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Eugene Kontorovich

Symposium on Occupation Law: The Necessary Non-Normativity and Temporal Indeterminacy of Occupation Law

by Eugene Kontorovich

[Eugene Kontorovich is a Professor at Northwestern University Pritzker School of Law. This post is part of an ongoing symposium on Professor Aeyal Gross’s book The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017).]

Prof. Gross’s excellent book The Writing on the Wall: Rethinking the International Law of Occupation presents a normative synthesis of international humanitarian and international human rights law design to provide an occupation law regime acutely focused on protected persons and the ensuring that the temporariness of the occupation. Gross’s honest embrace of a normative regime allows him to be quite acute in his analysis of practice and case law that does not support his vision. Thus the book includes incisive analyses of international court decisions regarding northern Cyprus and Nagorno-Karabakh, and a valuable discussion about the applicability of occupation law to Western Sahara and East Timor. He points out many interesting incoherencies and tensions in occupation law in these contexts. His account of the legal treatment of these various situations, and his very detailed discussion of the case law of the Israeli High Court, are invaluable for any student of international humanitarian law.

First, it is worth pointing out a basic challenge of any normative account of IHL.

The non-normativity of what he calls the “factual” approach to the law of occupation is deeply embedded in the essential non-normativity of international humanitarian law itself. IHL treats aggressors and victims the same. There are strong reasons for that non-normativity. Among them, IHL is primarily treaty-based, and requires initial state consent for its rules. States have highly diverse normative commitments. One can, of course, have a state sign up for one thing only to learn it has signed up for another, but such moves, while they may be immediately gratifying, will not encourage states to support any further development of IHL.

A central part of IHL’s neutrality is its prospectivity. IHL norms are agreed on in advance of conflicts to which they apply. This prospectivity is why in the Fourth Geneva Convention, Art. 6 exempts occupying powers from certain restrictions in prolonged occupations. When the conventions were adopted, the Allied Powers were engaged in preexisting occupations of Germany and Japan. In the drafting of the conventions, the U.S. expressed concern that the new norms would apply to its existing occupations. Art. 6 was in part a concession to this concern.

Gross sees Art. 6 in its traditional interpretation as “incongruent with the purpose and practice of the normative regime of occupation.” This may be true, but it is fully consistent with the intent of the Drafting Conference and their understanding of the functions of occupation law, which did not apparently include making long-term occupation more difficult. Indeed, assuming the Fourth Convention represents some step towards Gross’s normative vision compared to prior law, Art. 6 shows the difficulty of shoehorning existing situations into old norms.

This leads to a difficulty. Gross’s normative vision of occupation law is a response to certain situations, which in his view the “factual” approach occupation law has not dealt with satisfactorily. Most prominent among these is the Israeli-Palestinian conflict. But a normative reinterpretation of existing law cannot expect buy-in from existing participants, as it is clear from the outset who it benefits. To put it differently, what does the normative vision offer currently affected states?

This problem is exacerbated by the great “enforcement gap” in the international law of occupation. One of the great virtues of Gross’s book is that while it focuses on the Israeli-Palestinian case, it does not give short shrift to historic or ongoing occupations, including some that have received almost no academic attention, such as East Timor and Nagorno-Karabakh.

Yet the enforcement of occupation law by the international community almost entirely exempts these situations. For example, the U.N. General Assembly has reminded Israel in critical resolution of the country’s obligations under the Geneva Conventions about 500 times since 1967—as opposed to twice for the other prolonged occupation situations. Even in recent weeks, reports of a new Armenian settlement being built in Karabakh, and massive Russian settlement activity in Crimea – which challenge both a formalist and certainly the normative regime of occupation law – have gone entirely unremarked by the international community.

This suggests a few things. First, before building a normative regime of occupation, it may make sense to actually bolster the existing formal one. Second, the practical outcome of a normative regime is known in advance. It will not likely have any more effect on existing occupations than the formal one, with the possible exception of Israel. From Gross’s normative approach, this may be better than nothing, but from a positivist approach, it is hard to see why Israel or its allies would endorse such a development, and indeed it might weaken their commitment to the basic black-letter Geneva Convention regime.

Gross’s normative model is based on ensuring that occupations remain temporary, and do not become a shell for conquest. He argues that occupation law should be much more informed in its particulars by the systemic principles of international law – self-determination and the prohibition on conquest in particular.

One normative criterion is the occupation law according to Gross that ensures the self-determination of people in the occupied territory. But this seems a large leap from existing practice. International humanitarian law is based on the sovereignty of states, not peoples. Thus Libya returned the Azou strip to Hassan Habre’s Chad, not to its population. Israel has long been asked to turn the Golan Heights over to Assad’s Alawite regime, not to the Druze people (though these demands have become more muted lately, they have not been withdrawn). Iraq returned Kuwait not to the Kuwaiti people but to its monarch. Indeed, the self-determination principle will often contradict the preservation of the status quo principle. In his central example of the Palestinian situation, the creation of a new Palestinian state would be a departure from the pre-war status quo.

Gross correctly notes that the applicability of the law of occupation cannot be defeated by the occupier merely claiming sovereign title. Occupations routinely (but not inevitably) take place in the context of territorial disputes. On the other hand, the occupation cannot be entirely insensitive to considerations of underlying sovereignty. A country retaking its territory in a conflict can hardly be deemed an occupier.

Gross suggests that prolonged prior control by another power, even one lacking sovereignty, is enough to trigger the applicability of occupation law if that territory is retaken. But this can conflict with his normative goal of not giving any lasting weight to the reality created by an occupation. In the context of the Israel-Palestine conflict, it would mean the very borders of a brand-new state were created by the Egyptian/Jordanian occupation that lasted until 1967.

Or consider the following example. Imagine a newly created country occupying the territory of its newly created neighbor in a war that breaks out upon their mutual creation. An imperfect armistice holds for twenty years, after which the state that lost territory in the original conflict manages to retake some of it in a new one – albeit territory over which it had never previously exercised control, and from which all of its nationals had been expelled. Would the new state be considered an occupier?

It is not a hypothetical question, but rather reflects what happened when Azerbaijan managed to retake some previously Armenian-held territory in Karabakh. As far as I know, this has not been treated as an occupation by anyone.

Thus normative criteria such as self-determination cannot avoid the questions of territorial sovereignty. Self-determination does not answer the question of the geographical unit in which it is exercised. Armenians, for example, do not principally have a preexisting sovereignty claim to Nagorno-Karabakh. Rather, they see Armenian control as an exercise of the self-determination of the Karabakh population. Similarly, Russia justifies its occupation not on prior title but on the self-determination of the Crimean population. International law rejects this argument, and regards Armenian control as an occupation, because the standard lines in which self-determination is exercised is the preexisting administrative borders, in which case Azerbaijan, not Karabakh, is the relevant unit.

Another of Gross’s normative goals, in accord with most of the literature, is the vital need for preserving the prior status quo. Gross faults existing occupation law for sometimes being inadequate to that aim. But this is in part, as he recognizes, because the Geneva Convention may not have contemplated decades-long occupations. (This omission may have arisen in part because the norms against conquest were not as clearly defined in 1949 as he would suggest, as witnessed by the vast reapportionment of territories by the Allied Powers after the war, Yugoslavia’s absorption of the sector of the Free State of Trieste that was under its control, and similar examples.)

Certainly some prolonged occupations are the result of colonialist or annexationist aims. But this is not inevitably the case. The Allied occupation of West Berlin lasted forty-five years, and had the then-dominant views about the duration of the Soviet empire been correct, it could have lasted forever. This was not an occupation of choice but of expedience. Similarly, with Israel’s capture of the West Bank, the situation was even more contingent. Jordan only entered the Six Day War half-way through, and the West Bank was entirely outside of Israel’s original war aims.

Israel retained the territory because immediate attempts at a settlement with the Arab states were rejected, as were numerous internationally-backed good-faith offers of statehood to the Palestinians after the end of the Cold War. Indeed, it is these repeated and rejected offers of statehood that prominently distinguish Israel’s situation from any of the others discussed in the book.

This leads us back to the question of temporariness. Maintaining a status quo over many decades is an impossible task, as nothing in the world stands still. Demographics and migrant flows, as Europe’s recent experience has shown, is one of those things. No one can stop the clock at 1967. Of course, Gross’s position is more nuanced, as it would forbid only changes that benefit the occupier. But this itself is a monumental task, as it effectively burdens the occupier.

Limiting one’s trade and movement with an adjacent territory is a high cost. That which burdens the occupier reduces the other side’s incentives to accept an amicable deal. And indeed, one reason the Geneva Convention may not have anticipated prolonged occupations is that its drafters did not conceive of situations where occupation would not promptly lead to annexation, or a peace deal on terms acceptable to both parties.

Thus an alternative normative occupation regime might, for example, terminate all restrictions on the occupier upon the failure of the other side to accept a good faith diplomatic arrangement that would leave them better off than they were before.

Guest Post: Iran’s Relief Ship and the Blockade of Yemen 

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern University School of Law.]

Iran has announced that it will be sending a ship with humanitarian supplies to Yemen, departing the evening of May 10th. Many parts of the Yemeni conflict raise law of war questions, from the legality of the pan-Arab intervention to questions about the use of force and civilian casualties. The Iranian relief ship puts into focus the blockade maintained by Saudi Arabia and its allies, with logistical and intelligence support from the United States.

Saudi Arabia imposed a blockade of Yemen’s ports from the start of the campaign. Since then, the humanitarian situation has become dire, according to many reports, with significant shortages of medicine, food and water.  (Saudi Arabia also bombed the Sanaa airport to prevent Iranian relief planes from landing.) According to Oxfam, “there is no exit” for Yemen’s 10 million people, half of whom are already going hungry.

Blockade is an entirely valid military tactic, which necessarily puts pressure on the civilian economy and well-being. However, there is a theory, which in recent years has attracted considerable support, that international law prohibits blockades in a non-international armed conflict (NIAC). This limitation on blockade has been discussed almost exclusively in connection with Israel’s blockade of Gaza. Assuming that the Yemeni conflict is a NIAC, as most observers seem to view it (a civil war with foreign assistance to both sides), the Saudi blockade raises the same questions as the Gaza blockade, as Tehran has gleefully noted.

To be sure, considerable authority concludes that blockade is entirely permitted in NIACs. The Saudi blockade gives a good occasion to revisit the debate, which has thus far proceeded with an incomplete account of state practice.

Israel’s blockade of Gaza appears to be the first one where said to be illegal because of the nature of the conflict. In the Gaza context, the illegality argument was based largely on what was said to be scanty affirmative precedent for such actions in such contexts, though a lack of precedents does not normally create a prohibition in international law.

Though it was not mentioned in the extensive discussions of Israel’s Gaza policy, there is not only historical precedent, but also contemporary practice supporting NIAC blockades. In particular, Georgia’s blockade of the separatist Abkhazia region, which has been in effect since 2008. The details of the blockade are murky, in part because it has generated not only no international protest, but also no international interest. It is clear that the blockade has been used to interdict neutral vessels carrying non-military supplies. Indeed, the blockade is so well accepted, that the commentators on the legality of the Gaza blockade appear to have been entirely unaware of it.

Then there is Sri Lanka’s blockade of Tamil-held areas during their decades-long civil war. Douglas Guilfoyle, the author of one of the major analyses of the legality of the Gaza blockade, dismissed the relevance of the Sri Lankan precedent:

Most reported maritime interceptions appear to have occurred with Sri Lanka’s territorial sea or contiguous zone, ostensibly on suspicion the vessels were engaged in smuggling weapons or supplies… The practice certainly involved no assertion of rights against neutral vessels on the high seas.

Unfortunately, this account appears to be mistaken on all major points. The blockade certainly applied to neutral ships carrying food and relief supplies, even under Red Cross emblem. Indeed, the blockade resulted in major shortages of basic necessities. The seizure Guilfoyle points to as being within the contiguous zone was, according to all other news accounts, well outside it (and was in any case after the cessation of hostilities and defeat of the Tamils). Nonetheless, the international community does not appear to even have questioned the legality of this blockade.

In another precedent that has not factored into the NIAC-blockade discussion, Indonesia imposed a naval blockade on East Timor when it invaded the territory in 1975, according to accounts of the conflict. Despite fairly strong international condemnation of the invasion itself, I have not found specific criticism of the legality of the blockade.

Incidentally, in 1992, a  “peace ship” carrying activists, Western politicians, and a slew of journalists was turned back by the Indonesian navy after attempting to symbolically challenge that blockade. In that incident, the ship turned back of its own accord after Indonesian threats to open fire; despite the strong international focus on the incident at the time, no one suggested the illegality of such actions in a NIAC.

There may be other recent state practice that has gone unnoticed as well. The episodes discussed here generated relatively little legal controversy – ironically, permissive precedent is most likely to go unnoticed. (The discussion’s of Israel’s blockade dwelt mostly on the United States blockade of Confederate ports in the Civil War and the France’s blockade of Algeria, rather than more current ones, no doubt because they attracted more attention, and better sourced in English and French publications than the Indonesian, Georgian and Sri Lankan measures.)

The blockades discussed here, including the Saudi one, all appear to proceed without all of the formality of the a traditional international armed conflict blockade; for example, it is not clear that there were formal declarations, and the blockaded enemy does not seem to have been always been recognized as a belligerent. This suggests state practice supports a less legally restrictive blockade regime for NIACs.

Thus if Riyadh and its allies are inclined to maintain the blockade, and intercept the Iranian relief ship, it has a strong legal basis. Of course, the Saudi blockade itself becomes part of the state practice on this issue, and on other blockade issues such as proportionality.  One may have thought that, prior state practice to the contrary, Gaza suggested an interest by some states in changing the rules about blockade in NIACs. The Yemen blockade, in force since late March, has not been denounced as illegal, suggesting that no new rule is taking shape.

In regards to the conduct of the blockade, it is interesting to note that Human Rights Watch today criticized the coalitions conduct of the blockade, in particular urging for allowing in fuel. The report, which is well worth reading for more detail on the naval blockade, paints an absolutely catastrophic picture of the situation in Yemen, with much of the population facing death by hunger, water shortage and associated diseases.

Interestingly, HRW does not challenge the legality of the blockade, or its apparently very narrow list of “free goods” (those permitted to pass the blockade after being subject to inspection). In particular, HRW does not call for the US or the UN to condemn the operation, as it has for other blockades. While HRW interestingly reports that the Saudi’s contraband list is not public (generally a legal problem for blockade), it also does not protest what appear to be its fairly comprehensive scope.

Guest Post: More on Morsi’s Shadow on Palestine’s ICC Efforts

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

Rumors and speculation about a Palestinian ICC bid continue to abound. However, news accounts about the process behind the PA’s consideration of the issue underline the point I made in a prior post that based on the Morsi precedent, Abbas could not accept the Court’s jurisdiction. I will elaborate on that here, and address some comments about my argument (partly concurred in by Kevin) about the relevance of the Morsi matter to a Palestinian referral.

In a meeting last week Abbas sought “written consent to join the ICC” from other Palestinian factions. According to another account Abbas has a draft acceptance letter, and is “waiting for signature from Hamas and Islamic Jihad.” If the PA needs the written consent – not just a political nod- from the Gaza–based factions, it strongly supports the view that the PA government does not have full power to accept jurisdiction on behalf of Palestine, especially for Gaza.

Some might say that if the government is divided and both possible claimants to full powers agree, then any defect is cured (this may be why Abbas wants written authorization).  The argument does not work: the sum of governmental authority is greater than its parts. To accept ICC jurisdiction, especially after the Morsi matter, it must be clear which particular government is in control, and it must be that government that accepts jurisdiction.

The reason to require government control over a state for ICC jurisdiction is it is that government that will be responsible for enforcing the treaty. A joint signature raises myriad intractable problems. Who will ultimately be carrying out the obligations of the treaty? Abbas would presumably not mind signing over authority over Israeli crimes, but then not cooperate with the court in investigating Hamas crimes, saying he has no control there.

If all factions give written consent to join, who has authority to terminate membership?


Guest Post: Effective Control and Accepting ICC Jurisdiction

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

New reports say the Palestinian leadership has decided to seek to join the International Criminal Court as a member state. The PA has been threatening such action fairly constantly for several years, and it remains to be seen whether they mean it this time.

A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians’, the Court rejected an attempted accession.

Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a “state” under international law. A main motive for the last year’s General Assembly’s vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, “political” action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory.

Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state – ignoring objective tests – it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza. (more…)

Guest Post: Kontorovich on Missing Judges as a Design Choice

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

What should an international court do when the judges hearing a case are not around to decide it, as has happened on the ICTY in the Seselj case that Kevin has written about?

The death or serious illness of an international judge during the pendency of a case is an entirely foreseeable matter. International criminal trials are quite long (an average of three years from the start of trial to judgement). At the ICTY, the length can be as long as nine years. The average age of judges on the Court is 62 at appointment. See the Realities of International Criminal Justice for these and other figures.

Given that proceedings are long and judges old, an empty seat on the bench should, from an institutional perspective, not be a surprise. The best way to deal with this, if one is concerned about the issue, is the designation of alternate judges. This happened at Nuremberg, and is provide for in Art 74(1) of the Rome Statute, and in the Special Courts for Sierra Leone and Lebanon, where they shall be present at each stage of the trial or appeal to which he or she has been designated.”

So the lack of a provision for such supernumeraries is a design choice or error. Certainly alternates burden an already expensive system. On the other hand, alternates are a known form of “insurance” for the continuance and integrity of international criminal trials.

So the question is who should bear the risk if the Tribunal does not “purchase” such insurance and the feared contingency occurs – the defendant or the Court (and perhaps justice). The general principle of strict construction in favor of the defendant in criminal matters would suggest imposing the costs on the Court, and yes, on international justice, which is more risk-averse (diversified across multiple cases).

Most fundamentally, because it is the officers of the Court that can best avoid such problems (by expediting proceedings) the consequences should fall on them. Of course, one does not wish to encourage hurried proceedings. So if the cost of such errors is seen as unacceptably high, alternates should be provided for in the future, or the rules requiring judicial presence relaxed.

Guest Post: Landmark French Ruling on West Bank Construction and International Law

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law and blogs at the Volokh Conspiracy, where this contribution is cross-posted.]

In an important but largely ignored case, a French Court of Appeals in Versailles ruled last month that construction of a light rail system in the Israeli-controlled West Bank by a French company does not violate international law. In doing so, the court sided with many of the arguments long made against the blanket application of the relevant provisions of the Geneva Conventions to Israeli settlements. National courts rarely if ever address such issues, and thus the decision is important both for its rarity and for what it says.

In this post, I’ll address issues relevant to the substance – Israel’s presence in the West Bank. In the next post I’ll deal with the “Kiobel” issues raised by the case – corporate liability, the value of American ATS cases, and so forth. I should note at the outset that what follows is based on a rough translation of the opinion and my vague French; I would be grateful for corrections on matters of language that I have misapprehended. I venture forward because it is an important decision that deserves attention, yet has been met by complete silence by international legal scholars.

The Jerusalem Light Rail, which began running last year after a long period of construction, links the Western part of the city with the parts occupied by Jordan prior to and annexed by Israel after the 1967 War. The project was widely criticized by pro-Palestinian groups, as was the participation of French rail companies in the project. Along with a variety of political pressure and boycott activities, a Palestinian group sued the French-based multinational conglomerate Alstom Transport for its role in in the project. The case was dismissed below in 2011, and the Court of Appeals upheld the decision last week.

Crucially, the Court held that only the Government of Israel, and not private parties, can violate the relevant provisions of the Geneva Conventions.  The arguments that Israeli communities in the West Bank violate international law start with Art. 49(6) of the Fourth Geneva Convention, which provides that “The Occupying Power shall not deport or transfer its civilian population into the territory it occupies.” The provision was also relied on heavily in the lawsuit. The Court ruled that 49(6) only speaks to and applies to action by the Israeli government (“the Occupying power”), and does not regulate Alton’s activities in the occupied territory.

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

This conventional reading of 49(6) as generally banning Jewish settlements is disconnected from the text, which only speaks of “transfers” carried out by the Government. Some scholars, including myself, have long maintained that private movement of persons is in no way covered by 49(6), and the Court apparently adopts this position (though I am unclear how much of a role domestic legal principles played). Now one might say the government is always “involved” – roads, security, zoning, etc., but ubiquitous “background” roles do not trigger the state action doctrine in U.S. constitutional law, and it is not clear why they would under international law. (On the other hand, if one gets a package bus/light rail ticket, it would be an unusual literal case of “transfer” into occupied territory.)

Indeed, the French case would be a strong one for inferring governmental role, since the defendant worked under contract with Israeli governmental entities. My understanding of the Court’s opinion is a little fuzzy here, but it seems they say contractual privity is not enough to trigger 49(6) either. This would certainly make it inapplicable to the vast majority of Israeli settlers (not all, necessarily, since 49(6) is ultimately a case-by-by-case factual question.

The Court goes on the reject the notion that the relevant norms have become customary or jus cogens and apply without the particular textual restrictions of 49(6).

Israel’s critics often  claim that “everyone agrees” that international law bans all “settlement activity” as it is broadly called, and that only Israeli apologists could believe the arguments to the contrary. (In the Human Rights Council’s recent report on Israel’s settlements, light rail is itself called a settlement.) I assume the Versailles Court of Appeals won’t be accused of being unduly sympathetic to the Jewish State.

Indeed, many might share my surprise on such a decision coming from a European court, especially given the supposed uniformity of views on the underlying legal issues. Perhaps two factors may explain the surprising decision: this is not an international court, but an ordinary municipal one, and it was an important French industrial concern, rather than Israel, in the dock. International lawyers may what could positively be described as professional or scientific knowledge of the matter, or more cynically as guild orthodoxy. Judges unversed in these verities might see things differently. And of course, here international law is being used against important and powerful domestic interests.

The plaintiffs could still appeal to the Cour de Cassation, which however is not obligated to hear the appeal.

Whose Alleged Settlement is Bigger?

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern Law. This post is cross-posted at The Volokh Conspiracy]

In response to my post about Turkey’s settlements, Kevin Jon Heller argues that from the perspective of International Criminal Court liability for “indirectly… deporting or transferring” its nationals into occupied territory, Israel would be more vulnerable than Turkey.

Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — [before Cyprus’s ICC membership went into effect] and that the number of immigrants in the past decade has been relatively small, likely in the thousands. Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

[Prof. Heller seems to assume, as he has argued before, that ICC jurisdiction over Palestine could be retroactive to 2002, if it files an Art. 12(3) declaration. I think that position has real textual basis, but is not in my view the best reading of the text as a structural or policy matter. Let’s set this aside – just as we set aside big questions about territorial jurisdiction – and, since we’re talking about my original post, stick with my assumption of purely prospective jurisdiction.]

Now to the issues Prof. Heller raises. In fact, Turkey’s settlements are a far graver violation of the anti-transfer norm and its purposes.

1) How does one measure the gravity of civilian “transfer”? Typical war crimes are measured in the number of bodies — but that is because the purpose of the provisions is to protect lives. But this doesn’t seem the right way to measure “deportation or transfer.” It must be measured in light of its purposes – colonization, etc. Otherwise, if 1000 people are transferred into a territory of 500, it would be considered de minimis, whereas if 1 million were transferred into a territory of 100 million, it would be a big deal.

Turkish settlers constitute an absolute majority in N. Cyprus (and by many accounts the prior Turkish population is not so happy about the new arrivals). By contrast, Israeli civilians in the West Bank (not including Gaza) are under 20% of the total population, if you include E. Jerusalem (and follow Palestinian population figures). Throw in Gaza, and the percentage drops considerably.

Lets look at it another way. The total population of the island is 1.1 million. Turkish settlers in N.Cyprus constitute over 13% of the population of the island. In the unlikely event of reunification, the Greeks see this as a bitter pill. Population statistics for the Palestinians are also greatly in the dispute, but if one estimates the total population between the river and sea at 11 million, the Jews across the Green Line would be about 5% of the total. Given that Israel has had more time to cement its hold, and it doesn’t have far go to to “transfer” settlers, one might conclude it was not trying particularly hard, or that the Turks are just better at it.

2) In the same vein, In N. Cyprus, the influx of settlers has been accompanied by the collapse of the local population, ie had net emigration. That exacerbates the demographic effect, and is course part of the classic “move in, kick out” model where 49(6) violations were helped effectuate de facto 49(1) breaches. In West Bank, by contrast, population has grown rapidly. Similarly, the ICRC commentary mentions economic effects as one of the policies behind 49(6), and the WB has done in the past decade whereas N.Cyprus has stagnated.

3) That leaves the question of when the Turkish “transfer” happened, which is a real and important point Prof. Heller raises. The real is answer is we do not know for sure. Yes, the big surge was in the years after the invasion. But all these numbers are very disputed and we do not have the benefit of human rights groups like Peace Now or Foundation for Peace in the Middle East that have gone out of their way to track Turkish settlers with the precision of their Israeli counterparts.

However, in June 2003, the Parliamentary Assembly of the Council of Europe issued a recommendation that stated, in part:

“It is a well-established fact that the demographic structure of the island has been continuously modified since its de facto partition in 1974, as a result of the deliberate policies of the Turkish Cypriot administration and Turkey. Despite the lack of consensus on the exact figures, all parties concerned admit that Turkish nationals have since been systematically arriving in the northern part of the island.”

Based on the European Parliament’s estimates of the settler population a decade ago (115K) and conservative estimates today (150K), one can conservatively estimate an increase equivalent 16% of the territory’s population a decade ago.

More anecdotally, a quick Google search reveals news accounts that suggest non-trivial mainland influx in the past decade, and more importantly, it appears this period saw the significant out-flow of the previous locals.

Moreover, some portion of both populations are the children born to those who have allegedly been “transferred.” Israel has a higher fertility rate than N.Cyprus as a whole, and the Jewish civilian population across the Green Line is higher than the Israeli average. So more of the contested Israeli population was delivered, rather than transferred, than their Turkish counterparts. That is why “natural growth” allowance proposals for Israeli settlements were once more in vogue, and now not so much.

4) The bigger picture concerns the unit of analysis. The number of people on the island of Cyprus has changed drastically as a result of Turkey’s settlement program. The number of people between the river and the sea has not changed a whit. Thus, ultimately the effects cannot be measured independently of the proposed political solution. In the case of Cyprus, the international community favors a one-state solution, which makes the sending of external migrants relevant. If the dominant paradigm would be partition, no one would care how many Turks Ankara squeezed into their corner of the island.

Since the dominant paradigm for Israel involves a border demarcation that puts the vast majority of Israelis inside Israel, and kicks the rest out, the demographic implications are entirely unlike Turkey’s settlement program. And if the dominant paradigm were one-state – all the more so, the number of Jews between the river and sea has not increased at all, unlike the number of Turks on the island.

5) As for Kevin’s point that Israel has taken greater steps to facilitate transfer – well, that gets into the merits, which I wish to avoid at this point. I’ve assumed for the sake of argument that “transfer” has occurred on both sides. That is a highly fact specific question, and I am pretty sure I would not characterize some of the Turkish and Jewish migrants as “transferred.” I will observe that the WB is on the other side of an imaginary line, while N.Cyprus is on the other side of a body of water. The latter takes more getting to.

Kiobel (IV): Precedent-setting Dutch Civil Universal Jurisdiction Case

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDS. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in the Netherlands? What if the Netherlands is actually physically closer to the conduct (as in Kiobel)? Isn’t the Netherlands where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

Kiobel (III): Universality as a Constitutional Question

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.” (more…)

Kiobel (II): Universality, Not Mere Extraterritoriality

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him-hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.

Kiobel (I): ATS Arguments Make for Strange Bedfellows

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern School of Law]

Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

These posts cross-posted on Volokh Conspiracy, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there are some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever universal jurisdiction power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The following two posts will draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles here.

signing out

by Eugene Kontorovich

It has been a fascinating two weeks blogging here, and I certainly learned a lot. Some outstanding questions I haven’t answered, but unfortunately tomorrow I must turn from these duties to more tedious legal tasks — jury duty. Thank you  the OpinioJurists for having me.