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 reference 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):

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.

I am delighted to announce that my law school is advertising six new positions to start in September 2018 — five PhD and one postdoc. The postdoc will be public international law with a focus on international economic law:

The vacancy is for a Postdoctoral researcher in Public International Law. The researcher should have a background in International Economic Law (broadly understood) that allows her/him to possibly contribute to teaching tasks (see below on ‘tasks’).

The postdoctoral researcher should place her/his research within the programme on ‘Law and Justice Across Borders’, in which ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL). Preferably, the postdoctoral researcher should connect to one of ACIL’s research projects (available on the ACIL website).

Three of the PhD positions will focus specifically on international criminal law:

In September 2018 a five year research project will be launched, entitled ‘The Outer limits of Secondary Liability for International Crimes and Serious Human Rights Violations’. The research project is directed by Göran Sluiter, professor in International Criminal Law, and is financed by the Netherlands Organisation for Scientific Research (NWO), by means of a VICI-grant.

The project will be embedded within the Amsterdam Center for International Law (ACIL), one of the research priority areas of the University, and the department of Criminal Law.

One of the PhD positions will be devoted to public international law generally:

The PhD researcher will develop his or her project as part of the Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any aspect of Public International Law. Preferably, the research should connect to one of ACIL’s projects (available on the ACIL website).

The researcher is also encouraged to embed her/his research within the programme on  ‘Law and Justice Across Borders’, though that is not strictly necessary. In that programme, ACIL collaborates with the Amsterdam Center for European Law and Governance (ACELG) and the Center for the Study of European Private Law (CSECL).

And one PhD position will focus on the intersection of public international law and EU law:

The PhD researcher will develop his or her project as part of the Amsterdam Centre for European Law and Governance (ACELG) and Amsterdam Center for International Law (ACIL). In principle, the PhD researcher may focus on any question that involves aspects of both European Union law and Public International Law.

ACELG and ACIL cooperate together with the Centre for the Study of European Contract Law (CSECL) within the framework of the research platform ‘Law and Justice Across Borders’. An interest in participating in this broader research community is a significant advantage.

Research at ACELG And ACIL employs legal-doctrinal methods of research as well as non-legal methods. An interdisciplinary dimension of research is encouraged.

I strongly encourage Opinio Juris readers to apply. The University of Amsterdam Law School is a great place to work, with a superb Dean in Andre Nollkaemper, a new building in a great location (by the zoo!), numerous excellent ICL/PIL scholars, and a fantastic current group of (relatively new) PhDs and postdocs. With six new additions, our academic culture will be even richer.

The deadline for all the positions is May 1.

Dear readers,

As part of some exciting changes coming to Opinio Juris in the next month or so, we are completely redesigning our website. To that end, we would greatly appreciate your taking some time — about 10 minutes — to fill out our Readers Survey. You can find the survey by clicking here.

We will leave the survey open for two weeks — until March 20, 23:59 CET. All responses will be anonymous, so please don’t hesitate to tell us what you really think! If you would like to provide an email at the end of the survey, we will put it into a random draw for a € 75 Amazon gift card. We will collect your answers and your email address separately, so entering the draw will not affect the anonymity of your answers. And we promise not to use your email to send you unwanted messages.

Without our readers, there is no Opinio Juris. So thank you in advance for your participation.

Once again, the link.

The Harvard International Law Journal has just posted a call for their 60th anniversary volume. Here is the relevant text:

The Harvard International Law Journal is now accepting article submissions for Volume 60. We seek to publish innovative, original scholarship that makes a significant contribution to the field of international law. We welcome submissions from legal scholars, practitioners, and doctoral degree candidates on topics of private or public international law and related fields, including interdisciplinary work.

For our 60th Anniversary volume, as we reflect on our past and look forward, the Journal is particularly interested in publishing articles about the frontiers of international law. Frontiers represent new horizons and new perspectives; but, they can also reveal limits, gaps, and boundaries. We intend the broad line of inquiry for this issue to include emerging issues in international law, interactions between existing bodies of international law, limits of international law, the influence of new technologies or scientific understandings on international law, and interdisciplinary perspectives on international law and governance.

I’ve been fortunate enough to publish two articles with HILJ, including one — my “What Is an International Crime? (A Revisionist History)” article — that will be in print very soon. I have nothing but good things to say about working with the journal. Not surprisingly given the caliber of the students, the journal provides excellent feedback that will make your article better. And if you’re particularly fortunate, HILJ will organise an online symposium about your article. They solicited responses to my “A Sentence-Based Theory of Complementarity” article from Carsten Stahn and Darryl Robinson. And Mia Swart, Astrid Reisinger Coracini, and Alejandro Chehtman will be responding to my new one. (I’ve also been given an opportunity to reply.) Being able to carry on a virtual conversation about your work is a rare treat.

As I said, submit to HILJ! (Yes, double entendre intended.)

[Kevin Jon Heller is a Professor of Law at the University of Amsterdam. This is the second part of a two-part post. The first part can be found here.]

Humanitarian Intervention

The first part of this post outlined my retrospective problem with Harold’s article. My prospective problem concerns his passionate call for the legal recognition of unilateral humanitarian intervention (UHI) – intervention that is not authorised by the Security Council. Harold’s desire to legalise UHI is understandable, given the ongoing humanitarian disaster in Syria. (The past couple of days being a horrific reminder.) And I share his anger toward Russia, which has repeatedly used its permanent veto to prevent the international community from taking stronger action against Assad. (Though I think the US and NATO are at least partially to blame for Russia’s intransigence, given how NATO abused the authority Russia was willing to give it in Libya.) But even if we believe that UHI should be legal – which I don’t – I think Harold is wrong to insist that it is legal.

Here is what he says about the categorical prohibition of the use of force in Art. 2(4) of the UN Charter (p. 461):

This “never-never rule” exhibits the absolutist, formalist, textualist, originalist quality Americans usually associate with the late Justice Antonin Scalia. It relies on absolutist readings of text, as those texts were “originally understood,” claiming that a nation may not engage in unilateral humanitarian intervention because of prohibitive wordings of Article 2(4) of the U.N. Charter and Article I of the U.S. Constitution. But on inspection, this position cannot be sustained. In both cases, this simplistic, absolutist reading cannot be squared with state practice, inter-branch practice, or the broader object and purpose of the document the reader claims to be interpreting.

To be clear, the “simplistic, absolutist reading” Harold condemns is not only consistent with the text of Art. 2(4), it is precisely the reading intended by the drafters of the UN Charter — powerful and weak states alike. Lowe and Tzanakopoulos explain:

13 The travaux préparatoires of the UN Charter, however, establish clearly that the expressions ‘territorial integrity’, ‘political independence’, and ‘in any other manner inconsistent with the purposes of the United Nations’ were not meant as qualifications of the scope of the prohibition in Art. 2 (4) UN Charter, but rather as reinforcements of the prohibition, aimed at assuring smaller and less powerful States that the use of force, for whatever reason, was absolutely prohibited. This was confirmed by the International Court of Justice (ICJ) in the Corfu Channel Case, where a British argument that its actions in forcibly sweeping Albanian waters for mines did not violate the territorial integrity and sovereignty of Albania was rejected, the UK intervention being declared to be a ‘manifestation of a policy of force’ (at 35). In the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), the ICJ reaffirmed the absolute prohibition of forcible intervention, and stated that ‘the use of force could not be the appropriate method to monitor or ensure … respect’ for human rights (at para. 268)….

With respect to Harold, dismissing the remarkable clarity of the text and history of Art. 2(4) by invoking a right-wing ideologue like Justice Scalia is unfair, conjuring as it does the image of a bunch of white men articulating rules that have to be blindly followed by future generations regardless of societal and demographic change. The Charter might have been drafted by a limited number of states, but the categorical nature of the prohibition of the use of force has been affirmed by every state that has ratified the UN Charter – i.e., all of them – including the dozens of states that did not yet exist when the Charter was drafted. In that respect, there is simply no parallel between the US Constitution and the UN Charter. Far from being quaint or outdated, the Charter’s regulation of self-help reflects state will no less today than it did in 1949.

Harold’s reference to the “object and purpose” of the UN Charter also fails to justify UHI. Although promoting human rights is one of the goals mentioned in the Preamble, it is not the only goal. Others include “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”; “to unite our strength to maintain international peace and security”; and “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest.” It is impossible, therefore, to separate promoting human rights from the prohibition of the use of force; on the contrary, the UN Charter is founded on the idea that respect for the latter is a condition of possibility for the former. Lowe & Tzanakopoulos again:

14 Most importantly, the narrow interpretation of Art. 2 (4) UN Charter is inimical to the purpose and structure of an organization intended to maintain international peace and security through the establishment of a collective security system. Oscar Schachter famously wrote that the narrow interpretation of Art. 2 (4) UN Charter requires an ‘Orwellian construction’ (at 649) of the provision’s terms. The better view is that any use of force, irrespective of its—humanitarian or otherwise laudable—motivation, is caught by the prohibition of Art. 2 (4) UN Charter and must be justified on the basis of an accepted exception.

To be sure, I agree with Harold that state practice could legalise UHI, either as a new interpretation of Art. 2(4) through subsequent practice (Art. 31(3)(b) of the VCLT) or as a supervening rule of customary international law. But there is simply no evidence that any significant number of states want to legalise UHI. Here is Harold’s argument to the contrary (pp. 459, 462):

The United Kingdom, Denmark, and Belgium have all articulated the conditions under which they believe humanitarian intervention to be lawful.

…

To overcome the manifest rigidity of the never-never rule, state practice has offered many prominent counterexamples of de facto humanitarian intervention: India- Bangladesh; Tanzania-Uganda; Vietnam-Cambodia (Khmer Rouge); the U.S. and the U.K. creating no-fly zones over Iraq to protect the Kurds and the Shias; and of course, NATO’s famous Kosovo episode of the late 20th century.

None of the examples Harold mentions supports the legality of UHI — where opinio juris is required, not simply the ability to describe a use of force as “de facto humanitarian intervention.” In each and every case, the invading state invoked a traditional justification for its use of force instead of UHI:

[1] India justified its invasion of East Pakistan (now Bangladesh) on the ground that the millions of refugees created by Pakistan’s repression of the Bengalis qualified as an armed attack for purposes of self-defence – a view overwhelmingly rejected by the General Assembly.

[2] Tanzania claimed that it was responding to an armed attack by Uganda. In fact, as Lowe and Tzanakopoulos note (para. 15), Tanzania did not even mention Uganda’s terrible human rights record in its public statements.

[3] Vietnam justified its invasion of Cambodia as self-defence against armed attack.

[4] The Coalition initially provided no justification whatsoever for creating no-fly zones over Iraq. The UK eventually invoked UHI, but no other member of the Coalition did likewise. Indeed, the US later argued – unpersuasively, to be sure – that the no-fly zones were permissible acts of self-defence.

[5] Only the three states Harold mentions – the UK, Belgium, and Denmark – invoked UHI to justify NATO’s bombing of the Serbs. No other NATO state did, and Belgium argued that the bombing campaign should not be seen as a precedent for the legality of UHI in other situations. (A claim Germany made, as well, even though it did not invoke UHI.) By contrast, as Lowe and Tzanakopoulos note (para. 33), “[t]he Non-Aligned Movement (NAM), numbering well over half of the Member States of the UN, unequivocally condemned the use of force against the (then) FRY, as did many other States, some of which are nuclear powers.”

The UHI ledger, in short, can hardly be said to support the legality of UHI. Only three states have ever invoked UHI as a matter of law – and one of those three refuses to endorse it as a general rule. Three states do not a new interpretation or supervening custom make – especially when more than 130 states, the entire Non-Aligned Movement (NAM), have specifically and repeatedly condemned UHI as unlawful.

It is not an accident, of course, that NAM states have led the opposition to UHI. Their opposition may be overinclusive, in the sense that it is at least possible to imagine powerful states in the Global North using force against weaker states in the Global South for genuinely humanitarian purposes. But if the Global South is (too) skeptical of UHI, the US and other powerful states have only themselves to blame, given their long and ignoble history of using force illegally – and dressing up those illegal uses of force in the language of humanitarian concern. (See, e.g., the invasion of Iraq.) Just consider the US’s personal list of military and CIA interventions since WW II, courtesy of William Blum: Iran (1953); Guatemala (1954); Thailand (1957); Laos (1958-60); the Congo (1960); Turkey (1960, 1971 & 1980); Ecuador (1961 & 1963); South Vietnam (1963); Brazil (1964); the Dominican Republic (1963); Argentina (1963); Honduras (1963 & 2009); Iraq (1963 & 2003); Bolivia (1964, 1971 & 1980); Indonesia (1965); Ghana (1966); Greece (1967); Panama (1968 & 1989); Cambodia (1970); Chile (1973); Bangladesh (1975); Pakistan (1977); Grenada (1983); Mauritania (1984); Guinea (1984); Burkina Faso (1987); Paraguay (1989); Haiti (1991 & 2004); Russia (1993); Uganda (1996); and Libya (2011). And we wonder why the Global South doesn’t trust the US (or the UK, or France, or…) to get UHI right?

Does this mean that, to paraphrase Cicero, silent enim leges inter tyrannide? Not necessarily. As Harold’s discussion of the P5 (p. 461) itself indicates, the obstacle to addressing the situation in Syria is not Art. 2(4) of the UN Charter, but the existence of the permanent veto. So instead of embracing UHI, it would be far better to argue — as John Heieck has — that the P5 has a legal duty not to veto a Security Council resolution aimed at preventing jus cogens violations such as genocide and crimes against humanity.

To be sure, good positivist that I am, I am not completely convinced that international law imposes a “no veto” duty on the P5. (I’ll wait for John’s forthcoming book to convince me otherwise.) The stronger legal “solution,” therefore, is probably the one Lowe and Tzanakopoulos discuss — relying on the 1950 Uniting For Peace Resolution to argue that the General Assembly can authorise humanitarian intervention when, as in Syria, the P5 is hopelessly divided:

If 2/3 of the General Assembly wants to authorise force to promote human rights — a threshold that would require a number of states in the Global South to support intervention — what possible basis is there, other than a “simplistic, absolutist” reading of the UN Charter and naked power politics, for the P5 to prevent the UN from acting?

To be clear, this is a legal argument, not a practical one. Although as a lawyer I would feel better about humanitarian intervention in Syria if it was authorised by the General Assembly, I am skeptical that such intervention would actually work. (Hence the scare quotes around “solution” above.) There is evident reason to question the value of external military force in Syria, for reasons explored here and here and here and here and here and here. Those analyses focus on UHI, not humanitarian intervention authorised by the General Assembly. But similar considerations apply as long as Russia remains devoted to Assad’s murderous regime.

Indeed, Harold himself clearly recognizes that no durable solution is possible in Syria without Russia’s support (p. 460):

To solve Syria, the United States must join other nations— including Russia—in building a sustainable peace process, organized around lawful conduct and a durable legal arrangement, and leverage that lawful core into a broader policy solution that contains and manages the sprawling crisis.

I completely agree — which is why I find Harold’s full-throated defense of UHI so puzzling. If Russia ever gets on board with a “sustainable peace process,” the Security Council could authorize humanitarian intervention in Syria, making UHI unnecessary. And if Russia continues to obstruct peace in Syria, as it has to date, engaging in UHI (or any kind of HI) would be exceptionally likely to end badly – if not in WW III. Either way, there would be no pragmatic rationale for UHI.

Conclusion

I share Harold’s anger toward the lawlessness of the Trump administration, and his analysis of all the ways in which Trump has further destabilized an already chaotic world is essential reading for anyone interested in American politics, international law, and the intersection between the two. But we cannot allow the horrors of the Trump administration to blind us to the many failings of its predecessor. Like all presidents, Obama was only selectively committed to the values he espoused; democracy and human rights mattered to him in a way they will never matter to Trump, but those values all too often took a backseat to more quotidian US interests such as “national security” and access to markets and resources. Plus ça change, plus c’est la même chose…

As for Syria, UHI it is not the answer, no matter how understandable our desire may be to do something — anything — to alleviate the human suffering there. I don’t know precisely what the solution is; if I did, I would be a politician or a diplomat, not a pointy-headed law professor. But UHI is illegal, as it should be. And it would almost certainly only make the situation in Syria worse. Military force for ostensibly humanitarian purposes is exceptionally likely to fail even when blessed by the Security Council, as Libya tragically demonstrates. Such force without international support, and against the wishes of Russia, is a recipe for disaster.

[Kevin Jon Heller is a Professor of Law at the University of Amsterdam. This is the first part of a two-part post. The second part is found here.]

Introduction

It is an honour to be invited to respond to the article version of Harold Koh’s recent Foulston Siefkin Lecture at Washburn Law School, “The Trump Administration and International Law.” I am a great admirer of Harold’s work and an even bigger fan of Harold himself, whom I am proud to call a friend and who has been incredibly supportive of me for a number of years, even though I was never his student.

There are many international-law issues Harold and I disagree passionately about. The Trump administration’s disdain for international law is not one of them. Harold’s wide-ranging analysis of how Trump has made both the US and the world a more dangerous place is spot-on, and I can only hope that the quiet resistance to Trump’s policies within the American government is as strong as Harold believes it to be. The wide circulation of his elegant article should certainly help.

The point of this symposium, however, is not (simply) to sing Harold’s praises. Although I agree completely with his critique of the Trump administration, I think there are two blind spots in the article’s analysis that are worth discussing. The first is retrospective, concerning the supposedly stark contrast between the Obama and Trump administrations concerning respect for international law and human rights. The second is prospective, on whether unilateral humanitarian intervention is or should be legal.

Obama vs. Trump

It is difficult to witness the daily international horrors wrought by the Trump administration and not feel more than a twinge of longing for its predecessor. But as I read Harold’s article, I could not help but think of what Jean Baudrillard, the great French cultural theorist, said about the role Disneyland plays in American culture:

The Disneyland imaginary is neither true nor false: it is a deterrence machine set up in order to rejuvenate in reverse the fiction of the real. Whence the debility, the infantile degeneration of this imaginary. It is meant to be an infantile world, in order to make us believe that the adults are elsewhere, in the “real” world, and to conceal the fact that real childishness is everywhere, particularly among those adults who go there to act the child in order to foster illusions of their real childishness.

The Trump administration, I would suggest, functions as a similar kind of “deterrence machine.” Its almost comical awfulness retroactively burnishes and legitimates the records of the administrations that preceded it, no matter how problematic those records might be in their own right. To see the power of this effect, we need only consider the rapid rehabilitation of George W. Bush since Trump became the nominee, with a baffling 61% of Americans now viewing him favourably, compared to 33% at the time he left office. Even more distressing, the surge in Bush’s popularity has largely been driven by Democrats, who seem to have forgotten, in the face of Trump’s bumbling and absurdly bellicose foreign policy, that Bush is the president who brought us systematic torture and the invasion of Iraq.

The Trump deterrence machine hums along even more smoothly, though, with regard to the Obama administration. Who among us, even my fellow denizens of the far left, wouldn’t be delighted to have a third term of Obama now that we have a President who couldn’t find Ukraine on a map if you pointed him toward the correct continent? Should we lefty international-law types really be spending our limited energies reminding people of Obama’s failures, when we are currently being led by a pathological liar with the emotional maturity and impulse control of a third-grader – someone who would happily start WW III if he thought it would allow him to turn Mar-a-Lago into a survivalist camp for billionaires?

The answer, of course, is “yes.” I unequivocally reject the hard left argument that Obama was just as bad as Trump on foreign policy. But I also think it is important to resist Harold’s admittedly understandable nostalgic longing for the Obama administration, a supposedly halcyon time when international law and respect for human rights mattered. Consider this statement (p. 417):

The inside strategy, which I applied as a government official, I called “Engage–Translate–Leverage,” or simply, using “International Law as Smart Power.” In hindsight, call this “the Obama–Clinton doctrine.” President Barack Obama tried to apply this foreign policy philosophy throughout his presidency. Upon taking office in 2009, President Obama said that “A new era of engagement has begun,” emphasizing that “living our values doesn’t make us weaker. It makes us safer, and it makes us stronger.” That approach was particularly urged upon him by his first Secretary of State, Hillary Rodham Clinton, who argued: “We must use what has been called smart power, the full range of tools at our disposal—diplomatic, economic, military, political, legal, and cultural” to achieve better policy outcomes. Had she been elected President, Secretary Clinton undoubtedly would have continued that approach.

I have no doubt that Harold worked tirelessly behind the scenes to ensure that the Obama administration exercised what he calls “smart power.” As an outsider, though, I still find his description of the Obama administration often unrecognizable. I don’t have time to dwell on all the ways in which the Obama administration proved itself anything but a paragon of respect for international law and human rights, but a few examples are worth mentioning – in no particular order:

[1] Sold more than $100bn in weapons to Saudi Arabia – including fighter jets, attack helicopters, warships, tanks, bombs, and air-to-ground missiles – even after there was no longer any doubt the Saudis were using them to commit unspeakable war crimes in Yemen.

[2] Preached the importance of democracy and human rights in Iran and Syria, while remaining silent about viciously repressive regimes in Bahrain and Saudi Arabia and supporting dictators like Mubarak in Egypt and Ben Ali in Tunisia until it was clear neither would remain in power. (A particularly important point to make, given that Harold rightly condemns (p. 431) the Trump administration’s “blatant, disturbing softness on human rights in the Middle East, particularly with respect to Saudi Arabia, Egypt, Bahrain, and Turkey”).

[3] Used the Security Council resolution authorizing civilian protection in Libya as a pretext for regime change – and then stood idly by as Libya descended into chaos.

[4] Advocated, in the context of “self-defence” against the shadowy Khorasan Group, a view of imminence that denudes the requirement of all meaning. Recall what Pentagon spokesman Rear Adm. John Kirby said about whether the US actually responded to an armed attack by the group: “I don’t know that we can pin that down to a day or month or week or six months…. We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

[5] Claimed that Obama was free to violate both conventional and customary international law when authorizing covert actions.

The most problematic aspect of Harold’s argument, however, concerns what he says about torture (p. 431):

Perhaps the most visible proposed human rights rollback was candidate Trump’s statement that “[if I am elected, w]e’ll use waterboarding and a hell of a lot worse than waterboarding.” Shortly after the election, the press leaked a draft national security executive order that called for reinstating the discredited program of interrogation of high-value alien terrorists, to be operated outside the United States, presumably at revived “black sites”—former offshore detention facilities operated by the C.I.A. But campaign statements and draft executive orders are not law. Congress has repeatedly forbidden torture by treaty and statute.

Harold is absolutely right to be appalled by Trump’s enthusiastic embrace of torture. But why shouldn’t Trump embrace it? Despite high-ranking government officials openly confessing to national and international crimes, the Obama administration did nothing – literally nothing – to hold anyone accountable for the systematic torture regime that Bush created. On the contrary, Obama promptly immunized the torturers, justifying impunity with what has to be one of the most profoundly Orwellian excuses in American political history – that he was “looking forwards, not backwards.” Had Obama been willing to look backwards – what we naive types call “criminal prosecution” – Trump might actually see torture as a crime, instead of as merely one policy choice among others.

In short, Harold’s critique of the Trump administration’s approach to international law is both accurate and devastating. But although his hands may be clean, the hands of the administration he worked for are not. Like its predecessors, the Obama administration was more than willing to ignore international law when it proved too limiting and human rights when they proved too inconvenient.

[The second part of Kevin’s post is found here.]

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

The following is an open letter sent by 25 of the most eminent Israeli international lawyers to Dr. Avichai Mandelblit, Israel’s Attorney General, explaining why the government’s move to expel thousands of African asylum seekers from Israel violates international law. I think the letter, which is brilliantly argued, will be of great interest to our readers.

The letter is long, so I’ve put it after the break. Here are the signatories:

Prof. Orna Ben-Naftali, College of Management Academic Studies
Prof. Eyal Benvenisti, Tel Aviv University and Cambridge University
Prof. Tomer Broude, Hebrew University
Prof. Iris Canor, College of Management Academic Studies
Atty. Avinoam Cohen, Tel Aviv University and the College of Management Academic Studies
Dr. Natalie Davidson, Tel Aviv University
Prof. Aeyal Gross, Tel Aviv University
Prof. Guy Harpaz, Hebrew University
Prof. Moshe Hirsch, Hebrew University
Dr. Tamar Hostovsky Brandes, Ono Academic College
Prof. David Kretzmer, Hebrew University and Sapir College
Dr. Tally Kritzman-Amir, College of Law and Business
Dr. Eliav Lieblich, Tel Aviv University
Dr. Doreen Lustig, Tel Aviv University
Dr. Itamar Mann, Haifa University
Dr. Tamar Megiddo, Hebrew University
Prof. Frances Raday, Hebrew University and College of Management Academic Studies
Dr. Daphne Richemond Barak, Interdisciplinary Center Herzliya
Prof. Yael Ronen, Sha’arei Mada Umishpat Academic Center
Dr. Yaniv Roznay, Interdisciplinary Center Herzliya
Prof. Yuval Shany, Hebrew University
Dr. Sivan Shlomo-Agon, Bar-Ilan University
Dr. Michal Saliternik, Netanya Academic College
Prof. Muhammad Watad, Zefat Academic College
Dr. Reuven (Ruvi) Ziegler, Reading University and Oxford University

For questions and communications regarding this memorandum, contact Itamar Mann at imann [at] univ [dot] haifa [dot] ac [dot] il.

Nikolas Stürchler, the Head of International Humanitarian Law and International Criminal Justice Section at the Swiss Federal Department of Foreign Affairs, has a new post at EJIL: Talk! discussing the ASP’s decision to completely exclude states parties from the crime of aggression unless they ratify the aggression amendments — the “opt-in” position advocated by a number of states, most notably the UK, Japan, and Canada. The post is very long and quite technical, so I won’t try to summarise it. Basically, Stürchler argues that the judges are still free to adopt the “opt-out” position, because the Resolution “confirming” the opt-in position, despite being adopted by consensus, conflicts with Art. 15bis(4) of the Rome Statute, which reflects the opt-out position. Here are the relevant paragraphs:

What remains is an operative paragraph 2 that, like the second sentence of paragraph 5 of article 121 of the Rome Statute which it seeks to leverage, stands in contradiction to paragraph 4 of article 15bis of the Rome Statute. Paragraph 4 of article 15bis literally asserts that the Court has jurisdiction over a crime of aggression “arising from an act of aggression by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.” In this sense, it is somewhat difficult to argue that operative paragraph 2 is simply a case of interpreting or clarifying the crime of aggression amendments. If the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions. One could argue that the Assembly did no more than clarify that the second sentence of paragraph 5 of article 121 fully applies, thus conditioning the application of article 15bis on a State Party’s ratification or acceptance, but this nonetheless would seem to imply a revision of the plain reading of article 15bis.

Be it as it may, with the Assembly having achieved activation, it is now up to the Court to determine the extent of its jurisdiction over acts of aggression committed by nationals or on the territory of non-ratifying States Parties. It is for this reason that the reference to the independence of the judges in operative paragraph 3 is so important. Pending a clear pronouncement by the Court, the only way for any State Party to legally ensure that its nationals fall outside the remit of the ICC’s jurisdiction continues to be to file an opt-out declaration in accordance with paragraph 4 of article 15bis of the Rome Statute.

I want to make three quick points here. The first is that, in fact, Operative Paragraph 3 (OP3) of the Resolution is completely irrelevant to the jurisdictional question. The judges are independent because of Art. 40 of the Rome Statute; OP3 simply reiterates their independence. So the judges would have the right to decide on the jurisdictional question even if OP3 was not included in the Resolution. (In that regard, I’m not sure why the states promoting the opt-in position were so opposed to OP3. A paragraph that tried to take away judicial independence concerning the interpretation of the new crime of aggression would have been patently ultra vires.)

The second — and more important — point is that Stürchler’s argument about the conflict between Operative Paragraph 2 (OP2) and Art. 15bis(4) is remarkably selective. The underlying principle is that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself. As he writes, “[i]f the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions.” I agree with the principle! But here is the problem: Art. 15bis(4) was also not adopted pursuant to the Rome Statute’s amendment provisions. Art. 121(5)’s second sentence “literally asserts” that, “[i]n respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” Art. 15bis(4)’s requirement of an opt-out thus can only apply to a state that has ratified the aggression amendments. If a state does not ratify the amendments, Art. 121(5) — which pre-existed Art. 15bis(4) — controls, the unamended Rome Statute applies to that state, and the Court has no jurisdiction over an act of aggression committed by that state’s nationals or on its territory.

This is not — or should not be — a controversial point. Not even the opt-out positions’s most fervent defenders claim that the adoption of Art 15bis(4) was consistent with the amendment provisions in Art. 121(5). Instead, they argue that the ASP agreed by consensus to apply only the first sentence of Art. 121(5), excluding the inconvenient second sentence. Stürchler’s own principle, therefore, means that the judges are perfectly free to ignore Art. 15bis(4) and apply Art. 121(5) as written — thus ending up with the same opt-in provision that OP2 is designed to confirm. Stürchler and the other opt-out proponents cannot have it both ways: either both OP2 and Art. 15bis(4) are valid (in which case opt-in applies) or neither of them are (in which case opt-in applies).

The third and final point is that Stürchler’s principle — that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself — supports what I argued a few weeks ago: that the new weapons amendments adopted by the ASP apply to non-states parties even though the ASP declared that they do not. As I noted in that post, the ASP did not amend the Rome Statute to exclude non-states parties, as it did with the crime of aggression. Instead, the ASP simply confirmed its understanding that the new war crimes (covering the use of biological, fragmenting, and blinding weapons) would not apply to non-states parties. According to Stürchler’s principle, therefore, the judges are free to ignore the ASP’s declaration and apply the Court’s normal jurisdictional regime in Art. 12(2) to the new war crimes — which means that the Court has every right to prosecute the national of a non-state party who uses a prohibited weapon on the territory of a state party.

At Lawfare yesterday, two law professors at West Point defended the US’s right to attack North Korea if it tests another nuclear weapon or fires another missile into Japanese waters:

North Korea is extraordinarily close to becoming a global nuclear power. This very real possibility has reportedly resulted in the United States debating a limited military strike dubbed the “bloody nose” strategy. In effect, the proposal would allow for a timely and proportional response against North Korean sites in the event of another nuclear test or missile launch. For example, such a strike might include using force to target a North Korean missile site or a military base. The hope would be that such a strike would “bloody Pyongyang’s nose” and “illustrate the high price the regime could pay for its behavior” without “igniting an all-out-war on the Korean Peninsula.”

In the authors’ view, “[t]here is a strong argument such a strike would be lawful” either as collective self-defense of Japan or as individual self-defense by the US.

I disagree.

The fundamental problem is that “another nuclear test or missile launch” would not qualify as an armed attack sufficient to give rise to the right of either collective or individual self-defense. The authors make no attempt to explain how another nuclear test would be an armed attack — which is not surprising, given that previous tests have all been on North Korean territory (with terrible consequences for North Koreans). And here is their argument concerning another conventional missile launch:

More difficult is determining whether North Korea’s current behavior justifies the limited military strike proposed in the “bloody nose” strategy. Consider, for example, another North Korean test in which it launches an unarmed missile into Japanese sovereign territory. Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “injury to, or death of, persons” or “damage to, or destruction of, objects” and thus could be construed as a “weapon.” According to the U.N. General Assembly and the Rome Statute, a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression. Such a North Korean missile launch would seem to fall within this definition and could reasonably be interpreted as an armed attack.

On the contrary, such an interpretation would not be reasonable — even if we accept the idea that an unarmed missile is a weapon. Tom Ruys has carefully analysed state practice concerning when a de minimis attack qualifies as an armed attack for purposes of self-defense. Here is his conclusion (p. 155; emphasis mine):

Justice in Conflict has a guest post today from a scholar who has written a book about the Lubanga trial. I think the post makes some excellent points about the problems with the trial. But I have serious reservations — acknowledging that I have not read the book — about the author’s take on why the trial did not focus on sexual violence:

Another [serious flaw] was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

This is both unfair and mistaken. There is one reason, and one reason only, that sexual violence did not figure more prominently in the trial: Luis Moreno-Ocampo decided not to charge Lubanga with the relevant war crimes or crimes against humanity, choosing instead to focus exclusively on the war crime of conscripting or enlisting child soldiers. Here, for example, is what Patricia Viseur Sellers, a former Legal Advisor for Gender and prosecutor at the ICTY has to say:

Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.

The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.

Given Moreno-Ocampo’s decision to charge Lubanga solely with conscripting or enlisting child soldiers, the Trial Chamber had no choice but to limit the amount of testimony the prosecution could introduce regarding sexual violence. The Chamber explained why in paras. 629 and 630 of its judgment:

629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.

630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.

Moreover, I think the author’s claim that “[t]he matter of sexual violence loomed large in the trial not by its presence but by its absence” is considerably overstated. Not only did sexual violence figure prominently in both the prosecution’s opening and closing arguments, as the Trial Chamber notes in its judgment, there was also considerable testimony concerning sexual violence during trial. The judgment points out in a footnote (n. 54) that 30 different witnesses, 18 female, 12 male, “referred to acts of sexual violence which they either suffered or witnessed.” And it discusses testimony given by one witness, P-0046, at length. Here is just a snippet of P-0046’s testimony:

890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. Some fell pregnant, resulting in abortions; and there were instances of multiple abortions. The witness gave evidence that the psychological and physical state of some of these young girls was catastrophic.

891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.

Should the Lubanga trial have included specific crimes of sexual violence? Absolutely. But the absence of those charges and the (relatively) limited testimony concerning sexual violence cannot be attributed to the Trial Chamber. If you are looking for someone to blame — and you should be — blame Luis Moreno-Ocampo.

NOTE: I have not addressed the victims’ efforts to add sexual-violence charges in the middle of trial. If you want to blame the Chamber for rejecting that request, fair enough. But I have already explained why I think the Chamber was correct.

On January 9, Command Sergeant Major John Wayne Troxell, the senior enlisted adviser to the Chairman of the Joint Chiefs of Staff, posted a rather incendiary statement on Facebook about the future of ISIS:

ISIS needs to understand that the Joint Force is on orders to annihilate them. So, they have two options should they decide to come up against the United States, our allies and partners: surrender or die!

If they surrender, we will safeguard them to their detainee facility cell, provide them chow, a cot and due process.

HOWEVER, if they choose not to surrender, then we will kill them with extreme prejudice, whether that be through security force assistance, by dropping bombs on them, shooting them in the face, or beating them to death with our entrenching tools.

The statement has provoked horror in many quarters — particularly concerning Troxell’s colourful endorsement of beating ISIS members to death with shovels. That horror, in turn, has elicited a long post at Lawfare from Laurie Blank explaining that, in fact, beating ISIS members to death with a shovel is completely lawful. As Blank explains, IHL permits lethal force to be used against combatants, a shovel is neither an indiscriminate weapon nor one that necessarily causes superfluous injury and/or unnecessary suffering, and there is no obligation not to attack a combatant who has not affirmatively surrendered. Blank thus concludes that “[i]n fact, though gruesome, the use of a shovel to kill an enemy in combat is entirely within the bounds of the law.”

As far as it goes, Blank’s analysis of IHL is absolutely correct. Her conclusion, however, overlooks one of the most basic principles of IHL: namely, that it is categorically unlawful to intentionally attack — or continue to attack — a combatant who is hors de combat because he is unconscious or incapacitated by wounds. As Jonathan Horowitz pointed out a few days ago at Just Security, essentially anticipating Blank’s post, once an ISIS fighter was rendered unconscious or incapacitated with a shovel, it would violate IHL and be a war crime to continue to hit him:

Someone who surrenders is only one of three types of fighters that the laws of war protect from attack, known as hors de combat. The other types are 1) anyone who is in the power of an adverse party (such as an unwillingly captured ISIS fighter) and 2) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. What this means is that, similar to ISIS fighters who surrender, these others types of people hors de combat also can’t be legally bombed or “beaten to death with entrenching tools.” If an ISIS enemy fighter is wounded and unconscious, he surely can’t surrender. But U.S. soldiers equally can’t then legally shoot that unconscious fighter in the face. Doing so would be a war crime.

Blank knows  all three prongs of the hors de combat rule (Art. 41(1) of the First Additional Protocol) as well as anyone, which is what makes her failure to discuss that critical limitation on the lawfulness of using a shovel as a weapon all the more odd. Words don’t just matter in war, as Jonathan powerfully notes. They also matter in popular discourse. It would be very unfortunate if a reader not particularly familiar with IHL came away from Blank’s post thinking it is “entirely within the bounds of the law” to beat an ISIS fighter — or any combatant — to death with a shovel. That isn’t the law, nor should it be. Just as you can’t beat an ISIS fighter to death with a shovel after he has surrendered or been captured, you can’t beat him to death with a shovel after he is unconscious or incapacitated.