Archive for
January, 2016

Discussing Gbagbo on BBC World News

by Kevin Jon Heller

I had the pleasure of going on BBC World News a couple of days ago to discuss the opening of Laurent Gbagbo’s trial at the ICC. The clip they sent me is very low quality; the sound isn’t even synced correctly. But I’m posting it just in case anyone wants to hear what I had to say. It’s about three minutes long.

I have to admit, being in that giant BBC studio was intimidating. I’ve done television before, but it was always remote from a tiny recording room. I hope I acquitted myself okay!

Eichmann Called Himself an Instrument

by Jens David Ohlin

The New York Times reported yesterday that Adolf Eichmann apparently wrote, by hand, an 11th-hour request to the Israeli President for a pardon of his conviction for crimes against humanity (or commutation of his death sentence). The request was denied and Eichmann was executed a few days later–the only execution ever carried out by the Israeli criminal justice system. The letter had been filed in archives and was only recently rediscovered as papers were being prepared for digitization.

Eichmann’s arguments are disturbing. Here is an excerpt:

There is a need to draw a line between the leaders responsible and the people like me forced to serve as mere instruments in the hands of the leaders… I was not a responsible leader, and as such do not feel myself guilty.

What is striking about the letter, in addition to its obvious obliviousness to his own moral responsibility, is the invocation of the language of “instrumentalities” in the argument. The notion of an “instrument”–a human instrument, analogous to a weapon or other physical object–was incredibly important for Claus Roxin, the German criminal law theorist who used the Eichmann case as an inspiration for the development of his theory of indirect perpetration, called Organisationsherrschaft, which translated means roughly “indirect perpetration through an organized apparatus of power.”

For Roxin, Eichmann was a classic case of someone who used others as instruments to perpetrate his crimes. But instead of simply using other individuals, Eichmann used an organization–which was characterized by the fungibility of its members and the automaticity of its execution of orders received from above. In that sense, the organization became the “through element” by which the order was carried out and the criminal plan brought to fruition by Eichmann.

The ironic thing is that in Eichmann’s letter, he claims that he was the mere instrument–presumably an instrument in the hands of Hitler himself. Obviously the Israeli Court disagreed and viewed Eichmann as something more than a mere instrument–they concluded that he was an active participant and indeed architect of the specifics of the so-called “Final Solution,” the extermination of Jews in Germany, Europe, and beyond.

Although Eichmann’s factual argument is implausible and self-serving (and inconsistent with the facts), it does raise, in the abstract, a complex legal question: how to treat the responsibility of mid-level or upper-level perpetrators who control subordinates below them but who are arguably not at the top of the chain of command. Should Organisationsherrschaft (and the Control Theory more broadly) apply to them?  How should we model individual criminal responsibility in this context?

Incidentally, this issue is discussed by Kai Ambos in Volume 1 of his treatise, pages 115-116, especially with regard to a case in Argentina that declined to apply Organisationsherrschaft for similar reasons (the court concluded that it could only be applied to the top-level Junta, and not subordinate officers below the top level). I’m curious what others think of this argument.

Guest Post: The ACHPR’s New General Comment on the Right to Life–A Missed Opportunity for the Prohibition of the Death Penalty?

by Nader Diab

[Nader Diab is an Associate Legal Adviser at the International Commission of Jurists. LL.M Geneva Academy of International Humanitarian Law and Human Rights. Twitter : @NaderiskDiab]

In the GC the ACHPR reiterated its call for the abolition or imposition of a moratorium on the death penalty (for previous similar calls see two resolutions of the ACHPR on this issue here and here). It did not provide for a legal basis for such a call neither in the GC nor in the resolutions.

Despite the call for abolition in the GC the ACHRP does not seem to view the imposition of the death penalty, per se, as a breach of article 4, which protects the Right to Life under the African Charter. The GC, echoing the UN Human Rights Committee, stated that the imposition of the death penalty would violate article 4 of the African Charter if it is not used for the most serious crimes and the proceedings did fully comply with the right to a fair trial (para. 24). Similar conditions had been set out for example in its 2008 resolution on the moratorium on the death penalty, which states:

“1. Exhorts State Parties to the African Charter on Human and Peoples’ Rights that still retain the death penalty to:

  • Fully comply with their obligations under this treaty; and

  • Guarantee that every person accused of crimes for which capital punishment is applicable, benefits from all the guarantees of a fair trial included in the African Charter and in other relevant regional and international norms and treaties.”

This might seem the unwavering the position of the ACHPR’s stance on the issue. However, recent developments and previous statements suggest that the outcome of the GC regarding the death penalty could have been different, and could have gone so far as to prohibit the death penalty as a violation of article of the African Charter protecting the right to life.

The African Charter, unlike the ICCPR, does not address the issue of the death penalty. The ICCPR does not necessary exclude recourse to of the death penalty when it is imposed pursuant to a final judgment rendered by a competent court only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. (The death penalty is, however, prohibited for those States that are party to the second Optional Protocol of the ICCPR). Therefore, unlike the Human Rights Committee, the ACHPR is not restricted by a provision in its founding treaty that narrows the scope of interpretation of the right to life provisions of the treaty as concerning the death penalty. (It should be noted that the ICCPR was adopted in 1966, when only a relatively small minority of States were retentionist. The adoption of Optional Protocol two was seen as a means of progressively reducing the number of States two, which the death penalty provisions would apply).

Furthermore, the General Comment was adopted the same year the ACHPR achieved a big step towards the abolition of the death penalty with the adoption of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa. A year earlier the ACHPR convened a continental conference on the abolition of the death penalty in Africa. The Cotonou Declaration that came out of the conference ‘recalls’ and ‘bears in mind’ in its preamble in several instances the right to life in abstracto in international treaties and declarations, seemingly implying that the right to life and the death penalty in all circumstances are inherently contradictory. It would have been expected that the culmination of this process, i.e the general comment on the right to life, would have taken a different position on the issue.

At the global political level, the trend is inexorably towards abolition. The periodic resolutions of by the UN General Assembly since 2008 calling for all retentionist States to implement a moratorium on the death penalty with a view to full abolition have been adopted with increasing majorities. In December 2014 (69/186), the resolution passed with 117-37 (34 abstentions). The vast majority of AU member States supported or at least abstained from the resolution. While the GA resolutions do not expressly identify all instances of the death penalty as violations of the right to life, it does situate the moratorium within “the progressive development of human rights”. This GA resolutions, because of their universal reach, could therefore also have been relied on as evidence of an emerging international opinion that the use of the death penalty is incompatible with general human rights principles.

Finally, as previously mentioned the ACHPR’s position has not been consistent, and in some instances it has considered that the imposition of the death penalty amounts to a violation of the right to life regardless of any other circumstances. In May 21 2015, it issued a press release condemning the execution of six individuals in Egypt. It stated in communiqué: “its opposition to the imposition of the death penalty as it constitutes a violation of Article 4 of the African Charter on Human and Peoples’ Rights (the Charter), which specifically prohibits the arbitrary deprivation of the right to life and enshrines the integrity of persons. Article 5 of the Charter also prohibits cruel, inhuman or degrading punishment and treatment.” In the communiqué the ACHPR did not raise any issues regarding the fairness of the trial or the gravity of the crime (which it did previously a year earlier, see here). This indicates that the ACHPR has viewed the imposition of the death penalty as a violation of the right to life in all circumstances, and not just when imposed when the conditions laid out in its GC are not met (a position that happens to be shared by its Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary killings in Africa.)

Guest Post: On Business and Human Rights in Illegal Territorial Regimes

by Valentina Azarova

[Valentina Azarova is a Research Fellow in the Institute of Law, Birzeit University. She has assisted and advised in the suits filed by Al-Haq against foreign corporations for involvement in abuses in occupied Palestinian territory and is a member of the legal committee, Global Legal Action Network (GLAN)].

On 19 January 2016, Human Rights Watch (HRW) released Occupation, Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, a report detailing the involvement of foreign and Israeli business in settlements and their support for unlawful Israeli acts. The report is an important piece of one-stop-shop documentation that brings together the work of Who Profits and others on the involvement of foreign businesses in the occupation through financing, servicing, or trading with Israeli settlements. As HRW argues, any business operations in settlements are associated with the human rights abuses and international law violations that ensue from Israeli settlement activity. However, the legal basis of HRW’s claims merit further consideration. The report takes the position that “to comply with their own human rights responsibilities” all companies should “stop working with and in Israeli settlements.” This responsibility derives, the report asserts, from the UN Guiding Principles on Business and Human Rights, which requires businesses to mitigate their involvement in abuses. According to HRW, businesses operating in the settlements cannot “mitigate,” and therefore must pull out to comply with these obligations.

Yet states, companies and scholars have argued that the UN Guiding Principles prescribe only a duty of due diligence on businesses and states (an obligation of means, not result, to reflect on how to mitigate involvement in abuses). In practice, this duty has been understood by even the most law-abiding states as having the purpose of warning business of the risks they incur to their reputation and economic integrity, rather than as being a positive obligation to firmly prohibit all business operations. Businesses’ involvement with the system of abuses underlying and ensuing from Israeli settlement activity has prompted some state measures – such as the recommendatory government advisories that have now been issued by 18 EU Member States (see e.g. the UK advisory). But home-states have stopped short of enforcing international law-based obligations by adopting measures that could redress the immitigable business involvement in the harm resulting from operations under the auspice of Israel’s illegal legislative and administrative regime in settlements – where all legislative acts are predicated on the entitlement of Israel to exercise sovereign authority in occupied territory.

Moreover, states perceive their obligations under the business and human rights framework in international law (set out in the UN Guiding Principles and the OECD Guidelines) as voluntary and politically discretionary. Home-states legal machinery to enforce human rights and other international law obligations against business has in practice been limited to the gravest forms of complicity in abuses that could result in civil or even criminal suits. As with other transnational enforcement actions, the success of such lawsuits is hinged on foreign policy concerns and considerations of non-interference in the domestic affairs of another state, even though the state’s own corporate nationals are involved. Home-states are unlikely to crack down on their corporate nationals abroad if their involvement in violations lacks sufficient proximity to the principal perpetrator or is not sufficiently substantial. Cases that meet these criteria are allowed to go forward only when they are meticulously evidenced and deemed politically prudent. Yet the track record on lawsuits for foreign business involvement in Israeli wrongdoing is dismal: French, Canadian and Dutch courts succumbed, to different degrees, to political and procedural barriers and brought an end to several straightforward claims against their corporate nationals’ involvement in wrongdoing.

While the HRW report focuses on businesses’ human rights responsibilities in international law, it also addresses demands to third states. Yet given the nascent nature of state practice on the enforcement of business and human rights, the following three issues (or caveats) are of note in relation to the report’s claims concerning the definition of the scope of corporate wrongdoing and the prescription of legal consequences under international and domestic law for business involvement in Israeli unlawful acts in relation to the settlements:

1) The report does not capture the scope or the nature of wrongdoing by business in settlements. The report’s case studies document settlement quarries that benefit from financial incentives while Palestinian quarries are subject to “discriminatory” restrictions; a bank that finances construction and a real estate company that sells properties in settlements, which profit from land confiscation; a company that supports settlement infrastructure by collecting garbage and operating a landfill; and a textile company that contributes to labor abuses against Palestinian employees. But not only are there types of less direct foreign business involvement in settlements that are not captured by this list – e.g. investment in Israeli companies operating in settlements, or procurement of products originating from settlements – it does not address the key underlying form of wrongdoing in international law resulting from the administrative and territorial regime that Israel maintains in occupied Palestinian territory.

What unifies all companies that have any kind of activity in the settlements is that they operate under the auspices of Israel’s illegal extension of its domestic administrative and legal jurisdiction in occupied territory, which is premised on its sovereign claims and the extension of Israeli sovereignty into occupied territory.

The report notes that Israel’s actions create a duty for third states not to recognise Israel’s illegal acts as lawful, but it appears to limit this duty to the specific types of wrongdoing on which the report focuses. Yet the duty of non-recognition is instead triggered by the simple, but crucial fact that all activities in settlements are conducted under Israeli domestic jurisdiction, which Israel extended into occupied territory (legislative and executive) — a state of affairs that constitutes an illegal territorial regime no state recognises as lawful. Since the report does not address per se the illegal territorial regime maintained by Israel in occupied Palestinian territory when it defines the scope of corporate wrongdoing, the report fails to substantiate its claim that “the only way settlement businesses can avoid or mitigate contributing to abuses is by stopping to operate in settlements or engage in settlement-related commercial activity.” The report’s claim that all business should cease and desist from all settlement activities risks appearing ambitious, given the lower-level demand of to exercise due diligence in international law.

2) The report makes the unfounded, aspirational claim that the duty of non-recognition requires states to stop or prevent their corporate nationals from becoming involved in settlements. The duty of non-recognition in international law addresses states, not businesses. A state has horizontal obligations to protect individuals from private abusers under human rights law, but the reality is that the legal force of these obligations is weak: most states consider them obligations of means and not result, and only a few states have developed national action plans to implement them (see 3). Moreover, the duty of non-recognition – which states interpret, as discussed above, as a mere ‘due diligence’ responsibility of means – does not have concrete content in terms of what it requires states to do. The duty of non-recognition does not require states to prevent their businesses from conducting any activities in a conflict zone. This claim (like arguments that base the demand that states ban trade with settlements on the duty of non-recognition) is aspirational, given the minimalist view that is reflected in state practice recorded in ILA recognition/non-recognition committee reports (.pdf) and in scholarly works. The duty of non-recognition – which Talmon calls a “hollow shell,” and is a “soap bubble” for Focarelli – can mean anything and nothing.

The most effective way to regulate the conduct of businesses and make sure they are not involved in settlements is based on states’ need to ensure consistency between their domestic public policy positions on the illegality of settlements, and the implementation of their domestic laws on corporate governance (intended to protect consumers, procurers, and investors). Since the application of Israeli domestic laws in the occupied territory is considered unlawful by all states, to uphold the integrity of their domestic rule of law, state authorities must ensure that their domestic law does not give legal effect to the basis for business activities in Israeli settlements. All business activities carried out under Israel’s illegal regime by the corporate nationals of law-abiding states would entail concrete legal risks under the company’s home-state law, insofar as those activities oblige the state to give legal effect to Israel’s internationally unlawful acts as though they were lawful.

3) The report’s recommendations to states fall short of adequately addressing foreign corporate involvement in extraterritorial wrongdoing. The report calls for states, in accordance with the UN Guiding Principles, to issue “guidelines” to prevent business from conducting activities in settlements. Many states continue to consider their UNGP obligations as soft norms and recommendatory standards, and do not enforce them as exigently as domestic law (most have not even initiated the implementation of a “national action plan”). Since the government advisories issued by foreign ministries and trade departments of EU countries are non-binding recommendations (suggesting compliance with human rights), they are insufficient to trigger exigent enforcement action.

However, if the home-state line ministries were to transpose and streamline these standards through specific domestic law provisions (e.g. procurement, consumer protections, proceeds of crimes laws), they would become as enforceable as any other domestic laws regulating corporate actors to business operations in a settlement (in whatever capacity or manner) by virtue of the legal basis for any activity, transaction or title there being Israeli domestic law. Such measures, intended to guarantee the consistent application of domestic law with public policy by ensuring non-recognition of Israeli unlawful acts as lawful, first require state authorities to provide their nationals with guidance to enable their ‘informed compliance’ with specific domestic law provisions.

While the HRW report should become a reference point for its case studies of business involvement in Israeli abuses, its recommendations to third states merit further consideration. The measures that can actually trigger vigorous domestic enforcement action to ensure the protection of consumers, procurers and investors from wrongdoing, are premised on the need to uphold the integrity of the home-state’s legal order by excluding internationally unlawful acts from their internal domain. Indeed, the wave of divestment from the settlements by European private actors, following EU’s ‘differentiation’ measures, coupled with a series of government advisories waiting to be operationalized, signals that this process is already underway.

Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict

by Jonathan Horowitz

[Jonathan Horowitz is a Legal Officer on National Security and Counterterrorism in the Open Society Justice Initiative. This post is based on his recently published article in Emory International Law Review, “Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict,” and will also appear in a longer form and under a different title in a forthcoming book, Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens Ohlin for Cambridge University Press.]

If a foreign State asked you (a government official) permission to let it kill an individual on your government’s territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren’t allowed to do?

These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.

The underlying assumption of a global NIAC is that the US, or any State, may chase its enemies around the world using international humanitarian law (IHL) targeting rules. John O. Brennan, when serving as assistant to the US president for homeland security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are more permissive than the host State’s international human rights law (IHRL) obligations. This is because, under our scenario, the host State is not in a NIAC with the attacking State’s enemies and so the host State’s IHRL obligations still apply in full.

A second observation it that under the obligations to respect and protect the human rights of people on its territory, a State must not take part in unlawful and arbitrary deprivation of life and it must protect people in its territory from the same.

When this second observation is linked with the first one, the situation arises whereby even if the foreign State sought to carry out a killing in complete conformity with IHL, the way the killing occurred may still have gone far beyond what IHRL allows the host State to permit. That being the case, the host State would be barred from providing its consent; and, as I explain in more detail in a new article, this significantly undercuts the notion of a global NIAC.

This conclusion, however disappointing it may be for attacking States that wish to use consent as a legal sanitizer, isn’t exactly legal nuclear science. But I do think it’s an area that has largely gone unexplored and allows consenting States to get off the hook for their unlawful role in permitting killings that they have no right to permit.

The problems that IHRL poses for a State that is asked to grant its consent in the context of a global NIAC doesn’t, however, mean that a State can’t defend itself from the serious threats of non-State actors abroad. It means that such use of force must be based on other legal authorities, be them host State law enforcement measures, relying on the inherent right to self-defense, UN Security Council authorization, joining a host State’s armed conflict with a common enemy, and so on.

And while it’s true that distinguishing between using a legally permissible framework or a legally impermissible framework may lead to no material difference in the final outcome (i.e., use of lethal force and casualties may still result), the distinction remains important. A global NIAC stands for something far greater than the consequences of any single lethal attack or group of lethal attacks that a State may wish to carry out. It permits a State to engage in long-lasting armed conflict whereby human rights law is sidelined and the more permissible IHL targeting rules are routinely applied without geographic constraint. Such a legal framework dramatically expands a State’s use of force beyond what international law had envisaged to date.

But herein lays a considerable problem. It will be an uphill battle to persuade host States to respect their human rights obligations (in this case by refusing to grant consent) within the extremely politicized and highly insecure sphere of terrorism, counterterrorism, and armed conflict, especially when the request for consent comes from an attacking State that has considerable military, political, and economic resources to provide or withhold. In turn, this will require a sustained focus and intensified discussions on the legal obligations of the host State and will have to include holding the host State accountable for its breach of international law.

Weekly News Wrap: Monday, January 25, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

  • The United Nations Security Council should place an arms embargo on South Sudan, while the oil-rich country’s President Salva Kiir and a rebel leader qualify to be sanctioned over atrocities committed in a two-year civil war, U.N. sanctions monitors said in an annual report.
  • A Rwandan man who had been accused of recruiting for the Islamic State was shot and killed in the capital Kigali while attempting to escape police custody, police said in a statement on Monday.

Middle East and Northern Africa

  • Iraq summoned the new Saudi ambassador on Sunday after he suggested Iranian-backed Shi’ite militias were exacerbating sectarian tensions and should leave the fight against Islamic State to the Iraqi army and official security forces.
  • Prime Minister Benjamin Netanyahu said on Sunday he would allow Jewish settlers evicted by the Israeli army from two houses in the West Bank city of Hebron to return once proper permits were in place.
  • Libya’s internationally recognised parliament based in Tobruk has voted against the UN-backed unity government with rival authorities based in Tripoli, Libyan news agencies reported.

Asia

Europe

Americas

Oceania

UN/World

The ICC and Mainstream TV: A Recent Episode of The Blacklist

by Kristen Boon

I was watching a recent episode of the TV show The Blacklist the other day, when much to my surprise there was a segment on the International Criminal Court.

As the summary recounts:  “The Director wakes up on the Venezuelan president’s jet, where Foreign Minister Diaz arrests him. Red calls Hitchin to say they’re on their way to the Hague, where The Director will be tried for crimes against humanity…”

On the one hand, there is an accurate back and forth about whether the ICC has jurisdiction over The Director, because the US is not a party to the ICC. (Venezeula, of course, is).

On the other hand, the writers glossed over the fact that “delivering” a high level US government official to the ICC’s front door does not equal a referral – the ICC has the power to determine whether its jurisdictional requirements are met under Arts. 12 & 13 of the Rome Statute.

The other creative fiction of the show is that the ICC has an ongoing investigation into US activities (drones, torture, and rendition).    In reality, the ICC has opened an investigation into the situation in Afghanistan, which implicates the US.   It was first reported in the press two years ago.   The 2015 Report on OTP activities (at p. 31) indicates this investigation is still ongoing.  (Hat tip to Kevin Heller for confirming the current status of this probe).  Nonetheless, any ongoing ICC investigations are far narrower  than what the TV show suggests.

I confess to great satisfaction in watching the ICC enter popular culture, even if some creative liberties are being taken as to its jurisdiction and potential reach over American officials.

Spoiler alert: here is the relevant part of the script!

Red: Oh, your God can’t help you now, Peter. You’re traveling over the Atlantic, on the Venezuelan President’s Airbus, – on your way to The Hague.
The Director: You’re insane.
Red: I wouldn’t know. But you’re going to have the distinguished honor of becoming the first American official ever to be charged with even a single war crime, let alone the slew of them you will undoubtedly be accused of – before the week is out.
The Director: This won’t happen. United States isn’t party to the Rome Treaty. We don’t recognize its authority.
Diaz: But Venezuela does. And cases can be referred to the court by any country that is a signatory. You know as well as I do, even better given your position, the international court has been investigating the US government and the CIA for any number of alleged crimes. The drone program, the rendition of foreign citizens, torture as a means of interrogation.
Mr Diaz: The Chief Prosecutor has made it clear. He does not need American permission to move forward.
Red: He needs an American in the flesh. The court will not try anyone in absentia. So far, no country has had the courage to deliver one of your countrymen to the court until now. You’re a trendsetter, Peter. Who knew?
Director: I am the CIA Director of Clandestine Services. Do you have any idea what’s gonna happen to you? This is an act of war. My government will never let it stand.
Red: Precisely what I’m counting on.  …..

Red: Laurel, Raymond here. Here’s where we stand. In a handful of hours, this jet will land in Rotterdam, it will be met by the Dutch federal police, who will escort the Director to ‘S-Gravenhage, where the global spectacle of a high-ranking American official charged with war crimes will begin.

Events and Announcements: January 24, 2016

by Jessica Dorsey

Announcements

  • The Association of Defence Counsel practicing before the International Criminal Tribunal for the former Yugoslavia (ADC-ICTY) based in The Hague, is currently seeking applications for legal interns to start as soon as possible in assisting Defence Counsel with ongoing cases. Interns will be involved in a range of tasks including, but not limited to; conducting legal research, preparing witness summaries, witness preparation, factual research, writing legal memoranda, case management tasks and supporting Defence Counsel in their daily work. Additionally to the internship, the ADC regularly organises field trips and social activities for its interns. Interns also have the possibility of joining the ADC Newsletter Team and the ICTY Intern Career Development Committee. Internships are available starting now, for a period of three to six months, full-time or part-time. Please note: The ADC-ICTY internships are unpaid. For more information on the internship opportunity and for application submissions, please visit the website here.

Calls for Papers

  • The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and is available open access. All submissions are assessed through double-blind peer review. The Editorial Board is pleased to call for submissions for the second issue of 2016. This will be our ‘City Issue’ and the Editorial Board welcomes submissions that engage with this general theme. The topic is broadly conceived and leaves scope for any area of law or jurisprudence domestic, regional or international) that is deemed to be ‘City’ related. More information on potential topics and submission can be found here.
  • The Nappert Prize in International Arbitration is now accepting submissions.The Nappert Competition is open to all students, junior scholars and junior practitioners from around the world. To be eligible for the prize, authors must be either currently enrolled in a B.C.L, LL.B., J.D., LL.M., D.C.L., or Ph.D. program (or their local equivalents). Those who are no longer in school must have taken their most recent degree within the last three years, or have been admitted to the bar (or the local equivalent) for no more than three years (whichever is later). The essay must relate to commercial or investment arbitration; must be unpublished (not yet submitted for publication) as of April 30; must be a maximum of 15, 000 words (including footnotes); can be written in English or in French; should use OSCOLA or some other well-established legal citation guide (e.g. McGill Red Book; Bluebook); must be in MS Word format. More information can be found here.

Events

  • On February 3rd, the TMC Asser Institute in the Hague will host: “The Tallinn Manual 2.0 and The Hague Process: From Cyber Warfare to Peacetime Regime.” How do existing international legal norms apply to cyber operations? Not just in times of war, but also to cyber operations that take place outside the context of an armed conflict? The upcoming ‘Tallinn Manual 2.0: The International Law Applicable to Cyber Operations’ represents an effort by the International Group of Experts to discuss these issues in depth. After a brief overview of the role of the Dutch government in supporting this process by Dr. Marten Zwanenburg, Legal Advisor at the Netherlands Ministry of Foreign Affairs, Prof. Michael N. Schmitt, Project Director of the Tallinn Manual, will provide an update on the Tallinn Manual 2.0 process and its treatment of such topics as the law of State responsibility, the prohibition of intervention and the peaceful settlement of disputes as applied in cyberspace.Participation is free of charge and registration is not needed. Seats are available on a first-come, first-served basis. More information can be found here.

  • On 22-23 April 2016 a conference on ‘Representations of the (Extra)territorial: Theoretical and Visual Perspectives’ will take place at the Faculty of Law of Utrecht University. The conference will consist of four panels, addressing respectively virtual reality, the environment, human rights, and general conceptual shifts in understandings of territoriality. The speakers will include Prof. Wouter Werner & Dr. Geoff Gordon (VU Amsterdam),  Prof. Peer Zumbansen (King’s College London), Prof. Mireille Hildebrandt (Radboud University Nijmegen), Prof. Philip Steinberg (Durham University), Prof. Chris Armstrong (University of Southampton), Prof. Juscelino Colares (Case Western University), Dr. Kerry Woods (Leeds University), Prof. Marcus Düwell (Utrecht University) and Dr. Daniel Augenstein (Tilburg University). Participation is free but participants are kindly required to register before the 18th of April 2016 at the following email address: Secretariaat [dot] IER [at] uu [dot] nl

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.

Navy SEAL Who Supposedly Killed Bin Laden Under Investigation

by Kevin Jon Heller

The SEAL in question is Matthew Bissonnette, who published the bestselling No Easy Day under the pseudonym Mark Owen. According to the Intercept, the federal government is investigating Bissonnette for revealing classified information and using his position to make money while still on active duty:

A former Navy SEAL who shot Osama bin Laden and wrote a bestselling book about the raid is now the subject of a widening federal criminal investigation into whether he used his position as an elite commando for personal profit while on active duty, according to two people familiar with the case.

Matthew Bissonnette, the former SEAL and author of No Easy Day, a firsthand account of the 2011 bin Laden operation, had already been under investigation by both the Justice Department and the Navy for revealing classified information. The two people familiar with the probe said the current investigation, led by the Naval Criminal Investigative Service, expanded after Bissonnette agreed to hand over a hard drive containing an unauthorized photo of the al Qaeda leader’s corpse. The government has fought to keep pictures of bin Laden’s body from being made public for what it claims are national security reasons.

The investigation is a perfect example of the US government’s bipartisan unwillingness to address crimes committed by the military as part of the war on terror. As I noted more than three years ago, Bissonnette openly admits to committing the war crime of willful killing — a grave breach of the Geneva Conventions — in No Easy Day. Here is his description of how he and a fellow SEAL killed bin Laden (p. 315):

“The point man reached the landing first and slowly moved toward the door. Unlike in the movies, we didn’t bound up the final few steps and rush into the room with guns blazing. We took our time.

The point man kept his rifle trained into the room as we slowly crept toward the open door. Again, we didn’t rush. Instead, we waited at the threshold and peered inside. We could see two women standing over a man lying at the foot of a bed. Both women were dressed in long gowns and their hair was a tangled mess like they had been sleeping. The women were hysterically crying and wailing in Arabic. The younger one looked up and saw us at the door.

She yelled out in Arabic and rushed the point man. We were less than five feet apart. Swinging his gun to the side, the point man grabbed both women and drove them toward the corner of the room. If either woman had on a suicide vest, he probably saved our lives, but it would have cost him his own. It was a selfless decision made in a split second.”

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

This is about as clear-cut as IHL and ICL get in a combat situation. Bissonnette did not make a split-second decision to shoot bin Laden; his account makes clear that he had plenty of time to assess the situation. And there is no question bin Laden was hors de combat when Bissonnette pointed his weapon at him and finished him off. Bissonnette wasn’t even the SEAL who first shot bin Laden in the head, so he can’t argue that this was some kind of continuous action designed to eliminate any possibility that bin Laden remained a threat. Ergo: a war crime.

But it’s bin Laden, of course. Inter malum enim silent leges. So instead of prosecuting Bissonnette for murder under the UCMJ, the US government investigates him for hanging onto a trophy of his kill and profiting from his notoriety.

Behold impunity.

PS: In case anyone is wondering, “death throes” refers to the agonal phase of dying, when the body is shutting down. The agonal phase precedes clinical death (when the heart stops and respiration ceases), brain death, and biological death.

Guest Post: 2015 at the African Court on Human and Peoples’ Rights–A Year in Review

by Oliver Windridge

[Oliver Windridge is a British lawyer specializing in international human rights and international criminal law. Oliver is founder of The ACtHPR Monitor, an independent blog and website dedicated to the African Court on Human and Peoples’ Rights, on twitter @acthpr_monitor. In June 2014 he was one of five non-African lawyers to be appointed to the Court’s inaugural list of Legal Aid Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organization affiliated to the author.]

Following some positive feedback from last year’s post rounding up the activities of the African Court on Human and Peoples’ Rights in 2014, I thought a review of some of the Court’s key 2015 events may be of interest.

For those who are not familiar with the Court, it was established by the African Union (AU) to hear cases relating to alleged violations of the African Charter on Human and Peoples’ Rights (African Charter) and other international human rights instruments. The Court is based in Arusha, Tanzania and is separate to its cousin the African Commission on Human and Peoples Rights. Two key instruments to keep in mind are the Court’s Protocol, ratification of which gives the Court jurisdiction to hear cases referred to it by the African Commission, from the country itself, from other AU members states and from African Intergovernmental Organizations. The other instrument is the “Special Declaration”, found in Article 5 (3) and Article 34 (6) of the Protocol, which must be signed by the member state in addition to the Protocol to allow individuals and NGOs from that member state to petition the Court directly.

May: the Court’s 37th Ordinary Session

At its 37th Ordinary Session the Court held public hearings in two cases concerning Tanzania. In Onyango et al v Tanzania the Applicants, all citizens of Kenya, allege they were kidnapped in Mozambique and taken to Tanzania where they were charged with murder and three charges of armed robbery. In Abubakari v Tanzania, the Applicant challenges a conviction and 30 year sentence for two counts of armed robbery. Judgement in both cases is pending.

June: Zongo and others v Burkina Faso reparations judgement

Having handed down judgment on the merits in March 2014 in Zongo and others v Burkina Faso, in which the Court found that with regards to the alleged assassination of investigative journalist Norbert Zongo and colleagues in December 1998, Burkina Faso violated several articles of the African Charter and Article 66 of the ECOWAS Treaty by failing to take measures to ensure the families of the deceased the right to be heard by a competent national court, the Court handed down its judgement on reparations. This judgement is the first in which the Court has awarded reparations to successful applicants. The judgement solidified the Court’s initial findings in June 2014 in the Mtikila v Tanzania reparations judgement that the Court has the power to award reparations to the victims of human rights violations. Zongo builds on this by actually doing so. In fact, the Court awarded the entire amount claimed in reparations by the applicants who consisted of the spouses, children and parents of the deceased. The Court also awarded a symbolic payment to the NGO who assisted in bringing the case and ordered costs for lawyer’s fees, travel and accommodation. As I have written elsewhere, the award of reparation should cement Zongo and others v Burkina Faso as another landmark case for the Court.

July: sensitization visit to Lesotho

In July, the Court conducted a one-day sensitization visit to Lesotho. The main objective of sensitization visits being to enhance the protection of human rights in Africa and promote the Court and its activities. As the Court’s press release explained, Court officials met with various government officials, lawyers and NGOs. The visit saw further promises from both government and the NGO sector to work toward signing the Court’s Special Declaration that would individuals and NGOs in Lesotho direct access to the Court.

July: the EACJ ruled on the Court’s Special Declaration

In Democratic Party v Secretary General of the East African Community and others the Appellate Division of the East African Court of Justice (EACJ) ruled on whether signing the Court’s Protocol also creates an obligation on the member state to sign the Special Declaration. The EACJ Appellate Division found that whilst it was able to consider potential violations of the African Charter and the Court’s Protocol under the premise of the East African Community Treaty, the wording of Article 5 (3) and Article 34 (6) of the Protocol contained no requirement that a member state who signs the Protocol must also sign the Special Declaration. This important decision seems to preclude, at least for now, reading any obligations into signing the Protocol that are not clearly spelled out, and keeps the process for granting individuals and NGOs access to the Court a definite two stage process.

August: Cameroon ratifies the Court’s Protocol

In August, Cameroon ratified the Court’s Protocol, taking the number of AU member states who have ratified to 29. Still, only seven AU member states have signed the additional Special Declaration. The AU has a total of 54 members.

September: (Then) President Kikwete visits the Court

Tanzanian President Kikwete, as he was prior to Tanzania’s elections, visited the Court in September. During this visit Kikwete announced that Tanzania was pledging $100,000 towards the Court’s legal aid scheme, which was set up in July 2014. Sadly, some 14 months after the fund’s creation, Tanzania’s pledge appears to be the first and only such donation to the legal aid scheme to date.

October: sensitization visit to South Africa

The Court held a one-day sensitization event in South Africa, including an address by the Court’s President Justice Ramadhani encouraging South Africa, which ratified the Court’s protocol some 13 years ago, to make the Special Declaration. More information on the visit can be seen here and here.

November: 39th Ordinary Session

The Court rendered its judgement on the merits in Thomas v Tanzania at its 39th Ordinary Session, marking another success for an applicant before the Court, this time relating to fair trial rights.

The Applicant was convicted in Tanzania of armed robbery and sentenced to thirty years imprisonment, a sentence he was serving at the time of the application. The Court found that the trial process leading to the Applicant’s conviction and his subsequent attempts to appeal said conviction were riddled with violations of his right to a fair trial. In particular, the Court found Tanzania in violation of Articles 1, 7(1) (a) (The right to an appeal to competent national organs) , (c) (the right to a defence and counsel of choice), and (d) (The right to be tried within a reasonable time by an impartial court or tribunal) of the African Charter as well as Article 14(3)(d) of the ICCPR. However, despite finding these violations, the Court rejected his request for immediate release from prison, since he had not set out “specific or compelling circumstances”. Instead, it called on Tanzania to remedy the violations within six months, specifically precluding retrial or the reopening of the defence case as remedies, given that the Applicant had served 20 out of 30 years in prison; surely an indirect call by the Court for the Applicant to be released. Issues of costs and reparations have been postponed to a later date.

November: 2nd Judicial Dialogue

The Court jointly organized with the AU the second “Continental Judicial Dialogue” which took place in Arusha. The event included delegates from AU member states, including Chief Justices, Presidents of Supreme Courts and Constitutional Courts, members of academia, national judiciaries and media. The theme of the three day event was “Connecting National and International Justice”. Interestingly, amongst the attendees were a number of judge from the Inter-American Court of Human Rights who shared their experiences of sitting on human rights cases.

December: sensitization visit to Chad and the results of the Court’s inaugural moot court competition

The Court undertook its third sensitization visit of the year to Chad. From this visit, we received the encouraging promise that Chad will sign the Court’s Protocol and, crucially for access issues, the Special Declaration. Although at the time of writing this has not yet happened, the public declaration will hopefully serve to see Chad go on to fulfil its promise sooner rather than later.

Finally, the Court announced the winners of its inaugural moot court competition, with Moi University in first place, the University of Zambia a close second and Makerere University third.

Conclusion

The Court continued to promote itself with sensizitation visits AU to Leshoto, South Africa and Chad, with this last visit resulting in the promise that Chad will sign the Court’s Protocol and Special Declaration imminently. Whilst there were also rumblings in Uganda about signing the Special Declaration, it is worth noting that no AU member state actually signed the Special Declaration in 2015, meaning further engagement with member states is clearly needed. On actual cases before the Court, applicants continue have a 100% success rate, having now gone a perfect 4-for-4 before the Court, showing that when jurisdictional issues are overcome the Court is not afraid to make findings against member states.

Above all, 2015 felt like a year in which the Court continued to mature and begin to seriously promote itself across Africa. The President of Court himself has been vocal in urging AU members states to sign the Protocol and Special Declaration allowing individuals and NGOs direct access to the Court as can be seen here, here, here, and here. Of course, what continues to hamper the Court is the number of individuals and NGOs who can actually access the Court. To make the Court a truly continental one, AU member states must sign up and embrace the Court in 2016 and beyond.

Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia: Continue Reading…

Weekly News Wrap: Monday, January 18, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

  • Burkina Faso and Mali have agreed to work together to counter the growing threat of Islamic militants in West Africa by sharing intelligence and conducting joint security patrols following two deadly and well-coordinated attacks in the region.
  • The UN says the worst drought in 30 years in Ethiopia means 400,000 children are suffering from severe acute malnutrition and more than 10 million people need food aid.
  • Somalia received a pledge of aid for $50 million from Saudi Arabia this month on the same day it announced it was cutting ties with Saudi rival Iran, a document seen by Reuters showed.

Middle East and Northern Africa

  • At least 42 people have been killed, including civilians, in suspected Russian air strikes in Syria’s Raqqa province, activists and a monitoring group say.
  • Iran’s President Hassan Rouhani has described as “historic” and a “great victory” the lifting of sanctions against Iran, declaring that the country is now reopening its doors to the international economy.
  • Islamic State militants kidnapped at least 400 civilians when they attacked government-held areas in the eastern Syrian city of Deir al-Zor on Saturday, a monitoring group said.

Asia

Europe

Americas

  • US president Barack Obama is expected to release a new plan in a bid to convince Congress to close Guantanamo Bay prison.
  • Two Swedish citizens whom U.S. prosecutors said fought alongside the Islamist militant group al Shabaab in Somalia in battles to take control of the country’s capital of Mogadishu were sentenced to 11 years in prison on Friday.

Oceania

UN/World

Doe v. Nestle: Corporate ATS Cases Just Keep Lingering

by Julian Ku

The Supreme Court this week let stand a U.S.Court of Appeals for the Ninth Circuit decision reinstating an Alien Tort Statute lawsuit alleging corporate complicity in the use of child slave labor in various African countries from which they purchased cocoa products.

The high court left in place a December 2014 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that refused to dismiss a lawsuit against Nestle, Archer-Daniels-Midland Co and Cargill Inc filed by former victims of child slavery.

The plaintiffs, who were originally from Mali, contend the companies aided and abetted human rights violations through their active involvement in purchasing cocoa from Ivory Coast. While aware of the child slavery problem, the companies offered financial and technical assistance to local farmers in a bid to guarantee the cheapest source of cocoa, the plaintiffs said.

The arguments in favor of, and against, Supreme Court review are amply discussed by John Bellinger here.  In essence, the corporate defendants argued that the Ninth Circuit had misapplied the Supreme Court’s 2013 landmark ATS decision in Kiobel v. Royal Dutch Shell.  That decision had imposed a “touch and concern” extraterritoriality case before permitting such an ATS lawsuit in U.S. courts.  The defendants also argued that the Supreme Court should clarify the intent standards required for determining corporate aiding and abetting liability, and that there is a split between circuits over whether corporations can be held liable for violations under the ATS.

I am not sure about whether this case was “cert-worthy”.  The Kiobel issue seems mostly about whether the plaintiffs should be allowed to amend their complaint. There is a question of how Morrison interacts with the Kiobel standard, but the split with other circuits isn’t quite as developed as it could be.  I think the corporate liability issue is a circuit split, but where the Second Circuit stands on that issue is still a little up in the air.  I do think the Ninth Circuit is mistaken on the intent standard, but again, I am not sure how broad that standard is yet.

But it is certainly true that by letting this Ninth Circuit decision stand, the Supreme Court is passing up an opportunity to shut down corporate ATS litigation in a more definitive way than it did in Kiobel.  So corporate ATS cases are mostly dead, but not quite.

New Article on SSRN: “Radical Complementarity” (Updated)

by Kevin Jon Heller

The article is forthcoming in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Côte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gbagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used complementarity to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

The article brings together thoughts I’ve developed both here at Opinio Juris and in my academic writing. In terms of the latter, it’s something of a sequel to my article “A Sentence-Based Theory of Complementarity.” (Double self-promotion!)

As always, thoughts are most welcome!

NOTE: I have uploaded a revised version of the article to SSRN. Chris’s comment below made me realise I should note my sentence-based theory of complementarity. It’s not a radical change, but — at the risk of seeming like I’m trolling for downloads — you should get the new version if you want to read the article but haven’t already.

Gaza Flotilla Activists’ Lawsuit Against Israel Will Probably Fail for Lack of U.S. Jurisdiction (Updated)

by Julian Ku

[Please see the update below] Three U.S. citizens, and one Belgian national, have filed a civil lawsuit in U.S. District Court in Washington D.C. against the State of Israel alleging various injuries and damages suffered during an Israeli commando raid on their U.S.-registered ship.  The plaintiffs were activists who were sailing their vessel in support of the Palestinians on the Gaza Strip suffering under what the plaintiffs allege is an Israeli blockade. I don’t have a copy of the complaint, but according to this Washington Post report, there are a couple of pretty big legal obstacles for the plaintiffs to overcome.

“The attack on the high seas was unjustified and illegal under international law,” lawyer Steven M. Schneebaum of Washington wrote in a 21-page complaint, which alleged that the military operations injured more than 150 protesters and included torture, cruel or degrading treatment, arbitrary arrest and assault.

The first problem for the plaintiffs will be overcoming the Foreign Sovereign Immunities Act, which bars U.S. courts from hearing cases against foreign sovereigns like Israel unless certain exceptions apply.  I can’t tell exactly from the report which exception the plaintiffs are trying to invoke, but the allegations of “torture, cruel and degrading treatment” etc. suggests the complaint is trying to allege such an egregious violation of international law that any defense of immunity will be deemed to have been “waived” by Israel.   I am highly doubtful that this argument will succeed, and indeed, I am fairly sure it is foreclosed by precedents in the D.C. Circuit (and elsewhere).

It is possible that the plaintiffs will seek to get jurisdiction under the “state-sponsored terrorism” exception in 28 U.S.C. § 1605A(a)(1).  This might seem to apply, if we accept the plaintiffs’ claims as true, except that Israel would also have be designated by the U.S. government as a “state sponsor” of terrorism in order for the exception to apply.   Israel, needless to say, has not been so designated by the U.S. government, so this exception doesn’t work for the plaintiffs either.

It also appears the plaintiffs may have a statute of limitations problem as well, but I am not sure.  Also, was that ship U.S.-registered? If so, which tort law would apply? Or is it a claim under international law?

So I am pretty doubtful that this lawsuit will survive a motion by Israel to dismiss the case for lack of jurisdiction.   Indeed, I wonder at its even being filed, given the jurisdictional problems it faces.  But perhaps I am missing something, and if so, feel free to let me know in the comments.

[Update: Jordan Paust and Ted Folkman point out in the comments that the plaintiffs are probably invoking either the “international agreements” exception in the FSIA or the “noncommercial tort” exception in 28 USC § 1605(a)(5), which allows an exception to immunity for claims “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state…”

These are a much more plausible claims, and they depends (as Ted points out) on the idea that the raid on the US-flagged vessel means that the alleged tort occurred “in the United States.”   The leading decision is Argentine Republic v. Amerada Hess, which involved an Argentine missile strike on a Liberian-flagged ship owned by U.S. interests. That case held though that the “high seas” is not “in the United States” for purposes of the FSIA.  The only variation on this point I can see is that that the attack occurred on a U.S.-flagged vessel, as opposed to the “high seas.” I doubt this will fly, but I suppose it is worth a shot if I were the plaintiffs.]  

Autonomous Legal Reasoning: Legal and Ethical Issues in the Technologies of Conflict

by Duncan Hollis

One of the highlights of my Fall semester was the opportunity to host a one-day workshop at Temple Law on how autonomous technology may impact the future of international humanitarian law (IHL) and the lawyers who practice it.  With co-sponsorship from the International Committee of the Red Cross (specifically, Rob Ramey and Tracey Begley) as well as Gary Brown of Marine Corps University, we wanted to have an inter-disciplinary conversation on the way autonomy may implicate the practice of law across a range of new technologies, including cyberwar, drones, and the potential for fully autonomous lethal weapons.  Although these technologies share common characteristics — most notably their ability (and sometimes their need) to operate in the absence of direct human control — discursive silos have emerged where these technologies tend to be discussed in isolation.

Our workshop sought to bridge this divide by including experts on all three technologies from an array of disciplinary backgrounds, including IHL, political science, and ethics (see here for a list of participants).  Fortunately, the day itself lived up to the hype, with a detailed agenda that prompted a wide-ranging set of conversations on the nature of the technology, the ethical issues, as well as IHL’s current regulations and its likely future evolution.  Subject to the Chatham House Rule, the ICRC has published summaries of these conversations on their blog, Intercross.

In addition to those blog posts, the Temple International and Comparative Law Journal will publish a series of short (and often provocative) think-pieces written for the workshop.  My own contribution, Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law is now available on SSRN.  Here’s the abstract:

This short essay seeks to reorient — and broaden — the existing discourse on international humanitarian law (IHL) and autonomous weapons. Written for a conference co-sponsored by the International Committee of the Red Cross, it employs a contextual analysis to pose new questions (and reformulate others) regarding the relationship between IHL and autonomous weapon systems. It asks six questions: (1) Who should IHL regulate in this context? Does IHL only regulate States and individuals, or can it provide rules for autonomous weapon systems themselves? (2) What types of autonomous technology should IHL regulate? Should the current focus on kinetic weapons expand to encompass cyber operations? (3) Where should this discourse occur? How do the trade-offs involved in locating legal discourse in a particular forum impact the elaboration of IHL vis-à-vis autonomous systems? (4) When should IHL regulate autonomous weapons? Should IHL ban autonomous weapons now or allow its regulation to emerge incrementally over time? Can IHL only apply when an autonomous system’s operations constitute an attack, or should IHL’s application reach more broadly? (5) How should IHL regulate autonomous weapon systems? Are prohibitions better or worse than prescriptive authorities? Should IHL regulate via rules, standards, or principles? Finally, (6) why should IHL regulate autonomous weapons? How can IHL best prioritize among its foundations in military necessity, humanitarian values, and the practical reality that the development of such systems now appears inevitable. In asking these questions, my essay offers a critical lens for gauging the current scope (and state) of international legal discourse on this topic. In doing so, it sets the stage for new lines of inquiry that States and other stakeholders will need to address to fully understand the perils — and potential — of increasing autonomy in technology for IHL and the international lawyers who practice it.

Fans of Thomas Aquinas may be particularly interested in this piece since I ask these questions using the same analytical frame Aquinas deployed to delineate those circumstances that define human acts.  Otherwise, interested readers should keep an eye out for the Symposium volume itself, which should be out sometime later this Spring or early this coming Summer.

 

Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?

by Julian Ku

When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.

China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise.  And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.

Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless.  Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)?  Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above.  So is it better to simply walk away?  If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether.  Will other states try this approach?

 

Weekly News Wrap: Monday, January 11, 2016

by Jessica Dorsey

Here’s your weekly selection of 2016 of international law and international relations headlines from around the world:

Africa

  • Mali’s chief prosecutor said on Saturday that it has evidence that jihadist al-Qaida splinter group Al Mourabitoun, led by veteran leader veteran militant leader Mokhtar Belmokhtar, was behind a November attack on a luxury hotel that killed 20 people.
  • Dozens of Ethiopian and Somali migrants died in the waters off the breakaway Somalia region of Somaliland when their vessel failed mechanically in the course of the voyage and drifted in the sea, a regional Somaliland official said.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • A “new deal” blueprint for sweeping reform of Australia’s environment laws that puts climate change at the centre of ­future economic decision-­making is being prepared by a coalition of 40 leading conservation groups in the wake of the Paris climate meeting.

UN/World

  • Iran’s foreign minister has complained to the United Nations about Saudi Arabia’s “provocations” toward Tehran, as a diplomatic crisis between the region’s two major powers entered its second week.

Events and Announcements: January 10, 2016

by Jessica Dorsey

Announcements

  • The Centre of Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen and PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order) are hosting a high-level summer school for PhD students working on international courts in their social and political context. We particularly welcome students who are writing up a PhD thesis that involves a strong focus on methodology. The course is offered free of charge but the participants carry out expenses relating to travel and accommodation.

Calls for Papers

  • International Criminal Justice: Theory, Policy and Practice, Socio-Legal Studies Association Annual Conference, Lancaster University. This proposed stream contains four panel sessions and invites submissions on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would be particularly welcomed and papers based on “works in progress” will be considered so long as the work is sufficiently developed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Selected papers from the conference will be published. Details of which will be available shortly. For an informal discussion please email the convenor, Anna Marie Brennan at Anna [dot] Marie [dot] Brennan [at] liverpool [dot] ac [dot] uk Abstracts may only be submitted via EasyChair. For more information on the submission process see here. Abstracts must be no longer than 300 words and must include your title, name and institutional affiliation and your email address for correspondence. The deadline for the submissions is Monday 18 January 2016.
  • The ILA British Branch Spring Conference 2016 on “Non-State Actors and Changing Relations in International Law” will be held at Lancaster University on 8-9 April 2016. This conference will examine the changing role of non-state actors in international law and their impact on law-making, obligations, responsibility and dispute settlement. We welcome papers on this subject, which might include, but are by no means limited to: (1) the nature and position of non-state actors within the international legal system; (2) their role with respect to the sources of international law, which may include their role in the formation of custom and in the conclusion of treaties; (3) the source and scope of obligations for particular non-state actors, such as businesses or corporations (e.g. sanctions, human rights, modern slavery), sporting bodies and organised armed groups; (4) the potential responsibility of these actors and its relationship to state responsibility; (5) the position of these actors in dispute resolution and enforcement mechanisms, whether judicial institutions, organs of international organisations or treaty regimes; (6) the special roles of non-state actors in particular areas of international law, such as international environmental law, international economic law (including investment law), the international law of armed conflict, international human rights law and international criminal law, amongst others. For further details see the website here. Abstracts of no more than 500 words and a C.V. should be submitted to j [dot] summers [at] lancaster [dot] ac [dot] uk by 31 January 2016.
  • A reminder that the Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXV), which will be published in June 2016. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works. Submissions should not exceed 15,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available at the PYIL’s webpage. Please send manuscripts to pyil [at] inp [dot] pan [dot] pl. The deadline for submissions is 31 January 2016.
  • Call for papers for the second joint meeting of ASIL Interest Group on International Courts and Tribunals (ASIL ICTIG) and ESIL Interest Group on International Courts (ESIL ICTIG). The joint meeting will take place in Washington, D.C. during ASIL’s annual meeting (30 March-3 April 2016). Exact time and date are still being determined, however, we wish to share that three members of the interest groups will have the chance to present works in progress at the meeting, and receive feedback. If you would like the opportunity to present a work in progress, please submit an abstract describing unpublished works on the theme of  “Regional Approaches to International Adjudication.” Current (2016) members of either ASIL ICTIG and ESIL ICTIG, at any level of their careers, are invited to submit abstracts. The works submitted are to be original and on-going research. Three papers will be selected on the basis of the submitted abstracts. Abstracts must not exceed 500 words, and must be submitted to the following email addresses: geir [dot] ulfstein [at] jus [dot] uio [dot] no and ngrossman [at] ubalt [dot] edu. The deadline for the submission of the abstracts is February 1, 2016. Authors of selected papers will be notified byFebruary 15, 2016.  Authors of selected papers are requested to submit drafts of their works-in-progress by March 15, 2016. Along with the abstract, please include in your submission:
    – The author’s name and affiliation
    – A short author’s CV
    – Whether the author is an ESIL ICTIG member or an ASIL ICTIG member, or both.
  • The Utrecht Journal of International and European Law is issuing a Call for Papers on ‘General Issues’ within International and European law. The Board of Editors invites submissions addressing any aspect of International and/or European law. All types of manuscripts, from socio-legal to legal technical to comparative, will be considered for publication. The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online and should conform to the journal style guide on our website. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information, or for consultation on a potential submission, you can email the Editor-in-Chief at utrechtjournal [at] urios [dot] org.

Events

  • The T.M.C. Asser Instituut in The Hague is hosting a Hague Initiative on Law and Armed Conflict (HILAC) Lecture by Dr. Katharine Fortin entitled: “The Accountability of Armed Groups Under International Law,” on 11 February 2016. The majority of the armed conflicts around the world today are between States and armed groups. This has heightened the imperative to clarify the obligations of armed groups under international law. In this lecture, Dr. Fortin will discuss the relationship between international humanitarian law and international human rights law when holding armed groups to account. She will also discuss when and how the practice of holding armed groups to account under human rights law, as opposed to international humanitarian law, is legitimate. The lecture starts at 7 p.m. Registration is not needed, but seats are available on a first-come first-served basis.

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.

National Security Challenges for the Next Administration: AALS Panel Discussion

by Jessica Dorsey

The Association of American Law Schools is hosting its 110th annual meeting, which starts today and goes through Sunday in New York City.

The program is vast, but one item of note takes place Saturday, 9 January, from 10:30am-12:15pm at the New York Hilton Midtown, Gramercy West, Second Floor. At this event, Deborah will be moderating a panel discussion entitled: “National Security Challenges for the Next Administration,” along with panelists John Bellinger, Gil Avriel, Marty Lederman, Hina Shamsi, and Dakota Rudesill. More information on the AALS meeting can be found here.

The description of the panel is as follows:

As the country embarks upon presidential election season 2016, this panel identifies and explores the most important challenges in national security law facing the next administration. While relatively discrete legacy issues from the U.S. response to the attacks of 9/11 remain, the emergence of new security threats from organizations such as ISIL has brought into sharp relief the broader unresolved questions surrounding the domestic and international legal framework for combating violent non-state and quasi-state actors. This panel assembles a distinguished group of experts on U.S. constitutional law, international law, and counterterrorism to consider which legal problem the next U.S. President should place highest on his or her to-do list – and what the President should do to address it.

Guest Post: Merry-Go-Round Justice–The Retrial of Stanišić and Simatović

by Wayne Jordash

[Wayne Jordash , QC, is a Managing Partner of Global Rights Compliance LLP and a barrister at Doughty Street Chambers. He served as counsel for Jovica Stanišić in the proceedings described in this post and has been temporarily assigned for the new proceedings.]

On the 15 December 2015, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) Appeals Chamber ordered a retrial of Jovica Stanišić and Franko Simatović. The Appeals Chamber granted the Prosecution’s request that the decision to acquit be quashed because the Trial Chamber’s approach to joint criminal enterprise (“JCE”) and aiding and abetting were deficient. The retrial will take place under ICTY’s successor, the United Nations Mechanism for International Criminal Tribunals (“MICT”).

Before launching headlong into a discussion on the merits of the decision to order a retrial, it is worthwhile noting that intelligent minds often reasonably disagree on complex ICTY appellate issues. As the ICTY has learnt to its chagrin over the last few years, this is the nature of appeals and sometimes the storms must just be weathered. That said, in the final analysis, some minds might turn out to be more reasonable than others and the quality of the reasoning is as good as signpost as any of the true merits and bona fides of a decision and the prospects of it contributing to our understanding of the law. Accordingly, in the circumstances of the Stanišić and Simatović appeal, it is worthwhile beginning any discussion concerning the merits of the order for retrial with a discussion of the merits and reasoning of the substantive aspects of the appeal. It is instructive to contrast the arguable before moving to the indefensible.

First, for the JCE ground, the Majority of the Appeals Chamber concluded that the Majority in the Trial Chamber had made an error in the course of finding that Mr. Stanišić had not intended to pursue any criminal purpose. They argued that the Trial Chamber should have first considered whether the Serbian leadership had a plan to commit crimes in Croatia and Bosnia, what the scope of that plan was, who was involved and whether Mr. Stanišić’s acts contributed to the plan. They concluded that it was only by first reaching these definitive conclusions about the alleged criminal plan could Mr. Stanišić’s JCE intent be properly adjudicated. At first glance, this approach surely has a superficial attractiveness that warrants further consideration.

However, a closer examination of the underlying premise of this ground reminds us that all that glitters is not gold. The reasoning of the Appeals Chamber appears to suggest that it is not possible for a Trial Chamber to take a holistic view of the evidence and recognise an accused’s consistent avoidance of crime in order to reach a conclusion that the accused did not make a significant contribution to any criminal plan and had no criminal intent. Instead, it seems, the Trial Chamber should painstakingly describe the criminal plan in all its florid detail – even though they are convinced from an examination of the accused’s established conduct that he was consistently engaged in conduct that did not advance or further crime.

Logic suggests that if Mr. Stanišić was alleged to have taken part in a robbery of a bank, a trier of fact would be well-equipped to acquit on the basis that he established a solid alibi that showed he was elsewhere, involved in lawful activity and made no contribution to the specific acts alleged to be within the robbers’ plan. On the Majority view in the Stanišić appeal, it was impossible to be satisfied that Stanišić was acting lawfully without describing all of the robbery, even though he was not there, did not contribute to any aspect of it and was shown to be contemporaneously pursuing legitimate purposes.

The fact that the Majority in the Appeals Chamber eschews this type of analytical discussion in favour of bald assertions that JCE intent may only be inferred through a rigidly linear, calculative approach tells us something about the merits of the conclusion, even if reasonable minds could agree or disagree about some of the arguable points. As does the fact, as pointed out by Judge Afanđe in his eloquent dissent, that such an approach is a departure from previous analytical frameworks employed in cases such as Popović, Pandurević, Milutinović and others and Prlić and others. Whichever way it is spun, and however arguable the issues are, it does seem a little late in the day to be overturning acquittals on the basis that unbeknownst there is only one way to assess JCE intent.

Moreover, the trenchant critique of their fellow judges, Judge Agius and Judge Alfanđe, tells us how the Majority got to where they wanted to go and why there may be little that resembles adequate explanation or express reasoning. As stated by Judge Agius:

[i]t is unfortunate that the Majority’s approach contains a number of shortcomings. Not only is it difficult to identify and understand the Majority’s reasons from the text of Judgment, but in its limited discussion, I respectfully submit that the Majority: (i) misstates the applicable law; (ii) fails to reconcile its analysis, in any meaningful fashion with the learned submissions advanced by counsel for the parties; and (iii) takes the practice of the Appeals Chamber dramatically out of context when applying it to the circumstances of this case.

He finds the “lack of transparency” in the Majority’s approach “particularly troubling, in light of its own obligation to provide a reasoned judgment in writing.” That irony was also not lost on Judge Afanđe, who, whilst discussing the flaws in the Majority’s approach, mused on the Majority criticising the Trial Chamber for failing to provide adequate reasoning for its decisions while doing precisely the same thing: a classic case of kettle calling the pot.

Considering the other aspect of the substantive merits, the decision to reverse the acquittals rested on the Trial Chamber’s analysis of Stanišić’s mens rea that was arguably assessed through the lens of the much-debated ‘specific direction’ requirement. Even if one can once again bemoan the lack of reasoning and legal engagement, as with the JCE ground, one can at least see how the Majority of the Appeals Chamber got to where it wanted to go, even if reasonable minds might have queried whether in the particular analytical circumstances the application of specific direction had any meaningful impact on Stanišić’s aiding and abetting acquittals. Nonetheless, as many stakeholders in the international criminal process learn to their cost, this is sometimes the way the die is cast: discretion is discretion and that is the day-to-day business of criminal courts. Continue Reading…

Weekly News Wrap: January 4, 2016

by Jessica Dorsey

Happy New Year, OJ readers! Here’s your first weekly selection of 2016 of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

  • Sweden has begun ID controls as part of the government’s efforts to limit the number of refugees entering the country.
  • Belgian investigators released three people on Friday after questioning them over an alleged plot to attack the capital on New Year’s Eve which forced the cancellation of the city’s annual fireworks display.
  • Poland could be open to compromise over British demands to limit the rights of European Union migrants if London helps it bolster the NATO presence in central Europe, Foreign Minister Witold Waszczykowski told Reuters.
  • The head of a special team investigating alleged abuses by British soldiers in Iraq has said he’s confident there will be sufficient evidence for war crimes prosecutions.

Americas

Oceania

UN/World

You Can Prosecute Animal Rights Activists But Not a Right-Wing Militia for “Terrorism”

by Kevin Jon Heller

Earlier today, a right-wing militia seized the headquarters of the Malheur National Wildlife Refuge in Oregon. The group, which is led by Ammon Bundy — the son of Cliven Bundy, who led an armed stand-off with federal agents in 2014 — is demanding that the federal government release Dwight Hammond Jr. and Steven Hammond, two ranchers who are due to report to a California prison on Monday to serve out their sentences for arson. Bundy says the group intends to hold the building “for years” and refuses to rule out using violence if police try to remove them.

There is little question that the militia’s actions qualify as seditious conspiracy. 18 USC 2384 specifically criminalizes “two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspir[ing]… to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy is a very serious crime, one that carries a maximum sentence of 20 years imprisonment.

But what about domestic terrorism? Could the members of the militia be prosecuted as domestic terrorists once the seige is over?

Domestic terrorism is defined in 18 USC 2331(5):

the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

At this point, the militia has probably not satisfied 18 USC 2331(5). Although their activities are clearly “intended… to influence the policy of a government by intimidation or coercion,” it is difficult to argue that the militia has engaged in acts “dangerous to human life,” because the Wildlife Refuge’s headquarters was closed and unoccupied when the militia seized it.

The situation would be very different, of course, if the militia followed through on its threat to use force to repel an attempt by the police to retake the headquarters. Doing so would clearly qualify as domestic terrorism under 18 USC 2331. But here is the problem in terms of actual prosecution: as Susan Hennessy pointed out in an excellent post at Lawfare after the mass murders in Colorado and California, “[d]omestic terrorism does not exist as a substantive offense under federal law.” It is simply an element of other substantive federal offences, such as bribery affecting port security, 18 USC 226 (Hennessy’s example). And none of those offences would seem to cover the militia’s seizure of the Wildlife Refuge headquarters.

The bottom line, then, is that although we could call the members of the militia “terrorists” if they ever engage in acts dangerous to human life, they could not be prosecuted as terrorists. That’s perverse — especially when we contrast the absence of a substantive federal terrorism offence covering the militia’s actions with the existence of a substantive federal terrorism offence designed specifically to prosecute non-violent animal-rights activists: 18 USC 43, the Animal Enterprise Terrorism Act (AETA). The AETA, which was adopted by Congress at the behest of the pharmaceutical, fur, and farming industries, is an absurdly overbroad statute that deems any actions that intentionally damage the property of an animal enterprise to be “terrorism”:

(a) Offense.—Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce—

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such purpose—

(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

(C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).

The only “violence” the AETA requires is the violence of ripping up documents or opening up animal cages. Indeed, the AETA has been used to prosecute as terrorists four people who “chalked the sidewalk, chanted and leafleted outside the homes of biomedical scientists who had conducted animal testing” and two young men who “released about 2,000 mink from cages and painted the slogan ‘liberation is love’ in red paint over a barn.” The charges in the first case were thrown out for lack of factual specificity, but both of the defendants in the second case have pleaded guilty and are facing 3-5 years in prison.

It defies logic that there is a substantive federal terrorism offence covering non-violent activists who open mink cages but not one covering a right-wing militia that forcibly seizes a federal building, demands the release of prisoners, and threatens to kill anyone who tries to intervene. But there you have it.

Events and Announcements: January 3, 2016

by Jessica Dorsey

Announcements

  • New additions to the UN Audiovisual Library of International Law: The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge. The latest lectures include the Shabtai Rosenne Memorial Lecture by Professor John Norton Moore delivered at United Nations Headquarters in New York on 18 November 2015. It is the fifth in a series of Memorial Lectures commemorating Professor Rosenne’s unique contribution to the development of international law and its practice. The second lecture was given by Judge Theodor Meron on “The Mechanism: A New Model of International Criminal Tribunal”.
  • Di Tella University, from Argentina, is delighted to announce that the third issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. The Journal, published in Spanish, is the first Latin American publication devoted to promoting the discussion of general topics of Public International Law from different perspectives in the region. LADI’s third issue includes articles by Marko Milanovic, Ariel Dulitzky, Mark Pieth and Liliana Obregón, amongst others, as well as interviews to Professor Alicia Yamin and UN Special Rapporteur Juan Méndez. The latest issue can be found here.  LADI has also launched its new multimedia section –LADI Conversations- with interviews to prominent international law scholars and practitioners on current peace talks in Colombia. LADI Conversations can be found here.

Calls for Papers

  • The University of Portsmouth School of Law, the European University Institute and the McCoubrey Centre for International Law of the University of Hull Law School are organising a two-day international conference on “Building Consensus on European Consensus” (EUI, Florence, 1st and 2nd June 2016). The conference aims to examine the meaning, mechanics and normative consequences of European consensus as a method of interpretation used by the European Court of Human Rights when it recognises the emergence of “new” rights within the Convention system, particularly in areas regarded as politically, socially of morally sensitive. In an attempt to study European consensus through an interdisciplinary lens, the conference will bring together scholars in Human Rights law, Constitutional law, Legal Philosophy and Public International law, as well as members of the European judiciary, with a keynote from Professor Conor Gearty (Professor of Human Rights Law, London School of Economics). To submit an abstract, please visit the conference’s webpage here.
  • The editors of the Cambridge Journal of International and Comparative Law (CJICL) welcome submissions for the CJICL 5th Annual Conference to be held at the University of Cambridge on 8-9 April 2016. Accepted papers will be considered for publication in a special issue of the Cambridge Journal of International and Comparative Law. Abstracts should be submitted on the basis that the subsequent paper will be available for publication if selected. The theme for the CJICL 5th Annual Conference is “Public and Private Power”. We are interested in doctrinal, theoretical, institutional and comparative perspectives from international, European and comparative law on the regulation of public and private power. Further details are available here.

Events

  • The 13th Otto-Riese-Lecture on occasion of the opening of the Academic year of the LLM Programme in International and European Economic and Commercial Law entitled: “Leading the reform of the global investment regime?” – The EU’s approach towards international investment law, will be given by Professor Markus Krajewski (University of Erlangen-Nürnberg, Germany) who was the author of a report leading to the German Government’s proposal to include a permanent investment Court in the agreements concluded by the European Union on Thursday 25 February 2016 (16:00 – 17:15)  –  Internef UNIL – Dorigny  –  231. More information can be found here.

  • Workshop “International Commodity Law” In cooperation with FOKOS (University of Siegen), the Europa-Institute of the University of the Saarland and the Swiss Branch of the International Law Association, the LLM Programme in International Economic and Commercial Law at the Centre for Comparative, European and International Law of the University of Lausanne organizes a one-day event on legal aspects of international commodity trade and investment. Friday 26 February 2016 (9:00 – 17:00)  –  Internef UNIL – Dorigny  –  231. You can sign up from  04.01.16  to  19.02.16. Participation is free of charge but registration at llm [at] unil [dot] ch absolutely necessary. More information can be found here.

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