Archive for
August, 2015

Events and Announcements: August 30, 2015

by Jessica Dorsey

Announcements

  • The Goettingen Journal of International Law has recently released the second issue of its sixth volume. The thoroughly selected articles of issue 6.2 address a variety of current questions in international law. Among others, the new edition features an article by Heike Krieger, in which she reflects on developments of immunities. Further contributions are by Sergio Dellavalle, Tim Banning and Mélanie Vianney-Liaud. The journal’s latest issue can be accessed at www.gojil.eu.
  • On Tuesday 11 July 1995, a date which will live in infamy, the town of Srebrenica was overrun by Bosnian Serb forces. In order to commemorate this tragedy, the Board of Editors of the Netherlands International Law Review (NILR) invited a select number of authors to contribute to a Special Issue on the Impact of the Fall of Srebrenica (1995-2015) on various areas of public international law. These areas are: the law relating to the United Nations (peace and security), the law relating to international crimes, the law relating to international responsibility and the law relating to international remedies. The Board of Editors of the NILR is proud to announce the publication its first Special Issue since 2010. So that we will never forget.
  • Volume 6, Number 2 of Trade Law and Development has been published. The contents of the journal can be found here.

Events

  • The T.M.C. Asser Instituut, the Dutch Red Cross and the Amsterdam Center for International Law are hosting a HILAC (Hague Initiative on Law and Armed Conflict) Lecture by Sasha Radin, Editor-in-Chief of International Law Studies and Associate Director of Research at the U.S. Naval War College’s Stockton Center, on September 8, 2015 at the Humanity House in The Hague. Sasha will speak on “Competing Concepts of Security Detention in NIAC.” A growing opinion exists that because of IHL’s lack of explicit law governing the legal basis, grounds and procedures for security detention in NIACs, any such basis must be found outside of IHL (most likely under domestic law and human rights law); absent that legal basis, detention would be arbitrary and unlawful. What are the implications of such an interpretation and is this the best way forward? The event is free. If you’d like to attend, please register with the Humanity House
  • The T.M.C. Asser Instituut is hosting a SCL (Supranational Criminal Law) Lecture by James Stewart, Deputy Prosecutor of the International Criminal Court, on September 9, 2015 at the T.M.C. Asser Instituut in The Hague. James will speak on ” International criminal law – a personal note on its practice and current challenges.” This event is free and does not require registration. For more information, click 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.

Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

by Justin Yang

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.]

The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership.

Tracing the development of international criminal justice institutions in the 20th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric.

Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors.

The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld. Continue Reading…

Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 2)

by Aaron Matta

[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga, Jill Coster van Voorhout and Thomas Koerner for their helpful feedback on earlier drafts of this commentary.The views expressed here do not represent the views of the Hague Institute for Global Justice.]

Following on from our previous commentary on potential state responsibility, this post will look at the role of individual criminal responsibility in addressing the downing of MH17. Proposals have been made for using either existing mechanisms or for setting up a new tribunal to address this incident specifically. Determining the best avenue ultimately depends on the outcome of the investigations into the incident and the political realities of the situation.

At the outset, it is important to note the most recent major development: the Russian veto, on 29 July 2015, of a proposed United Nations Security Council (UNSC) resolution which aimed to set up an international tribunal to prosecute the individuals responsible for downing MH17. Despite this apparent setback, which is explored further below, a wide variety of options remain open.

Domestic Prosecution

First, the alleged perpetrators could face domestic prosecution in a state which has jurisdiction over the crimes in question. The most familiar bases for jurisdiction under international law would be: territorial (i.e. Ukraine, in whose territory and/or airspace the alleged crimes took place; or Malaysia, as the state of registration of the aircraft, in accordance with Article 3(1) of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft); nationality (depending on the nationality of the alleged perpetrators, which has not yet been established); and passive personality (depending on the nationality of the victims, so including states such as The Netherlands, Malaysia and Australia). In addition, if international crimes are alleged, any state could exercise universal jurisdiction over the alleged perpetrators, for example on grounds that the incident amounted to “war crimes”; this would depend on the various states having legislated to give their domestic courts jurisdiction to prosecute international crimes. In addition, it may be very difficult to secure the arrest and surrender of accused persons for prosecution at the national level, especially if they are high ranking officials.

It is possible that The Netherlands would exercise jurisdiction over these alleged crimes, based on either passive personality or universality, given the important role it has played in investigations thus far, as well as the fact that a large number of its nationals died during the incident. Although these circumstances are likely to result in support for such a prosecution at the domestic level in future, The Netherlands (alongside states such as Australia, Belgium, Malaysia and Ukraine) is currently pushing for other avenues for prosecution, such as an international tribunal.

One could also argue that Ukraine and Malaysia have more robust jurisdictional claims over the incident by virtue of the territoriality principle. However, this argument is typically based on the practical reality that these states would, in most cases, have better access to the witnesses and other evidence needed for prosecution. In the case of MH17, given the strong involvement of The Netherlands and other states in the investigation thus far, these investigating states may be in a better position, de facto, to carry out the prosecutions, regardless of the relative robustness of the de jure basis for jurisdiction.

International Criminal Court

Secondly, if international crimes falling within the ambit of the Rome Statute of the International Criminal Court (ICC) are alleged, the perpetrators could also be tried before this Court. However, Continue Reading…

Emerging Voices: “Do No Harm” and The Development of General Corporate Human Rights Obligations

by Gabriel Armas-Cardona

[Gabriel Armas-Cardona received his J.D. from New York University and was a legal officer at Lawyers Collective in New Delhi, India where he managed the Global Health and Human Rights Database.]

Human rights activists have long complained of legal lacunae in domestic and international law over the regulation of corporations. This is why last year’s United Nations Human Rights Council resolution to elaborate binding obligations on corporations was cheered by activists (and derided by business). The UN’s previous attempt to develop a general framework of responsibilities in the 2011 Guiding Principles on Business and Human Rights did not impose binding obligations, likely one of the reasons it was generally praised by corporations.

Corporate behavior is primarily regulated through two domestic legal systems: tort and a corporate regulatory regime. The first is the traditional remedy system for individuals while the latter is the State impositions on business to promote a social good. In well-regulated States, these two distinct systems have grown to more effectively protect that society. But many developing countries don’t have legal systems in place that effectively protect their society and almost no State regulates corporate action abroad for the protection of other societies. The value of binding legal obligations is that they can remove the lacunae by having universal and consistent obligations for all corporations within States and in the interstitial space between jurisdictions.

These obligations would be distinct from and would not dilute State human rights obligations. Having multiple dutybearers, even qualitatively different ones, is not problematic. Corporate obligations would positively interplay with States’ duty to protect to further realize human rights. When a violation by a corporation occurs, it would be the State’s duty to provide a remedy system, stemming from a State’s duty to protect, and the corporation’s duty to cooperate with that system, stemming from the secondary duties mentioned in the duty to fulfill, or to directly provide reparations to the victim (in normal parlance: go to court or settle). If the corporation cannot provide reparations (e.g. due to bankruptcy), then the State would have to provide reparations directly. Either way, the victim is made whole.

Underlying the challenge is that there currently is no principled framework for universally applicable corporate obligations. One can’t simply copy State obligations and apply them to corporations; their obligations must reflect that they are private actors. The Guiding Principles state that corporations “should avoid infringing on the human rights of others” (Principle 11), or as the Special Representative of the Secretary-General that wrote the Guiding Principles said, the responsibility of a corporation is “put simply, to do no harm.” The principle of “do no harm” has been used as a touchstone in corporate human rights obligations since at least 2002 and is a surprisingly suitable standard for developing a structure for general obligations.

As dutybearers, the same tripartite typology of human rights can apply to corporations as States; i.e., a human right would impose duties on corporations to respect, protect and fulfill. The Shue/Eide typology recognizes that the realization of rights can require measures of varying degrees of activity by dutybearers. Corporations can violate rights as producers, industry players, or employers; thus, depending on the situation, corporations may be required to stop selling defective goods, protect victims from violations done by the corporation’s supply chain or provide reparations for a prior harm. The majority of obligations falls within the duty to respect, but the duties to protect and fulfill provide new and interesting duties that respond to the concerns of corporate violations.

To understand what substantive obligations arise from “do no harm,” it helps to use the example of a particular right, such as the right to health. As economic entities, corporations are able to directly infringe on the realization of economic, social, and cultural (ESC) rights. The right to health is one of the most developed and broadest ESC rights, making it useful to use here.

The content of corporate obligations vis-à-vis the right to health

Continue Reading…

Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 1)

by Aaron Matta

[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga, Jill Coster van Voorhout and Thomas Koerner for their helpful feedback on earlier drafts of this commentary.The views expressed here do not represent the views of the Hague Institute for Global Justice.]

17 July 2015 marked one year since the downing of Malaysia Airlines flight MH17 over eastern Ukraine, resulting in the death of 298 persons (passengers and crew). As approximately two thirds of the victims were Dutch nationals, the tragedy is particularly poignant in The Netherlands. The facts surrounding the incident are not yet clear, with suggested scenarios for the downing of the aircraft including firing by pro-Russian rebels or from a Ukrainian fighter jet. International investigations are still ongoing and are looking, on the one hand, at the causes of the incident and, on the other hand, at criminal responsibility. The Netherlands is taking an active role in both investigations.

The past year has also been marked by increasing speculation on the legal avenues for redress available to the victims’ families, the affected states, and the international community as a whole. The options include: state responsibility (inter-state litigation in the International Court of Justice (ICJ), or claims against a state who violated its human rights obligations under the European Convention on Human Rights (ECHR)); and individual criminal responsibility (at the national and international levels).

This first of two posts will look at the two options for state responsibility, while our second essay will consider proposals for international criminal responsibility and the prospect of setting up an international criminal tribunal.

Inter-State Dispute Resolution: International Court of Justice

Shortly after the downing of MH17, speculation began about possible inter-state claims before the ICJ. As aptly explained here, a possible claim against Ukraine could be based on the precedent in the Corfu Channel Case, for causing or failing to prevent the downing of MH17 while it passed through Ukrainian airspace. The precise basis for the claim would depend on the outcome of the factual investigation. First, responsibility could arise if Ukraine were directly responsible for the incident through a positive act, such as the use of a weapon. Second, responsibility could arise if Ukraine had failed to avert a foreseeable risk to civilian aviation within its airspace, given that there was ongoing fighting in eastern Ukraine and that Ukraine had already decided to close its airspace up to 32,000 feet, which was just short of the altitude at which MH17 was flying.

Furthermore, if it is found that those responsible for downing MH17 were receiving support from another state (for example Russia, as is widely argued) the supporting state could face a claim along the lines of that raised in the Nicaragua Case, for “‘organizing or encouraging the organization of irregular forces or armed bands … for incursion into the territory of another State’ and ‘participating in acts of civil strife … in another State’, in the terms of General Assembly resolution 2625 (XXV)” (para 228).

Substantive issues aside, another pertinent consideration is that the ICJ’s jurisdiction is fundamentally based on state consent (as per Article 36(1) of the ICJ Statute). As explained here, the potential respondent states (for example Ukraine or Russia, if the result of the investigation points towards them) have not made a declaration accepting the ICJ’s jurisdiction in respect of inter-state disputes (Article 36(2)). Therefore, the feasibility of an ICJ claim would depend on the respondent states accepting the jurisdiction of the ICJ for this particular claim via a special agreement (Article 36(1)). This makes inter-state litigation on the MH17 incident relatively unlikely.

In addition, such a claim would have to be brought to the ICJ by one of the potential applicant states, for example The Netherlands. This illustrates the relative impotence of the individual in the international system: the victims’ families depend on a state choosing to bring a claim under diplomatic protection on behalf of its nationals. As yet, there have been no indications that an ICJ claim would be pursued.

The difficulties in bringing a contentious case before the ICJ may be bypassed if one of the UN organs, for example the General Assembly or Secretary General, requests an Advisory Opinion on the MH17 incident. Even though this may give some clarity on the legal position, the Advisory Opinion would not be binding on the responsible state(s), and may therefore be of limited value in practice.

Human Rights Claims: European Court of Human Rights and Domestic Litigation

Potentially responsible states could, however, face claims directly from the victims’ families under the ECHR. Such a case, Ioppa v Ukraine, was lodged with the European Court of Human Rights (ECtHR) in November 2014, alleging that Ukraine has violated its human rights obligations, presumably under Article 2 (the right to life). In addition, the applicants could also bring a claim against Russia, if the ongoing investigation concludes that Russia was sufficiently involved in the conflict in eastern Ukraine, as detailed below. Both Ukraine and Russia are parties to the ECHR, which means that individuals can bring claims against them before the ECtHR for alleged human rights violations (Article 34 of the ECHR). Continue Reading…

The Post-Incarceration Life of International Criminals

by Kevin Jon Heller

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark’s takeaway, reached after he discusses the (very different) examples of Saif Gaddafi and Sam Kolo:

Still, these stories raise important questions: should convicted and alleged war criminals be allowed – perhaps even encouraged – to pursue higher education? Is there, as many believe, something curative in the pursuit of education that might help to deter relapses into criminality? Is there something morally egregious when former perpetrators of mass atrocities are afforded educational opportunities that they have – by their very actions – denied thousands of others? Is the best alternative to prevent them from pursuing any education and thus letting them ‘rot in prison’ or turning a blind eye and sending them back into the world without any support? What would be the risks in doing so? Do tribunals have any responsibilities for supporting released convicts? Should the tribunals and the international community consider the strategies of domestic prison systems, where education is often encouraged as a means of healing and skills development?

As the world of international criminal justice plods along and matures, new and uncomfortable questions will undoubtedly emerge, including what the post-incarceration life of war criminals should look like. There are no easy answers. The pursuit of higher education may leave a bitter taste in the mouths of some. But given all of the options and the ever-present risk of war criminals returning to their old habits, encouraging them to pursue an education may be a least-worst option.

I confess that I don’t find this a difficult issue at all. In my view, once an international criminal has served his sentence, he should be treated no differently than any other citizen. That’s the way we treat domestic criminals, as Mark notes. Why should international criminals be treated differently? Because their crimes are worse? That may be so — but once they have paid their debt to the international community, what is the basis for continuing to punish them by denying them educational opportunities? Human-rights groups and victims may believe that Lubanga got off easy; I might agree with them. But it’s not Lubanga’s fault that Moreno-Ocampo undercharged him. And it’s not Lubanga’s fault that the Trial Chamber arguably (I don’t agree) gave him too lenient of a sentence. He did the crime and served the time. That should be the end of the story. So I don’t like Mark’s question about whether Lubanga should be “allowed” to pursue a PhD. He would no more be “allowed” to pursue a PhD after his release than I would. There is no legal basis to deny him one. (Admission requirements, of course, are another story…)

For similar reasons, I don’t like the way Mark phrases his final takeaway: that encouraging international criminals to pursue an education “may be a least-worst option.” Nothing in Mark’s column indicates that anything negative will result from an international criminal getting a PhD. Saif Gaddafi is a poor example, because he didn’t actually write his own dissertation. And Sam Kolo’s post-LRA life indicates that Mark should have concluded encouraging international criminals to pursue an education may well be the very best option. So what is the basis for describing post-incarceration education as one of the “least worst” options? Is the fear that the international criminal will write a dissertation entitled “A Step-by-Step Guide to Committing Genocide”? It seems far more likely that the international criminal — if successful in, say, a PhD program — will rely on his previous actions to illuminate an aspect of conflict that we “peaceable” types cannot possibly understand in the same way.

Indeed, as I was  reading Mark’s column, I couldn’t get Albert Speer out of my mind. Speer did not pursue a PhD after he was released from Spandau prison in 1966, but there is no denying that he used both his incarceration and his post-incarceration life productively. He wrote Inside the Third Reich and Spandau: The Secret Diaries while in prison, and after his release he wrote Infiltration, a seminal work on Himmler’s SS. How much less would we know about the Third Reich if Speer had not been “allowed” to write and publish books on account of his crimes?

I’m not suggesting, of course, that Lubanga is likely to follow in Speer’s academic footsteps. But Lubanga’s proposed focus for his graduate studies does, in fact, seem worthwhile: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony.” If anyone has something to say about that topic, isn’t it someone who knows tribal conflict all too well?

So What Are Your Top 5 Worst Treaties Ever?

by Duncan Hollis

Benjamin Soloway at Foreign Policy magazine thrilled me last week when he called to set up an interview for this story on the worst treaties ever.  Simply put, I love treaties and I love lists.  After all, a few years back I started a discussion on the most important treaties ever.  But, having given a lot of thought to my top 5, I was surprised to have never done a list of my bottom five.  So, I spent an entire day before talking to Ben, pestering my family (who do not necessarily share my enthusiasm for all things treaty-related) with various candidates based on different ways of defining “worst” (worst treaty for humanity? the parties? one party in particular? for third parties? for the agreement’s stated goals?).  In the end, I’m glad to see all the treaties that I mentioned got onto his list. Some, sadly, didn’t make the cut –I’d wanted the Universal Rubber Agreement included because it’s a rare example of a treaty that so failed to perform its intended functions (stabilizing rubber as a commodity) that the parties went through the trouble of terminating it in lieu of just letting it fall into desuetude.

Interested readers should definitely read Ben’s article.  But I thought I’d open the comments section here to allow Opinio Juris readers to sound off on whether they agree with his list, or to offer their own suggestions.  What treaties would you add (or delete) if we’re talking about the worst treaties of all time?

Members of UN Security Council Discuss LGBT Issues

by Kristen Boon

13 of the 15 members of the UN Security Council met yesterday to address LGBT issues for the first time in a closed session chaired by Chile and the US.     The focus was on persecution of gays in Syria and Iraq.    As an Arria-formula meeting, the discussion was confidential, however news reports after indicate the group discussed the Islamic State’s targeting of LGBTQ residents of Iraq and Syria.   Samantha Power, US Ambassador to the UN, told the diplomats that “we are coming together as a Security Council to condemn these acts, to demand they stop, and to commit to one day bringing the perpetrators to justice. That unified condemnation matters.”

See the news reports here, here and here for more details.

Emerging Voices: Is the International Community Ready for a “Duty to End Impunity”?

by Auriane Botte

[Auriane Botte is a Ph.D candidate in International Law at the University of Nottingham (UK).]

One can no longer count the number of times that the objective of ending impunity for core international crimes has been crushed by more pressing political and diplomatic interests. The most recent instance was on the 15th of June when South Africa allowed Omar al Bashir to return to Sudan despite an interim order issued by the High Court in Pretoria to prevent the Sudanese President from leaving South Africa, pending a decision on implementing an arrest warrant issued by the International Criminal Court (ICC) in 2010. This decision to favour impunity over justice is even more disgraceful since South Africa has been a State Party to the Rome Statute since 2000. As a quick reminder, Omar al Bashir is accused of indirectly participating in the commission of crimes against humanity, war crimes and genocide committed in Darfur. What happened in South Africa may, nevertheless, give a ray of hope as there was, for once, an attempt to hold Bashir accountable. Another positive aspect of this non-event is that it demonstrated the increasing power of civil society to put pressure on governments in relation to issues of impunity, with the support of the domestic courts.

The situation in Darfur, Sudan has repeatedly been under the spotlight this year, as it sadly illustrated the weakening of the fight against impunity for core international crimes. Last December, the ICC Prosecutor announced in her report to the Security Council on the situation in Darfur that she decided to “hibernate” the investigation on this situation. This decision was taken following a blatant lack of cooperation from Sudan and a lack of support from the Security Council for the work of the ICC, despite the fact that the situation was initially referred to the Court by the Security Council. The ICC Prosecutor as well as the ICC Pre-Trial Chamber II recently pointed out the lack of willingness from the Security Council to play its part by imposing measures on UN Member States for their failure to comply with Resolution 1593 (2005) requesting cooperation with the ICC. This lack of cooperation with the ICC from UN Member States as well as from the Security Council demonstrates the limits of the commitment of the international community to achieve the objective of ending impunity.

These two serious impediments to the objective of ending impunity in Darfur highlight a major flaw in the response to core international crimes by the international community: the absence of significant consequences for the failure to cooperate with the ICC. In other words, if a State decides not to cooperate with the ICC, it is unlikely that the State will have to face any serious consequences. The scarce provisions of the Rome Statute related to non-cooperation and the soft approach taken by the Security Council or the Assembly of States Parties on instances of non-cooperation illustrate further this flaw. In the specific situation in Sudan, an argument has been put forward, notably by the African Union, that the States Parties may justify their refusal to execute a request from the ICC to surrender Omar al Bashir by their obligation under International Law to respect the diplomatic immunity of the Head of States. This goes back to the ongoing debate of the opposing Articles 27 and 98 of the Rome Statute, raising the question whether the irrelevance of official capacity under the Rome Statute should prevail over obligations to ensure diplomatic immunity under International Law. The main issue here is that the Security Council did not explicitly waive the diplomatic immunity of the alleged perpetrators in Sudan. Nevertheless, the ICC Pre-Trial Chamber II reaffirmed that Resolution 1593 (2005) did de facto waive the immunity of Omar al Bashir.

The problem of the lack of commitment to end impunity for mass crimes goes beyond the issues of non-cooperation with the ICC. It may be timely to rethink the responsibility for core international crimes by looking at the broad picture. A possible way to revive the objective of ending impunity for core international crimes may be to consider it outside the focus of individual criminal responsibility and to integrate it within a larger framework of accountability mechanisms. This may allow for developing a wider approach drawing simultaneously from International Criminal Law and State responsibility norms to cover an extensive range of accountability mechanisms at the international and domestic level. International Criminal Justice may potentially benefit from the conceptualisation of a duty to end impunity lying with the States and associated with appropriate consequences for the failure to fulfil this duty. It is important to note that this obligation may not only fall upon the States. The Security Council may also have an impact on ending impunity through targeted sanctions and other accountability measures. Due to the limited length of this post, this issue will not be discussed further.

A structured framework to strengthen the duty to end impunity may be inspired by Continue Reading…

Emerging Voices: Strength and Legitimacy of Control Mechanisms in International Human Rights Treaties: The Moderation Effect

by Katarína Sipulova, Hubert Smekal and Jozef Janovsky

[Katarína Šipulová is a student in an MSt in Socio-Legal Research, University of Oxford and a PhD candidate at the Faculty of Social Studies, Masaryk University. Hubert Smekal is an Assistant Professor at Faculty of Social Studies, Masaryk University; and Jozef Janovský holds an MSc in Applied Statistics, University of Oxford, having previously studied politics and applied mathematics at Masaryk University. This contribution comes from research under a project entitled “International Human Rights Obligations of the Czech Republic: Trends, Practice, Causes and Consequences,” GA13-27956S, supported by the Czech Science Foundation GAČR.]

The study finds that the strength of a human-rights treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties. Empirical test of the “moderation effect hypothesis” showed that the overall speed of the commitment process of communist Czechoslovakia and newer democratic regimes (CR and SR) was quite similar. However, while communist Czechoslovakia preferred commitments to treaties with weak control mechanisms, the transitioning CSFR and its democratic successors were more prone to ratify treaties with a strong control mechanism.

What motivates states to ratify international human rights treaties remains an unanswered question in political science. Many tentative explanations for the observed commitment patterns have been proposed, relating e.g. to the character of the political regime of the state (Moravcsik 2000, Hafner-Burton – Tsutsui – Meyer 2008), the characteristics of a treaty and how they diverge from a country’s practice (Hathaway 2007; Cole 2005), and foreign policy goals (Goodman 2000, Heyns and Viljoen 2001), especially accession to the EU (Guzman 2008; Landman 2005).

A thorough examination of practices in two post-communist countries, the Czech Republic and Slovakia, contributes to this long-standing debate on different commitments patterns (i.e. signatures and ratifications). Our in-depth comparative study is based on a set of more than 190 human rights treaties; by a “human-rights treaty” we understand any multilateral treaty which includes human-rights provisions (i.e. both predominantly human-rights treaties and treaties dealing with human rights only in parts of their provisions). These are typically treaties which originated in the Council of Europe, the United Nations and the International Labour Organization.

The study covers two countries with similar foreign policy incentives as well as a common historical, political, and legal heritage. Interestingly, the political experience of the both countries has included non-democratic, semi-democratic, democratic and transitional periods. After the fall of a four-decade-long communist regime in 1989, both countries experienced a short intermezzo as a federal democratic republic (“CSFR”), which dissolved on 1 January 1993 following strong calls for national self-determination. Approximately seven decades of common history meant that the two new states shared a common starting point with regards to their international commitments and domestic legal systems. The Czech Republic set off decisively for political and economic liberal reforms in order to quickly integrate into Western international structures and it very soon acquired a reputation of the front-runner among post-communist countries. On the other hand, between 1993 and 1998, Slovakia, under the government of Prime Minister Vladimír Mečiar, slowly moved towards a semi-authoritarian system, characterised by restrictions of political rights, censorship in the media, and economic scandals. At the end of 1998, Mečiar’s government fell due to worsening economic problems and foreign-policy failures (pre-accession talks with the EU and NATO were particularly unsuccessful). After 1998, Slovakia caught up with the other CEE candidate countries and fully reoriented its efforts towards integration into Western structures. In December 2002, both states successfully concluded their pre-accession negotiations with the EU and subsequently acceded on 1 May 2004.

In this study, we do not break out the period of Mečiar’s government for methodological reasons: its character and position on the democratic – non-democratic axis remains disputable (see Janos 2000, Kitschelt 1999, or Linz and Stepan 1996). However, the political developments are taken into account when interpreting the data. Experience with different political regimes adds data variability and enables us to focus on the relationship between the character of the regime and state’s commitment activity wherever possible. Academic literature includes regime type among the most important variables influencing the decision to commit. Several authors have pointed out that non-democratic countries with poor human rights records tend to ratify treaties at a higher rate and speed (Hathaway 2002), in order to demonstrate a low-cost legitimizing symbolic commitment without any actual willingness to comply (Hafner-Burton – Tsutsui – Meyer 2008). Moreover, this commitment might be further distorted either by the use of reservations (Neumayer 2007) or a control mechanism too weak to be seen as a credible threat (Dutton 2013).

Control mechanisms adopted in human-rights treaties (i.e. their strength) differ profoundly: from no control, through an obligation to submit internal reports, to subordination to the jurisdiction of a judicial body. In this short contribution, we focus on the influence of the control mechanism on commitment patterns. Our distinct argument, that the strength of a treaty’s control mechanism moderates the effect of the political regime on how states commit to HR treaties, is then tested on the Czech and Slovak experience.

Empirical Study

Figure 1 mirrors our expectations regarding the frequency and the speed of human rights commitments of the Czech Republic and Slovakia under different political regimes. Based on the above-mentioned theories, we would expect non-democratic communist Czechoslovakia to commit to few human rights treaties, and primarily to those with a weak control mechanism (i.e. with no actual control or limited to domestic reports). However, the process of these commitments should be rather fast, because of the limited need for deliberation. On the other hand, we expect the post-1989 Federal Republic to be strongly human-rights oriented, committing frequently and fast in order to boost its international credentials and spur the proverbial return to (Western) Europe. After the consolidation of new democracies, we expect the speed of ratifications to slow down.

Figure 1: Theoretical expectations (Source: authors)

  Regime Commitment pattern(expected frequency and speed of commitments)
Communist Czechoslovakia (1948-1989) Non-Dem Low commitment activity; medium-fast processHigher for treaties with a weak control mechanism compared to democracies
 Federal Republic (1990-1992) Dem High + fast for all treaties
Czech Republic (1993 →) Dem Medium + slow for all treaties
Slovak Republic (1993 →) Dem* Medium + slow for all treaties

The overall human rights commitment activity of Czechoslovakia and its successors is presented in Figure 2. The graph shows the cumulative number Continue Reading…

Weekly News Wrap: Monday, August 24, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

  • Signatories of the Arms Trade Treaty, a major treaty aimed at regulating the international arms trade, should agree a number of key steps for its implementation at a conference this week, host nation Mexico said on Sunday.

Trial Chamber Reiterates Irrelevance of the Confirmation Hearing

by Kevin Jon Heller

A few months ago, I blogged about the OTP’s attempt to invoke Regulation 55 in Laurent Gbagbo’s trial. As I noted in that post, the OTP asked the Trial Chamber (TC) to consider convicting Laurent Gbagbo of various crimes against humanity on the basis of command and superior responsibility, even though the Pre-Trial Chamber (PTC) specifically refused to confirm those modes of liability because doing so “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and Laurent Gbagbo’s involvement therein.”

Not surprisingly, the Trial Chamber agrees with the OTP that it should keep its options open:

13. In the Request, the Prosecution demonstrates that the elements of Article 28(a) and (b) of the Statute may be derived from the facts and circumstances confirmed by the Pre-Trial Chamber. Further, in the Pre-Trial Brief, the Prosecution indicates that the evidence supporting liability under Article 28 of the Statute is encompassed by that supporting other charged modes of liability. In light of the Gbagbo Confirmation Decision, Request and Pre-Trial Brief, it appears to the Chamber that the legal characterisation of the facts and circumstances described in the charges may be subject to change to include Mr Gbagbo’s liability under Article 28(a) or (b) of the Statute.

I will not reiterate the various problems with using Regulation 55 in this manner; interested readers should see my chapter on the Regulation. But it’s worth spending a bit of time on the Trial Chamber’s decision, because it illustrates how the judges’ increasingly aggressive use of Regulation 55 has effectively consigned the confirmation hearing to irrelevance and made a mockery of the defendant’s right to a fair trial. Let’s start with this paragraph:

8. The Chamber notes that the Prosecution appears to have bypassed other statutory remedies available before making the Request. Before moving the Chamber to exercise its propria motu powers under Regulation 55(2) of the Regulations, the Prosecution could have sought (i) leave to appeal the Gbagbo Confirmation Decision or (ii) pursuant to Article 61(9) of the Statute, an amendment thereto. Notwithstanding this failure, as set out below and in the specific context of the Gbagbo Confirmation Decision, it is apparent to the Chamber that the legal characterisation of the facts described in the charges may be subject to change. In these unique circumstances, the Prosecution’s failure to exhaust other remedies does not impact on the Chamber’s obligation to give notice under Regulation 55(2) of the Regulations.

So now the OTP doesn’t even have to appeal the PTC’s confirmation decision before it asks the Trial Chamber to consider convicting the defendant on the basis of a mode of liability the PTC specifically rejected. Or, differently put, even if the PTC is correct that the OTP did not establish “substantial grounds to believe that the person committed the crime charged” on the basis of the charged mode of liability, the TC is still free to convict the defendant on the basis of that unconfirmed mode of liability as long as the OTP does better at trial. Could the irrelevance of the confirmation hearing be any clearer?

But wait, you say. The TC didn’t say the OTP never has to appeal the PTC’s confirmation decision. It said there are “unique circumstances” in this case that justify the OTP’s failure to appeal. Isn’t that important? Indeed it is — and revealingly so. Here are the so-called “unique” or “exceptional” circumstances in Gbagbo:

12. In this case, the exceptional circumstances surrounding the proposed recharacterisation must be emphasised from the outset. In particular, the Pre-Trial Chamber expressly acknowledged, on different occasions, the possibility of Mr Gbagbo’s liability under Article 28 of the Statute, a mode of liability with notably different requirements than all those in Article 25(3) of the Statute. The Pre-Trial Chamber first mentioned criminal responsibility under Article 28 of the Statue as early as the confirmation hearing, before the Prosecution included this mode of liability in its document containing the charges. Thereafter, in declining to confirm charges under Article 28 of the Statute, the majority of the Pre-Trial Chamber ‘[could] not rule out the possibility that the discussion of evidence at trial may lead to a different legal characterisation of the facts’. It found that Mr Gbagbo’s failure ‘to prevent violence or to take adequate steps to investigate and punish the authors of the crimes […] was an inherent component of the deliberate effort to achieve the purpose of retaining power at any cost’. Even the judge dissenting from the Gbagbo Confirmation Decision mentioned the possibility in this case of liability under Article 28 of the Statute, indication that she ‘could have, in principle, envisaged confirming the charges’ on that basis.

So it doesn’t matter that the PTC actually concluded that the OTP failed to present sufficient evidence to sustain command or superior responsibility. Nor does it matter that the PTC actually concluded that convicting Gbagbo as a commander or superior “would require the Chamber to depart significantly from its understanding of how events unfolded in Cote d’Ivoire during the post-electoral crisis and [his] involvement therein.” No, what really matters is that the PTC thought about the possibility of confirming command or superior responsibility; that the PTC couldn’t rule out the possibility that the OTP might be able to establish Gbagbo’s command or superior responsibility at trial; and that the dissenting judge “could have… envisaged” disagreeing with the majority’s refusal to confirm command or superior responsibility. Those are the “unique” or “exceptional” circumstances making an appeal irrelevant — which are obviously not unique or exceptional at all.

The Trial Chamber’s decision means that Gbagbo will now not only have to mount a defence against five distinct modes of liability: indirect co-perpetration, ordering, soliciting, inducing, and otherwise contributing to the commission of crimes. He will also have to defend himself against the very different idea that he was responsible for subordinates’ crimes as a commander or superior. And, of course, four months have passed since the OTP asked the TC to give Gbagbo notice of the potential recharacterisation. So the TC will give Gbagbo more time to prepare his defence, right?

Silly rabbit. Of course not:

17. Moreover, the Chamber considers that the Gbagbo Defence fails to justify its alternative request for recalculation of the trial commencement date: it does not provide any concrete indication as to the impact this decision would have on its trial preparations. On the information before it, stressing that the facts and circumstances described in the charges remain unchanged and noting that the Prosecution intends to rely on the same body of evidence, the Chamber considers that the current commencement date and accompanying schedule provide adequate time for trial preparation.

According to the Trial Chamber, in other words, it requires no work at all for Gbagbo to prepare a defence against the idea that he was responsible for subordinates’ crimes on the basis of command or superior responsibility, even though the elements of those unconfirmed modes of liability are completely different than the elements of the confirmed modes. And why are those legal differences irrelevant? Because “the Prosecution intends to rely on the same body of evidence” at trial — you know, the same body of evidence the PTC concluded could not even establish “substantial grounds” to believe Gbagbo is responsible as a commander or superior.

Thus does the Trial Chamber reduce the adversarial trial to a glorified fact-finding mission — just one in which the prosecution has a high standard of proof. It would be possible to design a legal system in which the prosecution and defence were responsible for arguing about facts and the judges were responsible for deciding which crimes and modes of liability the facts were consistent with those facts. But that is not the ICC system. (Nor, for that matter, is it the common-law system or the civil-law system.) At the ICC, the prosecution does not simply prove “facts and circumstances”; it has the burden of proving every element of the charged crime(s) and the charged mode(s) of liability beyond a reasonable doubt. They don’t call it the confirmation of “charges” hearing for nothing.

Yet none of that matters to the Trial Chamber. The TC’s position is that to “avoid impunity” — ie, to avoid having to acquit a defendant simply because the prosecution couldn’t prove its case beyond a reasonable doubt — it must be able to convict the defendant on the basis of any mode that it believes the prosecution managed to establish during trial, regardless of the prosecution’s actual theory of the case or the PTC’s view of the prosecution’s evidence. Which means, of course, that the confirmation decision is nothing more than a general set of suggestions that the TC is in no way obligated to follow.

A greater perversion of the Rome Statute is difficult to imagine.

Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings

by Melanie Vianney-Liaud

[Mélanie Vianney-Liaud is a PhD Candidate at the Aix-Marseille University, III, France.]

At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims are granted procedural rights to participate in their personal capacity. However, in both courts, victim participation is challenging since mass crimes make thousands of victims. The crimes perpetrated during the Khmer Rouge regime in Cambodia, for example, caused the death of nearly 1.7 million people. Legally speaking, the victims are those who have suffered harm as a result of a crime, namely the act(s) or omission(s) reproached to the accused in a criminal trial. Consequently, given the widespread scale of atrocities committed by the Khmer Rouge, almost the whole Cambodian population could claim victim status at the ECCC. This raises the question of how to ensure victims effective procedural rights in criminal proceedings whereas they are so many.

Several options have been contemplated. Victim participation status at the ICC and ECCC are different. The purpose of this post is to show that despite such differences, the exercise of victims’ rights is extremely restricted in both courts to the point that, today, there is no effective and useful victim participation in international criminal proceedings.

At the ICC

At the ICC, victims’ participation stems from the will of the States which negotiated the Rome Statute. Article 68.3 provides that :

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered (…). Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate (…).

However, neither the Rome Statute nor the ICC Rules of procedure and Evidence determine the modalities of victim participation. It is left to the judges to set such rules (ICC Rules of Procedure and Evidence, Rule 89.1). Thus, at the ICC, victim participation depends on each Chamber and varies in each case. For example, in the Katanga and Ngudjolo Chui case, the Trial Chamber II decided that the victims’ legal representatives « must be able to consult all of the public and confidential decisions and documents in the record of the case » (Decision on the Modalities of Victim Participation at Trial, § 121) whereas in the Bemba Gombo case, the Trial Chamber III limited legal representatives’ access to confidential material « relevant to their views and concerns » (Decision on the Participation of Victims in Trial, § 47).

With the exception of the Pre-Trial Chamber I in the Katanga and Ngudjolo Chui case, all ICC Chambers adopted a casuistic approach. Thus, for example, in the Lubanga case, the Trial Chamber I held that « in order to participate at a specific stage in the proceedings, e.g. during the examination of a particular witness or the discussion of a particular legal issue or type of evidence, a victim is required to show, in a discrete written application, the reasons why her interests are affected by the evidence or issue then arising in the case » (Decision on Victims’ Participation, § 96). Consequently, in the trial of Bemba Gombo, to have access to confidential documents, the legal representatives need file a request in which they shall show how the interests of their clients are affected by such documents without knowing their content. This puts the legal representatives in a tricky situation since they have to speculate on how that content might concern their clients in order to motive their participation.

The Pre-Trial Chamber I in Katanga and Ngudjolo Chui considered that the casuistic approach – where « victims are required to ask for the leave of the competent Chamber to perform the most simple procedural activity » – makes the rights attributed to those granted the status of victim « purely symbolic » (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, § 51).

At the ECCC

At the ECCC, victim participation was not provided by the Chambers’ creators (i.e. the United Nations and the Cambodian Governement). It stems from the judges who set the modalities of victim participation, as at the ICC. However, contrary to the ICC, such rules are not determined in a decision of the competent Chamber in each case. They were established in the ECCC Internal Rules. The judges based on the victim status in Cambodian law. Thus, according to Rule 23.1, victims participate as « civil parties » in the ECCC proceedings. They enjoy important procedural rights that they exercise throughout the whole criminal proceedings, either directly or through their lawyers, without having to ask the Chamber for permission. For instance, at the investigation stage, civil parties may request investigation action (Rule 55.10). At trial, they may question witnesses (Rule 91.2), and even the accused (Rule 90.2). Civil parties may also appeal the verdict of the Trial Chamber, when Prosecutors have appealed (Rule 105.1). In order to effectively exercise such rights, civil parties and their lawyers have access to the whole case file (i.e. the record of the case) at each stage of the proceedings (see Rules 55.11 and 86).

The fact that victims’ rights are included in the Internal Rules may imply that ECCC victims enjoy a higher legal security than at the ICC, since their legal status should less depend on judges’ discretion in each case. However, ECCC Internal Rules were amended several times, and the modalities of civil party participation have not been spared by such revisions. Particularly, during the sixth Internal Rules’ revision session in 2010, the relevant provisions were modified for ensuring effective proceedings in Case 002, ECCC’s most important case in which the last surviving Khmer Rouge leaders are indicted. The new provisions introduced two original creations. Firstly, according to new Rule 23.3, the whole civil parties of Case 002 (about 4,000 victims) have been gathered in a single, consolidated group at trial who, secondly, is represented by two lead co-lawyers designated by the Court.

In 2011, the Trial Chamber separated Case 002 trial proceedings in relation to the charges of the indictment in order to conduct several manageable « mini-trials ». Thus, the scope of Case 002/01, the first small trial, included only crimes against humanity committed during the course of two phases of movement of population, and executions of Khmer Republic officials at the execution site of Tuol Po Chrey. According to Case 002 Indictment, 1018 civil parties were declared admissible in the context of the movements of population (§§ 261, 354) and 20 with regards to Tuol Po Chrey (§ 714). However, in the 2011 decision, the Trial Chamber determined that because civil parties « no longer participate individually …, but instead as a consolidated group [with] collective interests …, limiting the scope of the facts to be tried during the first trial … has no impact on the nature of civil party participation at trial » (Severance Order Pursuant to Internal Rule 89ter, § 8). Consequently, the Trial Chamber did not sever the consolidated group of civil parties in order to keep only the victims concerned by the crimes tried in Case 002/01. Therefore, a litte less than 3,000 civil parties participated in Case 002/01 whereas their prejudice had no causal link with the crimes reproached to the accused within that trial. Such a participation means that victims at the ECCC are not considered as real legal actors but rather as mere ornaments.

Conclusion

Despite promising starts, in both ICC and ECCC, victim participation has rapidly been restricted to move towards a symbolic involvment. Such a practice calls into question the pertinence and interest of victim participation in international criminal proceedings.

Admittedly, granting hundreds or even thousands victims the opportunity to participate in person is clearly materially impossible. From a legal point of view, the balancing of the accused’s rights with victims’ rights raises considerable conceptual difficulties. The fears and suspicion caused by victim participation are, therefore, understandable.

However, victims, even if they are many, are not symbols. They deserve the opportunity to really participate in the criminal proceedings which affect them, as soon as this right is granted to them. Some ICC and ECCC’s judges have recognised the various interests of victims participating in the proceedings of both courts (see e.g., ICC, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, §§ 31-43 and ECCC, Decision on Civil Party Participation in Provisional Detention Appeals, § 40). However, it shall also be recognized that international criminal proceedings take advantage of victim participation.

Emerging Voices: The Weakness of the “Super-Constitutional” Euro

by Francesco Montanaro

[Francesco Montanaro is a dual PhD candidate at Bocconi University (Milan) and Pantéon-Assas University (Paris).]

Saving the Euro at any cost. This imperative drove the EU and EU Member States’ response to the sovereign debt crisis. Following an incremental pattern, they adopted a number of measures that culminated in the conclusion of the European Stability Mechanism (ESM) Treaty and in the adoption of the Outright Monetary Transactions (OMT) program. The ESM Treaty established a permanent crisis resolution mechanism – endowed with full legal personality – that provides financial assistance to Euro area Member States with particularly troubled public finances. However, Eurozone Member States that benefit from this financial assistance are subject to strict conditionality. The OMT program is a measure enacted by the European Central Bank (ECB) to restore an appropriate monetary transmission system. The program consists in the purchase of Eurozone Member State government bonds on the secondary market. Again, the implementation of such a program is conditional upon the fulfilment of the ESM adjustment plans.

These measures were challenged before the Court of Justice of the European Union (CJEU). In both cases, the Court assessed, among other issues, whether these measures violated the division of competences between the Union and the Member States set out in the EU Treaties. In this respect, it is worth remembering that Article 3 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the Union has exclusive competence over monetary policy, while Member States retain the power – which is nonetheless subject to the duty of coordination under Article 121 of the TFEU – to design their economic policies. According to Article 127 of the TFEU, the European System of Central Banks –i.e. the European Central Bank and the national central banks- conducts the monetary policy of the Union with the aim of maintaining price stability. This assessment, however, is everything but straightforward, as both measures have a “hybrid” nature. On the one hand, although the ESM officially aims to provide financial assistance to Eurozone Member States, it also produces effects similar to a monetary policy measure by affecting the amount of Euros in circulation. On the other hand, the OMT program, while ensuring the correct functioning of the monetary policy transmission system, it also impacts on Member States economic policies through the imposition of macroeconomic conditionality. Faced with these issues, the Court scrutinised such measures by looking at their “declared” objectives. In Thomas Pringle v. Government of Ireland, it observed that, although the ESM may produce some indirect effect on price stability, its main purpose remains the stability of the Eurozone. Consequently, it should be considered as an economic policy measure falling within the sphere of competence of EU Member States (para 56). By the same token, in Peter Gauweiler and Others v Deutscher Bundestag, the Court found that the OMT program primarily aims at ensuring the stability of prices by pursuing the ‘singleness’ of the monetary policy and safeguarding an appropriate transmission system (paras 50-51). Therefore, this measure does not exceed ECB’s competence, even though it also foists austerity measures on Eurozone members and seeks to ensure Eurozone stability.

That being said, the Court’s formalistic approach ultimately allowed the Court to circumvent the somewhat artificial division of competences laid down in the EU Treaties. Given the “hybrid” nature of the measures at issue, spillovers are inevitable: the ESM and the OMT program ultimately pursue monetary policy as well as economic policy objectives. However necessary and unavoidable this approach may seem, it leads to a de facto modification of the EU economic and monetary governance. Notably, it might be argued that the Court conferred a sort of “super-constitutional” ranking on the Euro that in effect override division of competences set out in the Treaties.

However, contrary to what one might expect, such a de facto “super-constitutional” ranking could in the long run undermine the Euro and the EU. As noted above, these emergency measures are combined with adjustment plans that may remove important economic policy choices from Member States’ competence. Although officially involved in their negotiation, Member States to which these plans will apply generally have a weak bargaining position. Thus, they are likely to accept the requests of their counterparties, namely the ECB, the Commission, and the International Monetary Fund. Yet, this might elicit their resistance in the long run. For one thing, Member States’ governments might decide to delay or even discontinue the implementation of the tough adjustment plans attached to the ESM and the OMT program thereby putting at risk their Eurozone and EU membership. The recent Greek referendum on the “bail-out agreement” with creditors represented an unprecedented “act of resistance”, even though Greek government accepted very tough bailout conditions somehow betraying polls verdict a week after the referendum. This referendum constitutes nonetheless an important precedent that might lead other EU Member States to resort to popular vote when facing hard loan conditions. And it cannot be excluded that more powerful and sizeable Member States would manage to withstand EU institutions and creditors’ pressure.

Furthermore, this rather extensive interpretation of the EU Treaties might give rise to the opposition of national judges. In this regard, it is worth mentioning that, in Gauweiler and Others v Deutscher Bundestag, the German federal constitutional in its request for a preliminary ruling made clear that it would have applied the CJEU’s decision only if the latter had met a number of conditions. As is evident, this approach might result in the refusal to apply the preliminary ruling of the Luxemburg Court.

Altogether, these forms of Member States’ resistance not only could bring about a conflict between the EU legal system and the national ones, but also jeopardise the existence of the single currency and, ultimately, that of the European construction. In other words, the de facto “super-constitutional” ranking of the Euro may turn to be its main weakness. Consequently, far from representing a long-term solution, it should prompt Member States to amend the EU Treaties.

Two equally difficult options lie ahead: either a deep overhaul of the EU economic and monetary governance or an orderly “dismantlement” of the single currency. It is time for Europe to take a clear-cut decision in order to solve the still on-going sovereign debt crisis whilst preserving the balance of powers in the Union and ensuring the democratic legitimacy of its decision-making process.  

Emerging Voices: The International Olympic Committee’s Accountability for Human Rights – Learning From the World Bank

by Ryan Gauthier

[Ryan Gauthier is a PhD Candidate at the Erasmus University Rotterdam.]

Mo’ Sporting Events, Mo’ Problems

In June, the 2015 European Olympic Games took place in Baku, Azerbaijan. Did you watch? You might not have even been aware of them! This first edition of the European Olympic Games is a symbol of the growing number of sports mega-events, joining the Olympic Games, the Fédération Intenationale de Football Association (‘FIFA’) World Cup, and others, on an ever-crowded sporting calendar. However, all is not positive. Just before the 2015 Games began, the Netherlands declined to host the 2019 edition of the European Olympic Games, citing the almost €60 million price tag as too much.

Sports mega-events have expanded not only in number, but also in geographic scope. Baku 2015 is an example of sports mega-events being held in developing countries. The BRICS (Brazil, Russia, India, China, and South Africa), and countries such as Argentina and Qatar have hosted the world’s premier sports mega-events (Olympic Games, FIFA World Cup, Commonwealth Games) since 2008.

Unfortunately for the citizens of these countries, these events have also been prime examples of the worst problems caused by sports mega-events. Families have been evicted from their homes (sometimes forcibly), ecologically sensitive areas have lost their protected status so that infrastructure such as ski runs or golf courses can be constructed, labour rights abuses have run rampant on infrastructure projects, and civil dissent has been quashed. To add insult to injury, the same old negative legacies of ‘white elephants’, such as unused or half-empty stadiums, deserted parks, unused hotel rooms, and public debt have reared their head.

 

My PhD research focuses on the accountability of international sporting organisations for the worst outcomes of their events. What I hope to do with this blog post is outline one aspect of accountability, the use of a monitoring mechanism. I will outline the problem of an absent state and a weak mandate. I will then discuss a comparison with the World Bank, and lessons that might be learned by international sporting organisations.

Where Does the Buck Stop?

Many organisations are involved in putting on a sports mega-event. As a start, international sporting organisations such as the IOC and FIFA hold the intellectual property rights to the event. However, these organisations do not directly engage in preparations for the event, but instead provide varying levels of financial and logistical support. The actual preparation is carried out by a local organising committee (which may be public or private), who hires contractors for construction, and so forth. The state government also supports the preparations.

When things go wrong, no party is held to account. This is due in part to the multiplicity of organisations involved, creating a ‘problem of many hands’. This situation is exacerbated because the state, the one organisation which is expected to provide a backstop to guarantee that its citizens are not harmed, is often unwilling or unable to hold anyone else to account. In some cases, particularly in regards to the eviction of individuals, and allowing construction in environmentally-sensitive areas, the government is actually complicit in the harm. Thus, with an absent state, my research examines how the international sporting organisations should be accountable, and should hold others to account, for the harms caused by hosting their sports mega-events.

Baby Steps

As part of its response to this situation, Continue Reading…

The National Security Law Journal Outdoes the Onion

by Kevin Jon Heller

The journal has published what has to be the most ridiculous article in the history of IHL scholarship. And no, I’m not being hyperbolic. Written by someone named William C. Bradford, identified — terrifyingly —  as an “Associate Professor of Law, National Security, and Strategy, National Defense University, Washington, D.C,” it’s entitled “Trahison des Professeurs: The Critical Law of Armed Conflict as an Islamist Fifth Column.” (Props to the author for knowing how to use Google: the main title translates as “treason of the professors.”)

I’m not going to waste even a few seconds of my life responding to the article, which blathers on for 180 pages and nearly 800 footnotes. (Seriously.) I will just offer two quotes, almost chosen at random. In the first, the author advocates prosecuting CLOACA scholars (the “critical law of armed conflict academy” — a scatological acronym the author no doubt finds profoundly clever) for material support for terrorism. Bonus points for actually calling for a new House Un-American Activities Committee!

In concert with federal and state law enforcement agencies, Congress can investigate linkages between CLOACA and Islamism to determine “the extent, character, and objects of un-American propaganda activities in the U.S. [that] attack the . . . form of government . . . guaranteed by our Constitution.” Because CLOACA output propagandizes for the Islamist cause, CLOACA would arguably be within the jurisdiction of a renewed version of the House Un-American Activities Committee (Committee on Internal Security) charged with investigating propaganda conducive to an Islamist victory and the alteration of the U.S. form of government this victory would necessarily entail.

“Material support” includes “expert advice or assistance” in training Islamist groups to use LOAC in support of advocacy and propaganda campaigns, even where experts providing such services lack intent to further illegal Islamist activity. CLOACA scholarship reflecting aspirations for a reconfigured LOAC regime it knows or should know will redound to Islamists’ benefit, or painting the United States as engaged in an illegal war, misrepresents LOAC and makes “false claims” and uses “propaganda” in a manner that constitutes support and training prohibited by the material support statute. Culpable CLOACA members can be tried in military courts: Article 104 of the Uniform Code of Military Justice provides that “[a]ny person who . . . aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things . . . shall suffer death or . . . other punishments as a court-martial or military commission may direct;” the Rule for Court Martial 201 creates jurisdiction over any individual for an Article 104 offense.

But that’s not my favourite quote. This one is — in which the author argues that that CLOACA scholars are unlawful combatants who can be killed in their law-school offices:

CLOACA scholarship and advocacy that attenuates U.S. arms and undermines American will are PSYOPs, which are combatant acts. Consequently, if these acts are colorable as propaganda inciting others to war crimes, such acts are prosecutable. CLOACA members are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities. As unlawful combatants for failure to wear the distinctive insignia of a party, CLOACA propagandists are subject to coercive interrogation, trial, and imprisonment. Further, the infrastructure used to create and disseminate CLOACA propaganda—law school facilities, scholars’ home offices, and media outlets where they give interviews—are also lawful targets given the causal connection between the content disseminated and Islamist crimes incited. Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are—at least in theory—targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.

No, I’m not kidding. And no, the author apparently isn’t either.

I won’t tell readers to go read the article for themselves, because that would be cruel and unusual punishment. I will simply end by pointing out the most fundamental flaw in the article: namely, that it fails to note that I am a card-carrying member of CLOACA. Indeed, I’ve been advocating for radical Islam to defeat the West for years now, both here on the blog and in my scholarship. Surely I should be targeted, too!

UPDATE: The author of the article, William C. Bradford, resigned from Indiana University-Indianapolis’s law school in 2005 after it was revealed that he had lied about his military record — including falsely claiming to have won a Silver Star during Desert Storm. See this article in Inside Higher Education.

Emerging Voices: The Role of Attribution Rules Under the Law of State Responsibility in Classifying Situations of Armed Conflict

by Remy Jorritsma

[Remy Jorritsma (LL.M.) is a lecturer in public international law at the Department of International and European Law of Maastricht University. In September 2015 he will join the Max Planck Institute Luxembourg as a Research Fellow/PhD candidate. Contact at r [dot] jorritsma [at] maastrichtuniversity [dot] nl.]

Armed conflicts involving e.g. Ukraine/Russia, Israel/Palestine, and the self-proclaimed Islamic State demonstrate legal ambiguities with regard to State responsibility as a result of the State exercising control over organized armed groups. Under customary international law an act by a non-State actor is attributable to a State if, inter alia, the latter exercises a certain level of control over the former.

However, it is unclear how much control is required for attribution. Equally unclear is the exact function of attribution in relation to the application of international humanitarian law (IHL). At stake is the issue whether the secondary rules of attribution may assist in classifying the armed conflict, thereby determining the framework of primary rules in which hostilities take place: the rules of international armed conflicts (IACs) or non-international armed conflicts (NIACs). The line of case law responsible for this debate is often characterized as a conspicuous example of “fragmentation” of international law (see here, here; but see with more nuance here).

In the Nicaragua case the ICJ assessed whether the acts of the contras could be attributed to the US for the purpose of State responsibility. The Court set the required level of control as follows:

‘[Even decisive participation] in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of whole of its operation, is still insufficient [. I]t would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.’ (§115, emphasis added.)

The Nicaragua test did not convince the ICTY Appeals Chamber when it had to ascertain the nature of the armed conflict between Bosnia and Herzegovina and the Federal Republic of Yugoslavia, acting after 19 May 1992 through the Bosnian Serb Army. The Appeals Chamber considered when an organized armed group fighting in a prima facie NIAC acts on behalf of another State – or ‘belong[s] to a Party’ in the sense of Article 4(a)(2) of Geneva Convention III – with the result that the conflict is internationalized and thus subject to IAC law. It held this to be the case if that State exercises…

‘overall control, going beyond the mere financing and equipping of [organized armed] forces and involving also participation in the planning and supervision of military operations. [It is not required] that such control extend to the issuance of specific orders or instructions relating to single military actions.’ (§145)

The next round of this ‘dialogue des sourds’ (Simma 2009, p.280) came when the ILC cited with approval the Nicaragua test in its Commentary (§5) to Article 8 of the Articles on State Responsibility, apparently discarding the overall control test. Later in the Lubanga Confirmation of Charges Decision the ICC approved (§211, later endorsed in the Lubanga Judgment at §541) the overall control test for the purpose of determining the nature of the conflict. Finally, the stamp of approval for the effective control test comes when the ICJ in Bosnian Genocide explicitly rejects (§403) the Tadić test of overall control for the purpose of State responsibility. Oddly, and perhaps even merely as a ‘gracious concession to the ICTY’ (Cassese 2007, p.651), the Court in Bosnian Genocide somehow purports (§405) to conceal this conflict by suggesting that the level of control required for the internationalization of a NIAC can ‘without logical inconsistency’ differ from the degree of control required for attribution in terms of State responsibility. The Court thus leaves open the possibility that the less-demanding test of overall control may be used to bring about an international(ized) armed conflict.

This line of case law reveals a fundamental difference of opinion as to if, and how, questions on State responsibility and conflict classification can be answered through a process of attribution of conduct. Two specific points of conflict can be observed: (1) disagreement as to the level of control required for State responsibility, and (2) disagreement as to whether conflicts can be classified by “borrowing” from the law on State responsibility. Bosnian Genocide creatively seeks to avoid the appearance of an all-out confrontation with the ICTY by acknowledging its subject-matter expertise and by approving of its approach in matters of conflict situation. However, what was meant to avoid or minimize the appearance of fragmentation actually ended up exacerbating it. There are three possible ways of looking at the overall/effective control debate (cf. Report of the Study Group on Fragmentation, §43-50):

  • As involving a conflict between two different interpretations of international law: effective control versus overall control for State responsibility;
  • As involving a conflict between the general law and a particular rule that claims to be the lex specialis exception to it: effective control for State responsibility but overall control for State responsibility in situations of armed conflict;
  • As involving no conflict at all, because the cases can be distinguished on basis of facts: Nicaragua/Bosnian Genocide concerned State responsibility, whereas Tadić concerned classification of armed conflict.

Particularly the ICJ’s disconnection between State responsibility and classification of conflict by differentiating between various functions of attribution is problematic for a number of reasons.

First, the ICJ’s suggestion that State responsibility is conceptually distinct from conflict classification appears to depart from its earlier practice in Nicaragua. Here the Court held that the actions of the contras in relation to Nicaragua, not imputable to the US, were subject to the law of NIACs, whereas the actions of the US itself (e.g. issuing a guerrilla warfare manual to the contras) were subject to the law of IACs. Without explicitly saying so, Nicaragua suggested a close link to exist between attribution of conduct and classification of armed conflict, making it unlikely to maintain that these questions are very different in nature. The lack of attribution through effective control meant that the conduct of the contras was de facto and de jure their own. Conversely, should the Court have found that the contras’ acts were legally attributable to the US, it is expected that their actions be assessed in light of the rules of IACs (cf. § 215 and 254).

Second, the primary rules of IHL also demonstrate a clear connection between attribution, State responsibility, and classification of conflict. An IAC subject to the rules of IHL exists whenever there is an armed conflict between States, whereas NIACs are armed conflicts in which at least one of the belligerent parties is not a State. In the Bemba Confirmation of Charges Decision the International Criminal Court held (§223) that an IAC exists ‘in case of armed hostilities between States through their organs or other actors acting on behalf of the State.’ Having in mind that conflicts are distinguished by the parties involved (Zegveld 2002, p.136), it becomes clear that ‘a determination of attribution will affect the classification of conflict’ (Somer 2006). The legal process of attribution in armed conflict situations defines who the belligerent parties are, and this in turn determines the applicable law in light of which the lawfulness of the belligerent parties’ behaviour must be assessed. This interpretation of IHL by reference to general rules of international law (Art. 31(3)(c) VCLT) arrives at a solution that is the most coherent when looking at IHL as such, and at IHL within the wider system of public international law.

Third, more generally, attribution rules are relevant to ‘define the conditions upon which the primary rules applies’ (Gaja 2014, p. 989). They are ‘transsubstantive’ rules (Caron 1998, p.128) which permeate the content and scope of primary rules. Primary rules may be addressed to specific legal subjects only and secondary rules of attribution rules then serve to determine whether the conduct complained of can be imputed to the addressee of the norm. This, of course, only unless a special law determines otherwise (cf. Art. 55 ARSIWA). If a State exercises control over a non-State actor this triggers the application of fields of law made to regulate State behaviour.

The ICJ’s separation of control for conflict classification from control for State responsibility rigidly adheres to a strict separation between primary and secondary rules. By suggesting to agree on a minor point with the ICTY the ICJ actually obscured the bigger picture and created more legal uncertainty. Also, a less-demanding test for conflict classification being distinct from State responsibility opens the door for States to fight a proxy IAC without being responsible towards the victims for possible violations committed in the course of that conflict. This is unacceptable in light of IHL’s emphasis on responsible command and at odds with the general structure of the law on State responsibility which logically places attribution before establishment of a breach or legal consequences.

At the end of the day, the ICJ and ICTY/ICC’s diverging approach towards the function of State control over a non-State actor may just as well be regarded as a case of concealed confrontation, or at the very least a judicial dialogue that feigns some agreement in order to downplay the actual extent and form of fragmentation.

Weekly News Wrap: Monday, August 17, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

Events and Announcements: August 16, 2015

by Jessica Dorsey

Announcements

  • NALSAR International Law Society (affiliated to I.L.S.A) and NALSAR University of Law, one of the premier law schools in India, are glad to announce the launch of NALSAR International Law Journal. NALSAR International Law Journal, a biannual peer-review e- journal, seeks to provide a platform for highest quality debate on International Law, both on levels of theoretical abstraction and on the level of contemporary international legal issues. In this issue of the Journal, we have incorporated a wide range of articles, some dealing in policy questions, some doing normative analysis of a contemporary international legal issues. Prof. James Nedumpara’s article highlights the issue of widening of international law beyond traditional confines of “law of nations” and illustrates the role of networking societies in WTO engagements. Articles by Himanil Raina and Pratik Ranjan Das engage in a debate about a very contemporary issue of great significance—that is scope of Article 2 (4) of UN Charter and prohibition of use of force in light of modern issues like attacks by non-state actors and cyber-attacks. On a similar vein, Abhik Chakraborty’s paper deals with questions of attributability that has become especially important in this age of irregular warfare. Edrine Wanyama’s article examines the theoretical and normative underpinnings of the Calvo Doctrine and its importance especially for the Third World nations. Others have done analysis of issues such as Odious Debts, Immunity of International organisations and so on. Readers can access the Journal here. You can write to the editors at: nalsar [dot] ils [at] gmail [dot] com.
  • The Utrecht Journal of International and European Law is pleased to announce that the new issue of the journal, the 2015 General Issue, has just been published. The full Volume 31, Issue 81 of the Utrecht Journal of International and European Law is available 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.

New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

Emerging Voices: The Law of the Sea as a Tool for Stability and Progress in the Eastern Mediterranean Sea

by Nikolaos Ioannidis

[Nikolaos A. Ioannidis is a PhD candidate in Public International Law (University of Bristol).]

On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention.

In particular, four East Med states proceeded with the conclusion of bilateral maritime boundary delimitation agreements; the first delimitation agreement between Egypt and Cyprus in 2003 was followed by another two between Lebanon-Cyprus in 2007 (pending ratification by Lebanon); and Israel-Cyprus in 2010. All three agreements are concise and comprise five virtually identical articles each. Undoubtedly, maritime boundary delimitation is a pivotal function within the realm of the law of the sea. As the Arbitral Tribunal in the Bangladesh/India Award stressed:

“The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake… the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment (emphasis added).”

Even though the East Med states maintain variant positions on maritime affairs, they have perceived the utility of the law of the sea apparatus in facilitating hydrocarbon exploration and exploitation, hence they decided to act within its ambit and collaborate with a view to gaining multiple profits from the energy windfall.

Legal analysis of the agreements

In the Preambles of these instruments, the contracting parties set forth the desire for cooperation, note the importance of EEZ delimitation “for the purpose of development” and recall the relevant LOSC provisions. The invocation of the LOSC in the Israeli-Cypriot agreement is of utmost significance as it not only illustrates the universal application of the Convention, but, most importantly, highlights the willingness of Israel to act in conformity with the LOSC, despite not being a party to the Convention, at least in terms of the provisions relevant to the EEZ. In any event, the EEZ concept forms part and parcel of customary international law, thus, even non-member states to the Convention are entitled to use and are obliged to observe the relevant rules [Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, para. 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep. 246, para. 94; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep. 13, para. 34].

Perforce Article 1(a) of each agreement, the maritime limit between the contracting states is the median line, namely a line “every point of which is equidistant from the nearest points on the baselines of the two Parties” (Article 15 LOSC). The mutual acceptance and use of the median line evinces the establishment of a regional practice in the East Med favouring this method, contrary to the efforts of Turkey, which has diachronically been rejecting the median line/equidistance principle; instead, Turkey has been advocating the vague equitable principles/relevant circumstances method, which provides that all relevant factors should be considered so as to reach an equitable result. Paragraphs b-d of Article 1 address the definition of the coordinates of the maritime boundaries.

Furthermore, Continue Reading…

New Opportunities to Research Civil War at Melbourne Law School

by Kevin Jon Heller

My colleague Anne Orford has just received — and deservedly so — a very significant Australian Laureate Fellowship for a program entitled Civil War, Intervention, and International Law. The program is funded by the Australian Research Council from 2015 to 2020 and will establish an interdisciplinary research team based at Melbourne Law School. Here is a snippet from the description of the program:

Professor Orford’s ARC Laureate Fellowship Program will undertake a comprehensive analysis of one of the most pressing questions in contemporary international law and politics: whether, and if so under what conditions, foreign actors can lawfully intervene in civil wars. The lawfulness of external intervention in the domestic affairs of states is one of the most enduring and contested topics of debate within the disciplines of international law and international relations. The intensity of debates about the legality of intervention by the US and its allies in Iraq and Syria on the one hand, and by Russia in the Ukraine on the other, illustrates both the urgency of this issue and the difficulty of finding general principles to address it. The project will combine archival research, legal analysis, and critical theorising to develop a conceptual framework that can better grasp the changing patterns and practices of intervention.

The program is now inviting applications for two Postdoctoral Fellowships, which are full-time, fixed term research positions that can last up to five years. Here is the description:

The Postdoctoral Fellows will be appointed to undertake projects that explore the historical and contemporary practice of interventions in a specific region, chosen from Africa, Asia, Europe, Latin America, or the Middle East. The specific regional studies, as well as the cases to be explored as part of those regional studies, will be chosen by the Postdoctoral Fellows in conjunction with Professor Orford. The Postdoctoral Fellows will take responsibility under the supervision of Professor Orford for developing the regional studies and for drawing out cross-cutting themes between them. The aim will be to map and evaluate the specific legal, political, and economic issues that have influenced and shaped interventions in civil wars in particular regions, the legal justifications that have accompanied those interventions, and the normative innovations that have resulted. It is well accepted, for example, that the principle of non-intervention has a particular meaning and importance in the inter-American context, as many early formulations of the principle emerged out of attempts to renegotiate the relation between the US and its near neighbours in Central and South America. Similarly, the responsibility to protect concept has a close association with African states and attempts to manage civil wars on that continent. The cases within each regional study may include pre- and immediately post-World War 2 situations (such as those in Spain and China), early post-colonial conflicts (such as those in Korea, Vietnam, and Cambodia), proxy wars of the 1980s (such as those in Afghanistan and Nicaragua), and post-Cold War situations (such as those involving the former Yugoslavia, Rwanda, the Democratic Republic of the Congo, Libya, Iraq, Ukraine, and Syria). The focus of the program is on developments over the twentieth and twenty-first centuries, but proposals focusing on nineteenth century practice will also be considered. It is anticipated that the studies undertaken by the Postdoctoral Fellows will be published as monographs.

The program is also seeking two PhD students:

The doctoral projects will each study an emerging area of conceptual innovation that has played a role in reshaping the broader normative framework governing intervention in civil war over the past decades. One project will analyse the impact of the related concepts of humanitarian intervention and the responsibility to protect, and the second will analyse the impact of the concepts of collective self-defence and intervention by invitation that have been invoked in the context of the war on terror. The projects will study particular cases of intervention in civil war that were justified either in terms of protecting civilians (using concepts such as humanitarian intervention or the responsibility to protect) or of responding to terrorism (using concepts such as collective self-defence or intervention by invitation). The projects will involve detailed analyses of how legal arguments have been used in practice – for example, the ways in which legal concepts have been invoked by parties to civil wars (including foreign interveners), the extent to which the use of legal arguments has been innovative and directed to transforming existing norms, the patterns of diplomatic and military practice that those legal arguments have sought to justify, how other states have responded to such justifications, what positions states have taken publicly in debates on relevant issues in the General Assembly and the Security Council, and how decisions by external actors to support or recognise particular groups have been publicly justified. It is anticipated that the resulting doctoral theses will be published.

Anne is a fantastic scholar, the law school has a superb academic culture, and there are very few places in the world more pleasant to live than Melbourne. I hope interested readers will apply. You can find more information here.

Emerging Voices: Excuse in International Law

by Arthur Kutoroff

[Arthur Kutoroff is a graduate of Cornell Law School. He can be reached at Kutoroff [at] gmail [dot] com.]

There is a fundamental asymmetry between the treatment of individuals and the treatment of states within international law: individuals may claim excuses for their violations of legal obligations, but states may not.

Philosophers and lawyers distinguish between justifications and excuses: an action is justified if it is morally good or right (or at least not bad or wrongful); an action is excused if it is wrongful but the actor is not culpable for the wrongful action. This distinction affects the rights of third parties as well: third parties may lawfully assist a justified action, but may not assist an excused action because excuses are personal to the excused.

This distinction has been widely influential in domestic criminal law, as many jurisdictions clearly distinguish between justifications such as self-defense and excuses such as insanity. International criminal law seems to recognize excuses as well. The Rome Statute provides defenses such as duress, insanity, and intoxication for defendants before the ICC, although the Rome Statute is not entirely clear about which defenses are justifications and which are excuses. Moreover, in the Erdemovic case the ICTY recognized duress as a defense, albeit in limited circumstances.

International law does recognize defenses for states that breach their international obligations, but it does not clarify which defenses are justifications and which are excuses. For example, in the 1838 Caroline affair, British forces entered United States territory to destroy an American ship that was supplying Canadian rebels during the Upper Canada Rebellion. In response, United States Secretary of State Daniel Webster argued in a letter to the British government that the British failed to meet the standard of self-defense, which requires “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This definition combines elements of excuse and justification. The requirement that an exercise of self-defense is necessary suggests that self-defense is a justification, since jurisdictions generally recognize that a necessary action is justified. Yet, as George Fletcher and Jens Ohlin explain, the requirement that one could not do otherwise invokes the idea of self-preservation, which is more an excuse than a justification. Moreover, that requirement that one has no moment of deliberation invokes the idea of provocation, which is arguably a partial justification and a partial excuse.

Yet more recently international law has abandoned the language of excuse. The United Nations Charter authorizes the use of force if Security Council approves the use of force, and also maintains “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” In both of these circumstances, the use of force is justified, not merely excused: a state using force with UN Security Council approval or in self-defense has not committed a wrongful action.

Since World War II, international law has continued to recognize defenses to breaches of international obligations, but it has not clearly distinguished between justifications and excuses. Yet defenses in international law seem more like justifications than like excuses. As an illustration, consider the Draft Articles on State Responsibility, which provides a set of defenses to breaches of international law. Consider the defense of necessity, which was described in the Draft Articles and recognized by the ICJ in the Gabčíkovo-Nagymaros Project case. The Draft Articles describe necessity as “a ground for precluding the wrongfulness of an act not in conformity with an international obligation,” which invokes the language of justification rather than excuse. Recently the UN General Assembly has commended the Draft Articles (now just “the Articles”), further solidifying their place in international law yet further entrenching the ambiguity between justifications and excuses.

International law should consider recognizing excuses for states, as the theories that warrant the provision of excuses for individuals may apply to states as well. As an illustration, consider H.L.A. Hart’s theory of excuses: agents should be punished for their actions only if they have “the normal capacity, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities.” Hart considers various excuses, such as duress, mistake, and insanity, and notes that in these circumstances the defendant “could not have done otherwise.” There are other theories besides Hart’s: scholars have advocated alternative theories of excuse grounded in causation, choice, character, utilitarianism, and other considerations as well. But given H.L.A. Hart’s influence, his theory is a useful starting point.

Hart’s capacity and opportunity theory of excuse seems to apply to states as well as to individuals. Consider the prospects of a duress defense for states. States may be subject to coercive pressure from other states, and such coercive pressure may undermine the normal capacity of a government to act in conformity with international law. Moreover, coercive pressure from other states may deny a state a fair opportunity to conform their conduct to the requirements of international law.

To an extent, international law already recognizes duress, as the Draft Articles recognize coercion as a defense. Yet international law should clearly recognize duress or coercion as an excuse, not a justification. The moral significance of coercion is not that coercion justifies an otherwise wrongful action, but rather that it transfers culpability to the coercive third party. Were international law to recognize duress as an excuse, it would open the conceptual space to condemn wrongful conduct without condemning those who lacked the opportunity and capacity to follow their obligations.

As illustration of the effect of duress on state conduct, Continue Reading…

Emerging Voices: What’s in a Mandate? Protecting Civilians in South Sudan

by Bart Smit Duijzentkunst

[Bart L. Smit Duijzentkunst recently received his PhD in international law from the University of Cambridge. He will be teaching international law at the Fletcher School of Law and Diplomacy, Tufts University, in the 2015 fall semester.]

When, in December 2013, the United Nations Mission in South Sudan (UNMISS) opened its gates to thousands of civilians fleeing violence in the wake of an alleged coup, it also opened a new chapter on the UN’s commitment to the protection of civilians. Two decades earlier UN troops had received vague orders to protect “safe areas” in Bosnia and Rwanda—with disastrous consequences. Today UNMISS is explicitly authorised to use “all necessary means” to protect civilians. Yet while the language of UN mandates has evolved, so have developments on the ground. UN policy-makers originally envisioned protection of civilians measures as short-term, localised interventions to ensure the physical safety of persons in acute emergency situations. In South Sudan, however, 18 months after the outbreak of hostilities almost 140,000 people continue to reside in so-called “protection of civilians sites” across the country. As a result, UNMISS peacekeepers are not simply called upon to protect against external threats, but also to maintain public safety and security within protection of civilians sites. But does their mandate cover these activities? This post briefly discusses the evolution of peacekeeping mandates before offering some reflections on UNMISS’ authority.

Protection of civilians mandates emerged in UN Security Council practice on the eve of the new millennium. In “traditional” mandates, the protection of civilians had been an afterthought, the fortuitous consequence of other peacekeeping objectives. For example, the mandate of UNPROFOR, operating in the Balkans in the mid 1990s, merely called upon the mission to deter attacks on so-called “safe areas”, to monitor cease-fires and to promote the withdrawal of military and paramilitary units from these areas. UNPROFOR could only take “all necessary measures”, including the use of force, in self-defence. Similarly, when UNAMIR in Rwanda was authorised to establish “secure humanitarian areas” in 1994, the UN Security Council recognised that the mission might be required to take action in self-defence to protect the areas, but did not explicitly authorise it to use force to do so.

Propelled by the failures in Bosnia and Rwanda, and encouraged by the emerging idea that the international community held a “responsibility to protect” vulnerable populations, in 1999 the UN Security Council started to explore the protection of civilians as an objective of peacekeeping. It began passing dedicated resolutions and included protection of civilians clauses in operational mandates. These “robust” mandates reflect a recognition by the Security Council that impartiality of UN peacekeeping operations “is not the same as neutrality or equal treatment of all parties in all cases for all time” and that in certain circumstances “peacekeepers may not only be operationally justified in using force but morally compelled to do so.”

In the same year, the UN Security Council vested certain missions with far-reaching administrative powers. UNMIK in Kosovo and UNTAET in East Timor were tasked to provide administrative functions while developing domestic institutions. In line with their “executive” mandates, these missions were empowered to draft local laws, implement domestic policies and administer justice, including arresting and sentencing alleged criminals, until these powers were transferred to local governments (in 2008 and 2002 respectively).

With these differences between traditional, robust and executive mandates in mind, let’s return to the situation of UNMISS. Following South Sudan’s independence on 9 July 2011, UNMISS’ initial mandate focussed on state-building and conflict resolution efforts; the protection of civilians was buried deep in its sub-clauses. These political ambitions went up in flames with the outbreak of violence on 15 December 2013, when an alleged coup triggered a civil war between Government forces, led by President Salva Kiir, and the Sudan People’s Liberation Movement/Army – In Opposition (SPLM/A-IO), headed by former vice-President Riek Machar.

In light of the persistent fighting and the massive influx of internally displaced persons and refugees onto UNMISS premises, the UN Security Council revised UNMISS’ mandate in November 2014 to make the protection of civilians its top priority. The new, robust mandate removes references to “imminent” threats, simply authorising UNMISS to “use all necessary means” to “protect civilians under threat of physical violence, irrespective of the source of such violence”. While housing, food and sanitation are principally provided by humanitarian organisations, UNMISS is in charge of “maintain[ing] public safety and security within and of UNMISS protection of civilians sites”.

This is not the first time that the UN has provided shelter to civilians on its premises: from East Timor to Palestine, over the last decades civilians have flocked to UN bases in the face of violence. The UN has developed various policies to deal with these situations, which range from setting out general principles to providing specific guidelines on civilians seeking protection at UNMISS sites (the latter drafted prior to December 2013). All these documents stress the exceptional and temporary nature of these measures: they speak of protection in terms of hours or days, not weeks or months. Yet as the conflict in South Sudan persists and peace remains elusive, what might have seemed a temporary measure at first has turned into a prolonged situation with few prospects of resolution.

Continue Reading…

Emerging Voices: Powers of the Security Council to Make Determinations Under Article 39 of the Charter in Case of Cyber Operations

by Janos Ferencz

[Janos Ferencz, LL.M., is a Visiting Research Fellow at The Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa and a Legal consultant at Panteia, the Netherlands.]

The rapid proliferation of malicious cyber operations in recent years has underlined a growing concern about the risks presented by cyber space to international peace and security. The UN General Assembly noted in Resolution 69/28 (2014) the increasing concerns about the use of information technologies “for purposes that are inconsistent with the objectives of maintaining international stability and security” (UN Doc. A/Res/69/28, 2 December 2014, preambular para. 9). The importance of understanding when cyber operations represent a threat to international peace and security lies in the Security Council’s Chapter VII powers. Under Article 39 of the Charter, its powers to adopt non-forceful and forceful measures can only be activated once there is a determination that a cyber operation is a “threat to the peace, breach of the peace, or act of aggression.” The academia has paid only limited attention so far to analysing the conditions under which cyber operations can reach this level. This post aims to fill this gap by assessing whether, and if so, under what conditions can cyber operations trigger the applicability of Article 39 of the Charter.

Cyber operations and the threshold of Article 39

A cyber operation must be understood as a broad concept, incorporating “the employment of cyber capabilities with the primary purpose of achieving objectives in or by the use of cyberspace” (Tallinn Manual, para. 2, p. 15). The Tallinn Manual experts unanimously agreed that the Security Council possesses the authority to determine that a cyber operation constitutes a threat to the peace, breach of the peace, or act of aggression (Tallinn Manual, Rule 18). The question remains, however, what are the prerequisite circumstances for such an operation to attain the level of gravity required by Article 39?

A breach of the peace is generally characterized by armed hostilities between States, while an act of aggression manifests through the direct or indirect use of force. The concept of “threat to the peace” is the broadest and most frequently used one by the Security Council. From a cyber perspective, the two former scenarios, although theoretically possible, remain less likely to occur in practice since the Security Council has yet to make a determination that an event amounted to an act of aggression, and only a handful of situations were found to have breached the peace (e.g. the invasion of South Korea or Kuwait). For this reason (and taking into account also spatial limitations) this post focuses on the circumstances qualifying cyber operations as a threat to international peace and security.

The Security Council has broad discretion under Article 39 to conclude that any kind of conduct or situation amounts to a threat to international peace. Finding the lowest common denominator across the Council’s past practice falls beyond the scope of this post but suffice it to say that a “threat to the peace” is deemed a political concept (Tadić Decision on Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 29) that builds on the Council’s interpretation of the concept of “peace”. Although the early practice of the Council has shown a narrow interpretation of this concept, viewing “peace” as the absence of use of force between States (J. Frowein, ‘Article 39’ in B. Simma (ed.) The Charter of the United Nations: A Commentary (2nd edn., OUP, 2002), at p. 720), the recent practice of the Council indicates its willingness to broaden that interpretation. This is best evidenced by the Council’s acknowledgement that the HIV/AIDS pandemic can pose a security threat (SC Res. 1308, 17 July 2000) as well as the determination on the existence of a threat to international peace and security in West-Africa due to the outbreak of Ebola (SC Res. 2177, 18 September 2014). Nonetheless, the Council has always been careful to consider the impact of an internal situation upon regional or international stability. This criterion is common across all Article 39 determinations, and entails that any event or phenomena that undermines regional or international stability by creating a risk for unrest or hostilities in the short or medium term could fall within the purview of Article 39.

Thus, a cyber operation will amount to a threat to peace within the meaning of Article 39 when it creates the threat of jeopardizing regional or international stability. Cyber operations targeting the critical infrastructure of a State will likely fulfill this threshold. Similarly, the US DoD concluded that “computer network attacks that caused widespread damage, economic disruption, and loss of life could well precipitate action by the Security Council” under Article 39 (US DoD, An Assessment of International Legal Issues in Information Operations, May 1999, p. 15).

The cyber operation itself need not be a violation of international law per se for it to fall within the ambit of Article 39. This raises interesting questions about the exploitation of cyberspace for the purposes of espionage, which is, in principle, not prohibited by international law. This question is particularly relevant in the aftermath of Edward Snowden’s revelations regarding the NSA’s surveillance programme in 2013.

In my view, there are two main approaches to assessing cyber espionage under Article 39. Firstly, relying on the threshold set out above, cyber espionage could represent a threat to international peace and security when it creates destabilizing effects on regional or international stability to the extent that a potential risk of unrest and hostilities between States will arise. One example would be recourse to dual-use malwares that not only steal information but also produce widespread destructive or disruptive effects. However, it is unlikely that data breaches on their own would fall within the scope of Article 39 unless there is a prospect for hostilities as a result of the breaches. Furthermore, due to the threat of veto by any permanent member of the Security Council, it remains unlikely that in the near future cyber espionage incidents will be formally declared a threat to international security.

The alternative approach is to Continue Reading…

Weekly News Wrap: Monday, August 10, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

Events and Announcements: August 9, 2015

by Jessica Dorsey

Events

  • The International Colloquium – Current Issues of Agricultural Law in a Global Perspective (2015 AgLaw Colloquium), will be held at the Scuola Superiore Sant’Anna Pisa, September 1718, 2015. The Scuola Superiore Sant’Anna and the Institute of Law, Politics and Sustainability are pleased to announce the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective. The Colloquium is intended to be an opportunity for Post Docs and Ph.D Candidates to present and discuss their research results and methodological approaches in a supportive environment. The aim is to build a community of early career researchers interested in agricultural law and its intersections with other legal areas. We welcome both theoretical and empirical papers as well as studies on issues at the local, regional and international levels. The main topics include: Natural Resources and Environmental Protection at the cross-roads with Agricultural Law; Agricultural models and People’s Rights; Agri-Food Production: Tradition and Technologies; International Trade Agreements, Investment Law and Agriculture. For those interested in participating as auditors, the Programme (.pdf) is now available.

Announcements

  • The International Criminal Court has posted a vacancy announcement for Visiting Legal Professionals. The posts are for three- to six-month periods and are funded. The Legal Professionals Programme is a new initiative aimed at bringing up to ten court representatives and professionals from situation countries (currently: Democratic Republic of the Congo, Uganda, Central African Republic, Sudan, Kenya, Libya, Côte d’Ivoire and Mali) and countries under preliminary examination (currently: Afghanistan, Colombia, Nigeria, Georgia, Guinea, Honduras, Iraq, Ukraine and Palestine) who may not have the financial means to otherwise participate in the Visiting Professionals Programme. Participants in this programme will gain first-hand experience from and knowledge of the ICC and its procedures. This will allow participants to develop their legal skills and knowledge of the Rome Statute system, and to subsequently impart lessons learned and best practices to their home organisations. Witnessing the functioning of the only permanent international criminal court will enable participants to contribute to the development of national capacities in their home countries to investigate and prosecute crimes within the jurisdiction of the ICC. The deadline is rather soon–16 August 2015. More information can be found in the vacancy announcement here.
  • The Minerva Center for the Rule of Law under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies, University of Haifa invites researchers (graduate students at the MA/PhD levels, post-Doctoral researchers, scholars and practitioners) to submit research proposals on aspects of Cyber Regulation, Policy and Theory. As part of the Fellowship, Fellows will be provided with working space and accommodation in Haifa for periods of between one to twelve months. It is expected that Fellows will take part in the activities of the Center during their stay. The call is open to both domestic and international applicants. A combination of residency in Haifa (for a minimum of one month) and long distance collaboration will also be considered. The application deadline is 10 September. More information can be found here.

Calls for Papers

  • On  12-13  November  2015,  the  Research Unit in Law of the University of Luxembourg,  with  the  support  of  the  Fonds  National de la Recherche Luxembourg,  will be holding a conference on the settlement of tax disputes under international law, with the aim of analysing taxation issues through the lens of international law and its dispute settlement procedures, and bringing   together international  lawyers  and  tax  lawyers  to  do so. Confirmed speakers already include Prof. Mads Andenas (University of Oslo), Prof. Ilias Bantekas (Brunel University), Dr N. Jansen Calamita (BIICL), Dr Abba Kolo (CEPMLP Dundee), Dr Sébastien Manciaux (Université de Bourgogne), Dr  Luca  Pantaleo  (TMC  Asser  Instituut),  Prof.  Alexander Rust (Vienna University  of  Economics and Business) and Epaminontas Triantafilou (Quinn Emanuel). Part of the conference will be a roundtable discussion for junior scholars; giving  them  an opportunity to present their research on issues covered by the conference and to receive feedback from the conference speakers. Those selected  will  receive  a  bursary  to fund their travel and accommodation expenses, and may also have the opportunity to contribute to the conference proceedings, which will be published. We are now calling for applications to  present  a  paper  at  the  roundtable, and invite junior scholars (PhD candidates,  post-docs and fellows) with research interests in the field to apply by submitting an abstract (not exceeding 800 words) of their proposed paper, together  with  a  copy  of  their  CV,  to Prof. Matthew Happold (Matthew [dot] Happold [at] uni [dot] lu). The deadline for submissions is 5 September 2015.

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.

Goodbye to Torture at the APA

by Jens David Ohlin

Today, the American Psychological Association formally voted to end their enrollment in national security interrogations. This would seem to finally put an end to the organization’s involvement in post-9/11 torture against security detainees.

The vote comes on the heels of the Hoffman Report, which was prepared by attorney David Hoffman of Sidley Austin LLP.  Hoffman was hired by the APA to perform an internal investigation of the organization’s role in post-9/11 security interrogations that involved torture. The results of the report were damning. It was already common knowledge that psychologists were deeply involved in overseeing the interrogations that used torture, and that a few psychologists received millions of dollars from the CIA for their work. But the Hoffman Report conclusively established that key figures within the APA worked closely with administration officials (indeed colluded with them) to ensure that the organization’s ethical guidelines continued to permit the involvement of psychologists.

After the Report’s release, it was a little bit unclear what action the organization would take. Since much of the APA’s leadership was involved in the mess, reformers within the organization were seeking the removal or resignation of several officers. Some of those resignations happened in July.

Today comes the second part of the reform: a decision by the organization to ban its members from participation in all national security interrogations, whether or not they involve torture. Here is an excerpt from the resolution which passed overwhelmingly:

BE IT FURTHER RESOLVED that, in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to “take care to do no harm,”4 psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations5 for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation6. This prohibition does not apply to domestic law enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.

Fn4 Ethical Principles of Psychologists and Code of Conduct. (2002, as amended in 2010), American Psychologist, 57, 12, p. 3.

Fn5 For the purposes of this policy statement, “national security interrogations” refer to the interrogation of any detainee in the custody of any agency or subsidiary agency that reports to the Director of National Intelligence, the Secretary of Defense, the Director of Homeland Security, or the National Security Council, including joint elements such as the High-Value Detainee Interrogation Group. This also includes any operations by those agencies with any allied governments or non-state actors, including private contractors. This does not include those detainees held under domestic law enforcement where Miranda Rights and the U.S. Constitution apply.

Fn6 Psychologists may provide consultation with regard to policy pertaining to information gathering methods which are humane so long as they do not violate the prohibitions of this Resolution and are not related to any specific national security interrogation or detention conditions.

Interestingly, the ban does not apply to domestic law enforcement interrogations.

Revisiting Warafi

by Deborah Pearlstein

As others have already noted, D.C. District Court Judge Royce Lamberth held last week that because “fighting continues” between U.S., Taliban and Al Qaeda forces in Afghanistan, Taliban prisoners held at Guantanamo may still be detained under the domestic statute (AUMF) authorizing their detention. I’ve written here and elsewhere about the propriety of the underlying legal theory in the case so will try not to rehash those points here. But in addition to noting what I think the court got wrong in its analysis, I want to highlight the serious significance of what it got right.

What the court got wrong. Having rejected both parties’ erroneous position (more on which below) that the President’s view is determinative of whether or not a conflict sufficient to justify detention continues, the court then spends little more than a paragraph explaining why the AUMF should be understood to authorize the detention of prisoners captured by the United States in Afghanistan as long as any “fighting continue[s].” What should the court have said? One reasonable approach would have been as follows. First, that Congress, the Supreme Court (Hamdi), and the President have all recognized that the meaning of the AUMF is informed and controlled by the international law of armed conflict. Second, that the Supreme Court relied on the law of international armed conflict (GCIII, Art. 118) in interpreting the scope of the AUMF’s detention authority; and whether or not the Supreme Court was right in identifying Art. 118 as the relevant international law, the district court was bound by its judgment in that regard. Third, that Art. 118 requires that prisoners “shall be released and repatriated without delay after the cessation of active hostilities.” Fourth, that while there is some uncertainty what counts as “active hostilities” in an international armed conflict sense, it is inconsistent with the manifest purpose of Article 118 (made clear in Geneva Commentary to hasten the return of war prisoners given the hardship to all involved) to construe this provision as requiring conditions of zero violence before the repatriation obligation is triggered. Fifth, the continuation of “active hostilities” under Article 118 cannot be established merely by introducing official statements of the existence of hostilities, the presence of U.S. troops in country (which describes the relationship of the United States to dozens of countries around the world), the maintenance of a right of self-defense if attacked (which exists whether or not any hostilities are ongoing), or acts of violence between actors in country other than the parties to the armed conflict. What matters is evidence of actual, repeated, non-trivial incidents of violence between the parties to the conflict.

While I can imagine the court reaching the same result by this metric – i.e. that active hostilities in Afghanistan continue – and I can imagine other reasonable approaches to this analysis that reach varied conclusions (see here), the approach that Judge Lamberth took – ignoring international law altogether – is not one of them.

All that said, what the court got right here is, I think, a great deal more important. In a circuit notorious for embracing political question doctrine – the idea that certain questions of law are beyond the purview of the courts entirely – and contrary to the position taken by both the detainee and the government, the court was categorical in its determination that it is up to the court, not the President, to decide whether active hostilities exist. Citing Supreme Court decisions Hamdi and Boumediene in support, the court reasoned that “habeas rights that lived and died by the unexamined word of the political branches would be fatally flawed.” Rather, embracing the language of ordinary administrative law, what courts must look to is record evidence.

This case will be appealed. The facts on the ground in Afghanistan will continue to evolve. And it is now a great deal more likely than it was before Warafi was decided that a court will someday conclude as a matter of law that the authority to continue to hold some Guantanamo detainees has come to an end.

Emerging Voices: Asia Infrastructure Investment Bank and the Global Financial Order

by Tsung-Ling Lee

[Tsung-Ling Lee, (S.J.D (Georgetown)), is a post-doctoral fellow at  National University of Singapore.]

“…I think we screwed up.” Former U.S. Secretary of State Madeline Albright‘s response to the Obama administration’s refusal to join the Asia Infrastructure Investment Bank (AIIB), the China-led initiative for financing infrastructure projects from Myanmar to Russia, suggests a deep anxiety about the world financial order. While many operational aspects and details about governance structure of the AIIB are yet to be publicly expressed, many commentators speculate that the AIIB may mark a new global economic order, particularly when viewed as part of Beijing’s broader economic agenda: the creation of new regional and global economic institutions, including the New Silk Road initiative and the BRICs-led New Development Bank, institutions which arguably will challenge the monopoly of the World Bank and the IMF — the two major international financial institutions within the Bretton Wood system.

The AIIB, which came into existence after China’s frustration at the slow reform process of the International Financial Institutions (IFIs), set out as its goal to finance developmental projects in Asia, with China providing the majority of capital. The IFI reform stagnates largely due to the resistance from the US Congress, refusing to support the change of the Banks’ shareholder voting system currently privileges the US. Many critics thus perceive the Bank as a channel for the first world to promote and embed neoliberal orthodoxy abroad. The AIIB initiative highlights a shifting role of the Bank in an increasingly crowded international economic landscape. Some commentators even go further and suggest that the US’s sphere of influence in the global policy domain of finance is diminishing decisively, evident by the diplomatic success of China in attracting many of the US’s key allies in joining the AIIB. This blog post analyzes the AIIB through the lens of the Third World Approaches to International Law (TWAIL).

The IFIs’ Development Model

Historically, TWAIL scholarship has been hostile towards IFIs, which are perceived as instrumental in protecting the interests of the first world at the expense of the third world. Critical TWAIL scholar B.S. Chimni, for instance, argues that the IFIs, as part of a growing network of international institutions, constitute a nascent global state that serves the interests of transnational capital and powerful states at the expense of third world states and peoples. Professor Makau Mutua, for example, argues that under the guise of sovereign equality, international law and institutions perpetuate existing structural inequality in furthering the interests of the first world. Despite that in theory both the IMF and the Bank are explicitly prohibited from engaging in any political affairs of its member states, in practice they have evolved from existing purely as apolitical institutions to having considerable powers in influencing economic policies of the developing countries.

One notable example of the IFIs’ penetrative power beyond global economic life is the Bank’s widely criticized Structural Adjustment Programs (SAPs) in the 1990s. As a condition of borrowing, countries that sought the IFIs’ financial assistance were required to embark upon radical economic reform: reducing government spending, privatizing state-own enterprises, liberalizing trade and foreign investment.

However, the neoliberal view embraced by the IFIs tends to neglect the specific social, economic, cultural and political contexts of the recipient state. The neglect has seen a widening of social inequalities, in addition to the apparent failure of SAPs in achieving its promised economic success. With many recipient states driven into debt, devastated by increased food and fuel prices, intensified unemployment, and crumbling of health services, the SAPs had worked in the interests of the first world, who are also the majority shareholders of the IFIs. With many recipient states worse off than they were initially, the uneven distribution of benefits and costs as consequences of the SAPs became a salient point of contention for critics of the IFIs, most vocally among TWAIL scholars. This is primarily because the IFIs reproduced the colonial experience for recipient states; they also relocate the decision-making process from recipient states to international civil servants. The latter is even more worrisome from a legal perspective, because the process occurred without an external check-and-balance, where the IFIs are hold responsible for their hegemony policies that have further disadvantaged weak states.

The apparent failings of the neoliberal development model endorsed by the IFIs had seen an eruption of political discontent that prompted a sharp policy turn within the IFIs. Beginning in the 1990s, the Bank embraced a governance paradigm that relies on stable institutional environment as a foundation to equitable distribution of wealth and to remedy poverty. This had seen the IFIs engaged in law reform in many recipient countries under the rubrics of “technical assistance”. The shift to the governance model also occurred as part of the IFIs’ attempt to salvage their institutional credibility. The Bank’s focus on governance has opened a greater space for structural intervention. The Bank now embarks on reform projects with greater emphases on improving environmental sustainability, embedding the rule of law, and enhancing participation in the decision-making process. The World Bank Institute’s Worldwide Governance Indicators and Doing Business, for instance, provide quantitative assessments on the openness of the regulatory environment for business. While both projects are not binding on the state, they are widely seen as authoritative, and increasingly are used as a proxy for the quality of a legal system.

In the TWAIL view, the law reform projects undertaken by the Bank, which focus specifically on the ability of legal system to facilitate market transaction, further entrench a capitalist order. Problematically, for TWAIL scholars, the economic integration of market occurs without much political contestation from the affected community. Thus, not only the governance model masks the Bank’s actual reach beyond its legitimate realm of economic regulation, such reach is arguably barred under Article IV(10) of the Bank’s Article of Agreement, which explicitly prohibits the Bank from interfering in the political affairs of its member states.

AIIB: Ending IFI hegemony? Continue Reading…

Emerging Voices: The Right to a Remedy in Armed Conflict–International Humanitarian Law, Human Rights Law and the Principle of Systemic Integration

by Vito Todeschini

[Vito Todeschini (LL.M.(Ferrara University); E.MA (EIUC, Venice)) is a PhD Fellow at Aarhus University, Denmark.]

In 2013, the German Federal Constitutional Court and the Regional Court of Bonn issued their judgements in two cases ‒ Varvarin and Kunduz respectively ‒ concerning Germany’s participation in the NATO-led operations in Serbia/Kosovo and Afghanistan. These judgments confirm and exemplify a general trend in domestic case law, which denies that victims of violations of international humanitarian law (IHL) have a right to bring claims directly in the domestic courts of the allegedly responsible State (Gillard, pp. 37‒38). This finding is mainly based on the lack of an obligation on States under IHL to provide individuals with enforceable remedies against violations. Domestic courts, however, tend to overlook the complementary role that human rights law (HRL), the other legal framework governing armed conflicts, may play in this context.

This contribution explores this possibility, arguing that HRL may supplement IHL with regard to the right to a remedy. The analysis assumes the perspective that IHL and HRL are complementary legal frameworks. It further employs the principle of systemic integration, codified in Article 31(3)(c) VCLT, to interpret IHL in light of HRL. An alternative interpretation will be proposed, namely that victims of IHL violations should be allowed to bring claims in the allegedly responsible State’s courts on the basis of the right to a remedy under HRL.

The Right to a Remedy: HRL v. IHL

The right to a remedy is enshrined in several human rights treaties (inter alia, Articles 2(3) ICCPR; 13‒14 CAT; 13 ECHR; 25 ACHR; 7(1)(a) ACHPR), under which States Parties have an obligation to establish domestic remedies capable of finding and redressing human rights violations. The concept of remedy generally presents two dimensions: procedural and substantive. The procedural aspect regards the right to have access to a competent body, which may be judicial or administrative depending on the seriousness of the violation. The substantive dimension concerns the right to reparation, which includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition (Shelton, p. 7). Effectiveness is the distinctive element characterising a remedy. To be effective, a remedy must be accessible, enforceable, and provide redress if a violation is found (HRCtee GC31, paras. 15‒16). A final feature of remedies is their dependency on the previous infringement of another right.

The situation differs radically with regard to IHL. According to Articles 3 HC IV and 91 AP I, a State must provide compensation for the IHL violations it is responsible for. This rule is considered to be customary and applicable in both international and non-international armed conflicts. The drafting history of Article 3 HC IV shows that its objective is to provide victims of violations with the right to bring a claim directly against the responsible State (Kalshoven, pp. 830‒837). Yet, post-WWII domestic case law has generally departed from this original construction and interpreted such provision as conferring on States, not victims, the right to claim compensation (CIHL Study, pp. 544‒545; Zegveld, pp. 507‒512; Henn, pp. 617‒623). Additionally, there is no specific rule in IHL providing how a victim can enforce the right to reparation. It can be concluded that, at best, victims of IHL violations have a substantial right to reparation but not a procedural right to a remedy. In this respect, the question is whether HRL, which also applies in armed conflicts, may provide individuals with a procedural remedy for unlawful harm suffered in war time.

Systemic integration between IHL and HRL

The relationship between IHL and HRL may be considered from two perspectives: competition and complementarity. Generally, whenever two rules belonging to the different regimes are both applicable and in competition, human rights treaties are interpreted taking into account IHL rules (ICJ Nuclear Weapons, para. 25; HRCtee GC31, para. 11). For instance, the human rights to life and personal liberty in armed conflicts may be modified in light of IHL rules on targeting and internment (ICJ Nuclear Weapons, para. 25; ECtHR Hassan, paras. 102‒106). On the other hand, IHL and HRL rules are not always in competition. Despite being designed to pursue very different objectives ‒ conduct of warfare (IHL) and protection of individuals and groups (HRL) ‒ these bodies of law are also complementary and mutually reinforcing. They share certain common purposes, such as ensuring humane treatment of individuals at any time (HRCtee GC31, para. 11; IAComHR Abella, paras. 158‒160; Hampson and Salama, paras. 6‒8).

One aspect of the complementarity between IHL and HRL is that the provisions of one of these bodies of law may fill the gaps present in the other; for instance, as it is argued here, with respect to the right to a remedy. This operation is made possible by the principle of systemic integration codified in Article 31 VCLT, which provides that in the interpretation of an international norm “[t]here shall be taken into account, together with the context: [… ] (c) any relevant rules of international law applicable in the relations between the parties”. Systemic integration is a mandatory part of the interpretive process which demands that a rule of international law be construed taking into account all other international norms, deriving from any source, that are applicable in and relevant to a certain situation (ILC, paras. 413 ff.). The ICJ and human rights treaty bodies have, explicitly or implicitly, resorted to the principle of systemic integration when considering the concurrent application of IHL and HRL (d’Aspremont and Tranchez, pp. 238‒241). Since it allows to interpret one body of law in light of the other, the present analysis employs systemic integration as a legal-theoretical basis to provide remedies under HRL for violations of IHL.

Remedying violations in armed conflicts

In 2006, the German Federal Supreme Court (FSC) held in the Varvarin case that Articles 3 HC IV and 91 AP I do not grant individuals a right to claim reparation for IHL violations directly against a State, and that consequently victims must file any claims via their own government (paras. 10‒14). Although recognising the progressive acknowledgement of the international subjectivity of individuals that has occurred over time, the FSC denied that HRL had modified international law so as to grant individuals a general procedural right to bring claims for IHL violations in a foreign State’s domestic courts (paras. 7‒9, 14‒15). This interpretation has been confirmed in the aforementioned 2013 judgments by the German Federal Constitutional Court in the same case, and the Regional Court of Bonn in the Kunduz case.

It is submitted here that, while considering HRL as a relevant legal framework, the FSC failed to apply the principle of systemic integration in a satisfactory manner. The Court did not refer to the obligations to provided remedies contained in the treaties which Germany is party to, such as the ECHR or the ICCPR. A reasonable application of the principle would have at least required: a) taking into account the provisions on the right to a remedy included in the human rights treaties binding on Germany as well as relative treaty bodies’ jurisprudence; and b) considering whether these provisions have a bearing on the claims regarding IHL violations. Given that under IHL victims are entitled to reparation but have no procedural right to enforce it, it seems sensible for a domestic court to take into account the relevant provisions of HRL which oblige States to provide effective remedies against violations.

In this writer’s opinion, by resorting to the principle of systemic integration the FSC could have argued that the lack of an enforceable right to a remedy under IHL may be read in light of the obligation of States to provide an effective remedy under HRL. Accordingly, the Court could have filled such a gap by deciding that a victim of an IHL violation is entitled to bring a claim against the allegedly responsible State under the same procedures provided for to victims of human rights violations. In this perspective, whereas the breach of the norm would regard a substantive rule of IHL ‒ e.g., the prohibition to kill civilians ‒ the remedy, and therefore the enforcement of the right to reparation, would be exercised as provided for in HRL ‒ e.g., Article 2(3) ICCPR.

The principle of systemic integration is a mandatory part of the interpretive process. Its application to the relationship between IHL and HRL has marked the jurisprudence of several international bodies. This principle requires interpreting one body of law taking account of the other; hence, IHL may be read in light of HRL. Far from being a stretch of existing norms ‒ the reasoning draws on lex lata and not lex ferenda ‒ systemic integration may contribute to fill a major gap in IHL and give substance to the idea that IHL and HRL are, in certain respect, complementary. Besides, and most importantly, victims of IHL violations may be provided with a procedural remedy to enforce directly in domestic courts their right to reparation.

Emerging Voices: The Human Right to Water–Progress and Challenges for International Law and State Water Governance

by Scott McKenzie

[Scott McKenzie has a Juris Doctorate from the University of Iowa and is a PhD Student in Resource Management and Environmental Studies at the University of British Columbia.]

The human right to water has been making steady progress.  The right has become a fixture of international law and state constitutions frequently include the right.  Within a framework of legal pluralism, this post examines the relationship between the human right to water’s core obligation and specific normative goals and on-the-ground governance in two case studies.  Strong water governance is critical for residents who are dependent on state or private enterprise for the delivery of basic and essential services, meaning international law has a significant impact on daily habits for billions of people.  South Africa and Ireland want to provide water for their citizens but their approaches show striking differences.  South Africa constitutionally protects the right to water but implementation falls short, while Ireland’s new framework is beginning to reflect international guidelines but provides no domestic legal guarantee.  These experiences show value in a duel-track approach for international law, with expanded recognition of the human right at the global and state levels along with further detailed frameworks that solidify how citizens should experience these rights.

Many discussions concerning the human right to water focus on the international level.  This is important, but can miss nuance in governance. Legal pluralism recognizes multiple sources of law in addition to the state.  Pluralism has been defined as “a situation in which two or more legal systems coexist in the same social field.”  (link is to a .pdf) These systems come from different sources and have their own “foundations of legitimacy, validity, power and authority.”  This approach can be used to recognize the human right to water as a concept, and examine its implantation at various systemic levels as a means to improve the realization of the right in international law.

The Human Right to Water

A United Nations report found that worldwide, water related disease was responsible for 3.7 percent of all deaths. Despite agreement on the importance of access to clean water for human health and a diverse history of state and local scale implementation, the international legal and governance community has slowly addressed the right to water.

At the international law level, the human right to water can be divided into two elements: recognition of an obligation and a normative framework.  The obligation of the human right to water has been formulated in two ways. First, it has been “derived” from other codified rights such as health or quality of life because water is fundamental for the realization of those rights.  Second, it is mentioned explicitly in instruments such as the Convention on the Rights of the Child or United Nations Resolution 64/292 (“The General Assembly…Recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”).

The normative framework of the human right was explained by the United Nations Committee on Economic, Social and Cultural Rights in General Comment 15.  This guidance for implementing the human right was not binding.  But, provides some structure for how the right should be realized; such as “in quantities…necessary” to meet basic needs or “affordable…for personal and domestic uses”.  However, fine-grained details such as the quantity necessary or the amount that can be charged are in debate and not clear in international law.  Some experts argue a lower quantity that covers basic human hydration, while higher estimates include hygiene, food-preparation, and sanitation.  Many experts gravitate towards 50 liters (L) per day. Similarity, affordability estimate range from 2-5% percent of household income but this aspect not yet settled.

South Africa – Constitutional protections fall short Continue Reading…

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

Emerging Voices 2015 Starts This Week

by Jessica Dorsey

Both last year’s edition and 2013’s inaugural Emerging Voices symposium were quite successful, so this week we’re kicking off our third annual edition. Through the end of August, we will be bringing you a wide variety of posts written by graduate students, early-career practitioners and academics.

Tune in over the next several weeks if you’d like to read more about excuse in international criminal law, the right to a remedy in armed conflict, water rights in South Africa and Ireland and corporate social responsibility–to name just a few of the topics some of our contributors will cover. Please feel free, as usual, to weigh in on the discussion. Thanks for following us here on Opinio Juris–we hope you enjoy this third edition of our Emerging Voices Symposium!

Weekly News Wrap: Monday, August 3, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

Congratulations to Anna Dolidze!

by Kevin Jon Heller

Anna, who has guest-blogged for us in an academic capacity on a number of occasions (see here, here, and here), has just started a new job as Georgia’s Deputy Minister for Defence. See if you can spot her in this photo:

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Heartfelt congratulations to Anna. Academia’s loss is Georgia’s gain. I have no doubt that she will do exemplary work on behalf of her country.