Archive for
June, 2015

Weekly News Wrap: Monday, June 29, 2015

by Jessica Dorsey

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


Middle East and Northern Africa



  • Fractious European leaders argued into the early hours on Friday over how to handle over a migrant crisis in the Mediterranean, agreeing a plan to share out the care of desperate people fleeing war and poverty in North Africa and the Middle East.
  • Greek Prime Minister Alexis Tsipras has announced a temporary closure of banks, after the European Central Bank (ECB) said it would not increase additional emergency funding to the country.
  • The suspected Islamist who attempted to blow up a French chemical plant on Friday has admitted killing his manager beforehand, a source close to the investigation said on Sunday, as police linked the suspect to a militant now in Syria.
  • Turkish police fired water cannons and rubber pellets to disperse a gay pride parade in central Istanbul on Sunday, after organizers said they had been refused permission to march this year because of the Muslim holy month of Ramadan.
  • European Council President Donald Tusk urged European leaders to spend more on defense on Friday as deadly attacks in France, Tunisia and Kuwait drove home his point about dramatic changes to the security situation in Europe and its neighborhood.
  • The Swiss government will extradite wartime Muslim defender of Srebrenica Naser Oric to Bosnia, the Federal Office of Justice said on Thursday.



A Bad Weekend at the Office for CNN

by Kevin Jon Heller

First it confused ISIS’s flag with a gay-pride flag depicting various sex toys:


Then it placed Hong Kong somewhere in Brazil:


Interested readers may want to apply for fact-checking positions at CNN. I hear they’re hiring.

Reading and Learning from Mike Lewis

by Jens David Ohlin

I met Mike Lewis during my first year of law teaching at Cornell Law School. Mike was scheduled to give a lecture at the law school about torture and I was invited to give a commentary on his presentation. Mike had pre-circulated the paper that the presentation was based on. I disagreed with his thesis and pressed him sharply on its details during the event. His thesis had the virtue of proposing a very workable standard for defining torture, but I felt it yielded counter-intuitive results for particular reasons that I articulated during the event. Afterwards, I was worried that I might have offended Mike, but it was not the case. Immediately after he got home, he wrote me a lovely note saying how much he appreciated our substantive exchange and was grateful that I taken the time and energy to respond to his scholarship. He was a true scholar and intellectual.

In the ensuing five years, I spent much time reading and learning from Mike’s other articles on IHL. This came at a crucial time for me as I was broadening my research agenda from exclusively ICL to include a wider range of IHL and law of war issues as well. I became heavily involved in debates about drones, targeted killings, targeting in general, and the relationship between IHL and human rights law. In all of these areas, I was heavily influenced by Mike’s explanations and positions that he articulated in his many law review articles. And I should hasten to add that on most of these crucial questions I was in agreement with Mike. Although I disagree with the Obama Administration’s legal positions on a few issues (definition of imminence, over-reliance on covert action and its consequences, use of the vague and indeterminate “associated forces” moniker, etc.), the general tenor of my scholarship has been to recognize that the deep architecture of IHL continues to be fundamentally Lieberian. I came to this view of IHL by reading a great many sources, but I would rank Mike’s articles near the top of that list. Simply put, I would not hold the views that I hold today if I had not been so richly educated by reading Mike’s work.

I spent some time with Mike at the ethics and law of war conference that Kevin Heller mentions in his remembrance. Mike was full of plans and we discussed the possibility of collaborating on future projects on the subject of the privilege of combatancy–a common interest for both of us. We hosted him at Cornell University last year as part of our university-wide Lund Critical debates series, where he debated Mary Ellen O’Connell on the use of drones. The video of the event can be found here; Mike’s presentation to the packed auditorium was both insightful and extremely clear. He had the ability to translate complex legal material to a wide audience, and Mary Ellen’s thoughtful critique on U.S. policies made for a lively debate between the two of them.

As I set about working on a new collected volume on remote warfare, I emailed him in October to commission a chapter from him; he enthusiastically responded in the affirmative. When just a few days ago I sent him a contributor agreement for him to sign on June 5, he informed me of his illness and said he could not definitively commit to the project anymore but was hopeful that he might still produce a chapter for it. Though he was still optimistic and making important plans for the future, I understood the nature of the diagnosis and prognosis because he gave me the name of his illness, but I labored under the illusion that we had more time. I was shocked when I learned that the end had come so quickly; I was unprepared for the news even though in the back of my mind I inferred the seriousness of the situation. I am devastated that we have been denied his voice for what should have been another 50 years. It highlights for me the fragility of life and our time on this earth and the ultimate unfairness by which some people are denied the privilege of a long life. But I take some comfort in knowing that he loved being a law professor and that we will be reading his work in the years and decades to come.

A Sad Farewell to Michael Lewis

by Kevin Jon Heller

As regular readers know, Mike and I often sparred on the virtual pages of Opinio Juris. By and large, we did so civilly. But on occasion — such as when we were debating whether the Bush admininstration’s “enhanced interrogation” regime qualified as torture — things became heated. I made him mad. He made me mad. I doubt either of us expected to like each other if we ever met in the brick-and-mortar world.

But like each other we did. Mike and I met only once, on the first day of a fascinating conference on ethics and the laws of war. We recognised each other from across the room as we were getting settled, and he quickly stomped toward me. I was a bit hesitant — but then Mike gave me a big hug and said how great it was to meet me and how much he had enjoyed our debates. It was a really wonderful moment.

It fills me with sadness to know there will be no such similar moments again. But I am very glad I had the opportunity to meet Mike — and I will remember our discussions, both virtual and real, for a long time.

Requiescat in pace, Mike.

Farewell to Professor Michael Lewis: A Tireless and Important Voice on the Law of Armed Conflict

by Julian Ku

I want to join the others in the legal blogosphere in expressing my shock and sadness at the loss of Professor Michael Lewis.  Mike and I were fellow travelers on many legal and political issues, and I learned long ago that I would learn more from him on the law of armed conflict than he could learn from me.

As Professor Tom Lee of Fordham notes in his comment to Chris’s post below, Mike was an experienced naval aviator who overlapped in his time of service in the Navy with Tom.  Mike brought operational insights to the law of armed conflict, as his article on aerial bombardment during the First Gulf War in the American Journal of International Law showed.  But his background in the Navy was only a part of his identity as a legal scholar.  Mike was steadfast in working to develop a workable approach to the law of armed conflict that would satisfy both operational concerns and also strategic policy goals.

Mike was truly indefatigable. He would go anywhere, or take to any venue, to debate or discuss his views on LOAC and drone strikes in particular. Of course, he did not find many folks who agreed with him, but he always treated his interlocuters with respect and dignity. He wanted to debate, argue, and continue to debate and discuss.  He would do this for even the most sensitive and controversial issues.

Indeed, I first met Michael when he recruited me to speak on a panel he organized at the annual meeting of the American Association of Law Professors on one of those topics:  U.S. interrogation policies and torture.  I was not exactly excited to be on the panel, given the reaction I was sure we would receive, but Michael worked hard to keep our discussion civil and useful.  I was impressed with his willingness to tackle this topic, and his willingness to take a controversial and unpopular approach.

Michael was an important and thoughtful academic voice on some of the most important legal questions facing us today.  I will miss him.


Remembering Mike Lewis

by Chris Borgen

We are very sorry to mark the passing of Professor Michael W. Lewis of Ohio Northern University.

Mike spoke and wrote with rare authority as someone who was not only a leading international law and national security scholar who engaged in broader public discourse (see his many debates, presentations, and interviews), but also as a former Naval aviator and TOPGUN graduate, who had flown F-14’s in Desert Shield and enforced no-fly zones over Iraq.

More than most, Mike appreciated how international law was actually operationalized.

We at Opinio Juris benefited from Mike’s frequent contributions to the discussion, with posts and comments on issues such as the relationship between Additional Protocols I and II,  on various aspects of drone warfare (see, for example, 1, 2, and 3), and on  “elongated imminence” and self-defenseBobby Chesney and Peter Margulies have also posted remembrances about Mike Lewis at Lawfare.

On a more personal note, I remember the first time I met Mike in person, perhaps ten years ago, at a dinner at a national security law conference. He was a great conversationalist, speaking about the need to crystallize key principles of international law in a manner that would be immediately usable by the pilots and flight crews who were actually flying sorties.

His voice was unique and it will be missed.

Weekly News Wrap: Monday, June 22nd, 2015

by Jessica Dorsey

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


Middle East and Northern Africa





  • Kakuma camp in northern Kenya is expanding by nearly a half, the U.N. refugee agency said on Saturday, to house refugees fleeing nearby South Sudan as hopes fade for peace in the world’s newest nation.
  • The UN refugee agency has said that the record number of refugees, asylum seekers and internally displaced people globally is “a reflection of a world in chaos“.

Events and Announcements: June 21, 2015

by Jessica Dorsey


  • On 22 June 2015,  University Paris 8 Research Centre “Forces du droit” organizes a one-day conference entitled  “Forms of International Law – Insight into the Outcomes of the Work of the International Law Commission”. The conference, which will take place at the French Ministry of Foreign Affairs Conference Centre (27, rue de la Convention – 75015 Paris), intends to address the evolution of formal outcomes given to ILC legal products, from treaties to soft law instruments. Academics, experts of the Commission’s work but also practitioners – such as legal advisers from diplomatic services and members of international courts and tribunals – will gather to address this phenomenon, discuss its causes and potential consequences as to the current development of international law. The Conference will include, among its speakers and chairs, the President of the ICJ, Judge Ronny Abraham, ICJ Judge Giogio Gaja, the Legal Counsel of the United Nations, Mr. De Serpa Soares, the Legal Counsel of the French Ministry of Foreign Affairs and International Development, Mr. François Alabrune, and several prominent figures in the field of international law. More information and details for registration can be found here.
  • 7 PhD Fellowships within legal research are available at the Faculty of Law of the University of Oslo. The deadline for application is 1 September 2015. You can find more information here.

Call for Papers

  • The Asian Society of International Law was established in 2007. Following four successful biennial conferences, the Fifth Biennial Conference of the Asian Society of International Law will be held in Bangkok, Thailand on Thursday and Friday, 26 and 27 November 2015. Theme of the Conference: Nowadays governments, scholars and civil society in Asia are engaged enthusiastically in the development of international law in the region. Asian countries today witness more regional cooperation and economic integration, for instance, through the launch of the ASEAN Economic Community (AEC) and the Asia Infrastructure Investment Bank (AIIB), etc. The conference will confront the changes that will ensue from these developments in the region, and provide a forum to share perspectives on legal issues from around Asia and from beyond. To this end, proposals for papers are now being invited. Please click here for more information.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.


Fourth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

The forum is being held this week in Florence, Italy. Here is the description:

The Annual Junior Faculty Forum for International Law was launched in the summer of 2011. It held its inaugural event at the New York University School of Law in May 2012; the second Forum was held at the University of Nottingham in May 2013 and the third (and most recent) Forum occurred at the University of Melbourne in July 2014. The Forum is designed as a regular addition to the international law calendar; its founding co-convenors are Dino Kritsiotis, Professor of Public International Law in the University of Nottingham, Anne Orford, Michael D. Kirby Professor of International Law in the University of Melbourne, and J.H.H. Weiler, President of the European University Institute in Florence. The Forum will allow international legal scholars, in the first six years of their academic career, a unique opportunity to present their research work by being paired with a senior scholar in the field of international law or related fields, who will lead a discussion of their presentation within the Forum.

The fourth Forum will convene at the European University Institute in June 2015, and selected presentations from the Forum will be published in the European Journal of International Law (Oxford University Press), a practice established from the inaugural Forum.

The young scholars invited to participate this year are: Rohini Sen (O.P. Jindal Global), Kristina Daugirdas (Michigan), Ingo Venzke (Amsterdam), Anne-Charlotte Martineau (Max Planck), Oisin Suttle (Sheffield), Nicolas M. Perrone (Universidad Externado de Colombia), Deborah Whitehall (Monash), Anna Dolidze (Western), Mieke van der Linden (Max Planck), Arman Sarvarian (Surrey), Surabhi Ranganathan (Warwick), Philippa Webb (King’s College), and Maria Varaki (Kadir Has).

It should be an excellent forum. I hope readers who are young academics will consider applying for the fifth one!

Guest Post: Exploring Legal Rationales for South Africa’s Failure to Arrest al-Bashir

by Asad Kiyani

[Asad Kiyani (LL.B (Osgoode); LL.M (Cambridge) is a PhD Candidate at the University of British Columbia (UBC).]

While social and traditional media have been flooded with complaints about South Africa’s recent failure to arrest Omar al-Bashir, legal analysis of the situation has been lacking. Many have insisted that the reluctance to arrest al-Bashir is  ‘the impunity club’ disregarding legal principle and undermining the rule of law.

Yet, given the widespread insistence that the ICC has jurisdiction over Bashir and he must be arrested by anyone who can do so, there is a remarkable lack of agreement on exactly how the treaty-based ICC has jurisdiction over the sitting head of state of a country that has not ratified said treaty, and when that head of state is protected by customary law immunities (see Gaeta vs Akande, which inspired my article on the same).

For reasons of space, this post does not address the claim that there is already a rule of customary international law that provides an exception to head of state immunity. That position frequently involves the same errors: conflating the immunities of former heads of state (such as Pinochet) with incumbent heads of state, and conflating the elimination of the substantive defence of official capacity with elimination of the procedural bar of immunities. Nor does it deal with peace versus justice arguments, the specificities of South African constitutional law, or perhaps the more promising, genocide-based arguments in favour of arresting al-Bashir highlighted by Göran Sluiter. Instead, this post problematises the assertion that states refusing to arrest al-Bashir have no legal legs to stand on by highlighting four interrelated public international law issues raised by the legal pursuit of al-Bashir.

(1) There has been no reconciliation of the apparent internal contradictions in the Rome Statute: that states are obligated to carry out ICC decisions while also respecting the customary duties they owe to other states, particularly third-party states. Article 27(2) of the Rome Statute waives states’ customary protections of immunities. At the same time, Article 98(1) states that persons clothed in immunity can only be arrested by or surrendered to the Court if “the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

Sudan has clearly not consented to this waiver, and is not cooperating with the Court to waive al-Bashir’s immunity. At the same time, the Court insists that al-Bashir is to be arrested. Thus States Parties to the ICC are faced with competing obligations written into the Statute itself: to arrest al-Bashir while also observing his immunity from arrest. Arguments that there is no contradiction nullify these important provisions of the Rome Statute, and ignore the treaty-law implications of doing so.

(2) Importantly, the Article 98(1) provision is not just a treaty-based rule; it is the assertion of pre-existing principles of public international law that (a) preclude placing treaty obligations on third-party states, and (b) recognize customary law immunities. Thus, even if the Court were to interpret Article 98(1) differently, or the Assembly of State Parties were to delete it from the Rome Statute (a virtual impossibility), the same restrictions would still apply to states such as South Africa because those rules exist in international law independent of the Rome Statute.

These restrictions also apply to the Security Council, even when acting under Chapter VII. While the Security Council has extensive powers in international law, the general scholarship (see, e.g., herehereherehere, and here) and jurisprudence makes clear that – contrary to Jens Ohlin’s interpretation of Article 103 of the UN Charter – the Council is restrained by the norms of customary international law. Thus, as far as al-Bashir goes, it makes no difference that the Council referred Darfur to the ICC through a Chapter VII resolution. Insisting that Chapter VII can override customary international law – no matter how awful the person protected by it may be – collapses the agreement/custom distinction first made in Article 103 of the Charter and preserved in Article 98 of the Rome Statute. Additionally, it raises the question of what legal limitations do exist on the Council, and how this interpretation fits with the Tadić court’s view (here at para. 28).

Of course, this does not render Security Council referrals null – it simply restricts the pool of situations that the Council may refer to the Court. Continue Reading…

More thoughts on al-Bashir, Sudan, and South Africa

by Jens David Ohlin

I wanted to follow up on my previous post about the inter-branch dispute in the South African government over executing an international arrest warrant against President al-Bashir of Sudan. A South African court issued an order preventing al-Bashir from leaving South Africa, but notwithstanding this decision, the South Africa government appears to have let him escape anyway. It appears to be a case of executive branch defiance of a binding judicial order.

Several readers have suggested that South Africa is not under a legal obligation to arrest al-Bashir because doing so would violate their obligations to Sudan to respect either head of state or diplomatic immunity under either customary international law or the Vienna Convention. Furthermore, article 98 of the Rome Statute specifically says that a party to the Statute need not arrest someone if doing so would conflict with its other international obligations. Some have suggested that either South Africa or the ICC can request a waiver from Sudan, but if no waiver is forthcoming, then South Africa need not execute the arrest warrant pursuant to article 98, which reads:

Article 98: Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

This is an old debate, with important and excellent contributions from scholars such as Paola Gaeta and Dapo Akande. I want to make a quick point here and just broadly sketch out my view on this matter.

Regardless of the correct view on this matter in general, there are specific aspects to this particular dispute with Sudan that are relevant to the legal analysis. It is not just a question of analyzing the Rome Statute, customary international law, and the Vienna Convention. There are other sources of law to consider.

The charges against al-Bashir include genocide. Although the legal obligations regarding the prevention and punishment of genocide originally emerged from the Genocide Convention, they have now risen to customary international law and represent erga omnes obligations. Furthermore, one of those obligations is the duty to prosecute or extradite any individual accused of genocide. This is a jus cogens obligation that prevails over any supposed legal obligation under the law of diplomatic relations. In this case, then, Sudan is under a legal obligation to either prosecute al-Bashir or turn him over to a competent court for trial. Because of this obligation, South Africa would not be violating any duty to Sudan by arresting al-Bashir and sending him to The Hague.

Even if one does not accept this argument, there is a second reason why Sudan is under a legal obligation to turn over al-Bashir, and by extension why South Africa owes no legal obligation to Sudan in this regard. The UN Security Council, in referring the case to the ICC, invoked its Chapter VII powers and directed Sudan to cooperate with the court. As such, Sudan is under an international legal obligation to cooperate with the court. Since this legal obligation is binding and stems from the Security Council’s Chapter VII authority, it prevails over any conflicting legal obligation. This principle is embodied in Article 103 of the Charter but is also customary law and part of the necessary architecture of our modern Charter-based collective security regime.

(Just to be clear, the details of this analysis need to be flushed out; for purposes of blogging brevity, this was the outline of the argument.)

Weekly News Wrap: Monday, June 15, 2015

by Jessica Dorsey

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


Middle East and Northern Africa


  • A teenage North Korean soldier has walked across the world’s most heavily militarised border in a bid to defect to South Korea, South Korean defence ministry officials said.
  • Britain has pulled out agents from operations in “hostile countries” after Russia and China cracked top-secret information contained in files leaked by former US National Security Agency contractor Edward Snowden, according to the UK’s Sunday Times newspaper.





  • UN-sponsored negotiations on the Yemen crisis have started in Geneva, with the aim of ending the bloody conflict in the country.These talks aimed at ending the war in Yemen have however been thrown into doubt amid uncertainty over whether rebel Houthi negotiators will attend, with reports saying the Shia rebels missed a flight to Geneva.

Bashir Leaves South Africa

by Jens David Ohlin

I’m not one to get hysterical over ICC news, but this recent development today strikes me as deeply problematic, and perhaps a tipping point. But perhaps not the tipping point that the ICC detractors have in mind.

Sudanese President al-Bashir was attending a conference in South Africa this weekend with other heads of state and officials from several African nations. The government of South Africa took the position that Bashir was entitled to immunity and could not be arrested; apparently, this was Bashir’s assumption as well, otherwise I doubt he would have traveled to South Africa in the first place.

However, a South African court ruled that Bashir should be arrested, since South Africa voluntarily signed the Rome Statute and has a legal obligation as a member of the court to execute its arrest warrants. You will recall that the Sudan case began as a Chapter VII referral from the UN Security Council.

In response, the South African government whisked Bashir out of the country, apparently in open defiance of a judicial order preventing them from letting him leave, and just hours before the Supreme Court of South Africa ruled that the government was under a legal obligation to arrest him and explicitly finding that the government’s failure to arrest him would be contrary to the South African Constitution.

From the outside looking in, this looks awfully close to being on the precipice of a constitutional crisis in South Africa. Although one would expect inter-branch disputes in any divided government, such open defiance of a binding judicial order strikes me as deeply harmful to the rule of law. From news reports, I see no evidence that the original judicial order was suspended or otherwise not operative in the hours preceding the Supreme Court’s decision. (But if a reader from South Africa knows the specifics on this question, and the news reports are wrong, please educate us in the comments section.)

What will the ICC do? It strikes me that this level of open defiance — not just of the ICC but also of one’s own judiciary — takes the failure to arrest Bashir to a whole new level. Some will no doubt suggest that this entails that the ICC is a sham with no real power or authority. I take the opposite conclusion. I wonder if this brazenness will now force either the ICC Assembly of State Parties or the Security Council to finally engage in some enforcement actions against states who are not cooperating with the ICC on this matter. Indeed, I would think that the Assembly of State Parties is the appropriate body to take decisive action on this matter. Not only has the ICC concluded that Bashir must be arrested, head of state immunity notwithstanding, but apparently the South African Supreme Court agreed as well. So what excuse can the South African government muster? It would seem that neither international nor even domestic law supports their position, thus weakening the rhetorical power of their arguments. They cannot even suggest that they were caught between their international and domestic obligations.

Of course, I am not an expert on South African law. In the US it is very difficult to get a court to issue an order demanding that the executive arrest someone. (A writ of mandamus in that context would be highly unusual.) Usually the judiciary does the opposite: tells the executive to release someone they have arrested. But South African law might be different in that respect, as indeed are civil law jurisdictions that allow for the triggering of the criminal process in ways other than the discretionary arrest of the suspect by the police. Again, I’d appreciate any information on South African procedure that readers might have.

UPDATE: The name of the court that issued the ruling was the North Gauteng High Court in Pretoria.

Will Al-Bahlul’s Appeal of his Conspiracy Conviction go to the Supreme Court?

by Jens David Ohlin

On Friday, the DC Circuit vacated al-Bahlul’s military commission conviction for conspiracy. There has been, and will be, much coverage of this decision, especially since the decision is a great candidate for a successful Supreme Court cert petition. Assuming that the federal government wants to appeal, which I can’t imagine it would not, the case would allow the Supreme Court to return to an issue — conspiracy as a substantive offense — that it has not addressed since Hamdan (which left many crucial questions unanswered due to the fractured nature of the majority opinion and Justice Kennedy’s unwillingness to take a position on the conspiracy issue). So Bahlul is ripe for SCOTUS consideration.

There are many aspects of the lengthy DC circuit opinion, and others have discussed the Article III issues in greater depth and detail, including Steve Vladeck, Peter Margulies, Steve Vladeck again, and others.  Some are more interested in the constitutional question about what constraints exist on military commission jurisdiction as an exception to the usual constitutional requirements of an Article III court (a judge with life tenure, etc.).

But what interests me more is the government’s argument that although conspiracy is not a violation of the international law of war, there is still sufficient evidence that conspiracy is triable before military commissions as a matter of domestic “common law of war,” something akin to the precedent of military commissions.  In the past I have wondered aloud about the details of this bizarre argument. So what I found most interesting in the DC Circuit’s opinion is that they do not push back as strongly as I would have liked on the government’s methodological framing of this argument, and instead push back on the paucity of evidence for its conclusion. Here is the specific paragraph that interests me:

The history of inchoate conspiracy being tried by law of war military tribunals is thin by comparison and equivocal at best. The government has identified only a handful of ambiguous examples, and none in which an inchoate conspiracy conviction was affirmed by the Judicial Branch. The examples are unpersuasive in themselves and insufficient to establish a longstanding historical practice (page 18).

The opinion then goes on to note the problematic precedent of the Lincoln assassination case, which was prosecuted before a military commission. Although conspiracy was one of the charges, the decision notes that the relationship between conspiracy and the completed offense was totally unclear in the case. (Whatever one thinks of the Lincoln assassination case as a precedent, it was clearly not a case of pure inchoate conspiracy, since the conspiracy was not frustrated and it succeeded in killing Lincoln).) Furthermore, while the Quirin conspirators during World War II were charged with conspiracy, the Supreme Court made no mention of the conspiracy charges when it upheld their convictions from the military commission, preferring instead to rest its analysis on the sabotage charge.

Finally, the majority notes that although Thomas’ dissent in Hamdan clearly relied on inchoate conspiracy as a part of the domestic common law of war, the majority contends that at most there were only three votes for this position at the time of Hamdan. To the extent that other justices referred to the common law of war in Hamdan (the Stevens opinion), it was used as a source of constraint, rather than expansion, for the jurisdiction of the military commissions.

(One problem I noted in reading the opinion is that on page 37 of the opinion the majority refers to JCE and aiding and abetting as “offenses against the law of war,” instead of referring to them as modes of liability or legal doctrines. Not sure why they would say that.)

Of course, I’ve left out  a host of other constitutional issues that are important in this case, in part because what concerns me is the fate of conspiracy under the law of war, and how courts should understand the “law of war” as a body of law. Part of what makes this case so fascinating is that the government and the defense have radically different ideas of what the law of war is. Although the majority opinion in Bahlul does not explicitly resolve this question, it does say on multiple occasions that both the Quirin and Hamdan holdings were based on the international law of war.

Will the Supreme Court grant cert in this case? I am inclined to say yes, simply because hearing this case will help clarify the jurisdiction of military commissions in both a general and specific sense. The general element is that the Supreme Court will have the opportunity to clarify how and why military commissions operate as exceptions to the Article III requirement. The specific element is that the Supreme Court can clarify its position on the crime of conspiracy, which continues to be at issue in terrorism prosecutions.

Guest Post: Revoking Citizenship of Foreign Fighters: Implications for the Jurisdiction of the International Criminal Court

by Ailsa McKeon

[Ailsa McKeon is a BA/LLB (Hons I) from the University of Queensland.]

Growing numbers of men and women are travelling to the Middle East to fight for ‘ISIS’. Political figures from several Western nations, including Australia, the UK, Canada and Norway, have publicly asserted that these individuals should be stripped of citizenship of their countries of origin to protect, punish and deter. Yet, however well-intentioned this strategy may appear, it could also have negative consequences for the ICC’s jurisdiction if these individuals are accused of crimes within its remit.

Revocation of citizenship is contrary to international law if it renders any individual stateless. It is possible nonetheless, as shown, for example, by Burma/Myanmar’s treatment of Rohingya people. The idea is less controversial when applied to those with multiple nationalities who would retain at least one. Regardless, revocation of citizenship in any case would be a complicating factor for ICC jurisdiction.

Art 25(1) of the Rome Statute gives the ICC jurisdiction over natural persons only. Art 12 sets out the preconditions for the ICC’s exercise of jurisdiction in relation to the crimes specified in Art 5(1). Essentially, it requires the State on whose territory the relevant conduct occurred, or of which the person accused of the crime is a national, to be a party to the Rome Statute or to have consented to the Court’s jurisdiction in respect of the particular crime alleged. The exception is where the UN Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Prosecutor in which a crime within the ICC’s competence appears to have been committed. The ICC can then exercise jurisdiction whether or not the relevant State is a party. However, such referrals may be impeded by the exercise of the veto power by any of the five permanent Security Council members.

Where an individual commits acts alleged to constitute crimes within the ICC’s jurisdiction before revocation, they can be pursued as a national of a ratifying nation based on Art 12(1): that is, at the time the crime is said to have been committed, the person was a national of a State Party, which, by becoming a State Party, accepted the court’s jurisdiction over its territory and nationals. Subsequent withdrawal of citizenship cannot change that. However, the ability later to exercise that jurisdiction is a distinct issue, as will be discussed below in relation to Art 127.

In the reverse situation, where an individual commits such conduct only after withdrawal of citizenship of a State Party, the existence of jurisdiction is unlikely. It seems that in the continued absence of territorial jurisdiction, the ICC would be unable to commence proceedings due to lacking jurisdiction ratione personae. This challenging prospect presently confronts the ICC, as Western nations foreshadow action to revoke citizenship of foreign fighters. Prosecutor Bensouda released a statement in April 2015 indicating that, although the situation continues to be monitored, the Office of the Prosecutor is not currently in a position to commence investigation or prosecution of any individual involved with ISIS from a State party. As the Prosecutor observes, neither Iraq nor Syria (nor many of their neighbouring States) is party to the Rome Statute: as such, the ICC would rely on personal jurisdiction to prosecute any foreign fighter alleged to be most responsible for mass crimes. In the event that personal jurisdiction is removed, the ICC would be rendered powerless over such individuals.

The situation with respect to crimes continuing either side of revocation is more indeterminate, in the same manner as continuing crimes commenced prior to the Rome Statute’s entry into force. This is relevant because the precise point at which revocation of citizenship would take effect with respect to any particular individual under various national legislative regimes is unknown.

The most direct analogy as to loss of jurisdiction over continuing crimes arises under the Statute of the ICTR. (Similar circumstances affect the ECCC, however the issue has not been addressed there.) Art 7 defines the ICTR’s temporal jurisdiction to “extend to a period beginning on 1 January 1994 and ending on 31 December 1994”. The ICTR held in the Nahimana appeal that “[criminal] responsibility could not be based on criminal conduct prior to 1 January 1994, but… evidence of pre-1994 acts could nonetheless have probative value”. However, nothing was said in that case of conduct occurring after 31 December 1994; the same conclusion cannot necessarily be drawn regarding the evidentiary value of subsequent conduct as to possible earlier criminality in this context. Regardless, this ruling seems to confirm the view that jurisdictional limits are applied strictly, even for continuing crimes that are commenced before, but not completed until after, jurisdiction is removed. Loss of jurisdiction by the ICC would therefore prevent determination of culpability or innocence.

A less obvious parallel may be drawn with the law of diplomatic protection. Where an individual with immunity loses nationality of the State from which it was derived prior to commencement of criminal proceedings, the individual will also lose the protection of that State in respect of a wrong they committed while its national. As a result, proceedings may ensue against an individual who had held diplomatic protection at the time of allegedly committing a wrong, where otherwise they could not. However, that situation is distinguishable from the one of present concern: there, a pre-existing bar is removed so that jurisdiction is allowed, while in the case of revocation of citizenship, jurisdiction exists until its substratum is displaced by the revocation. This does not speak in favour of ICC jurisdiction existing in respect of continuing crimes where the elements of the crime are not complete until after citizenship is revoked.

A contrasting analogy may be made with the withdrawal of ratification of the Rome Statute. Art 127(2) states:

“… [a State Party’s] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

This provision foresees politically-motivated withdrawals and operates so that the ICC retains the ability to exercise jurisdiction over individuals already being investigated or prosecuted, despite the State Party’s ouster of its jurisdiction otherwise. Art 127 explicitly applies only to State Party withdrawal from the entire Rome Statute, operating to displace the rebuttable presumption that a treaty cannot be denounced unilaterally unless it is shown that this possibility was intended by the parties or that a right of withdrawal exists by implication from express terms.

The obverse consequence implied by Art 127(2) is that proceedings may not be commenced in the ICC in respect of the territory or nationals of a State that has withdrawn with effect as per Art 127(1). This position seems also to apply to persons whose citizenship of a State Party has been revoked, even where a continuing crime was allegedly commenced while citizenship of a State Party remained in force, for the reason observed earlier that such jurisdiction has been lost by the time the crime is complete. Further, given its specificity, Art 127 cannot be applied directly to revocation of citizenship to suggest that jurisdiction will continue over individuals whose investigation or prosecution has been commenced, but whose citizenship is subsequently revoked. Rather, in the absence of express provision to that effect, it appears that proceedings would have to be abandoned. This proposition is confirmed by the terms of Art 12(2), which relevantly provides that “the Court may exercise its jurisdiction if… the State of which the person accused of the crime is a national” is a State Party or has accepted the jurisdiction of the Court in accordance with Art 12(3). Although the crime remains within the ICC’s competence, personal jurisdiction is absent where the person is no longer a national of a ratifying State.

Were any ratifying nation to follow through with revoking a foreign fighter’s citizenship, it is arguable that this act would breach the obligation under Art 86, “in accordance with the provisions of [the] Statute, [to] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” In fact, it would make it substantially more difficult for the ICC to pursue individuals suspected of involvement in the most egregious crimes where those crimes are not commenced or completed until after the revocation.

This issue is a live one. Foreign fighters are firmly positioned within ISIS’s leadership structure and in active operations, while allegations of war crimes and crimes against humanity have already been made against the group. There is a clear possibility that foreign fighters may warrant investigation and prosecution by domestic or international authorities. It should therefore be of concern that an essentially administrative act by a State Party may seriously impede ICC involvement where a State is unwilling or unable to proceed.

Events and Announcements: June 14, 2015

by Jessica Dorsey


  • Registration is now open for the 11th Annual Conference of the European Society of International Law to be held at the University of Oslo on 10 – 12 September 2015. The conference theme is: The Judicialization of International Law – A Mixed BlessingConference highlights include:
    • A Keynote Panel on A Turn to the Rule of Law in International Politics: The Role of the International Judiciary with James Crawford and Martti Koskenniemi
    • Agorae focusing on current events: International Law and the Fight against ISIS; The Accession of the European Union to the European Convention on Human Rights; The Situation in Ukraine
    • A closing lecture on Developments in Geopolitics – The End(s) of Judicialization? by Philippe Sands
    • A reception at Astrup Fearnley, museum of contemporary art, and a conference dinner at the Hotel Continental in the city center of Oslo

    The draft programme of the conference and details of how to register for the event are available on the conference website. There are still various possibilities for sponsoring the event. For information about sponsorship possibilities please contact the organizing committee at esil-2015 [at] jus [dot] uio [dot] no.

  • On Thursday 17 September 2015, the Otto-Riese Memorial Lecture by UNCTAD Secretary-General will take place in Lausanne Switzerland – Dorigny. Mukhisa Kituyi, of Kenya, who became UNCTAD’s seventh Secretary-General on 1 September 2013, will deliver the Otto-Riese-Memorial Lecture on Thursday 17 September 2015 at 17:15 at the Opening Ceremony of the LLM Programme in International and European Economic and Commercial Law (MAS) of the University of Lausanne. He has an extensive background as an elected official, an academic, and a holder of high government office. He also has wide-ranging experience in trade negotiations, and in African and broader international economics and diplomacy. Prof. Andreas R. Ziegler, Director of the LLM Programme is proud and happy that the Secretary General has accepted his invitation. The programme organizes a lecture series in honour of Otto Riese. Otto Riese (1894-1977) was a professor and Dean at the University of Lausanne Law School who became the first German judge at the European Court of Justice.
  • On Friday 18 September 2015 (9:00 – 17:00) a workshop entitled Preferential Trade and Investment Agreements: Curse or Blessing? will take place, hosted by the Study Group on Preferential Trade and Investment Agreements (PTIAs) of the International Law Association (ILA) with presentations by its members at the University of Lausanne. It is a one-day event though an opening reception is held on Thursday evening 17 September 17:30 with a guest lecture by the UNCTAD Secretary General Mukhisa Kituyi followed by a reception. Sign up from  09.06.15  to  28.08.15 The event is open to the public and pre-registration is open now (E: llm [at] unil [dot] ch). The event is co-organized by the LLM Programme in International and European Economic and Commercial Law at the Law Faculty of the University of Lausanne together with the Swiss Branch of the ILA and the Swiss Network for International Studies (SNIS). The event is free for students and ILA Members (of any branch). All others pay 150 CHF or can alternatively join any ILA branch. In order to join the Swiss branch of the ILA now (including free membership for the rest of 2015, 100 CHF per year from 2016) contact E: llm [at] unil [dot] ch.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

New app facilitates evidence collection for atrocity crimes

by Kristen Boon has released a new app that creates a secure “digital locker” for those who seek to record digital evidence of atrocity crimes for eventual use in by courts. The app has been produced by the International Bar Association and the legal services division of Lexis Nexis.   Information is available here.    The app was developed after controversies regarding the veracity of videos in other contexts.

By using metadata, the recordings can verify the location via GPS coordinates, and date / time of the collection, and confirm no editing has taken place.  The app also contains a “destruct” feature if the user wishes to delete it and the material in an emergency.

What will eyewitness do with the footage?   Their webpage reports:

eyeWitness will use the footage to promote accountability for international atrocity crimes, specifically war crimes, crimes against humanity, genocide, and torture. When eyeWitness receives the images, a copy is transferred to a specialised database for analysis by the eyeWitness expert legal team. The team will analyse the videos to determine if they may show that an atrocity crime was committed. The eyeWitness legal team becomes the advocate for the footage, working continuously with legal authorities in relevant international, regional, and national jurisdictions to ensure the image is used to bring to justice those who have committed international atrocity crimes. In some cases, particularly when an atrocity is brought to light that has not received international attention, eyeWitness may provide a copy of the footage to media to raise awareness of the situation and advocate for investigation.

The development of apps such as this one may revolutionize the investigation of international atrocities.  They provide potentially very crucial streams of evidence, and facilitate “citizen policing.”   In the domestic context, there are analogies to a police accountability app released by the ACLU last week.

This app is a significant development in the field of atrocity investigations for the many “citizen journalists” willing to risk injury, arrest and maybe even death to document crimes.  Yet it still raises some important questions.  Traditional investigative authorities, for example, are subject to investigation protocols that are intended to yield highly probative evidence.   Given the unstable situation in Syria, Ukraine, Iraq the DRC (where the IBA hopes the app will be used) and the limited jurisdiction of international courts, traditional authorities have not been able to perform their role of documenting and investigating ongoing atrocities. Nonetheless, the absence of trained professionals and the lack of protocols, means that certain safeguards will not be available.

In addition, if lawyers tried to to gain access to the stored material, there may be battles over rights of confidentiality.   Indeed, given the massive amount of evidence apps like this could produce, this may be no small challenge for Lexis Nexis.

Although eyewitness does not commission any particular investigations, this technology is linked, in  a broader sense, to the work of private organizations like the Commission for Justice and Accountability (CIJA), which has conducted independent investigations in conflict situations, often before staff from international criminal tribunals are on the ground.   This article by Mark Kersten in the Washington Post lays out the pros and cons.   On the one hand, privately funded investigations may speed up the investigation of international crimes, and ensure that crucial evidence is not lost.   The individuals who work for these organizations also have a self-described higher risk tolerance than public bodies. On the other hand, impartiality and chain of evidence are key concerns: prosecutors fear the evidence collected by these organizations may not stand up in courts of law.

The development of this technology, and the parallel trend towards privately funded investigations, suggests that a profound change in the way international crimes are investigated is underway.


Thank You, An Hertogen

by Chris Borgen

In March 2012 An Hertogen and Jessica Dorsey joined Opinio Juris as our first two Assistant Editors. Over the years, both have contributed immensely to Opinio Juris. Today, we bid An farewell as she enters a new phase in her career.

You may be most familiar with An’s work writing our Weekly Round-Ups and well as the Events and Announcements posts. But that was only the most public part of a great deal of work she has put into the site, including organizing symposia, proofing and editing submissions, and troubleshooting technical issues. An and Jessica were also the team that began our (now yearly) “Emerging Voices” symposium, highlighting the work of early career academics and practitioners (the next iteration of which will begin next month).

In short, An has been a great colleague and we will miss her. We are, however, excited about what is next for her: An has recently accepted a position as a lecturer at the University of Auckland Faculty of Law and she has also been awarded a research grant for a multi-year project on good neighborliness in international law. We hope that once she gets settled into her teaching schedule, An will guest blog with us.

On behalf of all of us, An, thank you for all your diligent work and the long hours that you have put into Opinio Juris. We wish you the best and we look forward to working together again soon.

Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 2 of 2)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace. Part 1 can be found here.]

2. International Criminal Justice and Reconciliation: Improving Connections

It is easy to criticize international criminal justice for its shortcomings. A hard question is: How can the connection between international criminal justice be improved?

Existing studies have expressed doubts to what extent international criminal trials have promoted a ‘thicker’ conception of individual, inter-group or inter-societal reconciliation, at least in the short or medium term. International trials have limited the space for denial of atrocities and created a public space and reference point to confront history, which is one pre-requisite for societal transformation. In past years, international courts have sought to address their limitations through greater investment in restorative features (i.e., victim participation, compensatory justice), complementarity strategies, and education and outreach (e.g., legacy). But improvements might start with a closer look at retributive practices and procedures.

2.1.Reconciliatory potential of retributive justice

There is, first of all, a need to reduce practices that undermine the reconciliatory potential of retributive justice.

(I) Judicial Management

One of the most basic lessons is that  criminal courts and tribunals need to complete trials and produce a judicial outcome, in order to have a transformative effect. In existing practice, criticism has focused on the divisive nature of acquittals or dissents. Such judgments may indeed confirm existing societal tensions. But they are not necessarily detrimental to longer-term processes of reconciliation. They represent a legitimate outcome and contribute to the process of truth-finding. More critical are flaws in the justice process as such, i.e., unfinished or derailed proceedings. At the international level, there are number of critical examples over the past decade, including Milošević, Lubanga, or most recently Kenyatta. In a national context, the Rios Montt trial was affected by dilatory tactics and intimidation. Such examples undermine the demonstration effect of justice, and the faith in law and institutions that is necessary for meaningful engagement with the ‘other’.

The prospect of the trial to contribute to reconciliation depends on its acceptance and perception as a common forum. Each trial necessarily involves a certain degree of theatre and drama. International trials can easily turn into show trials, and struggle to confront ideology fueled criminality. These challenges need to be addressed. Judicial proceedings need to provide space to challenge pre-determined attitudes and biases or the heroization of agents, in order to maintain their perception as shared fora. This requires active, and sometimes better judicial management of proceedings, deeper engagement with conflicting visions of history and causes of criminality, and space to highlight and challenge contradictions in ideology-tainted discourse.

(ii) Plea agreements

From a reconciliatory perspective, it seems tempting to encourage plea agreements in proceedings. But this inclination is deceptive. In the early ICTY practice, guilty pleas were used as a means of reconciling punishment with acknowledgment of wrong or apology. Experience has shown that such admissions of guilt cannot be taken at face value. For instance, Mrs Plavsic’s guilty plea in 2003 was initially heralded as a significant move towards the advancement of reconciliation. After sentencing, she retracted her guilty plea and expression of remorse. This experience highlights the fragility of negotiated justice.  If an apology is offered in return for sentence leniency, it might not necessarily benefit reconciliation, and call it into question the genuineness of remorse.

In the ICC context, risks of bargaining are curtailed by greater judicial power, and structural attention to the interests of victims (Art. 65 (4) ICC Statute) But at the Court, similar concerns have arisen in the context of the apology of Katanga. Katanga’s remorse was offered after the sentencing judgment, and before the decision on appeal. It caused resentment among victims, since it was perceived as a tradeoff for the discontinuance of the appeal.

2.2. Justice Approaches

International criminal justice may contribute to break divides, if it makes best use of the constructive tension between retributive and restorative approaches.

(i) Constituency and locality  

A fundamental element is the approach towards constituency and locality. Justice, and in particular, justice in the Hague, must be a two- way street. International proceedings are not merely abstract processes, geared at the interests of the parties or fictive community interests; they require a close nexus  context, and the interests of affected communities and victims. It is this inclusiveness, which connects international criminal justice to processes of reconciliation. In current practice, interaction with the ‘domestic’ or ‘local’ is often characterized by outsourcing, transfer of cases or one-directional communication (e.g., ‘outreach’). The conditions of this relationship, and its transformation over time (e.g., after closure of cases) require further structural attention. Holding local hearings (e.g., Ntaganda) may facilitate visibility and access to victims, and foster the perception that ‘justice is seen to be done’. But it is not in itself sufficient to facilitate a structural dialogue locally.

(ii) Challenging‘friend/enemy’ clusters

Many trials suffer from the reproduction of binaries, and are perceived as obstacles to reconciliation, if they remain entrenched in ‘friend/enemy’ clusters, or associate crime or victimhood across pre-configured collective identities (e.g., ethnic lines). International criminal justice may reduce these frictions, if it pays attention to rights and wrongs of  all sides of the conflict, as mandated by the principle of objectivity (Art. 54 ICC Statute). A positive contribution to reconciliation also requires better engagement with dilemmas of selectivity, and justification of choices (e.g., selection of situations, cases, defendants). Typically, most attention is focused on action. But from a perspective of reconciliation, inaction requires equal attention. It is, in particular, important to communicate that inaction does not entail an endorsement of violations.

(iii) Contradictorial v. adversarial proceedings

International criminal courts have experimented with different types of procedures. Experiences suggest that inquisitorial features may be more closely aligned with rationales of reconciliation. Accusatorial models tend to treat parties to proceedings as adversaries. This structure consolidates binaries, and produces clear winners and losers. This methodology fuels a certain hostility, and stands in tension to a more exploratory mode of inquiry. As noted by Albin Eser, this contradiction could be mitigated, if procedures were construed as ‘contradictorial’, rather than ‘adversarial’, i.e. focused on ‘elucidating the truth by way of  contradiction, including confrontation’ and ‘(controversial) dialogue’ in ‘a spirit of cooperation’, rather than hostile contest. Steps like these would facilitate empathy and potential re-humanization of perpetrators and victims. One of the implicit purposes of these trials is to give back to the victims some of the humanity that they have lost.

(iv) Fact-finding

A last procedural point relates to fact-finding and quality of evidence. Existing practice continues to rely heavily on oral testimony. Testimonial evidence is fragile and limited by epistemic challenges, since it linked to assessments of trustworthiness. This is shown by many examples, internationally and nationally. Some of these vulnerabilities might be limited by creative uses of information technology, and better translation of ‘big data’ into analysis or evidence. International courts and tribunals (e.g., ICC, STL) serve as important pioneers in this field.

2.3. Treatments of Actors

Finally, prospects of reconciliation are closely linked to the experiences of parties and participants in the justice process. Individuals share and digest experiences through narratives. Criminal proceedings may contribute to this process, if parties and participants have the impression that they are listened to.

Some of the most direct transformative effects may occur through the experience of testimony, i.e., the contact and exposure of witnesses or victims to a professional justice environment. Existing practice provides positive and negative examples. Existing experiences might be improved through greater care for witnesses before and after testimony, and better management of victim participation in proceedings, including information, representation  and processes of inclusion and exclusion. Greater caution is required in the use and labeling of victims. Judicial proceedings tend to produce imageries (e.g., vulnerability) and abstract categorizations of victimhood that may have disempowering effects on victims.

One innovative development at the international level is the ICC’s approach towards reparation. It combines retributive and restorative features. It establishes a direct form of  accountability of the convicted person towards victims, which differs from classical models of victim-offender mediation. Accountability is grounded in the obligation to repair harm, but linked to the punitive dimensions of ICC justice (e.g., conviction, sentence). Jurisprudence has made it clear that establishment of accountability towards victims through reparation proceedings is an asset per se that can provide a greater sense of justice to victims, even in cases where the defendant is indigent. Examples like these illustrate some of the strengths and possibilities of international criminal justice.

 3. Not a conclusion

In the future, as in the past, it will remain difficult to demonstrate empirically whether and how international criminal justice contributes positively to reconciliation. This debate is likely to continue. It might be interesting to turn the question around: Would one be better off without international criminal justice? If the question is framed in the negative, the ‘benefit of the doubt’ might gain greater weight.

At least three insights can be drawn now. First, reconciliation is not, and should not necessarily be treated as a primary goal of international criminal justice. The criminal trial is at best one intermediate factor in such a process. Second, the contribution to reconciliation cannot be assessed exclusively through the lens of restorative justice. Some important impulses result from the positive tension between retributive and restorative justice. Third, some of the strengths of international criminal justice lie in its expressivist features and, its ability to serve as experiment for national experiences. These experiences require further translation and/or transformation in a national or local context, rather than mere replication.

The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs

by Julian Ku

I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts.  That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs.  I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.

Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.

To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress.  This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today.  Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power).  Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.

I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly.  That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power.  Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.

In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power.  Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President.  I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon.  Justice Thomas was getting lonely, so I suppose he will be glad to have the company.


Notes on Zivotofsky

by Deborah Pearlstein

A fascinating ruling from the U.S. Supreme Court this morning in Zivotofsky v. Kerry, the case presenting the question whether Congress can mandate that U.S. citizens born (to American parents) in Jerusalem may have Israel listed on their passports as their place of birth. Since 1948, every U.S. president has carefully avoided opining in any context on the status of Jerusalem as falling within Israeli or any other nation’s sovereignty. The U.S. State Department has thus always issued passports listing “Jerusalem,” and not Israel as the place of birth for citizens born there. In 2002, Congress enacted a law mandating that citizens so desiring could have “Israel” listed as their place of birth. President Bush, then Obama, objected, arguing that such a law infringed on the President’s power to recognize foreign sovereign governments – a power both administrations maintained is held exclusively by the executive. The case marks the first time the Court has ever recognized a ‘preclusive’ power of the executive branch – that is, a power the President not only holds under the Constitution, but holds even if Congress enacts a law otherwise.

Two brief initial notes as I continue to digest. First, the majority’s opinion is workmanlike and narrow. The Court applies the well known framework for analyzing questions of executive power established in Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, relies on a host of earlier Court opinions, and concludes that the Reception Clause (the Article II provision giving the President the power to receive ambassadors) necessarily “encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds.” The Court’s opinion – which transcends typical political divisions (Justice Thomas joins (in part) the majority of Justices Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan) – expressly disclaims any reliance on Article II’s Vesting Clause, the broad and undefined vesting in the President of “the executive power.” A holding based on that clause would have had potentially much more significant implications; the Vesting Clause has been regularly invoked by those advocating the most capacious understandings of executive power as a catch-all provision for affording the President sweeping powers in national security and foreign affairs. This decision offers no support for that theory.

Second, the majority’s opinion sensibly relies repeatedly on the nature and practice of recognition at international law as informing the framers’ understanding of the import of affording the President the power to receive ambassadors. As the Court puts it on one of several occasions: “[I]nternational scholars [citing Grotius and Vattel] suggested that receiving an ambassador was tantamount to recognizing the sovereignty of the sending state.” This is and should be seen as yet another unremarkable example of reliance by the Court on international law in understanding the scope of contemporary executive power under the U.S. Constitution. Not even Thomas in concurrence (much) protests. Whether the Supreme Court’s relative comfort with such analysis trickles down to the lower courts as questions of executive power arise in other contexts – the D.C. Circuit, among others, remains chronically allergic to international law in any form – will be among the more interesting consequences of this otherwise limited ruling to watch.

Three Quick Thoughts on Zivotofsky

by Peter Spiro

Long-awaited decision here finding the President to have exclusive recognition power, trumping Congress’ attempt to require birthplace of US citizens born in Jerusalem to be recorded as “Israel” on US passports issued to them.

1. Phew. Who knows what the response would have been in the Middle East if the Court had come out the other way. Maybe nothing, but it’s obviously still a tinderbox in which little sparks can lead to firestorms.

2. Though the President wins, Kennedy’s opinion cuts back on Curtiss-Wright, dismissing its broad characterization of executive power as dicta.

In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. See, e.g., Medellín v. Texas, 552 U. S. 491, 523–532 (2008); Youngstown, 343 U. S., at 589; Little v. Barreme, 2 Cranch 170, 177–179 (1804); Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright? 13 Yale J. Int’l L. 5, 19–20 (1988); cf. Dames & Moore v. Regan, 453 U. S. 654, 680–681 (1981). It is not for the President alone to determine the whole content of the Nation’s foreign policy.

The era of government lawyers playing the “Curtiss-Wright, so I’m right” card is officially over.

3. There’s a lot of “one voice” talk in Kennedy’s opinion, trumpeting the functional virtues of presidential control (see especially the bottom of p. 11). That’s disappointing to those of us looking for a move away from exceptional approaches to resolving foreign affairs disputes. Together with last year’s flame out in the big Treaty Power case, maybe the Court is having second thoughts about the normalization project. This was a bad vehicle for advancing that agenda (see thought #1), but now that the decision is on the books, it will retard it in more favorable ones.

But there are developments beyond the Court’s control at work on the ground. Remember the huge flap over the Tom Cotton letter to Iranian leaders earlier this spring. So much for “one voice.” Things are anything but normal when it comes to separation of powers respecting foreign affairs. Zivotofsky notwithstanding, we’re not going back to an old world in which Presidents had centralized control of the nation’s engagement with the world.

Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 1 of 2)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace.]


Punishment and reconciliation are closely linked. In this post, I would like to explore one issue of this relationship, namely the link between the retributive and restorative justice. The core dilemma was identified by Hannah Arendt in her treatment of forgiveness in the Human Condition in1958:

 ‘men are unable to forgive what they cannot punish and are unable to punish what turns out to be unforgivable’.

This dichotomy still stands today. Since Nuremberg and Tokyo, there is a strong trend to recognize that the purposes of trials reach beyond retribution and vengeance. International criminal proceedings are increasingly associated with restorative features, because punishment alone has inherent limitations. Some harm may only heal with time. At the same time, certain acts may be beyond forgiveness. This argument is used to discard alternatives to punishment or short cuts to impunity, in particular in relation to core crimes.

These dilemmas arise in any mass atrocity context. They have a legitimate space in law and justice policies. They cannot, and should not be outplayed against each other, but stand in a dialectic relationship. The right equilibrium must be found anew in any specific context, through argument, contestation and persuasion.

The contribution of international criminal justice to reconciliation is modest. Reconciliation has of course many meanings. It extends beyond the victim-offender relationship that forms part of the criminal trial. It involves different levels: interpersonal forgiveness and collective dimensions (e.g., community-based, societal or national reconciliation). It contains retrospective (e.g., understanding of the past, healing, undoing of wrong) and prospective elements (e.g., social repair). Legal visions of time do not necessarily correlate with societal understandings. International criminal justice typically only covers fragments of the past, and glimpses of the imagination of the future.

Unlike a judgment in a trial, reconciliation can rarely be tied to a specific moment in time. It occurs as a process. As argued in the Handbook on Reconciliation after Violent Conflict, it is both a goal, i.e., an ideal state to strive for, and a process ‘through which a society moves from a divided past to a shared future’. It involves ‘social learning’ and a move beyond negative co-existence and the mere absence of conflict. Justice is only one element, alongside others such as the search for truth, forgiveness or healing.

It is questionable to what extent reconciliation should be framed as a primary goal of international criminal justice per se. International criminal justice can neither stop conflict nor create reconciliation. A Court can judge, but only people can build or repair social relations. A Chamber cannot order an apology by the perpetrator, nor forgiveness by victims. In fact, the liberal criminal trial may require respect of the will of those who do not choose to forgive. The experiences in the Balkans, Latin America and Africa have shown that healing and forgiveness are culturally-bound processes that are rooted in local cultures, and start at the level of the individual or community based structures. Reconciliation requires the recognition of a more inclusive common identity that transcends the justice trial. But international criminal law strengthens the claim that reconciliation should not be conceived ‘as an alternative to justice’. Moreover, the criminal trial can provide conditions that facilitate such complex processes. It may signal a rupture with the past that contributes to a process of reconciliation.

In the following, I will try to unpack some of the existing divides. I will first challenge whether restorative approaches are per se better suited to achieve reconciliation than retributive mechanisms. I will then explore certain means to improve the connection between international criminal justice and reconciliation.

1. Links between Reconciliation and Retributive Justice

Retributive justice mechanisms, such as international criminal courts and tribunals, are often criticized for their limitations, namely their emphasis on perpetrators, their individualization of guilt and focus on the past, and their risks. This includes detachment from local context and emphasis on universal justice models and standards. Restorative mechanisms of justice, including victim-centred and less formal forms of accountability, have gained increased acceptance as a middle ground between retributive justice and blanket pardon. They are viewed as more conducive to reconciliation, in light of their stronger focus on needs of victims, their proximity to community or group structures, and their flexibility in terms of process and sanction (e.g., restorative penalties). This either/or logic requires differentiation. Developments over past decades suggest that it is the linkage between these two models that may be most conducive to reconciliation.

1.1.Punishment as prerequisite for reconciliation

One first important point is that prosecution aimed at punishment is not necessarily an obstacle to reconciliation. In certain contexts, retribution may have a greater effect on reconciliation that certain restorative forms of justice that prioritize forgiveness or forgetting. Forgiveness often requires more than a mere apology or generic acknowledgments of responsibility. Victims might be more willing to forgive, or at least temper their feelings of revenge, if they know that the perpetrator will be punished. A recent example is the trial against camp guard Oskar Gröning before German Courts. Ausschwitz survivor Eva Moses Kor shook hands with Gröning. She noted that she could forgive because ‘forgiveness does not absolve the perpetrator from taking responsibility for his actions’ nor diminish the ‘need to know what happened there.’

1.2.‘Us vs. them’ divides

Second, reconciliation is linked to cognitive and affective change, grounded in social interaction. It is shaped by positive experience with the ‘other’ and a relationship of recognition and trust. As argued by Jodi Halpern and Harvey Weinstein, reconciliation ‘shows itself in the degree to which people actually can act as distinct individuals with mutual regard in the real world’. Prosecutor have a tendency to portray perpetrators as persons lacking in humanity. But there are many types of perpetrators in international criminal justice: Political leaders, executers, followers. Alette Smeulers has identified at least nine different species:


‘(1) the criminal mastermind; (2) the careerist; (3) the profiteer; (4) the fanatic; (5) the devoted warrior; (6) the professional; (7) the criminal and sadist; (8) the follower; and (9) the compromised perpetrator’.


One common feature is that many of them are ‘ordinary’ persons who turn into criminals because of context. International criminal justice offers a space to re-humanize, by breaking some of the inequalities and hierarchies inherent in system criminality, or de-constructing context. As argued by Pablo de Greiff, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, the criminal trial provides a forum to discard any ‘implicit claim of superiority made by the criminal’s behaviour’. In specific contexts, the victim and perpetrator (re-)encounter each other as mutual holders of rights, or as members of a common polity. These structural features can lay important foundations for longer-term processes of social repair or reconciliation. They can break up ‘us vs. them’ divides.

1.3.Acceptance of multiple truths

A third point relates to the relationship between reconciliation and truth-finding. One of the inherent features of a criminal trial is that it can produce different narratives, or even multiple truths, through assigned roles in the legal process, competing testimonies or conflicting decisions. International criminal justice is paved with such examples. It has produced many frustrating experiences for victims of crime. But this is not necessarily an impediment to healing or forgiveness. Reconciliation is not linked to the acceptance of a ‘single truth’ or narrative, but grounded in the acceptance or toleration of conflicting points of view. It lives from the ability to respect the ‘other’ and tolerate difference, despite opposite or conflicting views of events and facts. The strength of the criminal process lies in the fact that it offers a forum where contradictions and contestations may legitimately co-exist, based on the constraints of the law.

Weekly News Wrap: Monday, June 8, 2015

by Jessica Dorsey


Middle East and Northern Africa





  • Islamic State militants have used chlorine as a weapon and are recruiting highly trained technicians in a serious bid to develop chemical weapons, Australia’s Foreign Minister Julie Bishop warned.


Events and Announcements: June 7, 2015

by Jessica Dorsey

Call for Papers

  • PluriCourts, Centre of Excellence at the University of Oslo, is organizing an international symposium entitled ‘The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes’. The symposium will be hosted at the faculty of law of the University of Oslo on November 5 and 6, 2015. The symposium will focus on investment treaty arbitration from a forward-looking perspective on how future practice might be shaped or reformed in a way that can both promote environmental sustainability and protect responsible and legitimate foreign investments. Organizers invite scholars, practitioners and doctoral students to submit paper proposals for presentations on topics related to the symposium’s theme. The deadline for submission is July 15, 2015. For more information, please visit the website of the symposium.


  • Di Tella University, Argentina, is delighted to announce that the second issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. The Journal, published in Spanish, is the first Latin American publication devoted to promoting the discussion of general topics of Public International Law from different perspectives in the region. In its first two numbers, the Journal has published works by authors such as Martti Koskenniemi, Christine Gray, David Luban and Susan Marks, as well as interviews to prominent international lawyers such as former ICC Prosecutor Luis Moreno Ocampo. The latest issue can be found here.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.



Appeal Launched in Haiti Cholera Case

by Kristen Boon

Plaintiffs have appealed the January 9, 2015 decision of the Southern District of New York, that the United Nations is immune in the case Delama Georges et al. The appeal brief, filed by the International Institute for Justice in Haiti, is available here: Georges v UN – Principal Appellate Brief 5.28 Final.

The contentions on appeal are as follows:

1.  Whether the District Court erred in ruling that Defendants UN and MINUSTAH are entitled to immunity despite having violated their treaty obligation to provide a mode to settle private law claims

2. Whether the District Court erred in ruling that Defendants Ban and Mulet are entitled to immunity in this case simply because they “hold diplomatic positions”

3.  Whether the District Court erred in failing to address the U.S. Plaintiffs’ argument that granting immunity in this instance violates their constitutional rights to access the federal courts.

These arguments hew closely to the position espoused in the SDNY, while emphasizing the UN’s failure to provide reasons and a remedy for what plaintiffs persuasively contend is a private law claim. The plaintiffs focus on Sections 2 and 29 of the Convention on Privileges and Immunities of the UN (CPIUN). The first sections grants immunity to the United Nations from all forms of legal process, while the latter provision requires the UN to settle private law disputes by alternative means. As argued at the October 2014 hearing, the plaintiffs contend that the United Nations and MINUSTAH have violated article 29 in failing to provide the plaintiffs with an alternative forum, and that this failure constitutes a material breach of the treaty.  One issue that is not fully explored is whether private litigants can benefit from an alleged breach and request suspension, if that treaty was concluded between states.

The Plaintiffs also argue that the District Court erred when relying on the Brzak case, because it does not mention a breach of section 29 of the CPIUN. The Plaintiffs also contend that granting immunity in this case violates the constitutional right of a U.S. citizen plaintiff to have access to the courts. The plaintiff’s brief states that “granting immunity in this case impermissibly infringes on the right [of the plaintiff], which includes the right to bring a well-pleaded civil lawsuit for recognizing causes of action”.

One important development is that six amicus briefs were filed in support of the plaintiffs appeal, with 54 signatures in total.   These briefs represent a range of different interests and flag a diverse set of issues for the court.    Here are links and summaries of the main arguments:

  • ConLawScholarsAmicus focuses on the constitutional right held by the plaintiff to gain access to the courts.
  • EuroLaw Amicus Brief[3] brief focuses on when UN immunity should be limited, and discusses the reasonable alternative means test. It also highlights cases that have drawn a distinction between acts that are essential to the IO and those that are supplementary. Finally, it refers to due process requirements and highlights cases challenging UN sanctions like Kadi.
  • Haitian-AmericanAmicus: This brief was filed by members and family members of the cholera affected population. This brief presents a three-tiered argument for why the district court erred in upholding the UN’s immunity. First, the harm from the cholera epidemic is ongoing and worsening; Second, the UN is not entitled to immunity when it breaches its obligations to provide remedies; Third, the UN should be required to abide by the same Rule-of-law Principles that is espouses as central to its mission in Haiti.
  • HumanRightsGroupsAmicus: This brief focuses on the idea that the UN is bound by substantive international law, and obligated to give a remedy. It argues that the United Nations cannot seek to avoid the substantive obligations of international law which reject the possibility of the broad immunity claimed by the United Nations. Moreover, it suggests that there is a duty to provide a remedy when the UN caused the “arbitrary deprivation of life.”
  • IntlLawScholars Amicus: This brief focuses on the UN Charter and the SOFA between Haiti and the UN, and argues that the relationship between Articles 105 of the Charter and Articles 2 and 29 of the CPIUN is such that given the private nature of the injury, a remedy is required. This brief also cites to Beer and Regan for the idea that lack of effective alternative for private claims is grounds to waive immunity, and notes in Brzak alternative process was available.
  • UNOfficialsAmicus: This is a brief written by six former UN officials and has three main arguments to it: (1) Immunity was never meant to provide a mechanism for the UN to act with impunity, (2) Allowing the claims to go forward will enhance the UN’s legitimacy and its ability to fulfill its mission, (3) Allowing the claims to go forward will not open the flood gates because this is an unprecedented situation.

Moving forward, the defense has 14 days to respond to propose a briefing schedule. As a non-party, it is not clear whether the US will agree to that timeframe however.


Thanks to my Research Assistant Dan Hewitt for his help in reviewing the filings.

Is Law Losing Cyberspace?

by Duncan Hollis

The ALL CAPS headline of the last few hours involves news that social security and other identifying information for some 4 million U.S. federal workers was compromised in a cyber exploitation that, if one believes the unofficial finger pointing, came at the behest of the Chinese government.  Of course, it was just yesterday, that the Council on Foreign Relations’ Adam Segal was reporting how China was crying foul over “OceanLotus” a cyber exploitation that counted various Chinese governmental agencies and research institutes among its victims (and where the fingers were pointed back at the United States). And that’s to say nothing of the Snowden disclosures or the tens of millions of people whose personal data has been compromised via data breaches of an ever-expanding list of private companies (e.g., in February 2015 the U.S. health insurer Anthem admitted that up to 80 million people in its databases had their personal data compromised).  Now, maybe such data breach stories are hyperbolic, offering big numbers of potential losses that do not necessarily mean actual data compromises, let alone consequences for the associated individuals.  Nonetheless, the current zeitgeist seems to be the normalization of cyber insecurity.

As someone who believes international law has an (imperfect) role to play in preserving international peace and stability, I find the current scenario increasingly worrisome.  The level and breadth of cyber exploitations suggests a world in which actors are engaged in a race to the bottom of every data well they think might be useful for their own purposes, on the theory that their adversaries (and their allies) are all doing the same.  In such a world, law seems to be playing a diminishing role.

To be clear, domestic law certainly may constrain (or facilitate) a State’s cyber operations, as all the anxiety associated with the expiration of the PATRIOT Act and this week’s passage of the USA FREEDOM Act suggest. For those of us who care about international law, however, it seems increasingly marginalized in the current environment.  We’ve spent much of the last several years, focused on how international law applies to cyber-operations with huge efforts devoted to questions of line-drawing in what constitutes a prohibited use of force in cyberspace under the jus ad bellum or where the lines are for an attack under the jus in bello.  The Tallinn Manual is the paradigmatic example of this (often quite good) work.  More recently, States and scholars have moved on to cyber operations below these lines, with attention shifting in Tallinn and elsewhere to which cyber operations may generate counter-measures and defining when cyber operations violate the duty of non-intervention.

Such efforts have (so far) had relatively little to say on the question of a cyber exploitation that is best characterized as espionage.  With the exception of U.S. efforts to decry “economic” cyber espionage (as opposed to national security cyber espionage), most international lawyers have shrugged their shoulders on the legality of governments (or their proxies) stealing data from other governments or their nationals.  The conventional wisdom suggests intelligence agencies will be intelligence agencies and we should let this play out via diplomacy or power politics.  To the extent international law has long failed to prohibit espionage, the thinking goes, by analogy it should also leave cyber espionage alone.  And if that’s true, international law has little to say about China taking whatever data it can on employees of the U.S. federal government.

Of course, conventional wisdom is often conventional for good reasons.  From a national security perspective, there are important interests that militate against regulating or constraining data collection from abroad.  Yet, I worry that we’re reaching a tipping point where in conceding international law can do little to nothing for the problem of cyber exploitations, we are effectively conceding the rule of law in cyberspace.  It’s understandable that, from a rational perspective, States will want to do as much of this activity as their technical capacity allows.  But, such self-centered policies have generated a dramatic collective action problem.  The current cyber system is certainly sub-optimal, whether you consider it in economic, humanitarian, or national security terms. The economic costs of the status quo are by all accounts growing, whether in terms of losses of data and IP, or the costs of cleaning up after exploits occur.  Similarly, the ability of individuals to preserve their privacy is rapidly diminishing, and the right to privacy along with it.  And, of course, national governments are fighting, and losing, the battle to keep their own data (and secrets) secure.

All of this leads me to ask whether it’s time to revisit the question of how international law deals with data breaches?  I recognize some may say “no” or that after long and careful thought the answer may remain the same.  But, the rising importance and success rates of data breaches across the globe suggests it’s high time for international law to at least engage these questions more closely.

What do others think?  Is international law losing in cyberspace or is there still a chance that it can play a regulatory role over modern cyberthreats, even if only an imperfect one?


China Defends Itself on South China Sea: “We are against the arbitrary distortion of the international law.”

by Julian Ku

There is no shortage of commentary on the growing US-China tensions over China’s land reclamation activities in the South China Sea. I’ve already added my two cents on the legal aspects here, but it’s worth trying to understand China’s defense of its actions.  Here is China’s Foreign Ministry spokeswoman at a press conference responding to comments from US and Japanese leaders that China should abide by international law.

The international law has been constantly brought up by some countries when it comes to the South China Sea issue. If they did read closely the international law, then please tell us which article in the international law forbids China to carry out justified construction on its own islands and reefs? Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom? We are against the arbitrary distortion of the international law. If it is not a practice of double standard, then it must be driven by some hidden motives.

Let me take the two (rhetorical) questions in order:

1) “[W]hich article in the international law forbids China to carry out justified construction on its own islands and reefs?

China has a point here. There is no explicit prohibition under international law on construction on a country’s own “islands and reefs.”  That is why the US calls on China to stop land reclamation don’t have a strong legal basis, especially since it appears most of the other South China Sea claimants have also engaged in some (smaller scale) land reclamation.

On the other hand, it is far from clear China is building out on “islands”. It is likely that it has possession only of “rocks” or maybe even just “reefs.” And it is far from clear that China has title to whatever land features it is using.  But land reclamation alone isn’t a violation of any international law that I am aware of.

2) “Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom?”

Here, China is on much shakier ground. As I explained at too much length here, UNCLOS is probably best interpreted to allow surveillance and monitoring by foreign military vessels and aircraft up to 12 nautical miles of a country’s territories, and within those 12 nm if the territory is only a rock or a reef.  China doesn’t agree with this interpretation, and this is the crux of the dispute with the U.S.

Overall, I think China has a strong legal point on land reclamation, but a weak legal point on surveillance and freedom of navigation.  The obvious “compromise”  (or maybe the word is “standoff”) here is for the US to tacitly accede to China’s land reclamation, and for China to tacitly accede to US military surveillance up to and perhaps within 12 nautical miles.  Since the US can’t actually stop China from continuing its land reclamation, and China can’t stop US surveillance, this “compromise” seems like a safe bet. I will note, however, that China’s actions have unleashed the hawkish wing of the China-watching establishment in the U.S. and, over the long term, this may be the most important outcome of this standoff.  The US is taking off the gloves against China and a containment strategy with our new best friends in Vietnam and India  is becoming increasingly likely.

New Edited Collection on the ICC

by Kevin Jon Heller

Oxford University Press has just published a massive new book on the ICC, “The Law and Practice of the International Criminal Court,” edited by Leiden’s Carsten Stahn. Here is the publisher’s description:

The International Criminal Court is a controversial and important body within international law; one that is significantly growing in importance, particularly as other international criminal tribunals close down. After a decade of Court practice, this book takes stock of the activities of the International Criminal Court, identifying the key issues in need of re-thinking or potential reform. It provides a systematic and in-depth thematic account of the law and practice of the Court, including its changes context, the challenges it faces, and its overall contribution to international criminal law. The book is written by over forty leading practitioners and scholars from both inside and outside the Court. They provide an unparallelled insight into the Court as an institution, its jurisprudence, the impact of its activities, and its future development.

The work addresses the ways in which the practice of the International Criminal Court has emerged, and identifies ways in which this practice could be refined or improved in future cases. The book is organised along six key themes: (i) the context of International Criminal Court investigations and prosecutions; (ii) the relationship of the Court to domestic jurisdictions; (iii) prosecutorial policy and practice; (iv) the applicable law; (v) fairness and expeditiousness of proceedings; and (vi) its impact and lessons learned. It shows the ways in which the Court has offered fresh perspectives on the theorization and conception of crimes, charges and individual criminal responsibility. It examines the procedural framework of the Court, including the functioning of different stages of proceedings. The Court’s decisions have significant repercussions: on domestic law, criminal theory, and the law of other international courts and tribunals. In this context, the book assesses the extent to which specific approaches and assumptions, both positive and negative, regarding the potential impact of the Court are in need of re-thinking. This book will be essential reading for practitioners, scholars, and students of international criminal law.

The book includes my essay on Regulation 55 and an essay on co-perpetration by Jens. At £195, most people won’t be able to buy a copy. But four chapters are available for free download and most libraries are sure to acquire it.

Congratulations to Carsten on a tremendous accomplishment!

Inter-temporal International Law? Or How Would Modern International Law Have Treated “Unconditional Surrender”?

by Julian Ku

Seth Tillman of Maynooth University has a clever “parody” letter (scroll to the bottom) in the most recent Claremont Review of Books.  I can’t really do it justice here, but it is an amusing take on how modern international law might have critiqued the relentless Allied demands for unconditional surrender by Germany and Japan in 1945.  Also, I particulalry appreciate his efforts to reproduce mid-20th century typography.

Weekly News Wrap: Tuesday, June 2, 2015

by Jessica Dorsey


Middle East and Northern Africa



  • Greece’s cash-strapped government has failed to deliver on a promise to reach an agreement with rescue lenders over the weekend.
  • An ally of German Chancellor Angela Merkel said on Monday it would be unrealistic for British Prime Minister David Cameron to expect to achieve changes to European Union treaties before the country holds a referendum on its membership of the bloc.
  • A separatist conflict in eastern Ukraine is revealing increasing evidence, but not yet conclusive legal proof, of Russian state involvement, senior United Nations human rights officials said on Monday.
  • More than 5,000 migrants on their way to Europe have been saved from boats in distress in the Mediterranean since Friday, according to EU authorities, as the corpses of 17 migrants have been brought ashore in Sicily aboard an Italian naval vessel.
  • Russia has imposed an entry ban on 89 European politicians and military leaders, according to a list seen by Reuters, a move that has angered Europe and worsened its standoff with the West over Moscow’s role in the Ukraine conflict.


  • US President Barack Obama has said that Myanmar needed to take seriously the issue of how it treats the Rohingya people, if it wanted to be successful in its transition to a democracy.
  • U.S.-led forces targeted Islamic State militants in Syria with 13 air strikes from Sunday morning through Monday morning and conducted another 10 strikes against the group in Iraq, the U.S. military said on Monday.


  • The leader of Australia’s opposition Labor Party introduced a bill to legalize same-sex marriage on Monday, adding the backing of a major party to growing public support for the issue after last month’s landmark ‘yes’ vote in Ireland.


  • The United Nations said it would be forced to slash or shut down almost half its aid operations in Iraq without an immediate injection of new funds, at a time when a humanitarian crisis triggered by Islamic State insurgents is intensifying.
  • Governments must address human trafficking and slavery in a global development pact later this year, Nobel Peace Laureate Kailash Satyarthi said on Monday, warning that the credibility of humanity was at stake if countries failed to deliver.

Appeals Chamber Fails To See the Forest — Complementarity Edition

by Kevin Jon Heller

Earlier this week, the Appeals Chamber rejected Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo. The challenge was based on Gbagbo’s 20-year sentence for disturbing the peace, forming and organising armed gangs, and undermining state security. Like the Pre-Trial Chamber, the Appeals Chamber concluded that Gbagbo’s domestic convictions failed to satisfy Art. 17’s “same conduct” requirement, making her case admissible. Here are the key paragraphs:

99. The Pre-Trial Chamber found that the conduct underlying the alleged economic crimes was “clearly of a different nature” from the conduct alleged in the proceedings before the Court, and therefore “irrelevant”.171 The Pre-Trial Chamber further found that according to the documentation provided by Côte d’Ivoire, in particular Annex 8 to the Admissibility Challenge, the alleged conduct was characterised as [REDACTED].172 In view of the description of the alleged acts provided in the material submitted by Côte d’Ivoire, the Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find this conduct to be of a different nature to Ms Gbagbo’s alleged conduct in relation to the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts, on the basis of which the Warrant of Arrest was issued against her by the Court. In addition, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

100. As regards crimes against the State, the Pre-Trial Chamber noted that in the domestic proceedings it is alleged that Ms Gbagbo [REDACTED].173 The Pre-Trial Chamber further noted that, in the domestic proceedings, “there are references to, inter alia, the allegations of [REDACTED].174 The Pre-Trial Chamber observed that the provisions criminalising such alleged conduct are included in the section of the Ivorian Criminal Code concerning felonies and misdemeanours against the safety of the State, the national defence and the public security.175 The Pre-Trial Chamber concluded that the alleged conduct only includes [REDACTED] and therefore the domestic proceedings in question “do not cover the same conduct” that is alleged in the case before the Court.176 The Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find, on the basis of the description of the alleged conduct contained in the documents provided by Côte d’Ivoire, read in light of the applicable provisions of the Ivorian Criminal Code, that this conduct, characterised as infringing [REDACTED], is not the same as that alleged before the Court. In addition, as indicated earlier, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

I have no doubt that the Appeals Chamber’s application of the “same conduct” requirement is correct. But I think it is important to once again ask a basic question about the requirement: what does the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? 20 years is a significant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Even if the OTP manages to convict Gbagbo, she is very unlikely to receive a substantially longer sentence. So why should the ICC waste the OTP’s precious and overstretched resources by trying Gbagbo again?

My answer, not surprisingly, remains the same: it shouldn’t. The ICC simply cannot afford the kind of hyper-formalism that underlies the “same conduct” requirement. As I have argued elsewhere, the Court should defer to any national prosecution that results in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s prosecution.

In fairness to the Appeals Chamber, it’s worth noting that Gbagbo’s attorney challenged the Pre-Trial Chamber’s application of the “same conduct” requirement; she did not challenge the requirement itself. That’s a shame, because I think Gbagbo’s case perfectly illustrates why the Appeals Chamber should jettison the “same conduct” requirement. Would it? Probably not — as I note in my article, the requirement does have a clear textual basis in Art. 20 of the Rome Statute (“upward” ne bis in idem). But the Appeals Chamber has proven remarkably willing to ignore the Rome Statute when it proves inconvenient, so it would have been worth a shot — especially as the “same conduct” requirement is fundamentally inconsistent with the principle of complementarity’s emphasis on the ICC being a court of last resort . At the very least, challenging the requirement would have forced the Appeals Chamber to explain why the requirement’s waste of OTP resources is warranted. I would have liked to read that explanation.