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PTC I’s Problematic Closed, Ex Parte Hearing on the Myanmar Situation

by Kevin Jon Heller

Last Friday, Pre-Trial Chamber I issued an Order Convening a Status Conference to consider the OTP’s request for a ruling on whether the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh — an issue I discussed here. According to the Order, the status conference will be held “on 20 June 2018… in closed session, only in the presence of the Prosecutor.”

I find a number of aspects of the short Order troubling. To begin with, I don’t understand why the PTC believes the status conference has to be held in closed session. Whether the ICC has jurisdiction over deportation from a non-member state to a member state is a pure issue of law, so what justifies the secrecy?

The answer seems to come in paragraph 4 of the Order, where the PTC says that, “[w]ith a view to adjudicating the Prosecutor’s Request, the Chamber orders the Prosecutor to consider the issues set out in the annex appended to the present order and to address them during the status conference.” The PTC thus clearly believes that there are other issues at stake concerning the OTP’s request in addition to the purely legal one. But the annex is also secret, so we have no idea what those other issues might be.

I am also troubled by the ex parte nature of the status conference. Why are counsel for Myanmar and Bangladesh not invited, given that the interests of those states are obviously affected by the jurisdictional issue — particularly Myanmar’s, given that the conference concerns the potential criminal responsibility of its officials? Even if the PTC is within its power to hold the status conference ex parte (which it probably is), doing so will only further alienate non-member states concerned with the ICC’s overreach and penchant for secrecy. So I hope the PTC has a very good reason for inviting only the OTP.

Finally — and perhaps most problematically — there is no doubt whatsoever that the PTC’s Order violates the Regulations of the Court, which the judges themselves wrote and adopted. Here is Regulation 20, concerning public hearings (emphasis mine):

1. All hearings shall be held in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber.

2. When a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order.

Even if we assume that the PTC has the power to hold a closed hearing, the Order does not comply with Regulation 20(2). The Order makes no attempt to explain why the status conference cannot be held in public. Literally none.

The PTC’s failure to comply with the Regulations and its general lack of transparency is unacceptable given the stakes — legal and otherwise — in the Myanmar situation.

ANZAC Day and Post Conflict Reconciliation

by Chris Jenks

[Chris Jenks is an associate professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in the US.]

On April 25th, I had the privilege of attending an ANZAC Day dawn service at Kranji War Memorial Cemetery in Singapore jointly sponsored by the Australian and New Zealand High Commissions. While the significance of ANZAC Day is innate to the Aussies and Kiwis, I’m betting that the ANZAC Day story, and particularly the unique relationship with World War I enemy Turkey, is largely unknown to the wider OJ audience.

ANZAC (Australian and New Zealand Army Corps) Day is April 25th, the day in 1915 some 16,000 Australian and New Zealand soldiers landed on the beaches of what was then Ari Burnu Turkey, as part of the Gallipoli Campaign during World War I. By day’s end over 2,000 ANZACs and 3,000 Turks would be dead, though this would prove but a bloody down payment on the total human cost. Britain’s First Lord of the Admiralty, Winston Churchill, was the campaign’s architect. Employing a force of British, Commonwealth and French forces, the mission was to seize the Gallipoli peninsula in order to allow the allied navies to transit supplies to Russia and to threaten and ultimately capture Constantinople (now Istanbul) the capital of Turkey, a wartime ally of Germany. While Winston Churchill’s grandson has continued to defend the Gallipoli campaign as ‘the right thing to do’ , the chief historian at the Australian War Memorial contends that “really it was a foolish plan that was ill-conceived and resulted in a useless waste of far too many lives for no good effect.” Arguably the key to the Turkish defense was the efforts of Turkish Army Colonel Mustafa Kemal. [After WWI Turkey became a Republic and Kemal its first President. The Turkish National Parliament later honored him with the title Atatürk or Father of the Turks.]

On that first day the allies established such a minimal beachhead that they considered evacuating, to which the General Sir Ian Hamilton, the British commander of the operation replied “[y]ou have got through the difficult business, now you dig, dig, dig, until you are safe.” Wrong on all counts, other than that the allies, and the Turks for that matter, most certainly did dig. What followed was eight months of stalemate warfare that killed or wounded over 130,000 allied troops (roughly 28,000 of which were Aussies and close to 8,000 Kiwis) and well over 200,000 Turkish soldiers. The First World War was defined by horrific trench warfare yielding minimal strategic or even tactical advantage at the expense of millions of lives lost. What makes the Gallipoli campaign so significant? While I’m quite sure I at best know only part of the answer, here’s my attempt. For the Aussies and Kiwis, ANZAC day seems to have profoundly impacted and to some extent defines their national identity and spirit. It’s about courage in the face of the unknown, perseverance, and maybe above all mateship – friendship and loyalty. ANZAC Day is a national holiday and features a dawn vigil, military reunion marches, and memorial services. ANZAC Day has come to commemorate war dead not just from WWI but all military operations which the ANZAC coalition has participated.

While by no means diminishing what ANZAC day means to Australia and New Zealand, all countries have their holidays commemorating wartime service and sacrifice. But what makes ANZAC day so compelling to me is how the relationship between former battlefield enemies has evolved.

Flash forward from the 1915 Gallipoli Campaign to 1934. Attaturk, President of Turkey, purportedly authored a tribute to the ANZACS who fought, and died, in Turkey:

Those heroes that shed blood and lost their lives…. you are now lying in the soil of a friendly country. Therefore rest in peace. There is no difference between the Johnnies and the Mehmets to us, where they lie side by side in this country of ours… you, the mothers who sent their sons from faraway countries, wipe away your tears. Your sons are now lying in our bosom and are at peace. After having lost their lives on this land, they have become our sons as well.

I say purportedly as there are questions as to whether Attaturk authored those exact words.   Contemporary, almost gleeful, attempts by Australian and UK media to debunk the quote’s bona fides claim the origin of the exact wording no earlier than 1953 while documenting similar sounding comments by Attaturk praising the ANZAC spirit as far back as 1931 (“Whatever views we of the present or future generations of Turks may hold in regard to the rights or wrong of the world war, we shall never feel less respect for the men of Anzac and their deeds when battling against our armies … The Turks will always pay our tribute on the soil where the majority of your dead sleep on the windswept wastes of Gallipoli.”)

I don’t claim to know where truth lies, but in this context I feel like the historical analysis misses the mark and the broader symbolic importance. At the 2018 ANZAC Ceremony I attended, the Turkish Ambassador to Singapore read the “Johnnies and Mehmets” quote attributed to Attaturk and placed a wreath at a memorial in the cemetery, just the latest demonstration of the unique post conflict relationship between the ANZACS and Turkey, not despite their being wartime enemies but because of it.

Australia and New Zealand built monuments to Attaturk in their capital cities, Canberra and Wellington. The Australian Attaturk memorial is prominently positioned on ANZAC Parade, a boulevard lined with military memorials which connects the Australian War Memorial at one end with Parliament House at the other. The Attaturk memorial is literally the closest memorial to the Australian War Memorial. In New Zealand, the Attaturk memorial is located on a ridge outside Wellington which was chosen for its similarities to the landscape of the Gallipoli peninsula. For its part, Turkey changed the name of Ari Burno to ANZAC Cove and established the Gallipoli battlefield as a national park. The park contains a number of monuments, including one which includes the “Johnnies and Mehmets” quote, which the monument attributes to Attaturk.

I find the manner by which the ANZACs and Turkey not only reconciled following WWI but share commemorative efforts fascinating, compelling and in some ways contradictory. There have not been comparable efforts between the ANZACs and WWI (and obviously WW II) enemy Germany. And Turkey has struggled to acknowledge and reconcile its WW I role in the deaths of hundreds of thousands Armenians in Turkey. So I wonder if ANZAC Day offers all of us, Australia and New Zealand and Turkey included, a contemporary lesson in reconciliation.

I submit that the shared ANZAC/Turkey commemorative efforts are proof, yet again, of the connection, the bond, which exists between those facing similar and staggering adversity. The perverse irony here is that of course each side caused a large portion of the other’s suffering. But from there my analysis breaks down. I want to draw some broader post-conflict lesson from these efforts that might aid in their not being war in the first place. But the predicate to the commemorative efforts is, of course, the underlying armed conflict.

On the other hand, one would think that the ANZACs and Turkey’s efforts to not necessarily honour their former enemy but recognize them have made it at least less likely that those countries will fight each other again. And if all countries which fought each other were able to engage in similar commemorative efforts perhaps we might tip the balance in the debate on whether armed conflict is a normal or abnormal aspect of the human condition. Much easier said than done to be sure. I confess to being amazed at what and how the ANZACs and Turkey have done what they’ve done, while also pessimistic of those efforts being replicated. But their efforts are proof that it’s possible.

The Past, Present, and Future of the Veto: An Additional Reply to Dr. Mohamed Helal

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

I, too, would like to thank Opinio Juris for our mini-symposium and dialogue on the use of the veto in the face of atrocity crimes. I hope it stimulates further thought, analysis and work on these important issues.

For those who missed the debates, I posted attacking the legality of Russia’s veto in the face of chemical weapons use in Syria, Dr. Mohamed Helal defended Russia’s veto use as consistent with the drafting of the UN Charter, and I responded. Kevin Jon Heller then weighed in on one particular aspect of my position, and I responded to him.

I will refrain from repeating earlier arguments, and will respond to Dr. Helal’s latest post—accepting his framework of examining Security Council veto use in the past, present and future.

First: The Past

Dr. Helal provides a strong historical account of the San Francisco Conference.

However, he had earlier written, in relationship to the situation in Syria, the Permanent Members “have exercised the veto exactly as anticipated when the UN Charter was negotiated.”

And, I made the point – well, no, they never discussed the kinds of vetoes that are occurring now: blocking chemical weapons inspections, blocking referrals for prosecution, blocking a ceasefire or blocking humanitarian aid.

Thus, I stand by my statement: “The veto power has morphed into contexts that were simply never discussed in 1945.” (This is obviously true, as these topics were simply not considered in 1945.)

But, at the same time, I did not draw the conclusion that because these matters were not discussed in 1945 that they were excluded from the veto—if we consider the veto as read in 1945.

If we examine the travaux préparatoires, the non-permanent member states were trying to exclude veto power generally, trying to exclude its use for a state involved in the dispute at hand, and trying to exclude its use for matters under Chapter VI—all to no avail. So, yes, I agree the Security Council’s power is quite broad, as the permanent members walked away in 1945 with a veto power having few express limitations.

Second: The Present

On the other hand, broad, does not mean unlimited. And here I think we should consider two other provision in the UN Charter:

Firstly, the Security Council also has duties. Article 24.1 gives it “primary responsibility for the maintenance of international peace and security.” This is described in the Charter as one of its “duties.”

Secondly, the Security Council also has a limitation placed on its actions. Article 24.2 states: “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.”

Therefore, the Security Council has both duties, and a limitation on its power directly contained in the Charter. The UN, and therefore its organ (the Security Council) is also subject to international law, so the veto power does not sit in isolation from the international legal system.

I will just briefly respond to Dr. Helal’s statement: the “Council enjoys boundless authority to decide whether a situation constitutes a threat to or breach of the peace or an act of aggression.” True, it can freely make that determination under its Chapter VII powers, but note that the International Criminal Court, for example, would not be bound by any substantive determination the Security Council makes as to the crime of aggression. See Rome Statute, art. 15bis, para. 9 and 15ter, para. 4. So this isn’t quite “boundless” authority if the ICC doesn’t have to listen to it for purposes of adjudicating individual criminal responsibility.

I will also note that Dr. Helal’s statement “Even if the Council determines that a situation is indeed a threat to the peace, breach of the peace, or act of aggression, nothing in the Charter requires it to take any action to address that situation,” is also somewhat contradicted by the text of Article 24.1 which suggests the Council has an obligation to act, or at least the primary obligation to act, to maintain “international peace and security.”

Alas, he is all too correct that the Council has acted “selectively” and treated “identical cases differently.”

Third: The Future

I am glad that Dr. Helal concedes we should not be limited to a 1945 construction of the UN Charter, but that we should read it “as a living document.” He mentions “subsequent practice” informing how we read the Charter.

Yet, because the Charter is the constitutive instrument of the UN system, it is not informed by just any “subsequent practice,” and probably not even “customary international law.” While the Charter is a treaty, it is not an ordinary treaty, but “the” treaty of the international legal system.

But what is above the Charter (hierarchically) are jus cogens norms.

And what is on a par with the Charter (and, hence, veto power contained in article 27.3), is the remainder of the Charter.

I did not make my argument based on “subsequent practice” as he suggests, nor did I ground it in R2P or the World Summit Outcome document, nor did I argue there is a “duty” to act in the face of atrocity crimes (although I reserve making that argument).

To clarify, we need to consider based on current law that presently exists (lex lata), whether:

  • a veto in the face of genocide, crimes against humanity or war crimes is consistent with jus cogens norms
  • a veto in the face of genocide, crimes against humanity or war crimes is consistent with the purposes and principles of the UN Charter, to which the UN Security Council is bound to adhere pursuant to Article 24.2.

To reinforce my 2nd point, for example (as I know he disagrees with my 1st point), note that the preamble to the Chemical Weapons Convention suggests use of chemical weapons is a violation of the purposes and principles of the UN Charter. (The preamble states that the Convention desires “to contribute to the realization of the purposes and principles of the Charter of the United Nations,” implying that use of chemical weapons is contrary to the purposes and principle of the Charter). Note also that chemical weapons use is likely also a “grave breach” of the 1949 Geneva Conventions because chemical weapons use would certainly constitute “willfully causing great suffering or serious injury to body or health.” How then is exercising the veto in the face of chemical weapons use consistent with the UN’s purposes and principles?

But, I also concede, there may be limits to what I am arguing: probably one cannot 100% change how the veto is used, because that would entail a Charter amendment, and the P5 have veto power over Charter amendments. I am not trying to bring on a constitutional crisis of the UN system, nor a result where one of the permanent members contemplates withdrawal.

What other states can do more of, for instance, in the upcoming debate on the Security Council and International Law on May 17, is to question how the veto power is being used, and press Russia (or any other state that uses the veto in the face of atrocity crimes), for example, to explain how its veto is: (1) consistent with jus cogens norms; and (2) consistent with the proposes and principles of the UN Charter.

I close with sharing Dr. Helal’s dismay at the inability of the UN to intervene effectively in mass atrocity situations and hope that we can revitalize R2P and/or use other bodies of international law to contribute to better using the tools of international law to serve the victims of atrocity crimes.

The Past, Present, and Future of the Veto: A Further Response to Professor Jennifer Trahan

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University.]

I would like to start off by thanking Opinio Juris for hosting what has evolved into something of a mini-symposium on the legality of the veto, the powers and purposes of the Security Council, and, implicitly, the values and principles underlying international law. I would also like to thank Professor Jennifer Trahan for engaging with and responding to my rejoinder to her original post and Professor Kevin Jon Heller for his important contribution to the conversation.

To avoid repeating the arguments I made in my previous post and in the interest of brevity, I have divided Professor Trahan’s arguments in her responses to Professor Heller and myself into three broad categories, which relate to the past, present, and future of the veto.

First: The Past

Professor Trahan listed examples of the measures that were included in the draft Security Council resolutions on the situation in Syria that were vetoed by Russia. These measures include referring the situation in Syria to the International Criminal Court (ICC), condemning the shelling of civilians and other human rights violations, calling for a ceasefire in Aleppo, and condemning the use of chemical weapons. Professor Trahan then stated that “there was nothing in the travaux préparatoires of the San Francisco Conference about using the veto in this way. The veto power has morphed into contexts that were simply never discussed in 1945.”

Professor Trahan is right, but draws the wrong conclusions from that observation. Of course there are no references in the travaux préparatoires to specific measures or actions, such as calling for a ceasefire or condemning human rights abuses, that may or may not be vetoed by the Permanent Members of the Security Council. Nor are there references to specific contexts, such as civil wars or acts of aggression, in which the Permanent Members may or may not use their veto power. This, however, is not an oversight or an inadvertent omission.

The reason, as I explained in my earlier response to Professor Trahan, is that during the negotiations on the UN Charter the future Permanent Members made absolutely sure that there would be virtually no limitations on their discretion to use the veto. Indeed, when pressed to identify the situations in which they would not use the veto, the future Permanent Members promised only not to prevent a UN Member State from bringing a matter to the attention of the Security Council. (Another limitation on the veto appears in Article 27(3) of the Charter, which requires the Permanent Members to abstain from the vote if the Security Council is exercising its powers under Chapter VI with respect to a dispute to which one of the Permanent Members is a party). The future Permanent Members were explicit that they reserved the right to veto any proposed measure or action, even the faintest diplomatic censure, beyond that basic right of a UN Member State to bring a matter to the attention of the Security Council. Therefore, contrary to Professor Trahan’s claim, the lack of any reference in the travaux préparatoires to permissible or impermissible uses of the veto is the result of the insistence of the Permanent Members that there be no limitation on the veto. (For a highly readable history of the drafting of the Charter, see: Stephen Schlesinger’s Act of Creation: The Founding of the United Nations. For a more academic and highly detailed history of the travaux préparatoires of the UN Charter, see: Ruth Russell, A History of the United Nations’ Charter: The Role of the United States, 1940–1945).

Moreover, and this is not a point I made in my first response to Professor Trahan, the breadth of the veto is matched by the essentially limitless discretion of the Security Council regarding whether and how to respond to a crisis or situation or dispute that threatens international peace and security. For the sake of space and concision, I will not provide a detailed reconstruction of this aspect of the travaux préparatoires of the Charter, but suffice it to say that the Council enjoys boundless authority to decide whether a situation constitutes a threat to or breach of the peace or an act of aggression. The Charter granted the Council the right to conclude that any conduct or situation even if not amounting to a breach of international law warranted the Council’s intervention. The Council is also under no obligation to determine that violations of international law – including acts of aggression or mass atrocities – constitute threats to or breaches of the peace. Even if the Council determines that a situation is indeed a threat to the peace, breach of the peace, or act of aggression, nothing in the Charter requires it to take any action to address that situation. Furthermore, nothing in the Charter requires the Council to act consistently. Situations, crises, or behavior previously deemed threatening to international peace and security does not need to be treated as such in future settings. In other words, the Council is not a global law enforcer; it is free to act selectively and to treat identical cases differently. (For more on this, see here and here)

Second: The Present

Professor Trahan argues that I am relying extensively on the negotiations that occurred in 1945 and writes that this “raises the question why should we be limited to a 1945 reading of the Charter and international law.” Professor Trahan then adds that “international law is sufficiently advanced that the Charter should be construed in a way that is consistent with jus cogens and the Charter’s own purposes and principles.”

I agree. Depending exclusively on the text of the UN Charter or its travaux préparatoires to interpret its content would be an exercise in tedious textualism and arid originalism. In fact, the Charter, like any treaty, ought to be read as a living document. The subsequent practice of the UN Member States and, to use the language of the Vienna Convention on the Law of Treaties, the “relevant rules of international law applicable in the relations between the parties” ought to inform the interpretation of the Charter.

Nonetheless, I still disagree with Professor Trahan’s assertions regarding the illegality of a veto by a Permanent Member in situations that relate to mass atrocities. Nothing in the subsequent practice of the UN Member States, the Security Council, or the other organs of the UN supports Professor Trahan’s claim that there exists any legal limitation on the veto. Nor have any rules of international law that have emerged since 1945 generated such a limitation on the veto. I have already challenged Professor Trahan’s claims regarding the impact of jus cognes on the right of Permanent Member to exercise the veto. In this post, I will focus on one especially glaring instance of practice that refutes Professor Trahan’s claim that a legal obligation on the Permanent Members not to veto resolutions on mass atrocities has emerged since 1945.

In 2005, the UN General Assembly adopted the World Summit Outcome Document, which included the much (and, I might add, unjustifiably) celebrated concept of the Responsibility to Protect (RtoP). The text of the Outcome Document, the language used to describe RtoP, and its application in subsequent years all demonstrate that the UN decided not to institute any limitations on the veto, including in cases of atrocity crimes. Moreover, RtoP as adopted by the UN in 2005, created no obligation whatsoever on the Security Council to take any action in response to mass atrocities. Instead, the General Assembly merely stated the following:

we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

As I’ve argued in a previous article titled Justifying War and the Limits of Humanitarianism, in terms of international law, RtoP added nothing. It merely restated what we already knew; namely, that the Security Council may, on a case-by-case basis, intervene to prevent mass atrocities. Despite the emergence of a normative hierarchy in international law and the acceptance of the concepts of jus cogens and obligatio erga omnes, the international community elected not to create a positive obligation to prevent mass atrocities or to create any limitation on the veto. Some readers might suspect that this outcome was the result of the opposition of countries such as Russia, China, and the Non-Aligned Movement to the concept of RtoP. In fact, the reality is that some Western States, especially the US, were equally reluctant to accept any limitation on the veto or any obligation on the Security Council to intervene to prevent mass crimes (For more on that, see Edward Luck’s article titled Sovereignty, Choice, and the Responsibility to Protect). In a revealing letter sent to all Permanent Representatives to the UN, then-Ambassador (now National Security Adviser) John Bolton wrote the following:

[T]he Charter has never been interpreted as creating a legal obligation for Security Council members to support enforcement action in various cases involving serious breaches of international peace . . . We do not accept that either the United Nations as a whole, or the Security Council, or individual states, have an obligation to intervene under international law. We also believe that what the United Nations does in a particular situation should depend on the specific circumstances. Accordingly, we should avoid language that focuses on the obligation or responsibility of the international community and instead assert that we are prepared to take action.

The similarity between the language of the US Ambassador’s letter and the final language of RtoP should be patently apparent. This position is not unique to Republican Administrations nor is it attributable to John Bolton’s hawkishness and his avowed antipathy towards the UN and multilateralism generally. In 1998, the US Ambassador-at-Large for War Crimes, Professor David Scheffer, a democrat and ardent advocate of international criminal justice, explained the US interpretation of the obligation to prevent genocide, which is enshrined in the Genocide Convention. He stated:

States Parties confirm that genocide whether committed in time of peace or war, is a crime under international law that they undertake to prevent and punish … A State Party may choose from among a range of measures – diplomatic pressure, economic sanctions, judicial initiatives, or the use of military force – to undertake to prevent or punish genocide. But the State Party’s choice is necessarily discretionary. (Quoted in William Schabas, Genocide in International Law, p. 496)

Third: The Future

Finally, I would like to use this opportunity to briefly reflect on a broader normative matter.

I am unable to determine with certainty whether Professor Trahan believes that, as a matter of lex lata, a rule has emerged to prohibit vetoes by the Permanent Members of the Security Council in situations of mass atrocities. In her response to my post she stated: “I do not believe my arguments are de lege ferenda.” However, in her response to Professor Kevin Jon Heller, she wrote: “the international system needs to evolve in this direction, because we are at a log-jam with vetoes being used to [block] Security Council initiatives aimed at curtaining or alleviating the commission of genocide, crimes against humanity, and war crimes.” These statements indicate a degree of hesitance or ambiguity on the part of Professor Trahan in describing the state of international law as it is today.

Nonetheless, Professor Trahan is clear regarding where she thinks international law ought to go. Professor Trahan and many other international lawyers advocate limitations on the veto, especially in cases of mass atrocities, and highlight the human costs of the Security Council’s inaction. I share Professor Trahan’s dismay at the inability of the UN to intervene effectively in crises that entail mass human victimization. As I said in my initial response to Professor Trahan’s original post: “[t]he Syrian civil war and the human suffering it has wrought is a blight on the conscience of humanity. It is a tragic and heartbreaking situation.” I also clearly stated, contrary to Professor Trahan’s portrayal of my position, that “my objective is not to defend Russia or to engage in an apology for power politics.”

However, I have noticed that in legal academia there is a general lack of critical reflection on whether proposed limitations on the veto are entirely and unquestionably desirable from a policy perspective. Are there no potential downsides to restrictions on the veto? Are there no conceivable unintended consequences to alienating major powers that are also nuclear weapons states? Are there no potential costs to threatening the vital interests of those great powers? Are there no virtues to a rule that contributes to keeping the major powers in the UN and engaged in its diplomatic processes? Consider the countless occasions on which the United States vetoed draft resolutions that condemned Israel’s violations of international law, including international humanitarian law, in the Occupied Palestinian Territories, Lebanon, and elsewhere. Or think of the numerous US vetoes of resolutions critical of the situation in apartheid South Africa or Southern Rhodesia or Namibia. Or think of the US veto in June 2002 on a resolution on the situation in Bosnia because of American concerns regarding the possibility that US personnel could be brought before the ICC. Or think of a future scenario where a resolution is brought before the Security Council proposing admitting Taiwan to the United Nations either as a full member or as an observer. How would China react if it did not have the assurance of the veto?

Is it not conceivable that, in any one of these situations, a major power, such as the US or China or Russia might consider withdrawing from the UN or at least adopt an aggressive posture towards the organization? Indeed, the US already has a record of leaving major UN specialized agencies, such as UNESCO, or UN subsidiary organs, such as the Human Rights Council, when it felt that its foreign policy objectives were subjected to significant challenges in those bodies. Similarly, although in retrospect is proved to be a disastrous decision, Russia boycotted the Security Council in 1950 due to Western refusal to recognize the Peoples Republic of China as the legitimate representative of China. Would such an outcome be desirable? Would it contribute to promoting and preserving international peace and security?

Let me be abundantly clear. I have no definitive answers to these normative and policy questions. I offer them here merely as an invitation for critical reflection. Furthermore, my purpose is not to celebrate the veto. I am not oblivious to its human costs nor am I simply an apologist for power. However, international law and the causes of minimum world order and human rights will not be advanced by simply ignoring, wishing-away, or merely condemning the political reality in which international law operates.

The End of the Iran Deal and the Future of the Security Council Snapback

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.]

Yesterday, President Trump announced that the United States will withdraw from the Iran deal. He is not claiming any major breach by Iran, but rather withdrawing because, in his view, it was a terrible deal from the start. As a matter of domestic and international law, he has the power to do this. As a matter of policy, this is a particularly ugly manifestation of the Trump Doctrine – of undoing President Obama’s signature initiatives based on dubious reasoning and questionable motives. Iran is a bad actor, but it is hard to fathom how this will be improved by re-raising its incentive to develop nuclear weapons, demonstrating that the United States is a deeply unreliable negotiating partner, and handing a propaganda gift to Iranian hard-liners.

But here we are. And what is next? I want to focus on one small piece of this unhappy question – the ability of the United States to invoke the “snapback” provision of Security Council Resolution 2231.

As a refresher, Resolution 2231 lifted prior sanctions imposed by the Security Council on Iran in the course of blessing the Iran deal (formally known as the Joint Comprehensive Plan of Action or JCPOA). These prior sanctions had been an important piece of the pressure brought to bear against Iran, in addition to separate sanctions imposed unilaterally by the United States and allies. But in lifting the Security Council sanctions, Resolution 2231 contained a “snapback” provision. This provision provides that if “a JCPOA participant State” notifies the Security Council of “an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA,” then all the prior Security Council sanctions will be re-imposed on Iran after 30 days unless the Security Council affirmatively votes not to re-impose the sanctions. In other words, provided that the pre-conditions are met, a JCPOA participant State who wields a Security Council veto can single-handedly force the re-imposition of prior Security Council sanctions.

In announcing withdrawal from the Iran deal, President Trump did not mention the snapback provision. And the United States is unlikely to try to invoke the snapback provision immediately. As a matter of strategy, this seems like a good card to hold in reserve, at least until Iran actually does cease complying with the deal. As a matter of law, for the Trump Administration to even try to invoke the snapback, it must specify its belief that Iran is not substantially performing its commitments under the JCPOA – and so far, the United States has not even attempted to argue this.   Over on Lawfare, Elena Chackho writes that “[i]f the U.S. does attempt to trigger this ‘snap-back’ mechanism … it appears that there is little the other members of the Council can do to prevent the Security Council sanctions being re-imposed.” I disagree. As I’ve written earlier, other nations could appropriately dispute the legal effectiveness of the snapback’s invocation if the United States triggers it without good faith grounds for believing Iran to be significantly non-performing its commitments under the JCPOA.

But what if Iran later ceases its performance of the JCPOA, now that the United States has failed to hold up its end? In that case, could the Trump administration successfully invoke the snapback provision?

As a legal matter, I think this also poses some challenging questions of interpretation. The snapback provision turns out to have been drafted mostly in anticipation of the wrong contingency, namely the risk that Iran would be the initial defector. That makes it rather complicated to apply to the current situation. I am still thinking through the interpretive issues, but let me sketch out a few initial thoughts here.

Because the United States will be withdrawing from the deal and re-imposing sanctions on Iran, there are at least two reasons why it might not be entitled to invoke the snap-back provision. First, one could argue that the United States will have lost its right to do so. Textually, one could argue that it will no longer be a “JCPOA participant state” once it has withdrawn from the deal. This may sound persuasive, but it doesn’t work so well on a closer look at the text. In paragraph 10, Resolution 2231 speaks of “China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran (the ‘JCPOA participants’).” Therefore, its use of “JCPOA participant state” just seems like a shorthand for these countries, excluding the EU. Nonetheless, the use of this shorthand does at least signal the underlying assumption that the party invoking the snapback will itself still be in the deal. This in turn might support a claim that the United States is estopped from invoking the snapback in a situation where it has itself first abandoned the deal.

Second, one could claim that the United States has no good-faith basis for believing Iran to be in “significant non-performance of commitments under the JCPOA” if Iran’s non-performance stems in turn from U.S. non-compliance. Let’s assume that, before ceasing its own performance, Iran invokes the dispute-resolution provisions of the JCPOA (which involve several steps, including ultimately an Advisory Board giving a non-binding opinion). Then, under paragraph 36 of the JCPOA, “[i]f the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant non-performance, then the participant could treat the unresolved issue as grounds to cease performing its commitments under the JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes non-performance.” Iran will presumably not notify the Security Council of U.S. non-performance, since that would trigger the snapback detrimental to Iran’s interests. But it will have “grounds to cease performing its commitments.” And if it has grounds to cease performing its commitments, then it is acting within its rights under the JCPOA. It is therefore not engaged in “significant non-performance of commitments” because these commitments have themselves been suspended. One can extend this, albeit with difficulty, to argue that the United States cannot make a good faith notification to the contrary. Overall, this argument is probably too cute to be convincing. It has a certain amount in common with the material breach argument that the United States used to justify the second Gulf War. Moreover, this reasoning would given Iran a way to duck the snapback any time it had exhausted the JCPOA dispute settlement provisions and continued to have a good-faith belief that one of the other JCPOA parties was failing to significantly perform under the deal – an interpretation which strikes me as unlikely to have been acceptable to the U.S. negotiators at the time.

But while these arguments are unlikely to be persuasive to all, they could well be persuasive to some. Any countries which are persuaded could legitimately dispute the legal effectiveness of the snapback’s invocation by the United States and therefore decline to treat the prior Security Council sanctions as being re-imposed on Iran. If they do this, the United States would not have any legal lever for making its invocation of the snapback prevail, except in the unlikely event that it could persuade the Security Council to formally endorse this invocation or have the Security Council (or General Assembly) seek and receive an advisory opinion from the International Court of Justice in favor of its interpretation. Thus, if the Trump Administration wishes to invoke the snapback, it must be aware that its own repudiation of the Iran deal may reduce the effectiveness of this invocation.

There is a broader point worth noting here about the use of snapbacks and other trigger termination provisions. After Resolution 2231 passed in 2015, I wrote a comment in AJIL celebrating the potential of such provisions. But I noted that these provisions need to “incorporate protection against arbitrary activation.” I also suggested that there would often be advantages to entrusting independent civil servants like the Secretary-General with the power to trigger termination, rather than vesting this power with individual states. These points seem all the more important today.

A Brief Response to Kevin Heller’s Comment About My Post

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

The background to a series of Opinio Juris posts about proper use of Security Council veto power is: I have posted attacking the legality of Russia’s veto in the face of chemical weapons use in Syria, Dr. Mohamed Helal has defended Russia’s veto use as consistent with the drafting of the UN Charter, and I responded, not entirely denying that reading, but calling, in essence, for a more updated reading of the UN Charter (where the veto power derives from in article 27.3), that considers also other bodies of international law.

What I argued is that it is possible to read the Charter in the way Dr. Helal does, it is just not a satisfying reading to say the P5 are above all other sources of international law, so I argue that we should consider the interrelationship between jus cogens norms and the purposes and principles of the Charter, which should inform how the veto power is read. In other words, the veto power sits within a system of international law that conceivable has something to say about how it is utilized.

In responding to Dr. Helal, I argued that there are many other States that would take issue with an unrestrained reading of the Charter, specifically those that have joined the ACT Code of Conduct and French/Mexican initiative, which both call for voluntary veto restraint in the face of genocide, crimes against humanity and war crimes.

That these States call for “voluntary” veto restraint in the face of atrocity crimes—which I do note in my post—in no way implies, as Kevin Jon Heller argues, that these States maintain that there are no legal limits to the use of the veto. This is a leap in logic.

When States launched or joined these initiatives, this was the political “space” available to them—to endorse voluntary veto restraint. This shows a tremendous and recent shifting of collective consciousness that the veto should be subject to some form of restraint. It was not long ago that the “S5” countries withdrew a similar proposal, and the “responsibility not to veto” found in early iterations of the “responsibility to protect” then disappeared from R2P literature. So this areas has been undergoing a rapidly accelerated evolution.

The problem with voluntary veto restraint, however, is that three of the permanent members are not joining this voluntary restraint (the US, China and Russia). Thus, if the goal was to change Security Council voting through these initiatives, it cannot fully succeed until all five of the permanent members join, which might never happen.

There is nothing in States joining an initiative calling for voluntary veto restraint that suggests they do not support or maintain there could be other approaches to addressing the problem of unrestrained veto use.

The international system needs to evolve in this direction, because we are at a log-jam with vetoes being used to blog Security Council initiatives aimed at curtailing or alleviating the commission of genocide, crimes against humanity, and war crimes (with the vetoes on Syria providing just one example). And, we are at a log-jam when not all of the P5 will join the Code of Conduct or French/Mexican initiative. This is why we need to examine the interrelationship of the veto power and jus cogens norms, and the interrelationship of the veto power and the purposes and principles of the UN Charter, and seek a new approach—one that looks to the body of international law that we now have (not only what existed in 1945) as a way to interpret the veto power.

70 Years of the International Law Commission: Drawing a Balance for the Future

by Christiane Ahlborn and Bart Smit Duijzentkunst

[Christiane Ahlborn and Bart Smit Duijzentkunst are Associate Legal Officers at the Codification Division of the United Nations Office of Legal Affairs in New YorkThis post, and its sister post on EJIL:Talk!, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. As we discussed on EJIL:Talk!, the Commission stands in the long tradition of a broader codification movement, which has pushed the development of international throughout the 19th and 20th centuries. But what is the role of the Commission today, and what will its future look like? These questions will be discussed during different commemorative events in New York and Geneva this year. Here are the five main themes that will be the focus of the debate.

  1. The Commission and its impact

The Commission has had a considerable impact on the development of international law, and on peaceful international relations more generally. From the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations, to the 1969 Vienna Convention on the Law of Treaties and the 1998 Rome Statute of the International Criminal Court, many treaties that form the foundation of the contemporary international legal order have their origins in the work of the Commission.

Seventy years of practice has demonstrated that the Commission’s authority extends beyond the conventions it has instigated. For example, the 2001 articles on State responsibility for internationally wrongful acts remain uncodified, yet they are regularly cited and discussed in the decisions of and submissions to international courts, tribunals and other bodies, as well as in scholarship. “What is the status of the articles on State responsibility?” remains a popular query at Jessup competitions, one that has been answered in a variety of ways. Some argue that, in light of Article 38, paragraph 3(d) of the ICJ Statute, the references to the Commission’s work in judicial decisions constitute a subsidiary means for the determination of international law. Others maintain that the Commission could be considered as a “highly qualified publicist”. In addition, the outcomes of the Commission’s work often reflect customary international law.

Nonetheless, in recent years no outcome of the Commission’s work has been taken up for codification in a multilateral conference. This begs the question whether the Commission should rethink its role in the progressive development and codification of international law in the future. In fact, the Commission has already enlarged its portfolio of different work outcomes. While some projects still proceed on the basis of ‘draft articles’ (e.g. the draft articles on crimes against humanity), others are formulated in terms to guidelines (e.g. the draft guidelines on provisional application of treaties) or conclusions (e.g. the draft conclusions on subsequent agreements and subsequent practice).

  1. The working methods of the Commission

The Commission functions like a legislative drafting body. The topics on its agenda are typically assigned to a Special Rapporteur, who leads the Commission’s research, proposes texts for adoption and drafts related commentaries. The Commission debates the reports of its Special Rapporteurs in plenary and refines texts in the Drafting Committee, until they are ready for adoption. It sends all draft instruments for comments and observations to governments and possibly other institutions (“first reading”). After considering the replies, the Commission submits to the General Assembly a final text with commentaries (“second reading”), together with a recommendation for further action.

This process can produce swift results, but it may also take decades. For example, in 1972 the Commission needed only one session to adopt the articles on the prevention and punishment of crimes against diplomatic agents and other internationally protected persons. On the other hand, it took the Commission about fifty years and five Special Rapporteurs to complete, in 2001, the final set of the articles on State responsibility for internationally wrongful acts.

There are several reasons why the Commission may be less agile than a domestic legislator: it only meets part-time and typically adopts outcomes by consensus, rather than by vote. Still, given the more diversified nature of the outcomes of the Commission’s work, and changing practical needs of States, international organizations and other stakeholders interested in the Commission’s work, should the Commission revise its working methods? The Commission has continuously adapted its methods of work to face new challenges, and its 70th anniversary might offer another opportunity to suggest revisions.

  1. The function of the Commission: How much identifying existing law, how much proposing new law?

The Commission is mandated to promote the “progressive development of international law and its codification”. Article 15 of the Commission’s Statute defines progressive development as “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States” and codification as “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.” In practice, most of the projects of the Commission have involved both aspects of its mandate and the Commission is often hesitant to indicate on which process it relies in specific cases.

Despite the Commission’s reluctance to draw the distinction, the tension between progressive development and codification continues to be the subject of debate in both scholarship and practice. This raises the question whether the distinction between progressive development and codification of international law should be drawn more explicitly, if feasible at all. Is it easier to make the distinction for some topics than for others? And should the Commission emphasize the consolidation of existing law, or should it emphasize the development of new law?

  1. The changing landscape of international law

At its first session, in 1949, the Commission reviewed, on the basis of the survey of international law prepared by the Secretariat, 25 topics for possible inclusion in a list of topics for study. Following its consideration of the matter, the Commission drew up a provisional list of 14 topics selected for codification. With the exception of “Recognition of States and Governments” and “Jurisdiction with regard to crimes committed outside national territory”, the Commission has directly or indirectly considered all of these topics (see the analytical guide to the work of the Commission for an overview of all topics).

The world of international law today is quite different than that of 1949, in part thanks to the Commission’s codification efforts. During the past 70 years, the Commission – with the help of its Secretariat – has kept abreast of on-going developments in international law. Yet like all of us, the Commission faces rapid changes in international relations and in technological capabilities, often requiring novel approaches and scientific expertise. New domains – cyberspace, the polar regions, maritime areas beyond national jurisdiction – and new actors – international organizations, individuals, or corporations – challenge the Commission to constantly rethink its priorities. The Commission has demonstrated its awareness of contemporary challenges, for example by drafting articles on the law of transboundary aquifers, by taking up the topic “Protection of the atmosphere”, and by adding the topic of “Protection of personal data in transborder flow of information” to its long-term programme of work. Participants to the commemorative events for the Commission’s 70th anniversary will further consider how the changing landscape of international law affects the Commission’s substantive work going forward.

  1. The authority and the membership of the Commission in the future

The authority of the Commission depends on various factors, including its membership and its status as a subsidiary organ of the General Assembly. Since its establishment, the membership of the Commission has been enlarged from 15 in 1949 to 34 members at present. The members are elected, in their personal capacity, by the General Assembly for a five-year term, with due consideration to equitable representation of the five regional groups at the United Nations. The equitable regional representation distinguishes the Commission from other codification bodies and ensures that the Commission incorporates different legal traditions and perspectives. Candidates for membership are drawn from the various segments of the international legal community, such as academia, the diplomatic corps, government ministries and international organizations. As the members typically serve in other international law-related professions, the Commission remains in close touch with the realities of international life.

Nonetheless, the Commission faces some challenges with regard to its composition. Perhaps most prominent is the severe underrepresentation of women in its membership. The number of women on the current Commission is four – twice as many as in the previous quinquennium, but still less than 12 per cent of its total membership. In 70 years, the Commission has had only seven female members and one woman as its Chair (Ms. (now Judge) Hanqin Xue in 2010). As the nomination of candidates lies with United Nations Member States, it is for the nominating States, the General Assembly and the Commission together to improve the gender balance among its ranks. Other issues that might be considered during the commemorative events are how the Commission could enhance its relationship with the General Assembly, in particular its Sixth (Legal) Committee; and how the different legal traditions, regional origins, and professions of its members influence its work.

Indigenous Justice Systems: Canadian Legislation for Implementing the UN Declaration

by Matt Pollard

[Matt Pollard is a Senior Legal Adviser for the International Commission of Jurists (ICJ) in Geneva, Switzerland.]

The Canadian Parliament is currently considering Bill C-262, “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples”. The draft legislation is a “private member’s bill” introduced by an individual Member of Parliament from the opposition New Democratic Party (NDP), but the governing Liberal Party announced it supports the legislation and it is currently being reviewed by the relevant Parliamentary Committee.

The legislation, as currently drafted, does not itself specify the changes that would be necessary for Canadian law to be brought in line with the Declaration. In its three main operative provisions it:

  • “affirms” the UN Declaration “as a universal international human rights instrument with application in Canadian law” (article 3);
  • requires the Government of Canada, “in consultation and cooperation with indigenous peoples in Canada” to “take all measures necessary to ensure that the laws of Canada are consistent with” the Declaration (article 4);
  • requires the Government of Canada to “in consultation and cooperation with indigenous peoples, develop and implement a national action plan to achieve the objectives of” the Declaration (article 5).

The adoption of the law would mark a significant reversal from Canada’s position a decade ago at the time of adoption of the Declaration by the UN General Assembly (resolution 61/295), when Canada was one of only four States to vote against (with Australia, New Zealand and the United States). If and when enacted, the Bill would launch a far-reaching and complex process of consultation, review and legislative amendment, which would undoubtedly include further controversies and take some years. But it is a process that is equally undoubtedly long overdue.

These developments are of particular interest to me as a (Canadian) lawyer working at the International Commission of Jurists (ICJ), an international non-governmental organization of judges and lawyers based in Geneva, where I represent the ICJ at the United Nations and lead the ICJ’s global legal and policy work on the independence and accountability of judges, lawyers and prosecutors. The ICJ is itself in the midst of a global project to research and develop legal and policy guidance about the role of traditional and customary justice systems, including indigenous justice systems.

The ICJ project is considering how traditional and customary justice systems can contribute to improving access to justice and fulfilling cultural and other rights, including for members of indigenous peoples. At the same time, the project aims to identify and help address potential conflicts between traditional and customary justice systems and international human rights and rule of law standards.

The link between the ICJ’s ongoing work and the draft legislation in Canada comes through several articles of the UN Declaration, which provide as follows (emphasis added):

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 40

Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

It should also be noted that in addition to the references to international human rights in these specific provisions, the Declaration as a whole is subject to the following provision:

Article 46

  1. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

  2. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

A number of UN human rights mechanisms and other international instruments have highlighted both the potential – or even the necessity – for States to enable and respect indigenous and other traditional and customary justice systems in order to fulfill access to justice (including under UN Sustainable Development Goal 16) and other civil, political, economic, social and cultural rights. These same sources also highlight that States must ensure that such systems do not adversely impact the enjoyment of human rights, including particularly the human rights of women and children. (The ICJ has recently published an extensive compilation of these international sources on traditional and customary justice, as well as a report based on an initial set of consultations, with additional background available here.)

Development agencies, inter-governmental organizations, NGOs, academics, and local judiciaries, legal professionals, and prosecutors in many countries are providing resources, engagement and efforts to achieve these aims, as well as to better coordinate between indigenous justice systems and the justice systems operated by State institutions. (In Canada, several projects are already underway to document, recover and re-establish indigenous legal systems: see for instance the Indigenous Law Research Unit at the University of Victoria, British Columbia. Indeed, later this year the University plans to offer, for the first time, a joint degree program in Canadian Common Law (JD) and Indigenous Legal Orders (JID).)

Constructive engagement by the full range of actors described above with decision-makers in traditional and customary justice systems, has been highlighted as an essential element of any approach that seeks to see such systems fulfill their positive potential, while ensuring their consistency with international human rights standards. Bill C-262 holds considerable potential to push such processes forward in Canada.

Yet, as the ICJ’s initial report notes, experience from other countries demonstrates that constructive engagement does not always immediately yield clear answers to some difficult problems, and presumably some of these may require particularly careful and creative deliberation, by indigenous and non-indigenous decision-makers alike and together, in the Canadian context as well. While recognizing the diversity between different traditional and customary justice systems around the world, and indeed the diversity that can exist within a particular country, the kinds of challenges encountered in other contexts include:

  • How far should such justice systems be expected to meet international (or national) fair trial standards in terms of the selection of decision-makers, access to legal assistance, and procedural safeguards? As one example, hereditary decision-making roles are difficult to reconcile with article 10 of the UN Basic Principles on the Independence of the Judiciary (“In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status…”).
  • Should such justice systems be “limited to minor civil and criminal matters”, as the Human Rights Committee has suggested is necessary to ensure conformity with the International Covenant on Civil and Political Rights? Often such systems are seen as particularly culturally relevant for matters typically covered by family law, and at the same time it is precisely such family law matters that may have particularly major impacts – positive or negative – on the rights and lives of women and children.
  • Should every party to a conflict before such justice systems have the right to “opt out” in favour of the State justice system for any reason they wish, or does respect for the role and integrity of such systems mean that the laws of the State should empower such systems to enforce participation? How should State institutions react when an individual claims that he or she requires protection from a traditional system that allegedly threatens or violates his or her human rights or constitutional rights, but the traditional system and community it serves takes the position that intervention by State institutions will be inconsistent with the role and integrity of the traditional system?
  • Should the jurisdiction of such systems be restricted to persons belonging to the relevant community, group, or nation, or should they have jurisdiction as well over other persons for actions in or affecting the territory?

It remains to be seen whether and to what degree similar questions will arise in the Canadian context. Experience from other countries, positive and negative, may be something decision-makers in Canada would find useful to add to their considerations. Several United Nations expert mandates (the Special Rapporteur and the Expert Mechanism on the rights of Indigenous Peoples, for example) could be important sources to consult for global and comparative perspectives. The process of adoption and implementation of Bill C-262, and the ongoing work of the Indigenous Law Research Unit and similar initiatives, will undoubtedly provide important insights and experience and solutions that may be of interest in other national contexts around the world, and will certainly help inform the ICJ’s own ongoing development of global legal and policy guidance. We will be watching developments in Ottawa, and across the country, with considerable interest from Geneva.

CJEU Confirms That EU Law on Family Reunification Should Be Accessible and Effective for Unaccompanied Children

by Karolina Babicka

[Karolína Babická is a Legal Adviser of the International Commission of Jurist’s Europe Programme.]

European Union (EU) law has in the last two decades shaped and to some extent also harmonized national legislation governing asylum and migration in EU member states. This month, the Court of Justice of the European Union (CJEU) has once again set out the very strict limits on the “margin of appreciation” when it comes to the right to family life and family reunification stemming from the EU Family Reunification Directive (Directive 2003/86). In the recent case C-550/16 A. and S. v Staatssecretaris van Veiligheid en Justitie it confirmed that the aim of the directive is to promote family reunification and highlighted the importance of the principles of equal treatment and legal certainty.

The CJEU had previously clarified that the Directive requires Member States, in specific cases, to authorize family reunification of certain members of the sponsor’s family, without being left any margin of appreciation (Case C‑540/03 Parliament v Council, para 60). The Court has clarified that the provisions of the Directive on Family Reunification require that States ensure that family reunification is the general rule (C-578/08, Chakroun case, para 43) and that the Directive is “interpreted strictly”. The interpretation of the provisions of the Directive should not deprive them of their effectiveness and the CJEU also highlighted that States must “examine applications in the interest of children and with a view to promoting family life” (O., S. & L., Joint Cases C-356/11 and C-357/11).

The Family Reunification Directive was adopted in 2003, when the three pillars of the EU were still in place and the co-decision procedure did not apply to the migration and asylum area. It was therefore adopted by the Council (EU Member States) only, without a decision-making power of the European Parliament. It has been criticized for granting a vast margin of appreciation to states and reveling in “may clauses,” but as the CJEU step-by-step clarifies, there are limitations to the States’ margin of appreciation.

  1. A. and S.

On 12 April 2018, in the decision in the A. and S. case, the Court clearly stated that unaccompanied minors who attain the age of majority during the asylum procedure retains their right to family unification (C-550/16, A. and S.). States do not have a margin of appreciation to limit their right to family reunification of children with their parents, if they entered the State as children and got a confirmation of their status by the State once they were already adults.

In this case, a 17-year-old Eritrean girl, who had arrived unaccompanied in the Netherlands, lodged an application for asylum. She turned 18 about four months later, during the procedure, and in another four months the State Secretary for Security and Justice in the Netherlands, granted her a residence permit for persons granted asylum, valid for five years, with retroactive effect from the date on which her application for asylum was submitted. Two months later she asked for family reunification with her parents and three minor brothers, which was refused to her by the Dutch administration on the grounds that she was already an adult, who according to the Directive does not have the right to family reunification with parents.

The District Court of The Hague, where she appealed, decided to stop the proceedings and to refer a question to the Court of Justice for a preliminary ruling, asking whether a child entering and asking for international protection in an EU Member State attaining majority during the proceedings, shall be still seen as a child for the purpose of family reunification, once (s)he applies for it.

In its decision, the CJEU recalled the primary objectives and principles of the Directive, as it had already done previously in judgments Chakroun and O., S. & L. In particular, it reiterated that the primary objective of the Directive is to promote family reunification, to provide special protection to refugees and unaccompanied minors in particular and to observe the principles of equal treatment and legal certainty.

The Court recalls that for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. That interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question (Ouhrami, C‑225/16, para 38).

In a number of EU countries, the laws and administrative rules do not allow children who turn 18 during the asylum procedure to then apply for family reunification with their parents, as in that moment they are already adults. Such policies have been continuously criticized by civil society, and UN agencies, a suspicion of prolongation of asylum proceedings beyond the age of 18 of the applicant has been there, and this practice of State administrations has been seen as a measure to limit the right to family reunification of children.

The CJEU rightly points out that “the duration of an asylum procedure may be significant and that, in particular (…) the time limits laid down in that regard by EU law are often exceeded, to make the right to family reunification depend upon the moment when that procedure is closed would be likely to deny a substantial proportion of refugees who have submitted their application for international protection as an unaccompanied minor from the benefit of that right and the protection that Article 10(3)(a) of Directive 2003/86 is intended to confer on them.“ (para 57)

The Court recalls the principle of legal certainty as it would be “entirely unforeseeable for an unaccompanied minor who submitted an application for international protection to know whether he or she will be entitled to the right to family reunification with his or her parents“ (para 59) if the decisive moment would be the date when she or he submit their application for family reunification (which can only be the case after the refugee determination procedure has been completed).

The CJEU adds that this right would not be there indefinitely, but in principle the application for family reunification should be submitted within a period of three months of the date on which the ‘minor’ concerned was declared to have refugee status.“ (para 61)

Paragraph 55 of the current case A. and S. makes it clear that if the right to family reunification would depend on the person’s age upon the moment at which the State recognizes the refugee status of the person, it would leave the outcome dependent on how quickly or slowly the application for international protection is processed. That “would call into question the effectiveness of that provision and would go against not only the aim of that directive, which is to promote family reunification and to grant in that regard a specific protection to refugees, in particular unaccompanied minors, but also the principles of equal treatment and legal certainty.“

Conclusions and impact in other jurisdictions

This decision is in line with the obligation to take the best interests of the child as a primary consideration in all acts involving the child. States have positive obligations to ensure children’s effective enjoyment of their right to respect for family life. Under both EU and international law, the child’s best interests must be the primary consideration by all judicial and administrative authorities in any decision related to the child’s right to respect for his/her family life. The UN Committee on the Rights of the Child and the UN Committee on the Rights of Migrant Workiers in their Joint General Comment on children in the context of international migration (No. 4 and 23, para 32) stress that countries should facilitate family reunification procedures in order to complete them in an expeditious manner, in line with the best interests of the child. In line with the EU Charter, the best interests of the child have to be taken into account and respected (Article 24) as well as the right to private and family life (Article 7) and prohibition of discrimination (Article 21.1).
The European Commission (whose opinion in this case was different from the Court´s decision, asserting that the decisive moment is the time when the person applies for reunification (A. and S., para 30)) issued in 2014 Interpretative Guidelines for the Family reunification directive. There it specified that criteria for the conditions for family reunification adopted may not be discriminatory and that criteria used by Member States must be transparent and clearly specified in national legislation. The current judgment should carry significant implications for national legislators in this sense.
There are a number of further obstacles that Member States put forward in order to limit family reunification of migrants. These include a requirement that spouses must be more than 18 to reunite, various financial and material conditions that sponsors have to fulfill, and pre- and post- integration measures. As the International Commission of Jurists has found through its work to advance access to justice for migrant children in the EU through the Fostering Access to Immigrant children’s Rights (FAIR) project, limitations on family reunification have a particularly adverse impact on migrant children.
For instance in Germany, the access to family reunification for beneficiaries of subsidiary protection has been seriously hampered by a temporary measure disallowing family reunification to all such beneficiaries. A two-year suspension on family reunifications was introduced in 2016 for persons entitled to subsidiary protection. Refugees who were officially granted this protection after March 17, 2016, now have to wait until July 31, 2018, before they can even apply for family reunification.
Consequently, even children with subsidiary protection status currently have no option to demand lawful immigration of their parents for the purpose of family reunification. The recast Qualification Directive (covering both refugee and subsidiary protection status) provides that Member States shall ensure that family unity can be maintained. The Family Reunification Directive governs the family reunification practice and procedure for refugees and the CJEU has found in the Chakroun case that it established a right to family reunification. In Alo and Osso (Joined Cases C-443/14 and C-444/14) the CJEU declared that the Geneva Refugee Convention is also to be used as interpretative guidance in cases involving subsidiary protection beneficiaries. The CJEU found that the applicable provision in the Qualification Directive (freedom of movement, Article 33) does not specifically allow for differences in treatment between refugees and subsidiary protection beneficiaries, and as such should be treated in a similar manner (unless it could prove that they are not in a comparable situation). By analogy, the relevant provision in the recast Qualification Directive relating to family unity, Article 23, does not provide for a difference of treatment, and as such should be treated in a similar manner.
Germany also seems to claim that the case A. and S. against the Netherlands is not applicable in all EU member states, as the Dutch authorities grant refugee status retroactively. This only calls for a reiteration that the recognition of refugee status by a State party to the Geneva Refugee Convention (to which all EU Member States are parties) is always of a declaratory character.

It would be interesting to see a CJEU preliminary ruling in this case.

Why Art. 4(h) of the AU’s Constitutive Act Does Not Support UHI

by Kevin Jon Heller

I like much of what Jennifer Trahan says in her recent post about the permanent veto. But I would take issue — unsurprisingly — with her claim that “there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice.” There is no need to belabour the Kosovo argument, which I have already criticised in my response to Harold Koh. Instead, I want to focus in this post on the idea that African practice provides support for a customary right to unilateral humanitarian intervention (UHI). That idea seems to be popping up with more regularity these days, as those who believe UHI should be legal cast about for a plausible argument to that effect. Marc Weller, for example, recently made a similar claim in his intemperate response to Marko Milanovic’s recent post at EJIL: Talk! on the illegality of the Syria attack:

Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties–an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force.

Weller is referring to Art. 4(h) of the Constitutive Act of the African Union, which has been ratified by all 53 African states have signed the Act. Art. 4(h) permits the AU’s Assembly of Heads of State and Government of the Union to authorise the use of force against a Member State that is responsible for the commission of international crimes:

The Union shall function in accordance with the following principles… (h) the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

Properly understood, however, Art. 4(h) of the Constitutive Act provides no support whatsoever for the legality of UHI. To see why, it is useful to begin by explaining why the case for a customary rule permitting UHI is not supported by humanitarian uses of force authorised by the Security Council under Chapter VII of the UN Charter. The reason is straightforward: the essence of UHI is that the state being attacked does not consent to force being used on its territory, and all states consent to the possibility of the Security Council authorising the use of force on their territory when they ratify the Charter. The relevant provisions are Art. 24(1) and Art. 25:

Article 24

  1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Because of Art. 24(1) and Art. 25, humanitarian intervention authorised by the Security Council under Chapter VII is by definition legally consensual — even if the state being attacked is politically opposed to the use of force on its territory.

For similar reasons, humanitarian intervention authorised by the AU’s Assembly of Heads of State and Government of the Union pursuant to Art. 4(h) of the Constitutive Act cannot be non-consensual. By ratifying the Constitutive Act, all AU members have empowered the Assembly to authorise the use force on their territory to stop the commission of international crimes. They may not like that use of force, but they have consented to it.

Humanitarian intervention authorised by the AU, therefore, no more supports the customary legality of UHI than humanitarian intervention authorised by the Security Council. In each case, the use of force in question is authorised by a supranational organisation acting on the basis of the consent of the parties that have ratified its founding treaty. That is the antithesis of the nonconsensual use of force — the constitutive feature of UHI.

Escalation of Violence in Bangui: Has MINUSCA Become Party to a Conflict in CAR, and What Would That Mean?

by Bianca Maganza

[Bianca Maganza is a PhD candidate in International Law and a Teaching Assistant at the Graduate Institute of International and Development Studies in Geneva.]

Some days ago, the United Nations Multidimensional Integrated Stabilisation Mission in the CAR (hereinafter, MINUSCA) got involved in heavy fire exchange with an armed group known as KM5 in Bangui, the capital of the Central African Republic (hereinafter, CAR). Security in CAR is rapidly deteriorating since some weeks, and accidents such as the one just mentioned are becoming, if not the norm, for sure no longer the exception. Indeed, it is not the first time that a situation of direct confrontation between the UN mission and the rebels arises. Although facts are not fully confirmed and the situation is still unfolding at the time of writing, it seems worth considering the consequences that the episode may entail under international humanitarian law (hereinafter, IHL).

The issue of the role played by IHL in the context of so-called peace operations is a much-debated and complex one (see, for example, the recently published Leuven Manual on the International Law Applicable to Peace Operations). Crucial aspects such as those related to the consequences of the application of IHL on issues of targeting and on the international prosecution of crimes committed in relation to the situation have been brilliantly covered elsewhere, and I will not discuss them here. The same is true for jus ad bellum considerations vis-à-vis the mandate and the evolution of traditional peacekeeping into “stabilisation” missions. While the main case study in this respect has so far been that of MONUSCO in the DRC, in particular as regards its Intervention Brigade, it has been rightly claimed that MINUSCA is the new frontier for such discussion.

In this post, I want to focus on a specific aspect of the situation, namely the possibility that – provided that some factual circumstances are reached – a multinational mission spearheaded by the UN becomes as such party to a conflict with the armed group against which it is fighting. This case is different from the one following the so-called support-based approach developed by Ferraro, which I am not discussing here. Although the fact that IHL may apply to situations in which a multinational operation is involved is nowadays accepted, states and international organisations are generally reluctant to admit that a peace operation has become party to an armed conflict. Such possibility has been often discussed but frequently let sink through the lines and rarely tackled head on. If, on the one hand, the capacity of a multinational operation to become party to the conflict is often taken for granted, the concretisation of such a possibility is on the other hand never explicitly acknowledged in terms of its consequences.

The facts that recently took place in Bangui provide the occasion to discuss the legal significance of such a case.

The facts

After the failure of a first attempt undertaken some days before, in the night between 7 and 8 April 2018, what was announced as joint law enforcement operation of MINUSCA, the Central African Armed Defense Forces (FACA) and the Internal Security Forces (ISF) aimed at disarming and arresting some criminal groups in the PK5 area of Bangui turned into violent fire confrontation between the armed groups and the mission.

According to the press statement released by MINUSCA, at a given moment, “heavily armed elements of criminal groups in the area deliberately fired on international forces, prompting a return of fire to push these elements back”. According to other sources, it is the MINUSCA contingent that entered the area shooting in the first place. As a result, eight peacekeepers were wounded, and one died. Some civilian casualties are also reported. In any case, it is quite clear that the operation was not a success for MINUSCA: for the second time in a matter of few days, the contingent had to leave the area and had been the object of subsequent attacks.

A conflict between MINUSCA and the armed group?

Regardless of who started the fire exchange, it is more than legitimate to ask whether the threshold for IHL applicability has been reached with the incident of 8 April – if not even before. In fact, despite the careful employment of the language of law enforcement in MINUSCA’s press releases – referring to “criminal groups”, “gangs” and “disarmament operations” – the reality on the ground seems to point to another direction.

Working on the hypothesis that a conflict, if any, ought to be a NIAC due to the involvement of non-state armed groups against the contingent spearheaded by the UN, the situation has to be analysed under the two criteria of intensity of hostilities and organisation of the parties as developed by the ICTY in the Boškoski case.


Applying the first prong of the test to the single incident under analysis, video footage clearly shows MINUSCA troops engaging the area through the use of heavy weaponry. The presence of civilian casualties and fleeing civilians, if confirmed, is a further factor to consider when assessing the intensity of the armed confrontation. The episode must be assessed against the broader background of the situation in CAR. The general secrecy regarding the number, details and nature of MINUSCA operations cannot hide the fact that incidents like the one discussed here are not isolated but had already happened and keep happening in the country. The recent security deterioration in the area and the repeated, unsuccessful attempts by MINUSCA to seize the neighbourhood testify to the seriousness of the situation. The situation remains unchanged after the incident of 8 April, and following the main incident the mission has been the object of subsequent attacks in another area of the city. It is highly probable that the mission will attempt yet another operation to gain control of the neighbourhood – possibly, deploying more force to be able to finally overcome the enemy.

In light of the above, it seems at least plausible to argue that the intensity level has been reached either regarding the single attack under analysis – in fact, a NIAC can be a matter of hours or days (see, in addition to the case law of the ICTY, Abella v. Argentina, known as “La Tablada” case, before the Inter-American Commission of Human Rights) – or as a result of the series of episodes involving MINUSCA and the armed group since some time. Assuming that this is the case, for the sake of argument, the next step is an assessment of the organisation of the parties involved.

Organisation of the parties

That of organisation of the parties contains in itself the two other interdependent criteria of control over the troops and capacity to comply with the rules of war – both in abstract, through a disciplinary system and chain of command, and through the concrete possibility of respecting the most basic principles such as those of distinction and precaution. These seem, to me, the features that differentiate a collective entity having the capacity to become party to a conflict from a random group of individuals involved in armed violence.

Most of the analyses of situations of multinational operations potentially involved in an armed conflict stop at the assessment of the organisation of the armed group for the sake of establishing the existence of a NIAC. However, it seems to me that the only way to fully satisfy the test is to apply the analysis to both sides. As evident as the result may be, to be able to claim that MINUSCA has become party to a conflict with KM5, one shouldn’t stop at whether the armed group is sufficiently organised to reach the threshold of a NIAC but also ought to address the features of the mission itself.

In the case at stake, it seems undeniable that KM5 shows and deploys a considerable amount of organisation. To a certain extent, it can be argued that it even controls the neighbourhood known as PK5: it was indeed following continuous requests by the residents of the area that MINUSCA decided to act to disarm the armed group and try to “liberate” PK5. As we have seen, MINUSCA attempted to take the neighbourhood back more than once, without success. As for elements of control, KM5 is organised in auto-defence patrols, therefore showing capacity to coordinate action and logistics, and acts in execution of the orders given by its leader, Nimery Matar (known as “Force”), who even recently released a video declaring to be ready to fight in case MINUSCA would have dared entering the area he controls. While we would need more facts to weigh the group’s potential compliance with IHL, the existence of a command structure can arguably point to such abstract capacity.

When it comes to the UN mission, all three accounts seem equally warranted. The mission has by definition a clear organisational structure and a chain of command. Moreover, respect for IHL is part of its mandate and generally warranted by the 1999 UN Secretary General’s Bulletin. Even though the Status of Forces Agreement (hereinafter, SOFA) between MINUSCA and CAR is not publicly available, respect for IHL is included in the model UN SOFA and usually reflected in single SOFAs concluded with host countries.

MINUSCA as party to a conflict

The purpose of this post is not directly that of taking a position on whether or not the situation in CAR amounts to an armed conflict between MINUSCA and the armed group against which it is fighting. Even though the facts reported above seems to point to a considerable level of intensity, full confirmation of what happened is still awaited and sources are scattered and not always reliable. My point is rather that, in case the required intensity threshold is reached, both sides have the capacity to become parties to a conflict.

The main consequence of considering MINUSCA as party to an armed conflict – a NIAC, in this case – would be that the mission as a whole is bound to respect at least the provisions of CA3 plus any other customary international law rule deemed applicable to the situation. More specifically, MINUSCA would have to respect and ensure respect for IHL by its armed forces and other persons or groups de facto acting on its instructions, or under its direction or control (Rule 139) and train its armed forces in IHL (Rule 142). These obligations seem particularly relevant in light of the problems often posed by issues of legal interoperability in the context of multinational operations. Seeing the mission as one single entity for the sake of IHL would allow deeming it responsible for the training and subsequent conduct of its peacekeepers independently of – but not in contradiction with – the repartition of command and control between the international organisation and troop contributing countries. Concretely, this would mean that, in addition to the obligations of each troop contributing country, the UN should take the responsibility of substantively training the contingent and making sure it respects and applies the same rules of IHL as whole, instead of a patchwork of obligations deriving from the law applicable to single member states. Arguably, such a scenario does not differ too much from what already happens in practice through the joint training of peacekeeping missions before deployment, and the respect of a basic, uniform set of IHL rules is the aim of the Secretary General’s Bulletin. However, the idea that those obligations might directly derive from the status of party to the conflict under IHL sounds very unlikely to be accepted for the consequences it might entail when it comes to issues of attribution and allocation of responsibility for wrongdoings between the member states and the international organisation. For all that, it seems undeniable that acting under a unified legal framework has the potential for being a game changer at least in terms of prevention of violations of IHL.

No less important consequences derive from the potential role of MINUSCA as a party to the conflict under international criminal law. As aptly noted by Labuda, although the UN keeps denying the existence of an armed conflict between the mission and the armed groups in CAR, it at the same time reiterates that any attack against peacekeepers may amount to a war crime. Leaving aside the contradictory nature of statements of this kind, what is interesting is that incidents such as the one of 8 April are likely to fall under the jurisdiction of the recently established Special Criminal Court for CAR. Further judicial pronouncement is needed to shed some light on the features of the crime of attacking peacekeepers in a situation of armed conflict. The premise that because of the status of a peacekeeping mission as party to the conflict members of its military branch could be targeted as forming part of the armed forces thereof has never, so far, been accepted in the case law of international criminal tribunals. Will the Special Court choose to do so, indirectly saying the unsaid? We will need to wait and see if the whispered possibility of considering a UN mission as a party to the conflict will be finally made explicit in such a way.

The Departed: Implications of the Philippines’ Withdrawal from the ICC

by Jennifer Tridgell

[Jennifer Tridgell is a Legal Intern at the International Criminal Court. She has previously worked at the Philippines Commission on Human Rights and the High Court of Hong Kong. The views expressed in this article are her own.]

On 19 March 2018, President Duterte withdrew the Philippines from the Rome Statute (“Statute”). This decision is disappointing, yet unsurprising. The President has repeatedly threatened to withdraw, and declared that the International Criminal Court (“Court”) is being used as a “political tool”. Earlier in 2018, Chief Prosecutor Bensouda opened a preliminary examination (“PE”) into whether the Philippine Government is responsible for alleged crimes against humanity committed in the “War on Drugs” from at least 1 July 2016 (“Situation in the Philippines”). To date, Human Rights Watch estimates that the bloody campaign has claimed over 12,000 lives.

In this post, I firstly examine whether the Philippines has withdrawn from the Statute. Secondly, I analyse the Government’s obligations to cooperate with the Court after its withdrawal, especially in relation to the PE. Finally, I consider why the PE into the Situation in the Philippines is strategically significant for the Court’s future and mandate to end impunity for international crimes.

Legal Requirements for Withdrawal

According to international law, the Philippines has withdrawn from the Statute. Under Article 127(1) of the Statute, a State party may withdraw via written notification to the Secretary-General of the United Nations (“UN”). At a minimum, the withdrawal shall “take effect one year after the date of receipt of the notification” (emphasis added). Burundi is the only nation to have effectively withdrawn from the Statute. Since President Duterte has given written notification to withdraw, it shall become effective on 19 March 2019.

Yet it is unclear whether President Duterte has the domestic power to withdraw unilaterally from the Statute. Before the Philippines ratified the Statute in 2011, at least two-thirds of Senators had to give their consent under Section 21, Article VII of the 1987 Constitution for the treaty to become “valid and effective”. This Constitution is silent on the treaty withdrawal process, and Senators have failed to pass a resolution on whether it also requires their consent. Therefore, the Supreme Court of the Philippines might be asked to determine if President Duterte has the power to withdraw. When South Africa tried to withdraw unilaterally from the Statute, this decision was revoked after the High Court ruled that it was “unconstitutional and invalid”. For this post, I assume that the Philippines has withdrawn from the Statute.

State Obligations to the Court

Legal Framework

Article 127(2) of the Statute determines the Philippines’ obligations to the Court after its withdrawal. It seeks to prevent States from using withdrawal to avoid jurisdiction, once they are under scrutiny from the Court (Klamberg, p. 757), by giving effect to Article 70(1)(b) of the Vienna Convention on the Law of Treaties, which stipulates that the termination of a treaty “[d]oes not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”. Article 127(2) states that:

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective (emphasis added).

This Article provides that a State party may have two ongoing obligations after its withdrawal, which I analyse below in relation to the PE into the Situation in the Philippines respectively. Firstly, a State party must cooperate with “criminal investigations and proceedings” which were commenced prior to the date of the effective withdrawal. PEs are probably excluded as they precede criminal investigations. Although it does not state when an investigation commences, the Pre-Trial Chamber (“PTC”) concludes that an investigation clearly has commenced with the decision to authorise it (para. 26). Thus, it is expected that the Office of the Prosecutor (“OTP”) will move quickly so that the Court may authorise a formal investigation into the Situation in the Philippines before 19 March 2019.

The Court took this approach for the Situation in Burundi. Only two days before Burundi’s withdrawal became effective, the PTC authorised a formal investigation under Article 15 of the Statute. While Burundi gave notice of withdrawal shortly after the OTP requested authorisation of this investigation, the Philippines gave its notification just after the OTP opened a PE. Consequently, the OTP is under considerable pressure to conduct this PE, then request and possibly receive the Court’s authorisation for an investigation within one year.

Secondly, a State shall not prejudice the consideration of “any matter” under consideration “by the Court” that was commenced before its withdrawal becomes effective. The meaning of this section is ambiguous. Does a “matter” include consideration of any situation or case? Does “the Court” refer to Chambers or does it encompass the OTP? Schabas (p. 1536) postulates that an expansive interpretation might find that “any matter” is before “the Court” when the OTP is “considering” applying to the PTC for authorisation of an investigation under Article 15 of the Statute.

However, I agree with Kevin Jon Heller that the better view is that a situation is only “under consideration” by the Court once the OTP has asked the PTC to authorise an investigation. I suggest that PEs may not constitute a “matter” before “the Court”. PEs are preliminary, informal processes with “no particular applicable legal framework and no direct legal consequences” (see Dov Jacobs). They are solely initiated by the OTP, which is one organ of the Court and may not embody “the Court”. Instead, “the Court” may refer to Chambers. For example, Article 95 of the Statute refers to Chambers when it uses the same phrase “under consideration by the Court”.

Furthermore, it does not befit the OTP’s role to unilaterally determine States’ obligations after their withdrawal. Amnesty International and Whiting argue for a broad interpretation of Article 127(2) of the Statute, so that States cannot prejudice consideration of PEs and thereby avoid the Court’s jurisdiction. The OTP has sweeping discretion to initiate any PE that is not “manifestly beyond” the Court’s jurisdiction, under Article 15 of the Statute. Yet this power is subject to checks and balances, including the need for the OTP to seek Court authorisation for an investigation in Article 15(3) of the Statute. Ultimately, the Philippines may not be obligated to cooperate with the PE into the Situation in the Philippines after its withdrawal, but it would be obligated under an investigation.

Practical Implications

All is not lost for victims in the Philippines. Regardless of whether or not the Court authorises an investigation before the date of effective withdrawal, the Philippines remains a State party until then. Therefore, the Court has jurisdiction over crimes within its jurisdiction that may have been committed in the Philippines or by nationals of the Philippines up to and including the date of effective withdrawal (see Burundi at para. 24). These crimes are also not subject to any statute of limitations (Article 29 of the Statute). Accordingly, the Court may authorise an investigation into the Situation in the Philippines or other alleged crimes within these limits at any time.

However, even if the Court approves an investigation before the date of effective withdrawal, the Philippines is unlikely to cooperate under Article 127(2) of the Statute. In fact, President Duterte has given express orders to the contrary. This does not diminish the importance of States respecting their obligations, but it follows that the OTP faces greater hurdles in carrying out its duty. Under a more amenable Government, the Philippines may freely choose to cooperate with the Court, even when it is not legally obliged to do so. For example, the Philippine Government has compensated victims under the Marcos dictatorship of the 1970s and 1980s.

Importance of the Preliminary Examination

The PE into the Situation in the Philippines is important for two reasons. Firstly, the Court may bolster its reputation as a truly international institution, because the PE is the first time that the Chief Prosecutor has set her sights on Asia. It is the most “underrepresented region” at the Court, with just 35% of States ratifying the Statute (Kim, p. 254), and abstentions from some of the world’s most populous nations, including China, India and Indonesia. The region with the next lowest rate of representation is Africa which, despite having a comparable number of States, has almost double the number of signatories as Asia (Kim, p. 254). With the global balance of power shifting to Asia, the OTP has made a strategic decision to initiate the PE in the Philippines and have a place in the region’s future.

By examining the Philippines, the OTP gains not only the opportunity to reshape Asia’s notoriously uneasy relationship with the Court (generally, see Chesterman, Sperfeldt and Palmer and Schuldt), but also to address criticism that the Court is inappropriately targeting African nations. Recently, the OTP has focused further afield with PEs into the Situations in Ukraine, Iraq/UK and Venezuela, amongst others.

Secondly, the PE in the Philippines may help to deter bloody anti-drug campaigns around the world. The OTP has placed the War on Drugs in the global spotlight, which may put pressure on the Philippines to reconsider its policies. However, South-East Asia is notorious for the world’s harshest drug penalties and their high popular support. Over 18 months into the War on Drugs, President Duterte still enjoys 80 percent approval ratings. Perhaps “inspired” by Duterte, Indonesia’s President Widodo has ramped up anti-drug rhetoric and called for police to shoot drug offenders. Whenever there are executions of drug traffickers, President Widodo’s approval ratings surge. These hard-line regional attitudes towards drug offences not only make it more difficult to encourage Filipino victims to come forward, but also to persuade nations to abandon their violent practices towards drug offenders.


In 1989, Trinidad and Tobago proposed the creation of an international criminal court to address drug trafficking. It is with a twinge of irony that the resulting Court will now be (rightly) used to seek justice for drug dealers and addicts who have been allegedly murdered in the War on Drugs.

The Philippines’ decision to withdraw from the Statute is disappointing and disturbing. Every day that President Duterte’s brutal campaign against drugs continues, the body count swells and impunity reigns. Thankfully, even if an investigation is not approved before the date of effective withdrawal and the Philippine Government refuses to cooperate, the Court will always have jurisdiction over these alleged crimes.