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Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict…

The First Annual Michael Lewis Memorial Teleforum on “Defining the Law of War”

by Julian Ku

As many of our readers may recall, the late Professor Michael Lewis was a great friend of this blog and an important voice in U.S. international law and national security scholarship.  To honor his memory, the Federalist Society has recently launched the first annual Michael Lewis Memorial Teleforum in his honor.  The podcast features Maj. Gen. Charles Dunlap (Professor of the Practice of Law Executive Director, Center on Law, Ethics and National Security, Duke University School of Law) and Prof. Michael A. Newton (Professor of the Practice of Law, Vanderbilt University Law School).

The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are.” So begins the new U.S. Department of Defense Law of War Manual, published last June, which had not been updated for nearly 60 years. At 1180 single-spaced pages and with 6,916 footnotes, the manual would seem to be thorough and exhaustive. Our experts will critique the Department of Defense Manual. Does it provide the guidance necessary to troops on the ground, commanders, and all actors in between? How does it address modern warfare, terrorism, and asymmetrical war? How does it define lawful and unlawful belligerents? What does it say about interrogation and detention? These and other questions were addressed by our experts.

It’s a wonderful way to remember a great guy, but continuing to discuss and debate those issues about which he cared the most.

Dear Fox News South Carolina: Shariah Law is Not “Also Known As International Law”

by Julian Ku

So local TV news in the U.S. is hardly the most sophisticated part of the U.S. media.  Still, I was taken aback by this passage from a news report from WACH Fox Channel 57  in South Carolina.

COLUMBIA, SC (WACH) – A measure that would ban the use of Sharia Law in South Carolina court rooms is working its way through the State House.

Sharia Law, also known as International Law, is closely tied to Islam. It covers an entire way of life, but one rule under Sharia Law is if someone is caught stealing, they would have their hand cut off as punishment.

(Emphasis added).  You can also watch the video version of the report.

It is worth noting that most state laws banning “international law” have been invalidated under the U.S. Constitution free exercise of religion clause because federal courts have held that the ban on “international law” is really aimed at “sharia” law.  This report confirms that this is indeed the case in South Carolina, and that some state legislators may not even know the difference between sharia law and international law.

One other note for our non-U.S. readers:  South Carolina is the third U.S. state to hold primary elections in our presidential race.  Its voters have a pretty big role in deciding who will be the nominees.  Just noting this fact, without comment.

 

As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.

Guest Post: The ACHPR’s New General Comment on the Right to Life–A Missed Opportunity for the Prohibition of the Death Penalty?

by Nader Diab

[Nader Diab is an Associate Legal Adviser at the International Commission of Jurists. LL.M Geneva Academy of International Humanitarian Law and Human Rights. Twitter : @NaderiskDiab]

In the GC the ACHPR reiterated its call for the abolition or imposition of a moratorium on the death penalty (for previous similar calls see two resolutions of the ACHPR on this issue here and here). It did not provide for a legal basis for such a call neither in the GC nor in the resolutions.

Despite the call for abolition in the GC the ACHRP does not seem to view the imposition of the death penalty, per se, as a breach of article 4, which protects the Right to Life under the African Charter. The GC, echoing the UN Human Rights Committee, stated that the imposition of the death penalty would violate article 4 of the African Charter if it is not used for the most serious crimes and the proceedings did fully comply with the right to a fair trial (para. 24). Similar conditions had been set out for example in its 2008 resolution on the moratorium on the death penalty, which states:

“1. Exhorts State Parties to the African Charter on Human and Peoples’ Rights that still retain the death penalty to:

  • Fully comply with their obligations under this treaty; and

  • Guarantee that every person accused of crimes for which capital punishment is applicable, benefits from all the guarantees of a fair trial included in the African Charter and in other relevant regional and international norms and treaties.”

This might seem the unwavering the position of the ACHPR’s stance on the issue. However, recent developments and previous statements suggest that the outcome of the GC regarding the death penalty could have been different, and could have gone so far as to prohibit the death penalty as a violation of article of the African Charter protecting the right to life.

The African Charter, unlike the ICCPR, does not address the issue of the death penalty. The ICCPR does not necessary exclude recourse to of the death penalty when it is imposed pursuant to a final judgment rendered by a competent court only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. (The death penalty is, however, prohibited for those States that are party to the second Optional Protocol of the ICCPR). Therefore, unlike the Human Rights Committee, the ACHPR is not restricted by a provision in its founding treaty that narrows the scope of interpretation of the right to life provisions of the treaty as concerning the death penalty. (It should be noted that the ICCPR was adopted in 1966, when only a relatively small minority of States were retentionist. The adoption of Optional Protocol two was seen as a means of progressively reducing the number of States two, which the death penalty provisions would apply).

Furthermore, the General Comment was adopted the same year the ACHPR achieved a big step towards the abolition of the death penalty with the adoption of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa. A year earlier the ACHPR convened a continental conference on the abolition of the death penalty in Africa. The Cotonou Declaration that came out of the conference ‘recalls’ and ‘bears in mind’ in its preamble in several instances the right to life in abstracto in international treaties and declarations, seemingly implying that the right to life and the death penalty in all circumstances are inherently contradictory. It would have been expected that the culmination of this process, i.e the general comment on the right to life, would have taken a different position on the issue.

At the global political level, the trend is inexorably towards abolition. The periodic resolutions of by the UN General Assembly since 2008 calling for all retentionist States to implement a moratorium on the death penalty with a view to full abolition have been adopted with increasing majorities. In December 2014 (69/186), the resolution passed with 117-37 (34 abstentions). The vast majority of AU member States supported or at least abstained from the resolution. While the GA resolutions do not expressly identify all instances of the death penalty as violations of the right to life, it does situate the moratorium within “the progressive development of human rights”. This GA resolutions, because of their universal reach, could therefore also have been relied on as evidence of an emerging international opinion that the use of the death penalty is incompatible with general human rights principles.

Finally, as previously mentioned the ACHPR’s position has not been consistent, and in some instances it has considered that the imposition of the death penalty amounts to a violation of the right to life regardless of any other circumstances. In May 21 2015, it issued a press release condemning the execution of six individuals in Egypt. It stated in communiqué: “its opposition to the imposition of the death penalty as it constitutes a violation of Article 4 of the African Charter on Human and Peoples’ Rights (the Charter), which specifically prohibits the arbitrary deprivation of the right to life and enshrines the integrity of persons. Article 5 of the Charter also prohibits cruel, inhuman or degrading punishment and treatment.” In the communiqué the ACHPR did not raise any issues regarding the fairness of the trial or the gravity of the crime (which it did previously a year earlier, see here). This indicates that the ACHPR has viewed the imposition of the death penalty as a violation of the right to life in all circumstances, and not just when imposed when the conditions laid out in its GC are not met (a position that happens to be shared by its Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary killings in Africa.)

Guest Post: On Business and Human Rights in Illegal Territorial Regimes

by Valentina Azarova

[Valentina Azarova is a Research Fellow in the Institute of Law, Birzeit University. She has assisted and advised in the suits filed by Al-Haq against foreign corporations for involvement in abuses in occupied Palestinian territory and is a member of the legal committee, Global Legal Action Network (GLAN)].

On 19 January 2016, Human Rights Watch (HRW) released Occupation, Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, a report detailing the involvement of foreign and Israeli business in settlements and their support for unlawful Israeli acts. The report is an important piece of one-stop-shop documentation that brings together the work of Who Profits and others on the involvement of foreign businesses in the occupation through financing, servicing, or trading with Israeli settlements. As HRW argues, any business operations in settlements are associated with the human rights abuses and international law violations that ensue from Israeli settlement activity. However, the legal basis of HRW’s claims merit further consideration. The report takes the position that “to comply with their own human rights responsibilities” all companies should “stop working with and in Israeli settlements.” This responsibility derives, the report asserts, from the UN Guiding Principles on Business and Human Rights, which requires businesses to mitigate their involvement in abuses. According to HRW, businesses operating in the settlements cannot “mitigate,” and therefore must pull out to comply with these obligations.

Yet states, companies and scholars have argued that the UN Guiding Principles prescribe only a duty of due diligence on businesses and states (an obligation of means, not result, to reflect on how to mitigate involvement in abuses). In practice, this duty has been understood by even the most law-abiding states as having the purpose of warning business of the risks they incur to their reputation and economic integrity, rather than as being a positive obligation to firmly prohibit all business operations. Businesses’ involvement with the system of abuses underlying and ensuing from Israeli settlement activity has prompted some state measures – such as the recommendatory government advisories that have now been issued by 18 EU Member States (see e.g. the UK advisory). But home-states have stopped short of enforcing international law-based obligations by adopting measures that could redress the immitigable business involvement in the harm resulting from operations under the auspice of Israel’s illegal legislative and administrative regime in settlements – where all legislative acts are predicated on the entitlement of Israel to exercise sovereign authority in occupied territory.

Moreover, states perceive their obligations under the business and human rights framework in international law (set out in the UN Guiding Principles and the OECD Guidelines) as voluntary and politically discretionary. Home-states legal machinery to enforce human rights and other international law obligations against business has in practice been limited to the gravest forms of complicity in abuses that could result in civil or even criminal suits. As with other transnational enforcement actions, the success of such lawsuits is hinged on foreign policy concerns and considerations of non-interference in the domestic affairs of another state, even though the state’s own corporate nationals are involved. Home-states are unlikely to crack down on their corporate nationals abroad if their involvement in violations lacks sufficient proximity to the principal perpetrator or is not sufficiently substantial. Cases that meet these criteria are allowed to go forward only when they are meticulously evidenced and deemed politically prudent. Yet the track record on lawsuits for foreign business involvement in Israeli wrongdoing is dismal: French, Canadian and Dutch courts succumbed, to different degrees, to political and procedural barriers and brought an end to several straightforward claims against their corporate nationals’ involvement in wrongdoing.

While the HRW report focuses on businesses’ human rights responsibilities in international law, it also addresses demands to third states. Yet given the nascent nature of state practice on the enforcement of business and human rights, the following three issues (or caveats) are of note in relation to the report’s claims concerning the definition of the scope of corporate wrongdoing and the prescription of legal consequences under international and domestic law for business involvement in Israeli unlawful acts in relation to the settlements:

1) The report does not capture the scope or the nature of wrongdoing by business in settlements. The report’s case studies document settlement quarries that benefit from financial incentives while Palestinian quarries are subject to “discriminatory” restrictions; a bank that finances construction and a real estate company that sells properties in settlements, which profit from land confiscation; a company that supports settlement infrastructure by collecting garbage and operating a landfill; and a textile company that contributes to labor abuses against Palestinian employees. But not only are there types of less direct foreign business involvement in settlements that are not captured by this list – e.g. investment in Israeli companies operating in settlements, or procurement of products originating from settlements – it does not address the key underlying form of wrongdoing in international law resulting from the administrative and territorial regime that Israel maintains in occupied Palestinian territory.

What unifies all companies that have any kind of activity in the settlements is that they operate under the auspices of Israel’s illegal extension of its domestic administrative and legal jurisdiction in occupied territory, which is premised on its sovereign claims and the extension of Israeli sovereignty into occupied territory.

The report notes that Israel’s actions create a duty for third states not to recognise Israel’s illegal acts as lawful, but it appears to limit this duty to the specific types of wrongdoing on which the report focuses. Yet the duty of non-recognition is instead triggered by the simple, but crucial fact that all activities in settlements are conducted under Israeli domestic jurisdiction, which Israel extended into occupied territory (legislative and executive) — a state of affairs that constitutes an illegal territorial regime no state recognises as lawful. Since the report does not address per se the illegal territorial regime maintained by Israel in occupied Palestinian territory when it defines the scope of corporate wrongdoing, the report fails to substantiate its claim that “the only way settlement businesses can avoid or mitigate contributing to abuses is by stopping to operate in settlements or engage in settlement-related commercial activity.” The report’s claim that all business should cease and desist from all settlement activities risks appearing ambitious, given the lower-level demand of to exercise due diligence in international law.

2) The report makes the unfounded, aspirational claim that the duty of non-recognition requires states to stop or prevent their corporate nationals from becoming involved in settlements. The duty of non-recognition in international law addresses states, not businesses. A state has horizontal obligations to protect individuals from private abusers under human rights law, but the reality is that the legal force of these obligations is weak: most states consider them obligations of means and not result, and only a few states have developed national action plans to implement them (see 3). Moreover, the duty of non-recognition – which states interpret, as discussed above, as a mere ‘due diligence’ responsibility of means – does not have concrete content in terms of what it requires states to do. The duty of non-recognition does not require states to prevent their businesses from conducting any activities in a conflict zone. This claim (like arguments that base the demand that states ban trade with settlements on the duty of non-recognition) is aspirational, given the minimalist view that is reflected in state practice recorded in ILA recognition/non-recognition committee reports (.pdf) and in scholarly works. The duty of non-recognition – which Talmon calls a “hollow shell,” and is a “soap bubble” for Focarelli – can mean anything and nothing.

The most effective way to regulate the conduct of businesses and make sure they are not involved in settlements is based on states’ need to ensure consistency between their domestic public policy positions on the illegality of settlements, and the implementation of their domestic laws on corporate governance (intended to protect consumers, procurers, and investors). Since the application of Israeli domestic laws in the occupied territory is considered unlawful by all states, to uphold the integrity of their domestic rule of law, state authorities must ensure that their domestic law does not give legal effect to the basis for business activities in Israeli settlements. All business activities carried out under Israel’s illegal regime by the corporate nationals of law-abiding states would entail concrete legal risks under the company’s home-state law, insofar as those activities oblige the state to give legal effect to Israel’s internationally unlawful acts as though they were lawful.

3) The report’s recommendations to states fall short of adequately addressing foreign corporate involvement in extraterritorial wrongdoing. The report calls for states, in accordance with the UN Guiding Principles, to issue “guidelines” to prevent business from conducting activities in settlements. Many states continue to consider their UNGP obligations as soft norms and recommendatory standards, and do not enforce them as exigently as domestic law (most have not even initiated the implementation of a “national action plan”). Since the government advisories issued by foreign ministries and trade departments of EU countries are non-binding recommendations (suggesting compliance with human rights), they are insufficient to trigger exigent enforcement action.

However, if the home-state line ministries were to transpose and streamline these standards through specific domestic law provisions (e.g. procurement, consumer protections, proceeds of crimes laws), they would become as enforceable as any other domestic laws regulating corporate actors to business operations in a settlement (in whatever capacity or manner) by virtue of the legal basis for any activity, transaction or title there being Israeli domestic law. Such measures, intended to guarantee the consistent application of domestic law with public policy by ensuring non-recognition of Israeli unlawful acts as lawful, first require state authorities to provide their nationals with guidance to enable their ‘informed compliance’ with specific domestic law provisions.

While the HRW report should become a reference point for its case studies of business involvement in Israeli abuses, its recommendations to third states merit further consideration. The measures that can actually trigger vigorous domestic enforcement action to ensure the protection of consumers, procurers and investors from wrongdoing, are premised on the need to uphold the integrity of the home-state’s legal order by excluding internationally unlawful acts from their internal domain. Indeed, the wave of divestment from the settlements by European private actors, following EU’s ‘differentiation’ measures, coupled with a series of government advisories waiting to be operationalized, signals that this process is already underway.

Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict

by Jonathan Horowitz

[Jonathan Horowitz is a Legal Officer on National Security and Counterterrorism in the Open Society Justice Initiative. This post is based on his recently published article in Emory International Law Review, “Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict,” and will also appear in a longer form and under a different title in a forthcoming book, Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens Ohlin for Cambridge University Press.]

If a foreign State asked you (a government official) permission to let it kill an individual on your government’s territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren’t allowed to do?

These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.

The underlying assumption of a global NIAC is that the US, or any State, may chase its enemies around the world using international humanitarian law (IHL) targeting rules. John O. Brennan, when serving as assistant to the US president for homeland security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are more permissive than the host State’s international human rights law (IHRL) obligations. This is because, under our scenario, the host State is not in a NIAC with the attacking State’s enemies and so the host State’s IHRL obligations still apply in full.

A second observation it that under the obligations to respect and protect the human rights of people on its territory, a State must not take part in unlawful and arbitrary deprivation of life and it must protect people in its territory from the same.

When this second observation is linked with the first one, the situation arises whereby even if the foreign State sought to carry out a killing in complete conformity with IHL, the way the killing occurred may still have gone far beyond what IHRL allows the host State to permit. That being the case, the host State would be barred from providing its consent; and, as I explain in more detail in a new article, this significantly undercuts the notion of a global NIAC.

This conclusion, however disappointing it may be for attacking States that wish to use consent as a legal sanitizer, isn’t exactly legal nuclear science. But I do think it’s an area that has largely gone unexplored and allows consenting States to get off the hook for their unlawful role in permitting killings that they have no right to permit.

The problems that IHRL poses for a State that is asked to grant its consent in the context of a global NIAC doesn’t, however, mean that a State can’t defend itself from the serious threats of non-State actors abroad. It means that such use of force must be based on other legal authorities, be them host State law enforcement measures, relying on the inherent right to self-defense, UN Security Council authorization, joining a host State’s armed conflict with a common enemy, and so on.

And while it’s true that distinguishing between using a legally permissible framework or a legally impermissible framework may lead to no material difference in the final outcome (i.e., use of lethal force and casualties may still result), the distinction remains important. A global NIAC stands for something far greater than the consequences of any single lethal attack or group of lethal attacks that a State may wish to carry out. It permits a State to engage in long-lasting armed conflict whereby human rights law is sidelined and the more permissible IHL targeting rules are routinely applied without geographic constraint. Such a legal framework dramatically expands a State’s use of force beyond what international law had envisaged to date.

But herein lays a considerable problem. It will be an uphill battle to persuade host States to respect their human rights obligations (in this case by refusing to grant consent) within the extremely politicized and highly insecure sphere of terrorism, counterterrorism, and armed conflict, especially when the request for consent comes from an attacking State that has considerable military, political, and economic resources to provide or withhold. In turn, this will require a sustained focus and intensified discussions on the legal obligations of the host State and will have to include holding the host State accountable for its breach of international law.

Navy SEAL Who Supposedly Killed Bin Laden Under Investigation

by Kevin Jon Heller

The SEAL in question is Matthew Bissonnette, who published the bestselling No Easy Day under the pseudonym Mark Owen. According to the Intercept, the federal government is investigating Bissonnette for revealing classified information and using his position to make money while still on active duty:

A former Navy SEAL who shot Osama bin Laden and wrote a bestselling book about the raid is now the subject of a widening federal criminal investigation into whether he used his position as an elite commando for personal profit while on active duty, according to two people familiar with the case.

Matthew Bissonnette, the former SEAL and author of No Easy Day, a firsthand account of the 2011 bin Laden operation, had already been under investigation by both the Justice Department and the Navy for revealing classified information. The two people familiar with the probe said the current investigation, led by the Naval Criminal Investigative Service, expanded after Bissonnette agreed to hand over a hard drive containing an unauthorized photo of the al Qaeda leader’s corpse. The government has fought to keep pictures of bin Laden’s body from being made public for what it claims are national security reasons.

The investigation is a perfect example of the US government’s bipartisan unwillingness to address crimes committed by the military as part of the war on terror. As I noted more than three years ago, Bissonnette openly admits to committing the war crime of willful killing — a grave breach of the Geneva Conventions — in No Easy Day. Here is his description of how he and a fellow SEAL killed bin Laden (p. 315):

“The point man reached the landing first and slowly moved toward the door. Unlike in the movies, we didn’t bound up the final few steps and rush into the room with guns blazing. We took our time.

The point man kept his rifle trained into the room as we slowly crept toward the open door. Again, we didn’t rush. Instead, we waited at the threshold and peered inside. We could see two women standing over a man lying at the foot of a bed. Both women were dressed in long gowns and their hair was a tangled mess like they had been sleeping. The women were hysterically crying and wailing in Arabic. The younger one looked up and saw us at the door.

She yelled out in Arabic and rushed the point man. We were less than five feet apart. Swinging his gun to the side, the point man grabbed both women and drove them toward the corner of the room. If either woman had on a suicide vest, he probably saved our lives, but it would have cost him his own. It was a selfless decision made in a split second.”

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

This is about as clear-cut as IHL and ICL get in a combat situation. Bissonnette did not make a split-second decision to shoot bin Laden; his account makes clear that he had plenty of time to assess the situation. And there is no question bin Laden was hors de combat when Bissonnette pointed his weapon at him and finished him off. Bissonnette wasn’t even the SEAL who first shot bin Laden in the head, so he can’t argue that this was some kind of continuous action designed to eliminate any possibility that bin Laden remained a threat. Ergo: a war crime.

But it’s bin Laden, of course. Inter malum enim silent leges. So instead of prosecuting Bissonnette for murder under the UCMJ, the US government investigates him for hanging onto a trophy of his kill and profiting from his notoriety.

Behold impunity.

PS: In case anyone is wondering, “death throes” refers to the agonal phase of dying, when the body is shutting down. The agonal phase precedes clinical death (when the heart stops and respiration ceases), brain death, and biological death.

Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia: (more…)

Doe v. Nestle: Corporate ATS Cases Just Keep Lingering

by Julian Ku

The Supreme Court this week let stand a U.S.Court of Appeals for the Ninth Circuit decision reinstating an Alien Tort Statute lawsuit alleging corporate complicity in the use of child slave labor in various African countries from which they purchased cocoa products.

The high court left in place a December 2014 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that refused to dismiss a lawsuit against Nestle, Archer-Daniels-Midland Co and Cargill Inc filed by former victims of child slavery.

The plaintiffs, who were originally from Mali, contend the companies aided and abetted human rights violations through their active involvement in purchasing cocoa from Ivory Coast. While aware of the child slavery problem, the companies offered financial and technical assistance to local farmers in a bid to guarantee the cheapest source of cocoa, the plaintiffs said.

The arguments in favor of, and against, Supreme Court review are amply discussed by John Bellinger here.  In essence, the corporate defendants argued that the Ninth Circuit had misapplied the Supreme Court’s 2013 landmark ATS decision in Kiobel v. Royal Dutch Shell.  That decision had imposed a “touch and concern” extraterritoriality case before permitting such an ATS lawsuit in U.S. courts.  The defendants also argued that the Supreme Court should clarify the intent standards required for determining corporate aiding and abetting liability, and that there is a split between circuits over whether corporations can be held liable for violations under the ATS.

I am not sure about whether this case was “cert-worthy”.  The Kiobel issue seems mostly about whether the plaintiffs should be allowed to amend their complaint. There is a question of how Morrison interacts with the Kiobel standard, but the split with other circuits isn’t quite as developed as it could be.  I think the corporate liability issue is a circuit split, but where the Second Circuit stands on that issue is still a little up in the air.  I do think the Ninth Circuit is mistaken on the intent standard, but again, I am not sure how broad that standard is yet.

But it is certainly true that by letting this Ninth Circuit decision stand, the Supreme Court is passing up an opportunity to shut down corporate ATS litigation in a more definitive way than it did in Kiobel.  So corporate ATS cases are mostly dead, but not quite.

New Article on SSRN: “Radical Complementarity” (Updated)

by Kevin Jon Heller

The article is forthcoming in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Côte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gbagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used complementarity to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

The article brings together thoughts I’ve developed both here at Opinio Juris and in my academic writing. In terms of the latter, it’s something of a sequel to my article “A Sentence-Based Theory of Complementarity.” (Double self-promotion!)

As always, thoughts are most welcome!

NOTE: I have uploaded a revised version of the article to SSRN. Chris’s comment below made me realise I should note my sentence-based theory of complementarity. It’s not a radical change, but — at the risk of seeming like I’m trolling for downloads — you should get the new version if you want to read the article but haven’t already.

Autonomous Legal Reasoning: Legal and Ethical Issues in the Technologies of Conflict

by Duncan Hollis

One of the highlights of my Fall semester was the opportunity to host a one-day workshop at Temple Law on how autonomous technology may impact the future of international humanitarian law (IHL) and the lawyers who practice it.  With co-sponsorship from the International Committee of the Red Cross (specifically, Rob Ramey and Tracey Begley) as well as Gary Brown of Marine Corps University, we wanted to have an inter-disciplinary conversation on the way autonomy may implicate the practice of law across a range of new technologies, including cyberwar, drones, and the potential for fully autonomous lethal weapons.  Although these technologies share common characteristics — most notably their ability (and sometimes their need) to operate in the absence of direct human control — discursive silos have emerged where these technologies tend to be discussed in isolation.

Our workshop sought to bridge this divide by including experts on all three technologies from an array of disciplinary backgrounds, including IHL, political science, and ethics (see here for a list of participants).  Fortunately, the day itself lived up to the hype, with a detailed agenda that prompted a wide-ranging set of conversations on the nature of the technology, the ethical issues, as well as IHL’s current regulations and its likely future evolution.  Subject to the Chatham House Rule, the ICRC has published summaries of these conversations on their blog, Intercross.

In addition to those blog posts, the Temple International and Comparative Law Journal will publish a series of short (and often provocative) think-pieces written for the workshop.  My own contribution, Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law is now available on SSRN.  Here’s the abstract:

This short essay seeks to reorient — and broaden — the existing discourse on international humanitarian law (IHL) and autonomous weapons. Written for a conference co-sponsored by the International Committee of the Red Cross, it employs a contextual analysis to pose new questions (and reformulate others) regarding the relationship between IHL and autonomous weapon systems. It asks six questions: (1) Who should IHL regulate in this context? Does IHL only regulate States and individuals, or can it provide rules for autonomous weapon systems themselves? (2) What types of autonomous technology should IHL regulate? Should the current focus on kinetic weapons expand to encompass cyber operations? (3) Where should this discourse occur? How do the trade-offs involved in locating legal discourse in a particular forum impact the elaboration of IHL vis-à-vis autonomous systems? (4) When should IHL regulate autonomous weapons? Should IHL ban autonomous weapons now or allow its regulation to emerge incrementally over time? Can IHL only apply when an autonomous system’s operations constitute an attack, or should IHL’s application reach more broadly? (5) How should IHL regulate autonomous weapon systems? Are prohibitions better or worse than prescriptive authorities? Should IHL regulate via rules, standards, or principles? Finally, (6) why should IHL regulate autonomous weapons? How can IHL best prioritize among its foundations in military necessity, humanitarian values, and the practical reality that the development of such systems now appears inevitable. In asking these questions, my essay offers a critical lens for gauging the current scope (and state) of international legal discourse on this topic. In doing so, it sets the stage for new lines of inquiry that States and other stakeholders will need to address to fully understand the perils — and potential — of increasing autonomy in technology for IHL and the international lawyers who practice it.

Fans of Thomas Aquinas may be particularly interested in this piece since I ask these questions using the same analytical frame Aquinas deployed to delineate those circumstances that define human acts.  Otherwise, interested readers should keep an eye out for the Symposium volume itself, which should be out sometime later this Spring or early this coming Summer.