency, facilities, transportation, lodging, services, training, and expert advice or assistance.  Though at one point the statute included an exemption for humanitarian assistance, the current version exempts only medicine and religious materials.  This exemption is interpreted narrowly, as the Second Circuit in 2011 explained that “medicine” is limited to exactly that – it does not include medical supplies or medical assistance under the statute.  Such a strict prohibition may not seem questionable. Considered, however, in the context of humanitarian operations, such a categorical approach leaves no room for maneuver, no space for even de minimus or incidental engagement of the type often operationally necessary to conduct humanitarian activities.

In addition to the broad definition of material support, the statute does not require…

Treaties on Espionage — A Strange Pairing?

by Duncan Hollis

I’ve spent a lot of time thinking about treaties. And I’ve read lots and lots of them over the years. From time to time, however, I encounter something I find truly novel on the treaty front. A case in point, was this story in IT World yesterday.  It refers to pending negotiations between the United States and Germany on an agreement not to spy on each other:

The U.S. has verbally committed to enter into a no-spying agreement with Germany in the wake of disclosures about the U.S. National Security Agency’s secret surveillance programs.

The verbal commitment was given in talks with the German Federal Intelligence Service (Bundesnachrichtendienst, BND), the sole foreign intelligence service of Germany, the German government said in a news release on Wednesday. This means that there must be no governmental or industrial espionage between the two countries, it said . . . No further details about the agreement were given. The German Federal Ministry of the Interior reached on Monday could not immediately respond to a request for comment.

I’ve never encountered such a treaty commitment before and I wonder what the proposed agreement will look like (and even if it’ll be a treaty at all — perhaps a political commitment is more likely?).  Have astute readers encountered similar types of “no-spying” arrangements in the past?  If so, I’d love to hear about them, not to mention any comments or expectations for compliance if the United States and Germany do conclude a non-spying treaty. For my part, I’ve always assumed spying is by its very nature the sort of thing you do after promising not to do it, but I also assume the United States generally tries to honor its treaty commitments too, suggesting any future deal won’t end well one way or another.

New Responsibility to Protect (R2P) Report Out

by Kristen Boon

The United Nations Secretary General’s fifth Report on the Responsibility to Protect (R2P) was released last week.  This Report is titled “State Responsibility and Prevention” and focuses generally on governance mechanisms and early warning.  It also mentions the situation in Syria, stating that “[r]ecent events, including in the Syrian Arab Republic, underline the vital importance of early action to prevent atrocity crimes and the terrible consequences when prevention fails.”

On the whole, the Report is consistent with prior work, but doesn’t contain much that is new.    The Report focuses in large part on governance, and includes the following points:

  • There is an overlap between risk factors related to armed conflict and atrocity crimes
  • “Genocides [The Holocaust and in Rwanda] started with hate speech, discrimination and marginalization.”
  • Constitutions are mechanisms for creating societies based on non-discrimination
  • Transitional justice mechanisms and security sector reform are important

The Report ends with a call to all countries to:

“ (a) Appoint a senior-level focal point with atrocity prevention responsibilities and adequate resources or establish other national mechanisms to implement this mandate; (b) Conduct a national assessment of risk and resilience, using the analysis framework on the prevention of genocide developed by my Special Adviser, as appropriate, the risk factors outlined in the present report and tools developed by civil society. The review should be system-wide and should include the identification of vulnerable populations and an assessment of existing structures for resilience. Civil society should be included in the review process; (c) Sign, ratify and implement relevant international legal instruments;  (d) Engage with and support other Member States and regional or subregional arrangements to share experiences and enhance cooperation to promote the effective use of resources; (e) Participate in peer review processes, including the universal periodic review of the Human Rights Council, as well as regional peer review processes and other options for monitoring the effectiveness of measures taken; (f) Identify and form partnerships with other Member States, regional and subregional arrangements or civil society for technical assistance and capacity- building purposes, exchange of lessons learned and mobilization of resources; (g) Participate in international, regional and national discussions on the further advancement of the responsibility to protect and its implementation.”

What is perhaps more interesting is what the Report does not say:

  • it does not mention Libya, which continues to be the real hot button precedent on R2P
  • it does not mention military intervention, or the role of the Security Council
  • it does not mention extraterritorial obligations of states
  • it does not mention the ICC
  • it does not mention new technology

On the latter two points, see this July 2013 Report on R2P by Madeleine Albright and Richard Williamson.

The Secretary General has recently appointed a new Special Representative on the Responsibility to Protect – Professor Jennifer Welsh of Canada –  who has written widely on R2P and is currently a Professor at Oxford University.    Hopefully, her appointment will bring new momentum to the campaign.

Many will no doubt be disappointed with the Report.  With the ongoing situation in Syria, and renewed instability in Egypt, this would have been an opportune moment for the UN to move the debate forward on R2P, an opportunity it did not seize in this latest contribution.

Emerging Voices: Does International Law Forbid Complicity in the Death Penalty?

by Bharat Malkani

[Bharat Malkani is a lecturer at Birmingham Law School, University of Birmingham, where he also runs the Birmingham Law School Pro Bono Group. You can also follow him on Twitter at @bharatmalkani]

Recently, Ali Babitu Kololo was sentenced to death by a Kenyan court for his role in the murder of David Tebbutt, and the kidnapping of David’s wife, Judith, in September 2011. David and Judith were British holidaymakers in Kenya at the time of their ordeal, and British police were heavily involved in the investigation into these crimes. Officers from the Met’s Counter Terrorism Command (SO15) travelled to Kenya and played a major role in securing the arrest and conviction of Kololo. The officers provided forensic expertise, assistance with preparing the prosecution’s case, and also provided support to the victims’ family. Commander Richard Walton, the Head of the Met’s Counter Terrorism Command, said: “The investigation team, led by Detective Superintendent Neil Hibberd, have… shown great skill and tenacity in assisting this Kenyan investigation.”

It is only right that British authorities should help to bring the killers and kidnappers of British citizens to justice, and Kololo should be punished severely for the crimes he committed. But it is questionable whether the British authorities should contribute to the imposition of the death penalty. The UK has long rejected capital punishment for even the most serious of crimes, and the UK currently plays a leading role in promoting abolition of the death penalty in other countries. At the very least, it is starkly hypocritical for the UK to condemn other countries for using the death penalty on the one hand, while on the other hand actually assisting those countries like Kenya impose the death penalty.

Moreover, though, it might actually be illegal for British authorities to be complicit in the death penalty. It is arguable that, under international law, a norm is emerging that prohibits states that have abolished the death penalty from assisting its use elsewhere, comparable to the prohibition on complicity in torture and the prohibition on complicity in other internationally wrongful acts (Article 16 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts) .

The starting point for this claim can be found in extradition law. Both the European Court of Human Rights and the United Nations have made it clear that abolitionist states are forbidden from extraditing individuals to states where there is a real risk that they will face the death penalty. The principle behind this prohibition is simple: to do otherwise would be tantamount to aiding and assisting a practice that is forbidden.

Wider obligations to refrain from being complicit in the death penalty can be extrapolated from this principle…

Weekday News Wrap: Thursday, August 15, 2013

by Jessica Dorsey

Emerging Voices: Illegal Vetoes in the Security Council–How Russia and China Breached Their Duty Under Jus Cogens to Prevent War Crimes in Syria

by John Heieck

[John Heieck is a Lecturer of and PhD candidate in Public International Law at the University of Kent, Brussels School of International Studies]

When Russia and China vetoed two Security Council resolutions demanding all sides to the Syrian conflict to cease all forms of violence and human rights violations, many scholars and statesmen were not surprised.  After all, Russia and China had extensive political, military and economic ties with the Assad government.  For those in the realpolitik camp, Russia and China’s vetoes simply reinforced their view that power was king in international relations, and that the Security Council was, and would continue to be, dysfunctional in light of this reality.  However, scant attention was paid to the legal consequences of Russia and China’s vetoes; that by vetoing the aforementioned resolutions, Russia and China breached their duty to prevent war crimes under jus cogens and incurred international responsibility as a result.  In this post, I will endeavor to explain why.

The supremacy of peremptory norms vis-à-vis the exercise of P5 vetoes

The hierarchy of sources in international law is well known.  Formal sources – treaties, custom and general principles – are, by definition, superior to material sources – judicial decisions and scholarly writings.  However, formal sources are also, by definition, inferior to jus cogens, which are embodied in peremptory norms.  Article 53 of the VCLT defines peremptory norms as norms ‘from which no derogation is permitted’.  Peremptory norms therefore have dispositive legal effects: no state may breach, violate or act contrary to peremptory norms without incurring international responsibility.  This standard applies to not only treaties but also the exercise of treaty rights (Nieto-Navia, p. 19), including the P5’s exercise of their Charter right to veto SC resolutions.  As a result, every P5 veto must be measured against the relevant peremptory norms.  If a P5 veto violates a peremptory norm, it is illegal under jus cogens.

The peremptory status of the duty to prevent war crimes

Given their dispositive legal effects, how are peremptory norms determined?  Article 53 provides a two-factor test: first, whether the international community of states as a whole has accepted and recognized the existence of the norm in question; and second, whether the norm in question is non-derogable in character and thus peremptory in status.  To satisfy the first factor, unanimous consent within the international community is not required; according to Alexander Orakhelashvili, acceptance and recognition by ‘a very large majority’ of states is sufficient (Orakhelashvili, 2007, p. 182).  This manifestation may be found in…

Weekday News Wrap: Wednesday, August 14, 2013

by Jessica Dorsey

More Misdirection on Specific Direction

by Kevin Jon Heller

Another person who should know better has misrepresented the ICTY’s specific-direction requirement: Owen Bowcott, a legal correspondent for the Guardian. Here is the sub-headline of his new article on the impact of the Perisic judgment:

Legal experts say proof that accused ‘specifically directed’ atrocities now required after tribunal acquits Serbian commanders.

And here is the first paragraph of the article:

Generals and politicians could evade responsibility for war crimes in future because of a ruling requiring proof that they “specifically directed” atrocities, say some international lawyers and senior judges.

That is not what the specific-direction requirement requires. As I have pointed out before, Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. That is a fundamental difference — a perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.

Compounding the mistake, Bowcott later quotes Judge Harhoff on the mens rea of aiding and abetting (emphasis mine):

You would think,” Harhoff speculated, “that the military establishment in leading states [such as USA and Israel] felt that the courts in practice were getting too close to the military commanders’ responsibilities … in other words: the court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed. Thus their intention to commit crime had to be specifically proven.”

But military commanders are paid to ensure that crimes are not committed, Harhoff said. Had US or Israeli officials exerted any political pressure on the court? “Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed.”

Judge Harhoff is fundamentally mistaken. Perisic simply clarified aiding and abetting’s actus reus by (re-)adopting the specific direction requirement; it did not in any way modify the ICTY’s long-standing adoption of knowledge as aiding and abetting’s mens rea. Indeed, the Appeals Chamber specifically noted (para. 48) that “the mens rea required to support a conviction for aiding and abetting is knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.” (Alex Fielding also points out Judge Harhoff’s error here.)

Why did a knowledgeable legal correspondent like Bowcott make such a basic mistake regarding the specific-direction requirement? Unfortunately, because — despite the article’s sub-headline — he seems to have limited his research to Judge Harhoff’s letter and Ken Roth’s recent editorial in the New York Times, which also misdescribes the requirement. Bowcott quotes Roth’s editorial in the final paragraph of his article — a vivid reminder of how inaccurate information spreads.

I hope that Bowcott will correct his article. Being a journalist is difficult, particularly when one’s beat requires knowledge of a vast swath of international jurisprudence. Mistakes happen. The beauty of internet journalism, however, is that it is easily corrected. (I’m still waiting for FP.com to correct Elias Groll’s butchering of the mens rea required for espionage…)

If Bowcott issues a correction, I’ll update this post.

Emerging Voices: Is Dissemination Sufficient to Promote Compliance with International Humanitarian Law?

by Elizabeth Stubbins Bates

[Elizabeth Stubbins Bates is a PhD candidate in Law at SOAS, University of London.]

States must disseminate international humanitarian law (IHL) as widely as possible, and integrate it into programmes of military instruction. These obligations exist in international and non-international armed conflict (with differences between treaty and customary international law for the latter) and are among the few IHL duties on states in peace-time. International humanitarian law typically applies only during armed conflict or belligerent occupation.

This post tackles the assumption that simply disseminating or teaching IHL is sufficient to promote compliance with the law; and explores the distinction between the obligation merely to disseminate IHL (including to the civilian population) and the obligation to train troops in that law. This distinction has stark relevance for the US’ reliance on civilian CIA drone operators, whose knowledge of IHL has not been openly assessed, and whose training programmes in IHL (if any) have not been disclosed. When official statements on the IHL applicable to drone strikes contain elisions, it is US policy rather than IHL which is disseminated to the civilian population. While it is appropriate to be sceptical that dissemination is sufficient to promote compliance with IHL, confused dissemination of IHL may promote non-compliance.

I.

Dissemination and training are assumed to promote compliance and prevent violations. The ICRC Commentary finds a link between dissemination and training on the one hand, and states’ broader obligation to ‘respect and ensure respect’ for IHL ‘in all circumstances’ on the other. Training as a mechanism to prevent violations (in effect assuming that more knowledge of law equals fewer violations of that law) also appears outside IHL: in Art 10 of the Convention against Torture, and as a guarantee of non-repetition in the Basic Principles and Guidelines on the Right to a Remedy and Reparation. As violations in armed conflict may be caused by sheer disregard of known law, by revenge, desensitisation, ‘othering’, an absence of empathy, or unlawful orders, it is appropriate to be sceptical that dissemination and training in IHL is sufficient to promote compliance.

While the necessity of disseminating IHL and training troops in the law is rarely questioned, its sufficiency is under-explored. Treaty texts give little guidance on how states should disseminate IHL and integrate it into military training, so state practice is apt to vary, with no guarantees that the dissemination and training will promote compliance. Scholarship on IHL dissemination and training is less developed than equivalent research on military ethics and psychology, and the analogous field (outside the military context) of human rights education (HRE). The literature suggests that ethics training should be an integral part of military instruction (Lovell); IHL training requires attitudinal change to be effective (Save the Children Sweden), so that the norms are internalised as ‘second nature’ (South Africa’s Law of Armed Conflict Manual); and barracks culture may influence or impede training (Lloyd Roberts). Flexibility is considered important: as to the moral/political background of ‘the individual to be convinced’ (Sassòli), to their rank, and to the deployment situations they are likely to face (Kuper). The interpretation of IHL norms, the educational background of soldiers and officers, and operational realities (such as the fluidity between armed conflict and law enforcement situations in Krulak’s ‘three-block war’) might all influence military training in IHL, and each of these should be theoretically and empirically studied.

Over the past two decades, the ICRC has gradually shifted its IHL assistance to armed forces and armed groups, from dissemination of the law (known internally as PREDIS) to an emphasis on ‘integration’ (PREIMP). In the ICRC’s theory, integration is a ‘continuous process’, in which IHL becomes relevant to ‘doctrine, training, education, equipment and sanctions’ (ICRC, Violence and the Use of Force, 2011). Integration requires the prior interpretation of the law, an understanding of its operational consequences, and the adoption of ‘concrete measures…to permit for compliance during operations.’ Integration recognises that the mere dissemination of IHL to armed forces and armed groups is insufficient for compliance, and the ICRC acknowledges explicitly that ‘the mere teaching of legal norms will not result, in itself, in a change in attitude or behaviour’. Conscious reflection is needed on…

Weekday News Wrap: Tuesday, August 13, 2013

by Jessica Dorsey

Welcome to Beyond the Hague — and a Great Catch on Judge Harhoff

by Kevin Jon Heller

I want to welcome a promising new member of the international criminal law blogosphere — Beyond the Hague. The blog is refreshingly international, as befits an ICL blog; its current contributors are Alex Fielding, Manuel Eynard, Maria Eleni Vignoli, Maria Radziejowska, Paul Bradfield, and Peter Dixon.

I particularly want to single out a fantastic post by Alex Fielding on Judge Harhoff’s notorious attack on the Appeals Chamber’s adoption of the specific-direction requirement for aiding and abetting in Perisic. Fielding notes that, in fact, Judge Harhoff was part of the unanimous Trial Chamber judgment in Stanisic & Zupljanin in which the Trial Chamber explicitly adopted the specific-direction requirement. Here is para. 107 of the judgment (emphasis added):

107. Aiding and abetting is a form of accomplice liability. The Appeals Chamber has held that:

an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime. […] The requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.

Fielding’s response is worth quoting at length:

The question that remains, is if Judge Harhoff was so outraged by the legal and factual conclusions of the Perisic Appeal Judgement, why did he then endorse the very point of law that resulted in the acquittal of Perisic, as well as Stanisic and Simatovic?  What recourse does a trial judge have when he/she disagrees with the Appeals Chamber’s on a point of law?

Judge Harhoff could certainly have written a separate and dissenting opinion on the specific direction requirement.  Trial judges have disagreed with the Appeals Chamber in the past, notably Judge Lindholm who filed a separate and partially dissenting opinion to the Simic et al Trial Judgement to “dissociate [him]self from the concept or doctrine of joint criminal enterprise in this case as well as generally”. Judge Harhoff could even used some of the “tenacious pressure” that Judge Meron is accused of to persuade his fellow trial judges to follow his lead (the late Lord Denning would certainly have been proud). But instead he undermined the tribunal for which he serves by disclosing confidential information about deliberations he was not a part of, second guessing the outcome of those deliberations (at least privately), and displaying a bias towards convictions.

I completely agree. Fielding promises there is more to come; I look forward to his next post.

Anyone interested in international criminal law will definitely want to check out Beyond the Hague.

UPDATE: My friend Marko Milanovic has convinced me that my previous description of Judge Harhoff’s actions as hypocritical might have been a bit overstated. But please read my response to him in the comments.

Emerging Voices: The Role of Standby Counsel to a Self-Represented Accused–Lessons Learned from the Karadzic Case

by Žygimantas Juška

[Zygimantas Juska is a member of the defense team of Radovan Karadžić]

One of the most high-profile cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY)Prosecutor v. Radovan Karadžićprovides an opportunity to propose changes for the standby counsel model. Nevertheless, the ICTY has struggled to balance the effectiveness of standby counsel and its huge financial burden on the Tribunal.

The ICTY previously permitted self-representation in the two high-profile cases—Prosecutor v. Milošević and Prosecutor v. Šešelj—and in each, the Tribunal permitted self-representation but soon encountered disruptive behavior from the accused. When Milošević’s medical condition began causing his health to deteriorate, the Court decided that the counsel needed to be imposed. In Šešelj, the Trial Chamber revoked the accused’s right to self-represent and imposed standby counsel after Šešelj’s challenges against the legality of the ICTY, alleged intimidation of witnesses, and disruptive behavior. Similarly, the Trial Chamber ordered a standby counsel for Karadžić after he refused to attend proceedings (see here). The Trial Chamber permitted Karadžić to continue self-representing so long as he did not disrupt the trial process.

During the personal discussion with Peter Robinson, I have been introduced with key aspects of the current model of standby counsel. The current mechanism allows accused persons to represent themselves freely, yet it provides the Court with an insurance policy in the event they disrupt the trial. At the same time, this model works as an incentive for the accused to play under the rules.

Nevertheless, the international community has taken notice of the inefficiencies surrounding standby counsel. Under the current model, standby counsel prepares as if it were at trial, yet it essentially acts as an observer to the actual proceedings as Karadžić continues to self-represent (see, p. 14). Nevertheless, the standby counsel and Karadžić’s defense team often complete the same tasks, resulting in duplication and unnecessarily higher costs.

The current model could be improved by encouraging a more active role for standby counsel. It seems clear that a partnership between actual and standby counsel would likely increase the efficiency of the trial. A partnership would be feasible, provided that…

Weekday News Wrap: Monday, August 12, 2013

by Jessica Dorsey

Events and Announcements: August 11, 2013

by An Hertogen

Announcements

  • The Goettingen Journal of International Law, Europe’s first student-run peer-reviewed journal in the field of international law, has released a special Issue on “The Law and Politics of Indigenous Peoples in International Law“. The eight selected articles are available on www.gojil.eu. A completely modernized version of the journal’s web page was launched in July, too.

Calls for Papers

  • The Goettingen Journal of International Law is accepting submissions addressing general international law as well as contributions emanating from specialized branches of international law such as international criminal law, international humanitarian law, or international economic law. Submissions are classified as general articles consisting of about 15.000 words or articles on current developments consisting of about 6,000 to 15,000 words. Contributions are generally published within six months after their submission.
  • The Goettingen Journal of International Law has also issued a special call for papers for its Annual Student Essay Competition. This year’s topic is Principles of International Criminal Law. The deadline is November 15, 2013. More information is here.
  • The AALS Section on International Law has issued a call for papers for its program at the AALS 2014 Annual Meeting in New York City. The topic is International Law-Making and the United Nations. The call is here and the deadline for submission is September 10, 2013.
  • The Faculty of Law of the University of Trento (Italy) is organizing a Young Scholars Workshop on the decolonization of Africa under international law, entitled “Africa 2013 – Was There Something Missed in the Decolonization Process? The International Law Perspective“. Fifty years after the establishment of the OAU, the goal is to address the fundamental research question of whether and to what extent formal independence has released African States from patterns of dominance by former colonial powers. The Workshop will take place on December 6-7, 2013 and will be divided into four sessions: a) Use of Force; b) International Economic Law; d) International Criminal Justice and Human Rights; e) Circulation of Legal and Institutional Models. The deadline for the submission of abstracts is September 22, 2013. More information is here.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

Weekend Roundup: August 3-9, 2013

by An Hertogen

This week on Opinio Juris, Kevin marvelled at Libya’s flexible approach to time. He also posted NASA’s visualization of the warming world since 1880, which Chris followed up on with a discussion of a recent report linking climate change to a surge in armed conflicts.

In our Emerging Voices series, Gilad Noam discussed three ways of conceptualizing admissibility challenges at the ICC, and the implications for the burden and standard of proof. Robert C. Clarke submitted that perpetration by means can exist in consonance with customary law rather than in spite of itAqsa Mahmud compared the different role and the limits,of the R2P doctrine in the Libyan and Syrian conflicts, and Marta Bo compared piracy with core crimes to examine the juxtaposition between transnational and international crimes.

We also listed events and announcements and Jessica provided you with her daily news wraps.

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

 

Emerging Voices: Piracy vs. Core Crimes–Assessing the Consequences of the Juxtaposition between Transnational and International Crimes

by Marta Bo

[Marta Bo is a Ph.D. candidate at the University of Genova, Italy and a member of the Peace and Justice Initiative. She wrote this post while she was a Visiting Fellow at the British Institute of International and Comparative Law]

Over the past few years, several proposals have been made to put an end to the culture of impunity persisting among Somali pirates. The use of international adjudicative mechanisms – such as an international piracy court, or the International Criminal Court with an amendment to its ratione materiae jurisdiction – has been proposed (United Nations Secretary General Report of 26 July 2010) and, also, defended by several scholars. These instruments are typical expressions of a direct system of adjudication that has been conceived exclusively for the prosecution of international crimes stricto sensu (genocide, war crimes, crimes against humanity and aggression). Although these options seem now to be displaced by more practical avenues for prosecution, such as specialized piracy chambers within national jurisdictions of Regional states (ex plurimis, R. Geiß and A. Petrig, Piracy and Armed Robbery at Sea, 2011, 184), they nonetheless deserve consideration in light of the existing fundamental differences between piracy and international crimes stricto sensu, otherwise called core crimes A closer scrutiny of piracy and core crimes, may suggest that, not only practical matters, but also a different logic should underpin the legal discourse concerning possible judicial fora to prosecute piracy.

Piracy and core crimes are a good example of the juxtaposition of transnational crimes and international crimes. Piracy is often referred to as an international crime, and sometimes as the first international crime. However, this is misleading. Piracy is not directly criminalised under international law: customary law and the UNCLOS regime neither provide for individual criminal responsibility for piratical acts nor proscribe the piratical conduct. Article 101 of the UNCLOS merely defines the offence. Notwithstanding the fact that national courts may directly apply the UNCLOS definition when constitutional arrangements allow so, piracy generally needs to be criminalised domestically in order to be adjudicated upon by national courts. The UNCLOS primarily sets out an obligation for states to adopt the necessary national criminal law establishing individual criminal responsibility for the conduct. Therefore, the customary definition of piracy as mirrored in the UNCLOS provision (“This definition is generally, though not universally, accepted as having codified pre-existing customary international law”, see D. Guilfoyle, Piracy off Somalia: UN Security Council Resolution 1816 and IMO regional counter-piracy efforts, 57 I.C.L.Q. 690 (2008), 693) does not ordinarily constitute the basis for piracy prosecutions, but rather it is the municipal legislation which does.  The Harvard Draft Convention, which is the basis for the UNCLOS piracy provisions, lends support to this argument.  The theory behind the Draft Convention was that “piracy is not a crime by the law of nations” (Harvard Research Draft Convention on Piracy, 26 Am. J. Int’l L. Sup 739 1932, 760) and “pirates are not criminals by the law of nations” (Id., 756). The Harvard Researchers adopted the view that piracy constitutes a special ground of jurisdiction, “the basis of an extraordinary jurisdiction ” (Id., 760).

By contrast, core crimes are directly criminalised under international law. International norms directly prohibit these offences by virtue of norms directed at individuals. These norms create universal direct criminal responsibility for individuals under international law.

Crimes that international law directly criminalises and piracy, only indirectly criminalised under international law, differ, in particular, on the following points: i) state involvement as compared to de-nationalisation; and ii) an exceptional gravity that constitute a threat to the most important values of the international community (international element) as compared to a cross-border harm to interests common to all or a number of states (transnational element). From these different characterizations, it follows that…

Weekday News Wrap: Thursday, August 8, 2013

by Jessica Dorsey

Emerging Voices: Limits to R2P–Lessons from the Arab Spring Conflicts

by Aqsa Mahmud

[Aqsa Mahmud graduated from the University of Michigan Law School and currently practices as a government attorney in Washington, DC]

The international community’s application (or nonapplication) of Responsibility to Protect (R2P) to the recent Arab conflicts highlights notable limits to R2P. R2P is a relatively new doctrine that holds States responsible for protecting their populations and, where the sovereign fails, allows for foreign intervention. Although independent reports have proposed a test for application, the international community has not adopted a set criterion. Every situation of R2P’s potential use—whether applied or not—should be examined. In both Libya and Syria, the governments used military force against civilians and failed to protect their populations; however, R2P was only applied to Libya. The disparate application of R2P in Syria, in comparison to Libya, illustrates several limiting factors that will guide R2P in future scenarios.

Foremost, the Libya-Syria distinction shows that R2P application depends on, and is limited by, regional attitudes towards aggressive international action. This factor reflects the primary difference between the decision to intervene in Libya and not Syria. In the case of Libya, regional organizations showed their contempt for the Qaddafi regime early on. As the conflict escalated, organizations such as the Gulf Cooperation Council (GCC) and the Organization of the Islamic Conference (OIC) supported aggressive measures such as a no-fly zone. These options were already being debated at the international level but regional attitudes legitimized a hardline approach. A regional consensus on the Libyan conflict and against the Qaddafi regime activated Security Council members who, at that time, included non-permanent members associated with the region. Some have gone so far as to say that Resolution 1973 would have been impossible absent the position of the League of Arab States (LAS). Of importance, these regional organizations presented a general consensus on the deterioration of the humanitarian situation and need for aggressive action. They did not, however, envision or promote the same type of response. Thus, future use of R2P will likely depend on a general regional consensus in support of aggressive international action.

In comparison, the Syrian conflict failed to generate the type of regional support seen for Libya. The Syrian conflict raised concern without…

Weekday News Wrap: Wednesday, August 7, 2013

by Jessica Dorsey

Emerging Voices: Together Again? Customary Law and Perpetration by Means

by Robert Clarke

[Robert Charles Clarke is a Research Associate at the Supreme Court of Western Australia]

It could as well be said that Darré, for example, is guilty of murder of numerous people in the occupied portion of Russia, because, as Minister of Food, he had charge of the Food Estate and supplied the food that maintained the Einsatzgruppen in that territory; that it was all a part of one operation and the feeding the troops an essential part, without which the murders could not have been committed. This may seem fanciful, and indeed it is … Ministries Case, 936 (Powers, J., dissenting)

One could be forgiven for assuming that this passage was directed at the conviction of Thomas Lubanga for his “essential” contribution to the use of child soldiers (see ¶ 1356), a conviction that, he argues on appeal, rested on a novel doctrine inappropriate to an international forum. But as the reference to Nazi death squads of 1940s vintage suggests, the doctrine may be less novel than Mr Lubanga thinks.

Trial Chamber V of the ICC found that Lubanga committed crimes under Article 25(3)(a) of the ICC Statute “jointly with” other leaders of his political-military organization, the FPLC, by playing an essential part in a common plan to recruit and deploy military forces, which to his knowledge would include children under 15: ¶¶ 1351–1357. Lubanga was therefore convicted as a perpetrator by means: one who remains absent from the scene but, as an essential link in the chain of causation, decides whether and how the crime occurs: see generally Confirmation of charges against Katanga, ¶¶ 473, 495.

According to the standard narrative, the theory of perpetration by means proliferated in civil law jurisdictions after being expounded by German scholar Claus Roxin. Indeed, the ICC relies so heavily on Roxin and other German-influenced sources that Judge Fulford felt the theory was “imported directly from the German legal system”: ¶ 10. This observation is front and centre in Lubanga’s challenge to the legality of perpetration by means on appeal: ¶¶ 332–338.

In this respect, Lubanga keeps good company among international jurists, the ICTY and other UN tribunals having likewise concluded that perpetration by means is not a norm of customary international law: see e.g. Ayyash, ¶ 256. However, they diverge when Lubanga asserts that a person can only commit a crime by engaging directly or physically in the relevant act. As the ICC Prosecutor now observes, UN tribunals hold that principal offenders include parties to a joint criminal enterprise (JCE), where their confederates carry out or procure the criminal act: ¶ 265 n.540. This doctrine draws on jurisprudence from the post-WWII period and is said to reflect a customary legal emphasis on a “common criminal purpose,” rather than causal predominance.

The theories preferred by the ICTY and ICC—JCE and perpetration by means, respectively—are therefore considered to have different juridical and philosophical origins, which has deterred each court from drawing on the other’s jurisprudence. This may concern the ICC little in black letter law terms, as it acts within the confines of its Statute. However, by limiting themselves so, both courts invite the criticism that they apply principles which, being rejected by the other, are obscure and parochial: see e.g. ¶¶ 5 & 20 of the concurring opinion of van den Wyngaert, J. The Prosecutor’s attempt to synthesize common principles from parallel lines of jurisprudence is therefore welcome; however, if it succeeds it will do so against the run of play.

Nevertheless, such harmonization is arguably possible. The principles underlying perpetration by means were canvassed at the international level well before the ICC and ICTY existed, in the same body of sources that ground what is now termed JCE doctrine. Consider, for example, the first treaty provision on parties to offences, Article 6 in fine of the Charter of the International Military Tribunal (IMT) 82 U.N.T.S. 279:

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any…

Weekday News Wrap: Tuesday, August 6, 2013

by Jessica Dorsey

Libya’s Flexible Approach to Time

by Kevin Jon Heller

On July 10, counsel for Al-Senussi filed a motion with the Pre-Trial Chamber complaining that Libya had announced it would begin Al-Senussi’s trial no later than the end of Ramdan — August 7 — despite the fact that Libya’s admissibility challenge was still pending before the ICC. On August 5, Libya filed its response, arguing that it has no obligation to spend domestic proceedings during consideration of its admissibility challenge. Substantively, this is a rare instance in which I completely agree with Libya. The problem is not that Al-Senussi’s prosecution is moving forward; there is indeed nothing in the Rome Statute that requires a state to put domestic proceedings on hold while it challenges admissibility. The problem is that Libya has made it all too clear that it has no intention of ever turning Al-Senussi over to the ICC — even if the Appeals Chambers orders it to.

That said, although I agree with the substance of Libya’s reply, I can’t help but marvel at its rather flexible approach to time. As Libya acknowledges, despite having nearly a month to file its reply, it filed the reply one day late. It’s excuse? Ramadan:

The Government is aware that this Response has been filed one day after the  requisite time limit. The holy month of Ramadan commenced in the Islamic world on 9th of July and will conclude on 7th of August. During this period, hours of work in Libya are dramatically reduced due to the requirements of intense prayer and fasting which the Libyan people (including Libyan Government officials) adhere to. This has complicated the receipt of instructions and finalisation of the filing. The Government accordingly seeks the Court’s indulgence to extend the time limit to today, pursuant to Regulation 35 (2). The Government notes that, given the nature of the Defence Application, the fact of the short delay is unlikely to have caused any prejudice to the Defence.

I don’t in any way want to slight Islam, but really? Libya’s team of three Western lawyers couldn’t write an 11-paragraph motion that contains not a single fact concerning Al-Senussi’s case — the motion focuses solely on what the Rome Statute says about Libya’s obligation to cooperate with the ICC — in a month? Color me skeptical.

Even worse is Libya’s proposed resolution to Al-Senussi’s motion. The reply argues that if Libya is required to provide the ICC with information about the timetable for Al-Senussi’s domestic prosecution, it should be given six weeks to do so. In other words, it should be allowed to wait until five weeks and five days after Al-Senussi’s trial is supposed to begin (according to Libya’s own statements) to discuss when Al-Senussi’s trial is supposed to begin. The reply provides no justification whatsoever for the six-week deadline. Nor does it explain why it needs so long now that Ramadan is over.

With Libya, it’s always “heads Libya wins, tails the defence loses.”

New Study on Climate Change and a Possible Surge in Conflicts

by Chris Borgen

Following-up on Kevin’s post that illustrated the increasing temperature anomalies of the world’s climate, I want to point out a recent study pointing to evidence of a link between increasing global temperatures and a rise in violent crime and larger-scale conflicts, such as wars. Smithsonian.com reports:

Now, in the most comprehensive analysis of the work on climate change and armed  conflict to date, a team from UC Berkeley and elsewhere has found that  these climate trends are indeed likely to significantly increase the incidence  of armed conflict overall. Their paper, published[on August 1st] in Science, examined  60 studies to aggregate sets of data on events spanning 8000 B.C.E. to the  present that examined climate variables and incidences of violence in all major  regions of the globe.

But, the part of the study that has been getting the most attention isn’t the historical analysis, but the forward-looking projections .

Extrapolating to the future, these rates mean that if the entire planet went  through an average of 3.6°F of warming by 2050—an optimistic limit set at the 2009 Copenhagen conference—we’d see personal  crime rise by 16 percent and intergroup conflicts surge by 50 percent. The  distribution of violence wouldn’t be equal, either, as climate models indicate  that some areas will be hit with warming periods that fall outside two, three or  even four standard deviations of the norm (and thus experience more conflict)…

To get an idea of which areas may face the most violence, see this map of climate deviations from the norm. There are various caveats, but the researchers believe:

that they conducted the most rigorous analysis possible. The fact that the  climate-violence relationship was consistently found among a wide range of time  periods, cultures and regions, they argue, indicates that there is a substantial  link between the two.

And, of course, keep in mind that increasing climate may be linked to increasing societal and inter-communal violence because rising temperatures can also adversely affect agricultural production, spawn stronger storms that destroy communities and result in environmental refugees, and so on.

For a recent examination of the legal and policy issues related to climate change, see Andrew Guzman’s new book Overheated: The Human Cost of Climate Change. Also, see this video of Guzman speaking on climate change.  See, also, Hari Osofsky’s and Roger Alford’s posts discussing Andrew’s book.

Emerging Voices: Configuring Admissibility Challenges in the ICC–Civil Dispute or Part of the Criminal Proceedings?

by Gilad Noam

[Dr. Gilad Noam teaches international criminal law at the Hebrew University and is also a practicing attorney at Israel’s Ministry of Justice]

What is the underlying nature of a dispute between a State and the Prosecutor of the International Criminal Court (ICC) on issues of complementarity?  Are the proceedings in which a State challenges the admissibility of a situation or a case akin to inter-state disputes before international judicial or arbitral bodies? To what extent is the fact that such proceedings precede a criminal trial relevant?  These issues have practical implications, particularly on issues of burden and standard of proof.

The ICC has not produced significant jurisprudence on these issues in its first eleven years of existence. Decisions on issues of complementarity have focused on the technical interpretation of statutory provisions, usually in challenges brought by defendants. To a large extent, this is the result of the prevalence of “self-referrals” in those situations which have been brought to the Court, meaning that the relevant states have not sought challenge the prosecutions brought in the ICC. In the few non-self-referred situations in which states have objected to ICC proceedings (Sudan, Kenya and Libya), the nature of the admissibility dispute between those states and the Prosecutor, and rules establishing the burden and standard of proof in those disputes, have not been addressed methodically.

The issue did arise recently, however, when Libya challenged the admissibility of the cases brought by the Prosecutor against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, claiming that its national judicial system was actively investigating those cases. On May 31st, the Pre-Trial Chamber rejected Libya’s admissibility challenge with regard to Gaddafi (the admissibility challenge with regard to Al-Senussi is still pending) on the ground that Libya is “unable” to carry out the investigation. Libya appealed the decision. While various aspects of the admissibility challenges were discussed extensively in this blog and other forums, the controversy between Libya and the Prosecutor on issues of burden and standards of proof was largely overlooked. The controversy sheds light, however, on the nature of admissibility proceedings in the ICC and the procedural rules that should apply in that context.

Libya and the Prosecutor agreed that the burden of proving that there is an ongoing investigation or prosecution of the case falls upon the State challenging the admissibility of the case, according to a “balance of probabilities” standard. The Prosecutor submitted that because the State has superior access to the relevant information, the State bears the burden of proving inadmissibility with respect to both limbs of the complementarity test (namely, that proceedings are ongoing in the State, and that the State is willing and able to genuinely investigate and prosecute). Libya disagreed. It argued that the burden of showing that proceedings were…

Weekday News Wrap: Monday, August 5, 2013

by Jessica Dorsey

Events and Announcements: August 4, 2013

by Jessica Dorsey

Events

  • A conference to mark the 70th anniversary of the War Crimes Commission is being held September 10-11, 2013 at SOAS in London entitled: Reinforcing Human Rights Standards: Lessons from the United Nations War Crimes Commission. You can register here.
  • The Moot Court Association of Government Law College in association with the D.M. Harish foundation is pleased to announce the 15th D.M. Harish Memorial- Government Law College International Moot Court Competition, scheduled to be held from February 6-9, 2014. More information can be found here. The schedule can be found here, the registration information here and a list of past participating institutions here.

Announcements

  • The Institute for National Security and Counter Terrorism at Syracuse University is offering Cybersecurity Law & Policy Online, a fully online course for those working on information assurance, safe harbor, IT risk, and similar topics. The course runs from Sept. 23 to Nov. 10, 2013. Application deadline is Sept. 16, 2013.
  • The British Institute of International and Comparative Law presents International Law in Practice on Sept. 23-26, 2013. The course will provide a broad introduction to key issues in international and comparative law – from public to private and from commercial to human rights. For more information  contact the BIICL Events team at eventsregistration[@]biicl.org or call +44 (0)20 7862 5168.
  • Third Annual Junior Faculty Forum for International Law has been announced. The Forum is designed to assist junior faculty, i.e., those within the first six years of their academic careers, with their research by staging an annual competition in which six to nine individuals will be selected and asked to make presentations to the Forum in a given year: these presentations will then be paired with senior international legal scholars, who will comment on each of the presentations given to the Forum, so that the papers are eventually worked up and prepared for publication in the European Journal of International Law. The third Forum will be convened at the University of Melbourne on July 7, 8 and 9, 2014. The deadline for submission of applications is December 1, 2013. Further particulars of the process are now available on the website here.

Call for Papers

  • Abstracts are invited for the Edinburgh Postgraduate Law Conference, to be held December 2-3, 2013 at the University of Edinburgh, UK. The conference aims to provide a forum for postgraduate students to present and receive feedback on their work and to network with other researchers working in their area. The theme of the conference is “Law, Individual, Community”. We invite papers from all areas of law and related fields, including but not limited to commercial law, constitutional law, criminal law, critical approaches to law, human rights, intellectual property law, international law, legal theory, and medical law. Abstracts of no more than 300 words and 3-5 keywords are to be submitted to EdLawPhDConference [at] gmail [dot] com, together with a short biographical note (approx. 100 words) on the author. The deadline for submitting abstracts is August 15, 2013. Selected participants will be notified by early September.
  • The AALS Section on International Law has issued a call for papers for its program at the AALS 2014 Annual Meeting in New York City. The topic is International Law-Making and the United Nations. The call is here and the deadline for submission is September 10, 2013.
  • The 9th International Conference on Cyber Warfare and Security will be held at Purdue University, in West Lafayette Indiana on 24-25 March. The conference aims to attract researchers from around to globe to discuss various aspects of cyber warfare and security. The call for papers closes on the 2nd September and the full call for papers can be see here.
  • The Editorial Board of Comparative Constitutional Law & Administrative Law Quarterly (CALQ) is inviting submissions for Vol.1 No.3 from legal academicians, professionals and students.The submission deadline is September 30, 2013 and more information can be found here.
  • For the Journal on the Use of Force and International Law, a new peer-reviewed journal covering all aspects of the law governing the use of force (jus ad bellum), as distinct from other areas of international law relating to security issues, such as International Humanitarian Law or International Criminal Law, a call for papers has been issued. For more information, click here. The first deadline for submission is January 31, 2014 for papers and 28 February 2014 for book reviews.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

NASA Visualization of Temperature Anomalies, 1880-2010

by Kevin Jon Heller

Yikes.

Weekend Roundup: July 17 – August 2, 2013

by An Hertogen

This week on Opinio Juris, Kevin continued his discussion of the al-Bahlul amicus brief started last week. He pointed out how the Prosecution had disclaimed JCE before the trial and the military commission was asked not to consider this mode of liability, making its invocation in the amicus brief unacceptable in his opinion. Kevin pointed out that JCE was also rejected in Khadr, and recommended a student note on material support for terrorism and JCE. He also responded to Peter Margulies’ reply and sur-reply over at Lawfare. In a guest post, David Frakt, who was detailed as al-Bahlul’s military defense counsel, pointed out a factual error in the amicus brief.

Our Emerging Voices symposium returned after last week’s break: Leslie Schildt posted about the UN’s Intervention Brigade in the DRC; Frances Nguyen argued that “forced marriage” should be taken out of the “other inhumane acts” box and be recognized as an international crime; and David Benger wrote on the limits of the ICC’s Regulation 55.

Kevin discussed how mainstream US media are focusing only on Wikileaks but ignoring how the NYTimes also published the documents leaked by Bradley Manning. Following Bradley Manning’s conviction for espionage, Kevin corrected a common misperception about the meaning of “bad faith” in the Espionage Act. He also updated us on Libya’s latest admission that it intends not to cooperate with the ICC, and added that Libya’s representative is arguably in violation of the ICC’s Code of Professional Conduct. Kevin will not be updating us anymore on Crossing Lines though.

As always, we listed events and announcements and provided weekday news wraps.

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

Emerging Voices: Bemba as a Watershed in Judicial Discretion at the ICC–The Limits of Regulation 55

by David Benger

[David Benger is a student of Political Science at Brandeis University and International law at the Grotius Center for International Legal Studies at the University of Leiden. David can be reached at dabenger [at] gmail [dot] com]

One of the central debates surrounding the International Criminal Court has been the battle between the rights of the accused and the interests of justice. This discussion has been central to the International Criminal Justice field from its inception. Many argued, for example, that the system of due process at the International Military Tribunal in Nuremberg was flawed and that the verdicts were simply rubber stamped Victor’s Justice. Others felt that a fair trial was more than the defendants deserved and that they should have been all summarily executed. International Criminal law has come a long way since then, but the core of the question still stands: Is it possible to have a fair trial when the stakes are so high? At the International Criminal Court, one of the pivot points of this debate has become a rule called Regulation 55 of the Regulations of the Court.

Regulation 55 is a rule which allows judges to provide notice that they may revise the charges presented in the Confirmation of Charges document in light of changed circumstances as the trial progresses. This is called “recharacterization,” and it has emerged as a highly controversial element of the Lubanga, Katanga-Ngudjolo, and Bemba trials. [For a more comprehensive analysis of the roots of Regulation 55, I strongly recommend the Open Society’s analysis].

Proponents of Regulation 55 have argued that it closes impunity gaps inherent in the new and relatively untested jurisprudential cannon of the ICC, while opponents argue that it infringes on the fundamental fair trial rights of the accused (namely, the right “to be informed promptly… of the charge” under article 67(1)(a) of the Rome Statute of the ICC).  In these historic first ICC cases, the contextual elaboration of such rules will have an impact on the shape of the Court’s work in all that follows. In this post, I argue that though Regulation 55 was originally drafted to serve the ICC’s mission of ending impunity, its application, in the case against Jean Pierre Bemba Gombo in particular, has exceeded the scope of its aims.

One of the primary motivations for creating Regulation 55 was the fear that “the Prosecutor will burden the Chambers of the Court with an overload of alternative or cumulative charges in order to avoid risk of acquittal” (C. Stahn). Essentially, there was apprehension about the possibility that an overzealous Prosecutor would ‘throw the book’ at an accused in order to increase the chances of conviction. This would lead to a lengthy, expensive, and taxing trial which might violate the accused’s right to a trial “without undue delay” (Article 67(1)(d) of the Rome Statute).

This rule has played a pivotal role in all three of the cases that have gone to trial at the ICC so far. In the Lubanga trial, the Victims’s Representative filed an application to…

Crossing Lines S01E07 (“Animals”)

by Kevin Jon Heller

After much agonizing,I have reluctantly decided to discontinue my weekly analysis of Crossing Lines. Sadly, the last two episodes of the show have almost scrupulously avoided the ICC; mentions were limited to throwaway dialogue (“I’m with the ICC”) or logos on computer screens. Even worse, the most recent episode featured a brief but completely accurate discussion of the Rwandan genocide in 1994. The show has simply made it too difficult for me to continue in my self-appointed role as protector of all things ICC.

That said, I will continue to watch the show. I actually think, ICC silliness aside, that it’s quite good. Last night’s episode, in which the Bill Fichtner character found himself in the middle of a bank robbery being carried out by anti-capitalist anarchists, was extremely well written (except for a line about the lead bank robber turning to “organised anarchy”), gratifyingly complex, very well acted, and beautifully shot. In general, the acting on the show is excellent (no small feat, given many of the actors are not native English speakers) and production values are much higher than on your average American drama. The show must have a very healthy budget.

I do, of course, reserve the right to restart my weekly analysis, should future episodes of Crossing Lines demand it…

Weekday News Wrap: Thursday, August 1, 2013

by Jessica Dorsey