Archive for
May, 2017

Syria War Crimes Accountability Act — Now Revised!

by Kevin Jon Heller

Last month, I blogged about 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.” I praised the bill, but pointed out that Section 7(a) was drafted in such a way that it permitted the US to provide technical assistance to entities investigating international crimes committed by pro-Assad forces and “violent extremist groups,” but did not permit the US to support entities investigating international crimes committed by rebels.

I am delighted to report that Sen. Ben Cardin (D-MD), the Ranking Member of the U.S. Senate Foreign Relations Committee (SFRC), successfully introduced an amendment to the bill at last Thursday’s SFRC’s business meeting that corrects the asymmetry in Section 7(a). The new version reads as follows (emphasis in original):

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 all non-state armed groups fighting in the country, including violent extremist groups in Syria beginning in March 2011…

This is a welcome change, because — as I pointed out in my original post — there is no reason to treat crimes committed by rebels any differently than crimes committed by Assad’s forces or by ISIS.

Kudos to Sen. Cardin! Let’s hope the revised version of the bill passes the full Senate soon.

Thoughts on Scott Turow’s ICC Novel, TESTIMONY

by Kevin Jon Heller

I have just finished reading the novel, in which a burned-out former US Attorney joins the ICC to investigate the disappearance, and presumed murder, of 400 Roma in Bosnia. I have always been a huge Scott Turow fan; I’ve read every book he’s ever written, most more than once, and the best one — the classic PRESUMED INNOCENT — five or six times. And there are many good things in TESTIMONY, such as the investigative scenes in Bosnia. In general, the various twists in turns in the story are vintage Turow, with fingers being pointed in all directions and the ending coming as a suitably-foreshadowed surprise.

It is also worth noting that Turow’s decision to set the book at the ICC instead of the ICTY is actually quite clever. We are not in CROSSING LINES territory here. Bosnia is a member of the Court and the Roma massacre took place in 2004, so the ICC clearly has jurisdiction. More importantly, Turow is on firm ground when he explains that the ICTY considered the case but ultimately decided it did not have jurisdiction over it. As ICL nerds know, the ICTY Statute requires crimes against humanity to be connected to armed conflict — the nexus requirement first adopted by the IMT. The Roma massacre lacks the requisite nexus, because there was no armed conflict in Bosnia in 2004.

Unfortunately, that is the legal high point of the book. The rest is replete with errors about the ICC and international criminal law in general. Some of those errors are fundamental, while others are minor but frustrating for how easily they could have been avoided.

The initial error is a doozy: Turow has the Pre-Trial Chamber (PTC) authorise the investigation into the Roma massacre, despite the fact that Bosnia self-referred the situation to the ICC. The book even contains a mock decision pursuant to Art. 15, the proprio motu provision! That is, of course, completely wrong: because Bosnia self-referred, the PTC did not have to authorise the investigation. The OTP was free to investigate the massacre on its own. And that error, in turn, undermines the entire setup of the book, which opens with a scene in which the sole survivor of the Roma massacre testifies before the PTC. The hearing is not only “unprecedented,” as Turow says — it’s pointless, because the OTP could have simply interviewed the witness itself.

Many of the other errors concern the functioning of the ICC. Here they are, in order they appear in the book. Sorry for the lack of page numbers — I was reading on my iPad with the text resized:

[1] It is not at all surprising to find a US prosecutor at the ICC, despite what Turow says. There have always been Americans working at the Court, including some very senior prosecutors like Christine Chung. (As an aside, Turow never bothers to explain why the ICC was willing to hire Bill Ten Boom to investigate the Roma massacre. All he says is that the US wanted an American prosecutor on the case, because the US Army might have been involved — a fact that would obviously have worked against hiring an American.)

[2] An ICC judge would never ask a prosecutor for permission to question a witness. Questioning by the judges is routine and expected.

[3] Dick Cheney did not support unsigning the Rome Statute because he was afraid of being prosecuted for waterboarding. The unsigning took place in May 2002 — before the US had waterboarded anyone. 

[4] The Cambodia and Sierra Leone tribunals are not located in the Hague.

[5] It’s the Jurisdiction, Complementarity, and Cooperation Division, not the “Complementarity Section.”

[6] The principle of complementarity doesn’t require the Court to wait 30 days for a state to act before pursuing an investigation.

[7] The ICC’s judges select the President of the Court, not the Court’s member states.

[8] Not all NATO states have joined the ICC. (Turkey has not.)

[9] The ICC could not sue the US at the ICJ to force it to disclose records. The ICC is not a state and the US does not accept the ICJ’s compulsory jurisdiction.

[10] There is no legal reason why the ICC could not use documents the US produced in (ostensible) violation of the American Service-Members Protection Act (ASPA).

[11] Neither the President of the Court nor the Registrar has any say in how the OTP allocates funds to investigations. (Turow consistently has both involved in the OTP’s decision to exhume the cave in which the Roma massacre supposedly took place.) That’s a serious mistake.

[12] Nothing in the ASPA makes it illegal for a member of the Court to investigate in the US. (Another claim Turow makes again and again.)

[13] The forcible transfer and massacre of the Roma are not war crimes, because there is no armed conflict. If they were committed during an armed conflict, the ICTY would have — and should have — prosecuted those acts.

I’m surprised that the New York Times described TESTIMONY as “well-researched,” because unfortunately it’s not. Or perhaps it is more accurate to say that Turow did his research but didn’t learn from it. According to the Author’s Note, Turow spoke to multiple officials at the ICC — including Judge Tarfusser, Fatou Bensouda, and the Registrar, Herman von Hebel — as well as to ICC experts like my friend Alex Whiting. I’m pretty sure all of those individuals know that the PTC doesn’t have to approve an investigation pursuant to a state referral.

Finally, a note about verisimilitude. It’s easy to dismiss errors like these as irrelevant in a work of fiction. As someone who spent a few years writing television in Hollywood, I have a degree of sympathy for that position. I think it’s fine to fudge the truth when it’s dramaturgically necessary to do so. But there is no excuse for fundamental mistakes like the PTC authorisation — especially when those mistakes can be so easily solved. All Turow had to do was delete the sentence that says Bosnia referred the situation to the ICC. Moreover, there is no point in making simple mistakes that are in no way necessary for the story; that’s just sloppy writing.

Let’s face it: many Americans will learn about the Court for the first time from this book. And they will come away with some basic misunderstandings about how the Court operates.

The Venezuela Crisis at the Organization of American States: Between Withdrawal and Suspension

by Alonso Illueca

[Alonso Illueca is a lawyer and adjunct Professor of law at Universidad Catolica Santa Maria La Antigua and Universidad del Istmo Panama.]

On May 31, 2017, the Meeting of Consultation of Ministers of Foreign Affairs (MCMFA) of the Organization of American States (OAS) will take place to consider the situation in Venezuela. This meeting was convened by the Permanent Council’s (PC) through resolution 1079/17 and based on the OAS Charter, articles 61 and 62 (see here). For several months, Venezuela has been under political turmoil. This state of affairs threatens the country’s democratic order and institutions. Moreover, Venezuela’s ongoing bid for withdrawal from the OAS is detrimental to Inter-American multilateralism. An effective Venezuelan withdrawal would set a precedent for future cases and weaken the OAS position vis-à-vis other regional organizations (CELAC). The current situation and the upcoming MCMFA provides an opportunity to consider the tools that international law provides to the OAS and it’s member States for preserving the organization’s membership. This article offers a perspective on some of the available options to the OAS for maintaining its status as the foremost regional agency of the American Hemisphere.

Venezuela’s withdrawal from the OAS

As a response to the PC resolution 1079/17 and the upcoming MCMFA, the Venezuelan Foreign Minister announced that the country would present a “letter of resignation” (in Spanish only) to the OAS. This letter, dated 27 April 2017, claims that the OAS is acting as an instrument for United States’ interventionism and presents to the Secretary General of the OAS (OASSG) the official notification of Venezuela’s definitive withdrawal from the organization. It is important to note that Venezuela stressed its willingness to comply with the “denunciation” procedure established in the OAS Charter.

Article 143 of the OAS Charter establishes that a withdrawing party must provide a written notification of its intentions to the OASSG, and after two years of such notification the withdrawal becomes effective. Additionally, it states that after this period the State concerned “shall cease to belong to the Organization after it has fulfilled the obligations arising from the present Charter”. With the aforementioned letter, Venezuela has only complied with one of these requirements. All things considered, Venezuela would cease to be an OAS Member State on 27 April 2019, as long as it fulfills its obligations under the OAS Charter.

The Venezuelan crisis and the Inter-American Democratic Charter

From a practical perspective, the Venezuelan government has interrupted the country’s democratic order twice, at least, since the start of crisis. First, by failing to convene a revocation referendum as established in the Venezuelan Constitution (in Spanish only). Second, by suspending the powers of the National Assembly through the Government controlled Supreme Court (see PC Res. 1078/17). This “suspension of powers” was later revoked.

With regard to the interruption of the democratic order, it is necessary to consider the paramount importance given to democracy in the OAS’ structure. The preamble of the OAS Charter considers democracy as an indispensable condition for the stability, peace and development of the region. It also lists among its essential purposes “to promote and consolidate representative democracy, with due respect for the principle of non-intervention.” Moreover, it mentions among its principles the effective exercise of representative democracy.

The OAS Charter provides for the suspension of member States whose democratically elected governments have been overthrown by force. In 2001, the Third Summit of the Americas expanded this provision by adopting the Declaration of Quebec City, containing the “democracy clause,” which establishes that “any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state’s government in the Summits of the Americas process.” On September 11 of the same year, the Inter-American Democratic Charter (IADC) was adopted. Article 19 of the IADC further expands the democracy clause to all the organs and bodies of the OAS, including the General Assembly (GA), the MCMFA, specialized conferences, commissions, and working groups. Further, article 20 establishes that prior to suspending a member State, the PC may undertake diplomatic initiatives to restore democracy.

In its more than 15 years of history, the IADC has been invoked in situations involving Venezuela (2002), Nicaragua (2004, 2005), Ecuador (2005, 2010), Bolivia (2005, 2008), and Honduras (2009). Only once a State has been suspended through the IADC. In 2009, Honduras right to participate in the organization was suspended in a special meeting of GA, after OASSG’s diplomatic had initiatives failed (AG/Res. 2 (XXXVII-E/09)). It is important to note that, while suspended, Honduras continued to be a Member of the Organization, obliged to fulfill its obligations.

The OAS’ dilemma: What to do next? Is it too late?

In 2016, the OASSG invoked the IADC (art. 20) with regard to the situation in Venezuela (here). In a recent NY Times article, he called for free and fair elections in Venezuela as a mechanism for avoiding their suspension from the OAS by way of the IADC. The OASSG concluded that suspension is the last resource in the regulatory framework of the IADC. In the same vein, the PC, when enacting resolution 1078/17, decided only to undertake diplomatic initiatives under the IADC, by inter alia considering convening the MCMFA. As mentioned above, the upcoming MCMFA was called upon by the PC (resolution 1079/17) and seems to be part of the diplomatic initiatives considered by resolution 1078/17 undertaken prior to adopting the last resort measure (suspension).

In this sense, it seems that the OAS’ diplomatic initiatives and even the “suspension” option came a little too late, as Venezuela has already initiated its withdrawal process from the organization. Had the GA convened in special session and suspended Venezuela’s participation in the OAS, prior to the issuance of Venezuela’s withdrawal letter of 27 April 2017, any subsequent denunciation attempt would had been ineffective.

Nevertheless, the withdrawal clause of the OAS Charter may prove useful in constraining Venezuela from exiting the organization. When a State decides to withdraw from a treaty, it needs to comply with the procedure agreed upon or obtain the consent of all the States parties (see, 1969 Vienna Convention on the Law of Treaties (VCLT) art. 54). In the case at hand, the OAS Charter requires the State concerned to notify its intentions to the SG, wait a mandatory period of 2 years, and fulfill its obligations arising from the Charter. The latter requirement could be interpreted narrowly to include financial obligations only (Venezuela has approximately an 8 million dollar debt with the OAS), which is the generally held view, or be expanded to include the principles and purposes included in Charter dealing with democracy.

The second option could potentially add some extra burden to Venezuela’s right to withdraw. If this option is analyzed in conjunction with the paramount importance given to the IADC in each of the documents issued by the PC or the OASSG, it could be argued that among the obligations for Venezuela arising from the Charter are the ones supporting representative democracy. Nonetheless, considering that this is the first time that a State withdraws from the OAS, there are no factual precedents on which to draw upon. Consequently, when considering this question, resort to the VCLT’ general rule and supplementary means of interpretation (art. 31-32) would be necessary. In any event, the OAS Secretary of Legal Affairs stressed that the main obligation of Venezuela would be to pay the debts it owes to the organization.  He also articulated that Venezuela would remain a full member of the organization with all its rights and obligations, at least, for the next two years.

Besides its many shortcomings, the IADC is yet to be considered a legally binding instrument (see Perina). It provides for collective action in cases of “unconstitutional alteration of the constitutional regime” through diplomatic initiatives and suspension. In the case of Venezuela, collective action is currently limited to diplomatic initiatives. However, it remains difficult to understand which would be the practical effect of suspension if Venezuela has already decided to withdraw from the organization. In this sense, would the suspension of the membership suspend the 2-year denunciation notice period? A case with some similarities, if any, is the one North Korea and its withdrawal from the Non-Proliferation Treaty (NPT). In that case, the withdrawal was unilaterally suspended by North Korea for 10 years. For many reasons, North Korea’s status in the NPT remains contested until today. However, it differs from the case of Venezuela because the decision to suspend the withdrawal was taken by the withdrawing State, not implicitly ordered by the organization in question.

Conclusion

Some analysts suggest that the OAS’ ongoing role in the Venezuelan crisis has compromised its natural role as a prospective mediator. In shaping its own practice the OAS and its Member States must consider the principles and purposes of the organization and the applicable rules of international law. Nevertheless, the OAS and its legal experts may have a unique opportunity for shaping regional practice with regard to the law of treaties and the regulatory framework of the IADC.

Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)

by Julian Ku

Grand Justices of the Constitutional Court, Judiciary Yuan, Republic of China – Taiwan

In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.*  I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here.  But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here)  cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.**  But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point.  Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).

I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision.  But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision.  The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way.  I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority.  No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.

There are, of course, international relations implications from this decision.  Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia.  This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.

*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.

**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.

Pledging American Exceptionalism: US Supreme Court Justice Gorsuch on International Law

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

American exceptionalism is nothing new. Nor are debates about whether it is appropriate for US courts to look to foreign or international law, particularly when interpreting the US Constitution. Yet now-Justice Gorsuch’s recent testimony on the issue during his confirmation hearing still took my breath away. You can hear the question posed and his answer here (the exchange is also transcribed below). I think that every international lawyer should watch this clip. It’s exceptional …

Question by Sasse: As a sitting Supreme Court justice tasked with upholding the US Constitution, is it ever appropriate to cite international law and, if so, why?

Answer by Gorsuch: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt a foreign law. That’s an appropriate time to look at any choice of law provision by any party in any contract. Treaties sometimes require you to look at international law by their terms.

But if we’re talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us. For all the imperfections of our rule of law, it is still the shining example in the world. That’s not to say we should sweep our problems under the rug or pretend that we’ve solved all of the problems in our culture, in our society, in our civic discourse. But it is to say that we have our history and our Constitution and its by “we the people.”

And so, as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution — as a general matter.

So what do I find remarkable about this interaction?

First, the conflation of international law and foreign law is disconcerting. When asked about whether it is appropriate to cite to international law, Gorsuch immediately turns to choice of law provisions in contracts. But that is typically a question of foreign law, not international law. Certainly, both are non-American law. Yet the two of them raise distinct questions, particularly given that the United States contributes to the formation of international law, is bound by international law, and has hooks in its Constitution for looking to international law. As for when Gorsuch says that treaties sometimes require you to look at international law … I feel like telling him that, actually, treaties are international law. I have been critical elsewhere of how the US Supreme Court can interpret a treaty without even referencing the Vienna Convention on the Law of Treaties.

Second, the statement “I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us” is particularly striking. On a descriptive level, there is something to what Gorsuch says. Academics and courts in many states regularly look to US case law, but the same is much less true in reverse. I find clear evidence of this asymmetry in my forthcoming book Is International Law International? (OUP, 2017) where international textbooks from around the world look to US case law while US international law textbooks look to … US case law.

But on a normative level, I find this statement troubling. Why look at the experience of other states? For me the answer is simple: because you might learn something. You don’t have to be bound by what you find, but it might be instructive given that other states have often faced similar issues and the United States does not have a monopoly on good ideas. I fully accept that judges in a state can privilege that state’s own history and tradition when interpreting the law and that this might be particularly appropriate when interpreting that state’s constitution. But I don’t think that this requires them to ignore the histories and traditions of everyone else.

The double standard implicit in what he is saying is also grating. Instead of taking the position that “all states should look to their own history and tradition,” Gorsuch instead endorses the idea that other states not only do look to the United States (descriptive claim), but that they should look to the United States (normative claim), even though the US courts should not reciprocate. What is good for the goose is certainly not good for the gander.

Third, the next sentence is the kicker for me: “For all the imperfections of our rule of law, it is still the shining example in the world.” I find this exceptionalist rhetoric hard to stomach. It is also deeply ironic given that the whole world currently is looking at the United States and the Trump administration, but no one would say that this is because the United States represents the “shining example” of the “rule of law” in the world. In fact, the United States comes in 18th out of 113 countries in the World Justice Project’s rule of law rankings, and the Economist recently downgraded the United States to being a flawed democracy, partly because of a loss of faith in democracy in the United States, particularly by the younger generation.

Of course, I am not the intended audience for Gorsuch’s remarks. He is clearly playing to a domestic, political audience, not a foreign, internationalist one. To my ears, Gorsuch sounds like he is pledging a fraternity, but the institution to which he is pledging is American exceptionalism. Although this topic is contentious in the United States, the idea that it might be appropriate or useful to cite to international or foreign law is uncontroversial in many other states. I can’t imagine many judges in other common law jurisdictions, like Australia, Canada or the United Kingdom, feeling the need to make this sort of pledge. Nor am I am aware of judges in civil law states, like France and Germany, making similar such pledges.

Even though Gorsuch is not addressing his comments to people like me, the nature of the internet means that I form part of his audience nonetheless. And I suspect that many foreign internationalists would have a similar reaction to me. This failure to value the practice of others and to engage in a dialogue is one of the explanations that David Law and Mila Versteeg give about their empirical finding of the declining influence of the United States in comparative constitutional law (another is that constitutions around the world are increasingly departing from, rather than following, the US model). This finding also contrasts with the rising influence of the courts of some other states that regularly engage in this sort of discourse, like Canada, Germany, India, South Africa and the United Kingdom.

Whatever your views on this clip, I think that this exchange would make a great classroom teaching tool because it succinctly sets out a particular perspective and provides a useful starting point for debate. I would be interested if anyone has a good counterpoint clip that pithily sets out the opposite perspective as the two would be great to pair. In the end, part of what we need to take away from this sort of exchange is just how different people’s starting points of analysis can be when it comes to this question and how these differences may vary considerably across states.

American Law Institute Approves First Portions of Restatement on Foreign Relations Law (Fourth)

by Julian Ku

Big news (for international law nerds)! The full membership of the American Law Institute has approved the first three sections of the new Restatement of U.S. Foreign Relations Law (Fourth).  This is the first official change to the venerable Restatement (Third) that was approved by the ALI back in 1987.  Summaries of the changes to the newly approved sections on Jurisdiction, Treaties, and Sovereign Immunity are linked here.

The Restatements are supposed to “restate” the law in the United States.  But it is influential in shaping the law, especially in this area, since U.S. courts frequently cite the Restatement on questions of international law.  It is an important statement of where U.S. courts are, and will likely go, on questions of foreign relations and international law in the near future. As such, the Restatement should be interesting to non-US scholars as well.

The Restatement (Third) has been subjected to some pretty tough academic criticism over the years, but (from what I can recall), these three topics have not  been particularly controversial.  I am a member of the ALI and I have attended some of the meetings during this drafting process, but I haven’t been paying as much attention as I should have.

I will say that one general trend I have noticed in the new sections has been to cut back on statements in the comments of Restatement (Third) that may have gone beyond the caselaw at the time or no longer reflect current caselaw.  For instance, the new Restatement eliminates a comment in Restatement (Third) that suggested there are no subject-matter limitations on the treaty power (which itself departed from the Restatement (Second).  The Fourth Restatement says nothing about this point, which is probably the smart thing given there has been really no caselaw on this one way or the other from the Supreme Court or lower courts.

Having said that, I will note that Georgetown law professor Carlos Vazquez has already published a criticism of the newly approved sections on the self-execution doctrine.  I won’t go into his criticisms here, but they do suggest the new Restatement is unlikely to completely settle the continuing debate over the nature of this tricky doctrine.

There is a lot here to digest. At this point, I will simply salute the scholars who have made this project happen, all of whom I think we can count as prior contributors to and friends of the blog: Sarah Cleveland, Paul Stephan, Bill Dodge, Anthea Roberts, David Stewart, Ingrid Wuerth, Curt Bradley, and Ed Swaine. Of course, Duncan was also involved and I am sure other members of the OJ community.  There is more to do, of course, but what has been completed so far is a great achievement and one that will last for at least another thirty years, if we are lucky.

Bemba, et al. Sentencing Decision: A Victory with a Bitter Taste

by Ekaterina Kopylova

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

On March 22, 2017, Trial Chamber VII of the International Criminal Court handed down a sentencing decision (.pdf) in the case of The Prosecutor v. Bemba, et al. – a five-accused case of first impression before the Court of the offences against the administration of justice under article 70 of the Rome Statute. On October 19, 2016, the judges found all five accused guilty (.pdf) to a different extent of causing fourteen Defense witnesses to falsely testify in the ICC war crimes trial against a former DRC vice-president Jean-Pierre Bemba Gombo (the “Main Case”).

Judges found that the co-conspirators used fake testimony in order to have Bemba acquitted in the Main Case.. They consciously retained as witnesses people who had no knowledge of the facts relevant to Bemba’s trial and then scripted their evidence, including after they had been sworn in.

Narcisse Arido, Defense intermediary in the Main Case, who was convicted as perpetrator of corruptly influencing four Defense witnesses, received an 11-month prison sentence, fully subsumed in the time spent in pre-trial detention.

Fidèle Babala, Bemba’s long-time political companion and confidant, who was convicted of aiding and abetting the corrupt influence on two Defense witnesses, received a 6-months prison sentence. This sentence was fully-served by the time spent in pre-trial detention.

Jean-Jacques Mangenda, the Main Case case-manager was sentenced to 2 years of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for aiding the false testimony of two Defense witnesses and abetting the false testimony of nine Defense witnesses. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Mangenda refrains from committing another offence bearing a prison sentence.

Aimé Kilolo, Bemba’s lead counsel in the Main Case, was sentenced to 2 years and 6 months of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for inducing their false testimony. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Kilolo pays a EUR 30,000 fine within 3 months of the decision and refrains from committing another offence bearing a prison sentence.

Finally, Jean-Pierre Bemba, who was convicted as co-perpetrator of corruptly influencing 14 Defense witnesses and presenting their false evidence, and as solicitor of their falsely testifying was sentenced to a term of confinement of 12 months, to be served consecutively to the 18-years sentence imposed (.pdf)  in the Main Case, and to a EUR 300,000 fine, destined eventually to the Trust Fund for Victims.

These sentences are unprecedented in contempt cases before international criminal tribunals. At the same time, a scheme of this scale to defraud an international court – according to the trial judgment, the Defense in the Main Case knowingly put nearly half of their witnesses (fourteen out of thirty four) on the stand to lie – has never before been attempted or, at least, uncovered.

Notwithstanding, the sentencing decision does not reflect the seriousness of the situation. Although it is clearly repugnant to the basic standards of the legal profession to permit those convicted for having deliberately and persistently deceived the Court to remain a member of the profession and to reappear before the judicial institution, the two convicted lawyers – Kilolo and Mangenda – received no disciplinary sanction.

After having found Kilolo guilty of conduct that is ostensibly incompatible with the letter and the spirit of the Rome Statute, the Chamber took no action to prevent him from officiating as counsel before the institution towards which he showed disregard. Should the judges have doubted their power to order his striking off the list of counsel, they could have at least seized the Disciplinary Board with a complaint for misconduct, as per article 34 of the Code of Professional Conduct for Counsel (.pdf).

Even the language denouncing the conduct unworthy of an officer of the court is notably absent from the decision. Instead, in determining the appropriate sentence for Kilolo, the Chamber praised his efforts towards promoting legal profession in Belgium and DRC.

Kilolo and Mangenda are admitted to the Kinshasa Bar; as a member of the Brussels Bar, Kilolo can also practice law in Belgium. The ICC is part of these States’ legal system. At the very least, the Chamber could have ordered the judgment and sentencing decision notified to these bars for information to show that the Court is conscious that Kilolo’s and Mangenda’s conduct brings discredit upon the legal profession and defers to the bodies that this conduct discredits in the first place.

I think Alex Whiting is too harsh on the judges who, in his opinion, missed an opportunity to protect the Court’s authority when they imposed sentences that were disproportionately lenient to the extent and gravity of the scheme that they themselves readily acknowledge. The judges indisputably did miss this opportunity, but not (only) regarding the sentences. Their entire handling of the case from the very beginning is one big missed opportunity, starting with the decision to allow the Main Case and the Article 70 case proceed in parallel. Although the Main Case trial judgment did not rely on the fourteen at that time presumably false witnesses, there is no certainty that the co-conspirators machinery produced only fourteen. The Prosecution itself repeatedly underscored that its choice to charge only fourteen incidents was not necessarily coextensive with the real scope of the scheme. Justice for victims has a bitter taste…

The Bemba, et al. case had all the earmarks of a textbook contempt case. The perjurous witnesses repented; the accused’s conspiring was caught on tape. Moreover, the case involved a lot of absolutely fascinating and unsettled complex legal issues, such as defense counsel immunity, counsel-client privilege, to name only few of them. Yet, the case did not generate much interest among scholars and practitioners. This lack of interest may be in part due to the successive Chambers’ reluctance to issue audacious decisions – the only ones that catch attention.

States Are Failing Us in Syria — Not International Law

by Kevin Jon Heller

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title “International Law is Failing Us in Syria.” The international law she is talking about is the jus ad bellum — the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the humanitarian crisis in Syria indicates that an exception to Art. 2(4) for UHI is “the only means of preserving international law’s credibility in the use of force realm”:

The reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most sound, narrow, acceptable grounds possible, together with our allies. This view is not an acceptance that international law does not matter. It is an acceptance that international law – like so much public law – operates in a dynamic space that is inevitably interwoven with the reality of how states act and the widespread acceptance of its legitimacy.

I don’t want to focus here on the legal aspects of Ingber’s post, other than to note that when she claims “our allies… have become comfortable stretching the outer bounds of what international law has historically been thought to permit” with regard to the use of force, she links almost exclusively to UK practice. (The one exception is “unwilling or unable,” where she refers to the flawed Chachko/Deeks post that tries to categorise state positions on the doctrine.)

The legal questions are, of course, interesting. But what I find most problematic about Ingber’s post is its most basic assumption: namely, that the international community has failed to do more in Syria because UHI is not legal. That assumption, I think, is categorically false. If the King of International Law announced tomorrow that UHI was consistent with Art. 2(4) of the UN Charter, it would have no effect on the international response to the Syrian crisis. Literally none.

And that is because international law is not failing us in Syria. States are.

Or, more precisely, the self-interest of states is failing us. States have not intervened in Syria to end the humanitarian crisis because doing so would be immensely costly in terms of both blood and treasure, not because Art. 2(4) doesn’t permit UHI. There is no easy solution for states concerned about Syria, such as a Kosovo- or Libya-style airpower campaign. If they want to end the crisis, they will have to invade Syria and destroy the large and generally well-equipped Syrian army — a task that would make the invasion of Iraq look positively economical by comparison. And the sad truth is that the US is not going to spend billions of dollars and accept thousands of dead American soldiers to save a bunch of defenceless Syrian civilians. Nor is the UK. Or France. Or Germany. Or any other state.

Do intervention-minded scholars disagree? Does anyone really believe that there is a head of state out there — actual or even potential — who at this very moment is saying to herself “I could end the Syria crisis tomorrow if that damn Art. 2(4) didn’t prohibit unilateral humanitarian intervention”? The idea beggars belief. I am on record with my insistence that UHI is not only unlawful but criminal, but I’m not stupid. A successful UHI in Syria would result in a Nobel Peace Prize, not a confirmation of charges hearing.

What is most striking about Ingber’s post is that she barely attempts to defend her claim that international law is preventing the kind of UHI she believes is necessary in Syria. All she says is that “with respect to Syria alone, the fact that international law may have played a role in taking intervention off the table during the Obama presidency (and there are subtle indications that it did) should weigh heavily on us now.” I’ve read both of the documents to which she links, and the indications are subtle indeed. In the press conference, Obama openly acknowledges the real reason why the US did not intervene in Syria while he was President — it wasn’t worth the cost:

So with respect to Syria, what I have consistently done is taken the best course that I can to try to end the civil war while having also to take into account the long-term national security interests of the United States.

And throughout this process, based on hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours — whenever we went through it, the challenge was that, short of putting large numbers of U.S. troops on the ground, uninvited, without any international law mandate, without sufficient support from Congress, at a time when we still had troops in Afghanistan and we still had troops in Iraq, and we had just gone through over a decade of war and spent trillions of dollars, and when the opposition on the ground was not cohesive enough to necessarily govern a country, and you had a military superpower in Russia prepared to do whatever it took to keeps its client-state involved, and you had a regional military power in Iran that saw their own vital strategic interests at stake and were willing to send in as many of their people or proxies to support the regime — that in that circumstance, unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.

Obama takes the same position in the interview with Jeffrey Goldberg. Nothing in the interview suggests that the illegality of UHI had anything to do with Obama’s unwillingness to intervene more dramatically in Syria. On the contrary, as Goldberg explains by means of contrasting Obama with Samantha Power, he simply doesn’t believe in UHI:

Power is a partisan of the doctrine known as “responsibility to protect,” which holds that sovereignty should not be considered inviolate when a country is slaughtering its own citizens. She lobbied him to endorse this doctrine in the speech he delivered when he accepted the Nobel Peace Prize in 2009, but he declined. Obama generally does not believe a president should place American soldiers at great risk in order to prevent humanitarian disasters, unless those disasters pose a direct security threat to the United States.

Goldberg recounts many of the factors underlying Obama’s realist view of American military power. The key one, though, is pragmatic, not legal — the disaster of NATO’s supposedly humanitarian intervention in Libya:

But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.

The Libya fiasco is particularly important, because it is tempting to believe that collective UHI in Syria might be more successful than individual UHI. It probably would — except that the benefits of collective action would still not outweigh the reluctance of powerful states to spend blood and treasure for merely humanitarian concerns. Libya is a case in point: NATO countries were willing to drop bombs on the Libyan army, but they would never have committed soldiers to a ground invasion. They are not willing to put them in Libya now, when the risks are minimal. So even if Ingber is right that states have shown “widespread support for military action in response to humanitarian crises” (and I don’t think she is), she is still missing the fundamental point: they support military action by others, not by them. It’s not an accident, for example, that interventionists like John McCain and Lindsey Graham expect Arab soldiers to do the fighting for them in Syria.

And, of course, Syria is not Libya. Or even Kosovo. On the contrary: unlike in those situations, UHI in Syria, whether individual or collective, risks a shooting war with Russia, the second most powerful military in the world, and perhaps with Iran. That unpleasant possibility provides a far more effective deterrent to military action against Assad than the text of Art. 2(4) ever will.

What, then, is to be gained by “divining” or “crafting” an exception to Art. 2(4) for UHI, as Ingber suggests? The legality of UHI would not lead to humanitarian interventions in Syria or in any other comparable situation. But it would give powerful states like the US yet another pretext for using force to promote their national interests. Why invoke an inherently selfish rationale such as self-defence as a pretext for aggression when you could invoke humanitarian intervention instead? Who is opposed to helping innocent civilians? And if we take your land and oil and other resources along the way, well, we have to pay for our selflessness somehow, don’t we?

Legalising UHI, in short, will not lead to more humanitarian uses of force. It will lead to more aggression. And that is because international law is not the problem in Syria and elsewhere. States are.

Symposium on Israeli Settlements

by Kevin Jon Heller

AJIL Unbound has just posted the contributions to a symposium entitled “Revisiting Israel’s Settlements.” The contributors are all superb: Eyal Benvenisti, Pnina Sharvit Baruch, David Kretzmer, Adam Roberts, Omar M. Dajani, and Yaël Ronen. The true highlight, though, is the essay that accompanies the symposium and will be published in the next issue of the American Journal of International Law: Theodor Meron’s “The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War,” which can be downloaded for free. Meron’s essay revisits the famous memo he wrote in 1967 as the Legal Adviser of the Israel Ministry of Foreign Affairs, in which he made clear, inter alia, that Israel was occupying the West Bank and that building settlements there would violate the Fourth Geneva Convention. Once again Meron painstakingly vivisects the frivolous legal arguments that Israel and its apologists have offered to excuse the occupation and the settlements. But it’s his conclusion that is particularly important:

But if the continuation of the settlement project on the West Bank has met with practically universal rejection by the international community, it is not just because of its illegality under the Fourth Geneva Convention or under international humanitarian law more generally. Nor is it only because, by preventing the establishment of a contiguous and viable Palestinian territory, the settlement project frustrates any prospect of serious negotiations aimed at a twostate solution, and thus of reconciliation between the Israelis and the Palestinians. It is also because of the growing perception that individual Palestinians’ human rights, as well as their rights under the Fourth Geneva Convention, are being violated and that the colonization of territories populated by other peoples can no longer be accepted in our time.

It’s a shame that Israel didn’t listen to Meron in 1967. Israel might be geographically smaller if it had, but it would also be far more safe and secure. Instead, the settlements metastasise, Israel’s democracy deteriorates, and Palestinians continue to suffer.

Charlie Dunlap’s Defence of Israel’s Attacks on Hezbollah in Syria

by Kevin Jon Heller

Last week, Asaf Lubin offered a compelling post at Just Security wondering why Israel’s repeated attacks on Hezbollah arms shipments in Syria have not received the same kind of jus ad bellum scrutiny as the US’s recent attack on a Syrian airfield. Today, Charles Dunlap provides his answer on the same blog: the Israeli attacks are clearly legal, so why would anyone scrutinise them? Here are the relevant paragraphs:

[I]t appears to me that the Israeli strike sought to destroy weapons in transit before Hezbollah can burrow them into densely-populated areas.  Of course, some JAB scholar might argue about the imminence of the threat as justifying anticipatory self-defense, but if one carefully reads the Obama administration’s “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on that point (p. 9), it would be hard not to conclude that the strike would fit the criteria.

It is especially telling that the Obama administration concluded – correctly in my view – that it is “now increasingly recognized by the international community, the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”

Along that line, this past January UK Attorney General Jeremy Wright gave a speech which echoed much of the Obama Administration’s approach.  Wright does caution that “remote threats or threats that have not yet materialized” would not fit the necessary criteria, but I don’t think in the case of Hezbollah those exclusions would apply.  Additionally, Wright endorsed – as does the Obama framework – Sir Daniel Bethlehem’s principles laid out in 2012 that included assessing whether there will be another “clear opportunity to act” defensively.

In other words, the analysis of “imminence” in this instance could properly take into account Hezbollah’s history of hostile actions against Israel, as well as its adaption of a “technique” which is “designed to exacerbate civilian risk.”  A strike on the Damascus warehouses makes sense as it could well be the last “clear opportunity to act” before the weapons could be embedded into civilian areas in easy range of Israel where they could be countered only at great risk to noncombatants.

Thus, the lack of JAB discussion about the reported Israeli bombings in Syria may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.  We can’t ignore the fact that few nations other than Russia or Syria evinced much concern about the legality of the strike.

I don’t find Charlie’s argument convincing. The first problem concerns his claim that the lack of attention to Israel’s attacks “may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.” He cites only two states in defence of the idea that the “international community” accepts this type of anticipatory self-defence: the US and the UK. Needless to say, two Global North states known for their aggressive interpretation of the jus ad bellum do not an “international community” make. Moreover, Charlie fails to acknowledge the repeated denunciations of anticipatory self-defence by the Non-Aligned Movement (NAM), which represents 120 states. 120>2.

To be fair, Charlie seemingly tries to address this problem by implying that the failure of states (other than Russia and Syria) to specifically condemn the Israeli attacks indicates that they accept the US and UK understanding of imminence. But that clearly isn’t the case. As he acknowledges, Israel itself has not claimed that the attacks are legitimate anticipatory self-defence. Nor has any other state on Israel’s behalf — the US and UK included. The “silence” of the international community can thus hardly be interpreted as acquiescence — particularly in light of NAM’s repeated denunciation of anticipatory self-defence. States are not required to respond to scholarly interpretations of the use of force. When Israel claims its actions are legal because they represent anticipatory self-defence and NAM remains silent, we’ll talk.

It’s also worth noting that Charlie’s account of Israel’s attacks in Syria does not even bring them within the ambit of anticipatory self-defence — or at least not easily. According to him, “the Israeli strike sought to destroy weapons in transit before Hezbollah [could] burrow them into densely-populated areas.” Charlie finds such “burrowing” problematic — justifiably! — because it makes it more difficult for Israel to destroy the weapons caches without causing disproportionate civilian harm. But that is a jus in bello problem, not a jus ad bellum one. The fact that Hezbollah weapons are in a difficult to attack location does not mean that those weapons will be immediately used against Israel. And that is true even in light of Hezbollah’s “history of hostile actions,” which hardly indicates that Hezbollah attacks Israel whenever it has the material means to do so. The mere presence of the weapons in a location near to Israel thus seems to represent precisely the kind of “remote threat[] or threat[] that [has] not yet materialized” that Jeremy Wright, the UK Attorney General whom Charlie cites in defence of his position, says does not give rise to the right of self-defence.

I will say, though, that Charlie’s explanation of the Israeli attacks raises an interesting issue concerning the relationship between the  jus in bello and the jus ad bellum. We are accustomed to the idea that the two legal regimes are independent, and it is beyond doubt that failing to comply with the jus ad bellum does not affect the equal application of the jus in bello. But the converse is not true, as the ICJ specifically affirmed in the Nuclear Weapons case (para. 42):

[A] use of force that is proportionate under the law of self- defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.

The jus ad bellum requirement that self-defence comply with IHL does, in fact, suggest that the imminence of an attack should be assessed in light of the victim state’s ability to defend itself in a way that complies with IHL. So I don’t think we can reject the “last clear opportunity to act” understanding of imminence out of hand. On the contrary, if an attack will only become imminent under the traditional conception at a time when the victim state cannot defend itself in an IHL-compliant way, I think the victim state should be entitled to defend itself at a temporally earlier moment, when IHL compliance is still possible.

Even that “relaxed” idea of imminence, however, presupposes that the defended-against attack is more than merely hypothetical. So it’s difficult to see how Israel’s strikes on Hezbollah’s arms shipments could qualify as legitimate acts of self-defence. On the contrary: they are precisely the kind of anticipatory self-defence that international law prohibits.

Evening Panel on International Law and National Security

by Deborah Pearlstein

Hope our New York-area friends will be around for this one – Cardozo Law School and the ICRC are hosting an evening panel discussion: “A View from Abroad on Current Trends in Targeting, Detention and Trials.” The panel will be at Cardozo Law School, 55 Fifth Avenue in New York, May 18, 6:00-7:30p.m., and features OJ’s own Kevin Jon Heller, along with Marko Milanovic, Noam Lubell, and Joanna Harrington — all moderated by the superb (and currently visiting Stanford professor of human rights) Beth van Schaack. RSVP here.

Nuremberg Prosecutor Ben Ferencz Profiled on 60 Minutes

by Chris Borgen

A great profile of an incredible man. When some people call his tireless work pursuit of the rule of law idealism, he responds that he is a realist who sees the actual progress we have made and that…

..you shouldn’t– you know– be despairing because it’s never happened before. Nothing new ever happened before.

The video and text are available via this link.

My UN Presentation on the Aggression Amendments

by Kevin Jon Heller

I had the great honour last week of giving a presentation to ICC member-states about Art. 15bis and Art. 15ter of the aggression amendments — the conditions for the exercise of jurisdiction. The presentation was sponsored by the Assembly of States Parties (ASP) and organised by Austria, part of a series of presentations designed to prepare delegations to participate in the December meeting of the ASP, where the amendments are likely to be adopted (again).

I had a great time at the UN — the first time I had ever set foot in the building! The presentation itself went very well, but it was the subsequent discussion that was the standout. I found the delegations impressively knowledgeable about the aggression amendments, although it’s clear that they remain deeply divided over a number of critical issues concerning their interpretation. My presentation focused on what is perhaps the most controversial issue of all: which acts of aggression will be within the ICC’s jurisdiction once the crime of aggression is activated. Many delegations believe that member-states have to formally opt-out of the aggression amendments to be completely insulated from the Court’s jurisdiction, while others insist that states need only decline to accept the amendments. I did not take a position on that issue in my presentation — although I did during the discussion afterward. Instead, I simply laid out the stakes in the debate as clearly as possible, following up on two blog posts (here and here) I wrote on the issue a few years ago.

I am posting all of my UN materials here, in case readers are interested. They include the text of my presentation, the accompanying Powerpoint slides, and two tables that lay out the jurisdictional consequences of the so-called “negative” and “positive” understandings of Art. 121(5) of the Rome Statute, the key provision in the dispute.

Thoughts most welcome!

Humanitarian Intervention

by Kevin Jon Heller

Wilbur Ross, the Secretary of Commerce:

Speaking at the Milken Institute Global Conference on Monday, Commerce Secretary Wilbur Ross recalled the scene at Mar-a-Lago on April 6, when the summit with Chinese President Xi Jinping was interrupted by the strike on Syria.

“Just as dessert was being served, the president explained to Mr. Xi he had something he wanted to tell him, which was the launching of 59 missiles into Syria,” Ross said. “It was in lieu of after-dinner entertainment.”

As the crowd laughed, Ross added: “The thing was, it didn’t cost the president anything to have that entertainment.”

Can’t wait for Trump to nuke North Korea. What a great show that will be!