Archive for
April, 2017

Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. He is currently on exchange at Harvard Law School.]

The International Criminal Court (ICC) faces many problems. Some of them are well known, for instance its inadequate budget, accusations of anti-African bias, and withdrawals from the Rome Statute. But there is a far more insidious cancer that is eating away at the Court’s legitimacy: complementarity. As with so many other developments at the ICC, it is the situation in the Democratic Republic of Congo (DRC) that foreshadows some of the Court’s long-term dilemmas, many of which received too little attention in Rome. This post explores how the Prosecutor’s confused approach to complementarity undermines the Court’s mission in the DRC and, potentially, in other situation countries going forward.

The ICC and Congo

To hear Fatou Bensouda tell it, the ICC’s intervention in the DRC is something of a success story. The Court’s track record there seems positive, especially when contrasted with other ICC situations: Thomas Lubanga and Germain Katanga have been tried and convicted, and Bosco Ntaganda is currently on trial. Another Congolese, Jean-Pierre Bemba, is the Court’s only high-profile convict to date, even if his conviction formally stems from the situation in the Central African Republic. Thus, with the possible exception of Mathieu Ngudjolo’s acquittal in 2012, Congo is usually portrayed as a beacon of hope for an otherwise beleaguered institution struggling to gain legitimacy in Africa. But is this narrative of success compelling?

A cloud of suspicion has hung over the ICC’s activities in the DRC ever since Joseph Kabila ‘invited’ the first Prosecutor, Luis Moreno Ocampo, to launch an investigation in 2004. Kabila’s ‘self-referral’ succeeded beyond his wildest dreams: lacking a strategy for a country the size of Western Europe, the Office of the Prosecutor (OTP) initiated sporadic prosecutions which targeted only Kabila’s rivals, including Bemba who had almost defeated him in the 2006 presidential election. In stark contrast, the Congolese government’s crimes received no scrutiny in The Hague.

Thirteen years after Kabila’s invitation, the ICC’s neglect of government crimes is coming home to roost. The DRC is in the news for all the wrong reasons. Kabila’s refusal to relinquish power, despite being constitutionally required to do so, has stoked mass violence on several occasions, leaving dozens dead in the streets of Kinshasa and other cities. After a series of damning reports (see here and here), last month the UN High Commissioner for Human Rights formally requested a commission of inquiry to examine ‘recurrent reports of grave violations’. Most importantly from the ICC’s perspective, these reports show beyond a shadow of a doubt that the violence is part of a governmental strategy to keep Kabila in power at all costs. The pattern is familiar: each time the political opposition organizes protests, state agents – police and military – resort to deadly force. Yet despite thousands of cumulative deaths, reports of dozens of mass graves, and even graphic videos of summary executions by government troops, the ICC has been virtually absent from the debate about accountability.

Why, despite such overwhelming evidence of state criminality, has the ICC not investigated Kabila and his supporters? Continue Reading…

Congratulations, thanks to International Law Reporter

by Edward Swaine

Most readers are probably keenly familiar with International Law Reporter, the brainchild of Professor Jacob Katz Cogan (Cincinnati).  For those not aware, ILR provides notices of scholarship, conferences, calls for papers, and the like — and it’s available in RSS feeds and via Twitter.  (There’s even a tip jar!)  It’s invaluable for anyone in international law and, I expect, anyone entering the discipline or considering doing so. It’s a broad field, it’s fair to say, and given the diversity of subjects, sources, and places of origin (and, sometimes, limited university budgets), it’s really easy to overlook what others are up to . . . which is one reason ILR is so useful.

Next week brings us May and, in addition to May flowers, what I happened to notice is the 10th anniversary of ILR.  This represents quite an accomplishment and, I expect, a tremendous amount of effort. (Did I mention the tip jar?) Congratulations and thanks!

The Legality Surrounding the US Strikes in Syria

by Nancy Simons

[Nancy Simons is a Belgian lawyer and serves on the International Bar Association’s Drones Task Force. Her professional background lies in international law generally. She has worked at a number of international non-governmental organisations and the International Criminal Tribunal for the former Yugoslavia.]

It has been almost two weeks since the United States (US) initiated several missile strikes on a Syrian airfield. From the US perspective, the justification for this use of force was that it was in response to the use of chemical weapons allegedly by the Assad regime. The use of these prohibited weapons on the Syrian population resulted in the death of dozens of civilians and left many more injured. There has been much discussion surrounding this attack (see, for example, here, here, here and here). There are also many different legal and political factors attached to this situation, some of which have yet to come to fruition. These include, inter alia, the absence of US Congress approval, the outcome of the investigation into the use of chemical weapons, and how to justify and reconcile the US strikes with the United Nations (UN) Charter and the general prohibition on the use of force under international law. This post will focus on this last matter. Before delving into some of the key legal issues, it should be noted that the US strikes contrast with the position previously adopted by the US, whereby it directed its military force towards the fight against the so-called Islamic State of Iraq and the Levant (ISIL) under its umbrella of ‘the war on terror’ on the basis of self-defence, as opposed to directing such attacks toward the Syrian regime. The question here is what is the legal basis for these attacks against a sovereign state? The US strikes have been supported by numerous states, such as the United Kingdom (UK), Australia, Israel, and Turkey. However, the US has yet to come up with a clear legal foundation justifying this attack.

Legal justifications?

International law, through the lens of the UN Charter, only allows for two exceptions to the prohibition on the use of force, as expressed in Article 2(4) of the United Nations Charter. The first exception is the system of collective security under Chapter VII of the Charter, whereby the UN Security Council (UNSC), after having made a determination of the existence of a threat to international peace and security, authorises states to take military action. However, although several UNSC resolutions condemn the use of chemical weapons (see here, here and here), the UNSC has not used any language in these resolutions that could legally justify the US strikes. UNSC resolution 2209 (2015), para.7 decides that in the event of further violations to the prohibition of the use of force, the UNSC would be ready to undertake further actions under Chapter VII, thus potentially opening the door to the use of force. A further resolution is thus necessary to authorise the use of force under chapter VII, which has not been adopted so far.

The second exception is self-defence, as materialised in Article 51 of the Charter, which provides that states have the right to use military force in response to an armed attack. With respect to the current situation, the US Strikes targeted Syrian territory with no impact on US territory or sovereignty, thereby excluding self-defence as a possible justification.

It is possible (but unlikely in my view) that a third exception exists, which has been argued stems from customary international law: humanitarian intervention, which would allow States to intervene in the event of ‘gross and systematic violations of human rights’ as a last resort. The Charter only allows for two exceptions (as discussed above), and searching for an exception outside the Charter is a challenging path considering the importance of the prohibition enshrined in Article 2(4). However, as States are reluctant to use this exception as a justification for their military actions, it is heretofore difficult to argue that the principle is a legal one. As a matter of law, humanitarian intervention is not part of customary international, but depending on the reactions of States to situations such as the US strikes against Syria, this principle could one day become an exception to article 2(4). It is true that the use of chemical weapons certainly qualifies as a gross violation of human rights, which arguably triggers the right to invoke humanitarian intervention in response to such an act, assuming of course such a principle is a rule of international law. However, unless part of a broader strategy aimed at protecting the civilians from further atrocities, it is difficult to understand how the attack of 7 April 2017 satisfies such a purpose, rather than just being a punitive and deterrent act in reaction to the use of chemical weapons. The statement made by Trump (‘It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons’), further highlights that humanitarian intervention would be a questionable basis for the use of force exercised in this case. On the other hand, the United States has also shown its readiness to use force in the event of further attacks on civilians, not just through chemical weapons, but also regarding barrel bombs, perhaps denoting humanitarian concern.

One must also acknowledge that states have increasingly construed the exceptions to the prohibition on the use of force in innovative ways, such as the self-defence against non-state actors – a position adopted by many states in the fight against ISIL. However, there is no similar argument to be made in this case. This begs the question as to whether some states consider the prohibition on the use of chemical weapons, which now forms part of the rules of customary international law, to be so imperative that it warrants a breach of the prohibition on the use of force, which is a cornerstone of the UN Charter. The fact that the use of chemical weapons is prohibited does not provide a legal avenue for states to resort to force as a basis for intervention, unless an exception was established, which is currently not the case.

The only conclusion from an international law standpoint is that the missile attack that occurred on the Syrian airfield is illegal. Does this mean that it is acceptable (not legal) to act outside the framework of the UN Charter when deemed necessary or when pursuing a ‘legitimate aim’? States’ reactions supporting the attack are formulated in non-legal terms, which denote a political understanding for this course of action chosen by the US in the face of the crimes committed, rather than legal approval. It is not the first time that the prohibition on the use of force has been violated and not sanctioned by the international community. However, this should not necessarily mean that the legitimacy of the UN Charter is diminished. This case does perhaps highlight the limits of international law and its inexorable tie to international relations, a clear reason why the UNSC is blocked and thus unable to take legal action, as the deadlock stems from the political nature of this organ and the UN system as a whole. The risk that such action creates is that although the attack may be seen as morally or ethically legitimate, acting outside the purview of the law means that legal requirements are not to be respected. This dangerously opens the door to using force under possible false pretences. Of course, the same false pretences could be pursued within the boundaries of the legal framework, but at least the law acts as a barrier in limiting the recourse to force in such situations.

Potential legal consequences?

Despite the current absence of sanction (and quite the opposite, the support of the attack), the strike may not come without legal consequences. The first consequence is hypothetical and unlikely to occur at this time. Having suffered an armed attack, Syria is entitled to exercise its inherent right to self-defence (along with allies if asks for help). This hypothetical would be an unlikely (but possible) outcome for two key reasons. Firstly, the political picture with the powers at force is not in favour of such a response. Secondly, the lapse of time between the attack and the response along with the limited impact of the attack would prove difficult to ascertain that the actions taken pursuant to the right of self-defence are necessary and proportionate. The second potential consequence relates to the law applicable to the conflict that is affecting Syria. Until today, there was a conflict between ISIL and the Assad regime together with a conflict between the US (and the international coalition) and ISIL, which both, it is generally accepted, qualify as non-international armed conflicts (NIAC). This first attack from the US could change this picture. The ICRC has not hesitated to advance that there is now an international armed conflict (IAC) between the US and Syria, meaning that a different and more extensive set of rules apply. Depending on the position adopted, this could lead to either the internationalization of the conflict in Syria, meaning that there would be an IAC between all the actors (including ISIL) or that there would be a situation of mixed conflicts, IAC between the US and Syria and a NIAC for all the other actors, which in turn would lead to different applicable rules.  It remains to be seen how this will materialize.

Why Unilateral Humanitarian Intervention Is Illegal and Potentially Criminal

by Kevin Jon Heller

I read Jennifer Trahan’s post yesterday with great interest — but not surprisingly I disagree with it. Before I get to my disagreements, though, I think it’s bizarre that we are all debating the legality of unilateral humanitarian intervention in the context of the recent US missile attack on Syria. It simply beggars belief to think that the attack was in any way motivated by humanitarian concerns. Chemical weapons, which have killed perhaps 2,000 civilians, are not the problem in Syria; conventional weapons, which have killed hundreds of thousands, are the real threat. And the US has done absolutely nothing to protect Syrians from conventional weapons — it has simply funnelled even more into the country to support various rebel groups (including some that are allied with al-Qaeda) in their struggle against Assad. The US cares about protecting its own interests in Syria, such as preventing chemical weapons from being used against Americans. (The real message of the completely ineffectual attack.) It does not care about the lives of ordinary Syrians, as the ever mounting death-toll indicates.

But let’s put aside the context of the missile attack and focus on Trahan’s legal claims. The first is that unilateral humanitarian intervention (UHI) — the qualifier, of course, is critical — can be legal in the right circumstances. The post, however, doesn’t even come close to establishing that claim. Just consider what Trahan cites in defence of it:

[1] NATO’s intervention in Kosovo, in which “all NATO members supported the intervention designed to stave off ethnic cleansing.” Trahan openly acknowledges that “many did not defend it as ‘humanitarian intervention’ per se, except Belgium” — but that gives away the ballgame. If the 26 other NATO states did not invoke UHI, the attack does not help establish UHI’s legality. As the ICJ pointed out in the Nicaragua case (para. 207), not even the Court itself has the “authority to ascribe to States legal views which they do not themselves advance.” So it doesn’t matter whether Trahan and other scholars would like to describe Kosovo as an example of UHI. All that matters is that NATO states could have invoked UHI but chose not to.

It is also telling that Trahan fails to point out that the Kosovo intervention met with significant international criticism. Here are Vaughan Lowe and Antonios Tzanakopoulos in the Max Planck Encyclopedia:

33  The response of other, non-NATO, States to arguments that there was a legal basis for the Kosovo bombing campaign and for a right of humanitarian intervention was overwhelmingly negative. The Non-Aligned Movement (NAM), numbering well over half of the Member States of the UN, unequivocally condemned the use of force against the (then) FRY, as did many other States, some of which are nuclear powers. In these circumstances, no right of unilateral forcible humanitarian intervention can be said to have emerged as a rule of customary international law.

[2] UK and US no-fly zones in Iraq. Once again opinio juris is lacking: the coalition initially provided no legal justification for the no-fly zones, and the US later justified them as self-defence (against threats to coalition aircraft, a wonderfully circular argument).

[3] ECOWAS’s interventions in Liberia in 1990 and Sierra Leone in 1998. Same problem: as Adam Roberts has pointed out, ECOWAS never invoked UHI to justify its actions. It relied instead on provisions in its own founding treaty.

[4] The UK’s endorsement of UHI in Syria, particularly in the context of the 2013 sarin gas attack that killed hundreds if not thousands. Unlike the other examples, this endorsement does, in fact, contribute opinio juris in favour of UHI.

So, there we have it: one state that explicitly and regularly endorses a right of UHI.  And against that, we have the unequivocal rejection of UHI by the 120 states that are part of the Non-Aligned Movement and the 134 states that are part of the Group of 77, which includes major powers like China, India, and South Africa. (The two groups obviously overlap.) How any scholar could conclude that customary international law nevertheless recognises a right of UHI, however limited, is simply beyond me.

For similar reasons, I also reject Trahan’s confident claim that UHI could never be criminal. Here is what she says:

Humanitarian intervention, narrowly construed, then clearly also would not constitute the crime of aggression, which is poised to activate this December 2017 before the International Criminal Court. (Anything in a legal “grey area” is excluded from that definition—and, at minimum, humanitarian intervention (sometimes supported and sometimes invoked) is within that legal grey area. The U.S., a non-State Party to the ICC’s Rome Statute, would be exempt from the crime’s jurisdictional reach, even if it does activate.)

I disagree. To begin with, during the Kampala Review Conference in 2010, states soundly rejected the US’s attempt to specifically exclude UHI from the crime of aggression. Here is the text of the US’s failed Understanding:

It is understood that, for purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression.

More importantly, the fact that scholars insist UHI can be legal does not make the legality of UHI fall into a “grey area.” On the contrary, it is difficult to imagine any issue that is more black and white given state practice. Article 2(4) of the UN Charter is clear: force is legal only when authorised by the Security Council or in self-defence. UHI does not involve the former by its very definition, and there is no argument de lege lata that UHI can be justified as a form of self-defence, because it does not involve an armed attack on the intervening state. Adil Haque made that point in response to Jens’s recent post, and here are Lowe and Tzanakopoulos again:

23  Humanitarian intervention in order to alleviate the suffering of a local population cannot, without more, be justified as self-defence. Self-defence under Art. 51 UN Charter requires that an armed attack occur against a State. In most cases, widespread violations of human rights will not reach the gravity threshold of an armed attack. Even if the oppression does reach the threshold of an armed attack, however, there will be no armed attack against a State, but at most an armed attack against the population of the State by or with the support or inaction of State authorities. The right to self-defence under international law vests in States and not in sub-State entities such as the local population. Moreover, the oppression will, ex hypothesi, not emanate from another State, but will be by the government upon its own people.

The illegality of UHI under Art. 2(4) is, of course, not set in stone. As Lowe and Tzanakopoulos rightly note, UHI could become legal through subsequent state practice that results in a new interpretation of the provision or (possibly) through the emergence of a supervening customary rule. But that has clearly not happened, given G77 and NAM’s ongoing and unwavering opposition to UHI.

It is unlikely, of course, that the ICC will ever prosecute a government official who is responsible for preparing, planning, initiating, or executing a UHI — and not simply because of the new crime of aggression’s crimped jurisdictional regime. But that does not mean UHI does not manifestly violate the UN Charter. It most certainly does.

Why It Doesn’t Seem to Matter that the Syria Strikes Violated International Law

by Julian Ku

Over at Vox, I have published an essay fleshing out the thoughts I first published here on the legality of the recent U.S. cruise missile attacks on Syria and the international reaction to it.

President Donald Trump’s surprising decision to launch a cruise missile strike on Syria was sharply criticized by Russia as a “flagrant violation of international law.” While it might be tempting to dismiss this claim as mere Putinesque propaganda, on this question at least, Russia is almost certainly correct. In the view of most international lawyers, the US strike on Syria is a crystal-clear violation of the UN Charter. So why doesn’t anybody, except Russia and some international lawyers, seem to care?

The uncomfortable answer seems to be that, at least with respect to this question — can a state use military force against a regime that uses banned weaponry against citizens? — international law simply doesn’t matter very much. And this suits the United States and the Trump administration just fine.

Please read the whole thing. I am especially pleased with this line, drafted with the assistance of one of the very smart editors they have over there:

So the UN will not become an irrelevant bystander, but neither will it operate as the final authority on the US decision to use force. This may not be ideal, but one important lesson of the reaction to the Syria strikes is that we should all start getting used to this reduced role for the UN, and stop the unrealistic fetishization of Article 2(4).

In Defense of Humanitarian Intervention

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.]

Postings on Opinio Juris seem fairly squarely against the legality of the U.S. missile strike last week into Syria. Let me join Jens David Ohlin (blogging on Opinio Juris) and Harold Koh (blogging on Just Security) in making the contrary case.

When NATO intervened in Kosovo in 1999, member states did not have UN Security Council approval; yet all NATO members supported the intervention designed to stave off ethnic cleansing. True, many did not defend it as “humanitarian intervention” per se, except Belgium, which made the case for the legality of humanitarian interventions in briefing to the International Court of Justice. Still, all NATO members endorsed the military action.

Humanitarian intervention has also been cited as the legal justification for UK and US no fly zones in Iraq, and to justify ECOWAS’s interventions in Liberia in 1990 and Sierra Leone in 1998, prior to UN Security Council approval, which was later forthcoming.

And, after the Assad regime used sarin gas in August 2013, resulting in an estimated 1,400 victims, the UK was prepared to act under the doctrine of humanitarian intervention, arguing that the 3 criteria for intervention were met:

  • There is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;
  • it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and
  • the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (ie the minimum necessary to achieve that end and for no other purpose).

So, despite many who would argue there is no such thing as “humanitarian intervention” or it is dead subsequent to the development of the responsibility to protect (R2P), humanitarian intervention keeps being invoked.

Why? Because there are times that UN Security Council dysfunctionality in voting, serves to shield the commission of atrocity crimes. China shielded President Bashir of Sudan while his armed forces coordinated with the Janjaweed militias to commit genocide in Darfur, and Russia has been shielding the Assad regime while it uses sarin and chlorine gas, not to mention other indiscriminate weapons and targeting of civilians. (We should not be outraged only at the regime’s chemical weapons use.)

Therefore, when R2P tells us that “pillar 3” forceful intervention requires UN Security Council approval, as it does, it is failing to do what it set out to achieve—to protect a people in peril from grave atrocities.

Remember, in 1999, Kofi Annan asked the General Assembly:

If, in those dark days and hours leading up to the [Rwanda] genocide, a coalition of States had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a collation have stood aside and allowed the horror to unfold?

The International Commission on Intervention and State Sovereignty gave a helpful response in 2001, not only setting criteria for intervention, but also, noting that if the UN Security Council failed to act, one should not be surprised if others did. The Secretary-General’s 2004 High-Level Panel on Threats, Challenges and Change then went on and also set similar criteria for intervention (as had the Independent International Commission in Kosovo (the “Goldstone Commission” before it).

So for those who claim we don’t know what humanitarian intervention is, these sources and the criteria they articulate suggest that we have a pretty good understanding of it. If we need more clarity as to its parameters to ensure the doctrine is not susceptible to abuse, then, rather than rejecting the doctrine entirely, it should be up to us international lawyers to figure them out.

R2P then backs off its promising start and ultimately concludes that UN Security Council approval is required for any forceful intervention. So, basically in answer to Kofi Annan’s question what to do when there is no UN Security Council approval, it answers: get UN Security Council approval.   This cannot suffice.

Borne out of frustration with this dilemma, the French adopted their initiative “not to veto” in the face of mass atrocity crimes, and 112 states have joined the Accountability, Consistency and Transparency (ACT) Code of Conduct to act in the face of mass atrocity crimes. These were both extremely useful initiatives.

Yet, three of the permanent members of the UN Security Council will agree to neither initiative—Russia, China, and the U.S. I do not lump these countries fully in the same boat, because the US often makes clear the importance of deterring atrocity crimes, while not formally joining the initiatives, which it should.

The day that these hold-out P3’s join the French or ACT initiative, we no longer need to talk about “humanitarian interventions,” because the UN Security Council will be able to function as it was designed under the UN Charter, to both maintain international peace and security and to protect human rights (one of the purposes of the UN).

Another fallacy is that we read the veto as if absolutely anything can be vetoed, when the veto sits within the context of the UN Charter, which imposes obligations; we should explore further what is a legitimate versus an illegitimate veto that should be treated as null and void. The General Assembly could request an advisory opinion from the ICJ on this.

In the meanwhile, the UK has the right approach (as well as the Danish), that we have to leave a small carve out for the legality of humanitarian intervention, when narrowly construed. (The US has previously sometimes invoked what sounds like humanitarian intervention, while not fully formally endorsing the doctrine.)

Humanitarian intervention, narrowly construed, then clearly also would not constitute the crime of aggression, which is poised to activate this December 2017 before the International Criminal Court. (Anything in a legal “grey area” is excluded from that definition—and, at minimum, humanitarian intervention (sometimes supported and sometimes invoked) is within that legal grey area. The U.S., a non-State Party to the ICC’s Rome Statute, would be exempt from the crime’s jurisdictional reach, even if it does activate.)

It is unclear if the US’s missile strike was intended to fall within the doctrine of humanitarian interventions, as we don’t have a statement of the legal basis, which the U.S. should make clear, as well as what if any follow up plan it has. Harold Koh is right when he writes: “Going forward, all of this will require not just bombs, but diplomacy; not just tweets, but thoughtful diplomatic proposals; not just ‘America First,’ but genuine American multilateral leadership.” Just Security, 4/7/17.

One approach would be appointing a special envoy to pursue diplomatic negotiations, including partition of the country, similar to the partitioning of Bosnia under the Dayton Peace Accords. Republika Srpska iwithin Bosnia was given entity status, yet its military and political leaders were later tried by the Yugoslav Tribunal for atrocity crimes. Clearly, diplomacy and war crimes trials are not mutually exclusive.

President Obama’s “red line” in response to which the US and international community did nothing was shameful. Yet, an argument can be made that at that point in time there was an alternative — to require Assad to relinquish his chemical weapons stocks. And, indeed, some, but clearly not all, of those stocks were destroyed pursuant to the legal regime established. So, by now, what could have been a viable alternative has been pursued, and Assad failed to adhere to it.

It is important to also note that humanitarian intervention can take many forms, and need not mean full-scale intervention, which should always be the last resort. Other forms would include limited no fly zones, protection of civilians in refugee camps, and establishing humanitarian corridors.

Furthermore, unilateral intervention is always the least best alternative. Certainly, endorsement by a regional organization (such as NATO or ECOWAS – as was done in the past), or even multilateral action not endorsed by a regional organization would be preferable. And, if there must be unilateral intervention, it should occur under close consultation with key US allies.

It is far too easy to insist on legal perfectionism and a strict readings of the UN Charter as we sit comfortably typing at our computers. We should not utterly shut the door on a doctrine designed to prevent atrocity crimes when all other means are failing, as they have been in Syria. I agree with Jens David Ohlin that we are “too focused on state sovereignty to the exclusion of any other legal categories” including “the right to be free from genocide and crimes against humanity.” The principles of humanity that have been a guiding principle since the time of Hugo Grotius, and the 1899 Martens clause, should still guide us today to seek a more responsible legal approach, one that does not prioritize sovereignty over humanity.

Two Visions of the UN Charter

by Jens David Ohlin

As I write this, the ASIL annual meeting is conducting a well-timed, previously unannounced panel discussion about the legality of the missile strikes against Assad’s airbase in Syria. In addition to Harold Koh (Yale Law School), who has argued in support of humanitarian intervention, the speakers include moderator Catherine Powell (Fordham Law School), Jennifer Daskal (AU Washington College of Law), Steve Pomper (US Holocaust Memorial Museum), and Saikrishna Prakash (UVA School of Law).  I’m sure that it is/was a terrific panel and I’m sorry to have missed it.

I want to take this opportunity to step back and collect some thoughts about why I disagree with so many of the arguments against humanitarian intervention. I have already articulated the specific legal arguments about article 51 here, but there is a deeper issue about the nature of the UN Charter and the goal of international law itself.

Many writers speaking out against humanitarian intervention have noted, as one piece of their argument, that humanitarian interventions will weaken the prohibition on the use of force and will likely lead to more international conflict. They view humanitarian intervention as a destabilizing force.

In these arguments, the goal of reducing international conflict, or reducing the number of cross-border military interventions, is elevated to the most important principle in the UN Charter and the international legal system as a whole. The goal is, in other words, to eliminate or reduce war as much as possible.

On deeper inspection, however, this asserted goal is really about reducing only one kind of war, international armed conflicts. The Charter regime on the use of force (article 2 combined with Chapter VII and article 51) is designed to reduce or eliminate the number of sovereignty violations caused by international war.

This articulated goal has deep roots in World War II. Indeed, one could point to Nuremberg and the tribunal’s conclusion that crimes against peace (aggression) were the supreme international crime because they contained within them the seeds of the other international crimes. The lesson, apparently, is that stopping international conflicts is the most important goal of the international legal system.

Unfortunately, I think this principle, which is just one principle among many, has been taken to an extreme level, and fetishized to the point where other noteworthy principles are devalued.

We should never forget that preserving international peace has mostly instrumental value. Protecting the integrity of states and their domestic arrangements has little value in and of itself.  If the states and their domestic arrangements are fundamentally unjust, then preserving international peace is merely protecting those unjust arrangements.

To make my point, consider a “perfect” world without a single article 2(4) violation. Every state respects the borders of all other states and never launches a military assault against them.  Each state is inwardly directed.  But internally, each state is viciously repressing and killing its own civilians and subjecting them to unimaginable horror.  Would this be a “perfect” world from the perspective of the UN Charter or from the perspective of international law generally? From the sole perspective of article 2(4), this world is indeed perfect.  But it is far from perfect — it is a disaster.  Protecting the sovereignty of each state has instrumental value because it allows states to flourish.  But if sovereignty is simply preserving injustice, we need to consider that there are other values at stake, other values that are promoted by international law.

My point is that many of these other values or principles are embodied in the UN Charter.  When I read the Charter, I see a document that cares about preserving international peace, but it also cares about international security--which is something far broader.  And I don’t think that international security is promoted and enhanced when we give a free pass to allow governments to mistreat their own citizens, and treat this as a “lesser problem”–subject only to non-military measures– than the problem of international conflict, which is subject to unilateral military measures.

It may be time to rethink the Nuremberg “assumption” that crimes against the peace are the supreme international crime. World War II was the era of the IAC, which was responsible for most of the evils of the world.  We now live in a different era, the era of the NIAC, which are responsible for most of the evils in the world. This second vision of the UN Charter recognizes that NIACs pose a greater threat to international security.

The UN Charter must do more than simply ensure that soldiers do not cross international borders. Even when every soldier stays within their own state, all is not well in the world.

An Important Absence in the Syria War Crimes Accountability Act of 2017

by Kevin Jon Heller

On Monday, my friend Beth van Schaack posted an excellent analysis at Just Security of the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” Beth summarises the most important aspects of the bill; in this post I want to focus on Section 7, which authorises US technical assistance to certain non-US accountability mechanisms. The most important paragraph in Section 7 is this one (emphasis mine):

(a) IN GENERAL.—The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and violent extremist groups in Syria beginning in March 2011—

(1) identify suspected perpetrators of war crimes, crimes against humanity, and genocide; (2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence; (3) conduct criminal investigations; (4) build Syria’s investigative and judicial capacities and support prosecutions in the domestic courts of Syria, provided that President Bashar al Assad is no longer in power; (5) support investigations by third-party states, as appropriate; or (6) protect witnesses that may be helpful to prosecutions or other transitional justice mechanisms.

There a very interesting — and potentially very important — absence in Section 7(a). As the bolded text indicates, the paragraph only authorises the US to provide technical assistance to entities that are investigating international crimes committed by pro-Assad forces and “violent extremist groups.” Note what is missing from that construction: Syrian rebel groups. The bill does not permit the US to support any entity investigating war crimes, crimes against humanity, and acts of genocide committed by rebels.

Lest anyone think I am reading Section 7(a) too narrowly, consider the wording of Section 3(1), which summarises acts that the US “strongly condemns” (emphasis mine):

(A) the ongoing violence, use of chemical weapons, targeting of civilian populations with barrel, incendiary, and cluster bombs and SCUD missiles, and systematic gross human rights violations carried out by the Government of Syria and pro-government forces under the direction of President Bashar al-Assad; and (B) all abuses committed by violent extremist groups and other combatants involved in the civil war in Syria.

It is difficult to see who “other combatants involved in the civil war in Syria” might be if they are not rebels. Indeed, Section 5(a), which requires the Secretary of State to submit a report on international crimes to Congress, explicitly distinguishes between “violent extremist groups” and rebel groups (emphasis mine):

(b) ELEMENTS.—The reports required under subsection (a) shall include— (1) a description of alleged war crimes, crimes against humanity, and genocide perpetrated during the civil war in Syria, including— (A) incidents that may constitute war crimes, crimes against humanity, or genocide committed by the regime of President Bashar al-Assad and all forces fighting on its behalf; (B) incidents that may constitute war crimes, crimes against humanity, or genocide committed by violent extremist groups, anti-government forces, and any other combatants in the conflict.

In light of Section 5(a), it is clear that Section 7(a) does not authorise the US to support an entity that is investigating international crimes committed by rebels.

That said, the bill is unclear in one important respect: whether the US can support an entity that investigates international crimes committed by both pro-Assad forces and rebel groups. On a literal reading of Section 7(a), the answer would seem to be no. But the sponsors of the bill might disagree. Journalists?

I agree with Beth that the Syria War Crimes Accountability Act of 2017 is an important step forward for accountability in Syria. Unfortunately, it also reflects the US’s tendency to take international crimes committed by rebel groups much less seriously than those committed by Assad’s forces and by ISIS.

War by Any Other Name? It’s Still War

by Gabor Rona and Jocelyn Getgen Kestenbaum

[Gabor Rona  is a Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School. Jocelyn Getgen Kestenbaum is an Assistant Clinical Professor of Law and Director of the Cardozo Law Institute in Holocaust and Human Rights, Cardozo School of Law.]

“It’s not war. We haven’t gone to war against Syria.”

These are the quoted words of former legal advisor of the U.S. Department of State Harold Koh in a recent New Yorker article addressing the legality of the April 6 U.S. missile strike on Syria. While there are many nuanced aspects to the debate about the strike’s legality, the question of whether the use of force by one sovereign nation against another is war is not one of them. See, for example, the Just Security post by Mike Schmitt and Chris Ford.

Professor Koh may have meant only to suggest that the attack does not rise to a level requiring Congressional consent in advance under the U.S. Constitution. But the question: “Is it war?” also has consequences relevant to at least three aspects of international law: 1) the law of state responsibility, 2) the crime of aggression as defined in the International Criminal Court, and 3) the U.N Charter’s prohibition on the use of force. It is the latter two international law issues that we address here.

But first, is it war? It is well established under U.S. law that unless Congress says otherwise, the U.S. considers itself bound to comply with its obligations under international law. International law to which the U.S. is bound includes the Geneva Conventions. The Geneva Conventions are clear that the use of force by one state against another constitutes an international armed conflict, i.e., a war. Congress has never said otherwise, and so, both domestic and international law dictate the same conclusion: the United States and Syria are at war.

Engaging in war is not necessarily unlawful, but starting a war is. The U.S. government should know because it spearheaded successful efforts to prosecute the Nazi leadership for the crime of waging aggressive war (then called “crimes against peace”) at Nuremberg. If that’s too dusty a precedent, then consider that the 124 states party to the International Criminal Court treaty agree that starting a war constitutes the international crime of “aggression.” (See the treaty’s Article 5.1(d)). Or if your exceptionalist bent leaves you cold when the amorphous notion of “international community” is invoked, consider what the U.S. reaction might be when North Korea drops a missile on a South Korean military base and says “It’s not war.”

Professor Koh also suggests that the U.S. attack, even absent U.N. Security Council authorization, is “not illegal.” He cites to the emerging doctrine of humanitarian intervention, according to which, under certain conditions that he concedes may not have been met here, State A may use force to put an end to atrocities in State B. But the U.N. Charter permits State A to use force against State B only if done in self-defense or with Security Council authorization. There is no free-standing right of humanitarian intervention in international relations under the U.N. Charter, or any other instrument of international law. The 2004 Report of the U.N. Secretary General’s High-level Panel on Threats, Challenges and Change is the primary source document for the notion of humanitarian intervention (following on the 2001 Report of the International Commission on Intervention and State Sovereignty, produced under the auspices of the Canadian government). The Panel’s conclusions about the use of force for humanitarian purposes presume Security Council approval:

We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.

(Para. 203.)

In other words, the Panel does not claim that the use of force for humanitarian purposes is legal in the absence of either Security Council authorization or conditions that trigger the inherent right to strike in self-defense. Rather, the Panel’s evident intention is to suggest that the Security Council should ipso facto consider mass atrocities against civilians to be a threat to international peace and security, thus triggering its power to authorize use of force pursuant to Chapter 7 of the U.N. Charter.

The Panel then, once again, confirms the essential role of the Security Council:

In considering whether to authorize or endorse the use of military force, the Security Council should always address – whatever other considerations it may take into account – at least the following five basic criteria of legitimacy:

(a) Seriousness of threat. Is the threatened harm to State or human security of a kind, and sufficiently clear and serious, to justify prima facie the use of military force? In the case of internal threats, does it involve genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law, actual or imminently apprehended?

(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved?

(c) Last resort. Has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing that other measures will not succeed?

(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?

(e) Balance of consequences. Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?

Professor Koh has suggested similar criteria here, but leaves out the all-important reference to the Security Council.

A year after the Panel delivered its Report, the U.N General Assembly endorsed the notion of a “responsibility to protect” (of which the notion of humanitarian intervention is a part) but also maintained reference to the role of the Security Council:

We (the international community) are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

Whether the U.S. missile strike on Syria meets the criteria established by the international community for humanitarian intervention is questionable. For one, the missile strike was most certainly not an act of “last resort.” For example, while there may be little that the U.S. could do to pressure Assad directly, there is no indication that the Trump administration made any effort to drum up international support to pressure Moscow to lean on Assad after his latest provocation. Second, the propriety of the administration’s purpose is, at best, unclear. With the Trump White House having flip-flopped at lightning speed on whether there is or is not a place for Assad in Syria’s future, the situation is reminiscent of military intervention in Libya, which started as humanitarian intervention and quickly morphed into “regime change.” An additional source of legitimate concern about the administration’s purpose is the heavy cloud of suspicion that the Trump campaign colluded with Moscow to deny a Hillary Clinton victory. What better way to show that Trump is not Putin’s pawn than by attacking a Russian ally? Finally, when considering “the balance of consequences,” one must question whether airstrikes are reasonably calculated to lessen, rather than intensify conflict, and thus, civilian suffering, in Syria.

Our doubts about the legality of the attack are not, however, an end in themselves. Jens Ohlin sees the many opinions objecting to the bombing on either domestic or international legal grounds and concludes that “everyone seems to have lined up against humanitarian intervention.” Not us. We firmly endorse the notion of humanitarian intervention but fault the Security Council for not doing its job. Thus, if anything good comes out of this debate, it should be a stark reminder of the need for Security Council reform concerning use of the veto power in the face of mass atrocities.

Meanwhile, as the former head lawyer for the State Department, Professor Koh’s opinion carries great weight. We hope he was misquoted. If not, we fear a future in which other countries itching to find “permission” from the U.S. to drop bombs on their nemeses might just agree with him that war is not war. We are equally concerned that such countries will misinterpret his end-run around the Security Council as open season for threats and use of force, as long as they’re couched in the language of humanitarian intervention.

More on the Inherent Right of Self-Defense

by Jens David Ohlin

In a comment to my earlier post on humanitarian intervention and natural rights, Adil Haque asks me the following question:

Can States voluntarily make binding agreements that curtail their natural rights of legitimate defense for the sake of greater collective security?

Here’s my answer. The positive law can expand the natural right but cannot curtail it.  To explain my answer, let’s think a little bit more about domestic law.

Consider the right of self-defense under domestic criminal law.  Suppose a state decided to repeal its criminal law defenses of self-defense and defense of others. Imagine that the state had an extensive policy discussion about it and determined that the police should be the exclusive vehicle for the deployment of protective force, in order to maintain security within the state.  Here is the explicit consequence of that legal decision: if an attacker comes to your door and starts attacking, you are required to notify the police so that they may come to exercise protective force on your behalf. If the police refuse to come, or do not come in time, you are not legally permitted to exercise defensive force on your own behalf.

Now suppose that the attack occurs, and you exercise personal defense in order to save yourself from the unlawful assault.  However, self-defense was repealed. So the public prosecutor charges you with murder. You clearly committed a killing and the defense was repealed. You are facing a mandatory sentence of life in prison or the death penalty.

Now imagine that you are the trial judge hearing this case as a bench trial.  What to do?  If you convict the defendant, you are sending him to jail for the rest of his life–or worse yet condemning him to execution.

I think the correct answer to this puzzle is that the defender has an inherent right to defensive force, and the positive law cannot curtail this right.  I would acquit the defendant on that basis.  What would you do?  If you say, well, the positive law has eliminated self-defense, so the defendant must be convicted — my only response is that I hope I don’t get you as a judge if I’m ever in this situation.

One possibility to resolve this quandary is to think of it as a case of civil disobedience.  As Marko Milanovic and others have noted, the classic theory of civil disobedience (Gandhi, Thoreau, King) requires that the disobedient actor accept his or her punishment. I find this avenue most convincing when the disobedience is an act of protest and when the punishment is relatively modest. In the case I am describing, neither of these is true.  The punishment is draconian, and the crime was not an act of protest —  it was an act of survival.

Now you might say that the situation that I have described is fanciful and not likely to happen.  True.  But I think it yields two insights. There may be situations when the positive law runs out, and natural law begins. The second insight is that this only happens in truly extreme cases–cases that are at the margins of the law and rationality and sanity.

But if you think about it, the situation of humanitarian intervention is not all that different — it’s a truly extreme situation, where the positive law runs out and recourse to the inherent rights of defensive force ought to apply.  I think that as international lawyers, from the safe distance of the ivory tower, we are often too likely to see such horrible dilemmas as “normal” problems of international law. But if we imagine it from the other side, i.e. the victim of the Rwandan genocide pleading for outside assistance to repel a murderous rampage, you come to realize that the dilemma of humanitarian intervention is perhaps just as extreme a situation as my hypothetical criminal law case described above. Indeed, I think it is not radical to suggest that a genocide is, in fact, far more extreme than my hypothetical, which only involved the fate of a single homeowner struggling to defend himself against an unlawful attack. Multiply that dozens, hundreds, thousands, hundreds of thousands of times, and you get the real dilemma of humanitarian intervention for modern international law.

I agree with Harold Koh

by Jens David Ohlin

Everyone seems to have lined up against humanitarian intervention this week.  I’m not sure if the proponents of intervention have changed their mind, or if they are keeping quiet, or if they never existed in the first place. Either way, I want to be clear — if it isn’t obvious already from my prior scholarship — that I support a limited right of humanitarian intervention in certain contexts. So far, the few that have supported humanitarian intervention recently include Harold Koh, as well as Charlie Dunlap. (In the past, others have argued for it as well.) By my account, the Syrian situation can and should qualify as a lawful humanitarian intervention.

However, as I indicated in a series of tweets today, I think it is a mistake to focus humanitarian intervention arguments on so-called exceptions to the UN Charter regime on the use of force–exceptions flowing from customary international law. All of these arguments run into the same problem: how does custom amend the UN Charter? It makes the argument vulnerable to the objection that the customary exception is really a backdoor way of amending the Charter without going through the difficult process of amending the Charter.

A far better and more fruitful exercise is to examine article 51 of the UN Charter more closely. Article 51 preserves the inherent right of individual or collective self-defense, or what the French-language version of the Charter refers to as the droit naturel de legitimate defense. The right to legitimate defense (which covers both self- and other-defense) is a natural law right. It isn’t created by the UN Charter or by positive law at all. It is inherent because it flows from natural law, and article 51 simply refers to it.

Modern lawyers are not accustomed to answering uncomfortable questions about where natural or inherent rights come from.  They can’t come from the positive law, otherwise they wouldn’t be inherent.  The whole point of being inherent is that even if the positive law denied them, they would still exist. That’s what inherent means. In other words, there’s an area of the law that endures after the positive law runs out.  You might find this truth to be inconvenient or annoying or quaint — but it is right there in article 51. So even lawyers committed to positivism and the text of article 51 should admit that some rights under international law are so fundamental that they flow from beyond the positive law.  The positive law could try to take them away but the right would still endure.

(I should add that the concept of inherent rights was fundamental to the founding of America. One of the reasons the U.S. declared its independence from England was because England was violating the inherent rights of Americans. In the grand tradition of Locke and other social contract theorists, the colonists believed that the sovereign had a fiduciary obligation to its subjects and when that obligation was betrayed, the colonists could exercise a right of rebellion in order to ensure their inherent rights.)

Another piece of the puzzle is that international lawyers are too focused on state sovereignty to the exclusion of any other legal categories. Peoples have rights too under international law, and their most primary right is the right to self-preservation, a right that is protected not only by the concept of self-determination but also the right to be free from genocide and crimes against humanity. Nothing in the positive law can take away the right of the Syrian people, under natural law, to resist their own annihilation.  I’m not sure that anything in Article 51 automatically prioritizes the Syrian government’s claim to state sovereignty over the right of the Syrian people to self-preservation and the right of other states to exercise legitimate defense on their behalf.

I should also note that there are other avenues to explore in the Syrian case.  Assad only controls half of the country, so I don’t know why even under a strict “sovereignty” approach he should have a monopoly on deciding who gets to intervene in Syria. He only controls half of his country.  (Once you take into account ISIS controlled territory, it might be even less than half). So I don’t know why international law should privilege his speaking for the Syrian people when his de facto control over its territory is so degraded and he is gassing his own citizens.  It seems equally plausible to say that the Syrian rebels, given their control over territory and their exercising of inherently governmental functions, should be able to speak for themselves.

Of course, it would help the U.S. argument if it recognized the Syrian rebels as the legitimate government of Syria and then pursued a consent-based argument. This approach would no doubt anger Assad and the Russians, but launching Tomahawk missiles has already angered Russia, so that doesn’t appear to be a political or diplomatic constraint at this point in time.  I wish the State Department would pursue this initiative. I imagine that other states would welcome the approach and would follow our lead in recognizing the Syrian rebels as a legitimate government.

(A final approach would be to argue for partition and suggest that the Syrian rebels have created a de facto state, which could be recognized under international law, effectively transforming the Syrian conflict into an IAC. I understand that this option is disfavored for several reasons, in part because it concedes that Assad would remain in control of the legacy Syrian state).

Let me make a final point. All things considered, we should interpret the law to make sense. Interpreting article 51 to require everyone to sit on their hands while a dictator commits genocide or wipes out every last member of a protected ethnic group just doesn’t make sense.  And that’s the reading of article 51 that opponents of humanitarian intervention are advancing. International law disfavors existential annihilation.  Lawyers shouldn’t fetishize state sovereignty and elevate it to the exclusion of all other principles.  If the Syrian people have the right to resist their own destruction, we have the right to assist them.

Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments

by Julian Ku

The blogosphere is now so fast that we can get an enormous sampling of expert opinion in a very short time. So within 24 hours of President Trump’s military strikes on Syria, we have already heard from former Bush State Department Legal Advisor John Bellinger, former Obama State Department Legal Advisors Harold Koh and Brian Egan, former DOJ officials and law profs Jack Goldsmith and Ryan Goodman, as well as numerous law profs and other experts including our very own Deborah Pearlstein and Edward Swaine. The bottom line: Almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter and many think it also violates the U.S. Constitution.

Most of what I have to say I said in 2012-13 on this issue, but I am struck by one group of important actors who seem relatively untroubled by the “illegality” of the U.S. strikes under the UN Charter: states.  With the notable exception of the Russian government, very few states have come out to criticize the U.S. strikes as a violation of international law. No one is saying it is illegal, but it is striking how few are willing to say it is illegal.  I’ve gathered a few statements and links below.

China’s Ministry of Foreign Affairs:

Q: Does China consider the missile strike on the Syrian airbase to be within the scope of international law? Or do you think it violates existing rules about intervention in other country’s sovereign territory?

A: The Chinese side has always stood for a political settlement of the Syrian issue. Under the current circumstances, we hope all parties can keep calm, exercise restraint and avoid escalating the tension.

The latest developments in Syria highlight once again the urgency of resolving the Syrian issue through political means. We call on all parties not to walk away from the process of political settlement.

 

France and Germany (President and Chancellor):

The joint statement by Mr Hollande and the German chancellor Angela Merkel said that “President Assad alone carries responsibility for these developments” with his “repeated use of chemical weapons and his crimes against his own people.”

United Kingdom Defence Minister:

The UK says it “fully supports” the US missile strike in Syria and has urged Russia to put more pressure on the Assad regime to end the civil war.

The US targeted an air base it says was responsible for a chemical attack which killed dozens of civilians.

Defence Secretary Michael Fallon said the UK was not asked to take part but backed the “wholly appropriate” strike.

European Union, President of European Council:

“US strikes show needed resolve against barbaric chemical attacks. EU will work with the US to end brutality in Syria.

Turkey, Deputy Foreign Minister:

TURKEY: NATO ally Turkey, which is a key player in the Syria conflict and has endured choppy relations with Washington recently, welcomed the strikes as “positive.” The deputy foreign minister added: “We believe that the Assad regime must be punished completely in the international arena.”

Turkey called for a no-fly zone in Syria in the wake of the US strike.

Japan, Prime Minister

JAPAN: Prime Minister Shinzo Abe said that Japan “supports the US government’s resolve that it will never tolerate the spread and use of chemical weapons.”

This survey is not comprehensive and some large players, like India, have yet to weigh in.  But it seems only Russia and Iran have condemned the strikes vigorously.  The general support for the attacks in Europe, the Middle East, along withChina’s acquiescence, seems to show that many states are not very troubled by the violation of Article 2(4) most scholars think has occurred here.  Is this because it is a one-off attack? Or does it suggest Article 2(4) has very little pull with many foreign governments these days?

On the domestic US law front, FiveThirtyEight has counted 69 senators have already issued statements supporting the Syria Strikes and while there are critics on constitutional grounds, it doesn’t seem like close to a majority in Congress.

Of course, none of this means that the experts are wrong on the law. But it is at least worth noting the limited impact of the law so far on governmental actors, as the debate on the legality of the Syria Strikes continues.

Initial Takes on Syria: International-Domestic Synergies

by Edward Swaine

There are lots of initial takes on the legality of the Syria strike.  (I see, just now, a great compendium of short takes at Just Security.)  Some ask for a legal justification, and other experts are holding (for a bit) until one is proffered.  As the posts below by Deborah Pearlstein and Julian Ku helpfully indicate, one thing to watch for is assumed or disputed equivalencies between the positions of the United States as it contemplated these questions in 2013 and as it now confronts them. Other unfolding differences, naturally, include the reactions of other states and of the U.S. Congress.

In addition, watch for explicit or implicit claims about the relationship between international law and U.S. domestic law.  International lawyers are free to ignore the latter.  Thus, for example, Marko Milanovic (via EJIL:Talk!) concludes that the strike was “clearly illegal” under international law, but ventures no particular position on U.S. law.  Whether one agrees or disagrees with the rest of the analysis, focusing on this one question is entirely proper, since a violation of international use of force principles does not depend on whether domestic law is satisfied (and it would be very bad if it did).  Maybe, but only maybe, constitutional lawyers can reciprocate by ignoring international law.  For example, Jack Goldsmith (via Lawfare) largely does, though in his case it could be because he confines himself to looking at the issue of constitutionality through the lens of the Office of Legal Counsel’s 2011 Libya opinion, which did not even use the term “international law” at all.  (It did define promoting the credibility and effectiveness of Security Council resolutions as part of the “national interest” inquiry, but that related only indirectly and partially to international law.)  However, as indicated below, and unlike the international law perspective, this runs the risk of offering an incomplete analysis even as to the domestic law perspective.

For those opining about both international law and U.S. domestic law, the ground is treacherous. The safer course, usually, is simply to assume for purposes of discussion that the legal constraints are independent and potentially sufficient.  Thus, for example, John Bellinger (via Lawfare) states that legality under U.S. law is dependent on the scope of Article II, and that as a matter of international law, the United States was lacking “clear authority.”  In contrast, however, Marty Lederman (via Just Security) concludes that the United States is “probably” violating international law, and “therefore” violating U.S. law.  Both have expertise and views that go far beyond these posts.  But one thing that stands out is how they hedge on legality, relative at least to non-U.S. views.  I don’t think that’s due to nationality.  It also reflects complicating assumptions about the right analytical approach entailed by grappling with the two questions, as might too a more recent post by Harold Koh (via Just Security).

Continue Reading…

The Strike in Syria – Is the International Law Calculation Different Now Than in 2013?

by Deborah Pearlstein

In 2013, there was I think broad agreement that the United States lacked any international law justification for the use of force against Syria following its initial use of chemical weapons: there was no UN Security Council resolution authorizing such force, and no assertion by the United States (or anyone else) that this was an action taken in national self-defense. The closest anyone came to a theory of international law legitimacy then was the UK’s suggestion that a post-chemical weapons attack was ‘illegal but legitimate’ for humanitarian reasons in the same way NATO’s un-authorized use of force had been in Kosovo in the 1990s. I detailed my reasons for concluding that illegal but legitimate argument seemed inapplicable to the proposed U.S. intervention following Syria’s use of chemical weapons in 2013 here.

There are two significant differences I can perceive between the state of affairs on the ground in Syria today and the state of affairs in 2013 that have some bearing on the success of any international law defense in support of the latest attack. The first is worth noting, but I think unpersuasive. The United States today has its own troops on the ground in Syria – troops that were not present in 2013, troops stationed (at least some of them) as close as 50 miles away from the site of the chemical weapons attack. In the abstract, one might imagine this could lead the United States to offer some sort of self-defense justification (in defense of our own nationals). But given our troops are in Syria (to fight ISIS) without Syrian consent, and given Syria’s apparent determination since 2014 to avoid engaging U.S. troops directly despite this state of affairs, there seems little objective grounds for concern that Assad would soon train his chemical weapons on U.S. forces.

The second difference goes to the relative strength of the illegal-but-legitimate theory – the view that the use of force against the territorial integrity of another country is technically illegal, but should be viewed as ‘legitimate’ under certain limited circumstances (a view I could describe at best as a still nascent norm of international law). In 2013, the UK Prime Minister’s Office put it in the following terms. A state could take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

There can be little doubt of the horror of the recent chemical attack, albeit on a smaller scale than the attack of 2013. I can imagine few international complaints about the proportionality of a strike targeting only the airfield from which the chemical attack occurred. Where the current administration is in a stronger position than the last is on the question of the objective availability of a practicable alternative to the use of force – thanks to the diplomatic efforts of the past administration, it is far more persuasive now than it was then to argue that the international community has tried through peaceful means and failed to rid Syria of its chemical weapons.

That said, there are at least three factors that persuade me against embracing the proposition that this exercise should be seen as akin to the Kosovo intervention in its relative international law ‘legitimacy.’ First, it was done with no apparent international support – neither from our allies, nor from other countries in the region. The response of foreign nations over the next few days will be significant and could change this calculus but for now, it is a glaring distinction from Kosovo. Second, precisely for the reason President Obama regularly cited against more aggressive U.S. intervention in Syria repeatedly during his administration, it is deeply unclear whether this highly limited attack will have any impact on the humanitarian situation on the ground. Finally, there is the explanation the President himself offered for why the United States undertook the action it did tonight. His reasons were threefold: (1) “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” (2) “Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the UN Security Council.” (3) “The refugee crisis continues to deepen and the region continues to destabilize, threatening the United States and its allies.” I expect we will talk at length in the days ahead about each of these justifications. But while the speech was framed by the President’s own horror at the nature of the attack, none of the reasons given for the action bore any relation to speeding humanitarian relief to the people of Syria themselves.

The Syria Attacks: Haven’t We Had These Debates Already?

by Julian Ku

Reports of another horrific use of chemical weapons against civilians in Syria seems to have affected President Trump. In comments today, President Trump said the chemical attacks against civilians “crossed a lot of lines for me” and changed the way he views Syria and leader Bashar al-Assad. Although it is always hard to interpret the President’s comments, he did cite his “flexibility” to change his policies. One might interpret this to mean that the U.S. my change course and directly use military force against the Assad government in Syria.

As tragic as this latest attack is, I also feel like I am in a time-warp that has sent me back to 2012-13 when similar chemical weapons attacks led to similar global outrage which led to an American debate about whether to launch military attacks on Syria.  President Obama famously decided to launch such strikes (without Congress or the UN) and then changed his mind and sought congressional consent.  He never got that, but he did work out an agreement with Russia and the Assad government to remove Syria’s chemical weapons capability.  That didn’t work out as well as he hoped (to use a tragic understatement).  But the factual and legal issues are almost identical today.

So as a service to readers, let me just link to some of the legal analysis we posted back then, much of which still applies today. Updates of course will be necessary, but this is the right place to start.

I argued in 2012 that a strict reading of the U.N. Charter prohibited any U.S. strike on the Syrian government without consent from the U.N. Security Council.  This would be the case even if the Syrian government used chemical weapons against civilians during its civil war.  Former top UK legal adviser Daniel Bethlehem took issue with my formalist reading of the U.N. Charter.

Kevin wondered why the use of chemical weapons itself was so significant as opposed to the civilian deaths it caused.  Put another way, he pointed out that the use of chemical weapons, however horrible, was not necessarily any more of a war crime for legal purposes that the use of non-chemical weapons against civilians and non-combatants.  He also points out in a later post that the Rome Statute does not single out chemical weapons use alone as a crime, despite an initial proposal by drafters to do so.

Finally, we held an “insta-symposium” on Syria with many great contributions from scholars, legal and non-legal, on the difficult questions raised by the Syria conflict.  A list of those posts can be found here at the bottom of the first post in that symposium, from Stephanie Carvin.

Hopefully, this will help all of us refresh ourselves for the great Syria intervention debate, Round II (Donald J. Trump edition).

Can’t Britain Exit Brexit (Redux)?

by Edward Swaine

My earlier Brexit post noted the emerging rigidity of the United Kingdom’s position that its Article 50 notice was irrevocable – not just politically, but to all appearances, also legally.  As the post noted, that evolution has taken place notwithstanding indications that the UK once perceived itself to have the liberty to withdraw that notice.  There are downsides to this new position, particularly if one thinks that Brexit is a bad idea and that history (and the British public) will come to judge it a mistake.  It has also not been well explained, and coverage of the decision has obscured whether the UK is politically or legally committed to this course. Still, the psychology is one familiar to international lawyers, in that the UK is asserting its sovereign authority to bind itself to the mast . . . just in this case, the mast may not be one sailing past a dangerous island and into oceans of multilateral commitment, but rather one that the UK is busy scuttling and directing toward Davy Jones’ locker.

The EU, however, is joining the UK in obscurity.  In a recent press release, the Commission asked and answered the question:

Once triggered, can Article 50 be revoked?

It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.

I do not think the irrevocability position is right, for reasons alluded to very briefly in the prior post, and persuasively elaborated in a timely paper by Aurel Sari that has since been brought to my attention. I want here to discuss narrower questions.  First, as with the UK, the EU’s present view is not necessarily the one it has previously had; second, however restrictive both their understandings, there is a potential, meaningful difference, since the EU view is not exactly one of irrevocability. Continue Reading…

Symposium on the Nuremberg Trials

by Kevin Jon Heller

The Loyola of Los Angeles International and Comparative Law Review has just published a special issue on the Nuremberg trials. It contains many excellent contributions, including articles by Hilary Earl, David Fraser, Greg Gordon, and Jonathan Bush. I have also contributed a short chapter, entitled “Taking a Consenting Part: The Lost Mode of Participation,” which discusses a mode of participation developed by the NMTs and then promptly forgotten — for better or for worse — by international criminal law.

All of the articles in the special issue are free to download here.

Remembering Martin Luther King, Jr. in the Age of “America First”

by Chris Borgen

Today, April 4, is the anniversary of the 1968 assassination of Dr. Martin Luther King, Jr. It is also the 50th anniversary of his speech “Beyond Vietnam,” delivered at Riverside Church in New York City on April 4, 1967.

I wrote a piece about Dr. King and international law over a decade ago on Opinio Juris.  I thought it would be interesting to revise and expand that earlier post and consider MLK’s views about world order once again, but now in the era of the Trump Administration (as well as the rise of nationalistic popular movements in many countries). What to make of “Beyond Vietnam” in the age of “America First?”

King’s voice was not the voice of an international lawyer, but of a pastor. He didn’t parse treaties; he invoked morality. Nonetheless, there is something in Dr. King’s rhetoric and in his argument that can inform and engage the work of international lawyers. This is not to fall into Utopianism but to see how moral and political rhetoric interacts with our practice.

Of course, part of the contrast is that President Trump tries to make everything sound like a real estate deal while Dr. King spoke with the voice of a pastor, which some would dismiss as prophetic rather than pragmatic. But this would miss, I think, how MLK’s words from fifty years ago apply to the challenges we have before us today.

Martin Luther King put himself in the shoes of others and spoke eloquently about their claims for justice.  This technique of looking at the world from the standpoint of others is all the more vital when we are discussing laws or norms that we claim should be applied across national and cultural borders. It is absolutely fundamental in any attempt to resolve a sectarian conflicts in the struggle to support human rights of under-represented communities around the world. Consider, for example, how Dr. King referred to the people of Vietnam in his “Beyond Vietnam” speech delivered on April 4th, 1967:

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologoies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

Not so much a battle for the hearts and minds, but an attempt to understand hearts and minds. He asks us to “appreciate the reciprocal”: think of how the world would look from the standpoint of the average man or woman living in Vietnam. Rather than demonizing the other, take time to understand why they do what they do. And that “why” is not answered by a  simple “they hate us,” but digging deeper, understanding motivations, and responding effectively. That is the real art of the deal.

Towards the end of his speech, Dr. King expands from the concerns of U.S. policy in Vietnam to the challenge of building not so much a “New World Order,” but a “Just World Order.” He argues that truly appreciating the reciprocal, this radical compassion on the individual level, leads to institutional transformation:

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life’s roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life’s highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.

A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: “This is not just.” It will look at our alliance with the landed gentry of Latin America and say: “This is not just.” The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.

A true revolution of values will lay hands on the world order and say of war: “This way of settling differences is not just.” This business of burning human beings with napalm, of filling our nation’s homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values…

This kind of positive revolution of values is our best defense against communism. War is not the answer. Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those who shout war and, through their misguided passions, urge the United States to relinquish its participation in the United Nations. These are days which demand wise restraint and calm reasonableness. We must not call everyone a Communist or an appeaser who advocates the seating of Red China in the United Nations and who recognizes that hate and hysteria are not the final answers to the problem of these turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for democracy, realizing that our greatest defense against communism is to take offensive action in behalf of justice. We must with positive action seek to remove those conditions of poverty, insecurity and injustice which are the fertile soil in which the seed of communism grows and develops.

While full of references to the problems of the day (the Communist threat; whether to seat “Red China” in the U.N.), Dr. King still gives us a lesson for our day. Keep in mind that he had spoken these words after the demise the previous “America First” movement. He argued that we should see ourselves in the other and that many rights are universal and not the preserve of Western societies. But, at the same time, he counseled humility in international discourse and an openness to learning from others, rather than on insisting that we in “the West” can only be teachers. He emphasized showing what a rights-based view of humanity had to offer, rather than simply criticizing the world-view of others.  While Trump’s rhetoric is that the world is a zero-sum game and we are losing, King framed interactions  across cultures as the possibility of using discussion as a way to enhance mutual understanding, transform relationships, and build norms.

Dr. King spoke in the voice of a preacher. There’s much good in what he said and some that may not seem practical to us today. But, at the very least, he provided a coherent world view that wasn’t so much within international law as encompassing it. And, ahem, MLK had the best words.

A genuine revolution of values means in the final analysis that our loyalties must become ecumenical rather than sectional. Every nation must now develop an overriding loyalty to mankind as a whole in order to preserve the best in their individual societies.

This call for a worldwide fellowship that lifts neighborly concern beyond one’s tribe, race, class, and nation is in reality a call for an all-embracing and unconditional love for all mankind. This oft misunderstood, this oft misinterpreted concept, so readily dismissed by the Nietzsches of the world as a weak and cowardly force, has now become an absolute necessity for the survival of man.

As an international lawyer, I read the words of Martin Luther King, Jr. in “Beyond Vietnam” and think not only about how far we’ve come, but about how far we have to go.

The Unattractive Question is Back: SCOTUS (Again) Considers Corporate Liability Under the Alien Tort Statute

by Julian Ku

Today, the U.S. Supreme Court agreed to hear the case of Jesner v. Arab Bank in order to resolve a single issue: “[w]hether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.” This post will briefly review the case and offer a quick assessment of the ATS corporate liability issue.  Longtime readers will not be surprised to read that I side with the Defendants on this issue, although I will also add that I think my side on this case will have an uphill battle to prevail in the high court. 

Should the Court have agreed to hear the case?

The Court’s decision to hear the case is a bit surprising given that it had refused to hear at least two cases raising the same issue in the previous two terms.  On the other hand, the Court’s decision to hear the case is also quite understandable given the fairly sharp split between lower circuit courts on the question. Such an enduring split among the opinions of lower courts is always an important factor for the Court in deciding whether to hear a case. The rather dramatic divisions among judges on the Second Circuit Court of Appeals on this issue probably caught the Court’s attention as well.

Still, it is also worth noting that the Court granted cert on this exact same issue not six years ago when it first agreed to hear Kiobel v. Royal Dutch Petroleum in the fall of 2011.  The parties submitted briefs and held oral arguments on the corporate liability issue itself.  But during argument, the Court decided that the question of whether the Alien Tort Statute has extraterritorial reach needed to be resolved first, and sent the case back for re-argument the next term.  That re-argued case eventually became the 2013 Kiobel decision sharply limiting the extraterritorial scope of lawsuits brought under the ATS to cases that “touch and concern” the territory of the U.S.  The corporate liability issue was left fully argued and untouched.

To be sure, since 2013, several other circuit courts have issued opinions on the corporate liability issue and all have split from the original Second Circuit Kiobel decision denying corporate liability under the ATS. And the Court may have a new member by the time Jesner v. Arab Bank is decided.  So while that is a possible reason for reversing course and granting cert, it is still unusual for a Court to hear a case on the exact same issue it already heard in argument a few years ago.

What Law Should Determine Whether Corporations Should Be Liable Under the Alien Tort Statute?

One of the more annoying hard-to-explain legal issues in ATS cases is also one of my favorite law-nerd issues: what law should govern?  On its face, the ATS calls for the application of “the law of nations” but courts have long disagreed about whether international law also applies to questions such as standards for aiding and abetting liability and whether a corporation can be liable.  ATS plaintiffs have typically argued that these questions should be governed by domestic law, that is to say, federal common law. Under federal common law, corporations are typically liable for torts and application of this law would almost certainly favor the plaintiffs on this question.

But the Court has never fully resolved this issue.  To me, it has always seemed that any questions affecting the substance of a case against an ATS defendants should be governed by international law, as the ATS’ text seems to demand.  The temptation to fill in the many gaps left by international law with U.S. common law is strong, but the ATS clearly sought to ask US courts to apply international law.  Getting past that textual directive will be difficult for me, and I suspect the textualist-oriented justices on the Court.

Will Justice(?) Gorsuch’s Vote Matter?

The circumstances of this grant for cert, which occurred after several prior opportunities were rejected, does not bode well for respondents.  Nor is the fact that the cert grant adopts the petitioners’ phrasing of the issue word-for-word.  I would be particularly troubled by the Court’s decision to phrase the question as whether the ATS “categorically” forecloses corporate liability. This is plainly language structured to favor the plaintiffs’ case.

My views on the ATS corporate liability question should be well known to most OJ readers.  I think the issue of corporate liability should be governed by international law and that the strict standards for recognizing an actionable norm under the Court’s prior decision in Sosa precludes recognizing an ATS cause of action against corporations.  I joined a great amicus brief saying basically that in the original Kiobel case back in 2012.

I have also recognized, however, that this is pretty formalistic argument that is unusually unattractive to most observers. Still, the international norms haven’t really changed since 2012.  Plaintiffs will not be able to cite to many (or any) sources that hold corporations liable for violations of international law norms.  But they can still pound the table and simply say it is ridiculous to “immunize” corporations for torts, which I think still has quite a bit of force.  The response has got to be that corporations are often liable for torts, but not always.  Even under domestic law, the U.S. Supreme Court has foreclosed corporate liability for certain statutes (like the Torture Victim Protection Act) or for constitutional norms in the context of Bivens actions).

This leads me to Judge/Justice Gorsuch.  Since the case will be heard next term, Judge Gorsuch will have a chance to rule on the case if he is confirmed.  Will he be willing to sign on to a formalistic/textualist interpretation that is extremely normatively unattractive?  I don’t know enough about Judge Gorsuch to know, but I am not sure this will matter. My guess is that Justices Roberts and Kennedy were sufficiently repulsed by the idea of ruling against ATS corporate liability back in 2012 that they sought (and found) a different way of resolving the case.  I suspect (without having any inside information) that they would like to find an out again.  If they can’t, I can see a 6-3 opinion for the plaintiffs, with Chief Justice Roberts writing an opinion that he tries to make as narrow as possible.

So that’s my first take on Jesner v. Arab Bank.  I will no doubt be back for more. Stay tuned!

Examining Detention Authority in NIAC: A Response to Heller

by Daragh Murray

[Daragh Murray is a Lecturer at the University of Essex School of Law and Human Rights Centre.]

Thanks to Kevin for his post engaging with some of the issues discussed in my recent article on detention authority in non-international armed conflict. I would like to take this opportunity to provide a quick overview of my argument as relevant to this post, to discuss Kevin’s prohibition v. regulation argument and some of the other points he raised, and to highlight a key proposal developed in the article but not included in the original post.

Detention is a core activity in armed conflict, and one central to the conduct of military operations. The law of NIAC applicable to armed groups regulates detention when it occurs, but it does not establish an explicit legal basis for that detention. However, in the article I suggest that the fact that the law of armed conflict/international humanitarian law regulates detention means that it must be interpreted as establishing implicit detention authority.

This is because the prohibition of arbitrary detention is absolute, and this absolute prohibition remains applicable during non-international armed conflict. The right to liberty and security establishes that, to protect against arbitrariness, all detention must, amongst other requirements, have a legal basis. Accordingly, if IHL does not establish an implicit legal basis, then all detention by armed groups will be arbitrary and therefore prohibited, there being no other existing legal basis available to armed groups (see below). The law of treaty interpretation precludes this conclusion: it cannot be assumed that States intended to regulate that which is absolutely prohibited (arbitrary detention) as this would constitute an exercise in futility. CA3 must therefore be interpreted as establishing an implicit legal basis.

Importantly, if international law does not establish an implicit legal basis – and therefore prohibits all instances of armed group detention as arbitrary – international law will be of little relevance to armed groups, given the reality in which they exist. This will have significant practical consequences, and so clarity on this issue is essential.

Regulation v. prohibition

In his reply, Kevin raises an interesting question as to whether CA3 (etc.) regulates detention, or merely prohibits certain activities. In my view, NIAC’s detention-related provisions extend beyond mere negative prohibitions. The content of the obligations imposed require active (positive) measures. For instance, in order to fulfil the requirement that detainees ‘in all circumstances be treated humanely’, detaining authorities will be required not only to refrain from ill-treating detainees (i.e. through physical abuse) but also to actively address: conditions of detention, including quarters; provision of food, water, medicine; access to appropriate medical care; exercise, and so on. In my opinion, this active involvement indicates regulation, not just the imposition of prohibitions.

Different forms of regulation

The article discusses why international law cannot regulate that which is absolutely prohibited and I don’t want to repeat those arguments here. However, picking up on Kevin’s point regarding the regulation of torture, and the possibility of regulating impermissible activity, it is perhaps appropriate to make a distinction between two forms of regulation:

(A) regulations established to ensure compliance with an absolute prohibition, and

(B) regulations governing conduct that is absolutely prohibited.

(A)-type regulations are, of course, necessary. Indeed, this is exactly what UNCAT does. (B)-type regulation is, in my opinion, impermissible. Accordingly, while you may regulate the prohibition of torture (A), you cannot regulate torture itself (B). This was clearly stated by the ICTY in Furundzija (para 155). As such, international law would prohibit a doctor’s involvement in torture, as torture. This is distinct from the requirement that medical attention be given to detainees, irrespective of the cause of the harm. Returning to detention, international law clearly and absolutely prohibits arbitrary detention. It cannot therefore be assumed that States established rules to regulate detention by armed groups knowing that all instances of armed group detention will be arbitrary and therefore prohibited.

A legal basis for armed group detention could be established outside international law

 As Kevin notes, States may provide a domestic legal basis for armed group detention, although they do not typically do so. However, in creating CA3 (etc.) States chose to regulate armed group detention. This act of regulation necessitates the establishment of a legal basis in order to ensure consistency with the prohibition of arbitrary detention. As States have not provided a legal basis under domestic law, the required legal basis must be regarded as implicitly established under IHL.

Consequences of armed group detention authority

If armed groups party to a NIAC are recognised as having authority to detain, this does not suggest that all armed group detention is permissible. The scope of detention authority must be determined, and established procedures (such as judicial supervision) must be adhered to; this is something I have examined elsewhere (chapter 7). Issues also arise with respect to State sovereignty. However, it should be recalled that the authority under discussion is restricted to armed groups party to a NIAC, and is circumscribed by the law applicable in NIAC. That is, it applies only in exceptional situations, where State authority has been displaced. In such volatile situations, it is important that law applies, and that this law is appropriate to the situation. If we accept that detention is a necessary activity during armed conflict, then recognising, regulating and circumscribing the scope of that activity is arguably appropriate. Importantly, this also provides an opportunity to engage with armed groups in an effort to encourage legal compliance. At the same time, States can continue to criminalise armed group activity, from membership related offences, to violations of international law.

Moving forward

Acceptance of armed groups’ authority to detain will raise a number of legitimate concerns. Nonetheless, I do believe that this is an accurate reflection of the law as it stands. That is not to say, however, that this is necessarily ideal or the end of the story. The conclusion that IHL must be interpreted as establishing an implicit legal basis for detention is based on the application of the prohibition of arbitrary detention, as that prohibition applies to States. Understood in the State context, human rights law’s protection against arbitrariness requires a legal basis. It is possible, however, that the content of this prohibition as applied to armed groups might need to be re-evaluated.

Given the non-State status of armed groups, and the consequent difficulties vis-à-vis the creation of law, perhaps other protections against arbitrariness should be prioritised ahead of the legal basis criterion. Human rights law establishes a number of requirements in this regard, and these – and the possible re-consideration of the content of the prohibition of arbitrary detention – are discussed in greater detail in the article. Focusing on the ‘essence’ of human rights protections in this manner could be a possible ‘way forward’ both in relation to the specific issue of detention in NIAC, and to legal engagement with armed groups and other non-State actors more generally. This would facilitate coherence within international law, without necessitating that international law authorise elements of armed group activity.

Events and Announcements: April 2, 2017

by Jessica Dorsey

Sponsored Announcement

  • The Academy on Human Rights and Humanitarian Law is pleased to share with you today the newly released brochure for the 2017 Program of Advanced Studies on Human Rights and Humanitarian Law. The Program will take place from May 30 to June 16, 2017 and offers 20 courses in English and Spanish taught by more than 40 world-renowned scholars in the field of human rights and humanitarian law. Professors include Special Rapporteurs from the United Nations, Commissioners, Judges and other members of the Inter-American Commission and Court of Human Rights, Judges from International Tribunals like the ICC, ICJ and ICTY and professors from all over the world. The program provides a unique opportunity to interact directly with these high profile officials who are rarely available in such a personal setting. We also welcome over 150 participants from more than 25 countries around the world, all with varying levels and areas of professional experience in human rights, providing an excellent networking opportunity. The application can be found here: https://goo.gl/WcRh0J, and the deadline to apply is May 1. We would be happy to speak to anyone who may be interested in attending the Program at our new Tenley Campus by email at hracademy [at] wcl [dot] american [dot] edu or by phone at 202-274-4295.

Announcements

  • Duke Law seeks to fill a Clinical Fellow/Supervising Attorney position in its International Human Rights Clinic beginning in the Summer of 2017. The Clinical Fellow/Supervising Attorney will work closely with the Director of the International Human Rights Clinic. She or he will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar. The Clinical Fellow/Supervising Attorney will also work closely with the Director and other faculty to expand Duke Law’s experiential learning opportunities in international law, including through student placements in competitive summer and semester fellowships and externships in human rights and related fields. The individual appointed to the position will receive mentorship in teaching, scholarship, and human rights lawyering and will have an opportunity to work with the faculty affiliated with the Center for International and Comparative Law. Applicants should have a minimum of two to five years of relevant experience. In addition to a record of, or demonstrated potential for, clinical teaching, advocacy, and intellectual engagement, the ideal candidate will have experience: as practicing lawyers or human rights advocates, developing practice- oriented courses, supervising students in fellowships or externships, working collaboratively with faculty, and other evidence of in-depth knowledge of and practical engagement in international human rights law and mechanisms. The initial term of the appointment is expected to be two years. Salary and benefits will be commensurate with experience and competitive with similar fellowship positions at other top U.S. law schools. Applicants should send a statement of interest and CV to Ali Prince at ali [dot] prince [at] law [dot] duke [dot] edu by April 16, 2017. For more information, see here.