Archive for
March, 2017

Bad Criminal Law in the Alexander Blackman Case (With Addendum)

by Kevin Jon Heller

In September 2011, Alexander Blackman, a Sergeant in the Royal Marines serving in Afghanistan, executed a Taliban fighter who had been incapacitated by his wounds.This was no spur-of-the-moment killing, as video recovered one year later makes clear. Here is the Court Martial’s summary of Blackman’s actions, as shown on the video:

[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [Blackman] found him he was no longer a threat. Having removed his AK47, magazines and a grenade, [Blackman] caused him to be moved [because Blackman] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [Blackman] said: ‘PGSS can’t see what we are doing to him.

He was handled in a robust manner by those under [Blackman’s] command clearly causing him additional pain and [Blackman] did nothing to stop them from treating him in that way. When out of view of the PGSS [Blackman] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.

When [Blackman was] sure the Apache helicopter was out of sight, [Blackman] calmly discharged a nine millimetre round into his chest from close range. [Blackman’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence. It was rejected by the Board.

Although the insurgent may have died from his wounds sustained in the engagement by the Apache [Blackman] gave him no chance of survival. [Blackman] intended to kill him and that shot certainly hastened his death.

[Blackman] then told [his] patrol they were not to say anything about what had just happened and [Blackman] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.”

Not surprisingly, the Court Martial convicted Blackman of murder and sentenced him to life imprisonment. All of his fellow soldiers were acquitted.

Fast forward to last week — when the Court Martial Appeal Court (CMAC) allowed Blackman’s appeal, substituted a verdict of manslaughter for murder on the ground of diminished responsibility, and reduced his sentence to seven years imprisonment. Blackman will be a free man, with an honourable discharge from the Royal Marines, in a couple of weeks.

From a criminal law perspective, I find CMAC’s judgment profoundly unconvincing. I will explain why in this post.

CMAC’s reasoning proceeded in three steps. First, it found that Blackman had suffered from an “adjustment disorder” at the time of the killing…

Can’t Britain Exit Brexit?

by Edward Swaine

Yesterday, Prime Minister Theresa May had hand-delivered to Brussels—via a black Jaguar, taking a secret route!—a notice “in accordance with Article 50(2) of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union.”  Brexit is happening, even if, pending negotiations, it has not yet happened. Must it?  Most Brexit questions are political, or raise questions of UK or EU law, but one interesting international law issue is the stickiness of notice under Article 50—whether (legally speaking) the UK’s notice of withdrawal is irrevocable. This issue has grown steadily murkier, but now it’s more relevant than ever, and the UK should make its views clearer. Continue Reading…

IHL Does Not Authorise Detention in NIAC: A Response to Murray

by Kevin Jon Heller

Over the past couple of years, a number of scholars — including me — have debated whether IHL implicitly authorises detention in non-international armed conflict (NIAC.) The latest intervention in the debate comes courtesy of Daragh Murray in the Leiden Journal of International Law. As the article’s abstract makes clear, Murray is firmly in the “IHL authorises” camp:

On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups.

I disagree that IHL cannot regulate non-state actor (NSA) detention in NIAC unless it authorises that detention, for reasons I will explain in this post. Before we get to Murray’s argument, however, it is important to remind ourselves of what is at stake in the debate. Put simply, if Murray is right and IHL authorises NSAs to detain, two significant consequences follow: (1) states have no right to prosecute NSAs who detain government soldiers, even if such detention would qualify as kidnapping or wrongful imprisonment under domestic criminal law; and (2) NSAs have the right to detain government soldiers for as long as they pose a “security threat” to the NSA — ie, essentially forever. In other words, FARC could detain a Colombian soldier for five decades and Colombia couldn’t prosecute the commander responsible for that detention as long as FARC complied with NIAC’s procedural restrictions on detention.

Now let’s turn to Murray’s argument. Here are the critical paragraphs in the article:

[I]nternational law cannot regulate activity that is subject to an absolute prohibition. For example, instances of torture cannot be regulated as torture is subject to an absolute prohibition. The same is true with respect to armed group detention in non-international armed conflict: the absolute prohibition of arbitrary detention precludes the possibility of regulating arbitrary detention (p. 9)

Two possibilities are open: either international humanitarian law establishes an implicit legal basis for detention, or it does not and the authority to detain must be established elsewhere. If international humanitarian law does not establish an implicit legal basis for detention then all instances of detention by armed groups will necessarily violate the prohibition of arbitrary detention as a legal basis for armed group detention does not exist under domestic law or elsewhere in international law. Yet, to interpret Common Article 3 and Article 5 Additional Protocol II in this way is to conclude that states have developed international treaty law to regulate detention operations by armed groups, despite the fact that all instances of armed group detention are illegal. This interpretation is incapable of giving effect to states’ intentions, and to the object and purpose of the provisions themselves. As discussed above, states cannot regulate that which is absolutely prohibited, and so the only means by which Common Article 3 and Article 5 Additional Protocol II can regulate detention by armed groups is if these provisions establish an implicit legal basis for that detention  (p. 14)

The first thing to note is that the torture analogy is misplaced. International law does indeed absolutely prohibit torture. But it does not absolutely prohibit detention — not even in NIAC. On the contrary, a state is free to detain as long as it adopts the necessary domestic legislation. It is even free to domestically authorise an NSA to detain, as well. (Which is not absurd. A state may well conclude that an NSA is more likely to treat captured government soldiers humanely if it does not prohibit the very act of detention.) So what Murray is actually arguing is that because most states choose not to authorise NSAs to detain, international humanitarian law (IHL) necessarily authorises it for them so they can regulate that detention. That’s a very puzzling claim, given that states are the authors of IHL.

The fundamental problem with Murray’s position, however, is that it is simply not the case that IHL can’t regulate a practice that international law absolutely prohibits. I will discuss in a minute the situation regarding detention in NIAC, in which the regulation and the prohibition come from different legal regimes — regulation from IHL, prohibition from international human rights law (IHRL). But before doing so, it is worth noting that Murray’s argument does not work even when the regulation and the prohibition come from the same legal regime — a situation in which you would think Murray’s argument would be even stronger…

So . . . What do you think should be in your international law textbook?

by Duncan Hollis

I’m honored to have been invited by Allen Weiner to join him in the forthcoming 7th edition of the textbook, International Law, which he previously edited with the late Professor Barry Carter. We’re just beginning the effort of pulling together the new edition for Aspen this Spring and Summer.

Before we get too far along, I wanted to invite feedback from readers who have used the textbook on what they think of the text.  In particular, we’re interested in hearing about areas that we should be focusing on more closely or areas that we need to avoid cutting as we try to keep the text to a manageable length.  That said, I’d welcome more general feedback on what you like or don’t like about the textbook as well.  Moreover, for those of you who haven’t read it, I’d be interested in suggestions for cases or materials you’ve always wanted to see included in a basic introductory text for international law that have yet to receive sufficient attention.

Of course, I can’t guarantee that we’ll be able to respond to any and all suggestions, let alone adjust the next edition too dramatically from its roots.  Still, I know I speak for Allen in saying that we want to have an open door to new ideas and concepts.  So, feel free to comment below or e-mail me directly if you have suggestions, criticisms, or other thoughts to offer.  Thanks!


The Disappearing UN Report on Israeli “Apartheid”

by Kevin Jon Heller

Last week, the UN Economic and Social Commission for Western Asia (ESCWA) sent shockwaves through the international community by issuing a report that — for the first time in UN history — claims Israel’s treatment of Palestinians amounts to the crime of apartheid. Here is ESCWA’s description of the report, entitled “Israeli Practices towards the Palestinian People and the Question of Apartheid,” which was officially commissioned by ESCWA but does not purport to represent the official opinion of the UN:

This report examines, based on key instruments of international law, whether Israel has established an apartheid regime that oppresses and dominates the Palestinian people as a whole. Having established that the crime of apartheid has universal application, that the question of the status of the Palestinians as a people is settled in law, and that the crime of apartheid should be considered at the level of the State, the report sets out to demonstrate how Israel has imposed such a system on the Palestinians in order to maintain the domination of one racial group over others.

A history of war, annexation and expulsions, as well as a series of practices, has left the Palestinian people fragmented into four distinct population groups, three of them (citizens of Israel, residents of East Jerusalem and the populace under occupation in the West Bank and Gaza) living under direct Israeli rule and the remainder, refugees and involuntary exiles, living beyond. This fragmentation, coupled with the application of discrete bodies of law to those groups, lie at the heart of the apartheid regime. They serve to enfeeble opposition to it and to veil its very existence. This report concludes, on the basis of overwhelming evidence, that Israel is guilty of the crime of apartheid, and urges swift action to oppose and end it.

Predictably, the ESCWA report enraged Israel and the United States. Both states pressured the UN to withdraw the report — and to his lasting shame, the Secretary General, António Guterres, quickly folded. (Claiming, truly beggaring belief, that the decision had nothing to do with the report’s content.) Although you can still find the press release on ESCWA’s website, the report has been scrubbed from the webpage containing all of ESCWA’s reports. Only the Executive Summary remains — and it can only be found by entering the title of the report into Google and looking for the ESCWA link.

As critical as I am of Israel’s unconscionable oppression of and violence toward Palestinians, I have never accused Israel of practicing apartheid. But there is absolutely no justification for the UN suppressing an official report issued by one of the regional offices of the Economic and Social Council — particularly in response to pressure from the object of that report (and its chief enabler). Nor is this the first time the UN has bowed to Israeli pressure: recall Ban Ki-moon’s indefensible decision in 2015 to remove Israel from the UN’s “list of shame” of children’s rights violators. Unfortunately, it appears his successor will be no less craven.

That said, at least one UN official has the courage of her convictions. Rima Khalaf, the UN Under-Secretary General and Executive Secretary of ESCWA, reacted to Guterres’ decision to scrub the report by immediately resigning.

You can find a copy of the 74-page report here. Do what the Israel, the US, and the UN don’t want you to do — read the report and decide the apartheid question for yourself.

NATO, in Nine Tweets

by Chris Borgen

This morning President Trump tweeted that “Germany owes vast sums of money to NATO & the United States must be paid more for the powerful, and very expensive, defense it provides to Germany!”

But that’s not how NATO commitments work. And so this afternoon, former US Ambassador to NATO Ivo Daalder gave President Trump a tutorial in nine tweets.

Maybe we can get someone to read the tweets aloud on Fox & Friends.


America’s Hubris, Cambodia Version

by Kevin Jon Heller

It is difficult to overstate the horrors the US inflicted on Cambodia from the air during the Vietnam War: 230,000 sorties involving 113,000 different sites; 500,000 tonnes of bombs, as much as the US dropped in the entire Pacific theatre during WW II; at least 50,000, and probably closer to 150,000, innocent civilians killed. Even worse, that bombing campaign, along with the US-backed coup against Prince Sihanouk in 1970, is widely credited with helping bring Pol Pot and the Khmer Rouge to power, and we know how that turned out — at least 1.7 million Cambodians murdered, an auto-genocide of epic proportions.

The US has never apologized for its actions in Cambodia. President Obama didn’t even mention the Vietnam War when he became the first President to visit Cambodia in 2012. The Trump administration, however, is not afraid to discuss Vietnam. On the contrary, it is currently very interested in discussing US actions during the war — to demand that Cambodia pay back $500 million it owes the US for providing support to Lon Nol’s unpopular regime:

The debt started out as a US$274 million loan mostly for food supplies to the then US-backed Lon Nol government but has almost doubled over the years as Cambodia refused to enter into a re-payment program.

William Heidt, the US’s ambassador in Phnom Penh, said Cambodia’s failure to pay back the debt puts it in league with Sudan, Somalia and Zimbabwe.

“To me, Cambodia does not look like a country that should be in arrears…buildings coming up all over the city, foreign investment coming in, government revenue is rapidly rising,” Mr Heidt was quoted as saying by the Cambodia Daily.

“I’m saying it is in Cambodia’s interest not to look to the past, but to look at how to solve this because it’s important to Cambodia’s future,” he said, adding that the US has never seriously considered cancelling the debt.

Look forward, not backward. Where have we heard that before?

I have little doubt that Cambodia’s debt to the US is valid under international law. But that does not mean the US has the moral right to demand payment — much less to compare Cambodia to debt scofflaws like Zimbabwe. (How much does the US owe the UN right now? It was almost $3 billion at the end of 2015.) As James Pringle, Reuters bureau chief in Ho Chi Minh city during the Vietnam War, recently wrote in the Cambodia Daily, “Cambodia does not owe even a brass farthing to the U.S. for help in destroying its people, its wild animals, its rice fields and forest cover.”

But what do I know? Perhaps Donald Trump needs the $500 million to finance the US’s current bombing campaigns in Iraq, Libya, Somalia, Syria, Yemen, Pakistan, and Afghanistan.

Or to build the wall between the US and Mexico.

The impact of Morocco’s admission to the African Union on the dispute over the Western Sahara

by Alonso Illueca and Sophocles Kitharidis

[Alonso Illueca is Adjunct Professor of International Law at Universidad Católica Santa María La Antigua (Panama) and holds an LL.M. from Columbia University, where he specialised in Public International Law. His main fields of research include recognition of states and governments, the law of treaties, and the use of force. Sophocles Kitharidis is a sessional academic at Monash University and holds an LL.M from the University of Melbourne, where he specialised in Public International Law. He has worked and published within the field of public international law, with his current fields of research including the use of force, peacekeeping operations and the law of international organisations.]

On 30 January 2017, Morocco was admitted to the African Union (AU) after previously withdrawing more than three decades ago, from the Organization of African Unity (its predecessor). Morocco became the 55th Member State of the AU, a decision adopted by “consensus”.  Nevertheless, as many as 15 Member States, inter alia, South Africa and Algeria, initially stressed their disapproval of Morocco’s bid. These States were concerned with the simultaneous debate on the question of the Western Sahara and the status of the Sahrawi Arab Democratic Republic (SADR) in the AU.

The return of Morocco to Africa’s regional organization raises a plethora of issues within the field of Statehood. One central issue explored below is whether Morocco’s membership to the AU, has a practical effect on the SADR’s claim of statehood, given the SADR membership to the regional organization.  In addition, what are the legal consequences of Morocco’s action vis-à-vis the SADR?

The UN and the question of recognition of States

The status of the Western Sahara remains a contested issue since the 1970s. This situation has been the subject of a treaty (Madrid Accords), the advisory jurisdiction of the International Court of Justice, an armed conflict, and several resolutions by the UN General Assembly (UNGA) and the Security Council (UNSC). The UNGA has characterized Morocco’s presence in Western Sahara as an “occupation”, recognizing the right to self-determination and independence for the people of Western Sahara with the Polisario Front as their legitimate representative (see resolutions 34/37 and 35/19).

After 15 years of hostilities between Morocco and the SADR, the UN brokered a ceasefire. In 1992, the UNSC established the UN Mission for the Referendum in Western Sahara with the mandate of implementing a Settlement Plan (See S/21360 and S/22464) in the hope of leading a referendum on self-determination. Needless to say, the Plan has not been fully implemented, but the ceasefire has been maintained.

The UN considers the Western Sahara as a non-self-governing territory (see here and UN Charter, Chapter XI). Notwithstanding this status, the SADR has managed to gain recognition by more than 80 States (even though many of them have later withdrawn it). It is important to note that the UN is not the appropriate legal entity to recognize States, given its adopted (and maintained) view that recognition can only be granted or withheld by States (see here & UN Doc. 1466). The UN appears to follow the practice of the League of Nations, where membership was not equated with recognition by all Members.

The SADR membership to the OAU and the AU

In 1982, the SADR was admitted to the OAU. Art IV of the OAU Charter establishes that the organization is open to “each independent sovereign African State”. Reacting to the OAU decision to admit the SADR as a Member State, Morocco decided to withdraw from the regional body. In 2001, the OAU was replaced with the AU, whose membership is open to any “African State” (AU Constitutive Act, Article 29). Additionally, 38 out of the 54 (now 55) AU Member States have explicitly recognized the SADR, accounting to 70% of the Union’s membership.

Recognition Theories applied to the SADR

Within the field of the recognition of States, two theories offer divergent views: (1) the declarative doctrine, which advocates for a norm based approach to the Statehood question, and (2) the constitutive doctrine, which offers a collective approach to the question. These theories provide different answers to the question of the SADR’s statehood.

When reflecting on the doctrinal debate of the recognition of States, one would assume that by applying the declarative theory, the admission of Morocco to AU would not have practical effects on the SADR’s Statehood claim. The declarative theory considers the political existence of a State as a ‘fact’, which is independent of recognition by other States. This theory, as articulated by the 1933 Montevideo Convention (arts. 1, 3 & 6) characterizes the act of recognition of a State as the acceptance of the entity’s international legal personality with all the rights and duties determined by international law. It considers recognition as an ‘unconditional and irrevocable’ act. To be recognized as a State, the aspiring entity must fulfil the Montevideo criteria (art. 1, note that this criteria has been expanded on by other scholars). As such, the act of recognition is nothing more than the acknowledgement of a pre-existent condition (Statehood) by other States. Consequently, the SADR claim would depend on its ability to satisfy the criteria for statehood, namely permanent population, defined territory, government, and the capacity to enter relations with other States.

The declarative doctrine was adopted by the Organization of American States’ Charter (arts. 13-14). Similarly, the Institut de Droit International endorsed the declaratory theory in its 1936 Resolution, while stressing the irrevocable character of recognition and the absence of effect of non-recognition by other States.

If analysed through the constitutive theory, Morocco’s admission to the AU may be interpreted as an implicit recognition of SADR. Nevertheless, this approach remains problematic as it equates the AU’s decision on admission with recognition of States. There is no established test within this theory that provides for the number of States that have to extend recognition for aspiring entity to be considered as such.

Lastly, it remains unclear whether the AU Constitutive Act adopts, if any, a Statehood recognition theory. Contrary to the question of the recognition of governments, where the AU has a settled practice on non-recognition of unconstitutional governments, its practice concerning the recognition of States remains inconclusive. Admission to the AU (Constitutive Act, art 29), requires the individual consideration by each Member State of an application. As illustrated by the case of South Sudan, the question of Statehood seems to be left for the legal and political considerations of each State.

Morocco’s obligations vis-à-vis the SADR

The fact that Statehood theories do not provide a definitive answer to our first question does not mean that Morocco’s readmission to the AU had no actual legal effect. When a State declares its membership to a regional organization, it accedes to its constitutive instrument. The obligations enshrined in such an instrument become applicable to the new member (in this case, Morocco) and all other members (inter alia the SADR) notwithstanding their mutual recognition as States (See, Christian Hillgruber, p. 496). Therefore, it could be argued that by joining the AU, Morocco recognized the principles established in Art 4 of the Constitutive Act, in its relations vis-à-vis the Member States (and, therefore, the SADR), which include respect of borders existing on achievement of independence, peaceful resolution of conflicts, prohibition on the threat or use of force, non-interference in internal affairs, and peaceful co-existence of Member States. It is difficult to think what would remain of these principles if a Member State could cherry-pick which principles it would apply in its relationship with other Member States. Similar problems would also arise if a Member State could choose the States that would benefit from the principles enshrined in the AU Constitutive Act.

Similarly to the OAU Charter, the AU Constitutive Act, does not provide for reservations. Therefore, for Morocco to disregard the principles of the organization in its relations vis-à-vis the SADR, it would need, at least, the approval of all Member States of the AU as provided by the Vienna Convention on the Law of Treaties (see section on reservations).

It is also relevant to note that the AU Constitutive Act does not provide for the expulsion of members and that their suspension is only considered in cases of unconstitutional regime change. The latter entails that in the event of a Moroccan bid for suspension, exclusion or expulsion of the SADR, the Court of Justice of the Union (now the African Court of Justice and Human Rights) would be entrusted with deciding the question dealing with the “interpretation arising from the application or implementation of this Act” (AU Constitutive Act, art. 26). Prior to the establishment of this Court, the Assembly of the Union, the supreme organ of the organization, was entrusted with such decision (two-thirds majority vote). In any event, the decision would have to acknowledge the irrevocable character of the recognition that 70% of the AU membership has extended to the SADR. All things considered, the question of the SADR membership to the AU and the rights that it holds in relation to other States is likely to be considered a settled issue.


The establishment of a State is a contested issue, both doctrinally and politically. Whether Morocco’s recent admission to the AU is viewed as an implied recognition of the SADR and its statehood is of course questionable. However, this political ‘act’ allows scholars and practitioners to explore the possibility that under international law, and dependent on the interpretation of the AU’s Constitutive Act, Morocco’s admission may have legal consequences on the Western Sahara question and the SADR status under international law.

Two Positions at PHAP

by Kevin Jon Heller

PHAP — Professionals in Humanitarian Assistance and Protection — is advertising two positions in Geneva that might be of interest to readers. The first is Policy Coordinator:

The International Association of Professionals in Humanitarian Assistance and Protection (PHAP) is looking for an experienced policy professional to support the association’s efforts to foster new perspectives on critical issues affecting the humanitarian sector through inclusive and objective discussion. This is a new position.

Building on the association’s trend monitoring efforts, the Policy Coordinator will analyze a variety of emerging and developing challenges affecting humanitarian work. When priority issues are identified, the Policy Coordinator is accountable for setting up and supporting issue-focused member committees, assisting in organizing their discussions and supporting the association’s efforts to engage on priority policy issues.

The second is Communications Officer:

The International Association of Professionals in Humanitarian Assistance and Protection (PHAP) is looking for a dynamic communications professional to join the association’s secretariat in Geneva, Switzerland.

The Communications Officer is accountable for implementing and further developing the association’s public and member communication strategies.

I have worked with PHAP for years, conducting IHL trainings all around the world. It is an exceptional organisation that does interesting and important work. Definitely apply if one of the positions sound right for you! The deadline is coming soon — this Sunday, March 12, for both positions.