In association with the International Commission of Jurists

November 2014

19 Nov

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the Autónoma de Madrid University.]  Introduction Colombian President Juan Manuel Santos announced on Monday, November 17,2014, that the negotiations between the Colombian Government and the FARC guerrilla seeking to reach a peace agreement were suspended because of information that the FARC kidnapped a Colombian general, an officer, and a lawyer (see here and here [in Spanish]). While the reaction of the non-state armed group is yet to be seen, it is interesting to take into account its likely position regarding the type of conduct it is accused of having perpetrated. On Sunday November 9, 2014, the FARC kidnapped two Colombian soldiers, called César Rivera and Jonathan Andrés Díaz, but claimed that, in its opinion, far from breaching international humanitarian law, the group acted in accordance thereof. The FARC considers the soldiers to be captured as ‘prisoners of war’ and claims to have treated them in accordance with humanitarian principles by respecting their rights to life and integrity (Spanish) (it must be noted that, in the past, those deprived of their liberty by the FARC have notoriously been treated in an inhuman fashion and to the detriment of the enjoyment of their human rights [see here and here]). Illegality of all deprivations of liberty attributable to non-state armed groups during non-international armed conflicts It is important to examine if the claim of the FARC can be consistent with international law: namely, whether a non-state armed group can deprive individuals of their liberty during non-international armed conflicts under International Humanitarian Law (IHL). If the victims are civilians, the answer is clearly a negative one. Furthermore, in a scenario as the Colombian one, in which many civilians have suffered the deprivation of their liberty and their being placed in harsh conditions and treated cruelly or even killed at the hands of the guerillas, which have also extorted money as a condition to release some of them, it can be said that those deprivations of liberty have been carried out “as part of a widespread or systematic attack directed against any civilian population”, and so that those who perpetrate them commit a crime against humanity, according to article 7.e of the Rome Statute of the International Criminal Court. From the point of view of human rights law, it can also be argued that the conduct in question amounts to a violation of those rights (and if it is accepted that non-state entities have human rights obligations, the armed groups would breach them as well). When it comes to the legal analysis of the deprivation of liberty of members of the Colombian armed forces by the FARC, it is important to begin by noting that the regulation of international and non-international armed conflicts is not always identical or even similar. In fact, applying the rules of the former to the latter may sometimes be problematic, being this one of those events. In this regard, while treaty and customary norms permit the detention of prisoners of war during international armed conflicts, as Rule 99 of the Customary IHL Database of the International Committee of the Red Cross (ICRC) indicates, there is no indication that such a rule is applicable in non-international armed conflicts. In fact, the aforementioned rule, dealing with deprivation of liberty, when discussing non-international armed conflicts, focuses on the human rights standards governing the deprivation of liberty attributed to States, stressing that it must be lawful and non-arbitrary; and so implicitly indicates that there is no legal authorization for non-state armed groups to deprive anyone of his or her liberty or to detain them. In doctrine, this is confirmed by the analysis of conflicts such as the Israeli-Palestinian one, regarding which it has been said that:
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19 Nov

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here.] After a long period of relative neglect of such studies, there's a boom in scholarship in the history of international law, as Alexandra Kemmerer noted at Voelkerrechtsblog early this fall. Kemmerer suggests, rightly, that disciplinary boundaries...

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19 Nov

[Andrea Pin is senior lecturer at the University of Padua, where he teaches constitutional law, comparative public law, and Islamic law. He is also a fall 2014 Kellogg visiting fellow at Notre Dame.] A few weeks ago, the Italian Constitutional Court’s decision no. 238 of 2014 struck blows to the theory and practice of sovereign immunity, the International Court of Justice (ICJ), German-Italian relationships, and even the Italian Government. On October 3, 2012, the ICJ decided that the customary sovereign immunity from jurisdiction protects Germany from suits brought before Italian domestic courts seeking compensation for Nazi crimes perpetrated in Italy during World War II. Later on, new suits were filed against Germany in Italian domestic courts. This time, Italian judges requested a preliminary ruling from the Italian Constitutional Court to ascertain if the sovereign immunity protection, as crafted by the ICJ, was against the Italian Constitution. If the Court found that such immunity violated the Constitution, the judges would process the suits. The Constitutional text proclaims that “The Italian legal system conforms to the generally recognised rules of international law” (Art. no. 10). International customary law falls in this category and therefore prevails over incompatible domestic legal provisions. But there has always been a caveat: the generally recognized rules of international law cannot be enforced in Italy if they conflict with the supreme principles of the Constitution. This is the doctrine of counter-limits, which the Constitutional Court shaped with special regards to the European Union integration: according to this doctrine, core constitutional values would set exceptional boundaries to the domestic enforcement of EU laws, which can ordinarily subordinate constitutional provisions. The hypothetical non-enforcement of international law for violating a supreme constitutional value had never become reality—until now. The 2014 decision of the Constitutional Court found that Art. no. 24 of the Constitution (“All persons are entitled to take judicial action to protect their individual rights and legitimate interests”) encapsulates a fundamental principle of the Constitution. Therefore, the Court blocked the application of sovereign immunity from jurisdiction, and allowed the referring Italian judges to proceed with the relevant trials. This unprecedented decision surely is in conflict with the ICJ Statute. In fact, the Italian Court consequently struck down the pieces of Italian legislation that commanded the enforcement of the ICJ’s judgments in cases of gross human rights violations as well. But it will also create some turbulence in the relationships between Italy and Germany. The Constitutional Court’s decision, finally, is in conflict with the Italian Government’s attitude. After the ICJ’s judgment, the Government signed and had the Parliament execute the New York Convention on Jurisdictional Immunities of States and Their Property (2004). This Convention confirmed the ICJ’s approach to sovereign immunity: practically speaking, after losing at the ICJ, the Italian State happily legitimized Germany’s jurisdictional immunity. The Constitutional Court also needed to quash these pieces of Italian legislation.
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19 Nov

Mark Kersten, creator of Justice in Conflict, long one of the most important blogs in international criminal justice, successfully defended his thesis yesterday at the LSE. Heartfelt congratulations, my friend! And, of course, now that Mark has the word "Dr." in front of his name, we can finally take him seriously....

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18 Nov

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris.] According to Jacob Heilbrunn, the editor of The National Interest, the neocons are about to make a spectacular comeback in American foreign policy.  Writing about the midterm elections in the Financial Times last Friday, Heilbrunn observed: "the Republican party is resurrecting the unilateral foreign policy doctrines that first took hold under President George W Bush and his vice-president Dick Cheney." So let's take a hard look at the weapons the neocons have in their arsenal these days. The first, as Heilbrunn notes, is Barack Obama, or more precisely discontent with his apparently reactive and hesitating approach to foreign and security policy, exemplified by situations such as Ukraine, Syria and the rise of ISIS.  If you read the fine print, to the extent there is any, the neocons like Cheney and Bill Kristol don't have any master plan or worked out strategy of their own for dealing with these problems.  They appeal to the heartwarming (for some Americans) fantasy that, if the United States simply drops enough bombs and puts enough boots on the ground, victory over the forces of evil will prevail.  In this fantasy world, every apparent failure of intervention--Afghanistan, Iraq--can be explained by not enough American force being applied.  Consider Bill Kristol's approach to ISIS: "What's the harm in bombing them at least for a few weeks and seeing what happens?" This is the key logic:force has got to be better than no force, a sort of dogmatic inversion of pacifism. Of course, Kristol's remark also speaks volumes to the neocons' stance toward international law. Then there is Senator-elect Tom Cotton.  As Heilbrunn notes,"Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton." Cotton, 37 years old, is the neocon wet dream.  After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq.  While, as the legend goes, the army urged him toward a JAG-type position, Cotton would have none of it:  he had little interest in the laws of war, he wanted to fight one.  Cotton is perhaps the most credible of any of the neocons--he, at least, chose to risk his life in the war that he praised as "just and noble".  He has also (at least somewhat) distanced himself from the main neocon strategy of withering attacks on Barack Obama, calling on Republicans to support the President's plan for use of force in Syria and rather nobly lecturing partisan Republican conservatives: "we have one commander in chief at a time, and the United States is weakened if our presidency is weakened. No matter the president’s party or his past failures, all Americans should want, and help, him to succeed when it comes to our national security."   While he shares the outlook of the ideological and partisan neocons, offering his conviction that America can and should seek "victory" in Afghanistan and Iraq, my hunch is that, given that he has had the responsibility as a soldier for the lives of men and women in combat, Cotton may actually prove a constructive and moderating force behind the scenes, if he does not consume too much energy in battles with the isolationist Rand Paul wing of the Republican Party.
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18 Nov

It's my pleasure to announce that Rob Howse will be guest blogging on Opinio Juris this week.  Rob is the Lloyd C. Nelson Professor of International Law at NYU, and a specialist in international trade and investment law.  He is also the author of a new book in political philosophy entitled Leo Strauss Man of Peace published by Cambridge.   A great interview...

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18 Nov

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation?...

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17 Nov

[Duncan French is the Head of Law School and a Professor of International Law at the University of Lincoln and Jean d’Aspremont is a Professor of International Law at the University of Manchester and a Professor of International Legal Theory at the University of Amsterdam.] The two-day expert seminar on the identification of customary international law, co-organised by Lincoln Law School and the Manchester International Law Centre, took place on 13-14th November at the University of Lincoln. With the active participation of Sir Michael Wood, the Special Rapporteur of the International Law Commission (hereafter ILC) on the issue, the seminar witnessed the contribution of over 25 international lawyers from around the United Kingdom. Discussions focused on Sir Michael's second report, the eight draft conclusions adopted by the ILC drafting committee and those issues yet to be considered in the preparation of the third report. A blog for Opinio Juris in advance of the seminar entitled “Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions” had flagged many of the salient matters discussed during the seminar. As could be anticipated, interventions were made on the methodological aspects of the "two element" approach to the identification of customary international law, the role of international organizations in the determination of customary international law, inaction and acquiescence, and how customary international law has developed within particular areas of international law, notably in the economic and environmental spheres. There was also more wide-ranging discussion on, inter alia, the notion of opinio juris, the scope of the ILC conclusions, whether the development of human rights has impacted upon the identification of customary international law, international organizations, non-state actors, the role of the persistent objector, the relevance of specially affected states, the temporal inter-relationship between state practice and opinio juris, and the existence of special/local/regional custom, etc. It is beyond the purpose of this blog to revisit the depth and richness of these exchanges. It will limit itself to formulating four sets of remarks. First, there was general agreement among the participants that the scope of the ILC codification exercise is rightly restricted to the identification of customary international law. This was perceived as a pragmatic, and reasonable, delimitation. Nevertheless, it was acknowledged that one could not always easily distinguish between the formation, the identification and the evidence of customary international law. In that sense, it was highlighted that the current title was too narrow, and that, in the French text, the word (‘détermination’) captured more accurately the more nuanced and various complexities of the question. And this was not the only issue arising in the respective translations. The importance - both conceptually and practically - in the assessment of evidence in identifying customary international law [draft conclusion 3] takes on a subtly alternative understanding when interpreted as ‘áppreciation des moyens’. Secondly, as indicated in the earlier blog, the practice and opinio juris of international organizations in the identification of customary international law - as distinct from the acts of States within and through such organizations - proved particularly contentious and triggered a lot of debate. The contribution of international organizations primarily raises the question as to whether the practice and opinio juris of international organizations should contribute generally to any customary rule, or only when it concerns the development of rules that will also bind international organizations. The Special Rapporteur and several participants indicated that, in their view, an organization can only contribute to the formation of a rule of customary law which it can potentially be bound by. This has to do with the self-commitment at the heart of the doctrine of customary international aw. It is also perhaps as a matter of equity between participants in the international legal system. Equally, there was discussion as to which international organizations can contribute to the formation of customary international law. Legal personality is a seemingly determinate variable. Yet, a question remains as to whether there is a significant difference between organizations with a high degree of autonomy, those with more independent-minded secretariats and those international organizations that are member-state driven. It seems axiomatic that the greater the autonomy, the greater the extent to which the practice and the opinio juris of an international organization itself (in contrast to the acts of its members within the context of the organization) should contribute to customary international law. The point was also made
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17 Nov

Your weekly selection of international law and international relations headlines from around the world: Africa The Nigerian army has driven out Boko Haram insurgents from Chibok, the home of over 200 schoolgirls who were abducted by militants of the Islamist group in April, an army spokesman said. Somalia's al Shabaab militants said they fired mortar bombs at the presidential palace in Mogadishu on...

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16 Nov

[Daniel Bodansky is Foundation Professor of Law at Sandra Day O'Connor College of Law, Arizona State University.] Is the US-China joint announcement on climate change a big deal? Opinions differ widely. Paul Krugman says yes, Tyler Cowan, no. Who’s right? Is the announcement a “gamechanger,” as Joe Romm thinks, or “a well-timed, well-orchestrated press release,” as Cowan calls it? In part, the different answers reflect different measures of success, a point to which I will return in a moment. But, first, a little background. Back in 2011, the parties to the UN Framework Convention on Climate Change adopted the Durban Platform, which launched negotiations to develop a new legal instrument to limit global greenhouse gas emissions post-2020. The Durban Platform negotiations are to be completed and a new agreement adopted in December 2015 at the Paris conference of the parties. A decision adopted last year in Warsaw called on states to communicate their intended national contributions to the new agreement well in advance of the Paris meeting. What the United States and China unveiled in Beijing – although generally characterized as an “agreement” or “pact” – were their intended national emission targets under the 2015 agreement. At least four metrics are relevant in evaluating the joint announcement: First, do the announced targets put us on a pathway towards limiting climate change to safe levels? Safety involves value judgments, of course, but most scientists believe that warming of more 1.5-2° C above pre-industrial levels would result in dangerous impacts – impacts that most people would wish to avoid. (The earth is already about .8 degrees warmer than pre-industrial level, so we’re almost halfway there.) Even the most ardent boosters of the US-China deal don’t claim that, by itself, it will put the world on a 2° pathway, only that it is a first step. Second, do the targets announced by the United States and China represent a significant improvement over business as usual? Or, to put it differently, will achieving them require the US and China to significantly ratchet up their level of effort? Here, opinions differ widely, because they depend on judgments about what would happen in the absence of the targets, which in turn depend on assumptions about the economy, technology, and government policies more generally – all of which are highly uncertain. Who would have predicted, ten years ago, the Great Recession and the rapid expansion of fracking, both of which have had a huge influence on US emissions? So it is perhaps not surprising that some analysts say the US-China announcement “doesn’t change things much,” while others think it represents a major advance. Climate Interactive, for example, calculates that the US-China targets, if fully implemented, would reduce carbon dioxide emissions by about 650 billion tons through 2100 – and if other countries follow suit, taking similar targets, global emissions would be reduced by about 2500 billion tons through 2100. A brief sampling of estimates of Chinese and US emissions: 
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16 Nov

Events ASIL-IEcLIG Co-Chairs, Elizabeth Trujillo (Suffolk University Law School) and Jason Yackee (University of Wisconsin Law School), are happy to announce the upcoming ASIL--International Economic Law Interest Group's Biennial Research conference, on "Reassessing International Economic Law and Development: New Challenges for Law and Policy," taking place on November 13-15, 2014. It is hosted by ASIL Academic Partner University of Denver Sturm College of Law, in collaboration with...

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