Archive for
November, 2013

Weekend Roundup: November 23-29, 2013

by An Hertogen

This week on Opinio Juris, Kevin asked why the agreement between the P5+1 and Iran is not void given that it goes against earlier UNSC resolutions prohibiting uranium enrichment by Iran. Duncan also looked at the deal, decided that it is not actually legally binding, and asked whether that mattered.

Kevin found the timing of the Bemba arrests curious and raised a word of caution about the arrests. In other ICC developments, he contrasted two Rome Statute articles with the new rule 134ter of the ICC’s Rules and Procedure and Evidence, and argued that the new rules are unlikely to survive judicial review. He also welcomed the DOJ’s reported, although not yet formalised, decision not to prosecute Julian Assange.

Craig Allen contributed a guest post about ITLOS’ order for the release of the Arctic Sunrise and the remaining Greenpeace protestors held by Russia. Julian followed up on this with a post discussing the likelihood of Russian non-compliance. Julian also updated us on the latest developments in the East China Sea.

Finally, Jessica listed events and announcements and wrapped up the weekly news.

Thank you to all our readers for the very lively comments this week. Have a nice weekend!

Will the New RPE 134 Provisions Survive Judicial Review? (Probably Not.)

by Kevin Jon Heller

The Assembly of States Parties (ASP) has adopted three new rules of procedure — RPE 134 bister, and quater — designed to minimize the obligation of accused to be physically present at trial. The OTP will almost certainly challenge the new rules. So will any of them survive judicial review?

Rule 134bis

Rule 134bis concerns video technology:

1.      An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present in the courtroom through the use of video technology during part or parts of his or her trial.

2.      The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question.

The fate of this provision is tricky to assess. On the one hand, virtual presence does not conflict with the various rationales the Appeals Chamber offered in Ruto for requiring the accused to be present at trial:

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

On the other hand, Art. 63(1) contemplates physical presence, not virtual presence. Art. 63(2) elaborates on the presence requirement in Art. 63(1) by permitting the Trial Chamber to remove the accused “[i]f the accused, being present before the Court, continues to disrupt the trial” — a clear indication that the drafters of Art. 63(1) were assuming physical presence when they drafted the Article. More importantly, though — and in direct contrast to the Chair of the ASP’s claim that Rule 134bis does not conflict with Art. 63(1) because “video-conference technology (VCT)… was not foreseen when the Rome Statute was drafted” — Art. 63(2) itself contemplates the use of videoconferencing, but only when a disruptive accused has been removed from the courtroom (emphasis mine)…

The Curious Timing of the Bemba Arrests

by Kevin Jon Heller

Two of the four men arrested on suspicion of witness tampering and manufacturing evidence in the Bemba case appeared before the Court today, along with Bemba himself. Not surprisingly, defence counsel for the defence counsel focused on the various ways in which the arrests will prejudice Bemba’s case:

Meanwhile, defense lawyers for the accused stated that the new charges had harmed the defense case of Mr. Bemba, whose trial for war crimes and crimes against humanity started in November 2010.

Xavier-Jean Keita, who represented Mr. Kilolo-Musamba, said the defense would write to the judge and raise questions about the timing of the new case. The defense would also “raise issues about the consequences on the main case and also talk about the involvement of the prosecution because the Office of the Prosecutor is a fully-fledged party to the main case.”

Defense lawyers also said Mr. Kilolo-Musamba’s iPad and Blackberry were seized during his arrest, yet they contained “the entire defense strategy” in Mr. Bemba’s ongoing trial.

Cuno Tarfusser, the single judge handling the case, said the items would for now remain in the custody of the court’s registry. The prosecution would only have access to seized documents and items that related strictly to the new charges.

Mr. Kilolo-Musamba, 41, deplored the “strong-arm tactics” Ms. Bensouda employed. He said allegations of forged evidence could have been dealt with during the ongoing trial rather than through an arrest warrant.

“I was surprised to be deprived of my freedom given that I spend most of my time in The Hague within the premises of [the ICC] where I have my offices,” said Mr. Kilolo-Musamba. “If she had called me in advance, I would have attended the summons.”

He said at the time of his arrest, he was coming from a meeting related to an ongoing investigation to help him to identify handwriting experts, and radio transmission specialists who were on duty in Bangui when a disputed radio transmission was made.

“That is the issue at stake,” said Mr. Kilolo-Musamba, referring to the radio transmission and contested handwriting on an undisclosed document. “It is a shame the prosecution made use of these tactics and this way harmed the defense of Mr. Bemba in the main case, which has come to an end as we were already drafting the final submissions.”

Kilolo-Musamba’s point about the timing of the arrests is a good one. Given how easy it was for the Court to apprehend the four men — a point noted by Mark Kersten — why seek their arrest now, literally days after the defence finished presenting its evidence? There is no longer any threat of witness tampering or evidence manufacturing. All that remains is for the defence is to finish the closing briefs — a phase in which the involvement of Bemba’s lead counsel and case manager will be particularly important. The arrests couldn’t have waited a few months until the briefs were written and filed?

The question, then, is what happens now. I don’t see how the Trial Chamber can continue Bemba’s trial in the absence of the two attorneys; to expect Bemba’s other attorney, Peter Haynes QC (who is excellent), to write the closing briefs by himself is unrealistic. So if the Trial Chamber cares about Bemba’s right to a fair trial, it will have to suspend the proceedings until the new allegations are resolved. We’ll see if that happens.

The ASP’s Respect for the Rome Statute

by Kevin Jon Heller

Article 51(4) of the Rome Statute:

The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute.

Article 63(1) of the Rome Statute:

The accused shall be present during the trial.

New Rule 134ter of the Rules of Procedure and Evidence:

An accused subject to a summons to appear may submit a written request to the Trial Chamber to be excused and to be represented by counsel only during part or parts of his or her trial.

Enough said.

Will Russia Comply with the ITLOS Ruling? Probably Not.

by Julian Ku

It looks like Russia is not going to comply with last week’s ITLOS ruling, ordering it to release the Arctic Sunrise and its passengers upon payment of a bond.

Russia is not going to comply with the International Tribunal for the Law of the Sea’s Friday ruling regarding the Arctic Sunrise vessel operated by Greenpeace, Russian presidential chief of staff Sergei Ivanov said.

“It will not, because we said at the very start that we are not going to take part in these proceedings,” Ivanov said on Saturday when asked by journalists how Russia will react to the Tribunal’s ruling.

Russia ratified the convention based on which this Tribunal acts with a number of reservations, which prevented it from entering these particular proceedings, Ivanov said.

“The issue will be handled not politically but legally, based on Russian law rather than someone’s political wishes,” he added.

Russia will probably stick to its legal position, which is contained in its note verbale to the Netherlands, arguing that this matter lies beyond the jurisdiction of UNCLOS dispute settlement since it is an exercise of Russia’s criminal jurisdiction in its law enforcement capacity.

Of course, as Prof. Craig Allen noted here, the ITLOS rejected Russia’s view of jurisdiction holding that an Annex VII Arbitral Tribunal would have at least prima facie jurisdiction.  This seems to be enough to justify ITLOS’s provisional measures jurisdiction.  Since such a tribunal has the power to determine its own jurisdiction (pursuant to UNCLOS Art. 288(4)), Russia’s jurisdictional position is hard to support.  It’s also annoying because just a few months ago, the world was treated to a lecture from President Putin on how “the law is still the law, and we must follow it whether we like it or not” in the midst of the Syria crisis.

Russia will not technically violate its UNCLOS obligations until Monday, December 2, the deadline for compliance with the ITLOS order.  And it is already releasing most of the Greenpeace folks on bail (leaving the country is another matter).  So it will probably work out some sort of diplomatic settlement with the Netherlands here, but it looks like complying with the ITLOS order is not in the cards.  As this Russian law professor explains,

“If Russia refuses to fulfill the requirements of the International Tribunal for the Law of the Sea regarding the Greenpeace case, it will not entail any sanctions. International law does not provide punishment for insubordination,” Labin said.

I don’t want to overstate the significance of this incident, but if Russia fails to comply (unlike Ghana earlier this year) and does not participate in the Annex VII arbitration (per the China example) either, this is another serious problem for the future effectiveness of UNCLOS dispute settlement.

Even in Defeat, the DOJ Is Petty Regarding Assange

by Kevin Jon Heller

According to the Washington Post, the Department of Justice has essentially decided against trying to prosecute Julian Assange for publishing the Chelsea Manning documents:

The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

The Obama administration has charged government employees and contractors who leak classified information — such as former National Security Agency contractor Edward Snowden and former Army intelligence analyst Bradley Manning — with violations of the Espionage Act. But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

If true, this is very good news indeed. Some of us have been pointing out for a very long time that if publishing classified documents is espionage, Bill Keller deserves to be in the dock just as much as Julian Assange.

Note, though, the clear distinction the DOJ spokesman draws between Julian Assange and “journalists.” Assange is no less a journalist than Mark Mazzetti — and a far better one than, say, Judith Miller. To claim otherwise is just petty.

ITLOS Orders Russia to Release ARCTIC SUNRISE and its Greenpeace Protestors

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

The International Tribunal for the Law of the Sea (ITLOS) dealt a blow to the Russian Federation on November 22nd, when it ordered Moscow to release the Arctic Sunrise and the remainder of the Greenpeace protestors who were on the vessel when Russia seized it on September 19, 2013.  Shortly after the tribunal’s decision was announced, however, the Voice of Russia reported that the Russian government does not intend to comply with the order.

The case is the Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation), ITLOS Case No. 22, Provisional Measures, Order of Nov. 22, 2013. The tribunal’s order, which is conditioned upon the Dutch government posting a €3.6 million bond or bank guarantee, was signed by Shunji Yanai, president of ITLOS, on behalf of 19 ITLOS judges. Two judges dissented: Vladimir Golitsyn of Russia and Markiyan Kulyk of Ukraine. In addition, separate opinions were issued by Judges Jesus and Paik individually, along with an important joint separate opinion by Judges Wolfrum and Kelly. …(Continue Reading)

Weekly News Wrap: November 25, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East

Asia

Africa

Europe

Americas

Meanwhile, China Draws a Provocative, Dangerous, But Perfectly Legal Air Defense Identification Zone in the East China Sea

by Julian Ku

£¨Í¼±í£©[¶«º£·À¿Õʶ±ðÇø]¶«º£·À¿Õʶ±ðÇø»®ÉèʾÒâͼI don’t have any insights to offer on the big news this weekend, that legally-non binding-UNSC-resolution-violating agreement in Geneva.  But I did want to note one other big sort-of-law news item from the other side of the world: China’s announcement that it is drawing an Air Defense Identification Zone (ADIZ) in the East China Sea, including over the disputed Diaoyu/Senkaku Islands.

China’s announcement has riled up both Japan (which has declared it “totally unacceptable”) and the United States (which has expressed “deep concerns.”)

Why all the fuss? China’s new ADIZ appears to overlap with Japan’s own ADIZ in some crucial places (like the Senkakus/Diaoyu) as well as South Korea’s and Taiwan’s.  China has declared that aircraft entering its ADIZ must report flight information to Chinese authorities (actually, its military) and (here’s the scary part), “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.”  The U.S. is already hinting that it will test this resolve by flying aircraft through the ADIZ.  (Wonder which lucky US pilot draws that mission!)

Although provocative and dangerous, it seem clear to me that China’s ADIZ does not violate international law.  Indeed, China’s Foreign Ministry was perfectly correct today in its claim that its ADIZ is consistent with “the U.N. Charter and related state practice.”  Countries (led by the U.S.) have long drawn ADIZs beyond their national sovereign airspace as a measure to protect their national airspace.  This practice, although not exactly blessed by any treaty, does not appear to violate either the Chicago Convention or UNCLOS.  (See Peter Dutton’s very solid review of ADIZs here in the American Journal of International Law for a good discussion on this point).

If China has sovereignty over the Diaoyu Islands, then it is perfectly legal for it to declare an ADIZ beyond those islands to protect the airspace above those islands.  It is a little less clear why China needs the rest of the ADIZ, but it is presumably aimed at protecting its national airspace.  The U.S. State Department has already offered China an interpretive out of creating unnecessary conflict:

The United States does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace. We urge China not to implement its threat to take action against aircraft that do not identify themselves or obey orders from Beijing.

Now the accuracy of this description of US practice could be questioned, but it is probably right. In recent years, the U.S. has allowed Russian bombers to fly through its ADIZ over Alaska.  If China follows this practice, this could help a great deal to diffuse tensions. One can only hope. Early signs are not promising,as China has essentially told the U.S. to shut up and butt out of this issue.

The New Iran Deal Doesn’t Look Legally Binding. Does it Matter?

by Duncan Hollis

A flurry of news today over the announcement that Iran has cut a deal with six major world powers — the Permanent 5 members of the UN Security Council — the US, Russia, China, France and the UK — plus Germany.  The text of the ‘Joint Plan of Action’ is also widely available (see here or here).

My first reaction on looking at this ‘deal’ is that it’s not legally binding under international law.  Look at how the Preamble begins:

The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful. Iran reaffirms that under no circumstances will Iran ever seek or develop any nuclear weapons….

The ‘goal’ implies something aspirational rather than required.  The big-ticket commitment that Iran won’t seek or develop nuclear weapons is also referenced as a ‘reaffirmation’ rather than an affirmative commitment via this text.

Similarly, the operative paragraphs maintain an emphasis on avoiding language of legal intent:

Elements of a first step

The first step would be time-bound, with a duration of 6 months, and renewable by mutual consent, during which all parties will work to maintain a constructive atmosphere for negotiations in good faith.

Iran would undertake the following voluntary measures:

  • From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line
  • Iran announces that it will not enrich uranium over 5% for the duration of the 6 months. . . . .

*********
In return, the E3/EU+3 would undertake the following voluntary measures:

  • Pause efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to  purchase their current average amounts of crude oil. Enable the repatriation of an agreed amount of revenue held abroad. For such oil sales, suspend the EU and U.S. sanctions on associated insurance and transportation services.
  • Suspend U.S. and EU sanctions on:
    • Iran’s petrochemical exports, as well as sanctions on associated services.5
    • Gold and precious metals, as well as sanctions on associated services.
  • · Suspend U.S. sanctions on Iran’s auto industry, as well as sanctions on associated services . . .

(emphasis added)

Note the operative verb in these paragraphs is ‘would’ not ‘shall’ (which everyone would agree connotes an intention to be legally bound) or even ‘will’ (which the United States often uses to convey a legal intent even through the British and several other countries insist signals an agreement meant to have political, in lieu of legal, force).

To further emphasize the political and non-legally binding nature of this agreement, note the two sides emphasize that the measures listed are ‘voluntary’.  Moreover, the document is unsigned and lacks final clauses.  So, the bottom line for me . . . this isn’t binding under international law.  It’s a political commitment, not a legal one.

OK.  Say I’m right?  Why does it matter if this is not a treaty?  To be clear, there’s nothing entirely novel about concluding a major political document in a non-legal form — from the Atlantic Charter, to the Shanghai Communique to the Helsinki Accords, there are plenty of ‘big ticket’ precedents for doing major deals in legally non-binding texts.  Nor is it that political commitments are devoid of content — to be sure they can contain much that is aspirational or even puffery.  But, many political commitments can contain significant expectations of changes to future behavior and, at first glance, I’d say the Joint Plan of Action falls in the latter category.  The text is chock full of commitments both sides indicate they’ll be taking in the next six months on the path to a comprehensive settlement with respect to the future of Iran’s nuclear program.

That said, I think there are at least three significant implications of the choice of a non-treaty form for this deal.  First, I think it offers all sides flexibility – all seven parties are cloaking their expectations of what’s going to happen now behind terms that allow them to turn on a dime as necessary, either to back away from their ‘voluntary measures’ or to adjust them as all involved carefully monitor the other side’s performance.  Indeed, I expect that such flexibility was a key criterion for the sort of cooperation this deal envisages.  Second, by choosing a political deal rather than a legal one, I think the results are less credible than if they’d been done via a more august instrument like a treaty.  The treaty signals a level of commitment that just isn’t available with respect to an unsigned ‘joint plan’.   Now, maybe a major legal text wasn’t possible in the time frame all sides were working under, but I’d be surprised if any subsequent, final deal isn’t coached in a legal form given the greater credibility that accompanies those sorts of promises.

For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it.  Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures.  The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties).  Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done.  In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself.  But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion.  Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties.  I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate.  I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).

What do others think?  Am I right the Joint Plan of Action is not intended to be a treaty or an international agreement?  And do you agree that it was a means for the United States to conclude a deal without involving a Congress, at least some portion of which has been overtly hostile to any negotiations with Iran?

[Update: over at Lawfare, Ingrid Wuerth rightly calls me to task for my earlier title — referencing a ‘U.S.-Iran’ deal when there are 7 States involved — en route to discussing whether this text would’ve required congressional or Senate approval IF it was legally binding.  I’ve fixed the title accordingly and recommend readers check out Ingrid’s post.]

A Note of Caution About the Bemba Arrests

by Kevin Jon Heller

The ICC has announced that four individuals associated with the Bemba case, including Bemba’s lead counsel and case manager, have been arrested on suspicion of witness tampering and manufacturing evidence:

On 23 and 24 November 2013, the authorities of the Netherlands, France, Belgium and the Democratic Republic of the Congo (DRC) acting pursuant to a warrant of arrest issued by Judge Cuno Tarfusser, the Single Judge of the Pre-Trial Chamber II of the International Criminal Court (ICC), arrested four persons suspected of offences against the administration of justice allegedly committed in connection with the case of The Prosecutor v. Jean-Pierre Bemba Gombo. This warrant of arrest in respect of the same charges was also served on Jean-Pierre Bemba at the ICC’s detention centre, where he has been detained since 3 July 2008.

On 20 November 2013, Judge Tarfusser issued a warrant of arrest for Jean-Pierre Bemba Gombo, his Lead Counsel Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo (a member of Mr Bemba’s defence team and case manager), Fidèle Babala Wandu (a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo), and Narcisse Arido (a Defence witness).

Judge Cuno Tarfusser found that there are reasonable grounds to believe that these persons are criminally responsible for the commission of offences against the administration of justice (article 70 of the Rome Statute) by corruptly influencing witnesses before the ICC and presenting evidence that they knew to be false or forged. The suspects, it is alleged, were part of a network for the purposes of presenting false or forged documents and bribing certain persons to give false testimony in the case against Mr Bemba.

Commentators are celebrating the arrests. Mark Kersten, for example, writes that they “will likely (and hopefully) have a significant impact on the conduct of counsel – both prosecution and defence – with respect to the treatment of evidence and witnesses during trial.”

If Bemba’s lead counsel and case manager are guilty of witness tampering and manufacturing evidence, they deserve to be punished. But I’ll say this: the OTP better be right. Because if they are not — and all four arrestees are, of course, presumed innocent — the Court has deprived Bemba of his right under Art. 55(2)(c) of the Rome Statute to have “legal assistance of his choosing” and crippled his defense in the middle of trial. Lead counsel plays a critical role on a defence team, and in many ways a case manager plays an even more important role. So I have no idea what happens now with Bemba’s trial — although I suspect the Court will pretend new lawyers can simply slide into the roles previously occupied by the arrested lawyers, perhaps adjourning the trial for a month or so to give the new lawyers time to “get up to speed.”

Just curious: are the commentators celebrating the arrests willing to go on record and say that, if Bemba’s lawyers are acquitted, Bemba is entitled to a new trial when he is convicted?

Events and Announcements: November 24, 2013

by Jessica Dorsey

Calls for Papers

  • The Galway Student Law Review at the National University of Ireland, Galway is seeking submissions for Volume 5 of the Review. Submissions may be on any legal topic, whether domestic, foreign, international or transnational and may be in English, Irish or French. Submissions are accepted from students and academics alike and should be between 1,500 – 10,000 words (approximately – longer articles may be accepted with prior approval) and follow the OSCALA legal citation style. The deadline for receipt of submissions is 1st January 2014. Please include ‘GSLR Submission’ in the subject section of the email. Submissions should be emailed, in .doc or .docx (Word) format to galwaystudentlawreview [at] outlook [dot] com. Please consult the Review’s website for the full submission criteria before submitting. These criteria can be found here. Please direct all queries to the Editor-in-Chief of the Galway Student Law Review at galwaystudentlawreview [at] outlook [dot] com.
  • The Hague Yearbook of International Law has issued a call for submissions for its 2013 volume, which you can find here. The deadline for submission is 1 January 2014. All submissions should be written in English or French, in MS WORD compatible format and delivered by email to the Editorial Board: hagueyearbook [at] gmail [dot] com. All submissions must be original and unpublished. All submissions should conform to the “Authors’ Instructions”, which is available here.

Events

Announcements

  • The Inter-American Human Rights Moot Court Competition is a unique trilingual (English, Portuguese, and Spanish) competition established to train law students how to use the Inter-American human rights legal system as a legitimate forum for redressing human rights violations. The 19th Annual Competition will take place from May 18-23, 2014 in Washington, DC and the theme of the Competition is Human Rights and Persons with Disabilities and International Human Rights Law. Since its inception in 1995, the yearly Competition has trained over 2500 students and faculty participants from over 252 universities throughout the Americas and beyond. Written on a cutting-edge topic currently debated within the Inter-American system, the hypothetical case operates as the basis of the competition, and students argue the merits of this case by writing legal memoranda and preparing oral arguments for presentation in front of human rights experts acting as the Inter-American Court of Human Rights. To learn more about the Competition, please visit the website.

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

Why Is the New Agreement Between P5+1 and Iran Not Void?

by Kevin Jon Heller

A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran’s uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a “right” to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT):

Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of this Treaty.

Ryan disagreed, arguing that any such “right” in the NPT has been superceded by a series of Security Council resolutions — beginning with Res. 1696 in 2006 — demanding that Iran cease its enrichment activities. In defense of his position, Ryan cited a number of eminent non-proliferation scholars, such as Larry D. Johnson, a former Assistant-Secretary-General for Legal Affairs at the United Nations:

While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.

I think Ryan are Johnson are right that the “inalienable right” guaranteed by Iran’s ratification of the NPT is nullified — at least for now — by the various Security Council resolutions. So here is my question: why is the just-announced agreement between P5+1 and Iran not void ab initio for the same reason? SC Res. 1737 categorically prohibits Iranian uranium enrichment (emphasis mine)…

Weekend Roundup: November 9-22, 2013

by An Hertogen

This fortnight on Opinio Juris, Julian shared his impressions of the Asian Society of International Law Biennial Meeting in New Delhi, and summarized his unofficial notes on Judge Xue Hanqin’s personal comments regarding China’s non-participation in the UNCLOS arbitration started by the Philippines. Peter, meanwhile, was at the 2013 Emma Lazarus Lecture and found much to agree with in Jagdish Baghwati’s proposals for state, as opposed to federal, powers in immigration reform.

Peter later alerted us to Somalia’s ratification of the Children’s Rights Convention. This of course leaves the US in a peculiar position, and a rather more peculiar one than regarding the Minamata Convention on Mercury for which it became the first nation to deposit its instrument of acceptance, as Duncan pointed out in a post raising three questions about the acceptance process and the exclusion of the Senate.

Kristen discussed Saudi Arabia’s unprecedented decision to reject the UN Security Council seat within 24 hours of its election. In other news from the Middle East, Kevin outlined why it is not surprising that Syria is destroying its chemical weapons.

Kevin also analysed whether the ASP can change the ICC’s RPE to allow Kenyatta to attend his trial via video-conference, but argued that the relevant Rome Statute provision is too clear to be circumvented by amending the RPE. He also got his hands on two proposed amendments to examine in more detail.

We teamed up with the Leiden Journal of International Law this week to bring you a symposium on their two most recent issues, introduced here by Dov Jacobs. On the first day, Gabriella Blum and Christopher Kutz discussed Janina Dill’s essay “Should International Law Ensure the Moral Acceptability of War?”. Janina’s reply is here. The second article, on Diplomatic Asylum and the Assange Case, by Maarten Den Heijer, was discussed by Gregor Noll and Roger O’Keefe, with a reply by Maarten. On Wednesday, Piet Eeckhout and Erika de Wet discussed Devika Hovell’s proposals in A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-MakingYou can find Devika’s response here. Finally, Brad Roth defended his concept of self-determination against Zoran Oklopcic’s challenge in “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary”. The debate continued in Zoran’s reply.

In other guest posts, Paul Williams and Roushani Mansoor argued that the Bangladesh War Crimes Tribunal is not just about justice, but also about transforming Bangladeshi national identity, and James Stewart wrote on his research on corporate war crimes.

For those of you who want to read more, Kevin announced the publication, including in open access format, of his edited volume with Gerry Simpson on The Hidden Histories of War Crimes Trials.

Finally, Jessica and I listed events and announcements (1, 2) and Jessica wrapped up the news (1, 2).

Have a nice weekend!

Somalia to Ratify Children’s Rights Convention (You Know What That Means)

by Peter Spiro

Not otherwise newsworthy. . . except that it makes the US the only country in the world that will not have ratified it (full list of accessions here). It’s a glaring manifestation of American exceptionalism, and not in a good way.

With the Disabilities Convention making another go of it in the Senate, perhaps the US could turn the corner on its problem with human rights treaties (Bob Corker is wobbling, would be a key switch to yes). Holding out in complete isolation will increasingly be of symbolic value only, catering to a shrinking minority of Boltonite international law nay-sayers, as universal treaty norms move into the realm of customary law and creep in through other channels.

LJIL Symposium: A Response to Professor Brad R. Roth on (Empty?) Promises of Self-Determination

by Zoran Oklopcic

[Zoran Oklopcic is an Associate Professor of International Law at Carleton University in Canada. He focuses on self-determination, popular sovereignty in theory of constitutional law and on the theories of secession and territorial rights]

I am grateful to Professor Brad Roth for engaging with my article, “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary”. In his response, Roth embraces my understanding of his account of self-determination as “emptied” of normative content, and, in fact, insists on rejecting projects that would seek to give it a more precise normative meaning.

In other words, it is less so that my argument misses the target, than that his ‘emptied’ understanding of self-determination is robust enough to sustain a political critique. I say ‘political’, because the norm of self-determination is not just an object of legal exegesis; its understanding, perhaps more than any other norm of international law, betrays a particular political vision, not only of state-formation, but of the political ordering of the world as well.

My project was not to offer a new jurisprudential reading of self-determination, nor to insist that the accommodation of nationalist pluralism must be reintroduced as part of “external” self-determination’s promise. In reading Roth’s, Cohen’s and Krisch’s recent contributions primarily as political theories of pluralism with an emancipatory promise, I was more interested to argue that global pluralist commitments have, in the past, been accompanied by global or regional political visions that have sustained them, and which have provided space for the recognition and accommodation of ethnocultural pluralism. For example, demands for the accommodation of national or racial diversity in some cases, such as in French West Africa in the 1950s, initially took the form not of external self-determination, but rather of the wholesale constitutional transformation of transcontinental empires, in a way in which it would have increased, if successful, the political stake of the imperial ‘periphery’ in the constitutional affairs of the metropole.

I hasten to add that from a doctrinal point of view, there is little to disagree with Roth. Continue Reading…

LJIL Symposium: In Defense of a (Relatively) “Empty” Conception of Self-Determination

by Brad Roth

[Brad R. Roth is a Professor of Law at Wayne State University in Detroit, Michigan, where he teaches international law, comparative public law, and political and legal theory]

In “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary,” Zoran Oklopcic gives an enlightening account of a set of related approaches to the international norm of self-determination of peoples.  In this rendering, I have the honor of being cast as the representative of “Empty”:  that is to say, my approach to international legal pluralism “empties” the self-determination norm of the contents that might otherwise be supplied by ethno-nationalism or by “the democratic ideal of the consent of the governed.”  Although the expression had not occurred to me, I am pleased to defend – indeed, perhaps, to insist on – an “empty” conception of self-determination in preference to the alternatives on offer.

In a superficial sense, the term “self-determination” necessarily implies an emptiness as to the substance of what is determined; otherwise, the determiner would not be the “self.”  Yet on closer examination, externally-dictated substance inevitably creeps into the emptiness. The self-determination formula generally withholds judgment about what should count as legitimate public order in particular territories, but in addressing myriad local political struggles – struggles not only over what is determined, but over the delimitation of the self – it nonetheless deviates from impartiality in two ways.
Continue Reading…

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration [Updated]

by Julian Ku

xue

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.

 

Proposals for RPE 134 — and an Unsuccessful Defence of Trial By Skype

by Kevin Jon Heller

A couple of days ago, I blogged about proposals that will soon be debated at the ICC’s Assembly of States Parties (ASP) to excuse Kenyatta and Ruto from having to be physically present at trial. Colum Lynch has kindly posted the text of the two proposals, both of which would amend Rule 134 of the Rules of Procedure and Evidence (RPE). Here is the first one — which the Chair’s Compilation document does not attribute to a particular delegation, but is almost certainly Kenya’s:

4.      Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence.

There are two problems with this proposal. The primary one is that, as I explained in my previous post, it is inconsistent with Art. 63(1) of the Rome Statute, which requires the accused to be physically present at trial. Art. 51(4) of the Rome Statue provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Permitting the accused to be “present” at trial through his counsel, therefore, requires amending Art. 63(1), not Rule 134.

The other problem with the proposal is that it does not even purport to generally redefine the meaning of presence in Art. 63(1). Even if presence could be redefined through the RPE, there would be no justification for excusing only sitting heads of state from physical presence at trial. There is thus little doubt that the proposal is nothing more than an instrumental attempt by Kenya to get around Art. 63(1).

The second proposed amendment to Rule 134 is more interesting…

Bhagwati in Foreign Affairs on Bottom-Up Immigration Reform

by Peter Spiro

Columbia University’s Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue. The piece served as the basis for Bhagwati’s delivery last week of the 2013 Emma Lazarus Lecture, co-sponsored by Columbia Law School and its School of International and Public Affairs. I was delighted to serve as a discussant for the lecture.

Bhagwati makes two basic points in the piece: that federal policy on undocumented immigrants is inhumane in an unfixable way, and that the more promising vehicle for advancing rights is through competition among the states. We should, in other words, give up on Washington and look to state capitals by way of moving forward on immigration reform.

Count me in. As Bhagwati points out (the reflexes of many immigrant advocates notwithstanding), the federal government, even under Democrat presidents, is capable of great cruelties when it comes to the treatment of undocumented aliens. The Obama Administration has deported a record number of non-citizens, many of them for trivial crimes. The Senate’s version of immigration reform includes a ridiculous increase (by almost everyone’s estimation) in the border security budget. Anyone assuming that comprehensive immigration reform will be friendly to immigrant interests has history to argue against.

The states, meanwhile, will see the error of their ways in treating undocumented immigrants badly. If undocumented immigrants feel unwelcome, they will leave for more hospitable jurisdictions. That by itself will harm a state’s economy — witness the crops left rotting on the vines in Alabama after it enacted the draconian HB 56 in 2011. Greater harm results from a tarnished brand. After Arizona enacted SB 1070, it lost tens of millions of dollars in convention and tourism dollars (Mexico issued a travel advisory cautioning against travel there). It can hardly help Alabama’s future efforts to attract big-ticket foreign investment after it locked up German and then Japanese auto manufacturing executives for possible violations of its law.

Hence the very real possibilities of “race to the top” federalism in the immigration context.

Even in the wake of the Supreme Court’s decision last year in Arizona v. United States, which gutted SB 1070, the states have room to differentiate their treatment of undocumented aliens. States can adopt their own sanctions regimes against those who employ undocumented workers. They are free to grant or deny in-state tuition to undocumented alien college students. They can grant or deny drivers licenses to the so-called childhood arrivals insulated from deportation as a matter of Obama administration policy. They can grant or deny other state public benefits to undocumented aliens. (The most recent example: whether an undocumented immigrant is eligible to practice law.) Finally, they can adopt (or not) the kind of “papers, please” measure that the Supreme Court upheld in the Arizona case.

But this discretion is mostly at the margins. For the states to play a central role in immigration reform, they’ll need more regulatory space. That will require federal activation. Devolving power to the states itself might grease the wheels to securing comprehensive immigration reform in Washington, allowing federal legislators to pass the buck downstairs. . . .

LJIL Symposium: A Response to Professor Eeckhout and Professor de Wet

by Devika Hovell

[Devika Hovell is a Lecturer at the London School of Economics]

Academics should be in the business of proposing new ideas, though it is only through close scrutiny that deep truths can be winnowed from deep nonsense. I am very grateful to the LJIL and Opinio Juris blog editors for providing the opportunity for closer scrutiny of the ideas in my article, ‘A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-making’. I am particularly grateful to Professor Eeckhout and Professor de Wet for their generous and insightful engagement with these ideas. I respond to their comments below.

The main idea motivating the article is that it may be necessary to re-conceptualize the judicial function of domestic and regional courts when courts engage in the review of decision-making by international institutions such as the Security Council. Never has this been more evident than in the wake of the decision by the European Court of Justice in Kadi II where the Grand Chamber assumed the power to engage in the ‘full review’ of sanctions listings by the Security Council Sanctions Committee, including a determination as to whether the reasons for sanctions listings by the Council were well founded in fact. I argue that the assumption of such authority by courts to review decisions sourced in international institutions could be regarded as a move as revolutionary as Marbury v Madison and equivalent kairotic moments across domestic jurisdictions. It is not a move that should be made without significant thought being given to the legitimizing foundations of judicial authority in this context. When domestic and regional courts engage in such review, they cannot ignore the broader system in which they operate and the powers and limitations of the domestic judiciary as defined within that broader system. In particular, I argue that two traditional features of the domestic judicial function, namely (1) the notion of bindingness (restricting courts to the application of existing binding law) and (2) the use of hierarchy (as a description of the relationship between judicial and political organs as in judicial supremacy or parliamentary sovereignty) can prove problematic when applied to the review of international decision-making. I argue for a reconceptualization of the judicial function in these circumstances: in brief, domestic courts should recognize that they have enhanced power in this context stretching beyond law enforcement to law-making, though more limited authority in the sense that the persuasive value of their decisions is more important than their binding nature. Domestic courts engaging in review of Security Council decision-making play a valuable role, but their role is not the traditional one of acting as ‘transmission belts’ for domestic law. Instead, domestic courts act as ‘junior partners’ in a broader collaborative enterprise to determine legal principles applicable to international decision-makers.
Continue Reading…

LJIL Symposium: A Comment on Devika Hovell’s “A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making”

by Erika de Wet

[Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law, University of Pretoria, as well as Professor of International Constitutional Law, Universiteit van Amsterdam.]

The article has a refreshing perspective on the relationship between courts and the UNSC in a decentralized international legal order. Devika aptly notes ‘that the reliance by (domestic) courts on a public law model of the judicial function has served to distort and fragment applicable international law’ [p 580]. She tries to find middle ground and an appropriate place for the judicial function through what she refers to as the ‘dialogue model’ [p 590]. In accordance with this model, domestic courts can either (i) invalidate UNSC resolutions, (ii) interpret them in a human rights friendly way (iii) declare resolutions incompatible with human rights, or (iv) abstain from review [p 594]. She favors option (ii) and submits that the ECtHR’s Nada-decision in 2012 is ‘the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions’.

My current response tests this assertion and is based on a more extensive appraisal of the Kadi and Nada decisions entitled: ‘From Kadi to Nada: judicial techniques favoring human rights over United Nations Security Council sanctions’. The response concludes that while a human rights friendly interpretation indeed has the potential of being less fragmentary it also has its limitations in this regard. At the outset, it needs to be pointed out that no court or other governmental organ can ‘invalidate’ UNSC decisions. All that a domestic state organ (or regional organ in the case of the EU) can do is to invalidate the implementing measures, as a result of which UNSC measures will not apply (in an unqualified manner) within a specific jurisdiction. The measures themselves remain binding on the international level until such a time as the UNSC chooses to amend or withdraw them. In such a situation one is left with a ‘limping decision’.

Furthermore, the most influential decisions in which the implementing measures of UNSC decisions were at issue generated from regional courts and not domestic courts, namely the ECJ and the ECtHR. Whereas the former’s approach in the Kadi decisions to the conflict between the right to judicial protection and obligations resulting from UNSC decisions are comparable to that of a domestic and dualistically inclined court, the ECtHR in the Nada case attempted to find a solution through harmonious interpretation of conflicting obligations under international law.

While Devika refers to the technique of human rights friendly interpretation as ‘judicial dialogue’, I prefer to describe it as the technique of systemic integration. Continue Reading…

LJIL Symposium: Dialogue Without Hierarchy?

by Piet Eeckhout

[Piet Eeckhout is a Professor at University College London and a leading authority in EU Law and international economic law. He notes that he has been involved in the Kadi litigation on the side of Sheikh Kadi.]

Devika Hovell’s paper is an excellent attempt at conceptualising the relationship between the domestic judge and the UN Security Council (UNSC).  That relationship has come about as a consequence of the UNSC’s smart sanctions policies, which intrude in the daily lives of those which are subject to them.  Most of the significant case law is in the sphere of counter-terrorism, but the policies are wider, and also target regime members.

The attraction of Hovell’s dialogue model is that it tries to plod a much-needed middle course – or to find a sweet spot – in a triangle of three unsatisfactory options: (a) the domestic judge declines to review UNSC Resolutions or their implementation; (b) the judge reviews domestic implementation, thereby jeopardising the implementation of the resolutions; or (c) the judge arrogates to herself the power to review the resolutions under international law.  The sweet spot consists of rejecting bindingness and hierarchy, which are features of a public-law model, to the benefit of a dialogue model which urges domestic courts to employ tools of consistent interpretation and of declaration.  At most, UNSC resolutions ought to be interpreted consistently with human-rights norms, and where that is impossible the judge should do no more than issue a declaration of incompatibility, to allow the UNSC to react and adapt.

The paper is perceptive and clear, and a major contribution to the literature.  A dialogue is of course needed, and its merits are undisputable.  To craft a dialogue model, however, is less straightforward.  Continue Reading…

LJIL Symposium: A Response to Professor Gregor Noll and Professor Roger O’Keefe

by Maarten Den Heijer

[Maarten den Heijer is assistant professor of international law at the Amsterdam Center of International Law and member of the editorial board of the European Human Rights Cases (EHRC) and contributor to the Dutch Journal for Human Rights]

Praise is due to the collaboration between Leiden Journal of International Law and Opinio Juris in providing this platform for reflection and discussion – in this instance on my paper on diplomatic asylum and Julian Assange. I much enjoyed reading the responses of Gregor Noll and Roger O’Keefe and am greatly appreciative for their genuine and refreshing engagement with my arguments. I take the liberty to just briefly reflect on what I consider their most provocative points.

Although threading on different paths of reasoning, both Gregor and Roger caution against presenting the 1950 Asylum Case as still reflecting the international law on diplomatic asylum as it stands today. The primacy accorded to territorial sovereignty by the ICJ judges at that time and their framing of a grant of asylum to a fugitive from the authorities of the receiving state as necessarily constituting an intervention in the domestic affairs of that state, so they argue, beg further reflection at the least.

Continue Reading…

LJIL Symposium: Roger O’Keefe’s comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

by Roger O'Keefe

[Dr. Roger O’Keefe is a University Senior Lecturer at the University of Cambridge and the Deputy Director of the Lauterpacht Centre for International Law]

Maarten Den Heijer’s excellent and enjoyable article ‘Diplomatic Asylum and the Assange Case’ provides a welcome account of an area of international law in which vagueness and uncertainty have too long been the order of the day. On its own terms, which accept as read the International Court of Justice’s statements in the Asylum case, it is coherent and by no means unpersuasive. Whatever one might say as to the merely subsidiary role of international judicial decisions in the determination of rules of international law, it takes a certain doctrinaire obduracy or plain arrogance to dismiss out of hand what the ICJ has declared. All the same, the Court is not beyond unreflective restatement of the received wisdom, and it is not impertinent to engage in the heuristic exercise of proceeding from first principles on any point pronounced upon by the Court. One point that might profit from just such an exercise is the question of the lawfulness of the grant of diplomatic asylum by a sending state, by which is meant that state’s grant of harbour within its inviolable diplomatic premises to a fugitive from the competent authorities of the receiving state.

The starting point of any such analysis from first principles must be the Lotus presumption. A state is at liberty to do what it is not prohibited by a positive rule of international law from doing. In this light, there is no need to identify a positive right on the part of the sending state to accord diplomatic asylum. Rather, one needs to point to a positive prohibition on the practice. The two most likely sources of any such prohibition are, first, diplomatic law and, secondly, the prohibition on intervention in the affairs of another state. But it is not self-evident that either prohibits a sending state from according diplomatic asylum, at least as a general rule.

It is difficult to identify in diplomatic law a positive prohibition on the use by the sending state of the inviolability of its diplomatic premises to prevent the authorities of the receiving state from securing custody of a wanted individual. The VCDR contains no specific prohibition on the practice. Nor do the inconsistency of state practice and the ambivalence of its accompanying opinio juris suggest any such rule. Any prohibition on the practice of diplomatic asylum, insofar as it derives from diplomatic law, must be deduced from other rules of this body of international law.

The rule regularly highlighted in this regard, as it is by Maarten [at 413-4], is article 41(3) VCDR, which provides in relevant part that the premises of the mission ‘must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law’. In this regard, pace Maarten [at 413], ‘incompatible with’ plainly means ‘inconsistent with’ or, synonymously, ‘contrary to’: incompatibility is not a question simply of whether the impugned conduct ‘falls outside the scope of ordinary diplomatic functions’, whatever ‘ordinary’ may mean. In turn, the functions of a diplomatic mission within the meaning of article 41(3) VCDR are the subject of article 3(1) VCDR, which states that these functions ‘consist inter alia in’ the activities specified in subparagraphs (a) to (e). As indicated by the words ‘inter alia’, the list given in subparagraphs (a) to (e) is not exhaustive, and it is not utterly inconceivable that one of the functions of a diplomatic mission may, in appropriate cases, be the furnishing of diplomatic asylum. But be that as it may. More to the point is that the only one of the five functions of a diplomatic mission specified in article 3(1) with which the grant of diplomatic asylum could be considered incompatible is that mentioned in article 3(1)(e), namely ‘promoting friendly relations between the sending State and the receiving State’. But, contrary to what Maarten considers arguable [at 413-4], it is evident from the consistent practice of states that not every act on the part of a foreign diplomatic mission of which the receiving state disapproves is to be characterised as incompatible with the promotion of friendly relations between sending and receiving states. Something positively inimical to the interests of the receiving state is seemingly required. To this end, it is of course perfectly plausible that harbouring a fugitive from the criminal justice system or other authorities of the receiving state is to be considered an inimical act. Yet it is hard to admit that this is so unless such harbouring is itself contrary to international law. In other words, it is not easy to accept that an act in itself internationally lawful is incompatible with the promotion of friendly relations between the sending and receiving states.

This brings us to the prohibition on a state’s intervention or interference in the internal or external affairs of another state. Continue Reading…

Can the ASP Permit Trial by Skype?

by Kevin Jon Heller

As Mark Kersten discusses today at Justice in Conflict, one of the reasons the Security Council rejected Kenya’s request to defer the Kenyatta and Ruto prosecutions is that it believes the issue of their presence at trial is better addressed by the Assembly of States Parties. Here is how Mark summarizes what could happen at the ASP:

At this year’s ASP, Kenya is hoping to see a number of amendments to the Rome Statute adopted. Chief among them is a change to provisions pertaining to whether an accused (and especially a Head of State) is required to be continuously present and his/her trial in The Hague. The problem for Kenya, however, is that even if a sufficient number of ICC states parties agreed to amend the Rome Statute, those changes would only come into effect after one year. Kenyatta’s trial is due to begin in early February, less than three months from now.

Consequently, Kenya will also seek amendments to Rule 134 of the ICC’s Rules of Procedure and Evidence. In particular, the ASP will examine proposed amendments to sections pertaining to the ‘presence’ of defendants during their trial. In plain language, proposals will be made to amend this rule in order to: 1) allow a defendant to be ‘present’ during trial via “video technology” and 2) allow a defendant to be personally excused at trial but be ‘present’ during trial via his/her counsel. There is every indication that other member-states, as well as the Obama administration, are inclined to support these amendments. Crucially, and unlike the proposed changes to the Rome Statute itself, if these amendments are passed by a two-thirds majority of states parties at the ASP, they would take effect immediately. An ICC trial by Skype is emerging as a real possibility.

Mark argues that “The ASP faces two key hurdles: first, any amendments have to be consistent with the Rome Statute and, second, any amendment will have to jive with previous Appeal Chamber decisions.” I don’t think the second issue is particularly important: if the ASP amends the Rome Statute or the RPE, that amendment would presumably trump any judicial interpretation of the provision’s previous incarnation.

The first issue, however, is critical — and I don’t see how the ASP can get around the amendment provisions in the Rome Statute by amending RPE 134 instead of Art. 63(1) itself. Rule 134 says nothing about the defendant’s presence at trial; it simply establishes the procedures governing motions relating to trial proceedings. More importantly, as Mark notes, the RPE are subordinate to the Rome Statute — and Art. 63(1) specifically provides that “[t]he defendant shall be present at trial.” There is no question that “presence” in Art. 63(1) refers to physical presence; after all, Art. 63(2) provides that “[i]f the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused.” Presence also means physical presence throughout the RPE, as indicated by, inter alia, Rules 122, 123, and 124 (concerning the defendant’s presence at the confirmation hearing.)

Given the clear meaning of Art. 63(1), I don’t think the ASP can excuse Kenyatta and Ruto from being physically present at trial by redefining presence in the RPE. Indeed, I think it would be disingenuous for the ASP to try. The problem, of course, is that amending Art. 63(1) would not help Kenyatta and Ruto; as Mark notes, unlike amendments to the RPE, amendments to the Rome Statute do not immediately take effect. In fact, Mark significantly understates how long it would take for an amendment to Art. 63(1) to be activated: pursuant to Art. 121(4), non-substantive amendments come into force one year after 7/8 of States Parties have accepted the amendment, not one year after the amendment is approved by the ASP. That could take years.

We’ll see what the ASP does. Colour me skeptical, though, that the Security Council made a wise decision by punting the presence issue to the ASP.

LJIL Symposium: A Comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

by Gregor Noll

[Gregor Noll is a Professor of International Law at the Faculty of Law at Lund University in Sweden, and is an expert in International, Theory of International, and Refugee and Migration Law.]

With admirable calm and clarity, Maarten den Heijer’s text considers the relationship between territorial sovereignty and diplomatic inviolability played out in diplomatic asylum. Describing both poles as ‘legal trump cards’ in their own right, he argues the insolubility of their conflict in law. He writes ‘that the status quo, although not guaranteeing a uniform of “just” practice of diplomatic asylum, provides a befitting equilibrium between the right of the receiving and sending states’. This equilibrium, befitting or otherwise, ‘puts incentives into place for avoiding and resolving disputes by diplomatic means’. As it were, the international law of diplomatic asylum is incapable to offer more at this historical stage.

I greatly appreciate den Heijer’s ability to keep that conflict alive throughout his eminently readable text. At large, I have no quarrel with his conclusion. Yet I feel a bit hesitant to align myself fully with it yet. This is mainly for two reasons, both related to the way he tells the story of diplomatic asylum.

Continue Reading…

Guest Post: Williams & Mansoor–Bangladesh’s War Crimes Tribunal Isn’t About Justice

by Paul Williams and Roushani Mansoor

[Dr. Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University and the co-founder and President of the Public International Law & Policy Group and Roushani Mansoor is a former Fulbright-Clinton Fellow who worked in Dhaka, Bangladesh as a Special Legal Assistant for the Ministry of Law, Justice, and Parliamentary Affairs (on issues unrelated to the Tribunal). She is currently a Law Fellow at the Public International Law & Policy Group.]

Cheers met the first verdict of the International Crimes Tribunal of Bangladesh, which sentenced Abul Kalam Azad to death in absentia.  Less than a month later, shouts of “ami, tumi, Bangalee, Bangalee” – meaning “me, you, Bengali, Bengali” – echoed in the streets of Dhaka in reply to another, less popular Tribunal verdict.  The Tribunal had handed down a life sentence to Abdul Qader Molla, a punishment many Bangladeshis felt did not match the severity of Qader Molla’s crimes.  The Tribunal, mandated to try alleged war criminals from the 1971 Liberation War, aimed to bring closure to Bangladesh’s bloody birth.  These moments were not just responses to justice served, but demonstrated a transformation in the Bangladeshi national identity – a transformation in which the Tribunal, as a mechanism of justice, is playing a crucial part.

The Liberation War pitted Bengali Freedom Fighters against the Pakistani Army and local collaborators from anti-liberation groups.  These collaborators aided the Pakistani Army, executing attacks and massacring villagers.  The nine-month war secured independence for Bangladesh, but at a huge cost.  Estimates range from 300,000 to 3,000,000 killed often in gruesome ways; countless more were tortured.  Over 200,000 women were subject to rape, and as many as 10 million fled their homes towards India to escape the violence.  Over forty years later, the Tribunal operates as a domestic exercise of justice aimed at trying atrocities committed during the war.  It strives to erase the attitude of impunity and deliver justice – however delayed – to victims and victims’ families still healing from horrific conflict.

The Liberation War fought for the independence of Bangladesh, and a brand new Bangladeshi national identity was born out of this conflict, largely grounded in this struggle.  The generations who lived through the Liberation War had to fight and sacrifice for their national identity but they earned the right to call themselves Bangladeshi.  Generations born after the war are certain they are Bangladeshi – it is their birthright.  These generations, however, are struggling with the meaning of being Bangladeshi.  They are undergoing their own fight for a national identity, one that is predominately based on a war they did not witness.

The one war-related relic these generations have to hold onto is the Tribunal.  As a legacy of that liberation struggle, the Tribunal has been intrinsically intertwined with the Bangladeshi national identity.  Demand for the creation of the Tribunal began immediately after the Liberation War, and legislation creating the Tribunal was passed in 1973.  Subsequent natural disasters, political assassinations, and military coups in Bangladesh prevented the government from actually constituting the Tribunal.  However, popular support for the Tribunal did not waver.  The hope for a Tribunal was given new life during the 2008 elections where the Awami League campaigned on the promise that if elected, it would constitute the Tribunal during its term.  Winning an absolute majority in Parliament, Prime Minister Sheikh Hasina vowed to constitute the Tribunal and bring closure to the bloody birth of Bangladesh after over 40 years of waiting. Continue Reading…

LJIL Symposium: A Response to Professor Gabby Blum and Professor Chris Kutz

by Janina Dill

[Dr. Janina Dill is a Hedley Bull Fellow at the Department of Politics and International Relations and Research Fellow in Politics at Merton College, Oxford]

I am very grateful to Gabby Blum and Chris Kutz for their thoughtful comments on my paper. We agree on the fundamental challenge: killing combatants in accordance with the principle of distinction under International Humanitarian Law (IHL) is morally problematic. In my paper I engage the preferred remedy of a growing number of philosophers, which is to distinguish between individuals who are liable to being killed and those who are not. I show why it is impossible for IHL to regulate warfare accordingly. Nonetheless, I accept such an individual rights-based approach to justifying killing as morally appropriate in war. Professor Blum disagrees on the grounds that “killing in battle is not designed to be an execution”. That is, of course, true. Acts in war are an appropriate means to mete out neither moral nor legal punishment. But can we therefore dismiss as irrelevant the moral status of the individuals whose deliberate killing IHL sanctions?

The impetus behind Blum’s own proposal is the conviction that combatants’ lives are no less valuable than others’. From this acceptance that all human life is of prima facie equal value generally springs the notion that individuals have a right to their own life that they can forfeit only through their own conduct. Blum holds that in war posing a threat is enough to be subject to the threatened combatant’s right to (presumably lethal) self-defense. It has to be an actual, immediate threat, not the kind of presumed potential threat that IHL is satisfied with, but it “does not matter if someone threatening is also morally guilty, because we have a right to defend ourselves even against the morally-innocent attacker,” or so Blum argues. I do not have the space to problematize the terms innocent and guilty here, but even if the would-be defender had no involvement in bringing about the situation in which he is threatened, his right to use lethal force against a likewise completely innocent attacker would at least be questionable.

Crucially, this innocent threat/innocent defender scenario is rarely encountered in war. What if the would-be defender was guilty himself of posing a threat? The likeliest case in war is that the combatant supposedly exercising self-defense at the same time poses a threat to his attacker. Normally, in this case we decide who actually has a right to self-defense by making a judgement about the difference in moral status. That the victim of an assault uses force to fight back does not give her attacker a moral right to defend himself. If we refuse to take moral status into account and insist on the symmetry between combatants on both sides, such cases of “mutual self-defense” reduce the principle to absurdity.

I do not argue that we should change IL either to reflect the liability approach or to challenge the symmetry between belligerents. Moreover, I wholeheartedly agree with Blum that it would be legally and morally preferable if IHL allowed the killing of fewer combatants and demanded that those who can be are spared. While such proposals have met with criticism by military practitioners, they certainly raise fewer concerns of practicability than distinction according to individual liability. Yet, they do not solve the problem this paper grapples with: the fact that IHL does not and, I argue, cannot vouchsafe the protection of individual rights in war.

In his considered engagement with my paper Professor Kutz raises two questions that, in the kindest possible way, query my grasp on reality. Continue Reading…

LJIL Symposium: A Comment on Dr. Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

by Christopher L. Kutz

[Christopher L. Kutz is a Professor of Law at University of California, Berkeley, and is the Director of the Kadish Center for Morality, Law and Public Affairs]

Janina Dill has written a smart and provocative paper, providing a powerful argument against what one might call “naive moralism” in the ethics of war.  In this, she is responding to a body of recent and influential work, of which American philosopher Jeff McMahan’s writing forms the core, which has offered an individual-centered moral analysis of the rules of war, meant to supplant the state-centered view of classical Just War Theory (JWT).  Against some of the natural conclusions one might draw from a moralized theory, Dill argues that the essentially collective nature of the ethics of war should be preserved, on epistemic grounds.  In particular, the collective liability of combatants, and immunity of civilians, is best explained by the difficulty of refining a moral analysis in many plausible cases of conflict.

According to classical JWT, the ius ad bellum and the ius in bello are strictly separated, in the sense that the legality or legitimacy of the war as a whole rides independently of the liability of the individual participants in the war.  On this view, whether or not a belligerent state (and its leaders) are fighting a legal or illegal war, soldiers of those states are liable to be targeted just in virtue of their membership in the armed forces; by contrast, civilian non-combatants are immune from deliberate targeting whatever political support they have manifested for even an aggressive war.  Thus, in World War II, British and Wehrmacht soldiers stood on the same legal footing (attackable, and only liable for individual war crimes), as do pacifist British citizens and Nazi-supporting German civilians (immune from attack).  This collective, status-based approach to targetability is notably different from the individualized assessment of liability to attack that characterizes the criminal law, in which individuals are only targetable when they present particular threats to the lives or vital interests of others; and the permission to use lethal force is only granted to those defending vital interests (of themselves or others), and often not when that defense is the result of the defendant’s own wrongdoing (p. 8).

In a number of recent books and papers, Jeff McMahan has argued that there are no plausible direct moral foundations for JWT, because on any compelling moral analysis — that is, any analysis sufficiently compelling to make claims about liability to lethal attack plausible — liability must be determined by individual culpability.  And when we take individual culpability into account, it is hard to avoid the conclusion that many individual soldiers — namely those permissibly defending themselves and others — are not so liable, while many non-combatants are.  McMahan himself avoids any direct action-guiding conclusion from his analysis, because of the prospect that absent clear rules of collective distinction, too much horror will result from an attempt by combatants to make the relevant distinctions.

Dill accepts the McMahanian moral analysis, but she rejects the revisionary conclusion, that we should seek to tune our doctrines of war to more individualistic determinations.  Instead, she looks to alternative moral foundations for the collective character of war. To my mind, the most interesting aspect of a very interesting and perceptive article is her working through these alternatives.  She considers first the idea that war might nonetheless be given a consequentialist justification: that the gross principle of distinction, if applied in good faith by just and unjust belligerent nations alike, would be a “lesser evil” resulting in net fewer unjustified deaths.  But as she argues, there is no reason to think the material outcomes of current JWT do a better job than any alternative in minimizing unjustified deaths, since military victory is a consequence of material rather than moral factors.  More importantly, an individual moral analysis would result in the conclusion that aggressor soldiers should simply “keep still,” and cease presenting any threat to others.  Whatever one might say on behalf of JWT, one cannot think it approximates an outcome whose ideal case is the sudden pacifism of all of one side’s combatants, plus all of the others who are no longer at risk.

The conclusion she draws is subtle.  Dill treats as central the “epistemically cloaked” nature of the choices presented by war, where the fog of war makes individual liability determinations implausible, and the tendency of even aggressors fighting (wrongly) in good-faith belief of permissibility makes war inevitable.  In such cases, when nations turn to war, IHL properly guides actors towards morally superior outcomes, even if it does not make those outcomes defensible in absolute terms. As she says, if something is indefensible, it cannot be made defensible by epistemic considerations.  But the benefits of a rule-of-law approach to war, with over- and under-inclusive bright lines, may itself be morally valuable, in serving to constrain the overall enterprise while recognizing its systematic, i.e. Collective, character.  This is, essentially, a Razian analysis of the value of using non-moral norms to coordinate a complex multi-personal enterprise, rather than the sort of full-bore collectivist analysis that some of us have gestured at.  Regular war is less evil than irregular war, but this is a distinction to tolerate, not to celebrate.

I am in great sympathy with Dill’s discussion and conclusion, but might raise a couple of questions.  Continue Reading…

LJIL Symposium: A Comment on Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

by Gabriella Blum

[Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.]

In her rich and sophisticated essay, Janina Dill takes on the principle of distinction in international humanitarian law (IHL). She finds that while the principle obscures questions of justness (or unjustness) of cause or individual contribution to the war effort, and thus digresses from an ideal moral vision which accords each individual her dues, it is the best practicable principle in times of war. A more morally just targeting doctrine may have distinguished just combatants from unjust combatants or else ignored the combatant/civilian distinction altogether and just focused on individual contribution to the war. Yet, (un)justness of cause is mired in uncertainty (what Dill terms “an epistemically-cloaked forced choice”) and the complexity of the battlefield makes it impossible to determine individual contribution to the war. Consequently, any attempt to design a more nuanced doctrine of targeting will end up being impossible to administer and too vague to offer real guidance for belligerents, thereby violating the rule of law – a moral principle of its own. The simple principle of distinction under IHL thus ends up being, in Dill’s view, morally just on its own terms.

Dill’s arguments engage with some long-standing debates within the law and ethics of armed conflict, successfully navigating the disciplines of philosophy and law, seeking coherence within each while reconciling their potential conflict. It is impossible to do justice to the many nuances and moves in her argument in this short commentary.

Instead, I will attempt to defend my own proposal for amending the distinction principle within Dill’s framework, thereby engaging with her arguments.

Continue Reading…

Weekly News Wrap: Monday, November 18, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East

Asia

Africa

Europe

Americas

LJIL Symposium Vol 26-2 and 26-3: Introduction

by dov jacobs

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

In the upcoming days, you will find food for thought with regard to four articles featured in issues 26-2 and 26-3 of the Leiden Journal of International Law, covering a wide range of contemporary discussions in international law.

The first discussion stems from Janina Dill’s article entitled “Should International Law Ensure the Moral Accountability of War?. In this piece, the author discusses recent just war theories that argue the need of international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability by moving away from the collective dimension of protected status. The author posits that such proposal is not realizable, and suggests ways to improve the current system. In their thoughtful discussions of the article, Gabriella Blum of Harvard Law School, and Christopher Kutz of Berkeley Law, invite the author to forward her argument yet further. Specifically, Gabriella Blum suggests that individual human rights can and should be taken into account in the context of war, while Christopher Kutz questions Dr. Dill’s premise that the collective approach to war in IHL is in contradiction with the general evolution of International Law towards taking into account individual rights.

The second discussion revolves around Maarten den Heijer’s article, Diplomatic Asylum and the Assange case, where he argues that granting such asylum contradicts a number of principles of international law. Gregor Noll, from Lund University, and Roger O’Keefe, from Cambridge University, challenge the author’s premises, both in relation to his historical analysis and in relation to his evaluation of the legal framework.

The third discussion focuses on Devika Hovell’s proposals in A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making. In the article, the author discusses the ways in which domestic and regional judges (EU, ECHR) deal with United Nations Security Council Resolutions and suggests the need to go beyond the classical notions of bindingness and hierarchy.  She proposes instead a more subtle and elaborate “dialogue model”. Erika de Wet, of the Universities of Amsterdam and Pretoria, and Piet Eeckhout, from University College London, draw attention to the limits of the author’s model within the current international law structure and in context of the states’ international legal obligations. In a nutshell, the professors argue dialogue is not always possible.

Finally, the fourth discussion is an interchange between Zoran Oklopcic and Brad Roth, from Wayne State University, on the former’s challenge in “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary to the latter’s allegedly “empty” concept of self-determination. Brad Roth defends his “empty” notion of self-determination, pointing out the difficulties of actually identifying the substance of such principle.

Aside from the in-depth and engaging appraisal of the specific issues contained in the articles, the various discussions all either directly or indirectly touch upon what has historically been at the heart of international law: Continue Reading…

Events and Announcements: November 17, 2013

by An Hertogen

Calls for Papers

  • The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on Friday, February 7th and Saturday, February 8th, 2014, at the Sandra Day O’Connor College of Law at Arizona State University in Tempe, Arizona.  Authors interested in presenting a paper at the workshop can submit an abstract to David Gartner, Justin Jacinto, and Julian Arato by the end of the day on December 2. Abstracts should be a couple of paragraphs long but not more than one page. Papers should relate to the topic of international institutions and governance.  Papers should not yet be in print so that authors will have time to make revisions based on the comments from the workshop. More information is here.
  • The Transitional Justice Program at the Hebrew University of Jerusalem’s Minerva Center for Human Rights and Faculty of Law is organizing an international conference on Transitional Justice and Civil Society: Learning from International Experience. The conference seeks to explore the role of civil society in developing and implementing transitional justice processes, particularly in the context of ongoing conflicts. The conference, the third in the series of Annual Minerva Jerusalem Conferences on Transitional Justice, is scheduled for May 25-26, 2014, in Jerusalem. The deadline for the submission of proposals is December 31, 2013. Applicants should receive notification of the committee’s decision by the end of January 2014. Short drafts of 7,000-10,000 words based on the selected proposals will be expected by 1 May 2014. More information is here.

Events

  • On December 2, the Supreme Court will hear oral argument in BG Group v. Argentina, the first ever investment arbitration case to come before the Court. Prof. George Bermann, Jean Monnet Professor of European Union Law, Walter Gellhorn Professor of Law; Director, Center for International Commercial and Investment Arbitration, Columbia Law School, and Chief Reporter for the forthcoming American Law Institute, Restatement (Third) of the United States Law of International Commercial Arbitration and Ignacio Suarez Anzorena, Partner, Clifford Chance and formerly Abogado, Procuración del Tesoro de la Nación, Solicitor General’s Office, Republic of Argentina, will discuss the case and oral argument the very same day, mere moments after the argument has ended from 12:30 p.m. until 2:00 p.m. at the offices of Arnold & Porter LLP, 555 12th Street, NW, 10th Floor, Washington, D.C. (Metro Center Metro Station). Janis Brennan, Partner at Foley Hoag LLP and Vice-Chair, D.C. Bar International Dispute Resolution Committee, will moderate the program. This luncheon program is sponsored by the International Dispute Resolution Committee of the International Law Section, in co-sponsorship with The American Society of International Law Howard M. Holzmann Research Center for the Study of International Arbitration and Conciliation and the Washington Foreign Law Society, and in cooperation with the International Arbitration Committee of the American Bar Association Section of International Law and the International Committee of the American Bar Association Section of Dispute Resolution. More information and registration is here.
  • Online registration for the joint American Society of International Law (ASIL) Annual Meeting and International Law Association (ILA) Biennial Conference, to be held April 7-12, 2014, in Washington, DC, is now available here. Through January 31, 2014, registration fees are significantly discounted. For the first time, ASIL and the American Branch of the International Law Association are partnering to host the ILA Biennial Conference together with the ASIL Annual Meeting, forming a single, joint gathering, representing a unique and historic convening of the international law community. The week’s events, organized around a theme of “The Effectiveness of International Law,” will include keynotes by leading figures in the field; meetings of ILA Committees and Working Groups; more than 40 program sessions featuring panels, debates, and roundtable discussions on current issues in the field; ASIL Interest Group meetings, ASIL’s annual Women in International Law Interest Group Luncheon and Hudson Medal Luncheon; and a Gala dinner, receptions and networking opportunities.
  • The Antonio Cassese Initiative is pleased to invite you to a conference on A New Approach on Human Rights in Mexican Criminal Proceedings, in Mexico City on November 28-29, 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.

Why It’s Not Surprising Syria Is Destroying Its Chemical Weapons

by Kevin Jon Heller

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability:

I don’t really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why? I very much doubt it’s because he fears retaliation from the United States. And given his past behavior, it’s hardly likely that it’s driven by feelings of moral revulsion.

So what’s his motivation? For reasons of his own, he must have decided that he was better off without chemical weapons than with them. Perhaps it has to do with the internal political situation in Syria. Or maybe Russia got fed up for some reason. But it’s a bit of a mystery, and not one that I’ve seen any plausible explanations for.

I don’t think it’s a mystery at all. Here is the explanation:

Forces loyal to Syrian President Bashar Assad have firmly seized the momentum in the country’s civil war in recent weeks, capturing one rebel stronghold after another and triumphantly planting the two-starred Syrian government flag amid shattered buildings and rubble-strewn streets.

Despite global outrage over the use of chemical weapons, Assad’s government is successfully exploiting divisions among the opposition, dwindling foreign help for the rebel cause and significant local support, all linked to the same thing: discomfort with the Islamic extremists who have become a major part of the rebellion.

The battlefield gains would strengthen the government’s hand in peace talks sought by the world community.

Both the Syrian government and the opposition have said they are ready to attend a proposed peace conference in Geneva that the U.S. and Russia are trying to convene, although it remains unclear whether the meeting will indeed take place. The Western-backed opposition in exile, which has little support among rebel fighters inside Syria and even less control over them, has set several conditions for its participation, chief among them that Assad must not be part of a transitional government — a notion Damascus has roundly rejected.

“President Bashar Assad will be heading any transitional stage in Syria, like it or not,” Omar Ossi, a member of Syria’s parliament, told The Associated Press.

The government’s recent gains on the outskirts of the capital, Damascus, and in the north outside the country’s largest city, Aleppo, have reinforced Assad’s position. And the more the government advances, the easier it is to dismiss the weak and fractious opposition’s demands.

As I have pointed out before, the US’s obsession with chemical weapons was manna from heaven for Assad. There is still no hard evidence that Assad personally ordered the Syrian military to use chemical weapons, and it would have been suicide for anyone associated with the Syrian government to risk US military intervention by using them again. Assad thus essentially traded his strategically useless chemical-weapons capability for the right to wage a ruthless counter-insurgency with impunity. That trade has obviously worked — there is almost no chance at this point that the rebels will overthrow Assad’s government, and it is equally unlikely that Assad will ever step down as part of some kind of negotiated peace agreement. Why would he? He is winning the war, and the West has essentially lost interest in the mass atrocities he has committed, and continues to commit, against innocent Syrian civilians. Indeed, the Syrian military is now routinely using incendiary weapons to kill civilians, yet the West remains silent.

But at least Assad no longer has chemical weapons. Success, right?

Notes from the Asian Society of International Law Biennial Meeting 2013, New Delhi

by Julian Ku

I’ve made the trek this week to New Delhi to attend the 4th Biennial Meeting of the Asian Society of International Law.  I’ll be presenting a paper on my favorite subject these days: The China-Philippines (Non) Arbitration. I’ve tweeted a few not very profounds thoughts on Day One here. AsianSil is quite a different type of meeting than the American Society of International Law meetings I am used to.  It’s a bit more formal, perhaps a little more of the feel of “foreign delegates” gathering for an international conference than an academic/public policy conference.  The hosts are very generous with their time and well-organized.

More substantively, I’ve found the different interests and approaches of Asian scholars to be illuminating.  Many Asian nations, including China and India, see themselves as still part the developing world trying to navigate a world dominated by western industrialized nations.  This theme seems to inform many of the opening speeches, including that by India’s Vice President Hamid Asari.  I will try to write something useful or interesting on Day 2 when I get a chance (or a better wifi connection).

Corporate War Crimes Begin

by James G. Stewart

[James G. Stewart is an Assistant Professor at the University of British Columbia Law FacultyUntil recently, he was on the board of the Conflict Awareness Project, but had not role in this investigation.]

Something momentus happened in Switzerland last week—national prosecutors opened a criminal investigation into one of the world’s leading gold refineries, for pillaging Congolese natural recourses. Pillage, of course, is a war crime. If the case leads to a conviction, it will represent the first ever instance of corporate responsibility for an international crime, and the only time since Nuremberg that pillage of natural resources has featured in a criminal trial. In this short blog, I complement an op-ed I published about this today by setting out the background to the case, some of the legal work that I undertook with Ken Hurwitz at the Open Society Justice Initiative prior to it, and the contemporary significance of all this, especially in the wake of the Alien Tort Statute’s demise.

Argor-Heraeus is one of the world’s largest refiners of precious metals. Between 2004 and 2005, the company is alleged to have acquired approximately three tons of pillaged gold from the Congolese rebel group the Front des Nationalistes Intégrationnistes (FNI), through intermediaries in Uganda and the Jersey Islands. As the International Criminal Court heard recently in a case against one of the FNI’s alleged leaders, the armed group was a Lendu militia based in the North-East of the Congo, neighboring Uganda. According to an excellent report by Human Rights Watch, their existence was largely dependent on the extraction and sale of pillaged gold. According to these new allegations, major western producers were buying.

The reappearance of commercial responsibility for pillaging conflict commodities is a long time in the coming… (Continue Reading)

After Saudia Arabia Spurns Seat on the UN Security Council, Jordan Indicates Willingness to Assume Role Instead

by Kristen Boon

On Tuesday, Saudia Arabia made official its rejection of a highly sought after seat on the UN Security Council in a letter to the President of the General Assembly.   The letter confirmed in writing its surprise decision of October 18 (announced less than 24 hours after its election) to forgo a prestigious seat on the Council.  The letter now enables the General Assembly to start the process of filling the seat, which will be vacant come January 2014.

Saudia Arabia’s decision to reject the seat stunned the diplomatic world, and it appeared, even its own diplomats in New York.   Saudia Arabia had been campaigning for the seat for two years, and in a press statement immediately after the election (available on its Mission’s website), the Saudi Ambassador to the UN stated:

“This membership defines the absolute commitment of Saudi Arabia towards peace in the World and security in its land. It is a defining moment in the Kingdom’s history. As one of the first founding members of the United Nations, our election is much to rejoice over. We welcome the positive shift as well as challenges of being part of the Security Council body.”

The reasons for the sudden about-face appear two fold.  First, Al Jazeera reported that “The Foreign Ministry accused the Security Council of failing to end the Syrian and Israeli-Palestinian conflicts and to convene a conference on creating a Mideast zone free of weapons of mass destruction.”   Second, Saudi Arabia referred to the need for Security Council reform, stating “the manner, the mechanisms of action and double standards” prevented the Council from performing its responsibilities.”

While it is tempting to read Saudia Arabia’s rejection of the seat as a new verse in the longstanding refrain for Security Council reform, it is hard to believe this was really the motivating factor.  First, the Kingdom’s decision appears to have been taken by the King and Foreign Ministry on the spur of the moment, and was not a calculated or longstanding strategy.  Second, with the current situation in Syria, the seat gives any country in the region a leadership role, and regardless of the Council’s structure, it is curious that a powerful and influential country like Saudia Arabia with a clear interest in the conflict would decline this opportunity.  Indeed, if reform were a top priority, it would be easier to make the case as a Council member.   Finally, earlier this week, Saudi Arabia was elected to the UN Human Rights Council, suggesting it is willing to assume obligations in other spheres, but perhaps not on sensitive matters of peace and security.

Although an elected member refusing to take up its seat is unprecedented, there have been situations in the past where a seat has been vacant for short periods.  This excellent article by Security Council Report, provides a comprehensive overview of how the Security Council has handled these situations, and what potential political and legal issues follow a vacant seat.  Interestingly, foremost among the legal issues is the possibility that decisions taken by a Security Council short a member (14 instead of 15) would be open to challenge.

Jordan appears willing and able to assume the seat, and it is expected to officially announce its interest shortly.  It is expected that only a replacement from the region will step forward, because the seat vacated by Saudia Arabia is, as SCR notes in the report above,  “an Arab seat that “swings” between the Middle East countries in the Asia-Pacific Group and the countries of North Africa every two years.”  In addition, the election of non-permanent members of the Council are elected pursuant to Article 23 of the UN Charter,  which states that equitable geographical distribution is important in allocating seats.

While Jordan has not, to my knowledge, announced an election platform to date, it would be led by a formidable international lawyer, Jordan’s Permanent Representative, His Royal Highness Prince Zeid Ra’ad Zeid Al-Hussein, (who has been considered a potential contender for for the position of Secretary General).  Prince Zeid is well respected in international law circles due to his role in the ICC and his 2005 report on Sexual Exploitation and UN Peacekeepers.  The successor to Saudia Arabia’s seat would, according to the current calendar, be required to assume the role of presidency of the Council for the month of January, a momentous undertaking that requires great preparation.   Even if Jordan emerges as the sole candidate (and it is too soon to know whether this will be the case) an election would be called by the General Assembly under the normal rules, requiring a candidate to obtain a 2/3 majority.

New Book: Hidden Histories of War Crimes Trials (Updated)

by Kevin Jon Heller

9780199671144_140I am delighted to announce the publication of a new book that I co-edited with my colleague and dear friend Gerry Simpson, The Hidden Histories of War Crimes Trials. As the title indicates, the book contains a number of essays that discuss little-known trials (such as the Franco-Siamese Mixed Court)  or re-narrate better known but misunderstood trials (such as the trial of Peter von Hagenbach). Here is the table of contents:

 

1: Gerry Simpson: Introduction

Part 1: Pre-Histories: From Von Hagenbach to The Armenian Genocide
2: Gregory S. Gordon: The trial of Peter von Hagenbach: Reconciling history, historiography, and international criminal law
3: Benjamin Brockman-Hawe: A supranational criminal tribunal for the colonial era: the Franco-Siamese Mixed Court
4: Jennifer Balint: The Ottoman state special military tribunal for the Genocide of the Armenians: ‘Doing government business’

Part 2: European Histories I: Prosecuting Atrocity
5: Rosa Ana Alija-Fernández: Justice for no-land’s men? United States military trials against Spanish Kapos in Mauthausen and universal jurisdiction
6: Dov Jacobs: A narrative of justice and the (re)writing of history: French trials after World War II
7: Frédéric Mégret: The Bordeaux Trial: Prosecuting the Oradour-sur-Glane massacre

Part 3: European Histories II: Americans in Europe
8: Grietje Baars: Capitalism’s victor’s justice? Prosecution of industrialists post WWII
9: Stephen Vladeck: Eisentrager’s (Forgotten) Merits: Military commissions and collateral review

Part 4: European Histories III: Contemporary Trials
10: Benedetta Faedi Duramy: Making peace with the past: Federal Republic of Germany’s accountability for World War II massacres before the Italian Supreme Court
11: Tamás Hoffman: Trying communism through international criminal law? The experiences of the Hungarian historical justice trials
12: Rain Liivoja: Competing histories: Soviet war crimes in the Baltic States
13: Julia Selman-Ayetey: Universal jurisdiction: Conflict and contoversy in Norway

Part 5: African Histories
14: Jackson Maogoto: Reading the shadows of history: The bridges between Turkish and Ethiopian ‘internationalised’ domestic crime trials
15: Firew Kebede Tiba: Mass trials and modes of responsibility for international crimes: Ethiopia

Part 6: Southern Histories
16: Georgina Fitzpatrick: War crimes trials, victor’s justice, and Australian military justice in the aftermath of the second world war
17: Narrelle Morris: Justice for ‘Asian’ victims: Australian war crimes trials of the Japanese 1945-51
18: Peter Rush: Dirty War crimes: Jurisdictions of memory and international criminal law

Part 7: Histories of a Type: Excavating the Crime of Aggression
21: Roger Clark: The crime of aggression: From the trial of Takashi Sakai in August 1946 to the Kampala Review Conference in 2010
22: Mark Drumbl: ‘Germans are the lords and Poles are the servants’: The trial of Arthur Greiser in Poland, 1946
23: Immi Tallgren: The Finnish war-responsibility trial in 1945-56: Flawed justice, anxious peace?

You can purchase a hard copy of the book at the OUP website here. You can also — as part of an experimental OUP initiative — download a complete PDF of the book for free at either www.oup.com/uk or www.oapen.org. If you cannot afford the £70.00, by all means download the PDF.

UPDATE: The free open-access version of the book is now available on the webpage linked to above.

Doesn’t the U.S. Senate Care about Mercury?

by Duncan Hollis

On November 6, the United States signed the Minamata Convention on Mercury and deposited an instrument of acceptance indicating its consent to be bound by the treaty on its entry into force, making it the first nation to do so.  Here’s how UNEP summarizes the Convention:

The Minamata Convention for Mercury is a global treaty to protect human health and the environment from the adverse effects of mercury. It was agreed at the fifth and final session of the Intergovernmental Negotiating Committee in Geneva, Switzerland at 7 a.m. on the morning of Saturday, 19 January 2013.

The major highlights of the Minamata Convention on Mercury include a ban on new mercury mines, the phase-out of existing ones, control measures on air emissions and the international regulation of the informal sector for artisanal and small-scale gold mining.

The treaty certainly seems to address an important environmental problem with significant momentum from State participants — although opened for signature only a month ago, it has already garnered 93 signatories (of course, everyone most people know that those signatures are not the same as consent, which is why the United States took the additional step of depositing an instrument of acceptance).  The treaty will enter into force on the deposit of the 50th instrument of ratification, accession, acceptance or approval.   

What interests me about the Mercury treaty though is not just its contents — which are the latest iteration of multilateral environmental governance — but the process for U.S. acceptance.  Here’s how the State Department describes it:

The Minamata Convention represents a global step forward to reduce exposure to mercury, a toxic chemical with significant health effects on the brain and nervous system. The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority. The Minamata Convention complements domestic measures by addressing the transnational nature of the problem.

Three questions.  First, is the Administration considering this a congressional executive agreement? If so, shouldn’t they be a bit more specific about which U.S. laws authorize U.S. participation in this treaty.  In particular, it would be interesting to know if the legislation authorizes not just the regulation of mercury but U.S. participation in an international legal regime regulating mercury (I’m guessing it doesn’t).  That’s a big distinction, especially since the Obama Administration has already gotten into quite a dust-up over how it reads statutes with respect to authorizing U.S. consent to treaties (e.g., ACTA).  And if there’s no statutory authority to join the Minamata Convention, doesn’t that mean it must be a sole executive agreement?

Second, where’s the U.S. Senate in all this? As Oona Hathaway has explained there are few, if any, ways to rationally explain why certain international agreements go to the U.S. Senate for advice and consent versus those that Congress approves via ex ante or ex post legislation (let alone those that are done under the President’s sole executive powers).  Rationality aside, however, there is a long history of the Senate exercising its prerogatives over certain subject areas when it comes to giving advice and consent to treaties.  Thus, when President Bush suggested he’d not send the Moscow Treaty on arms control with Russia to the Senate, the Senate issued a non-partisan threat request that he do so . . . and the Administration changed course and obliged the Senate by sending it there.  I’d always understood multilateral environmental agreements to warrant similar treatment.  With one notable exception — the 1976 Long Range Transboundary Air Pollution Convention and its various protocols —  I believe multilateral environmental agreements have always gone through the Senate advice and consent process . . . until now.

This raises a third and final question:  Why did the Administration decide to bypass the Senate in consenting to the Minamata Convention? Perhaps the Senate indicated to the Obama Administration that they would not object to having this treaty concluded as an executive agreement?  Or, maybe the statutory authority (would love further details on what it is) is more robust than in the ACTA context.  Alternatively, I wonder, if this isn’t the Obama Administration response to the Senate’s repeated intransigence lately to approve any of the Administration’s major treaty priorities; from the Disabilities Convention to UNCLOS, the Senate’s been pretty deadlocked of late. Maybe the idea here was to send a warning shot to demonstrate that the Administration no longer feels bound to adhere to past practice when it comes to reserving certain treaty subjects for Senate attention and/or that the Administration wants to remind the Senate that it has other ways to pursue its international agenda if the Senate continues to delay or deny consent to the treaties it receives from the White House.

I’d welcome comments, especially from any readers who know more of the back story on this Convention or the U.S. approach to consenting to it.

 

Weekly News Wrap: November 11, 2013

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Middle East

Asia

Africa

Europe

Americas

Events and Announcements: November 10, 2013

by Jessica Dorsey

Events

  • The Leitner Center for International Law at Fordham University is hosting Global Rights and Local Challenges: Disability, Inclusive Education and Rural Environments, a panel discussion that will highlight the backdrops of rural poverty and educational underdevelopment as barriers to inclusion and to education for persons with disabilities. A film screening of In the Shadow of the Sun will follow the event on Friday, November 15th at Fordham Law School in New York. More information can be found here (along with a trailer for the film).
  • As a reminder, the Columbia Journal of Transnational Law, Columbia Law School Human Rights Institute, the Roger Hertog Program on Law and National Security, and the Lieber Society of the American Society of International Law present: From Gettysburg to Guantanamo: 150 Years of the Lieber Code and the Law of Armed Conflict, a conference on November 21st at Columbia Law School. Drafted by Columbia Professor Francis Lieber and signed by President Lincoln in 1863 as General Order No. 100, the Lieber Code regulated the conduct of U.S. soldiers during wartime. While the Code was limited to Union forces, the rules were based on customary law of the time and strongly influenced subsequent international codification of the law of armed conflict. The Code grappled with issues involving the regulation of armed conflicts between states and non-state groups that remain pressing today. This conference celebrating its 150th anniversary will explore the origins and import of the Lieber Code in its Civil War context, its impact on the development of international humanitarian law, and its continued significance to modern challenges in armed conflict. Confirmed speakers can be found here, the conference schedule here.

Announcements

  • The International Court of Justice wishes to appoint 2 Law Clerks each of whom will provide research and other legal assistance to one of the judges of the Court. For administrative purposes, the Law Clerks are attached to the Department of Legal Matters. Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry. More information can be found here. Deadline for submission of applications is November 15th.
  • The International Criminal Court (ICC) Moot Court Competition will take place from 19 until 23 May 2014 in The Hague, the Netherlands. The ‘City of Peace and Justice’ will welcome over 250 students from 50 universities and over 30 different countries for this large scale moot court, simulating the proceedings of the ICC. The Competition brings together students of diverse backgrounds and cultures from both Member States and Non-Member States alike, and is the perfect instrument for the development and promotion of international criminal justice. The Competition enhances knowledge about the Rome Statute, especially within countries that have yet to ratify it, and it stimulates interaction between future top legal minds originating  both from Member States and Non-Member States. Participating universities from Non-Member States this year include teams from the USA, Iran, India, Russia, Israel, China and Palestine. More information can be found here. If you have any questions, or want to become involved in the Competition, contact the organizers at grotiuscentre [at] cdh [dot] leidenuniv.nl.
  • ALMA (Association for the Promotion of International Humanitarian Law has established an Upcoming IHL events page on ALMA’s website. The web page includes information about current and future events from all over the world (divided by regions).
  • The American Society of International Law’s Lieber Society on the Law of Armed Conflict is calling for submissions for the Francis Lieber Prize. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.
    • Criteria: Any work in the English language published during 2013 or whose publication is imminent at the time of submission may be nominated for this prize. The re-submission of works which have already been considered for this prize is not allowed.  Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance.  Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
    • Age Limit:       Competitors must be 35 years old or younger on 31 December 2013. They need not be members of the American Society of International Law.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors. Submissions from outside the United States are welcomed.
    • Submission:     Submissions, including a letter or message of nomination, must be received by 20 January 2014.  Three copies of books must be submitted.  The electronic submission of articles is encouraged.  Authors may submit their own work.  All submissions must include contact data (e‑mail, fax, phone, address).  The Prize Committee will acknowledge receipt of the submission by e‑mail. Printed submissions must be sent to:Professor Iain Scobbie, School of Law, Williamson Building, The University of Manchester, Oxford Road, Manchester  M13 9PL, United Kingdom. Electronic submissions must be sent to: iain [dot] scobbie [at] manchester [dot] ac.uk. Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
    • Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2014.

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: November 2-8, 2013

by An Hertogen

This week on Opinio Juris, we brought you a healthy diet of treaties, chemical weapons, drones, and a sprinkle of terrorism.

Duncan rounded up various treaty related news items this week, and argued that US treaty practice does not have to be a zero-sum game. Peter posted about the US Senate Foreign Relations Committee’s hearings on a possible Understanding that would limit anxieties about the domestic impact of the UN Convention on the Rights of Persons with Disabilities.

The main event this week however happened across the street from the US Congress: the SCOTUS hearing in Bond v United States. Peter kicked off the conversation with the question whether Missouri v Holland has ever been used by the federal government. Julian was first out of the blocks to post his impressions of the oral argument, followed by seven observations by Marty Lederman, while Duncan was too stumped to comment on the merits due to the apparent lack of appreciation on all sides for the difference between treaty signature and ratification. Bill Dodge pointed out how the difference between a self-executing and non-self-executing treaty was also misunderstood.

Should an international treaty ban “killer robots”? Ken, in a WSJ op-ed with Matthew Waxman, argued that it should not.

From killer robots to drones: Deborah was worried about reports that the migration of targeting operations from the CIA to the Pentagon has stalled. The recent drone reports by HRW and AI were criticized by Jens Iverson who examined whether members of armed groups can be targeted and by Michael W. Lewis who argued that significant flaws undermine the reports’ objectivity and overall credibility.

Finally, Kevin mourned the premature death of the concept of terrorism, victim of overly broad definitions by Scotland Yard and the UK Terrorism Act 2000.

As every week, we listed upcoming events. You may also be interested in the Berkeley Journal of International Law’s latest issue with its symposium on Taming Globalization co-authored by John Yoo and our own Julian Ku.

Many thanks to our guest contributors and have a nice weekend!

Opinio Juris Podcast on Arguments in Bond v. United States

by Peter Spiro

Peggy, Julian, Duncan and I took a stab at a podcast discussion of Tuesday’s Supreme Court arguments in Bond v. United States.

 

 

You can now find an audio of the argument itself here. Mentioned in the course of the discussion are related posts by David Golove and Michael Ramsey here and here. The Nick Rosencranz Harvard Law Review article that has been a key point of attack is found here (Eric Posner’s brutal critique here). The excellent symposium volume on Missouri v. Holland put together by Peggy McGuinness in 2008 is found here.

We’ll hope to do this again in the future (but only if we can find some good theme music).

The Misleading Human Rights Watch and Amnesty International Reports on U.S. Drones

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University. He is a former Navy aviator and Topgun graduate.]

Human Rights Watch and Amnesty International released reports last week criticizing the use of drones in Yemen and Pakistan.  Both reports have significant flaws in the way the factual information was presented and in how they characterize international law and US policy.

The HRW report is misleading from the outset. Entitled “Between a Drone and al Qaeda,” the report describes HRW’s investigation of six strikes in Yemen.  Yet the strike that caused the vast majority of the civilian casualties described in the report occurred 4 years ago and was not even carried out by a drone. The cruise missile strike on al-Majalah has been covered extensively in the media for years, and was the result of Tomahawk cruise missiles fired from a US warship.

The most pernicious part of injecting the civilian casualties caused by this cruise missile strike into a report critical of drones and US targeted killing policy is the fact that this very strike had a profound impact on US policy four years ago.  Daniel Klaidman’s book “Kill or Capture” details the Obama Administration’s reaction to the al-Majalah strike.  The administration elevated the level of authority required to approve such strikes to the National Command Authority (direct oversight by the cabinet/joint chiefs/president).  It also provided impetus for the shifting in weapons systems away from large weapons like cruise missiles that weigh 3,000 lbs. and carry a 1,000 lb. warhead to weapons like the Hellfire missile (the weapon most often employed by drones) that weighs only 100 lbs. and carries a 20 lb. warhead.  The implication that the al-Majalah strike represents current US targeted killing policy is simply false

HRW’s report also claims that the administration’s policy on targeted killings as outlined in President Obama’s speech at the National Defense University in May embraces a law enforcement approach to the conflict with AQAP rather an armed conflict approach. It comes to that conclusion by cherry-picking a quote from that speech stating that the US only targets individuals who pose an “imminent threat to the American people,” which closely resembles a law enforcement standard. The report neglects to include the two words preceding that quote.  President Obama actually said that the US targets terrorists that pose a “continuing and imminent threat to the American people.”  This difference is significant.

In the context of the rest of President Obama’s address and those of other administration officials before him it is clear that the United States’ position is that it is involved in an armed conflict with al Qaeda and its associated forces.  The President says as much later in the same speech: “the conflict with al Qaeda, like all armed conflicts, invites tragedy.”  An earlier speech by John Brennan, then Assistant to the President for Homeland Security, was even clearer on this point…

(Continue Reading)

Guest Post: Self-Executing Treaties, Criminal Law, and Bond v. United States

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He and Professor Sarah H. Cleveland filed an amicus brief in Bond v. United States arguing that the Offenses Clause provides an additional basis for upholding the constitutionality of the Chemical Weapons Convention Implementation Act.]

The difference between signature and ratification was not the only point of misunderstanding about treaties at the oral argument in Bond v. United States. Both counsel for the petitioner Paul Clement and some of the Justices also seemed confused about self-executing and non-self-executing treaties. Under U.S. law, the Chemical Weapons Convention (CWC) is a non-self-executing treaty. Article VII(1) provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention” and, in particular, shall “prohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Justice Kagan asked if the treaty could have been self-executing, a possibility Mr. Clement seemed willing to entertain (transcript p. 7). Justice Scalia seemed to think that self-executing treaty would be better because it would require implementation by the states of the United States (transcript p. 33), though he was mistaken because a self-executing treaty binds the judges of every state under the Constitution’s Supremacy Clause. Justice Breyer seemed to think that a self-executing treaty would be worse because it would cut out the House of Representatives (transcript p. 48). And Solicitor General Verrilli made the point that if “a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty . . . that has . . . the additional structural protection of the passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do” (transcript pp. 32-33). Verrilli’s point echoes one that has been made by Rick Pildes, among others, in response to Nick Rosencranz’s reading of the Treaty Power.

The problem with all of this is that it makes little sense in the context of a criminal case like Bond. Continue Reading…

A Friendly Request for Paul Clement, the Solicitor General, and the Supreme Court — Please read up on what it means to sign a treaty!

by Duncan Hollis

Lots of commentary today here and elsewhere on yesterday’s oral arguments in Bond v. United States, with vote-counters quick to predict the Court will retreat from Missouri v. Holland and the question is only how much.  I have views on the merits, but, frankly I’m having trouble getting passed the fact that two Supreme Court justices, the Solicitor General, and one of his predecessor’s, Paul Clement, seem to not understand how treaty-making works.

Simply put, throughout the argument, there were statements indicating a real misunderstanding of what it means for the United States to sign a treaty like the Chemical Weapons Convention.  To be clear, sometimes U.S. signature of a treaty can have immediate legal effect — what’s known as definitive signature — which is most often witnessed in bilateral agreements on topics within the President’s executive powers.  But for centuries now (actually as a byproduct of the U.S. revolution itself), the general rule for multilateral treaties is that a State signing a treaty does not bind the State to the treaty’s provisions; a further act of ratification is required.  It is the State’s deposit of this instrument of ratification for a treaty that’s in force which triggers the obligation to comply with the treaty’s requirements.  Signing treaties subject to ratification — what is known as “simple signature” serves several useful purposes — it signals the conclusion of negotiations, the signing State’s intention to commence domestic procedures to join the treaty, and the identify of those who can participate in preparatory meetings.  But it does not obligate the State to implement, observe or otherwise comply with any, let alone all, of the treaty’s articles.  The only international legal obligation a signatory State assumes is one not to defeat the treaty’s object and purpose pending its consent to the treaty (in which case it is bound to comply with it) or an indication that it does not intend to ratify the treaty.

But no one yesterday showed any sign that they understood the way treaty signature operates. Take Chief Justice Roberts opening inquiry to Solicitor General Verrilli (see transcript p. 27):

General, let’s suppose there’s a multilateral treaty, the — the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power.  And Congress passes a statute saying we have the authority to prosecute local crimes pursuant to this international convention that the President has signed.  Any problem with that?  (emphasis added)

Well, yes.  If the President had merely signed the treaty and not actually ratified it, the treaty power would not afford any basis for Congress’ legislation and this would be a straight-forward Article I case.  Indeed, it would be like Congress deciding to pass legislation implementing the Kyoto Protocol or the Rome Statute to the International Criminal Court — two treaties a U.S. President has signed — without any further approval by the Senate, let alone ratification by the President (a ratification which, I’d note, the President is not required to do even if the Senate gives its advice and consent to ratification).

Of course, the Chief Justice probably meant a treaty that the President had “ratified” — and Verrilli certainly took the question that way.  But I’m worried that both were a bit oblivious to the distinction. I can only imagine what people would say if a Supreme Court Justice has posed a hypo that confused a bill with a statute during an oral argument.  And if that’s not OK, why is it OK to make such a simple mistake about treaty-making?

Now, if this were an isolated incident, I’d be willing to write it off as simply a shorthand-error that both sides ducked around to get at the real — and certainly important — issues at the heart of the Bond case.  But, this wasn’t the only misuse of treaty signature yesterday. More details, after the jump . . .

Disabilities Treaty Committee in the Crosshairs (LawProf to the Rescue)

by Peter Spiro

Very interesting hearing yesterday before the Senate Foreign Relations Committee on the UN Convention on the Rights of Persons with Disabilities. C-Span video here.

Treaty opponents are focused on the associated Committee on the Rights of Persons with Disabilities (charged with considering state-party compliance) and the risk of evolving treaty meanings. It’s perfect terrain on which to transpose longstanding anxieties regarding activist judges onto even more freighted, counter-majoritarian-challenged international institutions. In yesterday’s hearing, treaty opponents pushed the line that the committee would end up interpreting the the CRPD, for example, to find a right to abortion (and, of course, to prohibit home schooling).

Enter University of Georgia law professor Timothy Meyer. As a witness, Tim offered up a way to switch some votes: beef up an understanding making clear that treaty committee interpretations would have no consequence. In the last attempt at Senate approval, the resolution package included an understanding to the effect that “The United States of America understands that the Committee on the Rights of Persons with Disabilities has no authority to compel actions by states parties, and the United States of America does not consider conclusions, recommendations, or general comments issued by the Committee as constituting customary international law or to be legally binding on the United States in any manner.”

To this, Tim would add:

The United States further understands that the Committee’s interpretations of the Convention are not entitled to any weight apart from that given to them by States Parties to the Convention.

Moreover, the United States understands that no interpretation of the obligations of the Convention issued by the Committee or any other international institution can have binding legal effect with regard to the United States unless the United States consents to such an interpretation in accordance with its constitutionally required procedures.

Who knows, maybe this is the path to ratification. Ranking member Bob Corker seemed to be buying, and there was an unusually high level of genuine engagement with Tim as a witness (another way of saying that he was very effective). He urged Tim to work with treaty foes Michael Farris and Susan Yoshihara to work out a RUDs package that “fully inoculates” the US from the parade of putative CRPD horribles. (All very well for US ratification purposes, but would seem to invite international hackles that US RUDs are getting even more inconsistent with the objects and purposes of the treaty.)

The hearing is worth a background listen. A number of (misplaced) allusions from treaty skeptics to the Bond argument taking place across the street at the Supreme Court, of the “fool me once, shame on you, fool me twice, shame on me” variety (see, for instance, Jeff Flake at 1:34, persuasively rebutted by Dick Durbin at 1:42). Supporters stressed how acceding to the treaty would bolster US leadership globally on disability rights (and how it would incidentally benefit disabled Americans travelling abroad). The overriding concern was with insuring with triple redundancy that the treaty could never force the US to change its way of doing things — as if the US can sustain some sort of splendid isolation from international law.

CIA’s Approach to Drones?

by Deborah Pearlstein

If this is an accurate report, it doesn’t inspire confidence. According to Gordon Lubold and Shane Harris at Foreign Policy, the “migration” of targeting operations from the CIA to the Pentagon “migration of those operations has stalled, and it is now unlikely to happen anytime soon.” Such anonymously sourced reports always need to be taken with a grain of salt, especially so in circumstances like these, where turf battles between agencies are involved. Indeed, in this article, two different current U.S. officials are quoted as insisting that the goal of transferring operations remains the same, and movement continues in that direction. And it suggests that the slow progression is in part due to ongoing operations in Pakistan, conditioned on Pakistani consent requiring that U.S. involvement remain covert.

All the same, this paragraph seemed especially troubling:

[T]he pitfalls of transferring operations reside in more practical concerns. The U.S. official said that while the platforms and the capabilities are common to either the Agency or the Pentagon, there remain distinctly different approaches to “finding, fixing and finishing” terrorist targets. The two organizations also use different approaches to producing the “intelligence feeds” upon which drone operations rely. Perhaps more importantly, after years of conducting drone strikes, the CIA has developed an expertise and a taste for them. The DOD’s appetite to take over that mission may not run very deep…. “The agency can do it much more efficiently and at lower cost than the military can,” said one former intelligence official. Another former official with extensive experience in intelligence and military operations said it takes the military longer to deploy drones — in part because the military uses a larger support staff to operate the aircraft.

Part of the reason why many of us have argued that whatever targeting operations we pursue should be transferred from the CIA to the military is because of our greater certainty that the military views itself as bound by IHL rules of targeting; has a deeper culture of training in and compliance with those rules; and has the professional and institutional infrastructure to support their maintenance. It is thus just such suggestions of different processes surrounding targeting that are most concerning. Do the differences alluded to here in “fixing” targets refer to the degree of certainty a targeter must possess that a target is a factually and legally appropriate, that pre-targeting collateral damage estimates are accurate? Is the greater “efficiency” with which CIA can operate a function of fewer layers of review, less participation by trained counsel and other advisers surrounding the operations, no obligation or habit of after action bomb damage assessments testing who we actually killed – all of which feature at least to some extent in military operations? (I summarize military procedures – at least as described by U.S. military doctrine – as part of my recent piece on process in targeting here.)

For all the work the administration, and the President in particular, has tried to do reassuring the public of the legality of its program – and all the work it has yet to do – this article doesn’t help.

Autonomous Weapons and a Campaign for a Treaty Ban

by Kenneth Anderson

The debate over autonomous weapons is not so visible in the United States, but the ban campaign launched by Human Rights Watch a year ago – an international NGO coalition called the “Campaign to Stop Killer Robots” – has been quite active in Europe and at the UN, where a number of countries raised the issue in their statements to the General Assembly’s First Committee (disarmament issues).  Matthew Waxman and I have been writing about this issue for several years; we have a short policy paper on the topic available at SSRN, “Law and Ethics for Autonomous Weapon Systems,” and we’re pleased to note our op-ed in the Wall Street Journal on Monday (November 4), “Killer Robots and Laws of War.”  We argue against a ban, on a number of grounds (it can be found open access at RealClearPolitics, here).  Here are a couple of grafs from midway through the piece (later on I’ll add links to the ban campaign and some other resources; must go teach class!):

[A] ban is unlikely to work, especially in constraining states or actors most inclined to abuse these weapons. Those actors will not respect such an agreement, and the technological elements of highly automated weapons will proliferate.  Moreover, because the automation of weapons will happen gradually, it would be nearly impossible to design or enforce such a ban. Because the same system might be operable with or without effective human control or oversight, the line between legal weapons and illegal autonomous ones will not be clear-cut.

If the goal is to reduce suffering and protect human lives, a ban could prove counterproductive. In addition to the self-protective advantages to military forces that use them, autonomous machines may reduce risks to civilians by improving the precision of targeting decisions and better controlling decisions to fire. We know that humans are limited in their capacity to make sound decisions on the battlefield: Anger, panic, fatigue all contribute to mistakes or violations of rules. Autonomous weapons systems have the potential to address these human shortcomings. No one can say with certainty how much automated capabilities might gradually reduce the harm of warfare, but it would be wrong not to pursue such gains, and it would be especially pernicious to ban research into such technologies.

That said, autonomous weapons warrant careful regulation. Each step toward automation needs to be reviewed carefully to ensure that the weapon complies with the laws of war in its design and permissible uses. Drawing on long-standing international legal rules requiring that weapons be capable of being used in a discriminating manner that limits collateral damage, the U.S. should set very high standards for assessing legally and ethically any research and development programs in this area. Standards should also be set for how these systems are to be used and in what combat environments.

The Drone Reports: Can Members of Armed Groups Be Targeted?

by Jens Iverson

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, part of the Law Faculty of the University of Leiden.]

Amnesty International and Human Rights Watch have recently published reports (AI, HRW) regarding drone strikes.  They are admirable.  They further the debate on the legality of drone strikes.  (This debate continues on Opinio Juris and elsewhere by Deborah Pearlstein, Ryan Goodman, and Kevin Jon Heller amongst others.)  Each report provides unique reporting and strong legal arguments on an important issue.  There is at least one subject, however, where they, at a minimum, overstate the clarity of the law—namely, the status of members of organized armed groups who are not directly participating in hostilities in a non-international armed conflict (NIAC).

AI and HRW effectively state that members of an organized armed group (party to the NIAC) who are not presently directly participating in hostilities are protected from direct attack.  Both reports rely strongly on the ICRC’s landmark volume Customary International Humanitarian Law.  This volume does not fully support them on this issue.

AI states:

Speeches by US officials suggest that the Administration believes that it can lawfully target people based merely on their membership in armed groups, rather than on the basis of their conduct or direct participation in hostilities. Membership in an armed group alone is not a sufficient basis to directly target an individual. (pp. 45-46, emphasis added)

HRW states:

US statements and actions indicate that US forces are applying an overly broad definition of “combatant” in targeted attacks, for example by designating persons as lawful targets based on their merely being members, rather than having military operational roles, in the armed group. Individuals who accompany or support an organized armed group, but whose activities are unrelated to military operations, are not lawful military targets under the laws of war. Thus members of an armed group who play a political role or a non-military logistics function cannot be targeted on that basis alone. (p. 86, emphasis added)

In contrast, Customary International Humanitarian Law states in the commentary to Rule 5 (Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians):  Continue Reading…

Seven Observations About the Oral Argument in Bond

by Marty Lederman

[Marty Lederman is an Associate Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. Lederman and  law professors David Golove and John Mikhail filed an amicus brief in Bond.]

 

Some preliminary reactions that occurred to me as I was listening to the argument in Bond v. United States this morning (transcript available here):

 

1.  A Limiting Construction of the Treaty?

The most significant thing about the argument, perhaps—at least in terms of forecasting what the Court might do—is that Justices Kennedy and Breyer both indicated interest in whether the treaty might be construed so as not to cover some category of malicious uses of toxic chemicals that the international community would not have any obvious interest in regulating.  Bond’s lawyer, Paul Clement, had suggested in his brief that the Court might construe the “peaceful purpose” exception in the treaty to exempt any non-“warlike” use of chemicals.  The Solicitor General has explained why that particular construction is untenable (see pages 13-16 of his brief); and Paul appeared to concede as much this morning when he agreed that if Ms. Bond had sent sarin gas through the ducts of her victim’s house, that would not be a “peaceful” purpose, even though it would be purely local, and presumably not “warlike.”

Justices Kennedy and Breyer, therefore, were searching for another way to narrowly construe the treaty.  Justice Kennedy mentioned the possibility of imposing some sort of “clear statement” rule of construction with respect to applications of the treaty that would implicate a nation’s constitutional structure.  Justice Breyer, for his part, appeared to be pondering whether the Court could construe the “use” prohibition differently depending on the nature of the toxic chemicals in question—a sort of “two-tiered” construction:  On the one hand (if I understood him correctly), the prohibition on use would be categorical as to those especially dangerous chemicals (including sarin) listed in one or more of the three “Schedules” in the Annex to the Convention.  But at the same time the Court might read the Convention as excluding from coverage certain relatively less dangerous (because more confined) uses of all other toxic chemicals not specifically listed—uses that could not possibly, in the Justices’s view, raise any international hackles if left unaddressed.  The hypothetical cases Justice Breyer had in mind were, e.g., using kerosene to burn down a barn; feeding a horse a poison potato; using a match to set fire to a haystack . . . and perhaps Bond’s own case itself.  (Justice Breyer took his examples from Commonwealth v. Peaslee, 177 Mass. 267 (1901), a decision that Oliver Wendell Holmes issued on New Year’s Day, 1901, as Chief Justice of the Massachusetts Supreme Judicial Court.  Justice Breyer called it a “great case on attempted murder.”  Perhaps it is—the question was when extensive preparation followed by abandonment constitutes an attempt.  Not surprisingly, Peaslee doesn’t have anything to do with Congress, the treaty power or chemical weapons—which might have been Justice Breyer’s point, i.e., that cases such as Bond’s are the stuff of textbook state criminal law.)

There are at least two obvious difficulties in going down this road:  For one, it’s not easy to construe the language of the treaty to carve out such localized uses of certain chemicals but not others—and even more difficult, perhaps, to define in the language of a judicial opinion the category of cases that are too local, or too self-contained, to be of the sort that the treaty-makers presumably were most concerned.  Secondly, as the Solicitor General explained, the international community presumably settled upon a categorical prohibition (the CWC Preamble declares that the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons”) not because each and every hypothetical covered case would raise serious international concerns, but instead because a prophylactic, comprehensive ban is conducive to ensuring that all of the cases of possible international concern are covered.  The objective, in a nutshell, is to prevent various nations from deciding for themselves which uses of toxic chemicals are, or are not, worthy of international condemnation:  If, for example, the United States were to define a category of cases that are, in the Court’s view, peripheral to the primary objectives of the treaty-makers, what would prevent another nation, such as Syria, from likewise construing the Convention to exclude a different category of toxic chemical use that are, in its view, not of legitimate or significant international concern?

On the other hand, it would not be the first time the Court has narrowly interpreted treaty language to avoid interference in matters falling within the traditional police power jurisdiction of the states.  See, e.g., Yamataya v. Fisher, 189 U.S. 86, 97 (1903); Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380, 393-95 (1902); Edward S. Corwin, National Supremacy: Treaty Power vs. State Power at 304-06 (1913).  And so, if Justices Breyer, Kennedy and/or other Justices can find their way to a construction of the CWC that would not cover Bond’s use of the particular chemicals at issue, the Court would then be able to avoid the need to decide whether to impose limits on the scope of the treaty power or on Congress’s authority to enact legislation to ensure the Nation’s compliance with its international obligations—limits that could seriously compromise U.S. foreign policy interests and that therefore were decisively rejected at the Founding and have been rejected ever since.

 

2.  “As-Applied” Commerce Clause Affirmance?

In my post yesterday, I suggested that another way for the Court to avoid reaching any significant constitutional question would be to… (Continue Reading)

Berkeley Journal of International Law Symposium Issue on Taming Globalization

by Julian Ku

I want to point readers to the recent issue of the Berkeley Journal of International Law which contains essays from a symposium last year on my book (with John Yoo) Taming Globalization.  It contains essays from Friend of Blogs Thomas Lee, Tai-Heng Cheng, as well as our own Peter Spiro.  All worth checking out.

A Quick Reaction to Oral Argument in Bond v. U.S.: Missouri v. Holland is in Real Trouble

by Julian Ku

Lyle Denniston is first out of the gate with his take on the oral argument in the much-anticipated U.S. Supreme Court decision in U.S. v. Bond.  His general take:

The argument in Bond v. U.S. (docket 12-158) reached the grand constitutional scale that has been its potential all along.   At the end of an hour-long hearing, it appeared that the government might just have to hope that it loses the case on narrow grounds, because it might lose it in a sweeping way.  Some of the Justices openly canvassed ways to cut back, perhaps sharply, on the national government’s power to negotiate or to implement global treaties — the very thing that U.S. Solicitor General Donald B. Verrilli, Jr., was trying so hard to head off.

For my own part, I was also struck by how none of the justices seemed impressed with the U.S. Solicitor General’s pleas for deference to the Executive Branch in the interpretation and administration of the Chemical Weapons Convention.  Several justices seemed to almost scoff at this argument at times, noting that it was not emphasized in the briefs.  The one exception, a reference to the brief filed by John Bellinger and former U.S. State Department Legal Advisors, was brushed aside fairly easily at argument.

So I think the case will turn out to be a straight-up domestic American federalism debate, with few foreign affairs concerns implicated in either the majority or the dissent.  If I’m right about this, then there seems little reason to doubt that we are headed toward a 5-4 decision in favor of the petitioner. The frequent use of the phrase “police power” is a bad sign for the government, since that is the one thing the Court doesn’t want to acknowledge giving to the federal government.  Moreover, the facts of this case, involving the federal prosecution of what is very close to a plain vanilla domestic dispute, should be enough to tie together a pro-federalism majority on the court.

Indeed, I think the unusual Nick Rosencranz inspired argument which separates the constitutionality of the treaty-implementation power from the treaty power  actually makes the federalism argument easier to swallow.  The pro-federalism justices can simply hold that constitutional limits the domestic implementation power does not necessarily limit the treaty power itself.   The President should not feel constrained to enter into treaties since this ruling does not reach the treaty power. Justice Scalia repeatedly embraced this argument, and even conceded that there are no similar limitations on a self-executing treaty.    It is a bit of an odd argument, since it does imply that a self-executing treaty could accomplish here what the statute could not, but that case would at least be left for another day.

I am also struck that there was not much fealty to Justice Holmes’ opinion in Missouri v. Holland. The US government did not rely on the authority of that decision very much, and Bond’s counsel came up with a way to distinguish it that no justice bothered to challenge.  So fealty to precedent does not appear to be much on their minds either.

Without national security or precedent, the Government’s argument is much weaker, and I agree with Denniston that its best outcome is a very narrow construction of the statute (which Justice Breyer seemed to be leaning toward with his emphasis on the statute’s exception for a “peaceful purpose” and which he repeatedly urged the US government to do as well). I think one could get 8 votes for a narrow construction of the relevant statute.  But I think there is appetite on the Court to go farther. Will they?

U.S. Treaty Practice Does Not Have to Be a Zero-Sum Game!

by Duncan Hollis

November 5, 2013 is U.S. National Treaty Day.  Well, not really, but it might as well be given how much treaties are going to be in the news tomorrow.  For starters, the United States Supreme Court hears oral argument in the case of Bond v. United States (for the pleadings, see SCOTUS blog’s as-always-excellent round-up).  As we’ve blogged previously (a lot), the case challenges the scope of the U.S. treaty power as the basis for implementing legislation in areas where Congress otherwise could not legislate.  In this case, there’s some salacious facts leading to a rather unlikely prosecution under the implementing legislation for the Chemical Weapons Convention (let’s just say the case is a far cry from the scenario that won the OPCW this year’s Nobel Peace Prize).  In the process, Bond questions the continued precedential value of one of the most discussed (and read) cases in U.S. foreign relations law — Justice Oliver Wendell Holmes’ opinion in Missouri v. Holland.

Then, in the afternoon, the U.S. Senate Foreign Relations Committee takes up the UN Disabilities Convention . . .  again (here’s the line-up for those testifying).  The Convention got a lot of attention the last time it reached the Senate floor, with Senate Republicans voting it down despite the poignant appearance of former Senate Majority Leader Robert Dole, who came to support advice and consent to the treaty. U.S. Senators John McCain and Robert Menendez have an op-ed in USA Today taking their case for Senate advice and consent to the general public.

Of course, the Chemical Weapons Convention and the Disabilities Convention are not the only two treaties to have garnered media attention in recent weeks.  U.S. Secretary of State Kerry’s signature of the U.N. Arms Trade Treaty promoted a rather furious domestic back-lash about whether the United States should join that treaty (At present, it sure looks like there’s easily enough Senate votes to oppose it).  And, that’s not to mention the 1982 U.N. Convention on the Law of the Sea (UNCLOS).  It continues to be supported by a large majority of business and national security interests but remains stymied by Senate opposition from a very vocal minority who fear the loss of “sovereignty” that would come with U.S. consent.

I could easily write one (or more posts) on each of these treaty issues.  For now, though, I want to call attention to a common theme that runs through all the on-going debates.  In each case, the treaty fight ends up being framed as a fight between those who would situate U.S. treaties (and with them, U.S. law) within a larger community — international communitarians if you will — versus those I’d call autonomists — who seek autonomy from any international regulation whether in defense of national law, states’ rights, or individual liberties.  Thus, opponents to UNCLOS want the U.S. to be able to regulate its own maritime environment just as those who oppose the Disabilities Convention oppose its potential to go beyond the Americans with Disabilities Act.  Of course, the Disabilities Convention also raises the specter of further intrusions into U.S. state regulations akin to the fears of internationally-based prosecutions that lie at the heart of the Bond case.  And all of this is not to mention the NRA and their (rather unrealistic) charges that the Arms Trade Treaty would require the United States to violate the Second Amendment and the constitutional liberties individuals enjoy to bear arms.

This division between communitarians and autonomists helps explain how treaty debates are now almost always framed in all-or-nothing terms. The decisions on whether to join or enforce U.S. treaty commitments become zero-sum games; only one side can win and the other must lose. That narrative certainly makes for good media stories.  But, I wonder if playing the game this way is truly in the nation’s interests.  It seems we end up with some examples where communitarians can claim complete victory (see, e.g., the new START treaty or the gold standard of an international engagement — the Montreal Protocol) while autonomists have equally compelling winning claims on their side (see, e.g., Medellin). Citing such divergent results, however, only seems to inflame the passions of the “losing” side and risk entrenching no-compromise strategies that seem a recipe for disaster (see, e.g., this October in Washington).

So as the Chemical Weapons Convention and the Disabilities Convention take center stage, I’d like to flag a simple point: U.S. treaty-making and implementation is a much more flexible and nuanced practice than the existing debates suggest.  There are not just some, but many, potential outcomes in these cases that would not require the definitive death of the treaty power OR states’ rights.  Indeed, as Peter’s most recent post suggests and as I’ve written previously, looking at the history of U.S. treaty-making post Missouri v. Holland, it’s pretty clear that the United States regularly accommodates state interests/rights in entering and implementing U.S. treaty commitments.  Thus, a win for the United States in Bond is unlikely to mean states rights get overridden by all future treaty-making.  Similarly, there are ways for Ms. Bond to win this case (think, creative statutory interpretation) that don’t necessarily mean we all get to stop reading Holmes’ opinion.  One could make a similar point about the Disabilities Convention.  The Senate doesn’t have to give unconditional advice and consent — it has a long history of RUDs (reservations, understandings, and declarations) that might be used to mitigate the scope of U.S. commitments to that treaty regime.  Even federalism interests writ large can be protected (see, e.g., the RUDs included in U.S. ratification of the Organized Crime Convention or the UN Corruption Convention).

Now, there will be those who say RUDs are inadmissible and run counter to the object and purpose of one or more of these treaties, just as there will be those who say joining any treaty will lead to some impermissible sacrifice of U.S. “sovereignty.”  My point (hope) is that Senators (and Supreme Court Justices) don’t have to always accept these cases as they are characterized at the poles. There are plenty of precedents that may be brought to bear balancing competing interests such as federalism and international engagements at the same time.  We’ll see if any such hybrid results appear possible in the coming days.  I’d hope so, but given current trends in American politics, I’m not sure I’d bet on it.

Bond v. United States and the Non-Use of the Treaty Power

by Peter Spiro

Has the federal government ever put Missouri v. Holland to work? I don’t think so, though I always hesitate to state it categorically. The Supreme Court’s 1920 decision in Holland squarely held that the Treaty Power adds something to other enumerated federal authorities. But there appears to be no instance in which the federal government has actually used a treaty to do something that it couldn’t do under some other power, other than in the (putative) controversy implicated by Bond itself. (The Supreme Court hears arguments in Bond tomorrow.)

I thought for a moment I was nailed on this point reading through the amicus brief submitted by John Bellinger and other former State Department Legal Advisers. The brief highlights the Controlled Substances Act and its status as implementing legislation for the 1961 Single Convention on Narcotic Drugs. (Well, that would be a big one!) The Act does put the treaty to work in interesting ways, including as a kind of international delegation under which domestic procedures for drug classification can be ignored if a drug becomes controlled under an international agreement. See 21 U.S.C. 811(d). Very interesting, but somewhat beside the point. As the Supreme Court recently held in Raich, Congress has the power to regulate controlled substances under the Commerce Clause.

The same goes for other agreements discussed in the Legal Advisers’ brief, including agreements relating to environmental protection, diplomatic immunity, and international driver’s licenses. In other words, the U.S. could enter into those agreements — and implement them — even if Missouri v. Holland were overruled.

The non-practice under Holland cuts both ways. As those supporting the government point out, it shows that political process works to protect state interests. The Treaty Power as interpreted by Justice Holmes looks pretty scary in theory, from a states rights perspective, to the extent it could swallow up all constraints on federal power. But in practice it’s been toothless.

On the other hand, complete non-use by the political branches might evidence that Missouri v. Holland doesn’t reflect constitutional norms on the question, that the Treaty Power has fallen into a kind of constitutional desuetude. In other words, Missouri v. Holland may have been overruled by nearly a century’s worth of subsequent contrary practice.

Either way, the lack of any real practice (and the anomalous circumstances of Bond itself) cautions against a merits ruling on the Treaty Power issue, in the spirit of judicial minimalism and constitutional avoidance. Who knows, there may come a time when the political branches are interested in intentionally asserting a more robust Treaty Power. That world would almost surely be a different one than we find ourselves in today (different enough to overcome the longstanding refusal to use the Treaty Power to expand federal authorities). Better to wait to see what that world looks like before deciding so important a question.

Events and Announcements: November 3, 2013

by An Hertogen

  • The Association of Defence Counsel at the ICTY is organising a Conference on November 29 at the Bel-Air hotel in The Hague on the Legacy of the ICTY from the perspective of the Defence function. More information is here.
  • The ASIL’s International Legal Theory Interest Group and Cornell Law School are organizing an event on the Theoretical Boundaries of Armed Conflict and Human Rights, this Friday November 8, at ASIL’s Tillar House (2223 Massachusetts Ave NW, Washington, D.C.). The programme is here.
  • ASIL’s Lieber Society on the Law of Armed Conflict is sponsoring a panel discussion about the Court-Martial of U.S. Army Sgt. Bales for the murder of 16 Afghan civilians.  The event, entitled “Military Justice, International Criminal Accountability and Cross-Cultural Contexts: U.S. v. Bales,” will be held at Tillar House (2223 Massachusetts Ave NW, Washington, D.C.) on Tuesday, November 12, 2013 at 5:30 p.m.  The case presents a unique opportunity to explore the challenges in both investigating and prosecuting a case involving crimes in a remote area of a war zone, differing cultural perceptions of accountability and justice, and the relationship between military justice and international criminal justice.  Speakers include Lt. Col Jay Morse (Chief of the U.S. Army’s Counsel Assistance Program and lead Prosecutor in the Bales case), Morwari Zafar (Afghanistan Subject Matter Expert at the Defense Intelligence Agency), and Sandra Hodgkinson (Vice President and Chief of Staff of DRS Technologies).  This event is free for ASIL members. Further information is here.
  • The 13th European Conference on Cyber Warfare and Security (ECCWS) is an opportunity for academics, practitioners and consultants from Europe and elsewhere involved in the study, management, development and implementation of systems and concepts to combat cyber warfare or to improve IS security to come together and exchange ideas. There are several strong strands of research and interest that are developing in the area including the understanding of threats and risks to information systems, the development of a strong security culture, as well as incident detection and post incident investigation. This conference is continuing to establish itself as an important event for individuals working in the field from around the world. Key themes of the conference in 2014 include critical infrastructure protection, cyber intelligence-cyber counterintelligence, PsyOPS, data mining and data fusion applications and malware and antimalware technologies and digital forensics. The conference is hosted by the University of Pireaus, Greece on July 3-4, 2014. See here for further information.

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 David Miranda a Terrorist? Legally, It’s Close — Which Is Precisely the Problem

by Kevin Jon Heller

In my previous post, I mocked Scotland Yard’s assertion that David Miranda, Glenn Greenwald’s partner, committed an act of terrorism by transporting documents stolen from the US government by Edward Snowden. Mockery remains the appropriate response, given the vast chasm that separates Miranda’s actions from any defensible conception of terrorism — such as the one I quoted from UN General Assembly Resolution 49/60, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” Yet it is important to avoid focusing solely on Scotland Yard’s abuse of its power, because the real problem lies not with those who apply the law — whose good faith we should never assume — but with the law itself. Simply put, the UK’s Terrorism Act 2000 is so overbroad that, in fact, Miranda’s actions come perilously close to qualifying as terrorism under it. Here is the Act’s definition of terrorism:

1.—(1) In this Act “terrorism” means the use or threat of action
where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.

(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person
committing the action,
(d) creates a serious risk to the health or safety of the public or a
section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an
electronic system.

Let’s examine each of these elements. First, is transporting Snowden documents “to influence the government or to intimidate the public or a section of the public”? Not to intimidate, surely. But transporting the documents is designed to facilitate their release, and the release of the documents is indeed “designed to influence the government” — namely, to convince Britain to abandon its mass surveillance of its citizens and the citizens of other European countries. That is a noble design, but it is a design nonetheless. And the Terrorism Act 2000 does not limit terrorism to acts that seek to influence the government to adopt bad policies. That’s one of its problems.

Second, is transporting Snowden documents done “for the purpose of advancing a political,
religious or ideological cause”? Yes, of course it is — releasing the documents is designed to promote greater transparency in government and to minimize unwarranted interference with people’s privacy. That is a noble political or ideological cause, but it is still a political or ideological cause. And once again, nothing in the Act says that actions in the service of a noble political or ideological cause cannot qualify as terrorism. That’s another problem.

Third, and finally, does transporting Snowden documents “fall within subsection (2)”? It clearly does not involve “serious violence against a person” or “serious damage to property.” But the other three categories of harm are a much closer call. I do not believe that releasing the Snowden documents endangers a person’s life, creates a serious risk to the safety of the public, or is designed to seriously disrupt an electronic system. But it is very easy to imagine an overzealous prosecutor arguing that their release would do any or all of those things — particularly the final one, because the surveillance abuses revealed by the documents are all the product of electronic systems. And given that UK courts have not exactly covered themselves with glory in the terrorism context, it is also all too easy to imagine a court buying that overzealous prosecutor’s argument.

That’s it. That’s all the Terrorism Act 2000 requires. It does not require a violent act. It does not require the intent to cause terror. It does not exclude peaceful acts designed to promote progressive policy change. It does not exclude pacifist or humanist causes. It simply requires the accused commit an act that is designed to influence the government for political or ideological reasons and that directly or indirectly endangers a person, the public, or a computer system.

To be clear: I do not think that David Miranda’s actions qualify as terrorism — even under the woefully overbroad Terrorism Act 2000. In particular, I think the mere act of transporting documents is too causally removed from endangering a person, the public, or a computer system to satisfy subsection (2) of the Act. But Miranda’s actions are far too close for comfort, given the Act’s definition of terrorism — and the actions of a person who actually releases Snowden documents, such as my friend Glenn Greenwald himself, are closer still. Indeed, I find it all too easy to imagine Glenn or one of his former colleagues at the Guardian being successfully prosecuted for terrorism under the Act.

And that, ultimately, is my point. It is a serious problem that Scotland Yard believes Miranda is a terrorist. But the more significant problem is that, viewed solely in terms of the law, its position is anything but absurd. Under the indefensible Terrorism Act 2000, many actions qualify as terrorism that are not, in fact, even remotely terrorist. Perhaps even Miranda’s.

Terrorism Is Dead, and Britain Has Killed It

by Kevin Jon Heller

No, not actual terrorism, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” That’s still going strong. I’m talking about the concept of terrorism, which has officially lost all meaning whatsoever:

British authorities claimed the domestic partner of reporter Glenn Greenwald was involved in “terrorism” when he tried to carry documents from former U.S. intelligence contractor Edward Snowden through a London airport in August, according to police and intelligence documents.

Greenwald’s partner, David Miranda, was detained and questioned for nine hours by British authorities at Heathrow on August 18, when he landed there from Berlin to change planes for a flight to Rio De Janeiro, Brazil.

After his release and return to Rio, Miranda filed a legal action against the British government, seeking the return of materials seized from him by British authorities and a judicial review of the legality of his detention.

At a London court hearing this week for Miranda’s lawsuit, a document called a “Ports Circulation Sheet” was read into the record. It was prepared by Scotland Yard – in consultation with the MI5 counterintelligence agency – and circulated to British border posts before Miranda’s arrival. The precise date of the document is unclear.

“Intelligence indicates that Miranda is likely to be involved in espionage activity which has the potential to act against the interests of UK national security,” according to the document.

“We assess that Miranda is knowingly carrying material the release of which would endanger people’s lives,” the document continued. “Additionally the disclosure, or threat of disclosure, is designed to influence a government and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism…”

Terrorism: now defined as any act that a government finds inconvenient. Actually, check that: now defined as any act that a good government finds inconvenient. Similar acts committed against a bad government like Iran — and even real acts of terror, like assassinating scientists — are called “promoting freedom.”

RIP, terrorism. I thought the Americans would kill you, but it turns out the British beat them to it. Regardless, we mourn your untimely passing.

Weekend Roundup: October 26-November 1, 2013

by An Hertogen

This week on Opinio Juris, we held a symposium on Chevron and the rise of arbitral power introduced here by Michael D. Goldhaber. Comments were by Christoph Schreuer, Anthea Roberts, and Muthucumaraswamy Sornarajah. Michael’s response is here.

In follow up on earlier symposia, Anupam Chander posted his reply to the comments in last week’s book symposium on The Electronic Silk Road and Anne van Aaken responded to Tomer Broude’s guest posts on behavioral international law and economics.

Peter wondered why Bond v United States came to be prosecuted under the Chemical Weapons Convention, and noted emerging efforts towards a human right to privacy in the wake of the NSA spying scandal. Julian did not think these efforts would lead anywhere, and put more faith in the conclusion of no-spy agreements.

Kevin posted about his recent talk at Chatham House defending the specific direction requirementFollowing reports by The Sudan Tribune that the presiding judge had threatened William Ruto with arrest if he commented publicly on his case, later corrected after a clarification by the ICCKevin examined whether there is any legal basis on which the Court can silence an accused. Kevin also pointed out problems with the appointment of a new judge in the Seselj case, which led to a very active discussion in the comments.

Julian asked whether Japan’s pledge to shoot down Chinese drones violates international law. Maybe the Japanese could learn a thing or two from the British Navy and its use of Britney Spears’ songs to scare away Somali pirates along Africa’s East Coast.

Finally, Sean D. Murphy summarized the International Law Commission’s work in its 65th session, Kristen posted about the ASIL Mid-Year Meeting that we suspect quite a few of our readers will be attending, and Jessica listed the events and announcements and wrapped up the news.

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

Correcting My Recent Post on Ruto’s Public Criticism of the OTP

by Kevin Jon Heller

The ICC’s Public Affairs Unit has brought to my attention that the Sudan Tribune erroneously reported what Judge Chile Eboe-Osuji said to Ruto concerning his public statements about his case. The unofficial transcript makes clear that although the Judge warned Ruto not to make additional statements, he did not suggest that Ruto would be arrested if he did so:

7 It has been brought to our attention that the defendant, Mr Ruto,
8 had granted an interview to a news outlet, in of course of which he made
9 comments on the matters pending before the court. This is a matter that
10 had arisen in the past and the Chamber cautioned that Mr Ruto is to
11 refrain from making comments to the press on the case pending before this
12 Chamber. It has happened again, and counsel for Mr Ruto explained that
13 it was a mistake, and he, on behalf of Mr Ruto, apologised without any
14 reservation and he has undertaken, that is Mr Khan, to work out an
15 arrangement by which there would be no further comments on the case
16 pending before this Court, comments by Mr Ruto. For now, the Chamber
17 will accept the apology as well as the undertaking of counsel. The
18 Chamber will not issue any sanction on this occasion, but the Chamber
19 will repeat its earlier warning that Mr Ruto is not to comment on this
20 case pending before the Court.
21 We expect that this warning will be respected, and we expect that
22 the counsel will live up to his undertaking to do all that he can to
23 ensure that this doesn’t happen again.
24 That is the ruling of the Chamber.

My apologies to the Court and to Judge Eboe-Osuji for republishing the Sudan Tribune‘s erroneous reporting regarding Ruto’s possible arrest.

That said, I stand behind my claim that the Court has no authority under the Rome Statute to silence Ruto, much less impose some kind of sanction against him if he continues to criticize the prosecution’s case. The Public Affairs Unit notes that the Trial Chamber warned both the prosecution and the defence not to comment publicly, but that does not change the analysis: unlike the prosecution and defence counsel, the accused is not bound by the Code of Professional Conduct. Moreover, although the prosecution has to respect the presumption of innocence, no correlative obligation binds the accused. Ruto thus remains free to say whatever he wants.

NOTE: The threat of arrest was also erroneously reported by the Kenyan Daily Post.

Chevron and the Rise of Arbitral Power: A Response

by Michael D. Goldhaber

[Michael D. Goldhaber serves as Senior International Correspondent and “The Global Lawyer” columnist for The American Lawyer and the ALM media group. His writes widely on human rights and corporate accountability, international arbitration, and global multiforum disputes. His e-book on Chevron will be published next year by Amazon. His first post can be found here.]

I’m grateful for the very gracious and insightful comments shared by the eminent arbitrator Christoph Schreuer, the scourge of eminent arbitrators Muthucumaraswamy Sornarjah, and the wunderkind of arbitration scholarship, Anthea Roberts. Having solicited a wide range of commentary on my Article, I now must defend myself from friendly jabs on both flanks.

Dr. Schreuer and Professor Roberts both argue thoughtfully that the relationship between tribunals and courts should be understood in a broader context. Along the way, Dr. Schreuer questions my realist view that arbitrators effectively review judges. In the course of a bracing systemic critique, Professor Sornarajah calls my desire for proportionality analysis and a plenary appeal within arbitration naive.

I stand by my position that arbitrators are increasingly at odds with judges, and that they functioned like reviewing judges in several of the final awards surveyed (although I perhaps could have been more attentive to terminology). Dr. Schreuer helpfully distinguishes between vacating a decision (in an annulment) and replacing it (in an appeal), and argues that arbitrators do neither. But consider the results. When the treaty tribunal in Saipem v Bangladesh reinstated a contract arbitration award that had been nullified by a national court, it effectively vacated the court decision, and replaced it with a decision confirming the commercial arbitration. In White v. India, the tribunal stripped the national courts of jurisdiction because they were too slow, and effectively stepped in to confirm a commercial arbitration award. In Chevron v. Ecuador I, the tribunal stripped the courts of jurisdiction for being too slow, and expressly decided the court cases de novo under Ecuadorian law. Surely these results were functionally equivalent to appellate review. Likewise, when ATA v. Jordan finally terminated an ongoing court proceeding, it emphatically resolved the case in ATA’s favor. I’m not sure how such a remedy should be categorized, but I cannot agree with Dr. Schreuer that it’s “much weaker” than appellate review.

I readily agree with Schreuer and Roberts on their main point: that judges and arbitrators interact in multifarious ways. My Article’s opening passage acknowledged as much, and explained that I would dwell on arbitral review because it is the most neglected facet of their relationship

Professor Roberts astutely observes that the relationship between tribunals and courts is triangular — in the sense that arbitrators tend to review judges from poor nations, but to be reviewed by judges from rich nations. What she leaves unsaid is that judges in rich nations have historically deferred to arbitrators (whether out of ideology, correct interpretation of the law, or sensitivity to cross-border competition among the arbitration elites). I would therefore predict that the U.S. Supreme Court will overturn the D.C. Circuit’s encroachment on arbitrators’ turf in BG v. Argentina. If not, arbitration will simply flow away from UNCITRAL tribunals sited in the U.S., toward tribunals that are governed by either ICSID or the laws of arbitration-friendly European states. But either way, if they wish to sustain their power, arbitrators should take the hint: At least some courts in rich nations are deferring less because they perceive arbitrators as overweening. A lack of internal review may lead to external review.

Although Professor Sornarajah and I share many perceptions — for instance the need for transparency –, he views me as any self-respecting revolutionary views a reformer. He cannot understand why I would wish to fix an edifice with rotten foundations, rather than to blow it up. Continue Reading…

More Problems with Assigning a New Judge to the Seselj Case

by Kevin Jon Heller

The most significant problem with the Order, of course, is the one I identified in my previous post: namely, that Rule 15bis applies only to “part heard” cases — not cases that have been over for nearly two years. But it’s worth noting that the Acting President has also disregarded a number of procedural requirements of Rule 15bis. Recall the text of the relevant provisions:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of all the accused, except as provided for in paragraphs (D) and (G).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an accused withholds his consent, the remaining Judges may nonetheless decide whether or not to continue the proceedings before a Trial Chamber with a substitute Judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. This decision is subject to appeal directly to a full bench of the Appeals Chamber by either party. If no appeal is taken from the decision to continue proceedings with a substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings. Only one substitution under this paragraph may be made.

Rule 15bis(D) makes clear that the President cannot assign a new judge to an existing bench unless four requirements are satisfied: (1) the accused has been asked to consent to the proceedings continuing; (2) the remaining judges have unanimously decided, over the accused’s objection, that continuing the proceedings is in the interests of justice; (3) the accused and the prosecution have been given the opportunity to appeal; and (4) the replacement judge has certified that he or she is familiar with the record in the case.

The Acting President has ignored all four requirements…