Archive of posts for category

Why It’s Counterproductive to Discuss an MH17 Tribunal

by Kevin Jon Heller

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful:

Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on Tuesday during the annual United Nations general assembly meeting.

One of the proposals is for a tribunal similar to that established to prosecute Libyan suspects over the 1988 bombing of a Pan Am flight over Scotland.

Nations that lost some of the 298 passengers and crew in the MalaysiaAirlines disaster over eastern Ukraine in July 2014 are also looking at launching separate prosecutions.

A report by the Dutch led-investigation team, set to be published on 13 October, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

There is no question the victim states could create a tribunal via treaty — they would simply be delegating their passive-personality jurisdiction to the tribunal. The ICC is based on similar pooling of jurisdiction.

But what would creating such a tribunal accomplish? A treaty-based tribunal might have some ability to investigate the attack, given that MH17 was flying over non-Crimea Ukraine when it was shot down. But how would it get its hands on potential defendants? Pro-Russian separatists are almost certainly responsible for the attack, which means that the suspects are likely to be either in Russia-annexed Crimea or in Russia proper. Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal. That’s the primary difference between a treaty-based tribunal and a tribunal created by the Security Council: the latter could at least impose a cooperation obligation on Russia and sanction it for non-compliance. The tribunal being contemplated by the victim states could do no more than say “pretty please.” And we know how that request would turn out.

There is also, of course, that little issue of the ICC. Earlier this month, Ukraine filed a second Art. 12(3) declaration with the Court, this one giving the Court jurisdiction over all crimes committed on Ukrainian territory since 20 February 2014 — which includes the attack on MH17. So why create an ad hoc tribunal that would simply compete with the ICC? To be sure, the Court would also have a difficult time obtaining potential defendants, given that Russia has not ratified the Rome Statute. But it seems reasonable to assume, ceteris paribus, that an international court with 124 members is more likely to achieve results than a multinational court with five members. Moreover, there would be something more than a little unseemly about Australia, Belgium, and the Netherlands creating a treaty-based tribunal to investigate the MH17 attack. After all, unlike Russia, those states have ratified the Rome Statute.

The problem, in short, is not that the international community lacks an institution capable of prosecuting those responsible for the attack on MH17. The problem is that the international community has almost no chance of getting its hands on potential defendants. So until they can figure out how to get Russia to voluntarily assist with an investigation, victim states such as Australia and the Netherlands would be better off remaining silent about the possibility of a treaty-based tribunal. Discussing one will simply raise the hopes of those who lost loved ones in the attack — hopes that will almost certainly never be realised.

The Difference Between the British and American Debates Over the Legality of Drone Strikes: The Brits Seem to Care About International Law

by Julian Ku

Earlier this week, British Prime Minister David Cameron announced that the UK had conducted a lethal drone strike against one of its own nationals (affiliated with ISIS)  in August and that the British government was confident of the strike’s legality under international law.

As an outside observer, I am fascinated at how important the drone strike’s legality under international law seems to be for UK policymakers and commentators.  The BBC’s useful analysis of “Who, What, Why: When is it legal to kill your own citizens?” is exclusively focused on the legality of the strike under international law.  So is this editorial from the UK newspaper The Independent.

To be sure, the US debate over drone strikes also dealt seriously with international law.  But the most powerful legal arguments against drone strikes were those made on the basis of the U.S. Constitution’s Due Process Clause and U.S. statutes criminalizing murder of U.S. nationals abroad. International legality has not played a big part in this litigation, nor even in its broader public debate. Senator Rand Paul of Kentucky famously filibustered for a whole day against targeted killings but his legal complaint was wholly constitutional.

But as far as I can tell, there has been little discussion of whether the UK government’s killing of a UK national abroad violates the UK Human Rights Act (incorporating the European Convention on Human Rights) or UK statutory law more generally.  I may be missing something, but it does seem a telling difference in the nature of public and legal discourse in the two countries.


Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempted to frame the conflict within the context of international law and consider topics such as issues of legality and responsibility, the role of international law in conflict resolution, and what the conflict itself may show about the state of  international law and the international legal profession.  Following are two recent volumes and a set of videos covering a variety of such concerns:

The first is the current volume of the US Naval War College’s International Law Reports, which contains papers prepared for an October 2014 workshop organized by the West Point Center for the Rule of Law of the U.S. Military Academy and the Stockton Center for the Study of International Law of the U.S. Naval War College. These articles tend to focus on use of force and international humanitarian law related issues including Lieutenant Colonel Shane Reeves and Colonel David Wallace on the combatant status of “little green men,” Geoff Corn on regulating non-international armed conflicts after Tadic, and Opinio Juris’s Jens Ohlin on legitimate self-defense.

I was also one of the workshop participants and my paper, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. I address the question “of what use is legal rhetoric in the midst of politico-military conflict” by reviewing the laws of self-determination and territorial integrity and considering Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine.

In March, the Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of the Polish Academy of Sciences hosted a conference in Warsaw that brought together international lawyers from Russia, Ukraine, across Europe. (I was one of two participants from the U.S.) Given the breadth of views, the discussion was lively. Videos of the presentations are now available online. Panel topics include self-determination and secession (1, 2), use of force issues (1, 2), reactions of the international community (1, 2), issues of recognition and non-recognition (1), and the international responsibility of states and individuals (1).

In the West, we don’t often hear the Russian analyses of the international legal issues in the Ukraine conflict, so I want to highlight contributions by Prof. Anatoly Y. Kapustin, Institute of Legislation and Comparative Law and President of the Russian International Law Association (starting at the 36th minute of the panel on reactions of the international community), Prof. Vladislav Tolstykh of Novosibirsk State University (starting at the 52nd minute of the self-determination panel), and Prof. Evgeniy Voronin of MGIMO University (starting in the 54th minute of the use of force panel).

By the way, my own talk on the self determination panel begins at the 27th minute.

Third, the new issue of the German Law Journal is devoted to a broad range of approaches to assessing the conflict. The opening section uses the perspective of public international law. The next section, as described in the introduction by issue editor Zoran Oklopcic:

upset[s] traditional approaches by interrogating the professional commitments of international lawyers, insisting on the legal and factual hybridity of the conflict, and exposing larger ideational frames and their socio-economic underpinnings that make the conflict in Ukraine legally legible in a particular way.

Following this are discussions steeped in constitutional law and theory and normative political theory. The closing section proposes broader reform agendas and reconsiderations of the roles of law and of international actors. Contributors include organizer Zoran Oklopcic on early-conflict constitution-making, Brad Roth on the rules of secession, self-determination and external intervention, Mikulas Fabry on how to uphold the territorial integrity of Ukraine, Boris Mamlyuk on the Ukraine crisis, Cold War II, and international law, Umut Ozsu on the political economy of self determination, and Jure Vidmar on the annexation of Crimea and the boundaries of the will of the people.

I invite readers to point to other examples of scholarship on the Ukraine crisis via the comments section (or an e-mail to me). I think we all hope that this will become a historical incident rather than continue as a current event.

The Fog of Technology and International Law

by Duncan Hollis

[Note: This piece is cross-posted to the SIDIblog, the blog of the Italian Society of International Law, which was kind enough to ask for my views on these topics; for those interested in their other posts (in multiple languages), see here.]


  • War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty.

Carl von Clausewitz, Vom Kriege (1832), Bk. 1, Ch. 3.

  • It is a cruel and bitter truth that in the fog of war generally and our fight against terrorists specifically, mistakes — sometimes deadly mistakes — can occur.  But one of the things that sets America apart from many other nations, one of the things that makes us exceptional is our willingness to confront squarely our imperfections and to learn from our mistakes. 

U.S. President Barack Obama, April 23, 2015

I arrived in Rome for a month-long visit at LUISS Universita Guido Carli to find a country wrestling with the tragic news of the death of one of its own – Giovanni Lo Porto.  As President Obama himself announced, the United States inadvertently killed Lo Porto and Warren Weinstein, a USAID contractor, as part of a January drone strike targeting an al Qaeda compound in the Afghanistan-Pakistan border region.   Both aid workers were Al Qaeda hostages; Lo Porto had been kidnapped in 2012, while Weinstein was abducted in 2011.

The story made global headlines for Obama’s apology that the United States had not realized these hostages were hidden on-site, and thus their deaths were a tragic mistake:

As President and as Commander-in-Chief, I take full responsibility for all our counterterrorism operations, including the one that inadvertently took the lives of Warren and Giovanni.  I profoundly regret what happened.  On behalf of the United States government, I offer our deepest apologies to the families.

President Obama directed a “full review” of the strike, and there are calls for other investigations as well, including here in Italy.

Amidst this tragedy – and some of the apparent missteps by the U.S. (not to mention Pakistani) governments (painfully noted by Mr. Weinstein’s family) — there is something remarkable in the Obama statement.  Unlike so many other reports of U.S. errors or controversial programs in recent years (think Wikileaks or this guy), here was the U.S. Government, on its own, declassifying and disclosing the facts surrounding a drone strike that by all accounts appears to have included a major mistake in its execution.  For lawyers, moreover, such disclosures are critical – without them we are left with what I’d call the “fog of technology” which precludes the application of the rule of law in an open and transparent way.

Clausewitz’s concept of the “fog of war” is simple, and well known:  it describes the situational uncertainty that military actors face, their lack of perfect information about an adversaries’ intentions and capabilities (not to mention incomplete knowledge of their allies’ intentions and capabilities).   What looks good on paper before an armed conflict may prove unworkable as the conditions of war – physical hardship, the need for immediate decision-making, emotional strains, etc. – complicate decision-making, and with it, the achievement of military objectives.

I use the term “fog of technology” to identify a similar situational uncertainty that lawyers face when confronting the deployment of new technology.  Simply put, new technology can cloud how lawyers understand the content of law.  Of course, lawyers can assess new technology and find it analogous to prior cases, allowing for what I call “law by analogy”, where the nature or function of a new technology is regulated according to how an analogous technology or function has been regulated in the past.  But the more novel the technology – the more it can function in non-analogous ways, or with effects previously unimagined – the more lawyers may (or at least should) struggle with interpreting and applying the law to it.

Now, the fog of technology can emerge in all sorts of legal systems and all sorts of contexts from 3D printing to nanotechnology to driverless cars.  But President Obama’s explicit reference to Clausewitz makes me think about it in the particular context of warfare itself.  We are very much in a fog of technology when it comes to applying law to modern conflicts, whether it’s the remotely-piloted drone that killed Lo Porto and Weinstein, Stuxnet, or rumors of truly autonomous weapon systems (or “killer robots”).  Which domestic and international legal frameworks regulate the deployment of these technologies?  Does international humanitarian law (IHL) govern these operations, and, if so, does it do so exclusively, or do other regimes like international human rights apply as well?  To the extent a specific regime applies – IHL – how do its rules on things like distinction or neutrality apply to technologies and operations that may have no prior analogues?  More specifically, how does the law treat specific cases – was the killing of Lo Porto and Weinstein, tragic but legal, or was it an internationally wrongful act?

Of course, technology is not the only reason we have such questions.  Indeed, several scholars (most notably Michael Glennon) have identified the idea of a “fog of law.”  The rise of new types of non-state actors such as Al Qaeda continue to generate legal uncertainty; more than a decade after September 11, debates persist over whether and when U.S. counter-terrorism operations fall within a criminal law framework, or, as the U.S. insists, within the laws of armed conflict.   Similarly, when the United States targets and kills a U.S. citizen abroad (such as Ahmed Farouq, the American affiliated with Al Qaeda, who died in the same strike that killed Lo Porto and Weinstein), the question is not so much how the technology did this, but whether the U.S. Constitution regulates such killing.

Still, I think there are features of technology itself that make lawyering in this context significantly more difficult.  My co-blogger Ken Anderson recently summarized a few of the most important aspects in a recent post at the Hoover Institution.  He identifies several commonalities among cyberweapons, drones, and killer robots:  (i) their ability to operate remotely; (ii) their capacity for extreme precision (at least when compared to earlier weapons); and (iii) the diminished ease of attribution.  Of these, I think the problem of attribution is foundational; law will have little to say if legal interpreters and decision-makers do not know how the technology has been deployed, let alone how it functions or even that it exists in the first place.   In such cases, the fog of technology is tangible.

Consider the story of drones and international law. (more…)

Russia Lectures EU on International Law, Threatens to Veto Proposal to Attack Human Traffickers in Libya

by Julian Ku

Apropos of our guest post earlier this week, it looks like the EU will be stymied in its effort to seek authorization from the UN Security Council to use military force against ships used to traffic desperate migrants out of North Africa (h/t Walter Russell Mead).

“Apprehending human traffickers and arresting these vessels is one thing,” said Vladimir Chizhov, Russia’s ambassador to the EU. “But destroying them would be going too far.”He added that the destruction of ships without a court order and the consent of the host country would amount “to a contravention of the existing norms of international law”.

As Helmersen and Ridi argued, there is little if no legal basis for the EU to use military force without UNSC authorization. So Amb. Chizhov is quite right on the law.  But there is something striking about being lectured on this subject by Russia, especially in a context where military force seems much more justified than, say, in eastern Ukraine.

Guest Post: The Status of the Territory Unchanged: Russia’s Treaties with Abkhazia and South Ossetia, Georgia

by Natia Kalandarishvili-Mueller

[Natia Kalandarishvili-Mueller is a Lecturer in Humanitarian Law at Tbilisi State University, Institute of International Law, Faculty of Law, and a PhD Candidate at the University of Essex, School of Law. The views expressed in the post are that of the author only.]

Russia still occupies twenty percent of Georgian territory. On 24 November 2014, the Russian Federation and Abkhazia, one of Georgia’s breakaway region, signed a Treaty on Alliance and Strategic Partnership. The document is an avenue for Abkhazia’s incorporation into Russia’s military, economic, social and legal space. Particularly, it aims to create a common security and defence system and armed forces of Russia and Abkhazia in the form of joint defence and border protection forces and unifies standards of warfare management and law enforcement. Moscow also envisages the breakaway region’s support with military equipment. The provisions provide for the harmonization of the breakaway region’s legislation not only with that of Russia, but also with the standards of the Eurasian Economic Union. Russia also guarantees helping Abkhazia not only with its international recognition, but also facilitating Abkhazia’s membership in international organizations. On 18 March 2015, Russia and the other one of Georgia’s breakaway regions, South Ossetia, also signed a Treaty on Alliance and Integration (and here) containing basically the same provisions.

The Government of Georgia regards both these treaties as Russian annexation of Georgian territories (here and here). Georgia’s view is not without grounds. As a whole, the aforementioned documents also undermine the right to return and the right to self-determination of ethnic Georgians and their descendants who have been forced to flee their homes during the 1990s and 2008 armed conflicts. At present, the issue of the ethnic cleansing of Georgians is dealt with by the ICC, but only in the context of the 2008 armed conflict. The ICC Prosecutor’s Office Report on Preliminary Examination Activities (December 2014) observed that

[…] there is a reasonable basis to believe that South Ossetian forces carried out a widespread and systematic attack against the ethnic Georgian civilian population in South Ossetia and adjacent areas in the context of the armed conflict in the period from August 2008 through October 2008 that amounted to the crime against humanity of forcible transfer of ethnic Georgians under article 7(1)(d). There is a reasonable basis to believe that these forces also committed war crimes of pillaging under 8(2)(b)(xvi) and/or article 8(2)(e)(v) and destroying civilian property belonging to ethnic Georgians under article 8(2)(a)(iv) and/or article 8(2)(e)(xii) in the same period. (para. 140)

Hence, from the perspective of international law, the signed treaties raise complex issues such as the legality of the use of force, state formation, the management of natural resources, and the validity of these very treaties in light of the VCLT of 1969, occupation law, territorial annexation and the legality of self-determination of these territories. This post chooses to focus on the last three aspects, namely the interplay of the principles of annexation and self-determination in light of occupation law. Two questions may, therefore, be posed in light of the signed treaties:

  1. According to International Humanitarian Law (IHL), what is the relationship between occupation law and annexation of territory?
  2. What is the relevant legal framework for self-determination in international law and how may it be connected with occupation law?


Occupation Law and the Annexation of Territory

In light of the first question, I argue that even when an instance of annexation of territory takes place, the situation of occupation continues from the perspective of IHL, and the responsibility of the occupying power vis-à-vis the civilian population persists. Hence, no matter what type of treaty is forged or which agreements are achieved by Russia and the breakaway regions of Georgia, Abkhazia and South Ossetia will still remain occupied in light of Article 42 HR 1907. This stance echoes the reading of Article 47 of the GC IV, which states that:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

Likewise, the commentary to Article 47 regards the relationship between situations of occupation and those of annexation in the following way:

[…] an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.

Dinstein, too, considers that an occupant cannot take the title, i.e. the possession of the territory it occupies. The displaced sovereign, therefore, remains to be holding the title de jure and the annexation of the occupied territory by the occupant is prohibited (Y. Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, 2009, p. 49). Thus “any unilateral annexation of an occupied territory – in whole or in part – by the Occupying Power would be legally stillborn” (ibid. p. 50). Therefore, IHL does not fall mute, as it bases its application on the facts on the ground. The fact that Russia continues to exert effective control over Abkhazia and South Ossetia in light of Article 42 HR 1907 cannot be swept under the carpet. Even if Russia considers signing these treaties to be valid because it has herself recognised Abkhazia and South Ossetia as sovereign states, in light of the separability of ius ad bellum and ius in bello, for IHL the situation remains unchanged:

This complete separation between ius ad bellum and ius in bello implies that IHL applies whenever there is de facto armed conflict, however that conflict can be qualified under ius ad bellum, and that no ius ad bellum arguments may be used in interpreting IHL. (M. Sassòli, A.A Bouvier, et al., How Does Law Protect In War? ICRC, Vol. I, 2006, p. 103)


Occupation Law and Self-Determination

In light of the second question, I argue that a situation of occupation may end with self-determination. However, resorting to self-determination may only be justified once the effective control of the occupant over the territory is completely relinquished and the process of self-determination is free from any third-party interference, particularly by the former occupant. Furthermore, self-determination, if exercised contrary to the international law principles of state sovereignty and territorial inviolability, undermines these very principles. In 1970, the Secretary General of the UN stated that:

… as far as the question of secession of a particular section of a Member State is concerned, the United Nations attitude is unequivocable. As an international organisation, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of a Member State. (U. Thant, “Secretary General’s Press Conferences” (1970) 7:2 UN Monthly Chronicle 34 at 36)

There are two forms of self-determination: external and internal (A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995, p. 5). Internal self-determination means that an entity establishes its self-government within the internationally recognized borders of a state (C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, London School of Economics and Political Science, PhD thesis, 2009, p. 90). In practice, internal self-determination can take various forms, from simple cultural autonomy to the canton system in Switzerland (C. Dominicé, The Secession of the Canton of Jura in Switzerland, in Secession: International Law Perspectives, in M. G. Kohen (ed.), Cambridge University, 2006, pp. 453–469).

External self-determination, on the other hand, means that an entity determines its status under international law, establishes its position among the international community and regulates its relation with other states free from the intervention of any state (supra, C.A. Monteux, Institution Building in Kosovo: the Role of International Actors and the Question of Legitimacy, p. 90). Direct recourse to external self-determination (i.e., secession) could undermine not only the principles of sovereignty and territorial integrity, as mentioned above, but render the whole concept of self-determination unjust. As such, this right has been linked to the colonial period and was aimed to free the people from the oppressing regimes. In its decision, the Supreme Court of Canada makes this point explicit:

International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people […]. (Reference RE Secession of Quebec Supreme Court of Canada (1998) 2. S.C.R. 217 §112)

Further, the Canadian Supreme Court views external self-determination as a step of last resort in particular situations:

The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. (ibid., § 126)

It has to be mentioned that the circumstances which would pronounce the conditions for external self-determination in international law lack clarity. This is also evidenced by the stance the ICJ took in the advisory opinion on Accordance of International Law of the Unilateral Declaration of Independence in Respect of Kosovo, when it only dealt with the issue of whether or not Kosovo’s unilateral declaration of independence was in accordance with international law (§ 49-56 and § 82-83). Based on arguments of those in favor of external self-determination, Borgen summarized one possible way such a rule could be formulated:

“Any attempt to claim legal secession “that is, where secession trumps territorial integrity” must at least show that:

  1. 1. the secessionists are a “people” (in the ethnographic sense);

  2. 2. the state from which they are seceding seriously violates their human rights; and

  3. 3. there are no other effective remedies under either domestic law or international law” (C.J. Borgen, Kosovo’s Declaration for Independence: Self-Determination, Secession and Recognition, ASIL Insights, Issue 2, Volume 12, February 29, 2008 available here)

In the context of de-colonisation, the concept of self-determination meant that colonies were allowed to “secede” and form a state on their own. But when it comes to “communities that are not colonies and within existing states, self-determination means ‘internal self-determination’, the pursuit of minority rights within the existing state” (C.J. Borgen, States and International Law: The Problems of Self-determination, Secession, and Recognition in B. Cali (ed.), International Law for International Relations, Oxford, 2009, p. 207).

Therefore, before directly leaping to claims of secession, internal self-determination has to be exercised. In this context, the demographic situation of the territory must not be changed and all those who lived there and who were forcibly transferred away from it have to have a say in the future of its status. At least this is what permeates the logic of international law. This would respectively apply to the Georgians and their descendants who were evicted from Abkhazia and South Ossetia and who were the victims of ethnic cleansing, both during the 1990s armed conflicts and the 2008 war.

Examining self-determination and occupation law in tandem points to the fact that it has to be viewed in light of the element of consent, i.e. who gives consent of the presence of the hostile state on the territory. The lack of consent to be present on one’s territory during military occupation means the previous power/sovereign is absent from the territory and does not exercise effective control over it as any state ought to over its own territory. So that consent is regarded valid, it must not be coerced and be extended by the recognised government of the recognised state (E. Benvenisti, The International Law of Occupation, Oxford University Press, 2012, p. 67).

When an occupant claims not to have effective control over the territory, but remains on the territory either by an alleged invitation of the de facto regime or by a drawn-up treaty, not only the legality of the regime has to be questioned, but also the validity of the treaty has to be examined in light of the VCLT.

In my view, these are the points that bring to the forefront the tension between occupation law and the principle of self-determination. Any recourse to the right of self-determination of a territory should be done only once a situation of occupation has completely ended and even then it should only be exercised without third-party intervention in addition to restoring the original demographic situation. During military occupation, when elections or the determination of the political future of the occupied territory are underway without the genuine consent of the ousted government, the situation on the ground continues to be one of occupation.

[This post has been slightly revised from the previous version that was posted.]

Am I Missing Something or Does the New Trade Promotion Authority Bill Violate the U.S. Constitution?

by Julian Ku

I am slammed with a couple of projects right now, but I can’t help throwing this question out to the legal blogosphere.  Does the new “Bipartisan Trade Priorities and Accountability Act” recently introduced by leading U.S. Senators violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

The BTPAA seems crucial as the U.S. enters the final stages of its negotiations over the “Trans Pacific Partnership” (TPP) with Asia and the Transatlantic Trade and Investment Partnership (TTIP) with Europe because it allows the President to submit his negotiated trade agreements for a “fast-track” up and down vote that Congress cannot amend.

Because of congressional opposition, the new trade promotion bill has a provision that looks a lot like a “legislative veto” that allows a resolution passed by a majority vote by one House of Congress to withdraw the “fast-track” authority.   Here seems to be the key language.

(A) IN GENERAL.—The trade authorities procedures shall not apply to any implementing bill submitted with respect to a trade agreement or trade agreements entered into under section 3(b) if during the 60-day period beginning on the date that one House of Congress agrees to a procedural disapproval resolution for lack of notice or consultations with respect to such trade agreement or agreements, the other House separately agrees to a procedural disapproval resolution with respect to such trade agreement or agreements.

(B) PROCEDURAL DISAPPROVAL RESOLUTION.—(i) For purposes of this paragraph, the term ‘‘procedural disapproval resolution’’ means a resolution of either House of Congress, the sole matter after the resolving clause of which is as follows: ‘‘That the President has failed or refused to notify or consult in accordance with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 on negotiations with respect to ____ and, therefore, the trade authorities procedures under that Act shall not apply to any implementing bill submitted with respect to such trade agreement or agreements.’’, with the blank space being filled with a description of the trade agreement or agreements with respect to which the President is considered to have failed or refused to notify or consult.

Am I missing something? Even if (as the provision seems to say), a resolution of both houses is needed to withdraw fast track authority, the joint resolution doesn’t satisfy the presentment (to the President) requirement in the Constitution that the Supreme Court has repeatedly upheld in cases like INS v. Chadha and Clinton v. City of New York.  Unless the President has an opportunity to veto the “procedural disapproval resolution,” I doubt this law is constitutional.  I think the only saving grace is that the resolutions  withdrawing fast track can only be invoked if the President fails to notify or consult rather than on the merits.  But I am still very doubtful this difference matters. I haven’t carefully examined all of the legislation’s provisions, but this does strike me as an issue worth discussing.  Comments welcome!

Will the CIA abandon the analyst/operative divide?

by Jens David Ohlin

Mark Mazzetti of the New York Times says that John Brennan has proposed a major reorganization of the CIA that will, to a large extent, break down the deep bureaucratic divide between agency analysts and clandestine operatives.

Historically, analysts engage in research and, as their name suggests, intelligence analysis. Some of that was obscure and abstract–for example writing reports on the political situation in a country and the likelihood that a particular head of state might be deposed. But other aspects of that research might be of more immediate relevancy for agency clandestine operations–for example analysis of intercepted communications between known terrorists oversees that might yield actionable intelligence for a particular operation. However, despite the obvious relevance of the work performed by analysts, they were traditionally organized into separate divisions and reported to separate department heads from their operative counterparts who plan and execute clandestine operations oversees.

Now, John Brennan wants to collapse that distinction. As Mazzetti notes, there is already a template for collapsing the rigid boundaries between the roles. The CIA Counterterrorism Center combines analysts and operatives into a single division devoted to stopping terrorist attacks–a project that involves close cooperation between analysts and operatives. Brennan would take that successful model and apply it to the entire agency. According to Mazzetti, Brennan wants to divide the agency into geographical divisions responsible for both analysis and operations in each area of the world, just as the U.S. military is controlled by regional commanders.

Will Brennan get his way? Mazzetti quotes one former agency employee who is skeptical:

“Mark M. Lowenthal, a former senior C.I.A. analyst, said that the reorganization ‘is not going to go down smoothly’ at the agency, especially among clandestine spies who have long been able to withhold information from analysts, such as the identity of their foreign agents. ‘The clandestine service is very, very guarded about giving too much information about sources to the analysts,’ he said.”

“But Mr. Lowenthal, who said he had not been briefed about the reorganization and was basing his understanding of Mr. Brennan’s plan on news accounts, said that the new mission centers could help avoid a debacle like the intelligence assessments before the Iraq war, when analysts trusted information from sources they knew little about, and who were later discredited.”

The full implications of the bureaucratic reshuffling aren’t clear based on the skeletal news accounts so far. However, the plan does not appear to entail the dismantling of the CIA Directorate of Operations (aka National Clandestine Service). Rather, if I understand it correctly, operatives working for the directorate will report to a regional commander responsible for overseeing both analysts and operatives working in that geographical area. Where the overall head of the directorate of operations fits into this organizational chart, I have no idea.

Make Sure to Bring This Visual Aid When You Navigate to the Louvre

by Kevin Jon Heller

Sorry, Lonely Planet, there’s a new travel sheriff in town: Fox News. Witness this map, created by a guest on Fox & Friends to illustrate the eight “no-go” zones — areas under de facto Muslim control — in Paris (out of 741 in France itself):


Peterson, a former Air Force pilot, went on to describe Paris as “pretty scary” and compared it to Afghanistan, Iraq, and Kashmir. And the Fox & Friends host — an animatronic human being, model name “Elisabeth Hasselbeck” — simply nodded her head knowingly throughout his presentation.

To be fair, this kind of willful ignorance does have an upside: it makes people who watch Fox News much less likely to visit Paris. That’s good for all of us. In fact, the more Fox News viewers think of Europe in general as some kind of 70s-style Soviet hellhole, the better.

(Another upside: I’m supposed to be in Paris in a couple of months. After I get my traditional falafel on the Rue des Rosiers, I’m adding “conflict journalist” to my CV.)

H/T: Richard Metzger at Dangerous Minds. Make sure to read his post to see the hysterically funny French reaction to Peterson’s segment.

So Ukraine May Sue Russia for Violating Anti-Terrorism Financing Convention

by Julian Ku

Things are not going well for Ukraine these days as Russia has managed to solidify its control over Crimea and is continuing support for breakaway regions in Eastern Ukraine. It is very hard to justify the legality of Russia’s actions, so it is not surprising that Ukraine is looking for any and all international fora to sue Russia.

As usual, the great challenge is to find an international court with jurisdiction. Ukraine has added a bunch of new cases to the already crowded Russia docket of the European Court of Human Rights. But I had been wondering how Ukraine planned to bring Russia to other courts like the International Court of Justice since Russia has not accepted the compulsory jurisdiction of that court.

Well, according to this report, it looks like Russia has accepted the compulsory jurisdiction of ICJ for disputes under the International Convention for the Suppression of the Financing of Terrorism.   Article 24(1) of the Convention states:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Although Russia could have avoided jurisdiction under paragraph 2 (as the United States did), Russia did not do so. So Russia could face an ICJ case, which I imagine it will ignore.  But I am not sure it could brazenly claim the ICJ lacked jurisdiction, so it will be interesting to see whether Russia decides to litigate (and maybe even file counterclaims)?

Would Paddington Prefer Christmas Island?

by Kevin Jon Heller

I’m sure most of us will go see the live-action movie version of PADDINGTON, which recently hit the big screen. And we will do so, of course, because we are interested in what Paddington’s residence status says about the UK’s harsh immigration laws. Fortunately, Colin Yeo has prepared a nice primer for us at the Free Movement blog, run by the excellent Garden Court Chambers. Here’s a snippet:

Paddington stows away and deliberately avoids the immigration authorities on arrival. He is in formal legal terms an illegal entrant and as such commits a criminal offence under section 24 of the Immigration Act 1971. It is an offence punishable by up to six months in prison. If or when detected by the authorities it is more likely he would simply be removed back to Peru than that he would be prosecuted, though. To avoid that fate he would need to make out a legal basis to stay.

Incidentally, for offering a home to Paddington — or harbouring him, as the Home Office would have it — Mr and Mrs Brown could potentially face prosecution under section 25 of the Immigration Act 1971, entitled “Assisting unlawful immigration to member State”.

Yeo goes on to explain why Paddington will have a difficult time justifying his illegal entry into the UK — and will probably end up in a poorly-run private detention centre. (Do I hear sequel? Perhaps it could be entitled PADDINGTON MAKES A NEW FRIEND.)

It could be worse, though. Paddington could’ve tried to sneak into Australia. If he had, he’d likely be sent to the ironically-named Christmas Island, Oz’s very own prison camp.

Guest Post: The Italian version of Medellin v. Texas? Or, a new hope after Kiobel?

by Giacomo Pailli

[Giacomo Pailli is a PhD in comparative law at University of Florence, Italy]

Many readers will recall the judgment of the International Court of Justice in Germany v. Italy, where the Court upheld Germany’s claim of immunity under international law vis-a-vis Italy’s exercise of jurisdiction over certain Nazi crimes that had occurred during World War II. The decision received a lot of commentary, e.g., by Ingrid Wuerth on this blog and by Paul Stephan on Lawfare. Following the decision, the Italian Corte di cassazione, which previously found that immunity could not lie when crimes of such gravity were concerned, had no choice but to bend its head (see, e.g., its decision no. 32139 of 2012, also here, and no. 4284 of 2013). The story seemed settled and closed.

On October 22, 2014, however, the Italian Corte costituzionale wrote a new and surprising chapter with its decision no. 238. Upon referral by the Tribunale di Firenze, and faced again with claims against Germany by victims of Nazi’s crimes committed during WWII, the Constitutional court found that the ICJ holding in Germany v. Italy is contrary to fundamental principles of the Italian Constitution (namely, articles 2 and 24) in that it deprives victims of crimes against humanity of the possibility, altogether, to seek justice and redress for the torts suffered. Thus, the Constitutional court found that no effect to the ICJ decision can be given in the Italian legal system; Italian jurisdiction continues to hold and the Tribunale is free to proceed with hearing the merits of the dispute.

Technically, the Constitutional court applied a long established but (to my limited knowledge) seldom used constitutional doctrine.  It declared that the two Italian laws in question, one ratifying the UN Convention on States’ Immunity of 2004 (art. 3 of the law 14 January 2013, no. 5) and the other the UN Charter (art. 1 of the law 17 August 1957, no. 848) are partially unconstitutional to the extent they would require Italy to abide by the decision of the ICJ, which would force Italy to deny its jurisdiction vis-à-vis crimes against humanity.

I should stress that, as far as the law no. 848 of 1957 is concerned, the effect of this most recent decision is expressly and surgically limited to prevent the ICJ’s holding of 3 February 2012 from having effects within the Italian legal system; otherwise, the law is left completely untouched.