Author Archive for
Kevin Jon Heller

Research Bleg!

by Kevin Jon Heller

Does anyone out there in OJ-land know of a good book about the re-establishment of diplomatic relations? Ideally it would focus on the US (such as with Vietnam in 1995), but one discussing any country will do. I’m particularly interested in a book that describes the nuts and bolts of re-engagement: how the decision was made, how they selected the location of the new embassy, what the Ambassador and his staff did when they first arrived in-country, etc.

Any suggestions would be most appreciated…

Israel’s “Defenders” Show Their True Colors Regarding Academic Freedom

by Kevin Jon Heller

From April 17-19, the University of Southampton is scheduled to host a conference entitled “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism.” As the title indicates, the conference was always going to be controversial. (Full disclosure: I was originally scheduled to present at the conference, but pulled out a couple of weeks ago because I simply didn’t have time to prepare anything.) Indeed, the conference webpage contains the following statement by the organisers:

The conference “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism” at the University of Southampton on April 17-19th will engage controversial questions concerning the manner of Israel’s foundation and its nature, including ongoing forced displacements of Palestinians and associated injustices. The conference will examine how international law could be deployed, expanded, even re-imagined, in order to achieve regional peace and reconciliation based on justice.  The conference is intended to broaden debates and legal arguments concerning historic Palestine and the nature, role, and potentialities of international law itself.

Participants will be a part of a multidisciplinary debate reflecting diverse perspectives, and thus genuine disagreements, on the central themes of the conference. Diligent efforts, including face-to-face meetings with leading intellectuals in Israel, were made to ensure the widest range of opinions possible. Those who chose to abstain, however, cannot derail the legitimate, if challenging, academic discussion the conference will inspire.

The conference organizers are grateful to the University of Southampton for ensuring academic freedom within the law and for taking steps to secure freedom of speech within the law. The conference organizers accept that the granting of permission for this event does not imply support or endorsement by the University of any of the opinions to be expressed at the conference.

The final paragraph is more than a little ironic — because earlier today the University of Southampton caved to pressure from self-appointed right-wing “defenders” of Israel and withdrew its permission for the conference. To be sure, the University did not have the integrity to admit the real reason why it was withdrawing permission. Instead, it fell back on that time-worn excuse, “security.” (Read: Israel’s right-wing “defenders” promised to disrupt the conference if the University didn’t cancel it.) The organizers’ statement in response makes clear just how pathetic that excuse really is:

A number of risks have been identified by the police but it is very clear from the Police’s report that they are more than capable of policing the conference and ensuring the safety of university staff, speakers, delegates, students and property. However, instead of accepting this at face value the University decided to focus on the risks identified by the Police and ignore their statement about their ability to police the event – we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to that extent it should be able to resort to police assistance in order to curb security risks to enable it to fulfil its legal obligation to uphold freedom of speech. If this is not done, if commitment to safety is not undertaken by the police, freedom of speech becomes an idle worthless notion. At no point were we given an indication that the University has indeed allowed itself the time to seek viable police assistance to supplement its own resources. Additionally, and unconvincingly, the University claims that it is now too late to put proper security arrangements in place. We do not accept that in any way as there are still 18 days left before the conference.

It will be a great shame if the conference does not go ahead as planned, whether at Southampton or at another venue. But the University’s decision does have a silver lining: it makes clear the contempt that Israel’s right-wing “defenders” have for academic freedom. They love to invoke academic freedom in the context of academic BDS, where the freedom in question is that of Israeli academics. (Regular readers know that I oppose academic BDS, and I voted against it recently at SOAS.) But when academic freedom means permitting criticism of Israel — well, then censorship is just fine. Consider the following…

Symposium on Palestine and the ICC at Justice in Conflict

by Kevin Jon Heller

Just in time for the activation of Palestine’s membership in the ICC, over the next few days Mark Kersten’s blog, Justice in Conflict, will be featuring posts by all of the people who participated in last week’s roundtable at the LSE — Mark, me, Kirsten Ainley, Dov Jacobs, Chantal Meloni, Leslie Vinjamuri, and Michael Kearney. Mark’s introductory post can be found here. I will post a link to a podcast of the LSE event as soon as it’s available. My contribution to the symposium should be up tomorrow or the next day.

Also, a hearty congratulations to Dr. Kersten, who has just been awarded a two-year SSHRC postdoc at the University of Toronto! London will miss him.

So How Do We Assess Proportionality? (A Response to Blank, Corn, and Jensen) (UPDATED)

by Kevin Jon Heller

Just Security published a post by Laurie Blank, Geoffrey Corn, and Eric Jensen yesterday criticizing two surveys that are interested in how laypeople think about IHL’s principle of proportionality. Much of what the authors say is absolutely correct, particularly about the need to recognize that assessing ex post the ex ante decision-making process of military commanders is fraught with difficulty and likely to both overemphasize actual civilian casualties and underemphasize anticipated military advantage. But the post is still problematic, particularly the following claims:

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.

[snip]

Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

I can’t speak to one of the surveys, because the authors don’t provide any information about it. But I am aware of (and have completed) the survey they do link to, which is conducted by Janina Dill, an excellent young Oxford lecturer who is the Associate Director of the Oxford Institute for Ethics, Law and Armed Conflict. The authors caricature Dill’s survey when they claim that it is based on the “flawed assumption” that “public perception” is “the ultimate touchstone for compliance with the proportionality rule.” Dill does not suggest that the legality of a particular attack should be determined by public perception of whether it was proportionate; she is simply interested in how non-military people think about proportionality. Like the authors, I don’t believe Dill’s questions capture the complexity of the military commander’s task. But neither does Dill. That is not the point of the survey.

Dill, however, is more than capable of defending herself. I am more interested in the first paragraph quoted above, because the authors come perilously close therein to claiming that it is per se illegitimate for anyone — or at least individuals who are not soldiers themselves — to second-guess the targeting decisions of military commanders. I suppose they leave themselves a tiny escape from that position by implying (obliquely) that “you, or I, or anyone” could assess ex post a military commander’s ex ante proportionality calculation as long as we had “full knowledge of the circumstances at the time of the attack.” But the authors make no attempt whatsoever to explain how the decision-makers involved in any ex post “compliance assessment” could ever take into account everything the military commander knew about the circumstances of the attack — from “the enemy’s center of gravity and the relationship of the nominated target to that consideration” to “the exigencies of the tactical situation” to “the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences.” Some information about the objective circumstances of the attack may be available in written reports and through the testimony of the military commander’s superiors and subordinates. But those objective circumstances are only part of the story, because IHL proportionality requires (as the authors rightly note) assessing the reasonableness of the attack “through the lens” of the commander herself — what she actually knew about the objective circumstances of the attack. And that information will be located solely in the mind of the military commander. Perhaps some commanders are so honest and so mentally disciplined that they will provide a court-martial or international tribunal with an accurate assessment of what went through their mind before the attack. But most commanders faced with discipline or prosecution for a possibly disproportionate attack will either lie about their proportionality calculation or unconsciously rewrite that calculation after the fact to justify killing innocent civilians.

In most cases, therefore, the decision-makers involved in a compliance assessment will have no choice but to rely on circumstantial evidence — including, yes, an attack’s actual consequences — to infer what went through the mind of a military commander prior to launching an attack. Such inferences will always be, for all the reasons the authors note, complex, fraught with difficulty, and prone to error. But unless we are going to simply defer to “the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat,” we have no choice but to ask people to draw them. I doubt that any of the authors think that uncritical deference is appropriate; more likely, they think that although compliance assessment is necessary, no civilian should ever be permitted to sit in judgment of a soldier. If so — or if they think that civilian assessment is possible in the right system — the authors need to do more than just complain about how difficult it is to be a military commander and dismiss as irrelevant how civilians think about fundamental principles of IHL. They need to tell us what a properly-designed system of compliance assessment would look like.

UPDATE: Janina Dill has posted her own response at Just Security. It’s excellent; interested readers should definitely check it out.

Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.

RIP, Chinua Achebe (Updated)

by Kevin Jon Heller

I just learned — much belatedly — that Chinua Achebe, the great Nigerian novelist, died two years ago today at 82. Here is a snippet from his 2013 obituary in the New York Times:

Nadine Gordimer, the South African novelist and Nobel laureate, hailed Mr. Achebe in a review in The New York Times in 1988, calling him “a novelist who makes you laugh and then catch your breath in horror — a writer who has no illusions but is not disillusioned.”

Mr. Achebe’s political thinking evolved from blaming colonial rule for Africa’s woes to frank criticism of African rulers and the African citizens who tolerated their corruption and violence. Indeed, it was Nigeria’s civil war in the 1960s and then its military dictatorship in the 1980s and ‘90s that forced Mr. Achebe abroad.

In his writing and teaching Mr. Achebe sought to reclaim the continent from Western literature, which he felt had reduced it to an alien, barbaric and frightening land devoid of its own art and culture. He took particular exception to”Heart of Darkness,”the novel byJoseph Conrad, whom he thought “a thoroughgoing racist.”

Conrad relegated “Africa to the role of props for the breakup of one petty European mind,” Mr. Achebe argued in his essay “An Image of Africa.”

“I grew up among very eloquent elders,” he said in an interview with The Associated Press in 2008. “In the village, or even in the church, which my father made sure we attended, there were eloquent speakers.” That eloquence was not reflected in Western books about Africa, he said, but he understood the challenge in trying to rectify the portrayal.

“You know that it’s going to be a battle to turn it around, to say to people, ‘That’s not the way my people respond in this situation, by unintelligible grunts, and so on; they would speak,’ ” Mr. Achebe said. “And it is that speech that I knew I wanted to be written down.”

Chinua’s passing fills me with great sadness, because I had the honour of getting to know him quite well in the late 1980s — just before the car accident that left him paralyzed — when I was a graduate student at the New School for Social Research. He was a dear friend of the anthropologist Stanley Diamond, for whom I did research and whose journal, Dialectical Anthropology, I edited. I will long treasure the memories of Chinua’s kindness and warmth. He would always go out of his way to include me in conversations, and to ask me — a lowly graduate student, barely 21 — what I thought about things. And his terrible accident did not dim his spirit in the slightest; he was just as kind and warm the first time I saw him after the accident, when he was still recovering.

Chinua was also, needless to say, a remarkable novelist. I just wish he had written more — his two-decade-long writers block, which he attributed to the trauma of the Nigerian civil war (as the obituary notes), cheated us all out of so many great novels that will now never be written. I plan to re-read “Things Fall Apart” in his honour as soon as I can. It remains one of the great novels written by any writer — not just by an African one. Chinua’s fiction, though so inextricably tied to his country and to his continent, always transcended the limits of geography. I still get angry when I think about Saul Bellow’s profoundly racist comment concerning the supposed non-existence of great African literature: “When the Zulus produce a Tolstoy, we will read him.” I don’t know about the Zulus, but the Ibo certainly produced one. His name was Chinua Achebe.

Requiescat in pace, Chinua. You will be missed — and remembered.

UPDATE: I have updated the post to reflect that I only found out today about Chinua’s death. I hope these thoughts are better late than never.

Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement

by Kevin Jon Heller

Another complementarity fight is brewing, this time between the ICC and Cote d’Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however, Gbagbo was convicted in an Ivorian court and sentenced to 20 years imprisonment on very different charges:

A court in Ivory Coast has sentenced Simone Gbagbo, the wife of the former president Laurent Gbagbo, to 20 years in prison for her role in a 2011 post-election crisis in which around 3,000 people were killed, her lawyer said.

Simone Gbagbo, who is also wanted by the international criminal court, was tried alongside 82 other allies of her husband in a case that revived deep divisions in a nation still recovering from years of political turmoil and conflict.

Gen Bruno Dogbo Ble, who headed the elite republican guard, and the former navy chief Admiral Vagba Faussignaux were both jailed for 20 years, according to their lawyer, while others got shorter sentences. Michel Gbagbo, the former president’s son, was sentenced to five years.

Supporters of Laurent Gbagbo, whose refusal to acknowledge his defeat to Alassane Ouattara in elections in late 2010 sparked the brief civil war, claimed his wife’s trial was politically motivated.

“The jury members retained all the charges against her, including disturbing the peace, forming and organising armed gangs and undermining state security. It’s a shame,” said Simone Gbagbo’s lawyer, Rodrigue Dadje.

Cote d’Ivore will no doubt now file an admissibility challenge with the ICC, claiming that they do not have to surrender Gbagbo because  Art. 17(1)(c) of the Rome Statute provides that a case is inadmissible if “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” Art. 20(3) specifies that, as long as the trial is genuine, “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”

I do not know the precise conduct that underlies Gbagbo’s domestic conviction. But it seems highly likely that the “undermining state security” and “organizing criminal gangs” charges were not based on substantially the same conduct as the ICC’s crimes against humanity charges. If not, the case will still be admissible before the Court, because Art. 20(3) explicitly permits the ICC to prosecute conduct different than the conduct underlying a domestic conviction. That specific provision has never been litigated, but the judges are very unlikely to read Art. 20(3) more expansively. After all, in the context of cases still under investigation at the domestic level, the Appeals Chamber specifically held in the Kenya cases that the domestic investigation must focus on “substantially the same conduct” as the ICC’s investigation:

The defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(l)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.

Here is my question: what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t. As I have argued at length in my essay “A Sentence-Based Theory of Complementarity,” the ICC simply cannot afford the kind of hyper-formalism that underlies both the “same conduct” requirement and Art. 20(3). In my view, the Court should defer to any national prosecution that results (or any national investigation is likely to result) in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s investigation. The upcoming Gbagbo complementarity fight, I think, will likely illustrate why my theory of complementarity makes sense.

Finally, it’s worth noting that should the ICC agree with me, it does in fact have an out — Art. 89(4) of the Rome Statute, which provides as follows:

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Nothing in the Rome Statute seems to prohibit the Court from deciding, after such a consultation, to let the suspect serve his or her domestic sentence prior to — or even instead of — requiring the state to surrender the suspect to the Court. I hope the ICC will consider such a decision regarding Gbagbo. It has nothing to gain by forcing Cote d’Ivoire to turn her over.

Mea Culpa Regarding Israel’s Attacks on Hezbollah in 2006

by Kevin Jon Heller

In a number of posts (see, for example, here and here), I have claimed that the League of Arab States (LAS) formally rejected the “unwilling or unable” test in the context of Israel’s 2006 attacks on Hezbollah in Lebanon. Thanks to comments by Ori and Tom Ruys on the most recent post, I now realize I have been guilty of the same kind of methodological sloppiness that characterizes most scholarly work in defence of the test. If you read the statement by the LAS — you can find it here — there is no way to determine whether the it denounced Israel’s attack because it rejected the “unwilling or unable” test or — and this actually seems more likely — because it simply rejected Israel’s claim that it was acting in self-defence. (I disagree with Ori that the statement can be read as an indictment of Israel solely for using disproportionate force in self-defence.) And if we cannot determine the precise reason why LAS rejected Israel’s self-defence claim, that rejection obviously cannot provide opinio juris against the “unwilling or unable” test.

That said, loathe though I am to disagree with Tom, I don’t see the international response to Israel’s attacks on Hezbollah in Lebanon as supporting the “unwilling or unable” test. Most obviously, Israel claimed that Hezbollah’s actions were attributable to Lebanon — it did not invoke the test at all. Moreover, no state specifically invoked “unwilling or unable” during the Security Council debate over Israel’s actions — some expressed concern over Lebanon’s failure to exercise effective control over the entirety its territory, but a number of those states attributed that failure to Israel’s occupation of southern Lebanon, not to Hezbollah’s actions. So I agree with Olivier Corten that “these standpoints are highly ambiguous and so it seems a very difficult business to deduce from them any opinio juris.”

My thanks to Ori and Tom for weighing in — and to Ori for providing links to the relevant documents. Apologies to readers for being so sloppy. I just hope my lack of care will not distract from my basic point, which is that scholars who claim that the “unwilling or unable” test represents customary international law have failed to identify (anywhere near) sufficient significant state practice or opinio juris in defense of their position.

The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy

by Kevin Jon Heller

How does an international-law doctrine become conventional wisdom without actually having support in the practice of states? It starts with one article asserting the doctrine, but failing to defend it. Then another article makes the same claim, citing only the first article. And then another. And another. And so on — until no one remembers that the first article did not actually identify any state practice at all.

So it is with the “unwilling or unable” test, as indicated by an otherwise quite good new article in the Journal of Conflict & Security Law entitled “Jus ad Bellum and American Targeted Use of Force to Fight Terrorism Around the World.” Consider (p. 228):

With regard to the use of self-defence against private actors located in another state, two consequences flow from the requirement of necessity. First, state practice indicates that the exercise of self-defence against the private actor is conditioned on the inability or unwillingness of the authorities in the host state to stop the private actor’s activities.98 Obviously, if the host state both can and will stop the activities in question, it will not be necessary for the victim state to resort to the use of force.

I’ve left the footnote number in, because it refers to precisely one source: Ashley Deeks’ essay “Unwilling or Unable: Toward an Normative Framework for Extra-Territorial Self-Defense.” An essay in which, as I have pointed out, the author openly admits that she “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation.” (The US and UK have formally endorsed the unwilling or unable test since Deeks’ article was published.)

To be sure, the new article elaborates a bit on the “support” for the unwilling or unable test. But none of that support involves the practice of states — nor does the article acknowledge the inconvenient fact that the Arab League (22 states) has formally rejected the test (post-9/11, even). Instead, it simply says this (p. 229):

The test is widely supported in the literature, and it is also mentioned in two 2013 UN reports by, respectively, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. It also features among a series of “Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors” proposed by the former legal adviser of the United Kingdom Foreign & Commonwealth Office, Daniel Bethlehem.

“Instant custom”? How passé. Who needs state practice at all? And please don’t bore us by pointing out contrary practice by a bunch of benighted states in the Global South. All we really need are enough scholars, special rapporteurs, and former legal advisors in the Global North willing and able to endorse a particular doctrine and poof — customary international law.

3.5 Lecturer/Senior Lecturer Positions at SOAS

by Kevin Jon Heller

Here is the advertisement, which I hope will be of interest to Opinio Juris readers:

3 x full-time posts & 1 x part-time (0.5 fte) post

Lecturer: £33,476-£48,088 p.a / pro rata inclusive of London Allowance

Senior Lecturer: £49,462-£56,975 p.a / pro rata inclusive of London Allowance

The SOAS School of Law invites applications for 3 full-time and 1 part-time (0.5) Lectureships/Senior Lectureships in Law tenable from 1 September 2015.  The successful candidates will be expected to have expertise and interest in teaching in at least one of the following areas, at both undergraduate and post graduate level: International Trade Law; Law & Economics; Refugee & Migration Law; Alternative Dispute Resolution; Legal Systems of Africa & Asia; and Property Law (including the English Law of Land & Trusts but ideally encompassing non UK centric areas such as African Land Rights, Cultural Property, Property Theory, Intellectual Property etc). The School of Law is also keen to recruit scholars with additional & specific expertise in the laws of particular countries within Africa or Asia although applicants without such expertise are also encouraged to apply.

Successful candidates will be expected to have research interests relevant to the mission of the School, including a strong interest in issues of particular importance to law in the developing world. These applicants should have (or be nearing completion of) a PhD in Law (or a related discipline) and a strong record of (or potential for) excellence in research and publications appropriate to a research intensive law school that was ranked fifth, by reference to the proportion of world class publications it produced, in the recent REF.

Prospective applicants seeking further information about SOAS or the School of Law may contact the Head of the School of Law, Paul Kohler (pk3 [at] soas [dot] ac [dot] uk).

To apply for this vacancy or download a job description, please visit www.soas.ac.uk/jobs. No agencies.

This is an exciting time to be at SOAS. We ranked 10th in the UK in the 2015 Guardian law table, we’ve made a number of excellent new hires over the past couple of years, and we will be moving into a beautiful new building — a renovated North Block of Senate House — early in 2016.

Any readers serious about applying should feel free to contact me with questions. The closing date for applications is March 19, and interviews will be held in late April.

CMCR Voids David Hicks’ Conviction for Material Support

by Kevin Jon Heller

Big news — and news I wasn’t expecting:

A former prisoner at the U.S. Navy base at Guantanamo Bay, Cuba, from Australia on Wednesday won a legal challenge to his terrorism conviction before a military court.

The U.S. Court of Military Commission Review struck down the March 2007 conviction of David Hicks in a unanimous ruling that reverses what had been one of the government’s few successes in prosecuting prisoners at Guantanamo.

Attorney Wells Dixon said he immediately called Hicks’ attorney in Australia, where it was the middle of the night, to pass on the news to his client.

“David is aware of the decision and he is thrilled,” Dixon said. “He is free to live his life without this conviction hanging over his head.”

Hicks, 39, pleaded guilty to providing material support to terrorism. It was a plea bargain in which all but nine months of his seven-year sentence was suspended and he was allowed to return home by the end of that year.

In 2014, an appeal’s court ruled that material support was not a legally viable war crime for the special wartime court at Guantanamo known as a military commission. Prosecutors argued his conviction should still stand because he agreed not to appeal as part of the plea deal, an argument rejected by the U.S. Court of Military Commission Review.

Quite a journey for Hicks. When he was first charged, he was one of the most hated men in Australia. By the time the military-commission farce was through with him, he was a national hero.

Kudos to the CMCR for doing the right thing.

The Absence of Practice Supporting the “Unwilling or Unable” Test

by Kevin Jon Heller

Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine):

It therefore follows not only from the right of self-defense’s general requirement of necessity, but primarily from the respect for the sovereignty of the territorial State that the right of self-defense in case of a non-State armed attack is of a subsidiary nature. It presupposes that the territorial State is either unwilling or unable to end the non-State armed attack – or, as it should be added for the sake of completeness, fails to exercise due diligence to that effect. State practice is remarkably consistent with these principles. As Professor Ashley Deeks has demonstrated in a formidable article, the legal claims to a right of collective self-defense in cases of non-State armed attacks have generally included the statement that the territorial State is unwilling or unable to deal with the non-State threat.

In terms of what the “unable or unwilling” test might look like if it represented customary international law, Deeks’s article is indeed excellent. But the article is anything but “formidable” in terms of state practice that supports the test. Indeed, the non-state actor section of the article spans all of two pages (pp. 501-03) — and cites precisely two states that officially endorse “unwilling or unable”: the United Kingdom and the United States. That’s it. And those are the same two states that Claus discusses in his post.

Simply put, there is simply no “consistent practice” that supports the “unwilling or unable” test, and scholars need to be careful not to put states in the “unwilling or unable” camp simply because they are willing to use armed force against a non-state actor. Deeks has been particularly prone to this kind of overinclusiveness, most recently arguing that Jordan, Bahrain, Qatar, the UAE, and Iraq support the “unwilling or unable” test because they have attacked ISIL in Syria — this despite the fact that all five states are members of the Arab League, which has specifically rejected the test in the context of Israel’s attacks on Hezbollah in Lebanon. (Actual opinio juris.)

I have the utmost respect for Claus, and I have no desire to pick on Deeks. But methodological rigor is particularly critical when it comes to doctrines like “unwilling or unable,” because its actual adoption by states would open the floodgates to the extraterritorial (ie, sovereignty-infringing) use of force against non-state actors. There may well come a time when the “unwilling or unable” test reflects customary international law, but that time is not now. Two states do not a customary rule make, however powerful those states may be. And we cannot simply ignore the states in the Global South, however inconvenient powerful states in the Global North may find their views.