Archive for
April, 2018

Indigenous Justice Systems: Canadian Legislation for Implementing the UN Declaration

by Matt Pollard

[Matt Pollard is a Senior Legal Adviser for the International Commission of Jurists (ICJ) in Geneva, Switzerland.]

The Canadian Parliament is currently considering Bill C-262, “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples”. The draft legislation is a “private member’s bill” introduced by an individual Member of Parliament from the opposition New Democratic Party (NDP), but the governing Liberal Party announced it supports the legislation and it is currently being reviewed by the relevant Parliamentary Committee.

The legislation, as currently drafted, does not itself specify the changes that would be necessary for Canadian law to be brought in line with the Declaration. In its three main operative provisions it:

  • “affirms” the UN Declaration “as a universal international human rights instrument with application in Canadian law” (article 3);
  • requires the Government of Canada, “in consultation and cooperation with indigenous peoples in Canada” to “take all measures necessary to ensure that the laws of Canada are consistent with” the Declaration (article 4);
  • requires the Government of Canada to “in consultation and cooperation with indigenous peoples, develop and implement a national action plan to achieve the objectives of” the Declaration (article 5).

The adoption of the law would mark a significant reversal from Canada’s position a decade ago at the time of adoption of the Declaration by the UN General Assembly (resolution 61/295), when Canada was one of only four States to vote against (with Australia, New Zealand and the United States). If and when enacted, the Bill would launch a far-reaching and complex process of consultation, review and legislative amendment, which would undoubtedly include further controversies and take some years. But it is a process that is equally undoubtedly long overdue.

These developments are of particular interest to me as a (Canadian) lawyer working at the International Commission of Jurists (ICJ), an international non-governmental organization of judges and lawyers based in Geneva, where I represent the ICJ at the United Nations and lead the ICJ’s global legal and policy work on the independence and accountability of judges, lawyers and prosecutors. The ICJ is itself in the midst of a global project to research and develop legal and policy guidance about the role of traditional and customary justice systems, including indigenous justice systems.

The ICJ project is considering how traditional and customary justice systems can contribute to improving access to justice and fulfilling cultural and other rights, including for members of indigenous peoples. At the same time, the project aims to identify and help address potential conflicts between traditional and customary justice systems and international human rights and rule of law standards.

The link between the ICJ’s ongoing work and the draft legislation in Canada comes through several articles of the UN Declaration, which provide as follows (emphasis added):

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 40

Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

It should also be noted that in addition to the references to international human rights in these specific provisions, the Declaration as a whole is subject to the following provision:

Article 46

  1. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

  2. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

A number of UN human rights mechanisms and other international instruments have highlighted both the potential – or even the necessity – for States to enable and respect indigenous and other traditional and customary justice systems in order to fulfill access to justice (including under UN Sustainable Development Goal 16) and other civil, political, economic, social and cultural rights. These same sources also highlight that States must ensure that such systems do not adversely impact the enjoyment of human rights, including particularly the human rights of women and children. (The ICJ has recently published an extensive compilation of these international sources on traditional and customary justice, as well as a report based on an initial set of consultations, with additional background available here.)

Development agencies, inter-governmental organizations, NGOs, academics, and local judiciaries, legal professionals, and prosecutors in many countries are providing resources, engagement and efforts to achieve these aims, as well as to better coordinate between indigenous justice systems and the justice systems operated by State institutions. (In Canada, several projects are already underway to document, recover and re-establish indigenous legal systems: see for instance the Indigenous Law Research Unit at the University of Victoria, British Columbia. Indeed, later this year the University plans to offer, for the first time, a joint degree program in Canadian Common Law (JD) and Indigenous Legal Orders (JID).)

Constructive engagement by the full range of actors described above with decision-makers in traditional and customary justice systems, has been highlighted as an essential element of any approach that seeks to see such systems fulfill their positive potential, while ensuring their consistency with international human rights standards. Bill C-262 holds considerable potential to push such processes forward in Canada.

Yet, as the ICJ’s initial report notes, experience from other countries demonstrates that constructive engagement does not always immediately yield clear answers to some difficult problems, and presumably some of these may require particularly careful and creative deliberation, by indigenous and non-indigenous decision-makers alike and together, in the Canadian context as well. While recognizing the diversity between different traditional and customary justice systems around the world, and indeed the diversity that can exist within a particular country, the kinds of challenges encountered in other contexts include:

  • How far should such justice systems be expected to meet international (or national) fair trial standards in terms of the selection of decision-makers, access to legal assistance, and procedural safeguards? As one example, hereditary decision-making roles are difficult to reconcile with article 10 of the UN Basic Principles on the Independence of the Judiciary (“In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status…”).
  • Should such justice systems be “limited to minor civil and criminal matters”, as the Human Rights Committee has suggested is necessary to ensure conformity with the International Covenant on Civil and Political Rights? Often such systems are seen as particularly culturally relevant for matters typically covered by family law, and at the same time it is precisely such family law matters that may have particularly major impacts – positive or negative – on the rights and lives of women and children.
  • Should every party to a conflict before such justice systems have the right to “opt out” in favour of the State justice system for any reason they wish, or does respect for the role and integrity of such systems mean that the laws of the State should empower such systems to enforce participation? How should State institutions react when an individual claims that he or she requires protection from a traditional system that allegedly threatens or violates his or her human rights or constitutional rights, but the traditional system and community it serves takes the position that intervention by State institutions will be inconsistent with the role and integrity of the traditional system?
  • Should the jurisdiction of such systems be restricted to persons belonging to the relevant community, group, or nation, or should they have jurisdiction as well over other persons for actions in or affecting the territory?

It remains to be seen whether and to what degree similar questions will arise in the Canadian context. Experience from other countries, positive and negative, may be something decision-makers in Canada would find useful to add to their considerations. Several United Nations expert mandates (the Special Rapporteur and the Expert Mechanism on the rights of Indigenous Peoples, for example) could be important sources to consult for global and comparative perspectives. The process of adoption and implementation of Bill C-262, and the ongoing work of the Indigenous Law Research Unit and similar initiatives, will undoubtedly provide important insights and experience and solutions that may be of interest in other national contexts around the world, and will certainly help inform the ICJ’s own ongoing development of global legal and policy guidance. We will be watching developments in Ottawa, and across the country, with considerable interest from Geneva.

CJEU Confirms That EU Law on Family Reunification Should Be Accessible and Effective for Unaccompanied Children

by Karolina Babicka

[Karolína Babická is a Legal Adviser of the International Commission of Jurist’s Europe Programme.]

European Union (EU) law has in the last two decades shaped and to some extent also harmonized national legislation governing asylum and migration in EU member states. This month, the Court of Justice of the European Union (CJEU) has once again set out the very strict limits on the “margin of appreciation” when it comes to the right to family life and family reunification stemming from the EU Family Reunification Directive (Directive 2003/86). In the recent case C-550/16 A. and S. v Staatssecretaris van Veiligheid en Justitie it confirmed that the aim of the directive is to promote family reunification and highlighted the importance of the principles of equal treatment and legal certainty.

The CJEU had previously clarified that the Directive requires Member States, in specific cases, to authorize family reunification of certain members of the sponsor’s family, without being left any margin of appreciation (Case C‑540/03 Parliament v Council, para 60). The Court has clarified that the provisions of the Directive on Family Reunification require that States ensure that family reunification is the general rule (C-578/08, Chakroun case, para 43) and that the Directive is “interpreted strictly”. The interpretation of the provisions of the Directive should not deprive them of their effectiveness and the CJEU also highlighted that States must “examine applications in the interest of children and with a view to promoting family life” (O., S. & L., Joint Cases C-356/11 and C-357/11).

The Family Reunification Directive was adopted in 2003, when the three pillars of the EU were still in place and the co-decision procedure did not apply to the migration and asylum area. It was therefore adopted by the Council (EU Member States) only, without a decision-making power of the European Parliament. It has been criticized for granting a vast margin of appreciation to states and reveling in “may clauses,” but as the CJEU step-by-step clarifies, there are limitations to the States’ margin of appreciation.

  1. A. and S.

On 12 April 2018, in the decision in the A. and S. case, the Court clearly stated that unaccompanied minors who attain the age of majority during the asylum procedure retains their right to family unification (C-550/16, A. and S.). States do not have a margin of appreciation to limit their right to family reunification of children with their parents, if they entered the State as children and got a confirmation of their status by the State once they were already adults.

In this case, a 17-year-old Eritrean girl, who had arrived unaccompanied in the Netherlands, lodged an application for asylum. She turned 18 about four months later, during the procedure, and in another four months the State Secretary for Security and Justice in the Netherlands, granted her a residence permit for persons granted asylum, valid for five years, with retroactive effect from the date on which her application for asylum was submitted. Two months later she asked for family reunification with her parents and three minor brothers, which was refused to her by the Dutch administration on the grounds that she was already an adult, who according to the Directive does not have the right to family reunification with parents.

The District Court of The Hague, where she appealed, decided to stop the proceedings and to refer a question to the Court of Justice for a preliminary ruling, asking whether a child entering and asking for international protection in an EU Member State attaining majority during the proceedings, shall be still seen as a child for the purpose of family reunification, once (s)he applies for it.

In its decision, the CJEU recalled the primary objectives and principles of the Directive, as it had already done previously in judgments Chakroun and O., S. & L. In particular, it reiterated that the primary objective of the Directive is to promote family reunification, to provide special protection to refugees and unaccompanied minors in particular and to observe the principles of equal treatment and legal certainty.

The Court recalls that for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. That interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question (Ouhrami, C‑225/16, para 38).

In a number of EU countries, the laws and administrative rules do not allow children who turn 18 during the asylum procedure to then apply for family reunification with their parents, as in that moment they are already adults. Such policies have been continuously criticized by civil society, and UN agencies, a suspicion of prolongation of asylum proceedings beyond the age of 18 of the applicant has been there, and this practice of State administrations has been seen as a measure to limit the right to family reunification of children.

The CJEU rightly points out that “the duration of an asylum procedure may be significant and that, in particular (…) the time limits laid down in that regard by EU law are often exceeded, to make the right to family reunification depend upon the moment when that procedure is closed would be likely to deny a substantial proportion of refugees who have submitted their application for international protection as an unaccompanied minor from the benefit of that right and the protection that Article 10(3)(a) of Directive 2003/86 is intended to confer on them.“ (para 57)

The Court recalls the principle of legal certainty as it would be “entirely unforeseeable for an unaccompanied minor who submitted an application for international protection to know whether he or she will be entitled to the right to family reunification with his or her parents“ (para 59) if the decisive moment would be the date when she or he submit their application for family reunification (which can only be the case after the refugee determination procedure has been completed).

The CJEU adds that this right would not be there indefinitely, but in principle the application for family reunification should be submitted within a period of three months of the date on which the ‘minor’ concerned was declared to have refugee status.“ (para 61)

Paragraph 55 of the current case A. and S. makes it clear that if the right to family reunification would depend on the person’s age upon the moment at which the State recognizes the refugee status of the person, it would leave the outcome dependent on how quickly or slowly the application for international protection is processed. That “would call into question the effectiveness of that provision and would go against not only the aim of that directive, which is to promote family reunification and to grant in that regard a specific protection to refugees, in particular unaccompanied minors, but also the principles of equal treatment and legal certainty.“

Conclusions and impact in other jurisdictions

This decision is in line with the obligation to take the best interests of the child as a primary consideration in all acts involving the child. States have positive obligations to ensure children’s effective enjoyment of their right to respect for family life. Under both EU and international law, the child’s best interests must be the primary consideration by all judicial and administrative authorities in any decision related to the child’s right to respect for his/her family life. The UN Committee on the Rights of the Child and the UN Committee on the Rights of Migrant Workiers in their Joint General Comment on children in the context of international migration (No. 4 and 23, para 32) stress that countries should facilitate family reunification procedures in order to complete them in an expeditious manner, in line with the best interests of the child. In line with the EU Charter, the best interests of the child have to be taken into account and respected (Article 24) as well as the right to private and family life (Article 7) and prohibition of discrimination (Article 21.1).
The European Commission (whose opinion in this case was different from the Court´s decision, asserting that the decisive moment is the time when the person applies for reunification (A. and S., para 30)) issued in 2014 Interpretative Guidelines for the Family reunification directive. There it specified that criteria for the conditions for family reunification adopted may not be discriminatory and that criteria used by Member States must be transparent and clearly specified in national legislation. The current judgment should carry significant implications for national legislators in this sense.
There are a number of further obstacles that Member States put forward in order to limit family reunification of migrants. These include a requirement that spouses must be more than 18 to reunite, various financial and material conditions that sponsors have to fulfill, and pre- and post- integration measures. As the International Commission of Jurists has found through its work to advance access to justice for migrant children in the EU through the Fostering Access to Immigrant children’s Rights (FAIR) project, limitations on family reunification have a particularly adverse impact on migrant children.
For instance in Germany, the access to family reunification for beneficiaries of subsidiary protection has been seriously hampered by a temporary measure disallowing family reunification to all such beneficiaries. A two-year suspension on family reunifications was introduced in 2016 for persons entitled to subsidiary protection. Refugees who were officially granted this protection after March 17, 2016, now have to wait until July 31, 2018, before they can even apply for family reunification.
Consequently, even children with subsidiary protection status currently have no option to demand lawful immigration of their parents for the purpose of family reunification. The recast Qualification Directive (covering both refugee and subsidiary protection status) provides that Member States shall ensure that family unity can be maintained. The Family Reunification Directive governs the family reunification practice and procedure for refugees and the CJEU has found in the Chakroun case that it established a right to family reunification. In Alo and Osso (Joined Cases C-443/14 and C-444/14) the CJEU declared that the Geneva Refugee Convention is also to be used as interpretative guidance in cases involving subsidiary protection beneficiaries. The CJEU found that the applicable provision in the Qualification Directive (freedom of movement, Article 33) does not specifically allow for differences in treatment between refugees and subsidiary protection beneficiaries, and as such should be treated in a similar manner (unless it could prove that they are not in a comparable situation). By analogy, the relevant provision in the recast Qualification Directive relating to family unity, Article 23, does not provide for a difference of treatment, and as such should be treated in a similar manner.
Germany also seems to claim that the case A. and S. against the Netherlands is not applicable in all EU member states, as the Dutch authorities grant refugee status retroactively. This only calls for a reiteration that the recognition of refugee status by a State party to the Geneva Refugee Convention (to which all EU Member States are parties) is always of a declaratory character.

It would be interesting to see a CJEU preliminary ruling in this case.

Why Art. 4(h) of the AU’s Constitutive Act Does Not Support UHI

by Kevin Jon Heller

I like much of what Jennifer Trahan says in her recent post about the permanent veto. But I would take issue — unsurprisingly — with her claim that “there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice.” There is no need to belabour the Kosovo argument, which I have already criticised in my response to Harold Koh. Instead, I want to focus in this post on the idea that African practice provides support for a customary right to unilateral humanitarian intervention (UHI). That idea seems to be popping up with more regularity these days, as those who believe UHI should be legal cast about for a plausible argument to that effect. Marc Weller, for example, recently made a similar claim in his intemperate response to Marko Milanovic’s recent post at EJIL: Talk! on the illegality of the Syria attack:

Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties–an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force.

Weller is referring to Art. 4(h) of the Constitutive Act of the African Union, which has been ratified by all 53 African states have signed the Act. Art. 4(h) permits the AU’s Assembly of Heads of State and Government of the Union to authorise the use of force against a Member State that is responsible for the commission of international crimes:

The Union shall function in accordance with the following principles… (h) the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

Properly understood, however, Art. 4(h) of the Constitutive Act provides no support whatsoever for the legality of UHI. To see why, it is useful to begin by explaining why the case for a customary rule permitting UHI is not supported by humanitarian uses of force authorised by the Security Council under Chapter VII of the UN Charter. The reason is straightforward: the essence of UHI is that the state being attacked does not consent to force being used on its territory, and all states consent to the possibility of the Security Council authorising the use of force on their territory when they ratify the Charter. The relevant provisions are Art. 24(1) and Art. 25:

Article 24

  1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Because of Art. 24(1) and Art. 25, humanitarian intervention authorised by the Security Council under Chapter VII is by definition legally consensual — even if the state being attacked is politically opposed to the use of force on its territory.

For similar reasons, humanitarian intervention authorised by the AU’s Assembly of Heads of State and Government of the Union pursuant to Art. 4(h) of the Constitutive Act cannot be non-consensual. By ratifying the Constitutive Act, all AU members have empowered the Assembly to authorise the use force on their territory to stop the commission of international crimes. They may not like that use of force, but they have consented to it.

Humanitarian intervention authorised by the AU, therefore, no more supports the customary legality of UHI than humanitarian intervention authorised by the Security Council. In each case, the use of force in question is authorised by a supranational organisation acting on the basis of the consent of the parties that have ratified its founding treaty. That is the antithesis of the nonconsensual use of force — the constitutive feature of UHI.

The Narrow Case for the Legality of Strikes in Syria and Russia’s Illegitimate Veto

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

On April 13, the US, UK and France launched a barrage of missiles at three chemical weapons-related sites in Syria, in response to the most recent attack in Douma, part of a long series of chemical weapons attacks, attributed to the regime.

The UK has set forth its legal position on the strikes, justifying them as “humanitarian intervention,” while France and the US asserted the legality of their action without articulating a legal theory (nor did the US articulate any legal theory for its similar 2017 strike). There is of course no justification for three permanent members of the Security Council to use force at will, so there needs to be a basis under international law. The UN Charter only clearly permits use of force under two exceptions: (1) UN Security Council Chapter VII authorization, and (2) the right to self-defense under UN Charter article 51. A third scenario where force is also permissible is consent of the host country. None of these three scenarios appears applicable in the current instance.

While some have already blogged that there was no legal basis for the recent military strike in response to the Assad regime’s latest use of chemical weapons (including Kevin Jon Heller on Opinio Juris), there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice. And the recent use of force has received support, again not only by the “West,” but by the Gulf Cooperation Council, to name an example. Though this support was not based on a legal theory, it is nonetheless significant.

On the question of legality, there appears a split between those states and scholars who take the view that humanitarian intervention is (1) under a strict reading of the Charter, never legal, (2) fully legal, or (3) in line with practice and an updated reading of the Charter sufficient that it falls into at least a “grey area” of legality. (See my article substantiating this third position.)

Why do we have this split in views on humanitarian intervention? It goes back (at least) to Kofi Annan in 1999 asking the very important question: “if in those dark days and hours leading up to the [1994] genocide [in Rwanda], a coalition of states had been prepared to act, in defense of the Tutsi population but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?” While early formulations of the doctrine of the “responsibility to protect” (R2P) were quite encouraging, later formulations appear to answer the question by emphasizing both the duty to act in the face of atrocity crimes, but the need for Security Council approval for forceful intervention. To this author, R2P then gives a disappointing answer to Kofi Annan’s question of what to do in the event of Security Council paralysis, by responding that one waits for the Security Council to act. In the face of mass atrocity crimes, this is cold comfort to the victims.

A large number of states have now come forward over the last decade and a half to ask the permanent members to pledge themselves to veto restraint in the face of atrocity crimes (genocide, crimes against humanity and war crimes). Important initiatives in this respect include the ACT Code of Conduct, and the French/Mexican initiative. It is however concerning that only two permanent members of the Council, the UK and France, have taken this pledge. One might well ask: if the US cared enough about the Syrian victims and Assad regime’s chemical weapons use to engage in a military strike, then perhaps it could also take this simple pledge not to use its veto in the face of atrocity crimes?

Aside from legal questions as to the strike and whether or not it met appropriate criteria of legitimacy (as well as why the US is not doing more to solve the Syrian crisis or admit Syrian refugees as Harold H. Koh well asks), let us recognize that we are in a place we should never have reached. First, the Assad regime should never have been using chemical weapons against its own people in violation of multiple treaties banning them (nor committing countless other atrocity crimes that don’t always draw an equal share of the headlines). Second, Russia, sometimes joined by China, should never have been using its veto to block investigations as to chemical weapons use, to condemn their use (and other indiscriminate weapons use) or referral of the situation for prosecution, in the face of widely acknowledged crimes against humanity and war crimes. (Allowing investigations or prosecution, or issuing condemnation, does not directly halt the commission of atrocity crimes, but at least it communicates: “the world is watching and accountability is coming,” when the veto in such circumstances conveys exactly the opposite.)

When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force. It had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes. It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted, and in a way that is at odds with other bodies of international law (such as the highest level jus cogens norms) and the “purposes and principles” of the UN Charter, with which the Security Council (including its permanent members), are bound, under article 24.2 of the Charter, to act in accordance.

Whether the Security Council is to be seen in the future as an effective and credible institution will depend in part on whether it can reign in its own permanent members’ behavior when they utilize the veto, or threat of veto, in the face of mass atrocity crimes. Those permanent members engaging in such actions appear to fail to recognize that, in addition to being complicit in facilitating the commission of atrocity crimes, they are undermining the Council itself. This behavior then force the US, UK and France into taking action that is worrying to many other states for its potential of pretextual or abusive invocations. The argument of abuse is not ultimately, however, fully convincing: does anybody argue we should do away with the right of self-defence because it is sometimes abused, for instance, by Turkey in Syria? But of course unilateral humanitarian intervention should, ideally, never prove necessary. And if would not if we didn’t have illegal vetoes.

Escalation of Violence in Bangui: Has MINUSCA Become Party to a Conflict in CAR, and What Would That Mean?

by Bianca Maganza

[Bianca Maganza is a PhD candidate in International Law and a Teaching Assistant at the Graduate Institute of International and Development Studies in Geneva.]

Some days ago, the United Nations Multidimensional Integrated Stabilisation Mission in the CAR (hereinafter, MINUSCA) got involved in heavy fire exchange with an armed group known as KM5 in Bangui, the capital of the Central African Republic (hereinafter, CAR). Security in CAR is rapidly deteriorating since some weeks, and accidents such as the one just mentioned are becoming, if not the norm, for sure no longer the exception. Indeed, it is not the first time that a situation of direct confrontation between the UN mission and the rebels arises. Although facts are not fully confirmed and the situation is still unfolding at the time of writing, it seems worth considering the consequences that the episode may entail under international humanitarian law (hereinafter, IHL).

The issue of the role played by IHL in the context of so-called peace operations is a much-debated and complex one (see, for example, the recently published Leuven Manual on the International Law Applicable to Peace Operations). Crucial aspects such as those related to the consequences of the application of IHL on issues of targeting and on the international prosecution of crimes committed in relation to the situation have been brilliantly covered elsewhere, and I will not discuss them here. The same is true for jus ad bellum considerations vis-à-vis the mandate and the evolution of traditional peacekeeping into “stabilisation” missions. While the main case study in this respect has so far been that of MONUSCO in the DRC, in particular as regards its Intervention Brigade, it has been rightly claimed that MINUSCA is the new frontier for such discussion.

In this post, I want to focus on a specific aspect of the situation, namely the possibility that – provided that some factual circumstances are reached – a multinational mission spearheaded by the UN becomes as such party to a conflict with the armed group against which it is fighting. This case is different from the one following the so-called support-based approach developed by Ferraro, which I am not discussing here. Although the fact that IHL may apply to situations in which a multinational operation is involved is nowadays accepted, states and international organisations are generally reluctant to admit that a peace operation has become party to an armed conflict. Such possibility has been often discussed but frequently let sink through the lines and rarely tackled head on. If, on the one hand, the capacity of a multinational operation to become party to the conflict is often taken for granted, the concretisation of such a possibility is on the other hand never explicitly acknowledged in terms of its consequences.

The facts that recently took place in Bangui provide the occasion to discuss the legal significance of such a case.

The facts

After the failure of a first attempt undertaken some days before, in the night between 7 and 8 April 2018, what was announced as joint law enforcement operation of MINUSCA, the Central African Armed Defense Forces (FACA) and the Internal Security Forces (ISF) aimed at disarming and arresting some criminal groups in the PK5 area of Bangui turned into violent fire confrontation between the armed groups and the mission.

According to the press statement released by MINUSCA, at a given moment, “heavily armed elements of criminal groups in the area deliberately fired on international forces, prompting a return of fire to push these elements back”. According to other sources, it is the MINUSCA contingent that entered the area shooting in the first place. As a result, eight peacekeepers were wounded, and one died. Some civilian casualties are also reported. In any case, it is quite clear that the operation was not a success for MINUSCA: for the second time in a matter of few days, the contingent had to leave the area and had been the object of subsequent attacks.

A conflict between MINUSCA and the armed group?

Regardless of who started the fire exchange, it is more than legitimate to ask whether the threshold for IHL applicability has been reached with the incident of 8 April – if not even before. In fact, despite the careful employment of the language of law enforcement in MINUSCA’s press releases – referring to “criminal groups”, “gangs” and “disarmament operations” – the reality on the ground seems to point to another direction.

Working on the hypothesis that a conflict, if any, ought to be a NIAC due to the involvement of non-state armed groups against the contingent spearheaded by the UN, the situation has to be analysed under the two criteria of intensity of hostilities and organisation of the parties as developed by the ICTY in the Boškoski case.

Intensity

Applying the first prong of the test to the single incident under analysis, video footage clearly shows MINUSCA troops engaging the area through the use of heavy weaponry. The presence of civilian casualties and fleeing civilians, if confirmed, is a further factor to consider when assessing the intensity of the armed confrontation. The episode must be assessed against the broader background of the situation in CAR. The general secrecy regarding the number, details and nature of MINUSCA operations cannot hide the fact that incidents like the one discussed here are not isolated but had already happened and keep happening in the country. The recent security deterioration in the area and the repeated, unsuccessful attempts by MINUSCA to seize the neighbourhood testify to the seriousness of the situation. The situation remains unchanged after the incident of 8 April, and following the main incident the mission has been the object of subsequent attacks in another area of the city. It is highly probable that the mission will attempt yet another operation to gain control of the neighbourhood – possibly, deploying more force to be able to finally overcome the enemy.

In light of the above, it seems at least plausible to argue that the intensity level has been reached either regarding the single attack under analysis – in fact, a NIAC can be a matter of hours or days (see, in addition to the case law of the ICTY, Abella v. Argentina, known as “La Tablada” case, before the Inter-American Commission of Human Rights) – or as a result of the series of episodes involving MINUSCA and the armed group since some time. Assuming that this is the case, for the sake of argument, the next step is an assessment of the organisation of the parties involved.

Organisation of the parties

That of organisation of the parties contains in itself the two other interdependent criteria of control over the troops and capacity to comply with the rules of war – both in abstract, through a disciplinary system and chain of command, and through the concrete possibility of respecting the most basic principles such as those of distinction and precaution. These seem, to me, the features that differentiate a collective entity having the capacity to become party to a conflict from a random group of individuals involved in armed violence.

Most of the analyses of situations of multinational operations potentially involved in an armed conflict stop at the assessment of the organisation of the armed group for the sake of establishing the existence of a NIAC. However, it seems to me that the only way to fully satisfy the test is to apply the analysis to both sides. As evident as the result may be, to be able to claim that MINUSCA has become party to a conflict with KM5, one shouldn’t stop at whether the armed group is sufficiently organised to reach the threshold of a NIAC but also ought to address the features of the mission itself.

In the case at stake, it seems undeniable that KM5 shows and deploys a considerable amount of organisation. To a certain extent, it can be argued that it even controls the neighbourhood known as PK5: it was indeed following continuous requests by the residents of the area that MINUSCA decided to act to disarm the armed group and try to “liberate” PK5. As we have seen, MINUSCA attempted to take the neighbourhood back more than once, without success. As for elements of control, KM5 is organised in auto-defence patrols, therefore showing capacity to coordinate action and logistics, and acts in execution of the orders given by its leader, Nimery Matar (known as “Force”), who even recently released a video declaring to be ready to fight in case MINUSCA would have dared entering the area he controls. While we would need more facts to weigh the group’s potential compliance with IHL, the existence of a command structure can arguably point to such abstract capacity.

When it comes to the UN mission, all three accounts seem equally warranted. The mission has by definition a clear organisational structure and a chain of command. Moreover, respect for IHL is part of its mandate and generally warranted by the 1999 UN Secretary General’s Bulletin. Even though the Status of Forces Agreement (hereinafter, SOFA) between MINUSCA and CAR is not publicly available, respect for IHL is included in the model UN SOFA and usually reflected in single SOFAs concluded with host countries.

MINUSCA as party to a conflict

The purpose of this post is not directly that of taking a position on whether or not the situation in CAR amounts to an armed conflict between MINUSCA and the armed group against which it is fighting. Even though the facts reported above seems to point to a considerable level of intensity, full confirmation of what happened is still awaited and sources are scattered and not always reliable. My point is rather that, in case the required intensity threshold is reached, both sides have the capacity to become parties to a conflict.

The main consequence of considering MINUSCA as party to an armed conflict – a NIAC, in this case – would be that the mission as a whole is bound to respect at least the provisions of CA3 plus any other customary international law rule deemed applicable to the situation. More specifically, MINUSCA would have to respect and ensure respect for IHL by its armed forces and other persons or groups de facto acting on its instructions, or under its direction or control (Rule 139) and train its armed forces in IHL (Rule 142). These obligations seem particularly relevant in light of the problems often posed by issues of legal interoperability in the context of multinational operations. Seeing the mission as one single entity for the sake of IHL would allow deeming it responsible for the training and subsequent conduct of its peacekeepers independently of – but not in contradiction with – the repartition of command and control between the international organisation and troop contributing countries. Concretely, this would mean that, in addition to the obligations of each troop contributing country, the UN should take the responsibility of substantively training the contingent and making sure it respects and applies the same rules of IHL as whole, instead of a patchwork of obligations deriving from the law applicable to single member states. Arguably, such a scenario does not differ too much from what already happens in practice through the joint training of peacekeeping missions before deployment, and the respect of a basic, uniform set of IHL rules is the aim of the Secretary General’s Bulletin. However, the idea that those obligations might directly derive from the status of party to the conflict under IHL sounds very unlikely to be accepted for the consequences it might entail when it comes to issues of attribution and allocation of responsibility for wrongdoings between the member states and the international organisation. For all that, it seems undeniable that acting under a unified legal framework has the potential for being a game changer at least in terms of prevention of violations of IHL.

No less important consequences derive from the potential role of MINUSCA as a party to the conflict under international criminal law. As aptly noted by Labuda, although the UN keeps denying the existence of an armed conflict between the mission and the armed groups in CAR, it at the same time reiterates that any attack against peacekeepers may amount to a war crime. Leaving aside the contradictory nature of statements of this kind, what is interesting is that incidents such as the one of 8 April are likely to fall under the jurisdiction of the recently established Special Criminal Court for CAR. Further judicial pronouncement is needed to shed some light on the features of the crime of attacking peacekeepers in a situation of armed conflict. The premise that because of the status of a peacekeeping mission as party to the conflict members of its military branch could be targeted as forming part of the armed forces thereof has never, so far, been accepted in the case law of international criminal tribunals. Will the Special Court choose to do so, indirectly saying the unsaid? We will need to wait and see if the whispered possibility of considering a UN mission as a party to the conflict will be finally made explicit in such a way.

A Letter to Israel About Its Plans to Forcibly Deport Africans

by Kevin Jon Heller

Opinio Juris readers might be interested in this letter from GLAN Legal — the Global Legal Action Network — to the Presidents and Attorneys General of Israel and Uganda. It was written by Itamar Mann, Yannis Kalpouzos, and Omer Shatz, with input from me. Here is the introduction:

The Global Legal Action Network (GLAN) is an organization of lawyers initiating transnational human rights litigation around the world. Our focus is on cases in which “developed” countries are responsible for violations occurring in “developing” countries. We write to respectfully warn both Israel and Uganda that the forcible deportation plan currently being discussed for Eritrean and Sudanese asylum seekers living in Israel may amount to a crime within the jurisdiction of the International Criminal Court (ICC).

The letter then proceeds to lay out the basics of the argument — which seems pretty unimpeachable to me. Note the reliance on the OPT’s recent argument concerning deportation from Myanmar to Bangladesh!

The Departed: Implications of the Philippines’ Withdrawal from the ICC

by Jennifer Tridgell

[Jennifer Tridgell is a Legal Intern at the International Criminal Court. She has previously worked at the Philippines Commission on Human Rights and the High Court of Hong Kong. The views expressed in this article are her own.]

On 19 March 2018, President Duterte withdrew the Philippines from the Rome Statute (“Statute”). This decision is disappointing, yet unsurprising. The President has repeatedly threatened to withdraw, and declared that the International Criminal Court (“Court”) is being used as a “political tool”. Earlier in 2018, Chief Prosecutor Bensouda opened a preliminary examination (“PE”) into whether the Philippine Government is responsible for alleged crimes against humanity committed in the “War on Drugs” from at least 1 July 2016 (“Situation in the Philippines”). To date, Human Rights Watch estimates that the bloody campaign has claimed over 12,000 lives.

In this post, I firstly examine whether the Philippines has withdrawn from the Statute. Secondly, I analyse the Government’s obligations to cooperate with the Court after its withdrawal, especially in relation to the PE. Finally, I consider why the PE into the Situation in the Philippines is strategically significant for the Court’s future and mandate to end impunity for international crimes.

Legal Requirements for Withdrawal

According to international law, the Philippines has withdrawn from the Statute. Under Article 127(1) of the Statute, a State party may withdraw via written notification to the Secretary-General of the United Nations (“UN”). At a minimum, the withdrawal shall “take effect one year after the date of receipt of the notification” (emphasis added). Burundi is the only nation to have effectively withdrawn from the Statute. Since President Duterte has given written notification to withdraw, it shall become effective on 19 March 2019.

Yet it is unclear whether President Duterte has the domestic power to withdraw unilaterally from the Statute. Before the Philippines ratified the Statute in 2011, at least two-thirds of Senators had to give their consent under Section 21, Article VII of the 1987 Constitution for the treaty to become “valid and effective”. This Constitution is silent on the treaty withdrawal process, and Senators have failed to pass a resolution on whether it also requires their consent. Therefore, the Supreme Court of the Philippines might be asked to determine if President Duterte has the power to withdraw. When South Africa tried to withdraw unilaterally from the Statute, this decision was revoked after the High Court ruled that it was “unconstitutional and invalid”. For this post, I assume that the Philippines has withdrawn from the Statute.

State Obligations to the Court

Legal Framework

Article 127(2) of the Statute determines the Philippines’ obligations to the Court after its withdrawal. It seeks to prevent States from using withdrawal to avoid jurisdiction, once they are under scrutiny from the Court (Klamberg, p. 757), by giving effect to Article 70(1)(b) of the Vienna Convention on the Law of Treaties, which stipulates that the termination of a treaty “[d]oes not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”. Article 127(2) states that:

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective (emphasis added).

This Article provides that a State party may have two ongoing obligations after its withdrawal, which I analyse below in relation to the PE into the Situation in the Philippines respectively. Firstly, a State party must cooperate with “criminal investigations and proceedings” which were commenced prior to the date of the effective withdrawal. PEs are probably excluded as they precede criminal investigations. Although it does not state when an investigation commences, the Pre-Trial Chamber (“PTC”) concludes that an investigation clearly has commenced with the decision to authorise it (para. 26). Thus, it is expected that the Office of the Prosecutor (“OTP”) will move quickly so that the Court may authorise a formal investigation into the Situation in the Philippines before 19 March 2019.

The Court took this approach for the Situation in Burundi. Only two days before Burundi’s withdrawal became effective, the PTC authorised a formal investigation under Article 15 of the Statute. While Burundi gave notice of withdrawal shortly after the OTP requested authorisation of this investigation, the Philippines gave its notification just after the OTP opened a PE. Consequently, the OTP is under considerable pressure to conduct this PE, then request and possibly receive the Court’s authorisation for an investigation within one year.

Secondly, a State shall not prejudice the consideration of “any matter” under consideration “by the Court” that was commenced before its withdrawal becomes effective. The meaning of this section is ambiguous. Does a “matter” include consideration of any situation or case? Does “the Court” refer to Chambers or does it encompass the OTP? Schabas (p. 1536) postulates that an expansive interpretation might find that “any matter” is before “the Court” when the OTP is “considering” applying to the PTC for authorisation of an investigation under Article 15 of the Statute.

However, I agree with Kevin Jon Heller that the better view is that a situation is only “under consideration” by the Court once the OTP has asked the PTC to authorise an investigation. I suggest that PEs may not constitute a “matter” before “the Court”. PEs are preliminary, informal processes with “no particular applicable legal framework and no direct legal consequences” (see Dov Jacobs). They are solely initiated by the OTP, which is one organ of the Court and may not embody “the Court”. Instead, “the Court” may refer to Chambers. For example, Article 95 of the Statute refers to Chambers when it uses the same phrase “under consideration by the Court”.

Furthermore, it does not befit the OTP’s role to unilaterally determine States’ obligations after their withdrawal. Amnesty International and Whiting argue for a broad interpretation of Article 127(2) of the Statute, so that States cannot prejudice consideration of PEs and thereby avoid the Court’s jurisdiction. The OTP has sweeping discretion to initiate any PE that is not “manifestly beyond” the Court’s jurisdiction, under Article 15 of the Statute. Yet this power is subject to checks and balances, including the need for the OTP to seek Court authorisation for an investigation in Article 15(3) of the Statute. Ultimately, the Philippines may not be obligated to cooperate with the PE into the Situation in the Philippines after its withdrawal, but it would be obligated under an investigation.

Practical Implications

All is not lost for victims in the Philippines. Regardless of whether or not the Court authorises an investigation before the date of effective withdrawal, the Philippines remains a State party until then. Therefore, the Court has jurisdiction over crimes within its jurisdiction that may have been committed in the Philippines or by nationals of the Philippines up to and including the date of effective withdrawal (see Burundi at para. 24). These crimes are also not subject to any statute of limitations (Article 29 of the Statute). Accordingly, the Court may authorise an investigation into the Situation in the Philippines or other alleged crimes within these limits at any time.

However, even if the Court approves an investigation before the date of effective withdrawal, the Philippines is unlikely to cooperate under Article 127(2) of the Statute. In fact, President Duterte has given express orders to the contrary. This does not diminish the importance of States respecting their obligations, but it follows that the OTP faces greater hurdles in carrying out its duty. Under a more amenable Government, the Philippines may freely choose to cooperate with the Court, even when it is not legally obliged to do so. For example, the Philippine Government has compensated victims under the Marcos dictatorship of the 1970s and 1980s.

Importance of the Preliminary Examination

The PE into the Situation in the Philippines is important for two reasons. Firstly, the Court may bolster its reputation as a truly international institution, because the PE is the first time that the Chief Prosecutor has set her sights on Asia. It is the most “underrepresented region” at the Court, with just 35% of States ratifying the Statute (Kim, p. 254), and abstentions from some of the world’s most populous nations, including China, India and Indonesia. The region with the next lowest rate of representation is Africa which, despite having a comparable number of States, has almost double the number of signatories as Asia (Kim, p. 254). With the global balance of power shifting to Asia, the OTP has made a strategic decision to initiate the PE in the Philippines and have a place in the region’s future.

By examining the Philippines, the OTP gains not only the opportunity to reshape Asia’s notoriously uneasy relationship with the Court (generally, see Chesterman, Sperfeldt and Palmer and Schuldt), but also to address criticism that the Court is inappropriately targeting African nations. Recently, the OTP has focused further afield with PEs into the Situations in Ukraine, Iraq/UK and Venezuela, amongst others.

Secondly, the PE in the Philippines may help to deter bloody anti-drug campaigns around the world. The OTP has placed the War on Drugs in the global spotlight, which may put pressure on the Philippines to reconsider its policies. However, South-East Asia is notorious for the world’s harshest drug penalties and their high popular support. Over 18 months into the War on Drugs, President Duterte still enjoys 80 percent approval ratings. Perhaps “inspired” by Duterte, Indonesia’s President Widodo has ramped up anti-drug rhetoric and called for police to shoot drug offenders. Whenever there are executions of drug traffickers, President Widodo’s approval ratings surge. These hard-line regional attitudes towards drug offences not only make it more difficult to encourage Filipino victims to come forward, but also to persuade nations to abandon their violent practices towards drug offenders.

Conclusion

In 1989, Trinidad and Tobago proposed the creation of an international criminal court to address drug trafficking. It is with a twinge of irony that the resulting Court will now be (rightly) used to seek justice for drug dealers and addicts who have been allegedly murdered in the War on Drugs.

The Philippines’ decision to withdraw from the Statute is disappointing and disturbing. Every day that President Duterte’s brutal campaign against drugs continues, the body count swells and impunity reigns. Thankfully, even if an investigation is not approved before the date of effective withdrawal and the Philippine Government refuses to cooperate, the Court will always have jurisdiction over these alleged crimes.

The Coming Attack on Syria Will Be Unlawful

by Kevin Jon Heller

You go to war with the President you have, not the President you wish you had.

We should keep that basic truth in mind as the US inches ever closer to war with Syria — and potentially with Russia, a far more terrifying possibility. Donald Trump does not care about civilians in Syria. He does not care about containing the spread of chemical or biological weapons. If he attacks Syria, it will be for one and only one reason: to distract attention from his collusion with Russia, his obstruction of justice, and his corruption. As Trump well knows, Americans love nothing more than high-def images of American bombs falling from the skies. No matter how many innocent civilians die (especially brown ones), an attack on Syria will give his approval ratings a healthy boost. That is all the motivation he needs.

That Trump will act with base motives does not mean, however, that an attack on Syria would be unlawful. Illegality has to be demonstrated, not assumed.

So let’s start with some basic principles. Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the “unwilling or unable” doctrine. Readers know that I do not believe that “unwilling or unable” reflects customary international law. (For the most recent scholarly rejection of that idea, by Brunee & Toope, see here.) But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was “self-defence” — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.

None of this jus ad bellum analysis should be remotely controversial — at least not to those who don’t believe the US has the God-given right to use extraterritorial force wherever and whenever it pleases. All of the conclusions above derive from a straightforward application of black-letter rules concerning the use of force.

That said, in recent days we have seen a number of scholarly attempts to justify Trump’s coming attack on Syria. I want to focus on one such attempt here, by my friend (and retired Maj. Gen.) Charlie Dunlap at Lawfire. Dunlap offers two potential justifications for attacking Syria: (1) self-defence; and (2) unilateral humanitarian intervention. Neither justification works.

With regard to self-defence, Charlie says the following with regard to Syria’s chemical and biological weapons:

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  – well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that these uniquely dangerous weapons of mass destruction require an aggressive response.

Even if we assume that US troops are in Syria lawfully — a big if, given that it requires accepting the “unwilling or unable” doctrine — this argument denudes Art. 51’s armed attack requirement of all meaning. As noted above, Syria has neither attacked US troops nor threatened to do so. The mere possibility of attack — involving the mere possibility of that attack involving chemical or biological weapons — cannot justify an armed “response” by the US. To argue otherwise is to embrace preventive self-defence on steroids — going beyond even the US’s rationale for attacking the shadowy Khorosan group, where the US spokesman openly acknowledged, with regard to what armed attack the US was supposedly trying to prevent, that “I don’t know that we can pin that down to a day or month or week or six months.” At least terrorists who were possibly associated with the Khorasan group had previously attacked US interests. With regard to Syria, there is not even one previous attack to invoke.

Charlie’s invocation of unilateral humanitarian intervention (UHI) is no more persuasive. Here is what he says:

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

I have previously explained — in response to Harold Koh — why there is no plausible argument for the legality of UHI. The same critique applies here. I would just add that the international reaction to the 2017 attack on the airfield at Shayrat does not help the argument, for one simple reason: the US never invoked UHI as a justification for the attack. Because it did not, states were under no obligation to denounce UHI after the attack took place — as they have repeatedly done in the face of attacks (such as Kosovo) where one or two states did invoke the doctrine. What I said a few days ago regarding Israel’s 2007 Al-Kibar attack applies no less to the 2017 Shayrat attack: had the US claimed that the attack was legal UHI, the international response would have assuredly been different.

The conclusion above thus remains sound: if the US attacks Syria, it will be the aggressor and both Syria and Russia will have the right to use force against the US in self-defence.

Let me end with what I hope is obvious: this is a legal analysis, full stop. It is not a normative argument. I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.

(Re)deportation of Activist Lawyer Highglights Continued Judicial Independence in the Face of Crumbling Rule of Law in Kenya

by Tim Fish Hodgson and Simphiwe Sidu

[Tim Fish Hodgson is a Legal Adviser at the International Commission of Jurists and Simphiwe Sidu is a Legal Research Consultant for the International Commission of Jurists.]         

Miguna Miguna is a prolific Kenyan activist and lawyer who describes himself as a “General” in National Resistance Movement (NRM) Kenya. He ran to be elected as Governor of Nairobi in Kenya’s controversial 2017 elections. He is therefore a rival to current Kenyan government.

Over the last few months the Kenyan government has aggressively pursued Miguna’s deportation from the country. The manner in which his deportation has been pursued, understood in the context of Kenya’s current political crisis, highlights the resilience of Kenya’s robustly independent judiciary, previously noted here. In the face of increasingly polemical attacks on the judiciary by senior executive officals, including President Kenyatta himself, the judiciary’s independence continues to act as a firm bulwark against the otherwise crumbling rule of law in Kenya.

According to a recent Kenyan Appeal Court judgment, on the morning 2 February 2018 officers from Kenya’s Directorate of Criminal Investigations and the Inspector General of Police “blew up the gate and entry door to [his] house using military detonations [and] destroyed [his] property”. The officers did not identify themselves, were not wearing uniforms, were driving unmarked vehicles, did not read Miguna his rights before detaining him and refused his requests for access to legal counsel.

Why was Miguna arrested?

Miguna was held without charge that day – and without access to physicians, advocates family and friends – and was not charged until 6 February 2018 when he first appeared in front of a Magistrate. The eventual charges include “administering of an oath to Raila Amollo Odinga purporting to bind [him] to commit a capital offence of treason”; organising a public meeting without notice; and professed membership in an “organized criminal group” – the NRM.

Odinga, the leader of the opposition in Kenya claims to have legitimately won the 2017 elections which, were invalidated by Kenya’s Supreme Court after Kenyatta had been delcared the winner. The Court held that the election was riddled with “irregularities” that were “so grave that they … affected the credibility of the election and [its] results”.

Miguna has both Canadian and Kenyan passports having lived in Canada for a number of years from 1988 while in exile. This has for years been used by his political rivals who have publicly labelled him a “foreigner”. The Kenyan government insists that it intends to deport Miguna “home” to Canada because he is not a Kenyan citizen. Though he holds a Kenyan passport issued in 2009, in a statement the government claimed that Miguna unlawfully acquired this passport while he was working for then Prime Minister Odinga. This, they argue, was unlawful because he still held Canadian citizenship and dual citizenship was not legally permitted at the time.

In terms of Article 17(2) of Kenya’s current Constitution enacted in 2010, Miguna can only have his Kenyan citizenship revoked if: a) it was “acquired by fraud”; or b) his parents were “already citizens of another country” at his birth; or c) if he was older than eight years when he was “found” in Kenya. Miguna’s response to the government’s claims that he is a foreigner is that “the Constitution is crystal clear: no one can invalidate or purport to cancel the citizenship of a Kenyan born citizen.”

Disregard for court orders and legal process

The Magistrate ordered that Miguna appear in front of the High Court by 3pm that same day. Instead Miguna claims to have been physically threatened and searched before his passports were illegally seized. He was then driven to the airport for deportation against his will.

Meanwhile the Court of Appeal records that High Court Judge Kimaru was “duped” into waiting at High Court until 7pm under the belief that Miguna would be brought before him. On discovering that Miguna was instead in the process of being deported to Canada, the Judge found that Miguna’s deportation was unlawful. Finding that the deportation showed “obvious contempt of the orders of this court and a deliberate attempt by State agencies to subvert the Rule of Law”, Judge Kimaru ordered that Miguna must be allowed to return to Kenya at the expense of the State, on a day chosen by him. He also held the various government officials who had disobeyed these orders in contempt of court for flagrant violations of court orders.

It is these decisions that four applications brought by senior executive officials sought to appeal to the Kenyan Appeal Court (the officials include the Cabinet Secretary, the Minister of Interior, the Director of Criminal Investigation, the Inspector General, the Director of Public Prosecutions and the Director of Immigration Services). The applications sought to overturn the contempt order and stay of execution of the decision to grant Miguna the right to return to Kenya. Given the apparent disregard for the rule law by executive officials, bemusingly, counsel for the applicants told the Court that “If we do not follow the law there would be anarchy. If we do not follow the law we shall be doomed”. Because of the “mischief” that might result from Miguna’s return, he therefore implored the Court to stay Miguna’s return.

Court of Appeal rules that Miguna must be returned to Kenya

Much of the Court of Appeal’s decision rides on the universal legal principle that the rule of law requires that court orders are obeyed by those whom they direct to action. This, the Court emphasized, applies to every person regardless of their status in society and “it is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance.”

To prevent the “constitutional edicts of equality under the law, and the upholding of the rule of law” from becoming “mere platitudes” instead of “present realities” the Court made it clear that it is required to “deal firmly and decisively with any party who deigns to disobey court orders”. This it concluded also serves “to preserve [the Court’s] authority and dignity”.

In these applications, the government argued that returning Miguna to Kenya would result in irreversible prejudice that might make future proceedings redudant. The Court of Appeal rejected this argument, finding that if anything Miguna should have the right to defend himself in a fair trial in Kenya. Nor, it concluded did Miguna’s return present any “clear and present danger of social upheaval or break down of law and order”. At most it noted Miguna’s return presented the possibiility of “some embarrassment” to the executive officials responsible for the deportation.

The overall result, therefore, was that while the Court permitted the appeal against the contempt proceedings to continue, it found that Miguna must be allowed to return to Kenya. Miguna’s return on 26 March, however, did not go as planned.

Assault, further contempt for court orders and Miguna’s re-deportation

Upon Miguna’s return to Kenya, he was deported again. This time he was detained at the airport for three days before he was put on a flight to Dubai. Miguna claims that he was drugged and beaten before being put on this plane. Journalists have claimed that they too were assaulted by the police during this process. During this period, on 27 March, High Court Judge Aburili ordered that Miguna be released and be presented in Court the next day.

When the matter came before Judge Odunga on 28 March he summoned the executive officials involved in the deportation including Internal Secretary Fred Matiang’I to appear before him personally. When they failed to appear in court as instructed, Judge Odunga once again found the officials in contempt of court and liable to pay fines of approximately $2000 each.

Miguna’s deportation in context: judicial independence and the crumbling rule of law in Kenya

Deepening the glaring divide between judiciary and the executive, Matiang’I reacted by sharply critcizing the the judiciary in startling terms. Matiang’I is quoted as saying “there is a group of judges trapped in an unholy alliance with civil society groups and activist lawyers intent on embarrassing the government”.

Making matters worse, he continued to say that there “is an evil clique of judicial officers who want to drag us by the collar through trial by the public court”. Current President Uhuru Kenyatta called the Supreme Court “wakora” (crooks) after it invalidated his election victory in 2017.

Even before the election the Kenyan Judicial Service Commission condemned the “emerging culture of public lynching of judges and judicial officers by the political class” as a “vile affront to the rule of law”.

In early February, the Kenya section of the International Commission of Jurists too condemned “the increasing and blatant disregard of Court Orders by the State and its agents” noting that “many lives were lost and sacrifices made in order to ensure that Kenyans enjoy their guaranteed fundamental rights and freedoms” under the rule of law.

Despite the growing tension between the judiciary and the executive in Kenya, in its unanimous judgment, the Court of Appeal demonstrated its strong commitment to upholding the rule of law in the face of significant political pressure. In doing so it – alongside many other Kenyan judges – merely performed its duty in terms of Kenya’s Constitution which firmly entrenches the rule of law as one of its “national values and principles of governance” alongside dignity, equality and social justice. The performance of judicial duty, which is a far cry from acting as an “unholy alliance” or “evil clique”, is an expression of the judiciary’s independence.

Understood in its legal and political context, Miguna’s deportation highlights the magnitude of threats to the rule of law in Kenya and the potentially far-reaching consequences. As a South African court has put it “If the State… does not abide by court orders, the democratic edifice will crumble stone-by­ stone until it collapses and chaos ensues.”

Implications of the Rohingya Argument for Libya and Syria (and Jordan)

by Kevin Jon Heller

In my previous post, I offered three cautionary thoughts about the OTP’s decision to ask the Pre-Trial Division to hold that the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh. In this post, I want to offer a few thoughts on what a successful outcome would mean for refugee crises elsewhere — particularly in Libya and Syria.

We can start with the relatively easy case: Libya. Because of UNSC Res. 1970, the ICC has jurisdiction over any international crime committed on the territory of Libya from 2011 onwards. If the OTP’s theory of deportation is correct, it would be able to prosecute both (1) deportations from Libya committed by the Libyan government and armed forces, and (2) deportations into Libya from neighbouring states that are not members of the ICC — namely, Egypt, Sudan, and Algeria. Fatou Bensouda has already signalled interest in prosecuting “migrant-related crimes” committed by Libyans in Libya. A positive outcome to the OTP’s request in the Rohingya situation would make it possible for her to prosecute Egyptian, Sudanese, and Algerian nationals as well.

The more interesting case is Syria, given that Syria is not a member of the ICC and there is little chance the Security Council will refer the situation in Syria to the Court anytime soon. There are two scenarios worth discussing here: (1) deportations by the Syrian government or by various Syrian rebel groups into a neighbouring state; and (2) deportations by the Syrian government or by various Syrian rebel groups onto the high seas.

Going in reverse order, the ICC would have no jurisdiction over any deportation from Syria onto the high seas. There are two possible situations here: where the deported civilians drown on the high seas, and where the deported civilians make it to an ICC member-state such as Italy or Germany. In the first (profoundly sad) situation, no essential element of deportation (or of any other international crime) would have taken place on the the territory of a state party. And in the second situation, the civilians would not have been deported “directly” into the territory of a member-state — they would have been directly deported onto the high seas and only “indirectly” deported into the territory of a state party. Deportation’s “essential element” of crossing an international border would thus have taken place in Syria and on the high seas — not on the territory of a member state. This is the importance of the OTP’s repeated insistence in its request (see paras. 4, 13, and 28) that only direct deportations activate the Court’s jurisdiction.

In the second scenario, where the civilians are directly deported into a neighbouring state’s territory, a positive outcome to the OTP’s request in the Rohingya situation would mean that the ICC would have jurisdiction over any deportation from Syria into the territory of a state party. There is, in fact, only one ICC member-state that borders Syria: Jordan. Jordan would be a particularly attractive application of the OTP’s theory of deportation, given that more than 650,000 Syrians are currently taking refuge there — almost exactly the same number as the Rohingya in Bangladesh. (Though not all of the Syrian refugees in Jordan have been the victim of deportation.)

I wonder, though, what Jordan would think of the OTP opening an investigation into deportations from Syria into Jordan. Presumably, that situation would not be limited to deportations, but would also include Jordan’s own treatment of Syrian refugees. (A more tailored situation would be immediately seen for what it was — a sop to Jordan.) As Human Rights Watch has ably documented, Jordan has been summarily returning hundreds of Syrian refugees back to Syria each month, a clear violation of international law. Those actions very likely qualify as the crime against humanity of persecution, especially when Jordanian authorities specifically target for expulsion a national group such as Palestinians. So it is not difficult to imagine the OTP bringing a case involving Jordan’s expulsions as part of an investigation into Syrian deportations. Indeed, the OTP would likely find it much easier to prosecute the expulsions, given that Jordan is not only obligated to cooperate with the ICC but has long been one of its most vocal supporters. Ironically, then, an investigation into Syrian deportations might mean that a Jordanian ends up in the dock before a Syrian!

NOTE: I don’t think the Jordan prosecution I discuss above is likely to happen. I’m just teasing out the possible implications of the ICC having jurisdiction over deportations from non-member states to member-states.

Three Cautionary Thoughts on the OTP’s Rohingya Request

by Kevin Jon Heller

Major news out of the ICC today: the OTP has formally asked the Pre-Trial Division to determine whether the Court has jurisdiction over the deportation of the Rohingya from Myanmar to Bangladesh. Here is the introduction of the OTP’s brief:

1. The Prosecution seeks a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

2. Consistent and credible public reports reviewed by the Prosecution indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described the Rohingya crisis as “a textbook example of ethnic cleansing”, and according to the UN Special Envoy for human rights in Myanmar, it potentially bears the “hallmarks of a genocide”. The coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under article 12(2)(a) of the Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).

3. Given these exceptional circumstances and the nature of this legal issue, the Prosecutor has exercised her independent discretion under articles 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. This will assist in her further deliberations concerning any preliminary examination she may independently undertake, including in the event an ICC State Party decides to refer the matter to the Court under articles 13(a) and 14.

This is one of the best OTP briefs I have ever read. It is rigorous, learned, and exceptionally sophisticated in its use of comparative materials. It is also far more persuasive than I expected it to be, particularly concerning the idea that the ICC has jurisdiction over a crime as long as one of its elements took place on the territory of a state party. I don’t know who wrote the brief — it names only Fatou Bensouda and James Stewart, the Deputy Prosecutor — but he or she needs to be promoted immediately.

I do, however, want to raise three concerns about the brief.

First, it is very important to understand how limited any ICC investigation into the Rohingya situation would be. There is a reason that the OTP is asking the Pre-Trial Division to offer its opinion only on deportation: no other war crime or crime against humanity necessarily involves conduct that crosses an international border. So even if the Pre-Trial Division agrees with the OTP about deportation, the Court will still not have jurisdiction over the many other crimes committed against the Rohingya. Not genocide. Not murder. Not sexual violence. Those acts have taken place solely on the territory of Myanmar.

Second, and relatedly, there is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

Third, although I find much of the brief convincing, I am not completely sold on the OTP’s argument that “an essential legal element of the crime — crossing an international border — occurred on the territory of a State which is a party to the Rome Statute.” The argument assumes that it is not possible to distinguish between crossing an international border and being on the territory of the state on the other side. But is that correct? Can we really not view crossing an international border and being on the territory of the state on the other side as two spatially distinct acts?

Although it does not directly answer the question, there is at least one situation in which civilians can cross an international border without being on the territory of another state — when they are deported to the high seas. The OTP acknowledges as much in its brief. Here is footnote 32:

As a matter of law, however, it is not necessary to prove entry to another State, but merely that the victim has been ejected from the originating State—as such, a victim may potentially be deported to the high seas. What is crucial is that the international border, de jure or de facto, of the originating State is crossed. Hence, customary international law has emphasised consideration of the kinds of borders that might suffice: see e.g. Stakić AJ, para. 300; Đorđević AJ, paras. 533-536; Prlić TJ, Vol. I, para. 47; Popović TJ, para. 892.

The first sentence of the footnote seems important — and complicating. If deportation does not actually require proof of “entry to another State,” only the crossing of an international border, how can we say that an “essential element” of deportation was committed in State Y simply because civilians happened to enter there after crossing an international border? Either entry to another state is an essential element of deportation or it is not — and the high seas example seems to point toward “not.”

This argument does not hold, of course, if an international border is somehow dual territory: the territory of State X and the territory of State Y; the territory of State X and the high seas. An international border cannot be the territory of just the State into which the civilians enter, because that would mean, irrationally, that the border’s spatial location would change depending on which State — X or Y — was doing the deporting. But if an international border is dual territory, the OTP’s theory works: crossing an international border “between” the two states would take place on the territory of both State X and State Y.

There are, in short, two possibilities. The first is to assume that an international border is part of the territory of both of the states it divides. The second is to assume that an international border is part of the territory of neither of the states it divides. The first possibility means that the OTP is correct: the ICC has jurisdiction over the deportation of the Rohingya, because at least one “essential element” of deportation — crossing an international border — took place on the territory of a state party, Bangladesh. The second possibility means that the OTP is wrong: the ICC does not have jurisdiction over the deportation of the Rohingya, because no “essential element” of deportation took place on the territory of a state party, Bangladesh. The essential elements took place either in Myanmar or somewhere that does not qualify as either Myanmar’s territory or Bangladesh’s territory.

To be honest, I have no idea which possibility is correct. I simply do not know enough about the legal status of international borders. I just think the OTP’s assumption that the Rohingya crossing the border into Bangladesh necessarily means that an essential element of deportation took place in Bangladesh is less obvious than it might first appear.

I’m really glad I’m not a member of the Pre-Trial Division right now.

Aggression and Criminal Responsibility (for Whom?)

by Nikola Hajdin

[Nikola Hajdin is a doctoral candidate in international law at Stockholm University and a fellow at the Stockholm Centre for International Law and Justice]

On December the 14th, 2017, the Assembly of States Parties to the Rome Statute adopted a resolution that activates the International Criminal Court’s (ICC) jurisdiction over the crime of aggression (CoA). After the adoption of aggression amendments in 2010 in Kampala, controversy arose regarding the scope of its jurisdiction (for a brief overview on what has been happening in the last seven years, see here and here). In this post, however, I draw attention to yet another of many conundrums that the Office of the Prosecutor (OTP) will ultimately have to deal with—namely, the outer limits of criminal responsibility for the CoA.

The problem with the CoA’s leadership nature

Article 25 of the Rome Statue—labeled ‘Individual criminal responsibility’—stipulates that a person who commits a crime under the ICC purview is individually responsible and liable for punishment. Paragraph 3 of the Article echoes what has been now broadly accepted as a ‘differentiation model’ of participation, whereby perpetrators commit crimes (a) and accessories merely contribute to their commission (b-d). Or, in words of ICC Trial Chamber II, perpetrators’ conduct constitutes commission of the crime, whilst accessories’ is solely connected to the commission of someone else’s crime (see Katanga judgment, para.1384). Added in 2010, paragraph 3(bis) nevertheless reads:

In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.

This so-called leadership clause (similarly mentioned in Article 8bis(1) as well) narrows responsibility to those in position to ‘control or direct’ state policy. This is nothing new for the CoA. Since the 1940s, aggression has been perceived as a leadership crime—a ‘supreme crime’ that may be committed only by the highest state officials. This is one of the main conceptual differences between the CoA and other crimes under the ICC’s jurisdiction. The latter are usually perpetrated by common foot soldiers and masterminded by leaders, whilst commission of the CoA is exclusively reserved to state leadership. This leadership nature adds an additional layer to the system of imputation of criminal responsibility: before the assessment of who committed and who assisted the crime in terms of Article 25, the ICC has to identify leaders that meet the requirement of ‘control or direct’ standard. This raises the question of what it means for an individual to qualify as the leadership of a state.

Different approaches to ‘control or direct’

To predict how the OTP and ICC will interpret ‘control or direct’ is challenging. Even worse, there’s no analogous jurisprudence: the leadership clause in the Nuremberg era was a lower standard ‘shape or influence’ (see High Command, p.488). An easy case for prosecution is the highest political and military state officials. A harder one is with non-immediate, civil society leaders who contribute to acts of aggression, yet do not have any formal a priori relationship with the state apparatus: e.g., business leaders whose companies sell weapons that are used in an aggressive war. (This issue was already raised by Heller in 2007.)

Here I will lay out three possible approaches to the ‘control or direct’ standard: ‘effective control’ from superior responsibility; ‘control’ from the ‘control over the crime theory’; and ‘control’ from the ‘overall control’ test.

One way to inform interpretation is to rely on the ‘effective control’ standard from the doctrine of superior responsibility (Article 28 of the Rome Statute). Effective control is defined as ‘the material ability to prevent offences or punish the offender’ (see Popović et al. Appeal Judgment, para. 1857). In a vast bureaucratic apparatus, once an aggressive policy has been devised, only a few people may prevent acts of aggression from happening. Even fewer are capable to use their authority to bring the offenders to justice. Accordingly, it is questionable whether anyone apart from the highest state leadership would be able to meet this requirement. Be that as it may, there’s nothing in the CoA definition suggesting this rather elusive standard. So there is room for a less stringent interpretation.

Another possibility is the ‘control over the crime’ theory and its definition of ‘control’. The contours of this theory may indeed give some guidance in interpreting the CoA’s leadership clause. In its variant of co-perpetration, control means the power to frustrate the commission of the crime by not performing essential tasks. Those who are assigned essential tasks have joint control over the crime (see Lubanga Confirmation Decision, para. 342).

The problem with this theory, however, is that its normative nature is different from ‘control or direct’. The ICC has developed the ‘control over the crime’ theory in order to distinguish between principals who commit the crime (by virtue of their control over it) and accessories that merely participate in the commission of someone else’s crime. In this vein, principal responsibility is ascribed to direct perpetrators — those who carry out material elements of the crime (‘with blood on their hands’) — and to masterminds who are often far behind the scenes — those who devise a criminal policy that sets in motion the chain of events leading towards commission of the crime (‘without blood on their hands’). By contrast, the CoA’s ‘control or direct’ standard purports to limit both perpetratorship and accessoryship to the policy level. Only when the policy level leaders are identified could the ‘control over the crime’ theory be applied to assign responsibility. But if the ‘control over the crime’ theory is used to determine leadership for the CoA, the same standard could not be re-applied to distinguish between perpetrators and accessories, because those in ‘control’ pursuant to the ‘control over the crime’ theory are regarded as perpetrators. Consequently, all participants in the crime of aggression would be labeled as perpetrators. This outcome might be normatively satisfactory to some (proponents of the unitary participation model), but it would be incoherent under the differentiation model of individual criminal responsibility. There needs to be room for accessoryship as well in the CoA, as Article 25(3bis) suggests, and therefore the standard of ‘control’ has to be different from the ‘control over the crime’ theory.

The third possibility might be to define ‘control’ as equivalent to ‘overall control’ test set forth in Tadić. In an article published earlier this year, I suggested this approach, whereby both the immediate and non-immediate state leadership are covered by the current definition of the CoA. This standard was examined in the context of responsibility of a state for the conduct of private individuals (or groups), rather than the responsibility of individuals for the action of a state. That notwithstanding, the analysis could be useful for the CoA as it identifies the position of (overall) control. However, the rationale behind the interpretation goes in the opposite direction, focusing on the individual and his degree of control over state policy. Based on jurisprudence and scholarship, I conclude that as long as a person has an ‘impact’ on the policy, he should satisfy the ‘control or direct’ requirement. I acknowledge, however, that ‘impact’ is not a very precise term and as such is not easy to define.

It bears stressing that this approach does not overly broaden criminal responsibility for aggression. Current doctrine requires the mens rea of dolus directus, which is already cumbersome for the prosecution. Specifically, the OTP has to prove that the perpetrator acted purposefully, i.e. he was aware of his position of ‘control’ and consequences of his deeds, and he consciously chose to engage in the conduct or cause a result. Only those who acted in this way can be prosecuted for CoA.

In short, once leaders are identified, the ‘control over the crime’ theory should be used to distinguish between perpetrators and accessories.

Outlook

Once seen as a ‘supreme crime’, today the CoA has a different social value. Experience from the international criminal tribunals shows that other crimes have the capacity to stigmatize the highest state leaders for their misdeeds. Certainly, the ICC’s CoA will not stop violence between states. It is, moreover, an open question when we will see the first aggressors sitting in the dock in The Hague. Nonetheless, it should be clear that the CoA is not reserved for high political and military leaders. The ICC or any other court should bear this in mind when interpreting the leadership standard. Civil society leaders, such as industrialists, ought to be prosecuted as long as their impact on the governmental policy is substantial and they meet the actus reus and mens rea of the CoA. Every criminal law system in the world, as peculiar as it can be, recognizes the responsibility of those who furnish the murder weapon. The crime of aggression should be no exception.

The ICC’s Curious Dissolution of the Afghanistan Pre-Trial Chamber

by Kevin Jon Heller

Many ICC observers have been wondering why the Pre-Trial Chamber is taking so long to decide on the OTP’s request to open a formal investigation into the situation in Afghanistan. A little-noticed document filed by the Presidency on March 16 provides at least part of the explanation: because of  the recent judicial elections, the Presidency has dissolved the PTC that was handling the Afghanistan situation (PTC III) and reassigned the situation to a newly-constituted PTC (PTC II). Here is the relevant paragraph of the document:

HEREBY FURTHER DECIDES to reassign the situation in the Republic of Côte d’Ivoire from Pre-Trial Chamber I to Pre-Trial Chamber II, to re-assign the situation in the Gabonese Republic from Pre-Trial Chamber II to Pre-Trial Chamber I and to re-assign the situations in the Islamic Republic of Afghanistan and the Republic of Burundi from Pre-Trial Chamber III to Pre-Trial Chamber II.

The Presiding Judge of PTC III, Judge Mindua, has been reassigned to PTC II, so he will continue to deal with the Afghanistan situation. But the other two judges assigned to the new PTC II, Judge Akane and Judge Aitala, have just been elected to the Court. So PTC II now has to essentially start over with regard to the OTP’s request to open a formal investigation. Here is Kate Clark on behalf of the Afghanistan Analysts Network (AAN):

The Court had to re-assign the decision on Afghanistan to a new panel of judges (see details here). The new panel has had to start from scratch, wading through and considering all the material gathered on Afghanistan over the last decade. An ICC press release warned “it cannot be determined at present how many more weeks/months this process will take.”

I cannot find the quoted press release on the ICC’s website, but it makes sense that the Presidency’s assignment of two newly-elected judges to PTC II will slow down the Chamber’s analysis of the OTP’s request.

A question, however, still nags at me: given the importance of the Afghanistan decision — arguably one of the most momentous in the ICC’s history — and the fact that PTC III has been (actively) dealing with the OTP’s investigation request for nearly four months, why would the Presidency dissolve PTC III now? If the terms of the other two judges had expired, the decision would be understandable: even if the Presidency had assigned two experienced judges to the newly-constituted PTC II, those judges would have needed some time to familiarise themselves with the Afghanistan situation. But that is not what happened here: the Presidency simply reassigned the other PTC III judges — Judge Chung and Judge Pangalangan — to the Trial Division. That is not only problematic in terms of the resulting delay, it also means (pursuant to Art. 39(4) of the Rome Statute) that neither Judge Chung nor Judge Pangalangan will be able to hear any case that comes out of the Afghanistan investigation.

Would it not have been better to leave PTC III alone until it made a decision on the OTP’s request to investigate? I don’t see anything in the Rome Statute that required the Presidency to reassign Judge Chung and Judge Pangalangan. Judges assigned to the Pre-Trial Division normally serve for three years. Judge Pangalangan has three months left in his tenure (he was assigned to the Division on 15 July 2015), and although Judge Chung’s three years ended on March 11 (he joined the Division on that date in 2015), Art. 39(3) provides that judges who have served three years shall continue to serve “thereafter until the completion of any case the hearing of which has already commenced in the division concerned.” The language of Art. 39(3) is typically ambiguous regarding the situation/case distinction, but it’s at least arguable that the provision applies to a pending PTC decision concerning an investigation request. So, again, it does not appear that the Presidency had to reassign Judge Chung and Judge Pangalangan.

Let me be clear: I am not imputing any nefarious motives to the Presidency. I don’t believe the dissolution of PTC III was some kind of backhanded ploy to prevent the OTP from investigating the Afghanistan situation. The new PTC II will eventually authorise the investigation — the personnel changes are just delaying the inevitable. Moreover, it may well be the case that, logistically, reassigning Judge Chung and Judge Pangalangan could not be avoided. I have not systematically analysed the workload of the old judges or the qualifications of the new ones.

Once again, though, the Court’s lack of transparency does it no favours. Given the impact of the Presidency’s decision on the closely-followed Afghanistan situation, it is not enough for it to mechanically recite the various considerations in the Rome Statute concerning the assignment of judges. If only to avoid the kind of conspiracy theories that I personally reject, the Presidency needs to explain precisely why PTC III could not remain intact until it reached a decision on the OTP’s request to open an investigation.

Propaganda and Accountability for International Crimes in the Age of Social Media: Revisiting Accomplice Liability in International Criminal Law

by Talita de Souza Dias

[Talita de Souza Dias is a DPhil Candidate and a Tutor in Public International Law and International Criminal Law at the Faculty of Law, University of Oxford.]

In the past few weeks, there have been a series of news reports on the role that data-mining firm Cambridge Analytica played in the outcome of the 2016 US elections, which led to Donald Trump’s controversial victory (see, e.g., here and here). In essence, the corporation is being accused of manipulating the results of that election, especially by harvesting protected personal data from Facebook and by making targeted posts on this and other social media platforms, including with the aim of discrediting other candidates and spreading fake news. Significantly, there have also been allegations that Cambridge Analytica has been employing similar marketing tactics in Kenya for the purposes of manipulating the country’s 2013 presidential elections, and the primary elections that took place earlier this year, in favour of Kenya’s President Uhuru Kenyatta (see here, here and here). According to the company’s website, it collected data on the ‘electorate’s real needs (jobs) and fears (tribal violence)’ to ‘draft an effective campaign strategy’. Footage obtained from a hidden camera also shows one of Cambridge Analytica’s managing directors admitting to the company’s role in rebranding Kenyatta’s entire party twice, such as by drafting speeches and manifestos, managing their media campaign, and ‘stag(ing) the whole thing’. In light of these allegations, and Kenya’s recent history of post-election violence, there have been fears that the company’s marketing strategies might contribute to yet another wave of ethnic hatred and physical confrontation in the country (see here). It is important to recall that Kenya’s 2007 post-election violence gave rise to an investigation and a series of prosecutions before the International Criminal Court (ICC), including against Kenyatta.

To be sure, war propaganda and the involvement of the media in the commission of international crimes are not new phenomena, as the examples of Nazi Germany and Rwanda testify. However, the use of social media adds a new lawyer of complexity and raises a series of new questions on the international criminal responsibility of the individuals involved in marketing campaigns such as the ones orchestrated by Cambridge Analytica. Two such questions are of particular relevance. First, is the contribution to an election campaign, or the manipulation of an election sufficient to engage the individual criminal reasonability of social media operators for any ensuing international crimes? Secondly, in what other ways the use of social media can give rise to international criminal responsibility?

Since we are talking about the use of social media to assist with or contribute to the commission of international crimes by other individuals, it is accomplice or accessorial liability that is most relevant to our scenarios. In particular, there are two key modes of accomplice liability that could potentially fit the factual pattern at hand, namely, aiding and abetting, or instigating, soliciting, inducing and inciting (or simply ‘instigation’). Under customary international law (CIL) and in the Rome Statute of the ICC, the objective and subjective elements of instigation have not been subject to any significant controversy. Indeed, under both CIL and the Rome Statute, instigation requires conduct that prompts, drives or causes the principal perpetrator to commit the crime. Thus, the instigation must be a ‘clear’ or ‘direct’ contributing factor to the commission of the crime. This does not mean that the contribution must be essential to the crime, but it must have substantially contributed to it. As to the mental element, the default standard in either regime seems to apply: under CIL, intentional conduct must be coupled with knowledge of the substantial likelihood of the crime (i.e. recklessness), whereas in the Rome Statute Article 30 requires intent both in relation to the conduct and the result (i.e. intention or dolus directus).

The picture is somewhat blurrier when it comes to aiding and abetting. On the one hand, the objective elements of this mode of liability seem to be same under CIL and the Rome Statute: although a substantial or significant contribution is required, this broadly includes any contribution that is more than a de minimus. Thus, what separates an inadvertent contribution from aiding and abetting is the mental element. Again, the mental element in the Rome Statute differs from the one under CIL. After some confusion in the case-law of the ICTY as to whether or not ‘specific direction’ was required for aiding and abetting, it now appears to be settled that, under CIL, knowledge is the requisite mental element for that mode of liability. Thus, the accused must know that his/her conduct assists, or is substantially likely to assist a specific crime. As to the Rome Statute, Article 25(3)(c) requires the aider to have ‘the purpose of facilitating the commission of [the] crime’. Thus, the ICC has held that Article 30’s default requirement of intent also applies to aiding and abetting (see, for instance, the recent Appeal Judgement in the Bemba et al. case, paras 1390-1391, 1399-1401). Nonetheless, in an attempt to address neutral or non-criminal types of assistance, some commentators have proposed a restrictive interpretation of aiding and abetting (see, e.g. Kai Ambos’ post on the evacuation of civilians in Syria and the Separate Opinion of Judge Fernández de Gurmendi in the Mbarushimana Appeals Confirmation Decision). The idea is to require, aside from a minimum and purposeful contribution, some normative nexus between the aider and the principal’s conduct. Although it is not very clear what such normative standard entails, it appears that it is mainly based on the unlawfulness of the assistance and on the fact that it increases the risk of the commission of the crime. The same interpretation has been applied to the Rome Statute’s residual mode of accomplice liability under Article 25(3)(d). However, this provision seems to be less demanding than Article 25(3)(c), in that it only requires the accomplice to have knowledge that a certain group has the intention or common purpose to commit a crime.

Applying this law to our relevant factual scenarios, it seems that assistance to the election of an individual who turns out to be a perpetrator of international crimes, by means involving the use of social media, could potentially amount to instigation or aiding and abetting under CIL and Article 25(3)(b) and (c) of the Rome Statute, or to the residual mode of liability under Article 25(3)(d) of the Statute. This is because, as the example of Cambridge Analytica shows, social media can be a powerful if not decisive tool for putting such individuals in a position to commit international crimes, such as crimes against humanity, genocide, war crimes and the crime of aggression. It can also shape their political agendas and discourse, and so directly influence the commission of such crimes. However, the accomplice must either act with knowledge of the principal’s intent to commit the crime(s), or share the latter’s intent. In addition, if one adopts a restrictive interpretation of accomplice liability, the lawfulness of the accomplice’s contribution would be a decisive factor. In this regard, there seems to be general agreement that the use of unauthorised personal data is unlawful in most domestic legal systems and under international law (it is at the very least a breach of the human right to privacy). However, it remains open to question whether targeted posts which influence the behaviour of the electorate are unlawful under either body of law. Although it is likely that derogatory posts on social media can amount to an unlawful contribution (as these may constitute defamation, slander or libel in many domestic legal systems), it is unclear what other types of posts can have the same legal qualification.

Regarding other types of assistance, it seems that social media has countless ways of influencing or contributing to the commission of international crimes. In particular, following the footsteps of Nazi war propaganda and RTL’s radio broadcasts in Rwanda, social media can be used to instigate or incite the commission of international crimes by the masses. In addition, data-mining or harvesting can also be used in the planning or preparation of international crimes, especially those targeting predominantly civilian populations, such as crimes against humanity and genocide. If it is proved that such acts substantially contribute to those crimes and that the accomplice acts with the requisite knowledge or intent, then accessorial liability could be engaged under CIL and the Rome Statute, as instigation, aiding and abetting, or the ICC’s residual mode of liability.

Furthermore, aside from accessorial liability for the acts of others, social media operators could be held responsible for their own acts, as principal perpetrators. This could be the case if such acts consist of direct and public incitement to commit genocide, or hate speech as an underlying act of crime against humanity (if made in conjunction with other acts that severely deprive individuals of their human rights). Their acts could also fall under superior responsibility of civilians under CIL or Article 28(b) of the Rome Statute, provided that they have effective control over social media platforms, actual or constructive knowledge of the commission of international crimes by their subordinates, and fail to prevent or punish such crimes.

In conclusion, the use of social media to manipulate elections and to provide other types of assistance to international crimes can potentially give rise to individual criminal responsibility under international law. In addition to the contribution itself, other objective and mental elements must still be proved, but such responsibility cannot be ruled out. Importantly, the ICC still has jurisdiction of over the situation in Kenya, and it may well re-open its investigation and prosecutions on this matter. It also has jurisdiction over similar scenarios taking place on the territory of its states parties and acts committed by nationals of such states, at the very least. In addition, domestic courts also have jurisdiction over similar facts, including under the principle of universality, at least when they amount to crimes against humanity, genocide and war crimes.

Why Al-Kibar Does Not Contribute to Pre-Emptive Self-Defence

by Kevin Jon Heller

Elena Chachko has an interesting post at Lawfare discussing Israel’s recent public acknowledgement of what the international community has long known: that it was responsible for the 2007 attack on the Al-Kibar nuclear reactor in Syria. Although I agree with much of Chachko’s post, I would take issue with what she says about how the failure of states to condemn the attack at the time and to react to Israel’s new acknowledgment of its responsibility might affect the customary status of pre-emptive self-defence:

It would be unwise to jump to the conclusion that the many states that did not protest the Al-Kibar strike instead acquiesced to it, thus indicating their support for a right to exercise preemptive self-defense to eliminate nuclear threats. Still, one could argue that the clandestine and military nature of the Al-Kibar reactor, its proximity to Israel, and the hostility between Israel and Syria rendered Israel’s “last opportunity to stop an existential threat” argument more plausible now than when it invoked it to justify the destruction of Osirak—a distant, declared, reactor built with French assistance. Under this reasoning, the relatively muted international response could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.

In sum, the question of whether international law now recognizes a right to preemptive self-defense against nuclear threats remains highly contested. But the evolution of the international position from “Opera” to “Outside the Box,” even after Israel acknowledged its role in the latter, is telling. Both scholars and politicians will likely take this evolution into account in discerning state practice on this question going forward.

With respect to Chachko, this argument is problematic. As she acknowledges, Israel has still not articulated any legal justification for the Al-Kibar attack, much less claimed that it represented a legal act of pre-emptive self-defence:

It remains true, however, that we do not know what Israel’s legal position actually was. Israel has yet to provide a public legal justification for the Al-Kibar operation under jus ad bellum. The newly released interviews with members of Israel’s leadership at the time, including then-prime minister Ehud Olmert, did not explicitly address the legal aspects of the decision to carry out the strike. The only  I found in the reports about the strike to the role of lawyers in vetting the operation was a brief mention of then-attorney general Meni Mazuz’s involvement in drafting the government decision that authorized the operation.

Because Israel has not provided a legal justification for the attack, the attack cannot help establish the legality of pre-emptive self-defence. As the ICJ made clear in the Nicaragua case, practice unaccompanied by opinio juris does not contribute to modifying customary rules concerning the use of force (para. 207; emphasis mine):

The Court has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance. The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.

For similar reasons, the “relatively muted” response by states to the Al-Kibar attack also cannot help establish the legality of pre-emptive self-defence. It is true that silence in the face of practice can count as acquiescence to a proposed customary rule. But that is only the case when — to quote the ILC’s new Draft Conclusion 3 regarding the formation of custom — “the circumstances called for some reaction.” No reaction is required when a state does not provide a legal justification for its actions. In 2007, Israel did not even acknowledge that it was responsible for the attack. And even now, in 2018, Israel is not claiming that it acted in self-defence. So it would not simply be “unwise” to read too much into the international community’s response to the Al-Kibar attack. It would be legally inappropriate to do so.

I also disagree with Chachko’s claim that silence “could suggest that members of the international community might be willing to entertain preemptive self-defense under such extreme circumstances.” I think it actually suggests the opposite: it is extremely likely that states — particularly those in the Non-Aligned Movement (NAM) — remained silent about the Al-Kibar attack precisely because Israel neither acknowledged that it was responsible for the attack nor claimed that the attack was a legitimate act of pre-emptive self-defence. As Chachko rightly points out — echoing the Spector/Cohen blog post  she links to — there were sound political and strategic reasons for states, particularly in the Middle East, not to get too worked up about the 2007 attack. In the absence of Israel claiming self-defence, NAM’s silence was legally costless. But it is difficult to believe that it would have remained silent in the face of a legal claim that pre-emptive self-defence is lawful. After all, NAM has consistently denounced pre-emptive self-defence as unlawful.

Israel’s acknowledgment that it was responsible for the Al-Kibar attack is politically important. But it has no legal implications whatsoever.

The US’s New Nuclear Posture Review: Blurring the Lines of Anticipatory Self-Defense

by Yulia Ioffe and Olga Bozhenko

[Yulia Ioffe is a DPhil (PhD) candidate and a tutor in Public International Law at University of Oxford and Olga Bozhenko is an LL.M student in International Litigation (Public International Law) at Institute of International Relations Kyiv National Taras Shevchenko University.]

In February 2018, President Trump issued his Nuclear Posture Review (NPR), which was widely anticipated by the international community. It was hoped that this document would soften the US President’s previous aggressive rhetoric (including the threat of ‘total destruction of North Korea’) and bring the US administration’s position within the orbit of international law. It is thus important to understand how the NPR captures the US current stance on the possibility of using nuclear weapons in self-defense where an armed attack has not yet occurred, particularly in light of deteriorating relations between the US and North Korea, as well as Russia’s nuclear weapons modernization efforts. We argue that the NPR is not compliant with international law standards on self-defense.

The NPR: Brief Overview

The NPR is a legislatively-mandated review, produced by the Secretary of Defense, that establishes US nuclear policy, strategy, capabilities, and force posture for the next five to ten years. Apart from being an important policy document for the US domestically, the NPR is also reflective of the most pressing issues of the universal nuclear weapons agenda. From international law perspective, it may amount to evidence of state practice as an act of executive branch (p 22) with regard to the use of force and nuclear weapons, particularly considering that some would call the US a specially affected state (p 312), as a state possessing them.

At the face value, it may seem questionable whether the NPR extends the ‘first use’ strategy right up to anticipatory self-defense. Yet, the range of scenarios potentially triggering such a first use of nuclear weapons by the US is indicative of a foreseeable possibility to use force not only in response but also in anticipation.

In fact, one can hardly imagine a more all-encompassing provision to include the option of anticipatory strike than the one envisaging the ‘employment of nuclear weapons in extreme circumstances to defend the vital interests of the United States, its allies, and partners’ (p 21), as laid down in the NPR. It is only reasonable to read this provision as covering anticipatory self-defense in view of the following clarification that the mentioned ‘extreme circumstances’ could include (i.e. are in no way limited to) significant non-nuclear strategic arms attacks.

The NPR is essentially based upon the strategy of deterrence (which Judge Oda considered ‘legitimized by international law’ in his Dissenting Opinion to the Nuclear Weapons Advisory Opinion (para 45)), presuming nuclear weapons to be used efficiently so long as they are not actually used. Still, the NPR seems to go further than that by extending the aims of retaining nuclear capability to the ‘achievement of the US objectives if deterrence fails’ (p 20) and peculiarly to ‘hedging against prospective and unanticipated risks’ (p 24). The latter includes the intention to ‘reduce potential adversaries’ confidence that they can gain advantage through expansion of nuclear capabilities’ (p 24), and to ‘respond to the possible shocks of a changing threat environment’ (p 14). This could definitely be interpreted as a provision deliberately formulated in the vaguest manner possible to create a leeway with respect to nuclear strike options, considering the context of the NPR adoption.

The current NPR, as well as Obama’s, reserves the right for the US to use nuclear weapons against non-nuclear weapon states, which are not in compliance with their non-proliferation obligations. Still, while the Obama version envisaged biological and chemical weapons development as additional scenarios to trigger nuclear response to non-nuclear threat, Trump’s NPR reserves a much broader room for action by referring to ‘the evolution and proliferation of non-nuclear strategic attack technologies’ (p 21). By including yet another option to respond by nuclear strike to conventional weapons development, the document waters down previous attempts to limit the scenarios giving rise for such an option to the potential nuclear threats only. Furthermore, such options seem to imply that there is no specific case of anticipatory self-defense against weapons of mass destruction (WMD), assimilating it within the ‘regular’ self-defense framework, where the type of weapons does not actually matter.

Assuming that we accept that international law permits anticipatory action in self-defense, it is a prevailing view (p 663) that such action is only lawful when an armed attack is imminent and the response is necessary and proportionate.

Imminence

The concept of ‘extreme circumstances’ used in the NPR can be assumed to serve a bridge to the well-known Caroline formula, which is still a yardstick for measuring the legality of anticipatory self-defense. It is argued (p 11) that the standard of a threat being ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’ is too rigorous to apply for a state faced with a nuclear-related threat, particularly, the one emanating from a rogue actor. By applying such a standard, a state can end up with missing the last opportunity to avert the damage. However, when one takes into account the mode of response, which is the use of nuclear weapons, the threshold set by the Caroline formula seems justified, requiring, at the very least, to establish an undisputable need to defend state’s ‘vital interests’.

In this context, the very use of the concept of ‘vital interests’ should be viewed as problematic, having regard to the standard of ‘the very survival of a state’, which the ICJ considered as possibly justifying self-defense by means of nuclear weapons (Nuclear Weapons Advisory Opinion, para 97). It was only Judge Guillaume (para 8), who extended this standard by claiming that no legal system could deprive a state from the possibility to defend its ‘vital interests’(discussed here p 314), yet further as well referring to the ‘ultimate means’ to ‘guarantee survival’. Hence, as compared to the ICJ’s position, the NPR uses an arguably lower standard of ‘vital interests’ and, at the same time, does not limit it to the situation of an actual armed conflict.

Necessity

The standard of necessity of self-defense sets a high threshold, prescribing that there must be no practical alternative to the proposed use of force that is likely to be effective in ending or averting the attack. This was confirmed, although implicitly, by the ICJ in the Oil Platforms case (para 76).

Understandably, the standard is considerably higher in respect of nuclear weapons, requiring the situation to be of the last resort kind, i.e. warranting the whole range of defensive options to be on the table. To this end, the NPR mentions that the US will attempt to stick to the strategy of the minimum destruction possible, since ‘U.S. nuclear policy for decades has consistently included this objective of limiting damage if deterrence fails’ (p 23).

Yet, even this strategy will not meet the necessity requirement, unless the US is able to establish the anticipatory nuclear strike as the only option available with no room for peaceful measures, or, at least, for conventional attack, including for the purposes of defending its vital interests or those of its allies and partners.

Proportionality

If it is the scale of anticipated attack and that of preventive action which must be comparable to satisfy the proportionality requirement, one can hardly imagine a conventional armed attack, however imminent, which is comparable to a nuclear strike. According to another interpretation of proportionality, supported by Judge Higgins in her Dissenting Opinion to the Nuclear Weapons Advisory Opinion (para 5), which adopts a ‘means-end proportionality’ approach with the focus on restoring state’s defensive capacity, it is possible for a nuclear strike to be lawful, even if not commensurate to anticipated attack. To this end, the NPR implicitly assumes that a limited nuclear strike could be less destructive than a large scale conventional response. The employment of tactical nuclear weapons, which allow for the precise targeting, could be justified as a measure to halt the imminent attack, which, if occurring, would require much more destructive a response.

It leaves us though with the last, often overlooked, aspect of proportionality, which relates to the extent anticipatory action remains lawful, even if it was such at the beginning (similar situation was discussed here concerning the proportionality standard for the ‘total destruction of North Korea’ as mentioned by President Trump). Perhaps it is safe to assert that any anticipatory military action, including nuclear strike, is lawful only as long as it remains defensive in nature and ceases as soon as the threat in question is eliminated. Undoubtedly, this can hardly mean that the elimination of a state is at issue. Otherwise, it is rather the case of promoting offensive strategy, but not of restoring defensive capacity.

Sources of Anticipated Attack

The NPR defines a broad range of the potential sources of the anticipated attack, with the states being the main suspects. The NPR directs special attention to North Korea and Iran calling them a ‘clear and grave threat’ (p 32) and a ‘serious concern’ (p 71) respectively, Russia which would face ‘unacceptably dire costs’ (p 30) in case of aggression, and China which challenges ‘traditional US military superiority in the Western Pacific’ (p 1). Additionally, the US continues to insist on its controversial legal position to justify self-defense, including in the context of nuclear weapons, in response to efforts by non-state actors. The NPR clearly states that a terrorist nuclear attack against the US or its allies and partners would qualify as an ‘extreme circumstance’ and any state that supports or enables terrorist efforts will experience the ‘ultimate form of retaliation’ (p 68). Thus, the NPR implicitly confirms the US’s longstanding ‘unwilling or unable’ doctrine, allowing to respond with the nuclear strike against a terrorist attack even where there is no ‘host state’ involvement. In fact, the legal evaluation of attacks by non-state actors as constituting an armed attack (let alone an anticipated attack) in the context of self-defense is still controversial (paras 14–21, 23). We are also not convinced that international law as it stands supports the ‘unwilling or unable test’ in relation to self-defense actions taken against non-state actors (discussed here and here), especially in the context of nuclear weapons.

Criticism

Beyond the criticism domestically (see here and here), the NPR has attracted serious criticism from a number of states. The German government condemned ‘a spiral of a new nuclear arms race’ introduced by the NPR. The Chinese government criticized the NPR for its ‘Cold War mentality’. Russia’s Ministry of Foreign Affairs sharply criticized the NPR (see here in Russian), in particular, for lowering the threshold of the use of nuclear weapons and allowing the use of nuclear weapons in ‘extreme circumstances’, which are not limited to military scenarios and with military scenarios covering almost any use of military force. President Putin’s recent display of the new Russian nuclear weapons could also have been a reaction to the NPR. Both Russia and China emphasized that the NPR contrasts sharply with their own nuclear posture, in which they adhere to the policy of no-first-use of nuclear weapons, non-use of nuclear weapons against non-nuclear-weapon states, and where nuclear weapons are considered a strictly defensive deterrent.

Conclusion

The NPR, as it currently stands, is hardly in compliance with international law, since it includes a number of remote strategic inconveniences threatening the US interests (arising not only from states but also non-state actors) as triggers for the first use of nuclear weapons, effectively lowering the threshold for the use of nuclear weapons. Such use would also most likely be incompatible with the necessity and proportionality requirements.