Author Archive for
Kristen Boon

Jurisdictional Overlap: Security Council Sanctions and the ICC

by Kristen Boon

A background paper for a High Level Review of Sanctions currently underway at the UN raises some important and interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.   In relevant part, the paper states:

Increasingly, the reach of sanctions has gone beyond those responsible for initiating and supporting threats to, or breaches of, international peace and security, to include perpetrators of conduct that could be crimes within the jurisdiction of the ICC (especially violations of international humanitarian law, human rights, attacks against civilians, recruitment of child soldiers, sexual and gender based violence), thus increasing the overlap. Inevitably, in some cases the same individuals are or could be subject to both ICC proceedings and to UNSC targeted sanctions.

Even where their “jurisdiction” overlaps, sanctions and the ICC have different objectives (and evidentiary standards): sanctions applied to a particular individual seek to protect “the peace” or, more concretely, civilians, from future actions of the individual, by constraining the individual’s ability to act; an ICC proceeding seeks to determine the accountability of that individual for past actions.

 

This overlap is significant for a number of reasons.  First, it shows an important evolution in sanctions design, from comprehensive sanctions, to targeted measures against specific individuals which run the risk “criminalizing” certain behaviors without a judicial process.   I should be clear that from the work I have seen of sanctions committees, restraint rather than overstepping has been the norm.  Nonetheless, it does present issues of “individualization” (which have been analyzed by Larissa van den Herik in the context of human rights and the Kadi and Nada cases in Europe).  Second, it raises issues of how the ICC and Security Council and its subsidiary bodies cooperate.  The ICC – UN Relationship agreement is a framing instrument here, as is Part IX of the ICC statute on cooperation.  That said, the absence of a general policy at the UN to designate individuals on sanctions lists (where a relevant sanctions regime exists) is striking.  The most high profile (read: political) example of that involves Omar Al-Bashir – despite an outstanding ICC arrest warrant against him, ongoing sanctions regime against the situation in Sudan, and a Security Council referral of the situation to the ICC, Bashir has never been designated under the sanctions regime.  As I argued in this post last year, a travel ban would have been one way to restrict his efforts to attend the General Assembly meetings in New York in 2013.  Finally, write large, it presents the old “peace versus justice” debate because of the different goals of sanctions (conflict management) and criminal prosecutions (atrocity for past acts.)

Mothers of Srebrenica Decision: Dutch Court holds The Netherlands Responsible for 300 Deaths in 1995 Massacre

by Kristen Boon

On Wednesday, a Dutch Court handed down a hotly anticipated decision on the Mothers of Srebrenica case, finding the Dutch state responsible for the deaths of 300 people who were sheltering with Dutchbat in July 1995, when the safe haven at Srebrenica fell.  The English translation is available here.

This ruling means the relatives of those 300 Bosniaks will be entitled to compensation.  Significantly, however, The Netherlands was cleared for the deaths of the more than 7000 other victims who were in and around Srebrenica, such as those who fled to the woods nearby.

This case follows a related decision, in which the UN was found immune from process for the deaths at Srebrenica.   See the 2012 decision of the Dutch High Court here.   And a subsequent decision by the ECHR confirming the UN’s immunity.

In the present decision, the concept of effective control was central to the Court’s findings.  In para. 4.33 the Court cited the Nuhanovic decision and DARIO Art. 7, and defines effective control as “factual control” of the State over Dutchbat’s specific actions. (Later, in para. 4.46 the court suggests that effective control is “actual say over specific actions whereby all of the actual circumstances and the particular context of the case must be examined.”) In Para. 4.37 the Court noted that command and control of Dutchbat was transferred from the Dutch state to the UN, which took place for the purpose of a UN peacekeeping operation based on Chapter VII of the UN Charter. The court found the Netherlands responsible for the deaths of those 300 because they were within its effective control.   See paras. 4.87 – 88.    In contrast, the 7000 who “fled to the woods”, and according to several claimants, did so on the basis of hand signals by Dutch soldiers, were not under the effective control of the Dutch state and hence not attributable to the Dutch state. The majority of those individuals then fell to Bosnian Serbs. Paras. 4.101 – 4.106.

The ruling also indicated that the Netherlands was responsible because the Dutch peacekeeping force, outnumbered by raiding Bosnian Serb forces, had handed over the same 300 Bosnian Muslim men and boys of fighting age after Gen. Ratko Mladic, commander of the forces, ordered that they be screened for war crimes. Para. 4.212. The District Court ruling said the peacekeeping force should have known that the Muslims were likely to be killed by the Serbs.

In my view, this decision will have three implications:

  • First, it will be of interest to Troop Contributing Countries, in that the determination of a national court that a state is responsible for the failure to prevent an atrocity and might be found liable for wrongs committed during a peacekeeping mission, despite an overarching UN Mandate, broadens the spectre of legal liability significantly.  In this vein, it should be considered alongside the Nuhanovic decision of 2013, also rendered by the Dutch Supreme Court, in which the Netherlands was found responsible for the deaths of 3 individuals during the 1995 massacre. I blogged about this case here.   On the relationship of the Nuhanovic decision to the Mothers of Srebrenica decision, see paras. 4.10 – 4.12.
  • Relatedly, it indicates the relevance of shared responsibility scenarios in international law. It develops the doctrine of attribution and related concept of effective control proposed by the ILC in the Articles on the Responsibility of IOs, and indicates that both a state and an IO can share effective control, and hence, potentially, responsibility, despite the UN’s presumptive immunity. See e.g. para. 4.45 in which the Court decides it does not need to examine whether the UN also had effective control, given the possibility of dual attribution. For magisterial treatments of this topic, see the work of the SHARES research project at ACIL, Amsterdam, run by Professor Andre Nollkaemper.   I note that I have a research interest in effective control, and have a forthcoming article on the topic to be published in the Melbourne Journal of International Law later this year.
  • Third, the decision brings us back to a very hot topic: the scope of UN immunity. Questions of UN immunity are front and center these days because of the three pending cases against the UN involving the introduction of cholera in Haiti. An important distinction between the Srebrenica decisions, and the Haiti Cholera cases, however involves operational necessity.   In the Srebrenica case, courts have been clear that the decision not to evacuate some of the Bosniacs near the safe haven fell within the context of operational necessity, which is central to the Security Council’s mandate under Chapter VII. Questions of operational necessity are considered “public” matters, which do not trigger the Art. 29 obligation to provide alternative means of settlement.   The idea behind the disctinction of public / private it that immunities are meant to protect the UN from vexatious litigation. By way of contrast, operational necessity has never been raised in the Haiti Cholera cases. To see my take on this distinction see my blogs here and here.

Are Security Council acts relevant to the formation of Customary International Law?

by Kristen Boon

Just like General Assembly resolutions can be indicative of state practice and opinio juris, I have always assumed that acts of the Security Council – an organ of the UN, composed of states – would be relevant as evidence and to the formation of customary international. Significantly, however, Security Council acts do not feature in the first report of the Special Rapporteur Sir Michael Wood, on the ILC’s current study on the formation of custom.  A word search reveals “zero” matches with Security Council, while the General Assembly comes up 13 times. There is no explanation in the report for why Security Council acts are not relevant to custom.

Given the Security Council’s power to legislate, this omission is both interesting and significant. One could surmise it is due to the Council’s composition – its members number 15 – as opposed to the universal membership of the General Assembly. Perhaps its not a big enough cross section, even though the P5 would presumably be big players in determining custom. Or perhaps it is related to the fact that the Council can act inconsistently, not always applying principles consistently in like cases. Further still, perhaps it emanates from distrust of the Council’s occasional role as a legislator. Indeed, if Security Council acts (and as a subsidiary matter, statements of Council members during meetings of the Security Council) are relevant to custom, then those same customary rules would bind the UN (and the Council as an organ of the UN), which raises important considerations with regards to the perennial debate about what legal limits apply to the Security Council.

The Council’s capacity to bind member states, and derivatively International Organizations, under Articles 25 and 48 is well established. Its ability to override inconsistent law under Article 103, and its demonstrated propensity to legislate in areas like anti-terrorism, and the many calls in the mid-2000s for Council power to be curbed through judicial review or other means, would lead one to expect at least consideration of the Council’s role.  It is noteworthy that in the Memorandum prepared by the Secretariat’s on the same topic, the Security Council is mentioned twice in relation to non-recognition of acts in breach of peremptory norms (citing the ILC’s commentary on State responsibility, which in turn cites Council resolutions on Iraq’s invasion of Kuwait and the situation in Rhodesia.) I note that Greg Fox and I are interested in the question of Security Council legislation, and are now embarking on an empirical assessment of the Council’s law-making in relation to the field of armed conflict.  As a result, I may have a vested interest in the debate…  Nonetheless, what do readers think:  should Security Council decisions be considered in regards to the formation of customary international law?

High Level Sanctions Review Launched at the UN

by Kristen Boon

A new High Level sanctions review has been initiated at the UN, sponsored by the UN Missions of Australia, Finland, Greece and Sweden, in combination with Brown University and the sanctions consulting firm CCI. The purpose of the review is to assess existing sanctions and develop forward looking recommendations to enhance effectiveness. A similar process took place in 2006, known as the Informal Working Group on General Issues of Sanctions, which resulted in some important policy documents for sanctions regimes.

This new review will focus on three issues:

  • UN integration and coordination on the implementation of UN sanctions (addressing opportunities to improve sanctions integration and coordination among the UN entities supporting the Council’s sanctions function, including sanctions committees, expert groups, the Ombudsperson and the Secretariat)
  • UN sanctions and related institutions and instruments. (addressing the intersections between UN sanctions and other international instruments and institutions dealing with international security, such as international arms control and disarmament mechanisms, international financial and economic regulatory systems, and international criminal justice institutions)
  • UN sanctions, regional organizations, and emerging challenges (Addressing opportunities to optimize UN sanctions as an effective tool in response to serious and systematic violations of human rights and international humanitarian law, enhance coordination with regional sanctions, and explore new applications to address evolving threats to international peace and security)

This promises to be an important endeavor. While some member states stressed that there was no need to “reinvent the wheel”, others noted the importance of coordinating with the ICC and not overburdening developing states.

From my perspective, this process will be relevant to international lawyers for three reasons:

  • There are increasingly complex questions about how sanctions committees interact with other mechanisms. Are sanctions, which target individuals, incompatible with peacekeeping exercises, which usually have a mandate of neutrality? How should sanctions, which focus on conflict prevention and peace building, interact with international judicial mechanisms, which focus on deterrence, and longer term judicial processes for individual criminal responsibility? Relatedly, how can the work of the ICC and sanctions committees be better coordinated?
  • What process of review should apply to targeted sanctions generally? Currently only the Al Qaida sanctions regime is overseen by an administrative review mechanism in the form of the UN Ombudspersons office. Individuals and entities targeted under other sanctions regimes only have access to a “focal point” which is viewed as being not much more than a mailbox, given its limited mandate. The ECJ’s Kadi decision of 2013 raised stakes on due process, finding that even the Ombudspersons office does not meet the standard of effective protection. The battle between sanctions regimes and courts has begun, with potentially significant stakes for the supremacy of Security Council resolutions under Art. 103 of the Charter, and the ability of states to implement sanctions in the face of court challenges.
  • Finally, the situations in which sanctions are applied are increasingly innovative. Hate speech, poaching of wildlife products, protection of civilians, exploitation of natural resources – these are but a few of the justifications for imposing sanctions in the last decade.   These indicate a broadening view of what constitutes a threat to the peace and a deepening interest in using sanctions as a broad based tool.

To watch the opening meeting and see the statements, the video is available here.

Haiti Cholera Case: New Briefs Filed on Privileges and Immunities

by Kristen Boon

New briefs have been filed in the Haiti Cholera case against the UN, now pending in the SDNY.    Plaintiffs filed a response to the US Government’s Statement of Interest, in which the US defended the UN’s absolute immunity.  The important treaty law argument the Plaintiffs advance in response is that:

Both international law and U.S. law provide that a material breach of a treaty or contract by one party excuses performance by other parties. Defendants’ failure to establish a standing claims commission, or any other mechanism for relief, should deny Defendants the benefits of immunity and the right to shield themselves from responsibility in the instant case.

In other words, they argue that the Convention on Privileges and Immunities of the UN has been suspended because the UN failed to set up a standing claims commission as required under Article 29.

In addition, two amicus briefs have been filed.  The first is by a group of International Law Scholars who argue that the the UN has an obligation to respond to claims of a private law nature, and that the Haiti cholera case does not involve operational necessity.

The second is by a group of European Law Scholars, who provide information to the Court on how cases on Privileges and Immunities have been addressed in European jurisdictions.   In particular, they analyze the important precedent of Waite and Kennedy, in which a “reasonable alternative means” test was adopted.    They also distinguish the Mothers of Srebrenica case in which the Dutch Supreme Court and later the ECtHR upheld the UN’s absolute immunity, because the Security Council was considered to be fulfilling its core function and the core of the case involved operational necessity.

Each of these briefs raises important international law arguments and ultimately invites the SDNY to decide whether the UN’s immunity is conditioned on the requirement to provide a forum for the settlement of private disputes.

Implications of Security Council Veto on ICC Referral of Syrian Situation

by Kristen Boon

Before yesterday’s vote on referring the situation in Syria to the ICC, Louise Arbour, outgoing President of the International Crisis Group and former UN High Commissioner for Human Rights, was quoted in the New York Times as saying “The only question in my mind is, will it belong to the cemetery of good intentions or the museum of political scoring? This is, in a sense, an exercise in using the I.C.C. and accountability for posturing.”   In other words, the ICC was never the best option.   I’ve seen several similar comments in the blogs, for example by Dov Jacobs here and Kevin here.

Nonetheless, for a Council that is deeply engaged with Syria, yesterday’s Security Council session marked another defeat for the people of Syria. Despite widespread member state support starting in 2013 for a referral, see this letter signed by 57 states to the Security Council,  and reports that 60 states supported the referral yesterday, the meeting marked the fourth time Russia and China vetoed resolutions involving Syria, and the first time the veto has been used on a proposed ICC referral.   For background on this resolution, see this Security Council Report analysis here.

Because international tribunals such as the ICC would only have the capacity to try a fraction of the crimes, it has always been clear that other mechanisms, such as hybrid tribunals like those in Bosnia, a specially created international court, or the Syrian courts themselves, will be necessarily be part of the judicial response to the ongoing atrocities being committed in conflict.  In this sense, the “pass” on the ICC referral doesn’t mean alternatives aren’t available.   Moreover, US support for this referral (albeit with concessions related to the Golan Heights and jurisdiction over American servicepeople) further closes whatever legitimacy gap the ICC may have had in American eyes.

The legitimate controversy over financing aside, the downsides of potential ICC jurisdiction over ongoing atrocities committed by the government forces and opposition forces alike are really ones that, institutionally, could have and should have been handled by the Court itself, as a separate and independent body. I don’t agree with arguments that the Security Council referral was complicated by the fact that opposition forces are implicated in the commission of atrocities as well, or that the Security Council needs to decide who (which side) should be prosecuted in advance of referring a situation to the court.   What this conflict does indicate however, is the deepening entanglement between international courts and the Council, a theme which runs broadly through the Council’s peace and security work, and through its sanctions practice as well.

This entanglement can be addressed in a few ways.  The First, is greater clarity and better mechanisms to improve the relationship between the Council and the ICC (amongst other courts), while maintaining institutional independence.   For an overview of the issues broadly cast, see David Kaye’s 2013 report here.   Second, working around the Security Council is another option.  Because Syria is not a party to the ICC, the options are limited, but Amb. Christian Wenawaser of Leichtenstein has argued that another route to ICC jurisdiction might be hoc submission under Art. 12(3) of the ICC Statute.   In a talk at the International Peace Institute in January, he stated that the Syrian Opposition could refer the situation to the ICC now, to show the opposition is claiming its competence and supports accountability.  Although it would be a political act, in time, he predicted it might become a legally valid referral if the Syrian opposition is eventually recognized as the government.   The ICC would of course be the ultimate judge of the legal consequences of any such referral, but optimistically, it could trigger jurisdiction from the moment such a declaration was made, not the moment it was accepted. The downside to this approach, however, is that it might become a political tool amongst the competing factions to bolster their status as the official opposition.

Third:  censure of the veto.  A number of prominent NGOs responded to yesterday’s session with a statement urging permanent members of the Security Council to adopt a “code of conduct” that would require the P5 to voluntarily refrain from using the veto in situations of genocide, war crimes, ethnic cleansing and crimes against humanity.  This NGO statement invokes the parallel effort by France to introduce a resolution that would restrict the use of the veto in cases of mass atrocity.   Although France’s efforts were referred to multiple times during the debate, yesterday’s double veto made clear the political costs of blocking the veto are not yet high enough to sway Russia and China’s persistent objections to judicial or other intervention in Syria.

Fourth, using the General Assembly in the spirit of the Uniting For Peace resolution.  Derek Jinks analyzes this path here.

As these options become more attractive by necessity, yesterday’s vote makes clear that the Security Council’s primary is under scrutiny.  Moreover, it reinvigorates the debate about whether the Council’s failure to act creates legal consequences for the P5, member states, or the UN itself.  As Deputy Secretary-General Jan Eliasson said yesterday:

“The Security Council has an inescapable responsibility in this regard. States that are members of both the Security Council and the Human Rights Council have a particular duty to end the bloodshed and to ensure justice for the victims of unspeakable crimes.”

Jus Post Bellum Symposium: What’s in a Name? The Great Definitional Debate over Jus Post Bellum

by Kristen Boon

Carsten Stahn, Jennifer Easterday, and Jens Iverson’s new edited collection Jus Post Bellum: Mapping the Normative Foundations is a terrific contribution to the Jus Post Bellum field. The 26 chapters (one authored by myself) address a range of central issues, including interrogating the structure, content, and scope of the three separate pillars of jus / post / bellum. While the contributing authors reveal some fundamentally different and even opposing views on the essential building blocks of the enterprise, this discord is a sign of the area’s salience. The chapters in this volume indicate that the ongoing inquiry into the principles that should apply after war continues to be an issue area of great interest to practitioners, policy makers and scholars of various disciplines.

Interest in the topic is illustrated by the graph on p. 544 of the book, which indicates the “rock star” status of the concept. Before 2002, there were virtually no references to jus post bellum in the literature. Since 2007, however, references to jus post bellum have jumped off the chart, indicating a growing concentration of scholarship that tranches the disciplines of law, political science, international relations, theology and philosophy. As someone who writes in the field, I see the following as key pillars of jus post bellum investigation: (i) the recognition that building a sustainable peace is important to stopping cycles of conflict; (ii) the UN’s regular engagement in post-conflict reconstruction (raising practical questions about what types of post-conflict activities are important, and what laws should inform and limit IO activities), and (iii) exploring how the jus post bellum principles relate to, add and alter our existing legal framework, particularly with regards to humanitarian law and doctrines like the Responsibility to Protect.

At the meta-level, there are polarized views on the definition of jus post bellum, and more centrally, the utility and enforceability of a jus post bellum framework. Some scholars see that disagreement as a source of potentially useful debate (see in particular, chapters by Vatanparast, Easterday and Bell), while others focus on the conceptual unclarity that flows from these differences of views, emphasizing the limitations from a gender perspective (Hi Aolain an Haynes), the importance of clarifying the relationship with existing bodies of legal doctrines (Fox), and the potential for politicization (Vatanparast).

I note, with some irony, that some of my own work on the subject, all of which is less than 10 years old, appears to be classified as a product of the “old guard” (Introduction at 4), in that I have advocated a restrictive definition of jus post bellum and the norms that might apply in conflict situations. For example, in a 2005 article available here I define jus post bellum as the justice of post-war settlements and reconstruction, and I focus exclusively on non-consensual interventions. Others in the volume, in contrast, argue for interpretive and functional definitions, which are classified as newer approaches to the field. While these approaches certainly merit exploration, I continue to defend, and see greater value in a narrow but deep definition of jus post bellum. One reason is that to the extent that jus post bellum can and will serve a regulatory function, perhaps one day even evolving into a new Geneva Convention, there needs to be practical guidance, on concrete issues, drawn from identified cases. There is a necessary and critical reflective process that is required to getting to those regulations. My approach doesn’t suggest that philosophical inquiries should be short-circuited or curtailed, or that there isn’t value in the dialogue. However, in my view, there are considerable benefits in moving the conversation towards concrete proposals that could have a daily impact on actors in the field, such as the UN. I believe this is most effectively done when we consider jus post bellum as set of legal principles that apply in the transition from conflict to peace, as opposed to a site for exploration.

Another reason I believe a narrow approach is preferable is that there may be greater legitimacy in a narrow set of accepted principles than broad and prescriptive tools that miss the nuances of particular situations. Indeed, a relevant analogy here might be the ILC’s 2011 Draft Articles on the Responsibility of International Organizations (RIO), which, many have argued, would have been more relevant if they were less ambitious. I outline some of the controversies over the RIO articles here. For example, if the ILC had taken on a few issues in areas where there was developing practice and a perceived need for common regulation, it may have resulted a set of proposed Articles with more buy-in from IOs. As it stands, the decision to tackle the wide range of topics developed in the context of State Responsibility, and try to apply them to all IOs writ large, left many feeling that insufficient attention was given to the fundamental differences amongst IOs.

My chapter in this book, titled Jus Post Bellum in Non-International Armed Conflicts, addresses the applicability of jus post bellum to Non-International Armed Conflict Situations (NIACs). Because internal conflicts are regulated by fewer norms than international conflicts, NIACs, which are statistically the most frequent forms of conflict today, raises the following question: should the scope of Jus Post Bellum be different for NIACs? I argue for a “bounded discretion” approach, which would uphold the applicability of universal values that are derived from human rights, international criminal law and international humanitarian law, while instilling deference to local law-makers on issues of rebuilding, reconstruction, and constitutional design. I use the examples of margin of appreciation and the doctrine of subsidiarity to support this approach, to show how multi-level governance theories are relevant to jus post bellum. I argue that in applying jus post bellum, there should be a preference for governance at the most local level, unless the norms are non-negotiable, such as those derived from human rights. The editors of the book have recently applied this concept to justify a principled deviation from peacetime standards.

A final reflection on the scope of jus post bellum comes from a related body of work I am engaged in on UN sanctions. In assessing the Security Council’s peacebuilding activities through the guise of sanctions, I have been struck by the extent to which the Security Council is an important player in the jus post bellum field. Although the Council’s actions are discretionary, sometimes inconsistent, and are not applied in a regular way to like-cases, the Council has, nonetheless, been involved in some way, with almost every most major international conflicts in the last 20 years, save perhaps, Sri Lanka and Myanmar. Indeed, under the so-called sanctions for peace in Liberia and Cote d’Ivoire, the Council has brought about considerable transitions which fall within the jus post bellum framework, by, for example, mandating free and fair elections, an end to the incitement of violence and intolerance, management of natural resources, changes to the government’s administrative infrastructure, and cooperation with international courts and tribunals. I thus agree with Dieter Fleck’s observation on p. 62 that Security Council resolutions alone are not sufficient to create a jus post bellum framework, but there is no question that they provide distinctive areas to evaluate and should not be overlooked. Moreover, the Council’s references to peace agreements in sanctions resolutions, and its role in authoring and enforcing international norms, signifies its significant engagement in and influence over peace building and the jus post bellum. Stay tuned for a future post on this issue, which draws from an article I am writing on the topic.

I have little doubt this book will soon become essential reading for those interested in jus post bellum: it contains an incisive set of analyses on a range of important topics, and makes great inroads in continuing to map the field of jus post bellum. I am grateful both for the opportunity to have contributed to the volume, and for the chance to wear my other hat as an Opinio Juris blogger, to reflect on one of the central issues I saw emerging from the volume: the definition of jus post bellum.

ASIL Mid-Year Research Forum – this year in Chicago

by Kristen Boon

The ASIL Mid-Year Research Forum has fast become known as one of the best workshopping opportunities for new and established international law scholars alike.  It was launched by Kal Raustiala in 2011 at the Mid-Year meeting in LA, moved to Athens, Georgia in 2012, northwards to New York in 2013, and this year will take place in Chicago from November 6-8, 2014.

Tim Meyer and myself were the co-chairs of last year’s research forum in New York, and so I can personally attest to the high quality of papers presented, the wide range of topics discussed, and the frank and stimulating discussions that organically took place during the meeting.

This year, we passed the batons onto the very able Katerina Linos and Karen Alter, who are the 2014 co-chairs.  I highly encourage everyone to participate in this event; even if you are not submitting a proposal, individuals are invited to volunteer as discussants.   This event demonstrates the central role of new scholarship at ASIL. Here is the call:

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting in Chicago November 6-8, 2014.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress.  All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication).  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome.

Proposals should be submitted online (use form below) by June 8, 2014. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum.

Review of the abstracts will be blind. Notifications of acceptance will go out in mid-July.

Papers will be assembled into panels. The organizers welcome volunteers to serve as discussants who will comment on the papers. Please e-mail submissions [at] asil [dot] org if you are interested in serving as a discussant. All authors of accepted papers will be required to submit a draft paper four weeks before the Research Forum. Drafts will be posted on a web page accessible exclusively to Forum participants.

 

For More Effective Sanctions, Time to Examine Question of Termination

by Kristen Boon

Over the last two decades, the key policy question surrounding multilateral sanctions has been effectiveness. Because of studies that suggest that sanctions are effective only about one-third of the time, there has been a concerted effort to develop so-called “smart sanctions,” which increase the effectiveness of Security Council sanctions at the front end by targeting specific groups, individuals, and entities. See, for example, reports here and here that detail the shift away from comprehensive sanctions towards targeted sanctions on the basis of effectiveness.

The emphasis on targeting at the front end, however, has overshadowed an important back-end question that is equally important to effectiveness: termination. This policy lacuna is significant because, once imposed, sanctions tend to stick. Indeed, my research shows that Security Council sanctions tend to last considerably longer than sanctions imposed by regional organizations, and that shorter sanctions episodes are often more effective. In other words, sanctions of long duration may detract from their effectiveness.

Since the end of the Cold War, sanctions have emerged as one of the Security Council’s primary tools for conflict management. Over this period, the objectives of Security Council sanctions have become increasingly ambitious. Although the measures of targeted sanctions are today quite standard, and usually include an arms embargo, asset freeze, and commodity sanctions, the objectives to which those measures are applied can be wide ranging. For example, the objectives of ongoing sanctions today include ending recruitment and targeting of women and children in conflict situations; the protection of civilians; the observance of human rights and international humanitarian law; and longer-term reform of national institutions such as the police, the security sector, and the justice system.

This new generation of sanctions, with their broad goals and transformative objectives, requires new thinking about termination policies. At present, the termination of sanctions is approached in one of three ways: a defined sunset clause, a commitment to review, or an indefinite term. There is no standard policy with regard to which model is used when, although the pattern that has emerged is that sunset clauses of 12–18 months are used in conflict management situations, whereas indefinite sanctions are more likely to be applied where the focus is international security, terrorism, and non-proliferation.

The choice between time-bound or indefinite sanctions is a political one. In 2004, David Cortright and George Lopez reported that time limits were a divisive issue for the Chowdhury working group (an informal working group on Security Council reform), finding that some nations vigorously opposed them, while others wanted to maintain indefinite pressure on recalcitrant regimes.

Clear termination policies are relevant to sanctions’ effectiveness for two reasons. First, targeted sanctions that contain clear objectives can shorten conflict cycles. Because sanctions work best as a means of persuasion and not punishment, a powerful inducement is to provide incentives for compliance with criteria for lifting sanctions. Clear termination policies aid in this goal. Second, shorter sanctions should be encouraged. The incentive to comply will be strongest when narrow, and decisive, sanctions are imposed and carefully managed, in comparison to measures that languish without effecting a change in behavior.

In Sudan, for example, there is a general consensus that the sanctions imposed under Resolution 1591 in 2005 have stalled. There have been no new listings since 2006; no consensus on harmonizing the existing sanctions with a parallel ICC investigation; and little evidence that the sanctions have aided the victims of the ongoing conflict. It is time to consider a sunset clause: wind down these sanctions that are widely viewed as ineffective, and turn to a different method of diplomacy, coercion, conflict management, or even a new and refined set of sanctions.

A related issue is the duration of particular measures under an existing sanctions regime. Refocusing sanctions to better manage the timeline of particular measures would improve effectiveness. For example, does the ongoing arms embargo against al-Qaeda make sense when the real threat appears to be coming from regional spin-off groups? In comparison, efforts to impose narrowly targeted sanctions against al-Shabaab in the Somalia/Eritrea regime or Yemeni al-Qaeda affiliates under the Yemen sanctions are a step in the right direction.

The availability of an internal review process, such as the UN Ombudsperson’s Office, which has the power to consider de-listing requests from those under the al-Qaeda regime, will be relevant to which termination policy is chosen. Although I argue that the default should be short and managed sanctions cycles with defined sunset clauses, an ongoing review process where individuals and entities can bring de-listing claims and are afforded due process protections could justify open-ended sanctions or sanctions subject to review.

Criteria for the termination of sanctions regimes are as essential to the effectiveness of sanctions as intelligent sanctions design. While it is recognized that better targeting may help to shorten conflict phases, the relationship between well defined goals, incentives to encourage compliance, and terminating sanctions regimes has been overlooked. When the objectives of a sanctions regime are met, the sanctions should be amended, repealed, or terminated as soon as possible. This can be achieved through a renewed debate over the policies on sanctions termination and the start of a new dialogue about the best practices of termination.

Want to read more?  Please see my new IPI report entitled Terminating Security Council Sanctions.  This article was first published on the Global Observatory.

 

Disaster Displacement: Gaps in International Norms

by Kristen Boon

There is an interesting interview with Professor Walter Kahlin, former Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons, on disaster displacement over at the IPI’s Global Observatory.

He discusses why the current international law regime on refugees is incomplete when it comes to displacement.  He explains:

Back in 2010, Haiti was hit by one of the most devastating earthquakes, and hundreds of thousands who were displaced within the country immediately found refuge in makeshift camps. But many showed up already during the very first night—the first few days after the earthquake—at the border of the neighboring Dominican Republic. The question for the president was: should he open the borders or should he keep them closed? And he couldn’t get any guidance from any kind of international law because these people, even though they didn’t have any opportunity at that time for their wounded family members to access medical assistance (this came only later), they were not protected as refugees or in any other kind of quality by international law. A gap.

The IMO concurs, stating:  “climate refugees fall through the cracks of asylum law.”   This is clearly an area ripe for reflection.    Do climate refugees have a right of access to neighboring countries?   What should the definition of “climate refugee” be?    More importantly, given the problem of differentiating between climate disasters and natural disasters, it makes it very difficult to determine the different obligations of the international community.    There appears to be little appetite to revise the 1951 convention on the status of refugees to include climate refugees, which would afford them protections akin to political refugees.  Interestingly, the UNHCR has spoken out against this approach, claiming that while environmental degradation can contribute to forced, cross-border migration, this should not translate into more grounds for granting refugee status.

There are some interesting initiatives afoot to fill the gap.   The Nansen initiative, a self-described  “bottom-up” initiative is starting to canvas the norms that might apply.   Information is available here.   The ILC is studying the related question of protection of persons in the event of natural disasters here.   Academics have entered the debate.  Professor Katrina Wyman at NYU has canvassed the current models and proposed a “rights model” in an article here, which would boost the levels of migrants from developing to developed countries to begin with.  She writes:

How might immigration policy be changed to increase resilience in developing countries vulnerable to the effects of climate change? One option would be to make it easier for citizens of developing countries that are vulnerable to climate change to move to destination countries temporarily or permanently, for example, by boosting allowable immigration levels from these countries.

Do our readers have any other suggestions on important sources or approaches to this important new international issue?

Russian Roulette: Firing Blanks in the Sanctions Against Russia?

by Kristen Boon

As widely reported in the press last week, President Obama announced sanctions against Russian and Ukrainian officials.   On Thursday, March 20, the “blacklist” was expanded to 2 banks and 20 officials, as detailed in this press release from the US Treasury.     Separately, the EU imposed sanctions on 21 individuals, including Russian military commanders.

The U.S. goals, President Obama said, are “to isolate Russia for its actions, and to reassure our allies and partners” of American support.    Under the U.S. Treasury’s ruling, assets belonging to designated individuals within U.S. jurisdiction will be frozen, and business between U.S. entities and the Russian parties in question will be halted.     In retaliation, Russia imposed sanctions against nine officials, including Republican Senator John McCain and Speaker of the House John Boehner.

According to President Obama, the goal of US sanctions is:  “[To] send a strong message to the Russian government that there are consequences for their actions that violate the sovereignty and territorial integrity of Ukraine, including their actions supporting the illegal referendum for Crimean separation .”

I have been studying multilateral sanctions for much of the past year, and the theory behind targeted sanctions in that context is that in order to change behavior, there must be an incentive to comply.  As the sanctions expert Mikael Eriksson writes, “The typical goal of such measures is to influence decision-makers by engaging or isolating them through targeted financial restrictions, and travel bans and other measures . . . targeting involves different tactics, but in principal, pressure is exercised by a combination of punitive measures, incentives and conditionality to entice or coerce designated targets to change their behavior.”

Moreover, a 2007 report of the Security Council’s Working Group on Sanctions states: “Experience has shown that sanctions work best as a means of persuasion, not punishment: sanctions should include carrots along with sticks—not only threats, but inducements to elicit compliance. The target must understand what actions it is expected to take. And partial or full compliance should be met by reciprocal steps from the Council, such as easing or lifting sanctions as appropriate.”  (UN Security Council, Letter Dated 12 December 2007 from the Permanent Representative of Greece to the United Nations Addressed to the President of the Security Council (December 13, 2007) UN Doc. S/2007/734, p. 3)

The only available sanctions against Russia are so called “unilateral” sanctions, by states like the US and organizations like the EU.  Although the United Nations has a well-developed practice of targeting, and in fact has exclusively applied targeted sanctions since 1994, Russia’s unsurprising veto of a draft resolution on the Ukraine on Saturday March 15 foreclosed the opportunity to apply multilateral sanctions against the Ukraine or Russia.   There is consequently no way to apply global sanctions against Russia.  Nonetheless, there may be some useful lessons.

So far, the US sanctions are clearly designed to act as a “stick:” to indicate further consequences will follow any new incursions into the Ukraine, and to signal displeasure with supporting the referendum for Crimean separation.  But do the US or the EU believe at this point that Russia will pull out of Crimea? It seems unlikely and if that is true, these are punitive measures to the extent they are focussed on the referendum and attempted annexation.

The US has an even bigger stick in the wings:  more sanctions against sectors of the Russian economy.    President Obama signed an executive order described here that would allow the administration to apply future sanctions against industries including financial services, metals and mining, energy, defense and related material, and engineering.    These could have a huge impact on the Russian economy, as the New York Times explains, and would likely affect the economy of other countries in Europe as well.

I have seen nothing so far to indicate whether an incentives based strategy is at play here.  I suspect this is partly a question of timing -  it is too soon to entice compliance.  After all, their effects are only starting to be felt.  But for unilateral sanctions by the US and EU sanctions to be effective, it may be necessary to consider carrots.   One of the most tried and tested incentives is to offer the lifting of sanctions.  When a domestic polity backs a particular approach, this is easiest.  Sometimes other techniques are employed as well, whether to include people at the bargaining table who would otherwise be barred, or to offer economic incentives.  Neither of these techniques seems likely in the present situation because the individuals targeted are not outsiders, but part of Putin’s cohort.

As a result, these sanctions may be around for some time.  Presently, it seems unlikely that the Russian ‘targets’ will comply of their own accord.  Moreover, the surge in Putin’s popularity after the attempt to annex Crimea, suggests that there is little domestic opposition to recent developments.

Developments in the Haiti Cholera Case: US supports absolute immunity of UN and two new suits filed

by Kristen Boon

There have been some interesting developments this past week regarding the legal proceedings against the UN following the outbreak of cholera in Haiti in 2010.  For background on this tragic and politically sensitive case see my prior posts here, here, here and here.

Readers will recall that efforts to obtain compensation for the victims moved to US courts in October 2013, when the Institute for Justice & Democracy in Haiti initiated a law suit, Georges et al v. UN in the Southern District of New York.

On Friday, March 7, 2014, the United States filed an 18 page “statement of interest” in the case (at the request of the Court) in support of the UN’s absolute immunity from process.  The full document is available here.   It argues that all defendants, including the UN and MINUSTAH, are immune from suit, absent an express waiver.   Citing three cases on treaty interpretation, the statement of interest also asserts that if there is any alternative reading of the General Convention’s text, the Court should defer to the Executive Branch’s interpretation.

Another important development is that within the last week, two new suits have been filed against the UN, which seem to borrow from and overlap with the class of plaintiffs proposed in Georges et al. v. United Nations.    On March 6, Petit Homme Jean-Robert  et. al. v UN was filed by Emmanual Coffy, a Haitian American lawyer.

The case filed on Tuesday, Laventure v. UN, is another class action, and the press release states the attorneys involved have had experience in national tobacco lawsuits, the national BP gulf oil spill, and recent Goldman Sachs aluminum antitrust litigation.  The latter suit is of particular interest because the central argument is that the UN expressly waived its sovereign immunity in its 2004 agreement Status of Forces Agreement (SOFA) in Haiti.  The basis of this argument is para. 54 of the SOFA which states:  “Third-Party claims for…. Injury, illness or death arising from or directly attributed to (Stablization Agreement) shall be settled by the United Nations …. And the United Nations shall pay compensation.”

What should we make of all these developments?

There is no question that the UN’s immunity is extremely broad.   Privileges and Immunities are meant to protect the UN’s independent functioning and shield it from vexatious litigation.  Nonetheless, the position that the UN’s immunity is absolute deserves careful examination.

Section 2 of the General Convention protects the UN from any form of Process, while Section 29 of the Convention on Privileges and Immunities of the UN requires the United Nations to “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”   This has not happened in this case.  I argued in an earlier post that Article 29 mitigates the absolute de facto immunity of the United Nations, and August Reinisch has argued that the rationale of Section 29 is to ensure due process of law and to protect fundamental human rights.

Courts have been willing to limit the immunities of IOs when no dispute resolution mechanism has been provided.  Following the 1997 cases of Waite and Kennedy, an employment dispute involving the European Space Agency, European courts have often linked immunities to “reasonable alternative means.”  To date, US courts have not followed this trend.  In a 2010 employment case in the Southern District of New York, Brzak v. UN, the Court found that the UN possessed absolute immunity.  Nonetheless, it is possible that the facts of the Haiti cases are such that the Courts will revisit this approach.

Another noteworthy contextual factor is that the US Government is acting defensively in supporting the UN’s absolute immunity.   If a state disregards an international organization’s immunity, it might give rise to allegations of international responsibility on the part of the forum state, which wrongly asserts jurisdiction over an international organization.  (See August Reinisch, International Organizations Before National Courts, 2000).   Moreover, the US is home to a number of important organizations, and the failure to uphold immunity would have consequences far beyond this case.  Nonetheless, the US Government’s position is to be contrasted with the efforts of individual congress members who have urged the UN to settle with victims.

If the UN has in fact waived its immunity, as the lawyers in the new case Laventure are attempting to prove, it provides a strong basis for these cases to proceed.  But I don’t read Art. 54 of the SOFA as a waiver of immunity.   It certainly does not expressly waive immunity.  Instead, this provision, like GA A/RES/52/247, the other instrument on which they rely, addresses limitations on UN liability, which is quite a different beast.

It has become apparent that this case is not going away.   It is very unlikely a US court will read down the UN’s immunity and permit the cases to proceed, and yet, there are different ways to dismiss a case, particularly given the facts here. Its also clear, however, that the victims have not yet had a satisfactory response from the UN, and that ultimately resolution must come from the UN itself.