Archive for
September, 2016

The Strategic Social Construction of Cybernorms

by Duncan Hollis

A few years back, I was lucky enough to be invited by research scientists at MIT’s Computer Science and Artificial Intelligence Lab — especially the late Roger Hurwitz — to participate in a Minerva Grant project studying norms and governance in cyberspace.  In the interim, norms have become one of the hot topics in cybersecurity discussions in international fora. Together with Martha Finnemore, I began to think more about the processes by which norms work, including the ways they relate to international law.

I’m pleased to report that after a couple of years of research and thinking, Marty and I have the results of our work forthcoming in the American Journal of International Law:  Constructing Norms for Global Cybersecurity.  You can get a preview of the article on SSRN here.  And, for those looking to learn more about our piece, here is the abstract:

Cybersecurity now stands at the top of the U.S. security agenda. As sources of cyber insecurity have proliferated, States and other stakeholders have increasingly turned to norms as the regulatory tool of choice, hoping to shape the behavior of diverse actors in this space. Proponents of cybernorms have so far focused on what the new norms should say and on what behaviors they should require or prohibit. They have paid little attention to how new norms would actually work—how they could successfully be constructed and the processes by which they would create desired effects. In other words, they have paid a lot of attention to the “cyber” component of cybernorms but very little attention to the “norms” component and the issues of how normativity actually works in the world.

In this Article, we offer an inter-disciplinary analysis of the processes by which cybernorms might be constructed and some of the choices and trade-offs involved in doing so. We first situate the current discourse in the varying contexts surrounding cybersecurity. We define the norm concept and examine the diverse array of norms currently populating the landscape of cyberspace. We next draw on the rich body of work in social science about norm construction in other policy areas to understand how norms can be cultivated successfully and how they create effects, both intended and otherwise. Of course, if cyberspace is unique, lessons from other policy domains might not be applicable but we assess these arguments and find them unconvincing.

Our paper then unpacks some of the strategic choices facing norm promoters in their decisions on which norms are needed, who should conform to them, not to mention where and how they should do so. We do not prescribe a particular path for norm promoters, but rather emphasize the need to recognize and accommodate the consequences and trade-offs these choices involve. Our paper thus offers lessons for States, industry, civil society, and others interested in promoting norms in cyberspace. By situating our work in both international law and international relations, this paper also provides a case study of the strategic social construction of norms that offers both political scientists and international lawyers more information on how non-legal mechanisms could regulate global problems like cybersecurity.

Comments and thoughts on the article are most welcome as Marty and I are continuing to do more research and writing in this space.  Next up, is a project that assesses various ways to institutionalize a norm such as the duty to assist idea that I first called for a few years back.

 

New (And Better) Eligibility Rules for the Lieber Prize

by Kevin Jon Heller

Last year, I criticised ASIL for limiting its very prestigious Lieber Prize to academics under 35. I described that limit as “ageist,” noting that in today’s academic world there are many law professors over 35 who, because they joined academia late, should rightfully be considered junior scholars. So I am delighted to note that ASIL has changed the eligibility criteria for the 2017 Lieber Prize:

Anyone may apply for the article or book prize. For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in academic teaching or research position. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

This is a much better approach to eligibility. Kudos to ASIL for the change.

Trump Advocates World War III

by Kevin Jon Heller

I know pointing out stupid things Donald Trump says is a fool’s errand — pretty much everything Donald Trump says is stupid. (Note to non-hack conservative friends: I genuinely feel sorry for you.) But I’m struck by how little attention pundits have paid to this gem:

I think that once the nuclear alternative happens, it’s over. At the same time, we have to be prepared. I can’t take anything off the table.Because you look at some of these countries, you look at North Korea, we’re doing nothing there. China should solve that problem for us. China should go into North Korea. China is totally powerful as it relates to North Korea.

There are, shall we say, a couple of problems with this suggestion. First, Trump is openly advocating China invading North Korea without provocation. You don’t have to be a Kim Jong-un apologist to suggest that international law might look rather unkindly at that. Second, although China is no doubt “totally powerful” compared to North Korea, North Korea has something of an equalizer — nuclear weapons. (The topic Trump had been asked to discuss.) Does anyone doubt that Kim Jong-un would use them against China if, as Trump wants, China tried to wipe North Korea off the face of the earth?

PS: I’m being good and not pointing out that Trump was openly advocating genocide…

What’s the Right Comity Tool in Vitamin C?

by William S. Dodge

[William S. Dodge is the Martin Luther King, Jr. Professor of Law at the UC Davis School of Law, where he specializes in international law, international transactions, and international dispute resolution.]

American law has many doctrines based on international comity—doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit’s decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry’s interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should “abstain from exercising jurisdiction,” Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court’s. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity—deference to foreign lawmakers—which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court’s view, this doctrine authorized it to “balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders” (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court’s later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford “narrowly” (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as “too complex to prove workable.” Empagran recognized that ambiguous statutes should be construed “to avoid unreasonable interference with the sovereign authority of other nations,” but it also said in no uncertain terms that “application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.” Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must “declare invalid, and thus ineffective as ‘a rule of decision for the courts of this country,’ the official act of a foreign sovereign.” W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants’ own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China’s interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its “comity” analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. “International comity” is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

by Julian Ku

As we face the first U.S. presidential debate tonight (on my home campus of Hofstra University!),  the possibility of a President Trump seems more and more real.  Although U.S. election analysts all make Hillary Clinton the favorite, most of them continue to give Trump a very realistic chance of winning on November 8.  I am not a Trump supporter, but I think it would be irresponsible not to think seriously about the legal policy consequences of his election to the presidency.  In particular, candidate Trump has promised or threatened to withdraw the U.S. from numerous international treaties and agreements such as the North American Free Trade Agreement, the World Trade Organization, NATO, the U.S.- Japan Mutual Defense Treaty, the Paris Climate Change Agreement, and the Iran Nuclear Deal (I am sure I am missing a few more).  Unlike our friends in Britain who weren’t really planning for Brexit, I think those of us here in the U.S. should start planning, before it happens, for “Trumpxit.”

As an initial matter, we should consider to what extent a President Trump could unilaterally withdraw the U.S. from international treaties and agreements.  I notice that most commentary, including this scary piece by Eric Posner in the NYT from this past spring, assume the President has this unilateral power. But I do not think this issue is not entirely settled as a matter of U.S. constitutional law.

In the 1979 decision Goldwater v. Carter, the U.S. Supreme Court dodged the question of whether a President could unilaterally terminate the U.S.-Republic of China (Taiwan) mutual defense treaty without consulting or getting the approval of the U.S. Senate by invoking the political question doctrine and (in a concurrence) the judicial ripeness doctrine.  No U.S. court has, as far as I am aware, reached the merits of this question.  I think scholars are somewhat divided, and historical practice is mixed.

President George W. Bush did set a precedent in favor of presidentialism, however, by withdrawing from the Anti-Ballistic Missile Treaty in 2002 without getting the approval of the Senate and President Carter did likewise in the 1979 Taiwan defense treaty.    It seems likely that the president does have unilateral authority to withdraw the U.S. from treaties which specify terms for withdrawal and which don’t require further alterations or changes to domestic U.S. law.

Defense Treaties/Military Alliances

This suggests that a President Trump could terminate NATO and the US-Japan Defense Treaty pursuant to those treaties’ withdrawal provisions.  Interestingly, the NATO Treaty Article 13 specifies that “Any Party” can terminate their membership with one year’s notice.  That notice must be sent to the U.S. Government. So I guess a President Trump could give himself a one year’s notice?

Because the issue has not been settled by the U.S. Supreme Court, another Goldwater v. Carter type lawsuit could be brought.  It seems less likely that such a case would be dismissed on political question grounds given recent Supreme Court jurisprudence, but I think the smart money would be on a President Trump prevailing on the merits on a challenge to a presidential NATO or US-Japan Defense Treaty termination.

Nonbinding/Sole Executive Agreements

On the other end of the spectrum, I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.   This would be true, even if the agreements were treated as binding international agreements, since both agreements have withdrawal provisions.  Since the Senate or Congress never approved either agreement, there is no need to ask them for approval to terminate it either.

Trade Agreements 

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

For instance, in the most recent version of the “fast track” enacted by Congress to allow President Obama to finalize the TPP, Section 103(b) states:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

(Emphasis added).  This language means that there is at least a colorable argument in favor of requiring a President Trump to seek congressional approval before withdrawing from a trade agreement like NAFTA or the WTO.  To be sure, both trade agreements have specific withdrawal provisions similar to those found in the NATO treaty. But the fact that the president is acting pursuant to his congressional authorized “trade promotion authority” suggests that Congress did not necessarily delegate the power of termination to the President alone.

Moreover, the implementing legislation for some trade agreements further suggests Congress has reserved some residual “termination” power.  In Section 125 of the Uruguay Round Agreements Act, for instance, Congress may terminate U.S. participation in the WTO with a joint resolution of both Houses.  This does not necessarily mean the U.S. is automatically out, but since the President can’t (under the terms of the law) join the WTO until Congress approves, presumably withdrawing that approval terminates U.S. participation.  It is all somewhat uncertain, but again, I think there is colorable argument that a President Trump could not unilaterally withdraw the U.S. from the WTO,  NAFTA and other trade agreements.

O O O

None of this may matter, of course, if we get a President Clinton instead.  But as the possibility of a President Trump gets closer to reality, we need to start thinking about the legal authority he would have to fulfill his campaign promises, and the limits (if any) on that authority,

 

Iran’s Nuclear Program and International Law: From Confrontation to Accord

by Dan Joyner

[Dan Joyner is Professor of Law and Director of International Programs at the University of Alabama School of Law.]

In July 2015 a historic diplomatic accord was reached among Iran, the E.U., and the P5+1 states (the U.S., U.K., France, Germany, Russia, China).  The Joint Comprehensive Plan of Action (JCPOA), as the accord was titled, consisted of 159 total pages of agreed text, addressing all of the issues that had been in dispute among the parties concerning Iran’s nuclear program for thirteen years –a dispute which had at times appeared likely to precipitate military conflict. I summarized the JCPOA in a blog post here at Opinio Juris at the time of its adoption.

My newly published book, Iran’s Nuclear Program and International Law: From Confrontation to Accord, provides an in-depth examination of the legal and diplomatic history that form the context for the JCPOA’s agreement, and sets out to describe and to answer the most important legal questions that were in dispute among the JCPOA’s parties.  The aim of the book is to clarify how the relevant sources of international law – including primarily the 1968 Nuclear Nonproliferation Treaty (NPT) and the law of the International Atomic Energy Agency (IAEA) – should be properly interpreted and applied to these questions.

In this post I’ll give a very brief summary of the questions the book addresses, and of my analysis and conclusions concerning them.

The first question addressed in the book is whether Iran has at any time in the history of its pursuance of a nuclear program violated the terms of the NPT.  Iran is, of course, a non-nuclear weapon state party to the NPT, and is therefore prohibited from inter alia the manufacture or other acquisition of a nuclear explosive device.

It has been long argued by Iran’s detractors in the West, and in December 2015 it was confirmed in a report by the IAEA, that through the decade of the 1990’s and essentially ending in 2003, Iran did pursue a nuclear weapon research and development program separate from its civilian nuclear program.  However, in the words of the IAEA report: “these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities.” In other words, Iran did develop some understanding and technical capabilities that it would need were it to decide to build a nuclear weapon, but it did not ever actually construct a nuclear explosive device.  On the basis of these facts concerning Iran’s weaponization research program, I conclude that Iran did not at any time manufacture or otherwise acquire a nuclear explosive device, and that therefore Iran did not violate the NPT.

The second question addressed is whether Iran was in violation of its IAEA safeguards treaty obligations in 2003, when international scrutiny of Iran’s nuclear program began following the revelation that Iran had clandestinely begun construction on two nuclear facilities at Natanz and Arak.  After a review of Iran’s safeguards obligations pursuant to its bilateral safeguards treaty with the IAEA, as well as the subsidiary arrangements agreed between Iran and the IAEA in implementation of the treaty, I conclude that the vari­ous failures by Iran to declare the existence and location of nuclear materials prior to 2003, and Iran’s several failures to declare experiments con­ducted using those nuclear materials, did constitute a violation by Iran of its safeguards treaty obligations.

I further conclude, however, that this internationally wrongful act by Iran was remedied through effective reparation in cooperation with the IAEA between 2003 and 2008, culminating in IAEA Director General ElBaradei’s February 22, 2008, report to the IAEA Board of Governors, in which he assessed that all declared nuclear material in Iran was in peaceful use, and that all prior concerns the IAEA had registered involving nuclear materials and related facilities in Iran had been resolved through dia­logue with Iranian authorities.

The third question addressed is whether Iran was, as Western states led by the United States claimed, in continuing violation of its safeguards treaty obligations in the several years leading up to the conclusion of the JCPOA in July 2015.  And further, whether during this time period the IAEA employed correct legal standards in assessing Iran’s compliance with its safeguards obligations.

I conclude that, according to the correct legal standards, contained in Iran’s safeguards agreement, from 2008 to 2015 Iran was in fact in full compliance with its safeguards treaty obligations.  This is the case even though during this period the IAEA made numerous allegations and findings concerning the possible existence of undeclared nuclear materials within Iran.  To be clear, the IAEA did not find any undeclared nuclear materials in Iran during this time, it only asserted its inability to determine satisfactorily that such materials did not exist.

I argue that throughout this period, the IAEA applied incorrect legal standards of investigation and assessment to Iran’s case.  Standards that were derived from erroneous legal interpretations of Iran’s safeguards treaty obligations.  I argue that due to the application of these incorrect standards, the IAEA during this time reached erroneous conclusions regarding Iran’s compliance with its safeguards agreement, and improperly withheld its determination that Iran was in fact in compliance with its safeguards obligations.  The IAEA’s withholding of its determination of Iran’s compliance had a significant influence on the diplomatic and security crisis surrounding the issue during this period, as states and the U.N. Security Council relied upon the IAEA’s technical determinations of Iran’s compliance.  This third set of questions is addressed in Chapter 5 of the book, which is publicly accessible here on my SSRN page.

The fourth question addressed is whether and to what extent the decisions of the United Nations Security Council on the subject of Iran’s nuclear program should be understood to impact on the analysis of the previous three questions.  After reviewing the Security Council’s decisions on Iran from 2002 through July 2015, I conclude that those decisions neither added to Iran’s safeguards-related obligations, nor enhanced the legal authority of the IAEA to investigate and assess Iran’s compliance with its safeguards obligations.  In Resolutions 1696 and 1737, both adopted in 2006, the Security Council did command Iran to suspend its uranium enrichment program.  Iran did not suspend its uranium enrichment program after the adoption of those decisions, and as such Iran can be at least prima facie considered to have been in noncompliance with those decisions of the Security Council, up until those resolutions of the Council were themselves terminated on JCPOA Implementation Day (January 16, 2016).  I do however argue that the legal validity of this specific command of the Security Council is doubtful.  I base this argument on the conflict between, on the one hand, the obligation of all U.N. member states pursuant to Article 25 of the U.N. Charter to “accept and carry out” the decisions of the Security Council, and on the other hand Iran’s “inalienable right” to peaceful nuclear energy as expressed in Article IV of the NPT.

The final chapter of the book provides a detailed explanation and consideration of the JCPOA itself. Essentially, Chapter 7 of the book (also publicly accessible here on my SSRN page) is a full chapter-length review and analysis of the legal implications of the JCPOA, on issues including Iran’s safeguards obligations, and the economic sanctions levied against Iran by the U.N. Security Council and by the U.S. and E.U. acting unilaterally.

The book thus follows the Iran case study through the period of confrontation between Iran and the West from 2002 through July 2015, setting this confrontation in its historical and diplomatic context, and examining key international legal questions that were raised during this period, and which played a significant role in the diplomatic crisis over Iran’s nuclear program.  It then explains the historic diplomatic accord which was painstakingly negotiated to resolve these various legal questions, and to bring the parties together on an agreed plan of action for building confidence in the peaceful nature of Iran’s nuclear program, and for the lifting of economic sanctions on Iran.

The implementation of the JCPOA continues to the present to be controversial. Political forces within Iran opposed to the relatively moderate regime of President Rouhani are tapping into popular sentiment among Iranians, to the effect that the economic benefits of the nuclear deal have been too small and too slow in coming.  They argue that the West has not lived up to its commitments to meaningfully lift international economic sanctions on Iran.

In the U.S. as well, there are influential political forces arguing that the JCPOA gave Iran too much in the way of economic concessions, in return for relatively minor nonproliferation commitments that will mostly expire within ten years.  They are quick to jump on any perceived noncompliance by Iran with its technical commitments under the JCPOA – even though the IAEA itself has repeatedly determined that Iran has abided by its JCPOA commitments.

These domestic political movements, both in Iran and in the U.S., threaten to frustrate and ultimately to marginalize the JCPOA, and bring the world back to a state of active confrontation over Iran’s nuclear program. With the U.S. presidential election in November of this year and Iranian presidential elections in May of 2017, the question of the future of the JCPOA and the diplomatic path to resolution of the Iran nuclear dispute remain very much in question.

Weekly News Wrap: Monday, September 26, 2016

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Re-Engaging on an ISIL AUMF

by Deborah Pearlstein

In the past few weeks, Jack Goldsmith and Matt Waxman on the one hand, and Marty Lederman on the other, have restarted a discussion about the significance of Congress’ ongoing failure to enact legislation expressly authorizing the United States’ expansive use of force against ISIL in Iraq, Syria, and now in Libya. In a piece for Time Magazine, Jack and Matt faulted the Obama Administration for failing to “return to the Congress and the American People and insist on a new authorization for this new war.” They argued that the Administration “took away every political incentive that the responsibility-shy Congress might have to debate and authorize the war” by advancing the dubious notion that the existing 2001 statute (the AUMF) (authorizing force against Al Qaeda and its associates) affords the President sufficient authority to attack ISIL as well. Responding at Just Security, Marty quite agrees (as do I) it would be better if Congress had enacted (or would enact) an ISIL-specific use of force. But Marty is skeptical there was much more President Obama could have done to secure congressional action, and also questions whether Congress’ failure to enact new authority really sets as worrisome a precedent for democratic governance or executive power as Jack and Matt think.

Jack and Matt are right to point out that Obama’s legal reliance on the 2001 AUMF to justify the use of force against in Iraq, Syria and Libya is more than a little suspect. (I’ve written previously about why I think so, e.g., here.) Marty is right to doubt whether blame for Congress’ failure to act on ISIL can fairly be placed, as Jack and Matt seem to suggest, at Obama’s doorstep. But there is plenty more to the story I think both pieces miss. Continue Reading…

Haiti Cholera Update

by Kristen Boon

Today, on the opening of the GA, and in his final such speech as UN Secretary General Ban Ki-Moon indicated that a compensation package for victims of Cholera is forthcoming. Speaking in French (original here), he expressed regret over the recent peacekeeper sexual abuse scandals and the Cholera epidemic in Haiti, and promised a package of assistance and support for better sanitation and water systems to victims would be forthcoming.

His speech confirms a significant and welcome shift in the UN’s approach to the cholera epidemic in Haiti. Since the outbreak in 2010, the UN steadfastly denied the assertion that a causal connection existed between the cholera outbreak and a UN peacekeeper base wherein blackwater was funneled into one of the main tributaries in Haiti.  The UN also rejected claims for compensation by victims and their families stating, in a now infamous letter, that the claims were “not receivable” under the UN Convention on Privileges and Immunities. For my full assessment of the Cholera Claims and the UN’s response to this and other recent mass torts claims, see my recent article in the Chicago Journal of International Law here.

The first signs of a change in the UN’s approach came about in August, when Deputy Spokesperson Farhan Haq said in an email quoted in the New York Times that “over the past year, the U.N. has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera.” The Times reported he also stated that a “new response will be presented publicly within the next two months, once it has been fully elaborated, agreed with the Haitian authorities and discussed with member states.”

Significantly, this communication was released days before a widely anticipated appeals decision  was  handed down by the Second Circuit.  In this decision, the judges rejected the claimants appeal for compensation from the UN, relying on principles of contract interpretation to uphold the key finding that the “UN’s fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity” under the Convention on Privileges and Immunities of the UN.

There are several factors that might explain the UN’s new response. One is a reputational concern.   The release of a very critical report by Phillip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights in August, concluded: “[that] a new approach is desperately needed.   The starting point is that there should be an apology and acceptance of responsibility in the name of the Secretary-General. Consideration should then be given to constructing a policy package to address the need for compensation to the victims.”  Alston’s report  provides an instructive and poignant account of how the UN has mishandled this claim, while also illustrating how complex mass claims are for the Organization, given shrinking budgets, the sui generis legal position of the UN, and the lack of internal precedents on providing transparent process and remedies.

Another reason for the UN’s reconsideration of its stance clearly involves the upcoming elections for a new UN Secretary General.  Later this fall, Ban Ki Moon will step down, and some believe that he wants to ensure his legacy is not tarred by the perception that the Haiti case was mishandled. Another theory is that it is better for the Organization to address this case within the current SG’s mandate, rather than saddling a new SG with such an albatross.

The key issue at present is what a compensation package for victims would look like.  Alston’s report urges the UN to make use of other precedents for lump sum settlements, such as the 9/11 trust fund, the USA-France agreement to compensate Holocaust victims, and the Canadian Reparations Programme for the Indian Residential School System. He further notes: “it is clear that the United Nations could make use of these various precedents in order to shape an approach to compensation as part of a broader package that would provide justice to the victims and be affordable.”

While full details of the package will be released in October, advocates are hard at work at the UN, attempting to ensure a victim centered approach prevails.  A letter sent to the UN Secretary General yesterday, for example, argues that there are four necessary components of an effective remedy:

“An effective remedy requires: (1) issuing a formal, public apology to the victims of cholera in Haiti, (2) ensuring full funding of the previously announced but largely unfunded cholera elimination plan, (3) committing to providing victims of the epidemic with material compensation in a timely fashion, and (4) implementing a transparent and participatory process.”

What seems clear at this stage is that the UN is not acknowledging any legal responsibility for the introduction of Cholera into Haiti for fear of setting precedent.   Nonetheless, there is an opportunity here for the UN to improve the process of claims settlement, to adhere to its obligation to provide a remedy for damages incurred, and to demonstrate its commitment to the rule of law. Let’s hope the UN does the right thing. If it doesn’t, advocates in the Haiti Cholera litigation noted in a blast email today that they still have three months to appeal to the Supreme Court.

 

International Law Weekend 2016

by Chris Borgen

International Law Weekend, the annual conference of the American Branch of the International Law Association is fast approaching. See the following notice from ABILA:

International Law Weekend 2016

Registration is now open for International Law Weekend 2016.

International Law Weekend 2016 – the premiere international law event of the Fall season – will be held October 27-29, 2016, in New York City.  The Opening Panel will take place on Thursday evening at the New York City Bar Association.  The Friday and Saturday sessions will be held at Fordham Law School.

You can register for the conference here: http://www.ila-americanbranch.org

The unifying theme for ILW 2016 is International Law 5.0.

The world is changing at an accelerating rate. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.

ILW 2016 will explore these issues through a collection of engaging and provocative panels. A broad array of both public international law and private international law topics will be offered.

We look forward to seeing you at ILW 2016.

By the way, as a Co-rapporteur for the ILA’s Committee on Recognition/Non-Recognition in International Law, I will be on the panel Recognition and Non-Recognition of States and Governments: Current Issues in U.S. Practice on Friday, October 28 at 4:45 pm, along with my Opinio Juris colleague Peggy McGuinness and Brad Roth, both of whom are committee members, and Wladyslaw Czaplinski, the committee’s chairperson. Here’s the panel description:

For over five years the International Law Association’s Committee on Recognition and Non-Recognition has studied how states do or do not recognize other regimes as states and governments. This panel will bring together members from the ILA Committee to discuss the findings of their reports, with a particular focus on emerging issues in U.S. practice, including responses to secessions and unilateral declarations of independence after Kosovo; the problem of two or more regimes claiming to be the government of a single state, and the U.S. domestic effects of non-recognition.
I hope to see you there!

Sixth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

UNIVERSITY OF NOTTINGHAM: MAY 8, 9 and 10, 2017

Earlier today, Dino Kritsiotis (Univ. of Nottingham), Anne Orford (Univ. of Melbourne) and JHH Weiler (NYU) launched the Sixth Annual Junior Faculty Forum for International Law, which will be held at the University of Nottingham in May 2017. All details regarding the Forum procedure and process are available here: http://annualjuniorfacultyforumil.org/

Israel Shows Its Contempt for Academic Freedom

by Kevin Jon Heller

The headline is almost a generic one, applicable to dozens of Israeli actions. I’m using it now specifically in connection with Israel denying entrance to my SOAS colleague Dr. Adam Hanieh, who was scheduled to give a series of lectures at Birzeit University:

Dr. Hanieh, a Senior Lecturer in the Department of Development Studies at the School of Oriental and African Studies at the University of London, was deported back to London on the morning of September 13, 2016. He was held for questioning for 10 hours at Ben Gurion airport, and then taken overnight to a detention centre outside the airport. In addition to being refused entry, Dr. Hanieh was banned from entering the country for ten years.

Dr. Hanieh was scheduled to share his vast knowledge of global and Middle East political economy with students in the Ph.D. program as well as the university community in a series of lectures scheduled in the coming two weeks. Hanieh is an accomplished scholar, the author of Lineages of Revolt: Issues of Contemporary Capitalism in the Middle East (Haymarket Books, 2013) and Capitalism and Class in the Gulf Arab States (Palgrave Macmillan, 2011), as well as numerous academic articles.

This act of denial of entry and deportation by the Israeli state and its agencies is part of a systematic policy of denial of entry to international academics, professionals and activists intending to visit Palestine. This policy represents an attack on Palestinian academic freedom, and is routinely practiced at the two entry points, the airport in Tel Aviv and the Jordan valley crossing from Jordan.

Israel is truly the Donald Trump of repressive states — unable to tolerate any criticism that doesn’t stay within the bounds of what it considers “legitimate.” Confident states address critics. Israel prefers to harass and silence them.

Business as usual in the Middle East’s supposed great democracy. Keep Hanieh’s treatment in mind the next time Israel complains about mean BDS-ers “silencing” (ie, protesting) Israeli academics.

Ukraine’s UNCLOS Arbitration Claim Against Russia May Depend Upon Philippines-China Precedent

by Julian Ku

After months (or even years) of threats, Ukraine finally filed an arbitration claim against Russia under Annex VII of the UN Convention of the Law of the Sea.  According to this statement from the Ukrainian Ministry of Foreign of Affairs, the claim will focus on Russia’s actions in the maritime zones bordering Crimea.

Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones.  Ukraine seeks to end the Russian Federation’s violations of UNCLOS and vindicate Ukraine’s rights in the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine’s rights to the natural resources offshore Crimea which belong to the Ukrainian people.

I discussed Ukraine’s claim back in February here, as well as Russia’s likely response.  I can’t find a copy of the Ukrainian statement of claim online, but the MFA description sounds like it will be pretty similar to the approach pioneered by the Philippines in its claim against China.  Ukraine will seek to avoid Russia’s Article 298 declaration excluding jurisdiction relating to sea boundary delimitations by not asking the tribunal to rule on sea boundaries. Ukraine will not seek to have the arbitral tribunal declare that the annexation of Crimea is illegal. Rather, the focus will be on specific actions Russia has taken in the Crimea maritime zones, which Ukraine is going to assume is part of Ukraine.

It will be interesting to see if Russia responds at all to this arbitration, or whether they follow China’s example and simply boycott the arbitration process completely.  I am not sure Russia’s jurisdictional defense is as strong as China’s (which lost anyway), so I am betting Russia simply declares it will not even show up, while loudly declaiming the legality of their actions.  Stay tuned.

 

The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

Protection of Civilians Symposium: A Multiplicity of Legal Frameworks and Practical Challenges

by Ralph Mamiya

[Ralph Mamiya is team leader for the Protection of Civilians Team in the UN Department of Peacekeeping Operations but writes here in a purely personal capacity, and the views expressed do not represent official positions of his Department or the United Nations. This post is the concluding post of the Protection of Civilians Symposium.]

This week’s symposium on the protection of civilians highlighted the range of legal and practical issues facing UN peacekeepers. Featuring posts from two contributors to the new volume, Protection of Civilians from Oxford University Press, former Senior UN Legal Officer Mona Khalil and University of Ulster law professor Siobhan Wills, as well as responses from distinguished colleagues Professor Ray Murphy, Legal Counsel Marten Zwanenburg and Professor Kjetil Mujezinović Larsen, the symposium has covered both very familiar ground for me and issues that I rarely have the opportunity to wrestle with.

Taken together, Mona’s and Siobhan’s discussions of peacekeepers’ authority and responsibility to use that authority to use force to protect civilians highlight the complexity of the issue. As Marten notes, we can read Mona as putting forward a strong but narrow concept of the protection of civilians mandate, rooted firmly in Security Council resolutions and Chapter VII of the UN Charter. The simplicity of this argument is its strength: the Council provides a strategic directive to protect (not merely an authorization), and this directive creates some form of responsibility. The challenge of this argument is, as those who deal regularly with UN bodies know, that determining the content and intent of Council resolutions is no simple matter, particularly in an era of political divisions in the Council. The “protection mandate” itself is often brief, providing a general direction with little detail. Generating meaningful positive obligations from such basic material is supremely difficult and gives rise, in part, to many of the practical peacekeeping challenges that Mona points out.

Professor Wills, on the other hand, searches beyond the mandate itself for sources of an obligation to protect that are, perhaps, more susceptible to legal analysis, and, also perhaps, more binding. She returns, however, to the UN’s own Human Rights Up Front  initiative, which she interprets as a potential acknowledgement by the UN of its own protection obligation. Whether this is a stronger or weaker foundation than Mona’s implicit presumption that peacekeeping mandates create a responsibility to act is somewhat uncertain in my mind (particularly as elections for the next Secretary-General are upon us). Her approach to filling in the content of the UNPKO’s responsibility to protect, however, seems a practical, procedural approach.

Professor Murphy takes up Siobhan’s appeal to the UN’s own commitment to human rights norms and raises her, proposing a Secretary-General’s bulletin on the application of human rights law to peacekeepers, analogous to the Secretary-General’s bulletin on international humanitarian law. The IHL purist, and the IHRL purist, may not give a great deal of weight to what the Secretary-General thinks about the application of international law to blue-helmeted troops, but such bulletins can be highly influential for the legal and policy architecture of peacekeeping and, ultimately, the way mandates are implemented.

Professor Larsen also follows Professor Wills, but in the direction of “hard law,” looking to treaty law as potential sources for an obligation to protect with regard to de-mining. This is a particularly interesting area. Professor Larsen’s discussion highlights not only how important protection issues are becoming to militaries around the world (not just UN peacekeepers) and further clarifies, in case there was any doubt, that protecting civilians is not only a matter of using force. The obligation that he argues for echoes the human rights-based norms that Professor Murphy raised.

Marten, in addition to providing wonderful summaries of Mona’s and Siobhan’s chapters in the book (going beyond just their posts), raises two points that I find particularly fascinating. First, with regard to the accountability of peacekeepers: despite the importance of UN privileges and immunities for so much of the UN’s work, if the international public perceives those privileges as being abused they may be whittled away. Second, with regard to Mona’s very interesting discussion of consent: the legal concept of consent and what host states permit missions to do at a practical level, particularly when it involves supporting or substituting for state functions (such as protection).

There is a common refrain that protecting civilians is simple in concept but difficult in practice. In one sense this is true—we tend to agree that protecting civilians is a good thing but we, as the international community, seem to disappoint ourselves on a regular basis—but in another sense simplifies what is a complex issue. One thing that I hope that this week’s symposium has highlighted is that practical challenges, and these are legion, are often tied to legal questions that we are still struggling to answer.

Many thanks to the distinguished panelists for contributing, and to Opinio Juris for hosting this symposium for Protection of Civilians, now available, with a foreword from Deputy Secretary-General Jan Eliasson, and contributions from Jean-Marie Guéhenno, Andrew Clapham, Hugo Slim, Mona Khalil and Siobhan Wills and many others.

High Commissioner for Human Rights Challenges Trump, Wilders

by Kristen Boon

In case you haven’t seen it, The High Commissioner for Human Rights’ recent speech addressed to “populists, demagogues and political fantasists” is well worth reading.   The speech can be viewed here, and a link to the video here.

As Prince Zeid says:  “The proposition of recovering a supposedly perfect past is fiction; its merchants are cheats.  Clever cheats.”

 

Protection of Civilians Symposium: Protecting Civilians from Explosive Ordnances-An Example of Operational and Legal Challenges

by Kjetil Mujezinovic Larsen

[Kjetil Mujezinović Larsen is Professor of Law, Director of Research, and Deputy Director, at the Norwegian Centre for Human Rights at the University of Oslo. He is the author of «The Human Rights Treaty Obligations of Peacekeepers» (Cambridge, 2012). This post is a part of the Protection of Civilians Symposium.]

By way of introduction, let me state that I agree with Marten’s analysis of the legal obligations of peacekeepers. Therefore, rather than rehearsing the arguments raised by the other contributors to this Symposium, I want to address a concrete issue that illustrates many of the challenges, while also being of great practical importance: The removal of anti-personnel landmines, unexploded cluster munitions, and other explosive ordnances in the area of deployment of a peacekeeping operation. Such explosive ordnances represent a considerable and continuous threat to the civilian population in the affected area, and to protect civilians from this threat clearly falls within the «protection of civilians» paradigm. But does there exist any legal obligation to remove any such ordnances?

There exist a range of international treaty provisions concerning removal and destruction of explosive ordnances. For anti-personnel landmines, Article 5 of the 1997 Mine Ban Treaty requires each State Party to «destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible»; for cluster munition remnants, Article 4 of the 2008 Cluster Munitions Convention similarly requires States Parties to «clear and destroy, or ensure the clearance and destruction of, cluster munition remnants located in cluster munition contaminated areas under its jurisdiction or control»; and for (other) explosive remnants of war, Article 3 of the 2003 CCW Explosive Remnants of War Protocol (Protocol no. 5) provides a similar rule. All of these provisions also set out requirements to identify and mark contaminated areas, and to take all feasible measures to protect the civilian population against the threat that these ordnances represent.

In 2006, Norwegian media reported allegations that Norwegian military personnel who were involved with removing and destroying anti-personnel mines in the American-led operation “Enduring Freedom” in Afghanistan had omitted removing mines in order to protect American soldiers against attacks. It was further alleged that Afghan civilians were killed by these mines. This was not a United Nations peacekeeping operation, and the allegations were most vehemently denied by Norwegian authorities. But even without considering the veracity of the allegations or the validity of drawing an analogy to peacekeeping operations, one may ask: If a Troop Contributing Nation in this manner omits removing explosive ordnances in an area under its control, and civilians are killed or injured because of the omission, has there then been committed an internationally wrongful act? Has any de jure obligation been violated, and, if so, by whom? Can anybody be held accountable under international law?

The informed reader will here think about the European Court of Human Rights’ inadmissibility decision in the Behrami case. The case concerned an incident where some children while playing found a number of undetonated cluster bomb units, which had been dropped during the NATO bombardment in 1999. When a cluster bomb unit exploded, one boy was killed and another was seriously injured. It was alleged that UNMIK personnel were aware of the location of the units. The application was brought against concrete Troop Contributing Nations, but the Court declared the application inadmissible because the relevant omission was attributable to the United Nations, which fell outside the Court’s jurisdiction ratione personae. Accordingly, the Court didn’t consider whether the European Convention on Human Rights was applicable, and in any case it wouldn’t have had jurisdiction to consider the other conventions mentioned above.

The International Society for Military Law and the Law of War is presently developing a Manual of the International Law in Peace Operations, where this issue has arisen. After consultations with representatives from the UN Department of Peacekeeping Operations, it has become clear that the United Nations does not accept any legal obligation to remove explosive ordnances in areas within the control of an operation. The UN insists that the primary responsibility for demining and removal of explosive remnants lies with the host State, and it is necessary for the mandate to stipulate it if a peace operation should have any responsibilities for demining and removal of explosive remnants. It is worth noting in that regard that peacekeeping operations are rarely given a mandate to actively remove explosive remnants, but that mandates instead focus on providing assistance to other actors that perform the actual demining. By way of example, UN Security Council resolution 1244 (1999) gave KFOR the responsibility of «supervising demining until the international civil presence can, as appropriate, take over responsibility for this task», while resolution 1990 (2011) mandated UNISFA to «provide … de-mining assistance and technical advice». But if the mandate of an operation doesn’t specify a duty, what then applies? The conventions refer to the responsibility of States Parties, but if the United Nations is the responsible entity, then the conventions don’t apply. The United Nations position is that there doesn’t exist enough evidence to establish as a rule under customary international law that any actor that exercises jurisdiction or control over a contaminated area has an obligation to clear that area.

Even with regard to the duty to make feasible efforts to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants in affected areas under their control, the UN position is that any legal obligation to do so must stem either from the mandate or from the treaty obligations of a Troop Contributing Nation. The applicability of these treaty obligations for Troop Contributing Nations is a contentious issue that has not been authoritatively solved, and it may be argued that current operational practice does not support a claim that legal obligations to this effect exist during peace operations. If not, a responsibility to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants only applies to the extent that the mandate of the operation states this as a responsibility, and even then it may not qualify as a legal obligation.

Protection of civilians in peace opertions is a multifaceted issue. It is not only about the legal right or obligation to use force to protect civilians, it is much more. In the case of removal of explosive ordnances, the question is whether anyone has the positive obligation to protect the civilian population from threats. It can quite plausibly be argued that the United Nations has no such obligation since it’s not a party to any convention and since the relevant rules don’t qualify as customary international law, and that Troop Contibuting States can’t be held accountable when it participates in a UN peacekeeping operation, even if they would otherwise be bound by their treaty obligations. The legal challenges with regard to protection of civilians in peacekeeping operations remain considerable.

Protection of Civilians Symposium: Some Thoughts on the Use of Force by UN Peacekeeping Operations to Protect Civilians

by Marten Zwanenburg

[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]

In this post, I will focus on Mona’s chapter in “Protection of Civilians”, in which she addresses the issue of the use of force by UN peacekeeping operations for the protection of civilians.

Mona’s main point is that the mandate to use force to protect civilians is broad and deeply founded. However, a number of factors may have an inhibiting effect on the use of force by UN peacekeepers beyond self-defence and for the protection of civilians.

She points to a number of legal considerations that may impede carrying out a PoC mandate. While these undoubtedly play a role, I cannot escape the thought that the main obstacle appears to be unwillingness of TCC to put their troops in harm’s way, as well as the limited capabilities and resources available to many missions.

One of the factors Mona argues contributes to peacekeeping operations not fulfilling their PoC mandate is “complacency regarding the legal consequences of failure to fulfil the mandate.” This refers to the ultimate accountability of the Force Commander for both acts of commission and acts of omission when it comes to the use of force by military contingents under the mandate and ROE. This forms an interesting parallel to the question discussed by Siobhan whether the UN mandate imposes a positive obligation on a peacekeeping operation to protect civilians, In this context, Mona states when discussing self-defence that UN forces have not only the right but also the duty, under Chapter VII of the UN Charter, to use force where and when necessary and appropriate to pre-empt, prevent, deter and/or respond to targeted or systematic attacks on civilians within the limits of their capabilities and deployment. She thus appears to see the mandate as imposing a duty to use force in certain circumstances. This in contrast to Siobhan, who argues that a Chapter VII mandate authorizing use of force to protect civilians does not create an obligation to use force (although it may create an obligation to provide protection).

Another consideration Mona mentions is an inhibition to use force arising from fear of criminal accountability or loss of protected status (under IHL). Personally I wonder whether fear of loss of protected status plays an important role. This would assume that peacekeepers have an expectation that their opponents will act in accordance with IHL and respect their protected status under IHL as long as they do not directly participate in hostilities. I wonder whether they really do have such an expectation, for example vis-a-vis armed groups in the DRC or in Mali. Fear of criminal prosecution on the other hand seems a plausible factor in the minds of peacekeepers, judging from my own experience talking to military personnel. Although she doesn’t say to explicitly, Mona probably has fear of prosecution for the use of force in mind. Interestingly, the more protection of civilians is propagated as an obligation, the more likely that not using force may lead to prosecution. In this context, an interesting development in recent years was the (unsuccessful) attempt by relatives of men killed by the Bosnian Serbs in Srebrenica to have three members of Dutchbat prosecuted for not protecting those men.

A final consideration that Mona refers to is unwillingness to use force due to perceived contravention of the basic principles of peacekeeping. Her argument, with which I agree, is that the interpretation and application of these principles have evolved, to varying degrees, in a similar and corresponding manner as operations have evolved to become increasingly robust and operate in volatile environments. I find the development of a nuanced interpretation of consent particularly interesting in this regard. Traditionally, consent of the parties was seen as a fundamental principle of peacekeeping. As the High Level Independent Panel on Peace Operations stated: “In conflict management settings today, where fighting continues and is not confined to two parties, there may be practical obstacles to obtaining consent beyond that of the government. Clearly the consent of the government is fundamental for the deployment of a mission, and this should be reinforced. Obtaining and maintaining the consent of the other parties remains an important objective of any mission and should be pursued to the extent possible.” Even consent of the government is not always as black-and-white as this statement might suggest, however. Such consent may be equivocal and be manifested only to a limited degree in practice. This is illustrated by the recent initial refusal of the government of South Sudan to accept the deployment of additional UNMISS personnel, even though this increase was already part of a resolution adopted by the UN Security Council.

Protection of Civilians Symposium: Some Thoughts on Legal Obligations for UN Peacekeeping Operations to Protect Civilians

by Marten Zwanenburg

[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]

Let me start by saying that the publication of “Protection of Civilians” is very timely. As Ralph says in his introductory post, this topic is a well-established topic in international law but controversial in practice. The latter is particularly true in the context of peacekeeping operations.

In this post, I will focus on Siobhan’s chapter in the book. I will return to Mona’s chapter in a separate post.

Siobhan’s main proposition, with which I fully agree, is that relevant to peacekeeping operations are legal obligations to protect that are largely derived from international human rights law (IHRL), International Humanitarian law (IHL), and the law of international responsibility. I also agree with her that these obligations are relatively weak, but have important operational implications for UN missions. Siobhan’s contribution is especially important because it tries to tease out the latter, thus making the issue concrete.

One very interesting question that she raises, is whether the mandate of a UN mission creates obligations for the mission. In other words, if the mission fails to carry out its PoC task, can it be held responsible for failure to carry out the mandate?

UNSC resolutions clearly are not treaties, and thus a “breach” of a resolution is not a non-performance of a treaty obligation. An alternative could be to regard the mandate as a unilateral undertaking by the UN. Siobhan states that the majority view is that mandates provide an authorization to act but do not, in themselves, create any legal obligation to do so. However, she adds that some provisions in peacekeeping mandates do imply that at least those particular paragraphs are intended to be obligatory, such as e.g. an obligation report gross violations of human rights “immediately”. I have some doubts concerning the latter conclusion, however. For one, I would be very surprised if the drafters of the relevant resolutions considered that if e.g. UNMISS does not “immediately” report gross violations of human rights to the UNSC, this would constitute an internationally wrongful act. Another consideration is that the examples Siobhan gives all relate to things that the operations must do vis-a-vis the organization itself. In other words, they say that one part of the UN must do something vis-a-vis another part of the UN.

A very important conclusion that Siobhan draws from this is that, even in the absence of a specific task in its mandate, a UN peace operation has an obligation to protect. She does not pursue this thought further, but it is nevertheless interesting to do so. It makes me wonder whether it can be argued that this would mean that the UNSC must give every peace operation the task of protecting civilians, or that the UNSC must provide a peace operation with sufficient capabilities to enable a peace operation to carry out its PoC mandate/responsibility.

Siobhan discusses IHRL and IHL as possible sources of legal obligations on UN peace operations to protect civilians. In doing so, she focuses mostly on specific rules under these regimes and their interpretation. The legal basis for the UN being bound by these rules in the first place is discussed only very briefly, and almost seems to be taken for granted. This is of course a perfectly legitimate choice, since a book chapter does not lend itself to detailed analysis of every aspect, but it does make me interested in her underlying argumentation. This question will however probably become increasingly theoretical, as the notion that the UN is bound is increasingly accepted and the UN increasingly implicitly or even explicitly says so itself. In this sense the emphasis that Siobhan places on peremptory norms as those norms by which the UN is bound at a minimum, comes across as quite conservative.

Her reliance on articles 14 and 42 of the DARIO, on the other hand, seems somewhat too liberal. My own feeling is that state and organizational practice may not be sufficient to conclude that these articles have a customary law status (yet).

Another important question raised by Siobhan is the relationship between the obligations of the UN and those of the troop contributing states (TCC). Siobhan states that according to a number of courts, human rights violations of a UN Peacekeeping force may be attributable to the TCC, and possibly to both the UN and the contributing state. In discussing this issue, she focuses primarily on the exercise of (extraterritorial) jurisdiction, rather than on attribution issues. The attribution question is however highly interesting. Siobhan refers inter alia to the Nuhanovic and Mustafic cases. In these cases, the Dutch Supreme Court held that in the very specific circumstances of that case, conduct of Dutch peacekeepers could be attributed to the TCC. One may wonder whether courts would be willing to go even further and hold a TCC responsible for conduct that is a priori attributable to the UN. Arguably, the Bosphorus line of case law of the ECtHR could form the basis for such a finding.

The most important part of Siobhan’s contribution to me is the section on accountability. The usefulness of establishing whether or not the UN has legal obligations to protect civilians loses much of its relevance if there is no forum where a breach of those obligations can be invoked, Siobhan points to the extensive immunity of the UN, which as it is practically applied arguably goes beyond what is reasonable and necessary for the independent functioning of the organization. She rightly stresses that it is important that the Organization establishes mechanisms that promote accountability beyond legal and claims processes. This does not take away from the importance of also having adequate claims processes that take into account the human right of access to a judge. A recent statement by a UN spokesman relating to the Haiti cholera crisis might mean that the UN is looking at ways to increase its accountability but it is clear that it has a long way to go.

Without adequate mechanisms, it may be that judges will start chipping away at the immunity of the UN. Although hitherto judges have been very reluctant to set aside the immunity of the UN in particular, it may be that they will become increasingly willing to do so if the situation persists. Alternatively, claimants may try to turn to TCC, which they may perceive as easier to hold responsible than the UN itself. The Dutch Srebrenica cases could be seen as a first manifestation of this. If this would indeed become the trend, it could have precisely the result that then UNSG Kofi Annan invoked for an expansive reading an application of UN immunity and that is cited by Siobhan: “if we allowed our peacekeepers to be brought to courts and tried over matters like this, that would be the end of peacekeeping.”

Protection of Civilians Symposium: Will an Improved Legal Framework Affect the Situation on the Ground?

by Ray Murphy

[Ray Murphy is a Professor at the Irish Centre for Human Rights, School of Law, National University of Ireland Galway. This post is a part of the Protection of Civilians Symposium.]

Although there have been many pronouncements and reports on the need to protect civilians, it is debatable if this has translated into increased security on the ground. The emphasis seems to have been placed on the principle of protection rather than the actual result. This is a consequence of the gap between rhetoric and reality in many instances.

The legal framework for the protection of civilians in armed conflict can be found in international humanitarian law and international human rights law. I agree with the legal analysis outlined by Prof. Wills. Much of what she outlined was qualified, as many of the legal issues are not so clear-cut. Although it is evident that peacekeeping operations must comply with international human rights obligations, the scope and extent of the obligations is ambiguous. Nevertheless, human rights law has potentially more relevance for the protection of civilians.

I am not convinced that a ‘paper trail’ of security assessments and responses will necessarily have a huge impact. My fear is that it will be manipulated by military and other mission components and a policy of ‘cover yourself’ will be adopted by those on the ground. In this way a paper trail could even facilitate inertia rather than spur components to real action.

At the same time, the issues raised by Mona Khalil have much validity. Command and control of multinational operations and the related issue of attribution or responsibility also remain fundamental to UN peacekeeping. Operations can also be characterised by bureaucracy and a top-down approach to decision making that is cumbersome and inefficient. This can often be invoked as an excuse for inaction.

Obviously we all want to see a more effective PoC policy implemented. The UN human rights due diligence policy and launch of Human Rights Up Front campaign have helped. However, some of the confusion might be resolved by a Secretary-General’s bulletin setting out the applicability of human rights provisions to peace operations. Military components prefer to evaluate situations through the prism of international humanitarian law as this is more familiar territory in most cases. However, mainstreaming human rights in peace operations should be the priority and an international human rights framework outlined governing all UN operations. A bulletin could help clarify a range of issues, including the use of force and the positive obligation to protect, along with detention and reporting, and investigating violations and abuses.

When the UN finds itself confronting armed criminals, the human rights framework is the most appropriate. This does not preclude the triggering of international humanitarian law if and when a situation escalates to that of armed conflict.

Robust forms of peacekeeping involving the use of force, whether in self-defence or defence of the mandate, are common today. While there is a link between neutralizing armed groups and protection of civilians, they are not the same thing and offensive military operations risk retaliation against vulnerable civilians.

The so called Brahimi report had expressed dissatisfaction with the inability of peacekeepers to prevent violence and attacks on civilians. It deployed the ‘mismatch between desired objectives and resources’ and recommended the adoption of a PoC mandate and the capacity to enforce this in future operations (United Nations, Report of the Panel on UN Peacekeeping Operations, UN, A/55/305-S/2000/809, 23 August 2000, paras. 62-63). In so doing it was also blurring the distinction between traditional peacekeeping and peace enforcement operations. Many of the major contributing states were open to such a policy shift as it had become evident that they would no longer agree to participation in inadequately prepared and supported operations. This was especially so among the powerful states that had traditionally avoided participation in UN led operations and had a preference for UN approved missions led by NATO or a selected lead nation.

Any reasonable interpretation of the mandate and series of UN resolutions prior to the creation of the Force Intervention Brigade (FIB) in the DRC provide ample authority for coercive measures beyond the traditional self-defence mode. Unlike the creation of the FIB, the special measures (e.g. joint protection teams, community alert mechanisms, mobile operating bases) adopted by MONUC/MONUSCO, albeit with limited effectiveness, did not meet with opposition from humanitarian agencies or other third parties and did improve the situation for civilians.   It will be interesting to see how the Regional Protection Brigade in South Sudan interprets its PoC mandate and implements this on the ground. How will it distinguish itself from the FIB in the DRC?

A recurring flaw in missions to date has been the lack of commitment of the troop contributing states to the mandate. There appears to be a similar situation with regard to some contingent part of UNMISS in South Sudan. Furthermore, as discussed by Mona Khalil, contingent commanders consult with national governments before carrying out military operations or following the orders of the Force Commander. Such behaviour is common in all peacekeeping operations and is often to ensure that the action being pursued by the UN operation is not inconsistent with national policy as much as interests. Separate or parallel chains of command are not conducive to military effectiveness.

I am not sure that making commanders and other senior personnel criminally accountable for their failure to act would work in practice. But I would suggest adopting the human rights mechanism of naming and shaming contingents or components that failed to take appropriate action to fulfil the PoC mandate when they had the means and opportunity to do so. I would suggest that national authorities take disciplinary measures against commanders for dereliction of duty where appropriate, but looking at the response to sexual abuse and exploitation to date, this is not likely to be very successful.

After the widespread killings at the village of Mutarule in the DRC in 2014, the MONUSCO Force Commander was reported to have become very engaged and instructions were issued telling contingents that such atrocities were not acceptable and should be stopped. Such inaction reflects the broader culture of lack of commitment and even indifference displayed by military contingents part of the Force.

What is most needed is engagement and commitment by all those military, police and civilians in positions of authority. Without that, an improved legal framework is unlikely to change the situation on the ground.

Protection of Civilians Symposium: Why are UN Peacekeepers Failing to Protect Civilians?

by Mona Khalil

[Mona Khalil is a Legal Advisor with Independent Diplomat (ID) and formerly a Senior Legal Officer in the UN Office of the Legal Counsel; the views expressed herein are her own and do not necessarily represent the views of either ID or the UN. This post is a part of the Protection of Civilians Symposium.]

The protection of civilians (POC) mandate in UN peacekeeping was borne out of the failed UN mandates and genocidal massacres in Srebrenica and Rwanda.  Since the first POC mandate was entrusted to UNAMSIL in 1999, the Security Council (UNSC) has consistently authorized UN peacekeeping operations (UNPKOs) with explicit POC mandates and with explicit Chapter VII authority to use force to fulfill that mandate. UNPKOs no longer lack the authority, and in fact have a responsibility, to protect civilians from threats of physical violence.

Despite the POC mandates’ intended message that, never again, would UN forces stand by while civilians are being massacred in their areas of deployment, both the  UN Office of Internal Oversight Services and more recently the High-Level Panel on Peace Operations expressed serious concerns regarding the failure of UNPKOs to fulfill their POC mandate. The most recent events  in Malakal and Juba in South Sudan tragically highlight these failures and underline these concerns.

Both the relevant UNSC resolutions and the applicable rules of engagement (ROE) confirm the authority to use force, up to and including deadly force, to protect civilians against physical violence and the threat thereof.  Commanders and contingents alike have too often  failed to exercise their authority or to fulfill their duties in this regard. Such failures may, at least in part, be attributable to the following legal considerations.

A. Confusion regarding the legal terminology of the POC mandate

Several parts of the standard formulation authorizing UNPKOs to use force to protect civilians have been the subject of differing interpretations in the field — including a degree of confusion and possible conflation of three related but distinct protection concepts: R2P, the protected status of civilians under IHL, and the POC mandate.  While R2P is limited to genocide, war crimes, ethnic cleansing, and crimes against humanity, the POC mandate covers any and all forms of physical violence. While IHL imposes a negative obligation to avoid harming civilians,  the POC mandate involves an affirmative responsibility to proactively protect them from harm.   Moreover, while the proviso ‘within its capabilities and areas of deployment’ is intended to recognize the constraints on the ability of UNPKOs to deploy throughout the entire territory, the proviso has been misused as an excuse for unwilling military contingents to remain on their bases or in the immediate vicinity thereof fearing or failing to go to where the danger is.

B. Undue reliance on the primary responsibility of the host State

The phrase “without prejudice to the responsibility of the host Government” is intended to confirm that the UNPKO’s POC mandate does not relieve the host Government of its ultimate responsibility for the protection of civilians.  While the POC mandate includes assisting host governments to fulfill their responsibility, it also requires UNPKOs to act independently when the host Government is unable or unwilling, and even to take action against host Government forces where and when they pose a threat to civilians.  The POC mandate therefore applies “irrespective of the source of the threat”.  The first explicit reference to this understanding of the POC mandate appeared in UNSC resolution 2155 (2014), which mandated UNMISS to protect civilians under threat of physical violence “irrespective of the source of such violence’. Accordingly, the UNMISS forces cannot rely on any such legal obstacle to explain their failure to protect civilians from South Sudanese government forces in Malakal and Juba.

C. Failure to respect the command authority of the UN Force Commander

Pursuant to the UN ROE, the Force Commander has command responsibility to order the necessary and permissible use of force to fulfill the POC mandate.  To the extent that UN military contingents continue to be subject to their national command and exclusive criminal jurisdiction,  however, many contingents and their commanders do not fully accept the unified command and operational control of the UN Force Commander..  The resulting dual lines of authority undermine the authority of the UN Force Commander, the responsiveness of national contingents to his or her orders, and ultimately the credibility and effectiveness of the UNPKO. National caveats imposed by the TCCs further undermine the unified command and impede the uniform application of the ROE.

D. Lack of accountability

Under the POC operational concepts and strategies,  UNPKOs are intended to be constantly assessing threats and proactively taking measures to prevent, pre-empt or respond to those threats. The consistent reluctance or failure to use authorized force leads to escalation by virtue of the consequent perception that UN forces are unwilling or unable to act thereby undermining the UNPKO’s deterrent capacity and inviting further attacks against civilians as well as against the UNPKO itself. There has been little to no accountability for the failure of UNPKOs to fulfill their POC mandates or for the failure of UN Force Commanders to fulfill their command responsibility.  Equally disturbing is the lack of accountability for failures to obey the UN Force Commander’s lawful orders when and where they are duly given.

E. Inhibition to use force arising from fear of losing protected status under IHL

A UNPKO may indeed become a party to an ongoing non-international armed conflict where and when it engages in sustained or intensive armed hostilities, whether acting in self-defense or in furtherance of the POC mandate. In reality, when peacekeepers are deployed to neutralize threats in operating environments were there is no peace to keep, the likelihood of that eventuality is exponentially increased. The eventuality becomes an inevitability where the mandate itself places the UN forces in direct opposition with named actors, as was the case with MONUSCO in the DRC.

F. Constraints arising from traditional principles of UN peacekeeping

Many TCCs often invoke the traditional principles of UN peacekeeping to avoid using force in a manner consistent with the demands of the POC mandate failing to recognize the evolving nature of UN peacekeeping and the related principles which have evolved with it.

Consent: Host country consent continues to be the primary distinction between peacekeeping and peace enforcement. While the Security Council must invoke Chapter VII in the operative paragraphs authorizing UNPKOs to use force beyond self-defence, by referring to Chapter VII in the chapeau of an establishing resolution, the Security Council obfuscates the fact that the UNPKO and its mandate are being established with the consent of the Government further blurring the distinction between UNPKOs and the Chapter VII enforcement operations.

Impartiality: To the extent that the POC mandate requires UN peacekeepers to protect civilians regardless of the source of the threat, as a matter of policy, the POC framework arguably upholds the principle of impartiality. As a matter of practice, however, the unwillingness or inability of UN forces to respond to clear violations by host government forces, as we have seen most recently in South Sudan, calls into question both  the impartiality and the credibility of UNPKOs.

Self-defense: The inherent right of self-defence remains the primary basis for the use of force by UN peacekeepers and the use of force  remains a last resort in carrying out the  POC mandate. While the UNSC does not expect, and the levels of troops authorized do not allow, UNPKOs to prevent or respond to every threat within the territory, the UNSC, at a minimum, expects UNPKOs to act in the face of large scale and/or systematic attacks against civilians. Along with the mandate and authority given to them, the UN forces acquire a responsibility to use all necessary means including deadly force, to pre-empt, prevent, deter and/or respond to targeted or systematic attacks on civilians within their areas of deployment.

Conclusion

In addition to heinous acts of commission, including sexual exploitation and abuse by UN peacekeepers, which destroy the moral credibility of UNPKOs, acts of omission, such as the repeated failures to protect civilians from physical violence, undermine their operational credibility. More than fifteen years after the first explicit POC mandate was authorized by the UNSC, legitimate questions linger regarding UNPKOs readiness, willingness and ability to effectively carry out the POC mandate. While the willingness of TCCs to put their troops in harm’s way in the service of peace is noble, it cannot be taken for granted where and when such peace is absent or elusive. Nonetheless, POC is not only an explicitly mandated authority accorded to UN peacekeepers but also an affirmative duty expected from them.

Protection of Civilians Symposium: The Obligation to Protect Civilians     

by Siobhan Wills

[Siobhán Wills is a Professor of Law at the Transitional Justice Institute, Ulster University, Northern Ireland. This post is a part of the Protection of Civilians Symposium.]

In 2014 the UN Office of Internal Oversight Services published an ‘evaluation of the implementation and results of Protection of Civilians mandates in United Nations peacekeeping operations’ which:

noted a persistent pattern of peacekeeping operations not intervening with force when civilians are under attack…Partly as a result…civilians continue to suffer violence and displacement in many countries where United Nations missions hold protection of civilians mandates.

One of the many questions arising from this report is whether UN peacekeepers that have a mandate authorizing them to use force to provide protection are legally obliged to take action to protect civilians that are being attacked or about to be attacked.

My chapter in Protection of Civilians (eds Haidi Willmot, Ralph Mamiya, Scott Sheeran, and Marc Weller), argues that peacekeepers do have protection obligations but they are not obliged to use force to protect civilians even if the Security Council resolution mandating the mission authorizes them to do so, and even if the mission is well positioned to be able to use force in the particular circumstances. This is not a shortcoming in the legal regulation of peacekeeping. If peacekeepers routinely avoid using force to protect civilians when to do so would save lives, host state residents are unlikely to hold the mission in high regard; but to legally oblige a commander to use force to protect civilians on every occasion on which it would be feasible to do so, would likely cause serious operational problems and might prompt attacks on civilians in order to tie up mission personnel.

Traditionally peacekeeping mandates have been regarded as having a powers-creating character that does not create any obligation to act. Some peacekeeping mandates contain paragraphs that it would be difficult to interpret as merely powers-creating. For example S/Res 1996 authorized the UN Mission in South Sudan (UNMISS) to ‘report immediately’ gross violations of human rights to the Security Council. It makes no sense to interpret ‘report immediately’ as purely powers-creating unless the addressee is normally prohibited from reporting immediately – otherwise the adverb ‘immediately’ would be redundant.  But, such inconsistences notwithstanding, Security Council resolutions as a whole do not appear to be drafted with a view to creating obligations. The phrase ‘all necessary means,’ which is used to authorize force, is a euphemism and hence inherently opaque as to the scope and nature of the obligations that follow from its use. But the fact that a Chapter VII mandate authorizing use of force to protect of civilians does not create an obligation to use force (even if it is the only means of saving lives), does not mean that the mission has no obligation to provide protection pursuant to the ‘all necessary means’ authorization set out in the mandate.

Although the UN is not a party to any international treaties, it has a duty to uphold the human rights principles promulgated through the human rights regime it has created. At a minimum the UN is bound by peremptory norms, by its Charter, and by its own human rights undertakings as reflected in the resolutions and bulletins it has promulgated concerning itself. Troop-contributing states are directly bound by the human rights treaties to which they are party but a troop contributing state’s positive obligations under those treaties only apply extraterritorially to the extent that the state’s jurisdiction extends to the situation, which for the most part is based on whether the state has control over territory or over persons. But the human rights obligations of the UN itself (as distinct from the obligations of its member states) are not limited by territory – it has none. Provided the UN’s protection activities do not exceed the authorization set out in the mandating resolution, the Security Council mandate counters any ‘sovereignty’ based objections from the host state.

The Aide Memoire to the Secretary-General’s Human Rights Up Front (HRUF) Plan of Action states that  ‘[p]rotecting human rights is a core purpose of the United Nations and defines our identity as an organization.’ The HRUF Plan of Action ‘is designed primarily for settings where the UN does not have a political or peacekeeping mission’ but ‘its spirit can and should also be applied to “mission settings”’. The HRUF Plan of Action states that the UN will ‘put the imperative to protect people, wherever they may be, at the heart of UN strategies and operational activities.’ This is a clear positive commitment on the part of the UN to protecting human rights and protecting people from gross violations of those rights. In the case of Chapter VII mandated peacekeeping missions this commitment is usually backed up by Security Council authorizations to use ‘all necessary means.’ S/Res1894 states that ‘mandated protection activities must be given priority in decisions about the use of available capacity and resources.’

The existence of a protection of civilians mandate gives rise to the presumption that the mission is aware that civilians are at risk. In the event of a mission’s failure to protect, it will not be enough for the UN to say after the event that it tried to uphold the commitment it has made to ‘protecting people wherever they may be:’ it must be able to show it by producing evidence of the protection plan drawn up in response to the know threat to civilians and the efforts made to implement it. UN missions, as traditionally conceived, were thought of as having predominantly negative obligations, essentially to do no harm – and therefore they had considerable flexibility within the confines of its mandate as to how that mandate should be implemented, and also as to how decisions relating to the mandate are made, documented, and communicated. But an obligation to protect cannot be achieved simply by refraining from action. In order to fulfil a positive obligation to protect, in a situation where it is known that that attacks on civilians are likely, the mission must assess the probability, seriousness, and location of likely attacks; draw up plans to counter the risks to civilians that it has concluded are likely; document those plans; and pass that information up the chain of command to a level of seniority that can take responsibility for approving the effectiveness of the plans in light of the scale of likely harm. The mission is not obliged to use force; but it is obliged to carry out its protection plans, unless there is some intervening reason that renders the original response plan ineffective or harmful. Therefore, if the UN undertakes to protect people from violence and the Security Council has mandated the mission to use ‘all necessary means’ to provide that protection, that undertaking should shape the way the mandate is carried out both at the macro level (e.g. initial assessment of risks and operational planning in light of them) and at the micro-level (e.g. documenting and reporting of protection plans and of the steps taken to implement them at local level), and the continuous updating of protection plans in light of the continuous assessment of risks, assessed at both local and general level.

Human Rights Hypocrisy — Special Rapporteur for Torture Edition

by Kevin Jon Heller

PassBlue published a very disturbing article yesterday about nominations for five vacant UN Special Rapporteur positions. According to the article, although the President of the Human Rights Council, South Korea’s Choi Kyonglim, has endorsed four of the selection committee’s five first choices, he has refused to endorse its first choice for Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Karim Khan QC, in favour of the committee’s second choice, Nils Melzer. There is no question Melzer is a wonderful choice — he’s an accomplished scholar, has vast practical experience with the ICRC, and is a great person. The article suggests, however, that there may be a darker reason for Choi not endorsing Khan — Khan’s defence work at various international tribunals:

Khan has worked in the prosecutor’s office of the international criminal tribunals for the former Yugoslavia and Rwanda, two courts created to try perpetrators of grave crimes in the Yugoslav wars and Rwandan genocide of the 1990s. He has also represented victims in the Extraordinary Chambers of the Courts of Cambodia formed to prosecute culprits of the Cambodian genocide of the late 1970s.

Khan also has a rich history of defending suspects of mass atrocity crimes. His current clients include William S. Ruto, deputy president of Kenya, who until April was on trial at the International Criminal Court in The Hague, charged with crimes against humanity. Khan has also worked on the defense of Jean-Pierre Bemba, a former vice president of the Democratic Republic of the Congo. In June, Bemba was found guilty by the court of war crimes and crimes against humanity.

One academic critic, based in Britain, who spoke on condition of anonymity, said that Khan had not showed enough dedication to protecting victims, given his defense of alleged criminals. This work, the person said, could clash with Khan’s role as special rapporteur if he had been nominated by the council president, should accusations be made against Ruto or other potential clients of his. (The Ruto case was vacated because of witness interference, but could be reopened if new evidence surfaces.)

In his application for the UN role, Khan wrote that “having acted for all sides in cases where torture is alleged, not only helps demonstrate my independence and ability to be impartial, but I believe that it can lend additional credibility to my role as Special Rapporteur.”

The case involving Ruto was deeply marred by witness intimidation, according to Fatou Bensouda, the chief prosecutor of the International Criminal Court, and judges who heard the case. Fergal Gaynor, who represents victims in the court’s case against Uhuru M. Kenyatta, the president of Kenya, has also questioned the extent of Khan’s commitment to justice for victims of violence.

“Bribery and intimidation of witnesses can and does collapse legitimate cases,” he said. “It is fair to question whether Mr. Khan appreciates how interference with witnesses can completely deprive torture victims of the ability to know the truth about the crimes committed against them, to have the wrongfulness of the torture publicly acknowledged, and to receive fair compensation for that torture.”

In an interview in 2014, Khan said of witness problems in the case, “I’m not sure witnesses have been and are being intimidated in this case. As I said, I have prosecuted and defended and represented the victims, and every single case I’ve been involved in has been headlined by ‘This is unprecedented witness intimidation’ and ‘unprecedented’ this and that.”

John Washburn, convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, based at Columbia University, said the issue was “whether Khan’s actions as Ruto’s defense counsel displayed values and judgments that reflect on his suitability as rapporteur.”

The article is careful to avoid directly attributing these ideas to Choi. But given that Khan is the only first-choice candidate Choi has refused to endorse, it seems highly likely that Khan’s defence work is the reason. If so, that’s shocking. Defending individuals accused of serious international crimes is not inconsistent with human-rights work — it is human-rights work. It’s not an accident that Art. 14 of the ICCPR protects a defendant’s right to a fair trial. After all, show trials are a hallmark of repressive states, from Bangladesh to the United States.

This should be Human Rights 101. For some reason, though, the same “human-rights activists” who condemn unfair domestic criminal trials — special courts in Bangladesh and military commissions in the United States alike — fall silent when it comes to international trials. The tacit assumption — which should embarrass anyone who claims to care about human rights — is that an effective defence is unnecessary at international trials, because investigators always do a good job, the OTP is always motivated by a profound love of justice, judges are always infallible, and defendants are always guilty. All of those things are sometimes true. Perhaps even usually true. But not always. Sometimes an international tribunal doesn’t do its job and an innocent person is prosecuted. And it is precisely the job of skilled advocates like Khan to make sure those defendants are not convicted — or convicted only for crimes they actually committed.

I would say this about any defence attorney. (And of course I’m biased, having been one myself.) But it’s particularly appalling that Khan would be vilified for doing his job — anonymously, of course, because the British academic quoted above is a coward who wants to ensure his slander has no professional consequences. (As if anyone really cares what we academics think!) Khan has a sterling reputation as a defence attorney, no matter how contentious some of his trials might have been. I have never seen anyone claim — nor is there even the slightest evidence — that Khan was involved in the Kenyan government’s misconduct in Ruto. And I say that despite being completely convinced that the Kenyan government did, in fact, commit serious misconduct. The comments by Gaynor and Washburn are thus completely misplaced — and all too typical of the tendency, possessed by people who should know better, to conveniently forget that the right to a defence is a human right. But at least Gaynor and Washburn have the courage to attach their names to their opinions!

Finally, although it shouldn’t matter, it is worth remembering — as the article points out, to its credit — that Khan had a distinguished career as an international prosecutor before moving to the other side of the courtroom. He even has experience representing victims. Does he suddenly forget the importance of victims whenever he is retained to act for a defendant? Or does he simply understand that the rights of defendants are no less important than the rights of the other parties to a criminal trial?

I have no doubt Melzer, whom I’ve had the pleasure to know for more than a decade and think the world of, will make an excellent Special Rapporteur. But Khan would have made a great one, as well — and we are left to simply speculate how skilled Khan would have been at convincing states to cooperate with him, given his rich experience defending senior government officials. I hope, despite how it appears, that Choi preferred Melzer for reasons other than Khan’s work as a defence attorney. But if that is why he bypassed Khan, anyone who cares about human rights — all human rights — should be appalled.

Protection of Civilians Symposium: An Overview of Legal and Practical Challenges of Protecting Civilians in Peacekeeping

by Ralph Mamiya

[Ralph Mamiya is team leader for the Protection of Civilians Team in the UN Department of Peacekeeping Operations but writes here in a purely personal capacity, and the views expressed do not represent official positions of his Department or the United Nations.]

The protection of civilians is both a well-established topic in international law and also a relatively new and controversial phenomenon in practice. It incorporates aspects of international humanitarian law, international human rights law, international refugee law, as well as the law of jus in bello and the use of force.

Protection of Civilians, a new volume from Oxford University Press co-edited by Haidi Willmot, Scott Sheeran, Marc Weller and me, examines the range of law of practice that impact this topic. The book brings together a number of respected scholars and practitioners, including Jean-Marie Guéhenno, Andrew Clapham, Patrick Cammaert and Hugo Slim, to discuss the protection of civilians from a variety of perspectives. An important aim of this volume is to provide a comprehensive set of views on civilian protection, gathering together views from the often-disparate worlds of international law, humanitarian practice, diplomacy and peacekeeping, and to forge greater coherence.

The full spectrum of civilian protection, however, may be too much to cover in a brief symposium, and we chose to focus discussion on a highly topical but rarely discussed (from a legal perspective) issue: the protection of civilians by peacekeepers. This is topic particularly important to me in work on peacekeeping, though everything in this symposium is written in a personal capacity and does not necessarily reflect the views of the United Nations.

The Security Council first provided a mandate “to protect civilians from the imminent threat of physical violence” in 1999 for the UN Mission in Sierra Leone. Since that time, the Council has provided nearly every UN peacekeeping mission with a protection mandate and today more than 95 per cent of the approximately 100,000 blue helmets around the world work in missions with this mandate. The UN, the United States and NATO have all recently adopted protection of civilians doctrine.

Recent years have highlighted the challenges posed by the protection of civilians mandate, however. Incidents in South Sudan have highlighted the potentially devastating consequences for civilians when peacekeepers are unable to protect them. A 2014 evaluation of the UN Office of Internal Oversight Services found challenges in command and control and confusion over roles and responsibilities. Many of these challenges are practical and operational, as detailed in a recent report from the High-level Independent Panel on Peace Operations; they challenges are inherent to assembling an expansive and diverse set of military and civilian actors from different countries, often working in hugely difficult situations.

Legal aspects of the protection of civilians mandate are rarely discussed, however. Does the Security Council’s language, which is often emphatic, create legal obligations for peacekeepers? If so, of what kind? Recent cases in European courts (see here) have begun to address failures by peacekeepers, including the Mothers of Srebrenica decision that held Dutch peacekeepers responsible under national jurisdiction. Notably, however, these cases did not involve the modern protection of civilians mandate.

Our panelists will address these issues in the coming week. We will begin with posts from two contributors to the book, Siobhan Wills, Professor of Law at the University of Ulster, and Mona Khalil, Legal Advisor to the diplomatic advisory firm Independent Diplomat and a former UN Senior Legal Officer. We will also hear from Professor Ray Murphy of NUI Galway, Marten Zwanenburg, Legal Counsel for the government of the Netherlands, and Professor Kjetil Mujezinović Larsen of the University of Oslo.

On behalf of the other editors, let me express my gratitude to Opinio Juris for what I have no doubt will be an interesting symposium, and many thanks to the esteemed panelists we will have with us for the next few days.

Protection of Civilians Symposium

by Jessica Dorsey

This week, we are hosting a symposium on the Protection of Civilians, a volume recently published by Oxford University Press, edited by Haidi Willmot, United Nations Department of Peacekeeping Operations; Ralph Mamiya, team leader, Protections of Civilians at the United Nations’ Department of Peacekeeping Operations; Scott Sheeran, Senior Lecturer, Director of the LLMs and MAs in International Human Rights, School of Law and Human Rights Centre, University of Essex; and Marc Weller, Professor of International Law and International Constitutional Studies, at the University of Cambridge, and the Director of the Lauterpacht Centre for International Law.

The volume’s description:

The protection of civilians is a highly topical issue at the forefront of international discourse, and has taken a prominent role in many international deployments. It has been at the centre of debates on the NATO intervention in Libya, UN deployments in Darfur, South Sudan, and the Democratic Republic of the Congo, and on the failures of the international community in Sri Lanka and Syria. Variously described as a moral responsibility, a legal obligation, a mandated peacekeeping task, and the culmination of humanitarian activity, it has become a high-profile concern of governments, international organisations, and civil society, and a central issue in international peace and security.

This book offers a multidisciplinary treatment of this important topic, harnessing perspectives from international law and international relations, traversing academia and practice. Moving from the historical and philosophical development of the civilian protection concept, through relevant bodies of international law and normative underpinnings, and on to politics and practice, the volume presents coherent cross-cutting analysis of the realities of conflict and diplomacy. In doing so, it engages a series of current debates, including on the role of politics in what has often been characterized as a humanitarian endeavour, and the challenges and impacts of the use of force.

The work brings together a wide array of eminent academics and respected practitioners, incorporating contributions from legal scholars and ethicists, political commentators, diplomats, UN officials, military commanders, development experts and humanitarian aid workers. As the most comprehensive publication on the subject, this will be a first port of call for anyone studying or working towards a better protection of civilians in conflict.

In addition to Ralph Mamiya’s introductory and concluding remarks, there will be posts from Siobhan Wills, Mona Ali Khalil, Ray Murphy, Marten Zwanenburg and Kjetil Mujezinović Larsen. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

Emerging Voices Symposium 2016 Comes to a Close

by Jessica Dorsey

The summer is coming to a close and so is our fourth annual Emerging Voices Symposium. We have featured fantastic posts from emerging scholars, practitioners and students over the course of the summer and a roundup follows of what it is that they have covered.

Alexandra Hofer started our 2016 edition off with her post on assessing the role of the European Union as an enforcer of international law in the Ukranian crisis, concluding that both the EU and Russia ought to change their practices in order to escape the stalemate in which they currently find themselves. Wolfgang Alschner weighed in on a novel approach to dealing with the complexities of international law in his post on computational analysis of international law, specifically focusing on text-as-data tools for investigating international investment agreements.

Our next post featured an analysis by Andrea Bowdren of the trial of Ahmed Al Faqi Al Mahdi before the International Criminal Court, which represented a series of firsts for international law and justice. as Al Mahdi is the first individual from Mali brought before the ICC, the first Islamic extremist to face charges at the ICC, the first individual to be prosecuted solely for cultural destruction as a war crime, and the first individual who indicated an intention to plead guilty to an ICC charge (which he subsequently did). John Coyle asked whether foreign investors can enforce international investment law in U.S. courts, and after a careful analysis concluded that the government should at least consider the possibility that an FCN treaty might impose legally enforceable limitations on its freedom of action.

The Symposium continued with Jenny Poon’s insightful contribution discussing whether the margin of appreciation accorded to European Union Member States is too wide, which may lead to violations of international law and used the topic of asylum as a lens in which to analyze this question, ultimately calling for more clarification on the margin of appreciation in order to protect the rights of the vulnerable. Myriam Feinberg weighed in with a thoughtful analysis of the role of international organizations in the context of sovereignty in the age of global terrorism, contending that this can be examined in the wider context of state sovereignty, even though a number of international law analyses consider the concept of State sovereignty obsolete or in need of reform.

Amina Adanan discussed the role of national prosecutors in the context of domestic regulation of universal jurisdiction, concluding, in particular, a balance must be struck between prosecutorial discretion and the need to prevent impunity for the worst atrocities, after a thorough analysis. Finally, Grazyna Baranowska analyzed the European Court of Human Rights and women affected by the disapperance of their relatives, positing several alternatives for action and concluding that actions that countries should take in order to address specific needs of female relatives of disappeared persons face could be included in ECtHR judgments.

Thank you again to all of our participants. We hope you have all enjoyed reading and interacting with the contributions in our fourth annual Emerging Voices Symposium.

Emerging Voices: The European Court of Human Rights and Women Affected by Enforced Disappearances of Their Relatives

by Grazyna Baranowska

[Grazyna Baranowska is a Senior Researcher at the Poznań Human Rights Centre of the Institute of Law Studies of the Polish Academy of Sciences.]

The nature of enforced disappearances is that it affects whole families, rather than only the individuals who disappeared. While the majority of the forcibly disappeared are men, these disappearances have a strong economic, socials and psychological effects on the wives/partners of the disappeared.

The impact of enforced disappearances on women has been recognized by the Working Groups on Enforced and Involuntary Disappearances. In the Preamble to the General comment on women affected by enforced disappearances it is stated that:

“(…) gender equality and the empowerment of women are essential tools to address the situation that women victims of enforced disappearances face. A gender perspective is crucial in explaining, understanding and dealing with unique disadvantages and obstacles that women face in the exercise of their human rights and to outline solutions to try and address these issues. (…)The experience of the Working Group demonstrates that the effects of enforced disappearances are lived and faced in different ways by women and girls due to gender roles, which are deeply embedded in history, tradition, religion and culture (…).”

International law considers the ‘victims of enforced disappearances’ to be both the disappeared persons and any individuals who have suffered harm as a direct result of a disappearance (art. 24.1 International Convention for the Protection of All Persons from Enforced Disappearance, ICPPED). Even though ICPPED does not have a gendered perspective, the effects of disappearances on women had been discussed since the second session of the Committee of Enforced Disappearances in March 2012. The results of these discussions have been included in the document on relationship with NGO’s: the Committee encouraged integration of a gender perspective in submissions and consultation of women’s organization and women human rights defenders.

The European Court of Human Rights also recognizes that disappearances violate  the rights of a disappeared persons’ families As stated by the ECtHR: “The phenomenon of disappearances imposes a particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty” (Varnava v. Turkey). In Çakıcı v. Turkey, the ECtHR  found that art. 3 of the ECHR was violated with regard to the disappeared persons’ relatives when their suffering has a character and dimension distinct from the emotional distress stemming inevitably from the violation itself.

The court established ‘special factors’ in this context, covering: (1) the proximity of the family tie, (2) the particular circumstances of the relationship, (3) the extent to which family members witnessed the events, (4) their involvement in the attempts to obtain information and (5) the way in which the authorities responded to those enquiries (Çakıcı v. Turkey, par. 98).

Those factors have been developed in subsequent judgments. Recently, the ECtHR has tended to focus on the last aspect – the authorities’ reaction and attitude to the situation when it is brought to their attention (Khachukayevy v. Russia, par. 73; Khava Aziyeva v. Russia, par. 96).

During the first decade of disappearance cases before the ECtHR, the Court attached great importance to the involvement of the applicant in the attempts to obtain information and direct contact with authorities (see for example Nenkayev and others v. Russia, par. 168).  However, this has changed over time. In the applications against Russia, which currently constitute the vast majority of disappearances cases, very often whole families are applicants and the ECtHR has in most cases not differentiated between the applicants, even when some of them were more involved in the inquiries. Nevertheless there are still cases when all of the ‘special factors’ are brought up by the ECtHR.

The “special factors” established by the ECtHR are not gender-sensitive: requiring involvement in the attempts to obtain information might be difficult for a woman especially when – after the disappearance of her partner – she is the single parent of small children. This is further exacerbated in patriarchal societies, were male relatives traditionally represent women in their contact with authorities. Furthermore the illiteracy rate is higher among women in the countries from which the enforced disappearance cases to the ECtHR origin from and in minority communities (such as Kurds and Chechens) the language barrier is an additional obstacle, especially for women.

Due to these factors, a  substantial number of applicants before the ECtHR in cases against Turkey are men. These cases thus result in finding that men– often the brothers of disappeared—as opposed to the wives, are thevictims of violations of article 3 of the ECHR. When the wife is an applicant, she is usually accompanied by male members of the family, as has been the case in the majority of applications against Russia. There is a very limited number of cases submitted solely by women.

Therefore, although women are strongly affected by enforced disappearances of their male relatives/partners, they are less often authors of applications and if men are representing them in contact with authorities due to the ‘special factors’, they are less likely to be found victims of violation of art. 3 of the ECHR. A striking example of such a way of reasoning was a judgment, in which the ECtHR found no violation of article 3 of the ECHR because the wife of the disappeared failed to demonstrate that she was involved in the ongoing investigation pertaining to the disappearance of the husband (Nesibe Haran, 83).

In order to recognize the suffering of women relatives of disappeared persons, it would be beneficial to rethink the “special factors.” This could be done through resigning from the requirement of involvement in the attempts to obtain information. Alternatively the ECtHR could analyze how the applicant is affected by the disappearance and its consequences. This would make it possible for the applicants and their representative to show the particularly difficult situation for the female relatives of the disappeared person. The Court could also – just like other international bodies – completely abandon the “special factors.”

Second, the ECtHR could reconsider analyzing a violation of the rights of family members of a disappeared person under article 8 of the ECHR, guaranteeing right to respect for private and family life. This has been raised previously by a number of applicants, but it has rejected by the ECtHR. Article 8 of the ECHR could be used to recognize the vulnerable situation of female relatives of disappeared persons.

A third possibility would be to recognize at the enforcement stage the particular effect enforced disappearances of family members have on women. In the judgment Alakhanova and others v. Russia the ECtHR provided “guidance on certain measures that had to be taken by the Russian authorities to address the systemic failure to investigate disappearances in the Northern Caucasus.” Currently the Committee of Ministers expects Russia to address those measures in order to implement the disappearances judgments. Therefore, actions that countries should take in order to address specific needs of female relatives of disappeared persons face could be included in the ECtHR judgment.

Events and Announcements: September 3, 2016

by Jessica Dorsey

Event

Calls for Papers

  • The Wisconsin International Law Journal announces its Annual Symposium March 31, 2017, University of Wisconsin Law School with the theme of: “Regional Human Rights Systems in Crisis.” For this event, they have issued this call for papers. WILJ invites submission of abstracts of not more than 500 words from legal scholars and practitioners in the fields of regional human rights and international law. The submission deadline is September 15, 2016, and applicants will be notified by October 10, 2016.
  • Call for Papers: Cognitive Sociology, Culture, and International Law. iCourts, Centre of Excellence for International Courts, University of Copenhagen, 28-29 April 2017The third workshop on the sociology of international law aims to break open the study of interactions between various cognitive processes and the formation, interpretation and implementation of international law. More information can be found here.
  • The Cambridge International Law Journal (CILJ) is a double-blind, peer-reviewed journal run by members of the postgraduate community at the Cambridge University Law Faculty. The CILJ is the successor journal to the Cambridge Journal of International and Comparative Law (www.cjicl.org.uk) and is now published by Edward Elgar Publishing. The Editorial Board is pleased to invite submissions for its sixth volume. General call for submissions – International law The Board welcomes long articles, short articles, case notes and book reviews that engage with current themes in international law and EU law. All submissions are subject to double-blind peer review by our Editorial Board. In addition, all long articles are sent to our Academic Review Board, which consists of distinguished international law scholars and practitioners. The deadline for submissions is 28th October 2016 at 11.59 p.m. Submissions received by this date will be considered for publication in Volume 6, Issue 1, to be published in Spring 2017. Further submission information The Journal accepts the following types of manuscript:

    1. Long Articles between 6,000 and 10,000 words but not exceeding 12,000 words including footnotes;
    2. Short Articles not exceeding 6,000 words including footnotes;
    3. Case Notes, including substantive analysis, not exceeding 3000 words including footnotes; and
    4. Book Reviews not exceeding 2500 words including footnotes.
    Please list the word count of the text and the footnotes on your manuscript. All copies must be submitted in Word (.doc) or (.docx) format and must conform to our style guidelines, which are available at the following links: OSCOLA Fourth editionOSCOLA: Citing International Law Sources. To submit, please follow this link. Please ensure that your manuscript does not contain any reference to your personal or professional identity. For further information, please email us at editors [at] cilj [dot] co [dot] uk

Announcements

  • The Centre for War Studies (CWS) at the University of Southern Denmark in Odense is currently advertising a post as Assistant Professor with starting date 1 November 2016 or soon thereafter. CWS is an interdisciplinary research centre rooted in the Departments of Political Science, Law and Cultural Studies. The successful applicant will be skilled at organizing policy and public outreach activities, including workshops, partner networks and various communication platforms. The teaching load will include contributions to the interdisciplinary master degree in “International Security and Law”. The successful candidate can be trained either in international law or international relations, but should research issues of relevance to both communities. This position has been created to advance both interdisciplinary research collaboration and outreach, and if after three years the initiative proves successful, the Departments of Political Science and Law will fund a tenured position, budgets allowing. For more information and the application form see the official job advert. The deadline for applications is 15 September 2016.
  • 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 Emmanuel Decaux on “Les défis juridiques de la Convention internationale pour la protection de toutes les personnes contre les disparitions forcées” and Mr. Olufemi Elias on “An Introduction to the Law of the International Civil Service”, “The Chemical Weapons Convention, the Organisation for the Prohibition of Chemical Weapons and Non-State Actors”.
  • The ICRC has recently issued its quarterly bibliographyFor older issues, comments, unsubscribing and feedback, please contact library [at] icrc [dot] org  We take this opportunity to inform you that the annual version for the year 2015 will soon be out (paper and ebook).
    If you wish to receive a paper copy either for yourself or for your institution’s library, we will be glad to send you one free of charge. Please send an email to library [at] icrc [dot] org with the following subject: IHL bibliography 2015 – order.
  • The European Inter-University Centre for Human Rights and Democratisation (EIUC) is proud to launch the first MOOC of the Global Campus Open Learning Series. With contributions by academic and experts from all the regions of the world, the Global Campus massive online courses provide open access to highly qualified learning on topical human rights concerns. The Series opens on 12 September 2016 with a MOOC on “Disability as a human rights issue: global and national perspectives”.
    Enrolment to our GC MOOC is FREE and available on Canvas.net until 14 October 2016
    Course dates: 12 September-24 October 2016
    Duration: 6 weeks – Commitment: 5 hours/week
    Requirements: participation in 4 weekly discussions and completion of 2 quizzes
    Course type: instructor-led
    Credentials: certificate of participation

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.