Archive for
May, 2016

Weekly News Wrap: Monday, May 30, 2016

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements, May 22, 2016

by Jessica Dorsey


  • The Institute of International Shipping and Trade Law of Swansea University will organise a joint one-day seminar on the subject of Lex Petrolea with the Center for Energy, Law, and Business of University of Texas Law School on 21 June 2016 in London. For the flyer see hereFor further information click here.

Calls for Papers

  • The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 17(2) by July 1, 2016. This issue will have a special focus on the legal implications of the Trans-Pacific Partnership, and space will also be available for articles on other issues of international law. Submissions and inquiries should be directed to law-mjil [at] unimelb [dot] edu [dot] au. For more information, please visit the website here.
  • ASIL’s International Economic Law Interest Group has announced a call for papers ahead of its biennial conference September 30, 2016-October 1, 2016 taking place at Georgetown University Law Center. The overall theme is: “Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices,” and the deadline for paper proposal submissions is June 24, 2016. Please submit an abstract of no more than 500 words and please indicate when you anticipate completion of the paper and whether the paper has been accepted for publication or has been published. If applicable, please indicate place of (anticipated) publication and date. Please also provide a CV or resume, your current affiliation and whether you are a member of the IEcLIG. Abstracts will be peer-reviewed and decisions will be issued on August 1, 2016. More information can be found here.


  • The second annual “International and comparative disaster law essay contest” is now launched. This contest is co-sponsored by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), the International Disaster Law Project (IDL) of the Universities of Bologna, Scuola Superiore Sant’Anna, Roma Tre and Uninettuno.The contest is open only to students enrolled in an undergraduate or graduate degree program at any university (anywhere in the world) at the time of submission. Essays may examine any issue related to law and disasters due to natural hazards, but must do so either from a comparative or an international law perspective, or both. Comparative essays should examine laws or legal issues from no less than three countries. The winner of the contest will receive: A monetary prize in the amount of CHF 500. A free annual membership in the American Society of International Law and waiver of fees for attendance of the ASIL annual meeting in April 2017. The winner will also have his or her paper published as a “Working Paper” of the IFRC’s Disaster Law Programme. They will retain copyright of their papers and may subsequently publish them elsewhere, according to the terms of the Working Papers series. A message announcing the name of the winner and runners up of the contest will be sent to all members of the ASIL DLIG, as well as to the co-sponsors and made public on the ASIL website. The deadline for submissions is 31 August 2016.

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.

EU to Help al-Bashir Imprison Refugees

by Kevin Jon Heller

Just when I thought I was beyond being genuinely horrified, Roving Bandit called my attention to a story in Der Spiegel that almost defies words:

The ambassadors of the 28 European Union member states had agreed to secrecy. “Under no circumstances” should the public learn what was said at the talks that took place on March 23rd, the European Commission warned during the meeting of the Permanent Representatives Committee. A staff member of EU High Representative for Foreign Affairs Federica Mogherini even warned that Europe’s reputation could be at stake.

Under the heading “TOP 37: Country fiches,” the leading diplomats that day discussed a plan that the EU member states had agreed to: They would work together with dictatorships around the Horn of Africa in order to stop the refugee flows to Europe — under Germany’s leadership.

When it comes to taking action to counter the root causes of flight in the region, German Chancellor Angela Merkel has said, “I strongly believe that we must improve peoples’ living conditions.” The EU’s new action plan for the Horn of Africa provides the first concrete outlines: For three years, €40 million ($45 million) is to be paid out to eight African countries from the Emergency Trust Fund, including Sudan.


The International Criminal Court in The Hague has issued an arrest warrant against Sudanese President Omar al-Bashir on charges relating to his alleged role in genocide and crimes against humanity in the Darfur conflict. Amnesty International also claims that the Sudanese secret service has tortured members of the opposition. And the United States accuses the country of providing financial support to terrorists.

Nevertheless, documents relating to the project indicate that Europe want to send cameras, scanners and servers for registering refugees to the Sudanese regime in addition to training their border police and assisting with the construction of two camps with detention rooms for migrants. The German Ministry for Economic Cooperation and Development has confirmed that action plan is binding, although no concrete decisions have yet been made regarding its implementation.

I think this is what policy wonks call a “bad idea.” Although, to be fair, al-Bashir’s government does know a thing or two about building detention camps:

In the IDP camps, where most of the target groups’ members fled, AL BASHIR has organized the destitution, insecurity and harassment of the survivors. The Ministry for Humanitarian Affairs provides no meaningful Government aid to those displaced, and consistently obstructs or blocks humanitarian assistance from the international community. The Ministry for Humanitarian Affairs blocks the publication of nutrition surveys, delays the delivery of aid, expels relief staff denouncing such acts, denies visas and travel permits, and imposes unnecessary bureaucratic requirements on aid workers. This has the effect of reducing nutrition and access to medical services for protracted periods of time.

Militia/Janjaweed, which AL BASHIR has recruited, armed and purposefully refused to disarm, are stationed in the vicinity of the camps and, with other GoS agents, they subject IDPs to abuses, including killings, rapes and other sexual violence. While the authorities argue that there are armed rebels in the camps, the evidence shows that those attacked are unarmed civilians.

The overall effect of physical attack, forced displacement, destruction of means of livelihood, and denial of humanitarian assistance was that mortality rates among civilians, including principally members of the target groups, remained at critical levels. Between April and June 2004, as deaths directly caused by violence decreased, mortality rates among displaced populations in Darfur remained elevated because of deficient humanitarian assistance. Overall, at least 100,000 civilians – mostly members of the targeted groups – have already endured “slow death” since March 2003.

These paragraphs are from the OTP’s second request for an arrest warrant for al-Bashir, which accused him — inter alia — of “genocide by deliberate infliction on members of the target groups conditions of life calculated to bring about the physical destruction of the group in whole or in part.” The Pre-Trial Chamber issued the warrant.

Little wonder the EU ambassadors wanted to make sure the public never found out about its horrific plan to help al-Bashir build detention camps for refugees. (Query: does the EU have a reputation regarding treatment of refugees left to protect?) Alas, Der Spiegel refused to play along.

But don’t worry, EU ambassadors. There is a silver lining: refugees are not a protected group under the Genocide Convention, so you can’t be accused of complicity in genocide when al-Bashir decides the best way to “solve the refugee problem” is to slowly kill them in the camps you help build.

Symposium: Response–Defining the International Rule of Law and Moving Without Gravity

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the sixth and final post in the Defining the Rule of Law Symposium, based on this article (free access for six months). For the other contributions, see links below.]

I am immensely appreciative of the deep thought, and the time and effort, which the contributors to this Symposium have undertaken. My thanks, too, to the editors of Opinio Juris for enabling this to happen.

My main response to the comments on my article in the ICLQ (free access for 6 months!) is delight that there has been some real engagement with the definition of the international rule of law. For too long there has been a great deal of talk and reference to the international rule of law but far too few attempts at defining it. Each of the contributors offered thoughtful and constructive views as to the definition I proposed, and none dismissed the idea that there could be an international rule of law and none took that view that it could not be defined. This is a significant step.

In terms of their comments, Janelle Diller provides a useful insight into the operation of the international rule of law across pluralistic legal systems and by international organisations, and she warns of the problem of a patchwork of compliance systems in providing a true access to justice in the international legal order. Heike Krieger astutely shows the need for the international rule of law at a time when there are some indications of significant structural changes in the way law is operating as framework for international relations. Joost Pauwelyn is wary of the breaking of a link between domestic rule of law and international rule of law, as he helpfully shows that they can both facilitate and operationalise each other. Indeed, Simon Chesterman notes that I do fall back on domestic law analogies at times in any event. Simon and John Tasioulas focus on the human rights aspects of my definition and, while neither disagrees with the inclusion of human rights, they offer insightful and perceptive comments about how to include and exclude human rights within the international rule of law.

I accept John’s comments about human rights being about values and morality, and I would note that it does become, due to the nature of the international system, also about law. While law constrains and limits human rights (not least by the restriction of obligations being solely placed on states under international human rights treaties), it also offers a language to contest and to argue for the justice that should be part of the international rule of law. I resisted strongly the view that the rule of law must include all human rights, as being both conceptually problematic and as diminishing human rights as distinctive idea. Yet, if the international rule of law is to include access to justice (as I argue it must), it should include those human rights which are directly linked to the means of ensuring the effectiveness of the international rule of law. This requires the inclusion of substantive rights, such as the right to a fair trial and right not to be discriminated against, which are directly related to the rule of law elements of having independent courts and tribunals, and the equality of all before the law. It does not include rights such as the right to privacy or the right to education as, while they do require the rule of law to enable access to a remedy for their violation, they are not an inherent part of the rule of law elements themselves. There is clearly more work to be done by us all on clarifying the relationship between the international rule of law and human rights.

I trust that this Symposium encourages others to undertake work on this difficult and fascinating area. I hope we can all defy gravity a little longer to do so.

Symposium: The International Rule of Law – Defying Gravity?

by Heike Kreiger

[Heike Krieger is Professor of Public Law and International Law at Freie Universitaet Berlin and Co-Chair of the Berlin Potsdam Research Group on The International Rule of Law – Rise or Decline? This is the fifth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here, the third here, the fourth here and the fifth here.]

The awareness of a crisis of international law is widespread. The multiplicity of challenges which the international order currently faces suggests that we might not only be confronted with a temporary situation of instability but with much more deeply embedded disruptions and lasting structural changes. Such challenges and changes require us to reflect upon the state and development of international law and its relevance as a normative order for international relations. Therefore, Robert McCorquodale’s article is very timely. If we want to assess the potential of international law to regulate and to adapt to a changing global order we need to identify the functions, objectives, and the intrinsic value an international rule of law has to offer.

McCorquodale chooses a normative approach and offers a definition for the international rule of law which relies on four objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p. 16). This effort to develop and illustrate a definition of the international rule of law helps us to distinguish structurally more relevant forms of crisis from temporary instabilities:

McCorquodale identifies the doctrine of pacta sunt servanda as a pertinent case of application for his definition. The doctrine “means that states must comply in good faith with legal obligations to which they have consented“. He submits that it forms an incentive for States to subject themselves to legally binding obligations: “This doctrine benefits all states equally, so that each of them has confidence in reaching legal agreements to secure their own interest and to assist in attaining international legal order and stability“ (p. 20). Indeed, the doctrine of pacta sunt servanda is one of the most fundamental elements of the concept of the international rule of law since it relies on the intrinsic value of the law to create stability and a minimum of trust. Thus, the idea of an international rule of law is significantly challenged when the application of this doctrine is called into question. Certain indications suggest that we can presently observe such a development.

The first indication consists in a systematically relevant disregard for inter­national law. Of course, inspite of their legal obligations States have always violated international law. Thus, I agree with McCorquodale that the existence of an international rule of law does not depend on the compliance with “substantive international legal rules“ (p. 14) but that the international rule of law is a relative concept with “varying degrees of adherence to the rule of law, as perfect adherence is ‘an ideal’“ (p. 3/15). The concept of the rule of law works like a principle whose commands maybe realized to a greater or lesser extent and whose objectives can accordingly only be optimized “with the aim of fulfilling them all over time” (p. 28). However, systematically relevant forms of non-compliance might call basic rules, or even the functioning of the system itself, into question since they affect the doctrine of pacta sunt servanda.

A pertinent debate revolves around the rules on the use of force. Whereas Tom Franck’s famous 1970 essay on Who killed Article 2 (4)? suggests that disregard for the prohibition on the use of force is not a new phenomenon, the significant variety of challenges for these rules implies a structurally relevant quality: Unilateral interventions and unilateral interpretations of UN Security Council resolutions in the cases of Kosovo, Iraq and Libya may have contributed to undermining the credibility of intervening States, if not of the whole Charter system. The impression that some States apply double standards may have resulted in a lack of a forceful UN General Assembly reaction to Russia’s attempt to annex Crimea. The long paralysis of the Security Council in the face of the armed conflict in Syria and in disregard of the Responsibility to Protect questions the legitimacy of the Charter system and, in particular, the right to veto of the P5 once more. Even outside the Charter rules, prohibitions under customary international law have been weakened. State practice in relation to Libya and Syria suggests that States deviate from established obligations in relation to the prohibition of the use of force, in particular in view of the delivery of arms to Libyan and Syrian rebels. The Paris terror attacks 2015 have perhaps again decisively raised the question whether the state-centred ius ad bellum is fit to deal with challenges arising from violent non-state actors. In addition, certain structural developments, such as the cyber-space or the difficulty to characterize attacks and to attribute them to States may have led to a more fundamental challenge for those rules. More importantly even, the 2003 invasion of Iraq might not merely represent a particularly grave case of breaking the rules, but the beginning of a generally more liberal, or rather resigned, attitude towards the prohibition on the use of force and its exceptions. Recent debates among international lawyers about the legality of the different interventions in the civil wars in Iraq and Syria have apparently received lesser attention in State practice or in the general public than the interventions in Kosovo in 1999 or in Iraq in 2003.

A second indication concerns a loss in the confidence to conclude legal agreements. There are at least some ambiguous developments which suggest such a significant challenge to the idea that international law is at all a necessary or useful framework for international relations. A relevant example concerns the “stagnation of international law” (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763) according to which States apparently prefer informal forms of cooperation over the conclusion of formal treaties. In the field of climate protection, for instance, such a tendency could entail significant advantages, inter alia, in terms of the possibility of involving non-State actors, or of increasing the willingness to agree on some substantive commitments. However, in other areas of international law not concluding a legally binding agreement might represent a more fundamental challenge indicating a decrease of legal accountability by opening avenues for States to reinforce their discretion and augment their flexibility in the international order. For instance, after the 2011 International Conference of the Red Cross and the Red Crescent the ICRC together with Switzerland promoted a process to strengthen compliance with international humanitarian law and another process to strengthen international humanitarian law protecting persons deprived of their liberty. Both processes were apparently not turned into drafts for a binding international agreement since one could assume that a negotiating process would fail because substantial standards could not have been agreed upon under a binding treaty. But even the turn to informal standard-setting did not save the process from failing. In view of a strong opposition from certain States the adopted resolutions represented a comprise that remained far behind the expectations. It was neither possible to introduce a meaningful compliance mechanism nor to achieve the ICRC’s aim to converge the standards for detention in international and non-international armed conflicts. Instead the resolutions focus on a state-driven process and seem to sideline the ICRC (See Resolutions 1 and 2 of the 32nd ICRC Conference).

These are just some indications which suggest that we might currently observe significant structural changes in the way law is operating as framework for international relations. Suffice it to mention that other elements of the international rule of law which the article identifies are confronted with comparable challenges. In this light, Robert McCorquodale has made an important contribution to identifying the functions, objectives, and the intrinsic value of such a concept. He has developed a definition which offers a standard for assessing the current state and future direction of the international rule of law in a changing global order. At the same time, Simon Chesterman’s post suggests that some of these challenges might themselves have a impact on how to conceptualize a definition when it comes to “thick” standards, such as the inclusion of access to justice for human rights. Defining, conceptualizing and applying the international rule of law is a mutually dependant ongoing effort.

Two Excellent New ICL Treatises: O’Keefe and Guilfoyle

by Kevin Jon Heller

Nothing quite beats a good treatise. Until recently, however, students and scholars of international criminal law had few worthy choices — the best for students being Cryer et al’s An Introduction to International Criminal Law and Procedure and the best for scholars being Werle’s Principles of International Criminal Law.

Those books now have serious competition. Over the past few months, OUP has published two excellent ICL treatises written by leading scholars in the field. The first comes courtesy of UCL’s Roger O’Keefe.

9780199689040 (1)O’Keefe’s book will be of primary interest to scholars, because it is very long and extremely dense. But it’s a must-read, both for its comprehensiveness and for its impressive willingness to tackle fundamental theoretical issues in ICL, such as the nature of an international crime. The only downside to the book is its expense — £95. I hope OUP will release a paperback version in the near future.

The second treatise is written by Monash’s Douglas Guilfoyle.


Although ICL scholars will want to have it on their bookshelves, Guilfoyle’s treatise is aimed primarily at students. It is less dense than O’Keefe’s treatise, but it still manages to provide exceptionally clear overviews of all of the primary issues in ICL without sacrificing intellectual rigour. I particularly like the way Guilfoyle uses sidebars to provide examples and “counterpoints” regarding specific issues — they are uniformly helpful. The price of the treatise is also right at £37.

I’m sure excellent ICL treatises remain to be written. But O’Keefe and Guilfoyle’s entries have raised the bar considerably.

The Unredeemable Republic of China: Why Professor Lung-Chu Chen’s Theory of Effective Self-Determination May Be Harmful to Taiwan’s Statehood Claim

by Ming-Sung Kuo

[Dr Ming-Sung Kuo is an associate professor of law at University of Warwick (UK) where he has taught international law, constitutional and administrative law, and legal theory. He earned his JSD and LLM from Yale University and his LLB and another master degree from National Taiwan University.]

In Professor Lung-Chu Chen’s recent post on Opinio Juris, he reiterates his justification of Taiwan’s statehood, which I first heard when I was still a senior law student at National Taiwan University.  In this brief note, I aim to point out why Professor Chen’s theory of effective self-determination calls Taiwan’s statehood claim into question when the Taiwanese people continue to claim statehood in the guise of the Republic of China (RoC).

Professor Chen’s argument can be reformulated as follows.  First, the Taiwanese people had the right to self-determination in international law in the wake of World War II (WWII) and the 1951 San Francisco Peace Treaty.  Specifically, the Taiwanese people would be entitled to a sovereign state of their own through the exercise of their right to self-determination in a legitimate plebiscite if they wish to.  Second, the Taiwanese people have already exercised their legal right to self-determination through successive democratic elections, which jointly amount to what Professor Chen calls effective self-determination in the place of the abovementioned legitimate plebiscite.

Following these two points that concern the legality of Taiwan’s claim to statehood in international law, Professor Chen addresses the next question of whether Taiwan has actually achieved the legal status of statehood.  On this second question, his justification also consists of two parts.  Taking the Montevideo Convention of 1933 as the reference point, Professor Chen first argues that Taiwan has already acquired all the four Montevideo elements: a defined territory, a permanent population, government, and the capacity to enter into relations with other states.  In addition to these objective elements of statehood, he further points to ‘President Chen’s 2007 application for UN membership in the name of Taiwan’ as the evidence of the subjective element of Taiwan’s statehood in response to Professor James Crawford’s challenge.  Taken as a whole, Professor Chen urges that the international society recognize Taiwan as an independent, sovereign state.

Professor Chen’s four-pronged argument raises several interesting questions in international law.  For example, when did Taiwan achieve a full statehood in its evolutionary process of independence according to his theory?  How much weight should be given to what Professor Chen’s suggests as an implicit declaration of independence as expressed in Taiwan’s bidding for UN membership in 2007?  Did the subsequent KMT Administration’s shift in policy towards the UN suggest the withdrawal of the implicit declaration of independence?  What is the scope of the right to self-determination in article I of the ICCPR and ICESCR respectively?  Is it restricted to internal self-determination?  Are the Taiwanese people entitled to the right to external self-determination?

I restrict my note to the last question.  In the ICJ’s Advisory Opinion on Kosovo’s unilateral declaration of independence, it is noted that a right to independence (ie external self-determination) exists with ‘the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’ (2010 ICJ Report 404, 436, para 79), although declarations of independence have been made outside these two contexts.  As regards the Taiwanese people, to claim the right to self-determination must be based on the fact that Taiwanese people were subject to Chinese subjugation, domination, and exploitation after Taiwan was placed under the RoC administration, which exercised the power of belligerent occupation on the Allies’ behalf at the end of WWII given that Taiwan was never listed as a non-self-governing territory under the UN.  Thus, Taiwan’s claimed statehood must have resulted from the exercise of this right to independence through which the Taiwanese people rid themselves of the Chinese yoke.  In other words, achieving independence through this exercise of self-determination (whether it takes the form of serial effective referendums or a single plebiscite) must have amounted to the repudiation of the legitimacy of the RoC’s rule over Taiwan from 25 October, 1945 on.

Here is the catch.  Although the subjugated, dominated, and exploited people have the right to independence and to rid themselves of alien occupation forces through plebiscites or other forms of self-determination, they are perfectly free to choose to become the subjects of the occupation government.  And this is the problem with the case of Taiwan.  In light of the RoC’s unequivocal claim to reunite with Chinese mainland after the 1949 division, the Taiwanese people appear to have chosen to embrace the RoC (or rather to legalize the RoC’s rule over Taiwan since 1945) through their right to self-determination by insisting on the continuity of the post-1991 RoC on Taiwan and the pre-1991 RoC regime, not to mention the continued adoption of the title of the Republic of China.  In this light, claiming independent statehood for Taiwan would have to be based on the controversial right to secession rather than self-determination, which would only jeopardize the legality of Taiwan’s claimed statehood and which the Taiwanese people have persistently denied.

Professor Chen is right that without a plebiscite under the auspices of the UN, the Taiwanese people have already exercised their right to self-determination through successive democratic elections.  Yet independence is not the only possible result of self-determination, which Professor Chen seems to presume in the case of Taiwan.  Considering the two (or more) choices in any plebiscitary procedures as the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States ( suggests, I take issue with Professor Chen’s contention that the Taiwanese people have already given themselves an independent state through the exercise of the legal right to self-determination.  Failing to rid themselves of the RoC straightjacket, the Taiwanese people may instead get themselves into the one China trap by their self-determination in action.

Apple Rejects Game Where You Play a Palestinian

by Kevin Jon Heller

palestinegameThe game in question — from which the screenshot is taken — is entitled Liyla and the Shadows of War. Here is how the gaming magazine Hardcore Gamer describes it:

Liyla and the Shadows of War is a short, dark game about exactly what the title implies. You play as a father running home through a war zone attempting to collect his family and get them to safety as the bombs fall and the drone strikes mow down anything that moves.


At the start I navigated a few platforming sections, figured out how to avoid gunfire, made a couple of story choices, and even did a simple auto-run section where I had to control the jumping of two characters simultaneously. Of the 30-ish minutes of using the app, this was about 28 or so. The final two  minutes (and it might have been less, I wasn’t running a timer) were spent reading.

A game, right? Not if you’re Apple, apparently:

CiwVR6mUUAA4j4pThe gaming community is mocking Apple’s decision, and rightfully so. As Hardcore Gamer points out, “Liyla and the Shadow of War is a game. Having a serious message about a real-world conflict doesn’t make it any less so, and it’s insulting not just to the developers but to gaming in general to say otherwise.” Indeed, there is no way Apple actually believes that Liyla and the Shadow of War isn’t a game; it simply doesn’t want to host a game developed by a Palestinian that encourages thinking critically about Israel’s violence toward Palestinians. But rejecting the game on political grounds would itself be seen as political — correctly — so Apple comes up with a ridiculous pretext for rejecting it and hopes nobody notices.

I know what you’re thinking: doesn’t Apple has the right to avoid “political” games? Isn’t it smart business to stay out of the Israel/Palestine conflict?

Fair question. And in response I give you this:

screen568x568 (1)

Meet Israeli Heroes, an Angry Birds rip-off in which — according to Boing Boing — “you hurl cartoon missiles at vaguely Arabic-looking adversaries.” Currently available for free on iTunes.

So much for Apple’s political neutrality.

Liyla and the Shadow of War is still available for Android on Google Play. I haven’t tried it yet, but it has a 4.9 average from 333 reviews, so it’s obviously good. Check it out. Maybe you’ll have fun playing and learn something about life in Palestine in the process.

Which is precisely what Apple doesn’t want you to do.

An International Legal Agreement between the FARC guerrilla and the Colombian Government?

by Nicolás Carrillo-Santarelli

[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the La Sabana University, Colombia.]


The last few days have been quite intense in Colombian politics due to fierce arguments _between key political players about the prospect of considering the agreements entered into between the Government and the FARC group as international legal agreements.

The discussion began when the former General Prosecutor filed an application before the Constitutional Court, precisely asking it to declare, among others, that the agreements entered into between the Government and the guerrilla are international treaties. Afterwards, the President, Mr. Santos, seemed to be pleased with this idea and it was later announced that the negotiating parties agreed in Havana that the agreements will be considered as having an international legal nature, provided that the Colombian citizens vote in favor of what has been agreed upon._

Needless to say, the reason why this point has been so prominent in discussion lies in the fact that the very parties to the transitional justice negotiations have publicly avowed that the reason why they consider the peace agreements will equate with treaties is their desire to strengthen the agreements, providing them with an armor against eventual legal challenges against them. Indeed, the agreements would be protected, because apart from the fact that the State would undertake an international commitment with the FARC, which could not be set aside on the grounds of domestic provisions –as articles 27 of the Vienna Convention on the Law of Treaties and 3 of the ILC articles on State responsibility determine-; Colombian Constitutional law has a figure known as the “block of constitutionality”, according to which, among others, certain international norms acquire the status of constitutional norms and are therefore according constitutional supremacy over other domestic norms.

In light of this, I will briefly explore two issues: firstly, whether non-state actors as rebel armed groups can celebrate international treaties; and, secondly, if, provided that the agreements end up being treated as international legal agreements, whether they would indeed be protected from any challenges -from an international legal perspective.

International treaties between rebel groups and States?

As Jean d’Aspremont and others have expressed, international law is still mostly dominated by States in relation to the question of which subjects are entitled to create it. This is one of the reasons why global governance and other theories have gained relevance, because they may somehow offset some of the shortcomings of a system that is still excessively anchored on Statehood and thus lacks some flexibility when facing certain transnational and global challenges and realities –as Jan Klabbers has said.

That being said, the fact that States largely control the identity of law-makers evinces that they are can decide to empower other actors to also become law-makers. Considering that different actors may have international legal capacities to different extents, it is therefore possible for a given State to grant law-making capacities to a given non-state actor in an ad hoc way. That is to say, an actor can be given law-making powers for one single occasion. That would be useful if, for any reason, a State desires to enter into a bilateral treaty or to celebrate bilateral custom with a given non-state actor without conferring upon it the capacity of participating in the creation of international norms in future occasions.

Regarding this, it is useful to note that the International Law Commission itself said in 1966 that “other subjects of international law, such as international organizations and insurgent communities, may conclude treaties”. Likewise, the International Committee of the Red Cross, when commenting Protocol I to the 1949 Geneva Conventions, put forward the idea that unilateral acts of peoples fighting for self-determination made pursuant to article 96.3 generate treaty rights and obligations applicable between such group and parties to the Protocol._

Furthermore, we have the case of the Abyei arbitration. This case was examined in the Permanent Court of Arbitration, and was submitted on the basis of an agreement between Sudan and the Sudan People’s Liberation Movement/Army. If we consider that the celebration of international arbitration agreements reflects jus ad tractatum, this case confirms that States can grant treaty-making powers upon a given rebel group, even for one single case.

In light of the previous considerations, the argument that the agreements entered into between the FARC and the Colombian Government may be regarded as treaties is sound, considering that the State itself seems to be openly granting the capacity to the rebel group. If so, does it mean that the agreements are immune to legal challenges from the perspective of international law, considering that some of the supporters of this strategy express that such agreements fall under common article 3 to the Geneva Conventions? Not necessarily so.

The subsistence of possible challenges to the agreements

If the FARC-Government agreements end up being international treaties, they may still be open to criticism and legal challenges. This is due to several factors. Firstly, there is the issue of jus cogens and impunity. Why so? Some political actors and NGOs as Human Rights Watch have expressed concern that the agreements on justice and victims may lead to impunity of serious violations, including international crimes. While the idea of alternative sanctions is not questioned as such, since States may decide to use them in exceptional case to facilitate transition, international human rights case law has so far said two things: amnesties are prohibited not only when granted to State agents (the so-called self-amnesties) but also to agents of non-state entities, and that there is a minimum proportionality between the conduct and the punishment that must be respected lest there is impunity.

Then, bodies as the International Criminal Tribunal for the former Yugoslavia have voiced that acts that grant impunity to international crimes and to violations of peremptory law lack validity, regardless of their being domestic or international acts; and it is well known that international treaties cannot circumvent the observance of jus cogens. Hence, if it is regarded that the agreements do provide impunity, a question to be settled and which may be explored in a future article, they would be invalid even if adopted in the form of treaties. Moreover, it has been argued that the Colombian “block of constitutionality” must respect peremptory law at all times.

Some may question if the risk of eventually declaring the agreements as contrary to jus cogens –provided that they do contradict it, which I will not address here- are real, given uncertainties about the content of peremptory law and the scarcity of case law striking down treaties on the basis of their contradicting jus cogens. Still, the risk exists: bodies as the Inter-American Court of Human Rights have condemned amnesties granted by States to non-state agents and will likely end up deciding on a case involving the Colombian agreements, being its decisions binding for Colombia; and foreign actors and activists may seek to use universal jurisdiction or transnational litigation bases against those benefiting from the agreements by arguing that international crimes admit no statute of limitations and that, if there if impunity, the agreements lack validity. Those actors and bodies can invoke international legal arguments, and they may end up being received. After all, authors as Roland Portmann have argued that peremptory law arguments could have been subtly considered in ATCA litigation in the U.S., the very Inter-American Court of Human Rights has found that rights and principles as those linked to non-discrimination are peremptory; and bodies as the European Court of First Instance of the European Union demonstrated its willingness to examine compatibility with jus cogens in the Kadi case. The threat of legal challenges that rely on peremptory law arguments, and the possibility of those challenges being examined and admitted, will remain in spite of debates in doctrine about peremptory law.

Additionally, it is important to recall that, to prevent fragmentation, treaties must be interpreted in a systemic way, in light of other applicable international norms, which includes those human rights and criminal norms that oppose impunity. Thus, the agreements would have to be interpreted in a way that ensures that there are no de facto amnesties. Finally, agreements with rebel groups, as those of common article 3 have limits. For instance, agreements entered into under article 6.5 of Protocol II cannot grant impunity to serious abuses, as noted by the ICRC.


The transition from armed conflict to peace is necessary in Colombia. That being said, it is necessary to make sure that the content of the peace agreements respects international public order and legality. If this is not ensured, the very peace process could be at risk in the future, given the possibility that foreign and international actors investigate abuses arguing that there was impunity, as the International Criminal Tribunal for the former Yugoslavia itself warned in the Furundžija case.

Symposium: Janelle Diller’s Response to Robert McCorquodale

by Janelle Diller

[Janelle Diller is Paul Martin Sr. Professor of International Affairs and Law at the University of Windsor Faculty of Law (Canada), on leave from the International Labour Organization (ILO). Her views do not necessarily reflect the ILO’s positions.This is the fourth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here, the third here and the fourth here.]]

By insisting on clarity in approaching the “rule of law” at the international level. Robert McCorquodale significantly advances the debate on this important subject. It is indeed inappropriate, as he cogently argues, to use the same institutional and procedural elements to assess the operation of the rule of law in national and in international systems. However, this argument does not necessarily lead to acceptance of two separate and distinct concepts relating to the rule of law — an “international rule of law” and a “national rule of law”.

An alternate approach to a bifurcated system considers the “rule of law” as a single umbrella concept that operates across international, national and other legal orders. This approach is reflected in UNGA Res. A/67/1 that applies the rule of law to all relevant actors “at the national and international levels” (McCorquodale at n.6). Instead of using the term “international rule of law”, the UNGA Resolution refers to “international order based on rule of law” and “rule of law at the international level”. This vision sees a single “rule of law” principle acting through pluralistic legal orders. This umbrella concept is sourced to shared meta-values and principles in international society. For example, the General Assembly recognized that “there are common features founded on international norms and standards which are reflected in a broad diversity of national experiences in the area of the rule of law”. As the Resolution reflects, these shared values and norms are given effect through instrumental frameworks that commit States and non-state actors to action at international and other levels, including public and private governance and dialogue mechanisms, and arrangements for sharing responsibility for development and other matters of common concern.

The umbrella concept of rule of law also permits room to accommodate both thin and thick elements in the understanding of the rule of law. The umbrella approach understands the rule of law itself as a general principle of international law based on the social and legal legitimacy of shared values and normative principles which are adapted in practice to particular circumstances.   As suggested by constructivist IR theory, values with social legitimacy emerge through a process of active participation of relevant social actors – in this case, States and relevant non-state actors in international society. Such values receive more concrete articulation through international norms and standards as a function of their predictability, generality and other criteria of legal legitimacy (Brunée and Toppe, Legitimacy and Legality in International Law). The legitimacy that undergirds the umbrella rule of law means that, as McCorquodale asserts, varying degrees of adherence to the rule of law do not mean there is no such value-laden concept. (p. 15) Indeed, as in the UNGA resolution, the linkage between legitimacy and practice leads to the further inquiry of whether and how the incomplete actualization of the elements of the rule of law at international and other levels is related to the degree of effectiveness – or ineffectiveness – of the instrumental frameworks for governance, cooperation and shared responsibility among State and non-state actors at international and other levels.

McCorquodale’s recollection of Bishop’s concepts and ideals of an international legal order tied to an “international rule of law” is a useful starting point that calls for updating. (p. 16) That listing, compiled a little more than a decade after the creation of the United Nations, reflects its foundational elements: reliance on law instead of arbitrary power; settlement by law instead of force; and cooperation for social aims in a way that promotes the values of freedom and human dignity. A recent comprehensive mapping of UN and other international instruments and non-state actor statements demonstrates the further development of that foundation. Four interdependent meta-values of a globalized system based on the rule of law were identifiable: freedom, dignity, equity/justice and peace/security. (2016 update of a 2003 ILO-sponsored study for the work of the World Commission on the Social Dimension of Globalization). The study of instruments covering a wide range of international concerns found that these meta-values are articulated in the form of concrete normative principles addressing such issues as: human rights, equality –as between individuals and separately between States, tolerance, democracy, and respect for the environment. To put these principles in practice, the study identified in the instruments a number of internationally-agreed frameworks by which States and non-state actors share responsibility for international development and other cooperation (including Bishop’s social aims as well as economic, environmental and crime prevention goals). Elements necessary for the effective governance of States, markets, and international organizations at internal and international levels were also ascertained.

The commitments in many of the instruments linked international and national action to help achieve the meta-values and normative principles. This integrated approach builds a coherence of purpose and synergy of operation in the application of the rule of law across the pluralistic legal system. As McCorquodale observed, human rights indeed form part of the system; at both international and national levels, they serve as normative outcomes and enabling processes to give effect to the meta-values of human dignity, freedom and equity. The procedural rights identified by McCorquodale – fair trial, liberty, equality and non-discrimination –indeed serve an important purpose as both rights and enabling conditions; however, the exclusion of other human rights in his construct of rule of law is subject to debate (p. 17).

McCorquodale rightly demands that the international system’s arrangements for compliance be assessed on its own terms, not in comparison with national institutions. The various common elements and purposes of the rule of law, are applied in different ways and means depending on the legal order concerned . His “patchwork” coordination of dispute settlement through the myriad of international courts and tribunals in important spheres rather than a single court is a useful perspective on the issue. However, this leaves unanswered how to achieve satisfactory compliance with the rule of law’s meta-value of equity/justice. The need for coherence in advancing compliance with the rule of law across important areas of common concern remains without a predictable solution in practice. The “web of discourse” across judicial bodies (McCorquodale, p. 23) does not yet adequately address the dissonance that arises in practice where mandates overlap (e.g., the European Court of Human Rights and the European Court of Justice). In addition, gaps in international judicial enforcement remain, notably in relation to the international responsibility of international organizations. The recent drafting of the International Law Commission’s articles on international responsibility, while focused on secondary rules, provides some normative advancement essential to advancement toward effective dispute settlement in this area. It suggests, for example, that the international responsibility of international organizations includes the responsibility not to commit, or to conspire to commit, violations of peremptory norms. The organizations are even to cooperate to bring such a breach to an end and to not recognize the unlawful situation as lawful or to aid or assist in maintaining the situation. (ILC articles 41 and 42, ILC Commentary to article 41, para 1).

Beyond peremptory norms, the ILC articles further advance the rule of law in the international organization’s legal order by applying rules of customary international law to the United Nations and other international organizations where such rules are relevant to the functioning entrusted to them. (ILC Commentary to article 41) It is important to keep in mind that the functions of the organization being exercised in a given situation play a determinative role in the nature of the international obligation. As an administrator of territory with functions including to maintain public safety and security and to fight impunity, the UN, acting as or through the pubic authority of the State, would be obliged to respect the customary international law and treaty law obligations of the State (by operation of pacta sunt servanda). This reasoning supports the Ombudsperson’s conclusion in Kosovo that, by creating UNMIK as a surrogate state, the UN had imposed all ensuing obligations of the State to secure human rights to everyone within its jurisdiction.   McCorquodale’s further proposal that norm-making in itself creates such obligations (p. 24) beyond administration of territory may only be relevant where the norm-making function concerns human rights norms based on the organization’s own Charter obligations (as in the case of the United Nations).

Symposium: Rule of Law, Internationally

by Joost Pauwelyn

[Joost Pauwelyn is a Professor of Law at the Graduate Institute of International and Development Studies in Geneva and Visiting Professor at Georgetown University Law Center. This is the fourth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here and the third here.]]

Both domestic and international normative regimes may limit our freedom and affect our daily lives. As a result, as Prof. McCorquodale implies, both need to be subject to the rule of law or mechanisms that keep the exercise of power accountable (in earlier work, I referred to this as “principled monism”). The fact that international affairs are, at this stage, not always conducted in line with the rule of law (just think of UN immunity and the Haiti cholera case) does not mean that there cannot be, or should not be, a rule of law at the international level.

Two tensions struck me, however, in Prof. McCorquodale’s article, when it comes to defining the rule of law operative at the international level. Firstly, the article, in my view correctly, distinguishes the rule of law from “the existence of, and compliance with, substantive international law obligations” (p. 15). On that ground, it does not include “all human rights in the rule of law”. Later on, however, the definition of international rule of law provided does include “access to justice to protect human rights”. Why only access to justice to protect some substantive rights and not others? Does this definition not imply, contrary to the author’s earlier statements, that human rights are part of the rule of law (if you must provide access to justice to protect human rights, surely, you must have human rights in the first place?). Conversely, does it put economic or contract rights outside of the access to justice commitment?

Secondly, the article, once again rightly so in my view, argues for the existence and application of a rule of law also at the international level. As noted earlier, when our freedom is limited, why should we care where the freedom-restricting norm comes from (national or international), who made it (states, parliaments, regulators or private standard setters) or what form it takes (formal or informal law)? Taking the rule of law seriously means it should apply across the board (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763).

At the same time, Prof. McCorquodale keeps repeating that “the application of the concept and definition of the national rule of law to the international system is misconceived” (p. 15). To the extent this is meant to say that implementing the rule of law at the international level may take different forms and institutions, it is unobjectionable. If it means that the mere nature of the international system fundamentally changes the requirements or very definition of the rule of law, I find it difficult to accept (hence, I am not sure it is correct to define an international rule of law separately from a domestic rule of law). Accountability domestically may work in some forms (say, parliamentary approval or ministerial responsibility), at the international level in other forms (say, state consent, peer review or principal-agent controls). But that does not mean we need one definition of accountability domestically, another internationally. Indeed, domestic institutions may ensure or assist in the implementation of an international rule of law (Kadi case?). Conversely, international mechanisms may operationalize or facilitate domestic rule of law (think of a WTO or investor-state tribunal condemning due process or denial of justice violations or nudging local governments away from discriminating foreigners). In today’s context, maintaining bright line distinctions between domestic and international legal regimes, formal and informal law, public and private standard setting is increasingly artificial.

Another bifurcation, black or white distinction, that is common, and also Prof. McCorquodale implies it, but that is misleading, is that separating rule of law from politics (at p. 3: “the rule of law … is a crucial part of the refutation of international law as being either politics or lacking in normative legality”). Rule of law (reducing exit options) is enabled by politics (understood here as voice, contestation, control, state or popular expression of preferences); conversely, rule of law (less exit) can only be maintained with a sufficient level of politics (or voice). In The Transformation of World Trade (104 Michigan Law Review, 2005, 1-70) I explained this bi-directional interaction in the context of the global trade regime. It is not a story from politics to law, but law enabled by and constantly requiring politics. In my more recent The Rule of Law Without The Rule of Lawyers? (109 American Journal of International Law 761-805), I show how today’s (granted, limited) rule of law in the WTO is enabled by a relatively inexperienced pool of panelists, most of whom are government officials, many of whom are not even lawyers, a pool that is, however, representative and inclusive. The more experienced pool of investment arbitrators, far less diverse and more polarized, coming mainly from private practice, in contrast, led EU Trade Commissioner Malmström to tweet that: “We want the rule of law, not the rule of lawyers.”

In that article I used “rule of law without rule of lawyers” tongue in cheek, without really defining either notion. Prof. McCorquodale, in his article, took the extra step that, so far, many (including this author!) avoided. Doing so he clears a major path ahead, tackling in a clear but pragmatic way core questions of definition, implementation and monitoring of the rule of law irrespective of where the action takes place.

Symposium: The Rule of Law: Thick, But Not Too Thick?

by John Tasioulas

[John Tasioulas is Yeoh Professor of Politics, Philosophy and Law at the Dickson Poon School of Law, King’s College London and Visiting Professor of Law, University of Chicago Law School. This is the third post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here and the second, here.]

One can, without linguistic impropriety, use the phrase “the rule of law” to denote a number of significant though distinct ideas. Most expansively of all, it can be used to refer to the rule of good law: to all of the values, running the gamut from justice through charity to efficiency, that law should embody or promote. This value catalogue, although probably very long and diverse, would not lack utility, since not everything we value need fall within the legitimate ambit of legal concern.

Still, those who have seriously meditated on the rule of law usually had something more specific in mind than the rule of good law. They have typically sought to articulate the ideal of the rule of law in a way that satisfies two constraints. First, a constraint of pluralism: the rule of law is only one evaluative standard, among various others, for assessing laws and legal institutions. Second, a constraint of unity or coherence: the various demands of the rule of law must be the expression of a coherent underlying ethical concern. Given the pluralism constraint, that underlying concern cannot merely consist in the ultra-minimal one of relevance to the ethical assessment of law.

Notoriously, there are ‘thicker’ and ‘thinner’ articulations of the rule of law, the former often called ‘substantive’, the latter ‘formal/procedural’, but they all typically seek to satisfy the desiderata of pluralism and coherence.

Ronald Dworkin, a leading proponent of the thick view, characterizes the rule of law as ‘rule by an accurate public conception of individual [moral] rights’ (R Dworkin, A Matter of Principle (Harvard University Press, 1985), 11-12). Since not all of the values relevant to the assessment of law are rights-based considerations, the pluralist constraint is satisfied. Meanwhile, coherence is secured through the organizing idea of moral rights that are appropriately reflected in law. Yet Dworkin’s view seems too expansive insofar as it equates the rule of law with justice generally, at least to the extent that the latter bears on law. This is because a venerable tradition of thought – one that includes Grotius, Hume, Kant and Mill – construes the concept of justice as picking out just those moral duties that have associated rights.

Hence, the motivation to adopt a ‘thin’ account of the rule of law, one centring on a series of formal and procedural requirements, e.g. that laws be prospective, framed in general and accessible terms, not constantly changing, and applied consistently by officials (see the classic recent formulation in J. Raz, ‘The Rule of Law and its Virtue’, Law Quarterly Review 93 (1977): 195-211). The limited scope of the rule of law, thinly understood, means that a legal system can in principle satisfy it in spite of being deficient with respect to values such as human rights or democracy. But the up-side is that the desideratum of pluralism is secured. On the other hand, the coherence of the thin view consists in the fact that its formal and procedural requirements pay proper tribute to the autonomy and dignity of those subject to the law, enabling them to make important choices against the background of being able reliably to predict how the law is liable to impinge on their lives in various scenarios. Like many with ‘thick’ sympathies, McCorquodale finds the thin view all-too minimalist, dismissing it as giving an account not of ‘the rule of law’, but of ‘rule by law’.

McCorquodale’s article offers a rival conception of the rule of law, which he then proceeds to show is applicable to international law. I focus here only on the first stage of his argument. For McCorquodale, the rule of law incorporates four elements conceived as objectives: “to uphold legal order and stability, to provide equality of application of the law, to enable access to justice for human rights, and to settle disputes before an independent legal body” (p.8) We may interpret this account as seeking to fuse the merits of the thick and thin accounts, while jettisoning the limitations of each, by plotting an intermediate position between them. For, arguably, three of its elements would be endorsed by most adherents of the thin view, so that it is the addition of access to justice for human rights that constitutes the distinctive ‘value added’ of his account relative to the former view. Since, presumably, not all moral rights are also human rights, this distinguishes his position from the even thicker Dworkinian version, thus avoiding the objection that he equates the rule of law with justice insofar as it bears on law.

The first question about McCorquodale’s account centres on what he means by human rights. A close reading of his article suggests he has in mind those rights laid down in international human rights law. But how can the content of an ethical value or norm, such as the rule of law, be dependent on a contingent and fallible human creation, such as international human rights law? Isn’t human rights law properly seen as responsible to a background morality of human rights to which it gives inevitably imperfect expression? This is why Dworkin speaks of an ‘accurate public conception’ of moral rights. Moreover, even if we were persuaded by McCorquodale’s assurances that the relevant human rights legally bind all states, and even non-state actors such as corporations, the fact remains that they might not have been binding or could cease to be so in the future. Would the demands of the rule of law fluctuate in line with these changes?

Let’s assume that McCorquodale either revises his view so as to appeal to human rights of morality, rather than law, or else has that he has some compelling defence of his reliance on legal norms. The question then arises: why add human rights, in particular, to the familiar formalist constraints? After all, there are many values that the law should advance, other than human rights, such as peace, the preservation of nature, humanitarian concern, economic efficiency, and so on. Is it not simply arbitrary to conjoin human rights, from all these other legally-relevant values, to the formalist requirements? In other words, in trying to take a stand between thick and the thin, McCorquodale appears to fall foul of the desideratum of unity or coherence.

The likely response is that he is not incorporating all human rights into the rule of law, but only some of them. On the one hand, he claims that the rule of law requires access to justice for all human rights (p.18). On the other hand, he asserts that not all human rights are therefore part of the rule of law, instead only some are (p.7). Presumably, the included human rights will be that sub-set that suitably coheres with the three formalist requirements. The human rights that are ‘within the rule of law’, McCorquodale says, include ‘the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against’. Their inclusion is on the basis that they are ‘procedural rights directly relevant to the rule of law’. (p.17).

But this move confronts two hefty challenges. The first is that it remains unclear what the principle of selection is for determining which human rights form part of the rule of law. McCorquodale’s answer seems to be that these are procedural rights, but the sense given to ‘procedural’ is fuzzy and overly expansive. It is not at all obvious in what sense the rights to liberty and non-discrimination, which figure in his list of incorporated rights, are procedural rights in a way that, for example, the rights to life or to political participation are not. Absent an adequate explanation, his account of the rule of law lacks coherence, even if we grant the somewhat nebulous thesis that while the rule of law enjoins the protection of all human rights not all such rights are part of the rule of law.

The second challenge is that, even with a convincing principle of selection, we might discover that his view ultimately collapses into a version of the thin view. This is because the latter view can be made to encompass some human rights, i.e. those that integrate with its concern to safeguard human autonomy and dignity by means of the predictability achieved through compliance with the familiar set of formal and procedural demands. The thin view of the rule of law, for example, incorporates a strong prohibition on retrospective criminal punishment, which itself reflects a corresponding human right. It also incorporates a demand of formal equality in the application of law – treating like cases alike – that also plausibly implicates a human right. So, the thin view seems compatible with a more limited, yet also more coherent, embrace of human rights within the rule of law ideal. If McCorquodale seeks a more generous embrace of human rights within the rule of law ideal, without going to the extreme of incorporating all of them, he needs to be explain how this can be achieved without sacrificing the overall coherence of the ideal, turning it into an ad hoc, but incomplete, list of legally-relevant values.

Symposium: Lies, Damned Lies, and the International Rule of Law

by Simon Chesterman

[Simon Chesterman is Dean and Professor at the National University of Singapore Faculty of Law. This is the second post in the Defining the Rule of Law Symposium, based on this article (free access for six months). You can find the first post here.]

Imprecision of meaning in international law is rarely accidental. Diplomacy is an architecture of compromise, with states routinely adopting malleable or self-serving definitions depending on their interests or aspirations.

So it is with the international rule of law. A decade ago, every member state of the United Nations recognized the need for “universal adherence to and implementation of the rule of law at both the national and international levels” and reaffirmed their commitment to “an international order based on the rule of law and international law.” Any term that can garner such universal support, from Norway to North Korea, is either so vague as to incorporate radically different interpretations of its content or so vacuous that there is no content to speak of.

Academics, generally, prefer precision. Robert McCorquodale is to be commended for his thoughtful and thought-provoking effort to pin down what the “international rule of law” can and should mean. In particular, he is right to push back against simplistic analogies between the concept of the rule of law at the domestic and international level. The function that law plays in a notional horizontal society of equals — the sovereign equality that is the founding myth of international law — is radically different from the role it plays in a vertically ordered state in which power is distributed by reference to a sovereign or in accordance with some form of constitution.

But this structural difference also points to the problem with McCorquodale’s approach to defining the international rule of law. He generously cites my own work in this area, which he correctly identifies as seeking to offer a functionalist approach to what the rule of law might do at the international level — viz. “the application of rule of law principles to relations between states and other subjects of international law”. Such a minimalist definition of the rule of law, he notes in passing, “will suit those states which are resistant to a broader understanding of international legal obligations” (p.289). This is a curious challenge, but points to the larger concern that I have with his own maximalist (thick, substantive) conception of the rule of law as necessarily encompassing the objectives of “legal order and stability; equality of application of the law; protection of human rights; and the settlement of disputes before an independent legal body” (p.292).

The inclusion of human rights in particular begs the question of whether a “thick” conception of rule of law is required in the first place. I will not revisit the thin/thick (or formal/substantive) debates here, but would align myself with Raz’s argument that a “thin” conception does not relegate one to the arbitrary exercise of power in a rule by law state. At the domestic level, this battle is played out when McCorquodale deploys Tom Bingham’s stirring response to Raz — though it is a response essentially based on a definitional shift that the rule of law means the rule of good law (pp.283-284).

At the international level, such a move is even more problematic. Indeed, warnings against a priori jumps to incorporate human rights can be found in the foundational human rights texts themselves. The Universal Declaration of Human Rights, which McCorquodale cites, provides in its preamble that “human rights should be protected by the rule of law”. Simply as a matter of construction it is tautological to define the rule of law as including the thing it is intended to protect. Similarly, McCorquodale cites (p.283) the Declaration on the Rule of Law, italicizing for emphasis the relevant phrases: “[We] reaffirm our commitment to the rule of law and its fundamental importance for … the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development.” (The ellipsis, it should be noted, skips over the statement that the rule of law is also fundamentally important for “political dialogue and cooperation among all States”.)

McCorquodale sensibly does not seek to incorporate all human rights, but when he attempts to specify which to include, he falls back on the domestic law analogy that he has earlier so rightly spurned. Hence his list includes “the right to a fair trial, the right to liberty, the right to equality and the right not to be discriminated against” (p.293). All very important, but clearly linked to domestic law traditions and problems.

The justification for the inclusion of these specific human rights is linked to their presence in the “main global human rights treaties” and status as customary international law (p.293). The fact that these are obligations on states is not controversial, but folding them into a definition of the international rule of law raises additional problems when considering McCorquodale’s other contribution in his article: the attempt to find a definition of the rule of law that applies not only to states but also to international organizations and other subjects of international law.

It is arguable, for example, that the United Nations is subject to human rights obligations despite not being a party to any of the “main global human rights treaties”. Nevertheless, to assert that rule of law principles that apply to the UN and other international organizations incorporate such obligations must be based on more than a claim that such an assertion is “appropriate” (p.300). This is borne out in the Kadi cases and the UN’s Guiding Principles on Business and Human Rights, on which McCorquodale seeks to rely. In the former, the European Court of Justice applied rule of law principles in interpreting human rights obligations that are explicitly provided for within the EU legal system. In the latter, John Ruggie has been criticized by NGOs and activists precisely for his unwillingness to assert without foundation that corporations are bound by human rights obligations. (For more on this, see my “Lawyers, Guns, and Money”.)

McCorquodale does not go so far, but he concludes that section of his piece with a telling coda: “the application of human rights to the operations of the UN and other international organizations, as well as their applicability to non-state actors, are consistent with the human rights objective of the international rule of law” (p.303).

Does the rule of law really have a “human rights objective”? One can make a strong case that the rule of law makes human rights possible — that a world ordered by law is more predictable and stable, more prosperous and more harmonious, than one ordered solely by power. This is the transition that, over centuries, was made in states that went from “rule by man” to “rule by law” and now “rule of law”. But the content of that law at the international level is distinct from the ordering principle that establishes the conditions for law in the first place.

Diplomacy, once again, is an architecture of compromise. McCorquodale has made a significant contribution to debates over what the international rule of law can and should mean, though his conclusions are more normative than descriptive. My concern is that by seeking to blend form as well as substance, and to attribute to the rule of law an agenda that many states would equate with a Western liberal political bias, the structure’s foundations will be unable to bear the burden placed upon it.

This is not to suggest that human rights are unimportant. It is a signal achievement that human rights have moved from aspiration to norm in a mere seven decades, with all countries now submitting themselves to the Universal Periodic Review, for example. Such an achievement is clearly attributable in part to widespread acceptance of the rule of law at the national and international level. And, as member states agreed in the Declaration on the Rule of Law, human rights and the rule of law (and democracy) are “interlinked and mutually reinforcing” — but they are not the same thing.

The U.S.-Taiwan-China Relationship and the Evolution of Taiwan Statehood

by Lung-chu Chen

[Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations. He is the author of The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), and An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015).]

On May 20, 2016, Tsai Ing-wen will be inaugurated as the first female president of Taiwan. Tsai is the first member of the Democratic Progressive Party (DPP) to hold the presidency since the administration of Chen Shui-bian from 2000 to 2008. She will be the first DPP president to enter office with a DPP majority in the Legislative Yuan—a crucial condition for effective governance never afforded to Chen. The DPP has historically been associated with the movement for greater national independence for Taiwan, and, as many commentators have observed, the shift in power will reinvigorate the debate over Taiwan’s status under international law.

As I write in chapter two of my book An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015) and in my new book The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), the past thirty years have witnessed a profound and persistent movement of democratization—and Taiwanization—that runs counter to the People Republic of China’s (PRC) unrelenting claims of ownership over Taiwan. After decades of de facto independence and the emergence of a vibrant democratic society and national culture, the Taiwanese people will never be content to see their country become the next Hong Kong under a flawed “one country, two systems” formula. In my view, the time has come for the world community to support the Taiwanese people in achieving recognition of an evident fact: Taiwan is a state under international law, not a part of China.

Taiwan easily satisfies the traditional requirements for statehood as embodied in the 1933 Montevideo Convention: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such. The PRC advances the fictitious claim that Taiwan is an integral part of China from time immemorial, but has never exercised control over Taiwan for a single day in its 67 years of existence since its founding in 1949. The situation is exacerbated by China’s campaign to strong-arm, coerce, and bribe states and international organizations to further isolate Taiwan. (The PRC’s insistence that Taiwan identify as a part of China as a condition to participating as an observer at the World Health Assembly provides a recent example.) Under the 2005 Anti-Secession Law, Chinese leaders arbitrarily empowered themselves to respond with force if Taiwan declared the obvious fact of its independence. The PRC’s unceasing threats of the use of force against Taiwan encroach upon the right of the Taiwanese people to self-determination and endanger the peace and security of the Asia Pacific and even the world community.

Some scholars, such as James Crawford in his The Creation of States in International Law (Oxford University Press, 2006), have written that Taiwan cannot be a state because it has not issued a declaration of independence from China. There is no precedent in international law for such a requirement. Even if there were one, President Chen’s 2007 application for UN membership in the name of Taiwan implicitly declared that Taiwan was an independent, sovereign, and peace-loving state that possessed the ability and willingness to carry out the purposes, principles, and obligations of the UN Charter. The move was tantamount to a “declaration of independence” addressed to all humankind.

I have advanced a solution to this stalemate based on a theory of the evolution of Taiwan statehood. I submit that Taiwan’s statehood is best understood in the context of an ongoing process of evolution propelled by the will of the Taiwanese people for self-determination and democracy. In chapter 12 of my new book, I stress that the time has come for an internationally supervised plebiscite on Taiwan’s future to be held in full view of the world community. This is not a new concept. It is a straight-forward application of existing international law.

It was not until 1887 that the Qing dynasty formally made Taiwan a province of China. Eight years later, following the Chinese defeat in the Sino-Japanese War of 1894-95, China ceded Formosa (Taiwan) and the Pescadores (Penghu) to Japan in perpetuity under the Treaty of Shimonoseki. In 1945, Japan surrendered control of Taiwan to the Allied forces, who delegated responsibility for military occupation of the island to the ROC army led by Chiang Kai-shek. In 1949, after the ROC’s defeat in the Chinese civil war, Chiang and his Kuomintang (KMT) supporters fled to Taiwan and established a regime in exile, imposing martial law, which lasted for 38 years until 1987. Taiwan remained a Japanese territory until the San Francisco Peace Treaty took effect in 1952. Under Article 2(b), Japan renounced all right, title, and claim to Taiwan. However, the Treaty’s framers were deliberately silent as to whom Japan was ceding the territory. It is important to note the San Francisco Peace Treaty—signed by 48 nations—superseded wartime declarations such as the Cairo Declaration and the Potsdam Proclamation.

In 1971, the United Nations General Assembly adopted Resolution 2758, expelling Chiang Kai-shek’s representatives and making the PRC the only lawful representative of China in the UN. In 1978, President Carter announced the United States would switch diplomatic recognition to the PRC while maintaining unofficial relations with the people of Taiwan. Following Carter’s announcement, Continue Reading…

Symposium: Defining the Rule of Law

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the introductory post in the Defining the Rule of Law Symposium, based on this article (free access for six months).]

References to the ‘rule of law’ in international law books, articles and blogs are everywhere. Yet very few of these authors set out what they mean by an international rule of law. Most of those who engage with the idea of an international rule of law dismiss it – almost with a shrug – as being impossible in a system without a clear binding governance process and without a court with uniform jurisdiction over all matters.

In my article – Defining the International Rule of Law: Defying Gravity? – which is published in the International and Comparative Law Quarterly, I offer a definition of the international rule of law. I also seek to show that an international rule of law can exist in the international system. My starting point is that, in order to understand the rule of law, and whether it can apply to the international system, it is necessary to clarify what are its key objectives. In my view, based on the writing of jurists such as Tom Bingham and by the Venice Commission, it is evident that the rule of law has four key objectives: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body.

International organisations have taken up the idea of the importance of the rule of law with considerable alacrity. For example, the Declaration on Principles of International Law refers to the ‘paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations’. Reference to the rule of law is found in Security Council resolutions on peacekeeping, good governance and post-conflict, as well as in statements by the World Bank and as a target in the Sustainable Development Goals. The Declaration on the Rule of Law was made in 2012 by a UN High-Level Meeting on the Rule of Law at the National and International Levels. The UN has provided a definition of the term, which it sets out on its rule of law website:

“The Secretary-General has described the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.

My difficulty is that almost all these statements and other attempts to consider the rule of law at the international level are really transpositions of the rule of law from national systems and national institutions to the international system. Given the considerable structural and institutional differences between national legal systems and the international legal system, this transposition is misconceived. Indeed, many of those who reject the possibility of an international rule of law also tend to confuse the compliance with international law with having a rule of law, or they expect that the rule of law is absolute: it exists or it does not exist in a legal system. This fails to understand the there are varying degrees of adherence to the rule of law. The Rule of Law Index shows this through its indexing of the relative compliance of states with the rule of law, where some states comply with most elements, some comply with very few and there are many in the middle. This must be equally applicable at the international level, where complete actualization of all the elements of the rule of law is unlikely and failure to attain them all does not mean there is no international rule of law at all.

So a definition of an international rule of law is possible if it is examined in terms of the four objectives of a rule of law: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body. I explain in the article that these objectives can be found in the international system. I include access to justice for human rights deliberately, because a rule of law without this justice element is a rule by laws and not a rule of law. The protection of human rights should also not be confused with the rule of law as, while the latter includes access to justice (such by a fair trial) within it, the rule of law does not include all human rights.

I explore some ways in which this definition of the international rule of law can be applied in the current international legal system. This includes the importance of pacta sunt servanda, which is part of customary international law (and probably part of jus cogens), as applying to all states (and non-state actors) and as part of the international legal order. It also includes the amazing array of international dispute settlement procedures. While there is no compulsory procedure before one court, there are certainly many areas of international law for which there is a means to settle disputes before an independent legal body. Of course, it remains difficult to ensure compliance by the UN and other international bodies with their human rights obligations, yet the notion of access to justice is present, especially in UN administered territories and has been applied to corporations, so there is a lack of adherence to the international rule of law and not the lack of its existence.

A new approach to defining the international rule of law will, hopefully, make it easier to see how it is applied internationally to international organisations, to states and to non-state actors acting transnationally. This could lead to increasing adherence to the international rule of law.

Symposium: Defining the International Rule of Law–Defying Gravity?

by Jessica Dorsey

This week, we are hosting a symposium on Defining the International Rule of Law: Defying Gravity?, (free access for six months) the latest article from Robert McCorquodale, the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. The article was recently published in the International and Comparative Law Quarterly.

The article’s abstract:

This article aims to offer a definition of the international rule of law. It does this through clarifying the core objectives of a rule of law and examining whether the international system could include them. It demonstrates that there can be a definition of the international rule of law that can be applied to the international system. This definition of the international rule of law is not dependent on a simplistic application of a national rule of law, as it takes into account the significant differences between national and international legal systems. It seeks to show that the international rule of law is relative, rather than absolute, in its application, is not tied to the operation of the substance of international law itself, and it can apply to states, international organizations and non-state actors. It goes further to show that the international rule of law does exist and can be applied internationally, even if it is not yet fully actualized.

In addition to Professor McCorquodale’s introductory and concluding remarks, there will be posts from Heike Kreiger, Janelle Diller, John Tasioulas, Joost Pauwelyn and Simon Chesterman. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

Planning for Detention

by Deborah Pearlstein

Picking up on Jens’ post about the Administration’s apparent lack of plans for holding detainees picked up in Iraq/Syria, I too found the Times report troubling. In part I suspect it was because I was immediately reminded of one of the findings of the many Pentagon investigative reports issued after the revelations of torture at Abu Ghraib and other U.S. detention facilities in Iraq. All apart from criticisms of changes in policy and legal interpretation, some of the harshest blame for the widespread nature of the abuse was the total failure of preparation. In particular, according to the report prepared by Lt. Gen. Anthony R. Jones, tasked with investigating the Abu Ghraib Prison and the 205th Military Intelligence Brigade in Iraq: “[P]re-war planning [did] not include[] planning for detainee operations.” The finding always seemed stunning to me, given the months long (or longer) lead up to the 2003 invasion, and the certainty from the beginning that the war was going to involve a significant U.S. commitment of resources, including ground troops. But the Pentagon was of course then laboring under Defense Secretary Rumsfeld’s preference for keeping forces light, insisting that it was possible to minimize the amount of supplies and surrounding support required to overthrow the regime. Of all the lessons out of the 2003 invasion and the years that followed, it seemed to me the failure of that attack-now-plan-later approach was among the clearest.

The latest U.S. engagement in Iraq and Syria is of course in key respects different. U.S. troops are there, we have maintained, to support the Iraqis in their efforts against ISIL. Our commitment of ground “personnel” has been steadily growing (making Congress’ failure to authorize the use of force in this new conflict even more problematic than it already was), but it is far, far from anything like the 2003 invasion and prolonged occupation. All the same, it is not as though we don’t have a series of models from past conflicts for how to handle the inevitable detention problem – models ranging from our own establishment of vast detention operations (in, e.g. World War II and after 9/11) to shared arrangements with allies (in, e.g. Vietnam and the 1991 Gulf War). All of these models have had issues, but some far far fewer than others. I got curious a few years back so finally did some digging and wrote up this little survey. Here, for example, is 1991 in sum.

Between January 22, 1991, when the first prisoner was captured, and May 2, 1991, when the United States transferred the final prisoner from its custody, U.S. detention facilities processed nearly 70,000 detainees, including through the use of battlefield hearings on prisoner status pursuant to Article 5 of the Geneva Convention (III)…. At the outset of hostilities, the United States quickly secured military-to-military agreements with allies France and the United Kingdom, setting forth the process to be followed by any capturing forces in processing prisoners of war or other detainees, initially through U.S. detention or medical facilities in theater. Although American military police and combat engineers raced to build prison facilities in theater from scratch, the United States also undertook a separate agreement with Saudi Arabia that authorized the subsequent transfer of many of these prisoners to existing Saudi facilities. By the end of the conflict, more than 35,000 prisoners were held in U.S. facilities, with 63,000 more held in Saudi Arabia…. Ultimately, the vast majority of prisoners in Saudi Arabia were repatriated to Iraq under ICRC auspices after Saddam Hussein issued a general amnesty. In all events, all prisoners had been transferred from U.S. custody by May 2, 1991. On August 23, the ICRC announced that the repatriation of Iraqi prisoners was complete. And the ICRC concluded that the “treatment of Iraqi prisoners of war by U.S. forces was the best compliance with the Geneva Conventions by any nation in any conflict in history.”

Don’t be misled, there were plenty of issues post-1991 (including controversy surrounding the resettlement of some Iraqi prisoners/refugees in the United States, described elsewhere in the piece), and plenty more differences between that conflict and this. But particularly as this Administration barrels toward transition, with no chance U.S. involvement in the region will have come to an end by January, now’s the time to put pen to paper with the allies, in the region and beyond, who share the anti-ISIL goal. Securing commitments, to resources and to upholding the detainee protections required by law, is tough. But not nearly as tough as paying the human rights and strategic costs of detention without a plan.

No Detention Plan for ISIS

by Jens David Ohlin

Today’s New York Times tells us that the Obama Administration currently has no active plan for holding Islamic State (ISIS) detainees captured on the battlefields of Iraq or Syria. The article makes clear that the lack of a plan isn’t because the Obama Administration hasn’t been thinking about the issue. In reality, the lack of a plan stems from the fact that the Obama Administration refuses to develop one.

Why not? After the fiasco known as Guantanamo Bay, the administration apparently has no interest in getting into the detention business. As in, not just the CIA not getting into the detention business — but the whole government not running a detention facility.

So this triggers an obvious question: Where will the detainees go?

One worry expressed in the article, echoed by former administration lawyer William Lietzau, is that the lack of a detention program might have perverse incentives. Some non-U.S. forces fighting against ISIS might decide that it is better to execute detainees rather than capture them, given the lack of a viable detention plan or facility run by the United States. It doesn’t take an international lawyer to know that executing prisoners, or soldiers otherwise hors de combat, is a war crime (and a particularly egregious one).

So far, the assumption has been that the Iraqi government will run a detention program itself (at least for detainees captured on Iraqi territory). According to the Times:

The potential for a large number of prisoners presenting these kinds of challenges — for somebody — has been raised at planning meetings for months both inside the Obama administration and with coalition partners, according to officials familiar with internal deliberations.

But with no good options, the Obama administration’s default policy is to take custody of the highest-value detainees for interrogation, something the United States has done only twice with Islamic State prisoners. Both were later moved to Kurdish prisons.

The assumption is that the Shiite-dominated Iraqi government or the Iraqi Kurdish forces will hold and, if appropriate, prosecute any suspected foot soldiers and sympathizers they capture.

“We’re not equipped for long-term detention,” said Col. Steve Warren, the spokesman for the American military forces in Baghdad. “We’re not set up here for that, so we’re not in that business.”

It is not clear to me what would happen to ISIS forces captured on Syrian territory by moderate rebels who are also fighting the Syrian government.  It doesn’t seem likely to me that they would transfer the detainees to the Iraqi government (but I don’t know), and they surely won’t transfer the detainees to the Syrian government.  And it is unclear to me whether these rebels will have the infrastructure necessary to run their own detention program.

Everybody Has Friends, Why Not the ICC: On the Court’s Power to Appoint Amicus Curiae Prosecutors

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor on the Bemba, et. al case]

A month ago the ICC Trial Chamber V(A) vacated without prejudice the charges of crimes against humanity against the sitting Kenyan Vice-President William Ruto. This case involved intense cross-parties allegations of witness tampering. Some of these allegations have been found serious enough to substantiate a warrant of arrest against a former journalist Walter Barasa, who is suspected of having influenced or sought to influence several persons to withdraw as Prosecution witnesses.

At trial, the Ruto Defense alerted the Prosecution and the Chamber to the conduct of certain Prosecution witnesses that, in its view, might be constitutive of offences against the administration of justice, to no avail. On May 2, 2016, it decided to take these allegations to the next level. It requested in essence that the Trial Chamber directs the Prosecutor to appoint an amicus to investigate several Prosecution witnesses, intermediaries and officials for the possible violations of article 70 of the Rome Statute.

The Office of the Prosecutor should not have to go to great pains to convince the Chamber to reject the Defense request. Although a Chamber may refer facts to the Prosecutor, the choice of whether and how to proceed, including what safeguards against possible conflicts of interests to put in place, is clearly hers. Specifically, pursuant to article 41(2) of the Statute, the Office shall act independently, and neither solicit, nor accept instructions from any external source.

However, the Ruto Defense may reconsider the relief sought and ask the Court to appoint an amicus curiae prosecutor directly.

Article 70 stipulates that “the Court has jurisdiction over […] offences against its administration of justice.” The Court determines on a case-by-case basis the best way to exercise this jurisdiction. Like any international organisation, the Court is free to act in any manner consistent with its founding treaty to achieve the goals of that treaty. For example, the Pre-Trial Chamber in the Bemba, et al. case appointed an independent counsel answerable directly to it to vet the evidence received from the domestic authorities for any privileged material.

Nothing in the statutory framework prevents the Court from appointing an amicus curiae prosecutor, at least with respect to the article 70 proceedings and in other cases, where appropriate. This may be the case, for example, when the allegations concern a member of the Office or a witness who testified for it. Proceedings contaminated by suspicion of collusion are unlikely to meet the standards of international justice. It is the Court’s duty to ensure such situations do not happen.

Under article 42(1) of the Statute, the Office is an organ “responsible for receiving referrals and any substantiated information on crimes […], for examining them and for conducting investigations and prosecutions before the Court.” This article merely describes the Office’s duties within the Court’s system without prohibiting their temporary transfer to another person or entity, if the good administration of justice so requires.  Neither the Statute, nor the Rules of Procedure and Evidence suggest that the Office of the Prosecutor has exclusive power to conduct investigations and prosecutions of the offences within the Court’s jurisdiction for the Court’s benefit.

Appointing an amicus to deal with the contemptuous conduct is normal practice at the ad hoc tribunals, including when the Prosecutor may be conflicted. Admittedly, there is an express provision to this effect in their Rules. Nevertheless, the parallel with the ad hocs seems apposite. No statute provides for the power of those tribunals to punish contempt or the modalities of its exercise; however, such powers are not expressly prohibited, either. Thus, the contempt cases are a good illustration of the international courts taking initiative to face challenges that have not necessarily been articulated by the drafters.

To allay the conflict of interests related concerns, the Office of the Prosecutor may envisage the creation of a special division dedicated exclusively to the investigation and prosecution of the article 70 offences. Such division should be comprised of investigators and trial lawyers acting independently and reporting directly to the Prosecutor or a special Deputy Prosecutor. Those who work interchangeably on the core crimes and article 70 offences naturally tend to employ the same techniques and strategies to both, losing in efficiency and speed, as what is good for the core crimes is usually bad for the article 70 offences. Specifically, whereas the core crimes cases are largely predicated on witness evidence, in the article 70 cases such evidence alone may be insufficient to sustain a finding of guilt. Having a focused team will enhance productivity and effectiveness in full respect of the Statute and the fair trial rights of the accused.

Weekly News Wrap: Monday, May 9, 2016

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: May 8, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Venice Academy of Human RightsBacklash against Human Rights? (4 – 13 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016. The Venice Academy of Human Rights is a centre of excellence for human rights education, research and debate. The  Venice Academy provides an enriching forum for emerging ideas, practices and policy options in human rights research, education and training. It hosts distinguished experts to promote critical and useful research, innovation and exchange of current knowledge. The theme Backlash against Human Rights? – International and regional human rights systems have witnessed remarkably outspoken critiques that emphasise a movement back towards the nation State and national sovereignty. The European Court of Human Rights is occasionally openly criticised, if not attacked, for overstepping its competencies and intervening in national affairs. National supreme courts reassert their own status and authority. Professor Robert McCorquodale, Director of the British Institute of International and Comparative Law in London, is the General Course Responsible “Two Steps Forward, One Step Back: Dancing to the Human Rights Beat”. Developments in human rights in recent years have seen the expansion of obligations on states, the extension of human rights responsibilities to international organisations and corporations, and the application in situations of armed conflict. There have also been resistance to these advances by groups within and across states. This series of lectures will explore these types of advance and resistance, and the opportunities and dangers these may indicate for human rights protections. The enrolment fee for the Venice Academy of Human Rights is – 1320 EUR including accommodation in a single room from 3-13 July – 1050 EUR including accommodation in a shared double room from 3-13 July – 700 EUR without accommodation. The fee includes: tuition, lunches on class days (Monday-Friday), refreshments, social events, accommodation (if applicable).
    Theme: Backlash against Human Rights?
    Dates: Monday, 4 July – Wednesday, 13 July 2016
    Faculty: András Sajó (opening lecture), Robert McCorquodale (general course), Helen Fenwick, Mark Goodale, Geir Ulfstein
    Participants: Academics, practitioners, PhD/JSD and master students
    Type of courses: Lectures, seminars, discussion sessions and panel presentations
    Number of hours: 34 hours
    Venue: Monastery of San Nicolò, Venice – Lido, ItalyInterested candidates should register by compiling the online application form. For any query about the Venice Academy please contact us at venice [dot] academy [at] eiuc [dot] org.
  • Admissions to the Venice School of Human Rights – Human Rights as Our Responsibility (24 June – 2 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016, early bird 15 April 2016 with 10% discount. The Opening Lectures of the School will be held by Prof. Manfred Nowak, Professor at the University of Vienna and EIUC Secretary General, one of the most renowned human rights experts (his academic career includes more than 400 publications) by Andrew Anderson, member of the Advisory Board of the Centre for Applied Human Rights at the University of York, Front Line Defenders on the Board of the EU Human Rights Defenders Mechanism, and by Hauwa Ibrahim, human rights lawyer who won the European Parliament’s Sakharov Prize in 2005. After a first session common to all participants dedicated to a general introduction on international systems of protection of human rights and related mechanisms, the programme will develop into the three thematic clusters – Business and Human Rights, Technical Progress and Human Rights and Violence against Women as Gender Based Violence. From ‘CEDAW’ To Istanbul And Beyond – among which participants will have to choose.The Venice School is addressed to graduate students from all academic backgrounds, students from the different regional masters in human rights and democratisation, to E.MA alumni as well as to human rights practitioners willing to deepen and improve their knowledge in human rights issues. Training language: All courses will be held in English. It is, therefore, essential that all participants understand and speak English fluently. All participants attending the Venice School of Human Rights will receive a certificate of participation upon completion of the course.The enrolment fee for 2016 Venice School of Human Rights is 1100,00 € and it will include:
    • tuition fee
    • lunches on class days
    • accommodation with breakfast included in a shared double-room for 9 nights (23 June – 2 July 2016) in Venice at the Crociferi residence (Crociferi)
    • free shuttle to/from EIUC site on class days at the starting and ending of lectures

    Interested candidates should register by compiling the online application form. For any query about the Venice School please contact us at veniceschool [at] eiuc [dot] org

Call for Papers

  • The Editorial Board of UCL Journal of Law and Jurisprudence 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. See here for a non-exhaustive list of potential topics. The editors accept articles of 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The (extended) deadline for submissions is 15th May 2016. Manuscripts must be uploaded via the submissions section on the website. For further information and guidelines for authors please visit the website.


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.

Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

by Daphne Richemond-Barak and Victoria Barber

[Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya, and a Senior Researcher at the International Institute for Counter-Terrorism (ICT). Victoria Barber is a Master’s candidate at the Fletcher School of Law and Diplomacy, where she focuses on International Security Studies.]

The emerging legal framework governing foreign fighters, whose importance is set to grow, epitomizes assumptions we’ve made about the good, the bad, and the ugly in Syria. While the international community condemns the recruitment of “foreign fighters” by ISIS, it condones the recruitment of “foreign volunteers” by the Kurds.

That the international community has come together to condemn the recruitment of foreign “fighters” joining the Islamic State in Iraq and Syria (ISIS) is unsurprising: Since the late 1960’s, it has repeatedly opposed the involvement of foreign individuals in conflicts to which their state of nationality is not a party. After decades of condemnation by the United Nations General Assembly and Security Council, an entire (albeit-ineffective) regime outlawing mercenaries emerged, primarily to stop Westerners from fighting in African conflicts. It sent a clear signal as to the illegitimacy of participating in someone else’s war.

Though it could have built on this well-established framework, which is grounded in state sovereignty, the UN chose a more restrictive and case-specific approach. It addressed exclusively the case of foreign fighters travelling to aid ISIS and other designated foreign terrorist organizations (FTOs) operating in Syria, such as Jabhat al-Nusra. It purposefully did not mention mercenaries, which are covered by the broader anti-mercenary regime. Nor did it address the case of individuals who leave their home countries to join other groups fighting in Syria – or, for that matter, to fight alongside the Syrian government and its allies.

Quite the contrary: Western states have generally taken a permissive stance vis-à-vis individuals who join the ranks of the People’s Defense Units (YPG), the Kurdish militia in Syria. For more than two years, foreigners from Australia, Canada, the United States, the UK, and other countries have joined the ranks of the YPG as “volunteers” who are, more often than not, warmly and publicly received upon their return home. The UK maintains that there is a distinction between joining ISIS and joining the Kurds, pointing out that British law is designed to allow for different interpretations based on the nature of the conflict. Similarly, the Dutch government states that, while joining the YPG is not a crime in and of itself, foreign fighters can still be charged for crimes they committed in service of that membership, such as murder. Israel, too, declined to prosecute, or even reprimand, a Canadian-Israeli woman who traveled to Syria to fight as a volunteer with the YPG. This tacit acceptance of “foreign volunteers” also benefits a smaller number of Westerners travelling to Syria and Iraq to fight alongside Christian militias like the Dwekh Nawsha in Iraq.

The discrepancy between the treatment of the “good” auxiliaries combating ISIS and that of the “bad” ones ISIS recruits sets a dangerous precedent: Why classify the YPG as an acceptable group to join, but ISIS, Hezbollah or al-Nusra as an unacceptable one?

The nature of the group plays a role. The Kurds are viewed as defending their ethnic heartland in Syria against a barbaric movement known for wanton murder and enslavement. They are longstanding inhabitants of the region, and have a vaguely defined moral claim to the Syrian northeast, though not, if we go by most of the international community, a claim to sovereignty. The Kurdish Regional Government is slightly further along the continuum, with an effectively autonomous region and its own quasi-army, the Peshmerga, fighting to defend its homeland, ethnic kin, and other minorities.

But as beleaguered as the Kurdish community in Syria and Iraq is, the logic of extending blanket legitimacy to Kurdish militia, while categorically denying it to others, is difficult to sustain at the level of international policy. Hamas and Hezbollah, like the Kurdish PKK, effectively govern territory and have evolved into organized and recognized bodies. Yet foreign participation in one of these groups is unlikely to be regarded as acceptable.

Assuming we draw the line along the state/non-state divide, which is the simplest, we should feel comfortable with the involvement of foreigners on either side of the Russia/Ukraine conflict. Both can be regarded as joining forces with a sovereign government, whether Ukrainian nationalists from outside the country or Russian separatists and ethnic kin backed by the Russian government. Yet international condemnation came down against both sides as diaspora populations volunteered to fight. This suggests that the state/nonstate divide is not, in and of itself, sufficient to distinguish between legitimate and illegitimate forms of intervention.

The distinction could instead come from the conduct of the organizations, allowing volunteers to join groups that act within the bounds of international law and respect human rights. This distinction is appealing, particularly given ISIS’ ruthless violence, but it is a poor barometer. Most groups involved in the Syrian civil war have been shown to commit war crimes, even if ISIS is in a category of its own. The YPG has itself been accused of using child soldiers and carrying out ethnic cleansing in the areas it controls. Khorasan, al-Nusra, and the Sunni Islamic militias are generally viewed as non-compliant with the laws of war, as are Syrian government-allied auxiliaries such as Hezbollah and Iraqi Shia militia. But “volunteering” for these latter groups has not drawn similar condemnation.

Alternatively, we might be tempted to regard volunteering as acceptable when the volunteer shares some kind of ethnic, religious or ideological roots with the group. This, however, could justify virtually any foreign participation in any conflict – particularly in Syria, where neither foreign fighters nor foreign volunteers are thought to receive any meaningful monetary compensation. Clearly, they must be joining the fight because they share some kind of ethnic, religious, or ideological affinity with a party to the conflict. This rationale, moreover, could apply to ISIS as much as the YPG. Taking the Ukrainian conflict again as an example, the same considerations would apply: ethnic Russians and Ukrainians travelling to Ukraine identify with the separatists and nationalists, respectively. A criterion relating to shared ethnic, religious, or ideological roots is thus unhelpful in delineating the contours of legitimate foreign intervention.

The upshot of this is that none of the suggested criteria provide a satisfactory justification for why states – and, for that matter, international law – view joining the YPG as acceptable, but joining ISIS (or al-Nusra) as reprehensible. This lack of regularity undermines existing policies, as it gives the impression that the distinction is based on ideology, which is a dangerous precedent to set. This development is especially alarming given that the Western-backed coalition (including Russia’s) objectives may not align with those of the YPG’s in the long-run. Kurdish territorial ambitions in a fragmented Iraq and Syria are likely to increase – not diminish – with battlefield success, pitting them against the US, Turkey, Russia, and Iran once the guns fall silent.

Should such a change of affinity occur in the fight against ISIS, it could undermine the legitimacy of the emerging regulatory framework governing foreign fighters and make for awkward moments. The UK government experienced some embarrassment when the prosecution of a Swedish national collapsed after it emerged that the group he had joined in Syria was receiving covert support from the British government itself.

Ultimately, the treatment of Western foreign fighters joining the YPG (while it may appeal to our present sympathies) is not as straightforward as many states have made it seem. In the absence of objective criteria, the Security Council’s strong and welcome measures against foreign fighters could be undermined. In the years to come, as Syria re-constitutes itself or further fragments into rump ethnic states, we may look back at today’s auxiliaries and ask ourselves with some confusion who were the “foreign volunteers” and who were the “foreign fighters” in Syria’s horrific civil war.


A Quick Bleg

by Kevin Jon Heller

Does anyone have an idea of what would be a fair hourly rate for someone to cite-check — both for substance and for accuracy of citation — a leading international law treatise published by a leading university press? Rates in pounds, dollars, or euros would be most appreciated!

Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

I read with great interest Jens’s excellent post about whether the US attack on the MSF hospital in Kunduz was a war crime. I agree with much of what he says, particularly about the complexity of that seemingly innocuous word “intent.” But I am not completely convinced by his argument that reading intent in the Rome Statute to include mental states other than purpose or dolus directus would necessarily collapse the distinction between the war crime of intentionally directing attacks against a civilian population and the war crime of launching a disproportionate attack. Here is the crux of Jens’s argument:

In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

I don’t want to focus on recklessness, because it isn’t criminalised by the Rome Statute. The lowest default mental element in Art. 30 is knowledge, which applies to consequence and circumstance elements — “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” So Jens’s real worry, it seems to me, is that reading the “intentionally” in “intentionally directing attacks against a civilian population” to include knowledge would mean a proportionate attack could be prosecuted as an intentional attack on a civilian population as long as the attacker was aware that civilians would be harmed “in the ordinary course of events” — a state of affairs that will almost always be the case, given that an attacker will engage in a proportionality assessment only when he knows that civilians will be incidentally affected by the planned attack on a military objective.

I’m not sure I agree. As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

To be sure, this analysis is probably not watertight. But I think it’s based on the best interpretation of the war crime of “intentionally directing attacks against a civilian population.” The key, in my view, is that the crime does not contain a consequence element — no harm to civilians is necessary. If the war crime was “intentionally directing attacks that cause harm to a civilian population,” the analysis would be very different: the crime would then consist of three material elements: a conduct element (intentionally directing an attack), a consequence element (harming a group of people), and a circumstance element (the harmed group of people qualifying as a civilian population).The applicable mental elements would then be quite different: the defendant would commit the war crime if he (1) intentionally launched an attack that harmed a civilian population, (2) knowing that the attack would harm a specific group of people, and (3) knowing that the harmed group of people qualified as a civilian population. And in that case, a proportionate attack on a legitimate military objective would qualify as “intentionally directing attacks that harm a civilian population” — a nonsensical outcome, for all the reason Jens mentions.

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Your thoughts, Jens?

NOTE: This post generally takes the same position Adil Haque took in a series of comments on Jens’s post.

What the European Convention on Human Rights Has Actually Done For You

by Patrick Wall

[Patrick Wall is studying for an LL.M. in International Law at the Graduate Institute of International and Development Studies, Geneva, as the Sir Ninian Stephen Menzies Scholar in International Law.]

Last week, the British home secretary, Theresa May, called for the United Kingdom to withdraw from the European Convention on Human Rights.

Describing ‘the case for Britain remaining in organisations such as NATO, the World Trade Organisation and the United Nations’ as ‘clear’, Ms May argued that ‘the case for remaining signatory of the European Convention on Human Rights, which means that Britain is subject to the jurisdiction of the European Court of Human Rights, is not clear’:

The [European Convention] can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the [European Convention] and the jurisdiction of its court.

Ms May has faced a ‘huge backlash’ over her comments. Amnesty International has said that withdrawing from the European Convention would ‘strike at the very architecture of international protection’, whilst Liberty criticised Mrs May for ‘playing fast and loose’ with the legacy of one of the Conventions’ early architects, Sir Winston Churchill.

Ms May’s comments also put her at odds with colleagues on both sides of the aisle in the House of Commons. On her own side, the Ministry of Justice has confirmed that withdrawal is not government policy—for the time being, at least—while Tory MP and former attorney general Dominic Grieve said that he was ‘disappointed because it shows a lack of understanding of the positive impact the [European Convention] is for the EU’.

Across the aisle, shadow justice secretary Charles Falconer has described Ms May’s comments as ‘so ignorant, so illiberal, so misguided’:

Ignorant because you have to be a member of the [European Convention] to be a member of the EU [and Ms May supports the UK remaining in the EU].

Illiberal because…there has to be a source external to a government determining what human rights are.

And misguided because it will so damage the standing of the UK, a country that above all plays by the rules and that is going around the world saying we should comply as a world with human rights.

This is so, so appalling.

The Guardian newspaper (affectionately known to some as The Grauniad) has responded somewhat differently; it has released a film—modelled on Monty Python’s ‘What have the Romans ever done for us?’—starring Sir Patrick Stewart as a would-be Prime Minster who sees the European Convention as his ultimate nemesis (do be mindful of an expletive at the end):

Whilst the film is undoubtedly enjoyable, I do wonder whether it might do more harm than good.

As might be expected from a production for popular consumption, the film’s claims aren’t entirely accurate. In addition to suggesting—incorrectly—that the European Convention is an institution of the European Union, many of the rights that the Convention is said to have ‘given’ the British (one is reminded of God giving Moses the Ten Commandments) existed in some form well before anyone had ever thought of having a European Convention on Human Rights. Slavery, for example, was abolished in England and Wales by Lord Mansfield’s decision in Somerset v Stewart in 1772. Although their precise contours have developed since the 50s, fair trial standards and notions of privacy, freedom of religion and non-discrimination were far from unknown to the British legal system. This is recognised towards the end of the film, of course, when one of Prime Minister Stewart’s colleagues recognises the role of British lawyers and British law in drafting the Convention.

Furthermore, whilst the Good Friday Agreement certainly requires the Northern Ireland Assembly to comply with the European Convention, the suggestion that ‘we would need to make peace all over again’ if Britain withdrew is plainly untrue. WTO Agreements frequently incorporate the provisions of other treaties that are then binding on members, regardless of whether or not they are parties to the incorporated treaty.

The point is not to nit-pick over factual errors in the film. As a political enterprise, certain dramatic license is understandable. The suggestion, however, that the main achievement of the European Convention was to bestow upon a grateful British people rights that were previously unknown to them, as well as the subsequent admission that this wasn’t the case, makes the film hopelessly confused. My concern is that this confused account of the benefits of the European Convention gives fodder for those who advocate Britain’s withdrawal.

Furthermore, it obscures the real arguments in favour of the European Convention. The great innovation contained in the European Convention was not the agreement between the High Contracting Parties as to what rights were worthy of protection; the rights enshrined are broadly reflective of those in the Universal Declaration of Human Rights, which the governments of Europe were active in formulating and unanimously supported. The Convention did not enshrine the next generation of human rights, but the next generation of human rights enforcement through the establishment of a strong mechanism—the European Court of Human Rights—to hold States’ feet to the fire when the temptation to abandon principles for reasons of expediency or popularity was strong. This interpretation is supported by the travaux préparatoires and is reflected in the Convention’s preamble (‘Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration’).

By playing a leading role in the drafting and adoption of the European Convention, the United Kingdom did the cause of human rights a great service. It clearly asserted that, to be truly meaningful and effective, human rights must be enforceable. If the UK were to withdraw, the cause of human rights would take a large backward step; not just in Britain, not just in Europe, but everywhere. After all, if this great contribution to the protection of human rights can be reversed, what else can be?

Weekly News Wrap: Monday, May 2, 2016

by Jessica Dorsey

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


Middle East and Northern Africa



  • Germany will ask the European Commission to allow an extension of temporary border controls within the Schengen zone of passport-free travel beyond mid-May, Interior Minister Thomas De Maiziere said on Saturday.
  • The number of British people who want to stay in the European Union has risen over the past four weeks, an online poll by market research company Opinium Research for the Observer newspaper showed on Saturday.
  • If Finland joined NATO it would lead to a serious crisis with neighboring Russia, a report commissioned by the Finnish government said on Friday.
  • French and U.S. jets destroyed an Islamic State site in Iraq used by the hardline Sunni Muslim insurgents to build large quantities of bombs and vehicles for suicide attacks, the French Defense Ministry said on Sunday.
  • A German government official denied on Sunday a magazine report which said Berlin might end its unconditional support for Israel due to Chancellor Angela Merkel’s increasing frustration with Prime Minister Benjamin Netanyahu’s policies.




Was the Kunduz Hospital Attack a War Crime?

by Jens David Ohlin

The Pentagon has released its report on the U.S. air assault against a hospital in Kunduz, Afghanistan, in October. The picture painted by the Pentagon report is pretty damning. The attack killed 42 people and turned out to be a giant mistake. The U.S. attacked the wrong building.

Initially, some Afghanistan officials suggested that insurgents had taken up positions in the hospital—an allegation that spurred an intense legal debate about whether, and when, the presence of such fighters would render the hospital a legitimate military target under LOAC. The Pentagon report makes clear that these allegations were unfounded. The insurgents were located in a different building, and the U.S. hit the wrong target.

The Pentagon report details a litany of mistakes—not just a single mistake but indeed a “cascade” of errors. The mistakes were clearly evidence of unprofessional behavior and deserving of reprimands. A total of 16 Americans involved in the attacked were officially disciplined administratively.

But was the attack criminal? The problem is that the killing of the innocent civilians was not intentional, it was accidental. As a matter of criminal law, it was either reckless or negligent (more on that later), but the civilian killings were not performed with purpose.

The New York Times had this to say about reckless attacks on civilians:

The failure to bring any criminal charges was “simply put, inexplicable,” said John Sifton, the Asia policy director of Human Rights Watch.

There are legal precedents for war crimes prosecutions based on acts that were committed with recklessness, he added, and recklessness or negligence does not necessarily absolve someone of criminal responsibility under the United States military code.

Is Sifton right about this?

The answer to this question is complicated. I’ve written an entire article about this, Targeting and the Concept of Intent, and I can’t go into that level of detail in a blog post. And even my full-length article did not fully address all angles of the question. The issue is exceedingly complex. But let’s make some preliminary observations.

The Rome Statute includes two particular war crimes of interest to the discussion.

The first provision defines as a war crime:

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

The second provision defines as a war crime:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

The first war crime is a violation of the principle of distinction: intentionally killing civilians. The second war crime is a violation of the principle of proportionality: causing disproportionate collateral damage.

The problem with applying the first war crime provision from the Rome Statute is that the attack against the civilians in the Hospital building in Kunduz did not obviously involve “intentionally directing attacks against the civilian population.”

Now here is where things get complicated. The word “intentionally” does not have a stable meaning across all legal cultures. As I note in my article, the word intentionally is generally understood in common law countries as equivalent to purpose or knowledge, depending on the circumstances. But some criminal lawyers trained in civil law jurisdictions are more likely than their common law counterparts to give the phrase “intentionally” a much wider definition, one that includes not just purpose and knowledge but also recklessness or what civilian lawyers sometimes call dolus eventualis. Now for present purposes I am going to avoid the difficult controversy of whether dolus eventualis is equivalent to recklessness or a higher mental state (residing somewhere above recklessness but well below knowledge), and for the purposes of this discussion simply assume that dolus eventualis and recklessness are similar mental states dealing with risk-taking behavior.

Now here is the key point. In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

The correct result, it seems to me, is to explicitly codify a new war crime of recklessly attacking civilians, and the codification of such a crime should use the word “recklessly” rather than use the word “intentionally.” The idea would be to create a duty on the part of attacking forces and then penalize them for failing to live up to it. (Of course, the scope and content of that duty would then have to be elucidated through case law adjudication.) And the existence of a separate war crime would help signal the moral difference between intentionally killing civilians and recklessly killing them.

If such a hypothetical prosecution were to take place, is there sufficient evidence that the attacking force was reckless in the Kunduz hospital case? Unfortunately yes. Among the factual issues are:

1. The targeting system of the AC-130 gunship was not operating correctly because the gunship had to take evasive maneuvers due to ground fire.

2. The targeting system therefore identified the target as an empty field, which forced the gunship’s crew to locate the correct target visually.

3. Using visual confirmation, the crew located the wrong building—the hospital—instead of the actual building where the insurgents were located.

4. Apparently the crew of the gunship either did not have a list of no-fire targets on board or failed to check the hospital coordinates against the list.

5. Commanders at HQ failed to check the coordinates of the hospital target with the coordinates on their no-fire target list. Had they done so, they would have realized that the gunship was about to engage a no-fire target.

6. After the attack began, hospital workers and MSF officials began frantically calling and texting the U.S. military to stop the attack, but there was a substantial delay before the attack was finally halted.

7. According to the Times report, at least one commander was hesitant to stop the attack when they did not have “situational awareness” (SA) on the ground. Apparently he was concerned that friendly ground forces might remain in danger even as they called off the attack. Of course, the opposite turned out to be true: because they lacked SA, they continued to attack the wrong target without a firm understanding of who or what they were really attacking. Obviously it was a mistake for them to have attacked the target in the first place given that they had no SA.

Does all of this add up to a crime of recklessness? I don’t know. That would be for the fact-finder to decide, but a prosecutor could certainly make out a prima facie case that targeting “best practices” were not followed in this case, leading to the identification of the wrong target, and the loss of 42 innocent lives. But I don’t think this is a Rome Statute case. There may be sound moral reasons to create a new war crime provision for accidents of this type, but I don’t think this conduct falls under the existing law as it stands now.

Events and Announcements: May 1, 2106

by Jessica Dorsey


  • The University of Sheffield School of Law Annual James Muiruri International Law Lecture will be held on Wednesday 11 May at 6pm. Prof Guy S. Goodwin-Gill, University of Oxford, will speak on Refugees in our Time: The Challenges of Protection and Security.  The lecture will take place in The Diamond lecture theatre. For more details and to register click here. Over the past two years or so, Europe has been challenged, like many countries in the ‘south’, by what to do when faced with large numbers of refugees, asylum seekers and migrants, many in desperate need of protection and assistance. True to form, some alarmists have raised the security spectre, as if enough ‘terrorists’ were not home-grown, or able anyway to use regular means of transport, and forgetful of the extent to which States have already ‘securitised’ the movement of people, certainly since the mid-1990s, if not much earlier. Europe’s failure, however, has not been on the security front; rather, it has so far failed to live up to its principles, to make the best use of existing mechanisms, institutions and laws, and to think pro-actively, outside the box, so as to develop a regime of protection, asylum and migration management fit for the twenty-first century, in which both the rights of individuals and communities and the interests of States can be effectively, lawfully and equitably accommodated. This lecture will look over at the past, and make some suggestions for a future.


  • 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 users around the world free of charge. The latest lectures were given by Professor Alex Oude Elferink on “International Law and Negotiated and Adjudicated Maritime Boundaries: A Complex Relationship” and Sir Nigel Rodley on “United Nations Treaty and Charter-based Human Rights Bodies: Competitive or Complimentary?”.
  • A new open access law journal: European papers. A Journal on Law and Integration has launched. European papers is conceived of as a cultural project: a tool for reflecting on European integration, in its multiple dimensions, as a breeding place for ideas. To achieve this goal, we have thought of European papers as a living laboratory with a dual nature: a four-monthly electronic scientific e-Journal and a ‘militant’ European Forum designed as a hotbed for intellectual discussion and keeping in touch with the latest developments. The first issue of the e-Journal is here, including, amongst others, contributions by Christian Joerges, Jan Klabbers, Carol Harlow, Christophe Hillion, Dimitry Kochenov and Martijn van den Brink, Bruno Nascimbene. The European Forum’s Highlights and Insights on EU law and European integration are arranged ratione materiae and can be downloaded 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.