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Kim Priemel, “The Betrayal: The Nuremberg Trials and German Divergence”

by Kevin Jon Heller

I want to call readers’ attention to Oxford University Press’s publication of my friend Kim Priemel‘s new book, The Betrayal: The Nuremberg Trials and German Divergence. Here is the publisher’s description:

At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of ‘genocide’ and ‘crimes against humanity’ had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany’s divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a ‘civilised’ nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler’s rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today’s courtrooms from Arusha to The Hague.

I cannot recommend the book highly enough. It’s a remarkable piece of scholarship, weaving together legal history, political history, and intellectual history into a seamless and compelling whole. Kim is a superb historian — and one who writes about law as well as most legal scholars. The book also does something almost unprecedented: tell the story of the IMT and NMTs together, which is necessary for understanding both. The book’s only competitor in that regard is Telford Taylor’s wonderful book The Anatomy of the Nuremberg Trials: A Personal Memoir — but Taylor’s book is, as the title indicates, a memoir, not an “objective” legal history.

Anyone interested in Nuremberg, international criminal law, or transitional justice will want to pick up a copy of The Betrayal. To appropriate Larry Solum: read Priemel!

The Brexit Case and the Foreign Man on the Clapham Omnibus

by Mariam Kizilbash

[Mariam Kizilbash read for her LLM in Public International Law from UCL, has worked as a legal officer with charities in London and Islamabad on areas such as death-row offences, US drone strikes and large-scale corporate corruption. She now works now as a freelance writer.]

An Englishman of Bangladeshi origin, an Irishman, two Scotsmen resident in France, a Welshman and and a Gibraltarian, whose wife is Spanish, with family resident in Spain.

Miss Mountfield does not narrate these individuals as the start to a colourful joke, but as an introduction to the parties she is representing in her submissions in the ongoing case, The Queen on the Application of Santos & Miller v Secretary of State for Exiting the European Union 2016, which concerns, as she points out, the nature of the EU citizenship rights which her clients enjoy and seek to enjoy.

The UK High Court through this case is presently considering whether ministers can invoke Article 50 of the Lisbon Treaty, the trigger for formal talks for the UK to leave the European Union, without Members of Parliament passing a new law which allows them to do so. It may be interesting especially for the people affected by Brexit, to try and make sense of what points were raised by the first hearing on Thursday.

While the UK Government feels a need to argue that the European Union will, by no means, be re-joined by the UK via a “back door” being unbolted through the bringing of this case against them, for the claimants, perhaps it is just about the pertinent legal point; only Parliament, they argue, can remove or reduce rights granted under law and Article 50 must have the consent of the House of Commons and the House of Lords.

If the Government intends to give simple effect to the outcome of the EU referendum without this step, royal prerogative- a collection of executive powers held by the Crown-will be seen to trump parliamentary sovereignty, something which just cannot be legally done as the claimants are arguing.

Till now some of the claimants in this case have had their arguments heard. Some of the most cogent arguments I feel made by Lord Pannick on behalf of Ms. Gina Miller, the lead claimant in this case last Thursday were these:

Firstly, that notification of withdrawal from the EU via Article 50(2) of the Lisbon Treaty, has a “dramatic impact” in UK domestic law. This removes certain rights conferred by Parliament through the European Communities Act 1972. This is why these rights cannot be simply removed by a minister through his prerogative powers.

Secondly the EU Referendum Act 2015 itself, lacks a provision specifying what consequences, if any, should follow from the referendum result. The Act, said Lord Pannik, does not provide statutory authorization for the trigger notification. Neither does it suggest common law legal limits on the use of the prerogative are in any way limited by the Act.

Thirdly, the European Communities Act 1972, confers rights at international law which take effect it national law. These rights also take priority over inconsistent national law. For example the Van Gend & Loos case, pointed out the direct applicability of European community law which renders inapplicable any conflicting national law. This is a case about the limits of executive power where the Parliament has itself conferred those fundamental rights to the citizens of the country. Presumably this means, the Parliament must inevitably now have a say in the change or discarding of those rights.

Fourthly, the defendant cannot lawfully use the prerogative to make the notification under Article 50 because this has the intended consequence of depriving individuals of rights they currently enjoy under the 1972 Act as well as other legislation. The Case of Proclamations from 1610 narrated by Lord Pannick, amongst others, stated “The King, by his proclamations or other ways, cannot change any part of the common law or statute law or the customs of the realm.” A common law restriction on the use of prerogative powers can only be removed or altered by an express statutory provision. Lord Pannick stated: “The fact that Parliament has not addressed the common law use on the limits of prerogative powers simply means in my submission, and elementarily means, that Parliament is content for the common law limits to continue to be applied by the courts.” This argument may be a reverse form of the Lotus principle i.e. the Lotus principle would result in the thinking that it is permissible to assume there is executive prerogative to make the Brexit notification in absence of Parliament not expressly forbidding this, but here it is being said executive prerogative cannot be said to prevail over Parliamentary sovereignty because the latter has not expressly overruled the common law restriction of it doing so.

Meanwhile, Mr. Chambers on behalf of the claimant Santos, stated this case can simply be resolved by a direct application of parliamentary sovereignty- the “most fundamental legal doctrine of the British constitution.” No person or body is recognised by the law as having the right to override or set aside the legislation of Parliament. Indeed, the Bill of Rights 1688 states: “The pretended power of suspending of laws, or the execution of laws by a legal authority without consent of Parliament, is illegal.”   Chambers also reminded us of an interesting point. The philosopher, John Austin, in his lectures Province of Jurisprudence Determined, spoke about a “sovereign” as being the electorate; in this case, indeed can the “sovereign” be seen as majority of UK people who voted for Brexit in the 2015 Referendum instead of the UK Parliament? However Chambers goes on to say that the electorate may be the political sovereign and not the legal sovereign even in Austin’s terminology- the latter which remains the UK Parliament.

There have been a string of other legal cases of course in the past which have examined the dance between Parliament sovereignty and the opposing, executive prerogative. For instance, in Attorney General v De Keyser (1920), the House of Lords had to decide whether the Government could use a broad prerogative power to requisition property, rather than using a statutory power which allowed the same but also imported an obligation to pay compensation. Lord Parmoor said: “The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments.” In R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995], the question was whether the prerogative could be used to establish a criminal injuries compensation scheme, given that such a scheme was already granted by statute while not yet in force. In that particular case Lord Browne-Wilkinson said “it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament.” In both cases the prerogative was curtailed. In BBC v Johns ( HM Inspector of Taxes) 1964, LJ Diplock had stated: “It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative…”

However, these cases by no means give a clear cut answer the Brexit conundrum. De Keyser established if legislation grants the Government a power to do something which the Government is also empowered to do under the prerogative, then the statutory power displaces the prerogative power if the statutory power is subject to conditions to which the prerogative power is not. The Fire Brigades Union case examined the manner in which the Government must act. The BBC case was more concerned with which institution can claim the prerogative and in doing so, be subject to judicial review.

In the Brexit case before us today however there is no conflict between statute and prerogative. Instead the tension is between the relationship with the European Union both the Parliament and the Executive individually hold and who can effectively now dissolve this relationship.

The Queen on the Application of Santos & Miller is also not the only “Brexit” case. The United Nations Commission might be hearing a petition by World War 2 veteran who argues that British citizens abroad were denied the right to vote in the referendum. Barrister Eskander may assist clients against individuals who lead the exit campaign on the interesting legal premise of “broken promises”. But Santos & Miller, which will surely go up to the Supreme Court may be the most decisive case by a UK court.

What arguments the defence presents next week will be beyond interesting. After all, we are far from the days where the execution of the royal Charles 1 was brought on by his altercations with Parliament. One also cannot forget Lord Steyn’s words in Jackson v Attorney General 2005 when he said: “Parliamentary sovereignty is no longer, if it ever was, absolute….”

The EU’s other 27 members have said negotiations about the terms of the UK’s exit cannot begin until Article 50 has been invoked. All eyes and ears will be on the case as it continues and the following Supreme Court appeal which will be leapfrogged to the end of this year. Already being hailed as the Queen Mary of all constitutional cases, this affair after an already controversial Brexit, questions the relationship between state organs, the result of a national referendum as well as the rippling effects on devolved governments- as arguments next week will reveal.

15 Years Later: A History of the Forever War and the Laws of War (Part 2 of 2)

by Boyd Van Dijk

[Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He holds degrees in History and Political Science from the University of Amsterdam and Columbia University. He is currently working on a new international history of the Geneva Conventions of 1949. His first post can be found here.]

In my first post I discussed the historical origins of the ideas underpinning the relationship between war and peace, and those rules regulating them – and demonstrated the risks that arise from prioritizing one field over another. This second post will bring the story forward to today.

The United Nations, ICRC, and IHL

The United Nations, like its predecessor the League of Nations, was initially also very skeptical about saying anything regarding the laws of war. Largely in line with the League’s Covenant, the UN Charter remained completely silent on this issue, mainly out of fear that it might undermine its wish to re-create stability between the Great Powers and lasting peace following the defeat of the Axis powers. In light of these attempts to ban most types of war (except of self defense), Jesús Yepes, the Colombian representative at the International Law Commission, said “it would certainly create an unfortunate impression on public opinion if the laws of war were included in the list of topics for codification.” Whereas some of its state representatives demanded the laws of war’s further development, the ILC as a whole finally removed the subject from its drafting agenda. This situation changed gradually only in the late 1950s – though arguably more so in the period directly afterwards.

At this time, certain prejudices or hostilities towards the laws of war started to slowly evolve, partly due to the UN Secretariat and the General Assembly’s progressive engagement with “reaffirming” and “developing” the Geneva Conventions, a terminology which had to prevent particular states from getting the impression they were trying to fundamentally revise the original treaties. This change in attention of the UN’s bureaucracy was a direct response to its most recent witnessing of violations and other legal defects that were exposed during the wars of the Cold War and decolonization, for instance in Algeria (see Fabian Klose’s article).

As a result of this change in attitudes towards the laws of war – a critical alteration which is badly in need of historical interpretation – there was a revival in interest, both intellectually as well as globally. The Carnegie Endowment for International Peace, originally skeptical about studying the topic, started to regularly publish reports about it. Similarly, the United Nations, like the ICRC, began preparing for the revision of the Geneva Conventions. In 1968, with the twenty years anniversary of its adoption of the Universal Declaration of Human Rights – and in light of its witnessing of forms of impunity in Vietnam and Palestine, the General Assembly accepted its so-called “Teheran Resolution,” demanding the recognition of human rights in wartime. Soon after, the UN Secretary-General published one of his famous reports, entitled “Respect for Human Rights in Armed Conflicts,” which helped to further stimulate the overall drafting process.

In other words, the UN, under the strong influence of its Human Rights Division led by the former wartime exile and Belgian jurist Marc Schreiber, broke almost completely with its original skepticism towards the idea of regulating warfare. Conversely, the ICRC, originally strictly limiting its focus to regulating war alone, gradually adopted certain elements of peace activism and universalism in its own rhetorical devices, mostly in light of pressures caused by the Cold War and decolonization.

While often neglected in the still booming human rights historiography, the Teheran Resolution constituted not just a major break in the UN’s own history, but it also showed the increasing overlap and cross-fertilization between originally quite separate – though far from distinct – initiatives and fields of international law. Around this period, Jean Pictet, one of the many influential drafters of the 1949 Geneva Conventions, coined the phrase of “international humanitarian law” (IHL), a term that incorporated different fields of law, including human rights law, “Geneva Law,” “Hague Law,” and possibly even the laws of peace, revealing the ever changing boundaries between these different legal realms. In 1970, he and others also helped to establish the International Institute of Humanitarian Law, in San Remo. At the same time, his organization, working closely together with (post-)colonial governments, felt forced to balance its humanitarian interests, which were informed by its fundamental principles of (Swiss) neutrality, independence, and impartiality (see Andrew Thompson’s article Accordingly, it picked its battles strategically. Among other things, it expressed certain reservations when confronted with initiatives it saw as being ‘far too political’, for instance those demanding the end of ‘Western imperialism’, or certain racist regimes (Jim Crow laws, apartheid).

One example of this hesitant attitude of the ICRC can be seen in the fact that it kept a certain distance from particular peace movements, such as the World Peace Council that was under a strong Communist influence. In the 1950s, it attracted the attention of numerous activists, from Jean-Paul Sartre, Bertrand Russell to W.E.B. Du Bois, who sought to remove, as they claimed, the “causes” – e.g. colonialism, racism, marketism – rather than the “symptoms” of war – protecting hospitals in imperial wars. While being an observer at some of these Council’s meetings, the ICRC took a distance from the views at such gatherings, mainly out of fear they might potentially undermine its own (Swiss) humanitarian interests.

Still, in the wake of increasing superpower tensions and heated debates surrounding the topics of Third World-ism, peace activism, anti-racism, human rights, and civil liberties, the ICRC felt obliged to bring some of these efforts into line with its own ‘mental maps’, as it saw itself as a promotor of peace, for instance, although – as A.J.P. Taylor once noted – it preferred to see itself as pacifistic, rather than pacifist.

Take for example the ICRC’s application for the Nobel Peace Prize of 1963, which was sent by Pictet to his intermediary. In this document, it admitted forthrightly that it was often criticized for being “an obstacle to attempts to outlaw war,” or that in rendering war less atrocious it had made it “less detested.” While admitting that its work was not “completely pacifist,” it said that it essentially constituted “acts of peace,” thereby referring to its calls upon parties to abolish atomic warfare, to make a truce, or to create “inviolable areas” for wounded and sick soldiers where “fire and the sword had no place.” In addition to these examples, the ICRC further suggested that it had helped to bring about a so-called “advent of ethical ideas,” leading to a situation in which the “political and military interests of states (…) [are] no longer the only ones concerned.” In connection to this, it claimed that “its existence, its work, its attitude, [were] a living protest against the unleashing of material forces” – a clear reference to the recent Cuba Crisis and its threat of a nuclear Holocaust.

To sum up, at a time when the anniversary of the post-September 11th AUMF and the commencement of the “forever war” continues to attract popular and scholarly attention, it is worth remembering three lessons about its complicated relationship with especially the laws of war. First, by moving beyond overly simplistic dichotomies or anachronistic suppositions, the laws of war are about far more than just making war more humane. Its history has been shaped by a mosaic of ideas, both progressive and deeply conservative, as well as states, armies, national liberation movements, international organizations to humanitarians, including the ICRC.

Second, instead of being legal comrades in arms, advocates of the laws of war and those fighting against injustice and for peace have frequently been uncomfortable bedfellows. And, lastly, it is vital to remember that this relationship, featuring a history of major contradictions, paradoxes, potentials, and limits, is far less teleological, or unitary, than what many have said so far. Sometimes they, the work of the laws of war and that of peacemaking, overlap and work cooperatively, whereas at other times they operate completely independently, or even work in ways going directly against each other, with occasionally potentially dangerous implications in light of relatively new technological (e.g. drones, autonomous weapons), legal (such as the 9/11 AUMF, the responsibility to protect), and certain ideological developments (the rise of emergency doctrines).

15 Years Later: A History of the Forever War and the Laws of War (Part 1 of 2)

by Boyd Van Dijk

[Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He holds degrees in History and Political Science from the University of Amsterdam and Columbia University. He is currently working on a new international history of the Geneva Conventions of 1949.]

Fifteen years ago, the longest war in American history began. Following the 9/11 attacks the United States Congress passed an Authorization to Use Military Force (AUMF). Shortly after, the Bush Administration decided to question the relevance of the 1949 Geneva Conventions, a position recently re-endorsed by the Republican presidential candidate. Since then, consecutive US governments have used that AUMF to justify their effective continuation of the so-called “War on Terror.” Armed operations, from drone strikes to special operations, have taken place in areas across the globe, most recently in Syria and Iraq as to fight ISIS, a terrorist organization originating in a period long after 9/11. Some have, therefore, spoken of a ”forever war.”

In two provocative and historically-rich contributions for Dissent and Just Security, Harvard Law professor Samuel Moyn asked whether our preoccupation with making war more humane (“hygienic”) has perhaps led to this outcome of endless fighting. By contrast, constitutional lawyer David Cole has (rightfully) pointed out that most civil liberties activists have actually done both: they have criticized Washington’s track record of endless war and its violations of the laws of war. There is “little evidence,” he notes, which could show that their concerns about making wars less inhumane have led to a softening of their criticisms towards the US government’s continuing effort to wage war. Clearly, this debate has a certain resonance with the ongoing controversies surrounding the tension between retribution and peace – think of the ICC’s intervention in Sudan, or that of Human Rights Watch in Colombia most recently.

Strikingly, however, both experts seem to have a very selective – and problematic – understanding of the historically ambiguous, yet constantly changing relationship between the two fields of international law in wartime – jus in bello and jus ad bellum. In this post, adhering to Moyn’s call for a new history of this forever war and its relationship with those laws and principles regulating its conduct, I will shed light on this often misunderstood history by arguing that it is far more contradictory, if not paradoxical, and definitely less uniform than what is commonly assumed.

Lieber and Belligerent Equality

While referring to the genesis of the Red Cross movement in the 1860s and seeking to challenge particularly certain triumphalist accounts, Moyn defines the laws of war as essentially a tradition that seeks to make war more humane. However, to quote the Austrian-American jurist Joseph Kunz, this movement owed less to professors, statesmen, or humanitarians, than to soldiers, such as Francis Lieber. A war veteran, first, and a legal scholar at Columbia College, second, Lieber prepared the well-known and influential code governing the conduct of Union soldiers during the US Civil War. In contrast to those narratives built upon the founding fathers of the Red Cross seeking to alleviate the suffering of (certain) victims of war, Lieber, another early advocate of the laws of war in the nineteenth century, held the view that one could allow for forms of suffering to occur so as to end wars and injustice – slavery, for instance – quickly. In line with this maxim, President Lincoln, trying to increase pressure on the South’s slave regime, decided to halt the exchanges of prisoners of war with his enemy, causing a major inflation of the death toll in the war’s already overcrowded POW-camps.

It is important not to forget that Lieber’s idea, instrumentalizing the laws of war by making them dependent upon a just – or unjust – cause, combined with a comparatively strong if not distinct notion of military necessity, has been subsequently endorsed by many other jurists. In the 1940s, the Allied prosecutors at the Tokyo War Crimes Trials – as well as those in Nuremberg, were focused less on crimes in war than on war itself as crime (see this piece by Moyn). They argued that, since aggressive war was prohibited by the 1928 Kellogg-Briand Pact, the death of any soldier by the invader was a murder, rather than a legal act of war. Similarly, a few years later, when discussing the revision of the Hague and Geneva Conventions, an Israeli delegate, a survivor of the Shoah, and a soldier too, noted that:

“Up to the last war combatants alone were involved in the event of conflict. That was no longer the case during the Second World War [when] a belligerent power [i.e. Nazi Germany] was manifestly bent on exterminating a whole people, massacring women and children in cold bold. What should a people do in such circumstances? Should it not rightly and dutifully seek to defend itself?”

Like many members of certain national liberation movements, later Communist states, or other Jewish survivors, including Raphael Lemkin, the godfather of the Genocide Convention, the Israeli delegate demanded lowering the law’s threshold for those acting against genocidal and/or racist rule. In doing so, he questioned the doctrine of so-called ‘belligerent equality’, which means that the laws of war apply equally to everyone regardless of the (in-)justice of his or her cause. If accepted, the denial of this principle might give, for instance, irregulars having a just cause (e.g. fighting occupation, or a war of national liberation) the right to target civilians with enemy ties indiscriminately, to take them hostage, or to use ‘human shields’ when fighting in an asymmetrical war.

Ironically, as a typical example of the Arendt-ian boomerang effect, this very same principle was re-addressed in the 1970s, when the Additional Protocols were being discussed, by certain delegates who criticized the Israeli occupation of Palestine – and wished to let go of this belligerent equality principle. Around the same period, the Communist North Vietnamese even argued, loosely based upon Lenin’s revolutionary ideas of just and unjust wars, that, as they considered themselves as victims of aggression by the United States, they were not bound to give POW rights to captured US personnel (‘war criminals’), a radical position they (unsuccessfully) defended at the Protocols’ negotiating table. Since then, a similar critique – though originating from a very different legal-intellectual starting point – has been raised by certain revisionist political theorists, such as Jeff McMahan and Cécile Fabre of All Souls College, who have questioned Michael Walzer’s embrace of belligerent equality and/or legitimate authority. Again, it shows the great diversity and constantly changing set of ideas underpinning the relationship between these two legal domains in wartime – jus ad bellum and jus in bello.

The Great War

Like the 1970s, the period up to the Great War witnessed a great deal of interest in the laws of war, a discipline then still highly Eurocentric, very strictly defined, or consciously left vague in light of certain dominant state interests (see the then ratified law’s silence on blockading).

During these years, the laws of war received extensive study by jurists and soldiers alike. Established by the “men of 1873” [] following an initiative supported by Lieber, the Institut de Droit International promoted the development of the laws of war. Numerous publications in various languages were published on this topic. Exemplary of this growing interest in the laws of war were the Hague Conventions of 1899 and 1907: the majority of their provisions do not affect the field of peacemaking – aggressive war was still considered lawful, but rather with the regulation of warmaking. As some would complain later, the “moral forces” of this era were “diverted” from the former to the latter – a Moyn-ian criticism avant la lettre.

With the outbreak of savagery on the “civilized” European continent in August 1914 (see my contribution, the tide slowly turned in favor of those critics. At the end of World War I, many (and especially jurists themselves) claimed that rules for warfare were useless because they will be broken; war can only be abolished, not regulated. Their attention then shifted to alternative plans in order to “end all wars,” such as collective security and “peace through justice,” culminating in the League of Nations’ Covenant and the 1928 Kellogg-Briand Pact (see here), even though neither of these instruments banned war, nor reprisals, altogether – an element which is often forgotten in anthologies describing their history.

By banning certain types of war, the study of the laws regulating the conduct of war lost its appeal almost entirely. Various law schools removed the subject from their curricula; the Institut de Droit International and l’Académie de droit international de La Haye banned it too, although only for a brief period of time. Neither did the legal specialists of the League of Nations put much interest in it, except with regard to regulating gas warfare – framed as part of the still far more popular project of disarmament – that was finally covered by the Geneva Protocol, signed in 1925. As a result of this lack of interest, contrasting with contemporaries’ growing appetite for the effort to taboo war itself by means of codifying law, the ICRC faced increasing criticisms as well as competition (e.g. from the American-dominated League of Red Cross Societies working exclusively in peacetime) in the interwar period. Or, as the Cambridge legal scholar Hersch Lauterpacht would later note, “if international law [was], in some ways, at the vanishing point of law, the law of war [was], perhaps even more conspicuously, at the vanishing point of international law.”

So what? Most importantly, it forced the ICRC, as well as its partners like the Belgian military physician Jules Voncken, of the International Committee of Military Medicine and Pharmacy, to pick its battles very carefully – with sometimes devastating results. For example, in the 1920s, it chose to first solve the allegedly “easier” question of regulating military imprisonment, which led to the acceptance of the POW Convention in 1929, as opposed to that of civilians in occupied territory, a matter which was for the first time seriously addressed only in the 1930s when the international system was breaking down rapidly.

What was the effect of this legal lacuna? Above all, it left civilians during the Second World War extremely vulnerable. In turn, this, a lack of comprehensive but strong codified protections for civilians, made it more challenging for Allied war crimes tribunals after 1945 to condemn those atrocities perpetrated against this group of victims. Particularly telling in this regard was the verdict of the (in-)famous Hostages Trial, held from 1947 to 1948. Its judges had to admit that the Nazis’ vicious counterinsurgency policies, featuring the taking of hostages, reprisal killings, and the summary executions of partisans, were mostly lawful considering the existing law’s permissiveness on these points – a warning from history especially for those wishing to prioritize one field over another. As important, the verdict revealed too how jurists’ perceptions of the idea of military necessity, or that of the boundaries between what is considered humane or savage, changed quite radically over time, both materially as well as in scope.

Monday, my second post will further reflect upon these and other questions, such as how the ICRC, as the guardian and promoter of the Geneva Conventions, struggled during the Cold War with questions of peace and injustice.

What’s the Right Comity Tool in Vitamin C?

by William S. Dodge

[William S. Dodge is the Martin Luther King, Jr. Professor of Law at the UC Davis School of Law, where he specializes in international law, international transactions, and international dispute resolution.]

American law has many doctrines based on international comity—doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit’s decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry’s interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should “abstain from exercising jurisdiction,” Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court’s. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity—deference to foreign lawmakers—which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court’s view, this doctrine authorized it to “balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders” (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court’s later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford “narrowly” (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as “too complex to prove workable.” Empagran recognized that ambiguous statutes should be construed “to avoid unreasonable interference with the sovereign authority of other nations,” but it also said in no uncertain terms that “application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.” Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must “declare invalid, and thus ineffective as ‘a rule of decision for the courts of this country,’ the official act of a foreign sovereign.” W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants’ own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China’s interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its “comity” analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. “International comity” is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

by Julian Ku

As we face the first U.S. presidential debate tonight (on my home campus of Hofstra University!),  the possibility of a President Trump seems more and more real.  Although U.S. election analysts all make Hillary Clinton the favorite, most of them continue to give Trump a very realistic chance of winning on November 8.  I am not a Trump supporter, but I think it would be irresponsible not to think seriously about the legal policy consequences of his election to the presidency.  In particular, candidate Trump has promised or threatened to withdraw the U.S. from numerous international treaties and agreements such as the North American Free Trade Agreement, the World Trade Organization, NATO, the U.S.- Japan Mutual Defense Treaty, the Paris Climate Change Agreement, and the Iran Nuclear Deal (I am sure I am missing a few more).  Unlike our friends in Britain who weren’t really planning for Brexit, I think those of us here in the U.S. should start planning, before it happens, for “Trumpxit.”

As an initial matter, we should consider to what extent a President Trump could unilaterally withdraw the U.S. from international treaties and agreements.  I notice that most commentary, including this scary piece by Eric Posner in the NYT from this past spring, assume the President has this unilateral power. But I do not think this issue is not entirely settled as a matter of U.S. constitutional law.

In the 1979 decision Goldwater v. Carter, the U.S. Supreme Court dodged the question of whether a President could unilaterally terminate the U.S.-Republic of China (Taiwan) mutual defense treaty without consulting or getting the approval of the U.S. Senate by invoking the political question doctrine and (in a concurrence) the judicial ripeness doctrine.  No U.S. court has, as far as I am aware, reached the merits of this question.  I think scholars are somewhat divided, and historical practice is mixed.

President George W. Bush did set a precedent in favor of presidentialism, however, by withdrawing from the Anti-Ballistic Missile Treaty in 2002 without getting the approval of the Senate and President Carter did likewise in the 1979 Taiwan defense treaty.    It seems likely that the president does have unilateral authority to withdraw the U.S. from treaties which specify terms for withdrawal and which don’t require further alterations or changes to domestic U.S. law.

Defense Treaties/Military Alliances

This suggests that a President Trump could terminate NATO and the US-Japan Defense Treaty pursuant to those treaties’ withdrawal provisions.  Interestingly, the NATO Treaty Article 13 specifies that “Any Party” can terminate their membership with one year’s notice.  That notice must be sent to the U.S. Government. So I guess a President Trump could give himself a one year’s notice?

Because the issue has not been settled by the U.S. Supreme Court, another Goldwater v. Carter type lawsuit could be brought.  It seems less likely that such a case would be dismissed on political question grounds given recent Supreme Court jurisprudence, but I think the smart money would be on a President Trump prevailing on the merits on a challenge to a presidential NATO or US-Japan Defense Treaty termination.

Nonbinding/Sole Executive Agreements

On the other end of the spectrum, I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.   This would be true, even if the agreements were treated as binding international agreements, since both agreements have withdrawal provisions.  Since the Senate or Congress never approved either agreement, there is no need to ask them for approval to terminate it either.

Trade Agreements 

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

For instance, in the most recent version of the “fast track” enacted by Congress to allow President Obama to finalize the TPP, Section 103(b) states:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

(Emphasis added).  This language means that there is at least a colorable argument in favor of requiring a President Trump to seek congressional approval before withdrawing from a trade agreement like NAFTA or the WTO.  To be sure, both trade agreements have specific withdrawal provisions similar to those found in the NATO treaty. But the fact that the president is acting pursuant to his congressional authorized “trade promotion authority” suggests that Congress did not necessarily delegate the power of termination to the President alone.

Moreover, the implementing legislation for some trade agreements further suggests Congress has reserved some residual “termination” power.  In Section 125 of the Uruguay Round Agreements Act, for instance, Congress may terminate U.S. participation in the WTO with a joint resolution of both Houses.  This does not necessarily mean the U.S. is automatically out, but since the President can’t (under the terms of the law) join the WTO until Congress approves, presumably withdrawing that approval terminates U.S. participation.  It is all somewhat uncertain, but again, I think there is colorable argument that a President Trump could not unilaterally withdraw the U.S. from the WTO,  NAFTA and other trade agreements.


None of this may matter, of course, if we get a President Clinton instead.  But as the possibility of a President Trump gets closer to reality, we need to start thinking about the legal authority he would have to fulfill his campaign promises, and the limits (if any) on that authority,


Iran’s Nuclear Program and International Law: From Confrontation to Accord

by Dan Joyner

[Dan Joyner is Professor of Law and Director of International Programs at the University of Alabama School of Law.]

In July 2015 a historic diplomatic accord was reached among Iran, the E.U., and the P5+1 states (the U.S., U.K., France, Germany, Russia, China).  The Joint Comprehensive Plan of Action (JCPOA), as the accord was titled, consisted of 159 total pages of agreed text, addressing all of the issues that had been in dispute among the parties concerning Iran’s nuclear program for thirteen years –a dispute which had at times appeared likely to precipitate military conflict. I summarized the JCPOA in a blog post here at Opinio Juris at the time of its adoption.

My newly published book, Iran’s Nuclear Program and International Law: From Confrontation to Accord, provides an in-depth examination of the legal and diplomatic history that form the context for the JCPOA’s agreement, and sets out to describe and to answer the most important legal questions that were in dispute among the JCPOA’s parties.  The aim of the book is to clarify how the relevant sources of international law – including primarily the 1968 Nuclear Nonproliferation Treaty (NPT) and the law of the International Atomic Energy Agency (IAEA) – should be properly interpreted and applied to these questions.

In this post I’ll give a very brief summary of the questions the book addresses, and of my analysis and conclusions concerning them.

The first question addressed in the book is whether Iran has at any time in the history of its pursuance of a nuclear program violated the terms of the NPT.  Iran is, of course, a non-nuclear weapon state party to the NPT, and is therefore prohibited from inter alia the manufacture or other acquisition of a nuclear explosive device.

It has been long argued by Iran’s detractors in the West, and in December 2015 it was confirmed in a report by the IAEA, that through the decade of the 1990’s and essentially ending in 2003, Iran did pursue a nuclear weapon research and development program separate from its civilian nuclear program.  However, in the words of the IAEA report: “these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities.” In other words, Iran did develop some understanding and technical capabilities that it would need were it to decide to build a nuclear weapon, but it did not ever actually construct a nuclear explosive device.  On the basis of these facts concerning Iran’s weaponization research program, I conclude that Iran did not at any time manufacture or otherwise acquire a nuclear explosive device, and that therefore Iran did not violate the NPT.

The second question addressed is whether Iran was in violation of its IAEA safeguards treaty obligations in 2003, when international scrutiny of Iran’s nuclear program began following the revelation that Iran had clandestinely begun construction on two nuclear facilities at Natanz and Arak.  After a review of Iran’s safeguards obligations pursuant to its bilateral safeguards treaty with the IAEA, as well as the subsidiary arrangements agreed between Iran and the IAEA in implementation of the treaty, I conclude that the vari­ous failures by Iran to declare the existence and location of nuclear materials prior to 2003, and Iran’s several failures to declare experiments con­ducted using those nuclear materials, did constitute a violation by Iran of its safeguards treaty obligations.

I further conclude, however, that this internationally wrongful act by Iran was remedied through effective reparation in cooperation with the IAEA between 2003 and 2008, culminating in IAEA Director General ElBaradei’s February 22, 2008, report to the IAEA Board of Governors, in which he assessed that all declared nuclear material in Iran was in peaceful use, and that all prior concerns the IAEA had registered involving nuclear materials and related facilities in Iran had been resolved through dia­logue with Iranian authorities.

The third question addressed is whether Iran was, as Western states led by the United States claimed, in continuing violation of its safeguards treaty obligations in the several years leading up to the conclusion of the JCPOA in July 2015.  And further, whether during this time period the IAEA employed correct legal standards in assessing Iran’s compliance with its safeguards obligations.

I conclude that, according to the correct legal standards, contained in Iran’s safeguards agreement, from 2008 to 2015 Iran was in fact in full compliance with its safeguards treaty obligations.  This is the case even though during this period the IAEA made numerous allegations and findings concerning the possible existence of undeclared nuclear materials within Iran.  To be clear, the IAEA did not find any undeclared nuclear materials in Iran during this time, it only asserted its inability to determine satisfactorily that such materials did not exist.

I argue that throughout this period, the IAEA applied incorrect legal standards of investigation and assessment to Iran’s case.  Standards that were derived from erroneous legal interpretations of Iran’s safeguards treaty obligations.  I argue that due to the application of these incorrect standards, the IAEA during this time reached erroneous conclusions regarding Iran’s compliance with its safeguards agreement, and improperly withheld its determination that Iran was in fact in compliance with its safeguards obligations.  The IAEA’s withholding of its determination of Iran’s compliance had a significant influence on the diplomatic and security crisis surrounding the issue during this period, as states and the U.N. Security Council relied upon the IAEA’s technical determinations of Iran’s compliance.  This third set of questions is addressed in Chapter 5 of the book, which is publicly accessible here on my SSRN page.

The fourth question addressed is whether and to what extent the decisions of the United Nations Security Council on the subject of Iran’s nuclear program should be understood to impact on the analysis of the previous three questions.  After reviewing the Security Council’s decisions on Iran from 2002 through July 2015, I conclude that those decisions neither added to Iran’s safeguards-related obligations, nor enhanced the legal authority of the IAEA to investigate and assess Iran’s compliance with its safeguards obligations.  In Resolutions 1696 and 1737, both adopted in 2006, the Security Council did command Iran to suspend its uranium enrichment program.  Iran did not suspend its uranium enrichment program after the adoption of those decisions, and as such Iran can be at least prima facie considered to have been in noncompliance with those decisions of the Security Council, up until those resolutions of the Council were themselves terminated on JCPOA Implementation Day (January 16, 2016).  I do however argue that the legal validity of this specific command of the Security Council is doubtful.  I base this argument on the conflict between, on the one hand, the obligation of all U.N. member states pursuant to Article 25 of the U.N. Charter to “accept and carry out” the decisions of the Security Council, and on the other hand Iran’s “inalienable right” to peaceful nuclear energy as expressed in Article IV of the NPT.

The final chapter of the book provides a detailed explanation and consideration of the JCPOA itself. Essentially, Chapter 7 of the book (also publicly accessible here on my SSRN page) is a full chapter-length review and analysis of the legal implications of the JCPOA, on issues including Iran’s safeguards obligations, and the economic sanctions levied against Iran by the U.N. Security Council and by the U.S. and E.U. acting unilaterally.

The book thus follows the Iran case study through the period of confrontation between Iran and the West from 2002 through July 2015, setting this confrontation in its historical and diplomatic context, and examining key international legal questions that were raised during this period, and which played a significant role in the diplomatic crisis over Iran’s nuclear program.  It then explains the historic diplomatic accord which was painstakingly negotiated to resolve these various legal questions, and to bring the parties together on an agreed plan of action for building confidence in the peaceful nature of Iran’s nuclear program, and for the lifting of economic sanctions on Iran.

The implementation of the JCPOA continues to the present to be controversial. Political forces within Iran opposed to the relatively moderate regime of President Rouhani are tapping into popular sentiment among Iranians, to the effect that the economic benefits of the nuclear deal have been too small and too slow in coming.  They argue that the West has not lived up to its commitments to meaningfully lift international economic sanctions on Iran.

In the U.S. as well, there are influential political forces arguing that the JCPOA gave Iran too much in the way of economic concessions, in return for relatively minor nonproliferation commitments that will mostly expire within ten years.  They are quick to jump on any perceived noncompliance by Iran with its technical commitments under the JCPOA – even though the IAEA itself has repeatedly determined that Iran has abided by its JCPOA commitments.

These domestic political movements, both in Iran and in the U.S., threaten to frustrate and ultimately to marginalize the JCPOA, and bring the world back to a state of active confrontation over Iran’s nuclear program. With the U.S. presidential election in November of this year and Iranian presidential elections in May of 2017, the question of the future of the JCPOA and the diplomatic path to resolution of the Iran nuclear dispute remain very much in question.

Ukraine’s UNCLOS Arbitration Claim Against Russia May Depend Upon Philippines-China Precedent

by Julian Ku

After months (or even years) of threats, Ukraine finally filed an arbitration claim against Russia under Annex VII of the UN Convention of the Law of the Sea.  According to this statement from the Ukrainian Ministry of Foreign of Affairs, the claim will focus on Russia’s actions in the maritime zones bordering Crimea.

Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones.  Ukraine seeks to end the Russian Federation’s violations of UNCLOS and vindicate Ukraine’s rights in the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine’s rights to the natural resources offshore Crimea which belong to the Ukrainian people.

I discussed Ukraine’s claim back in February here, as well as Russia’s likely response.  I can’t find a copy of the Ukrainian statement of claim online, but the MFA description sounds like it will be pretty similar to the approach pioneered by the Philippines in its claim against China.  Ukraine will seek to avoid Russia’s Article 298 declaration excluding jurisdiction relating to sea boundary delimitations by not asking the tribunal to rule on sea boundaries. Ukraine will not seek to have the arbitral tribunal declare that the annexation of Crimea is illegal. Rather, the focus will be on specific actions Russia has taken in the Crimea maritime zones, which Ukraine is going to assume is part of Ukraine.

It will be interesting to see if Russia responds at all to this arbitration, or whether they follow China’s example and simply boycott the arbitration process completely.  I am not sure Russia’s jurisdictional defense is as strong as China’s (which lost anyway), so I am betting Russia simply declares it will not even show up, while loudly declaiming the legality of their actions.  Stay tuned.


Protection of Civilians Symposium: A Multiplicity of Legal Frameworks and Practical Challenges

by Ralph Mamiya

[Ralph Mamiya is team leader for the Protection of Civilians Team in the UN Department of Peacekeeping Operations but writes here in a purely personal capacity, and the views expressed do not represent official positions of his Department or the United Nations. This post is the concluding post of the Protection of Civilians Symposium.]

This week’s symposium on the protection of civilians highlighted the range of legal and practical issues facing UN peacekeepers. Featuring posts from two contributors to the new volume, Protection of Civilians from Oxford University Press, former Senior UN Legal Officer Mona Khalil and University of Ulster law professor Siobhan Wills, as well as responses from distinguished colleagues Professor Ray Murphy, Legal Counsel Marten Zwanenburg and Professor Kjetil Mujezinović Larsen, the symposium has covered both very familiar ground for me and issues that I rarely have the opportunity to wrestle with.

Taken together, Mona’s and Siobhan’s discussions of peacekeepers’ authority and responsibility to use that authority to use force to protect civilians highlight the complexity of the issue. As Marten notes, we can read Mona as putting forward a strong but narrow concept of the protection of civilians mandate, rooted firmly in Security Council resolutions and Chapter VII of the UN Charter. The simplicity of this argument is its strength: the Council provides a strategic directive to protect (not merely an authorization), and this directive creates some form of responsibility. The challenge of this argument is, as those who deal regularly with UN bodies know, that determining the content and intent of Council resolutions is no simple matter, particularly in an era of political divisions in the Council. The “protection mandate” itself is often brief, providing a general direction with little detail. Generating meaningful positive obligations from such basic material is supremely difficult and gives rise, in part, to many of the practical peacekeeping challenges that Mona points out.

Professor Wills, on the other hand, searches beyond the mandate itself for sources of an obligation to protect that are, perhaps, more susceptible to legal analysis, and, also perhaps, more binding. She returns, however, to the UN’s own Human Rights Up Front  initiative, which she interprets as a potential acknowledgement by the UN of its own protection obligation. Whether this is a stronger or weaker foundation than Mona’s implicit presumption that peacekeeping mandates create a responsibility to act is somewhat uncertain in my mind (particularly as elections for the next Secretary-General are upon us). Her approach to filling in the content of the UNPKO’s responsibility to protect, however, seems a practical, procedural approach.

Professor Murphy takes up Siobhan’s appeal to the UN’s own commitment to human rights norms and raises her, proposing a Secretary-General’s bulletin on the application of human rights law to peacekeepers, analogous to the Secretary-General’s bulletin on international humanitarian law. The IHL purist, and the IHRL purist, may not give a great deal of weight to what the Secretary-General thinks about the application of international law to blue-helmeted troops, but such bulletins can be highly influential for the legal and policy architecture of peacekeeping and, ultimately, the way mandates are implemented.

Professor Larsen also follows Professor Wills, but in the direction of “hard law,” looking to treaty law as potential sources for an obligation to protect with regard to de-mining. This is a particularly interesting area. Professor Larsen’s discussion highlights not only how important protection issues are becoming to militaries around the world (not just UN peacekeepers) and further clarifies, in case there was any doubt, that protecting civilians is not only a matter of using force. The obligation that he argues for echoes the human rights-based norms that Professor Murphy raised.

Marten, in addition to providing wonderful summaries of Mona’s and Siobhan’s chapters in the book (going beyond just their posts), raises two points that I find particularly fascinating. First, with regard to the accountability of peacekeepers: despite the importance of UN privileges and immunities for so much of the UN’s work, if the international public perceives those privileges as being abused they may be whittled away. Second, with regard to Mona’s very interesting discussion of consent: the legal concept of consent and what host states permit missions to do at a practical level, particularly when it involves supporting or substituting for state functions (such as protection).

There is a common refrain that protecting civilians is simple in concept but difficult in practice. In one sense this is true—we tend to agree that protecting civilians is a good thing but we, as the international community, seem to disappoint ourselves on a regular basis—but in another sense simplifies what is a complex issue. One thing that I hope that this week’s symposium has highlighted is that practical challenges, and these are legion, are often tied to legal questions that we are still struggling to answer.

Many thanks to the distinguished panelists for contributing, and to Opinio Juris for hosting this symposium for Protection of Civilians, now available, with a foreword from Deputy Secretary-General Jan Eliasson, and contributions from Jean-Marie Guéhenno, Andrew Clapham, Hugo Slim, Mona Khalil and Siobhan Wills and many others.

Protection of Civilians Symposium: Protecting Civilians from Explosive Ordnances-An Example of Operational and Legal Challenges

by Kjetil Mujezinovic Larsen

[Kjetil Mujezinović Larsen is Professor of Law, Director of Research, and Deputy Director, at the Norwegian Centre for Human Rights at the University of Oslo. He is the author of «The Human Rights Treaty Obligations of Peacekeepers» (Cambridge, 2012). This post is a part of the Protection of Civilians Symposium.]

By way of introduction, let me state that I agree with Marten’s analysis of the legal obligations of peacekeepers. Therefore, rather than rehearsing the arguments raised by the other contributors to this Symposium, I want to address a concrete issue that illustrates many of the challenges, while also being of great practical importance: The removal of anti-personnel landmines, unexploded cluster munitions, and other explosive ordnances in the area of deployment of a peacekeeping operation. Such explosive ordnances represent a considerable and continuous threat to the civilian population in the affected area, and to protect civilians from this threat clearly falls within the «protection of civilians» paradigm. But does there exist any legal obligation to remove any such ordnances?

There exist a range of international treaty provisions concerning removal and destruction of explosive ordnances. For anti-personnel landmines, Article 5 of the 1997 Mine Ban Treaty requires each State Party to «destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible»; for cluster munition remnants, Article 4 of the 2008 Cluster Munitions Convention similarly requires States Parties to «clear and destroy, or ensure the clearance and destruction of, cluster munition remnants located in cluster munition contaminated areas under its jurisdiction or control»; and for (other) explosive remnants of war, Article 3 of the 2003 CCW Explosive Remnants of War Protocol (Protocol no. 5) provides a similar rule. All of these provisions also set out requirements to identify and mark contaminated areas, and to take all feasible measures to protect the civilian population against the threat that these ordnances represent.

In 2006, Norwegian media reported allegations that Norwegian military personnel who were involved with removing and destroying anti-personnel mines in the American-led operation “Enduring Freedom” in Afghanistan had omitted removing mines in order to protect American soldiers against attacks. It was further alleged that Afghan civilians were killed by these mines. This was not a United Nations peacekeeping operation, and the allegations were most vehemently denied by Norwegian authorities. But even without considering the veracity of the allegations or the validity of drawing an analogy to peacekeeping operations, one may ask: If a Troop Contributing Nation in this manner omits removing explosive ordnances in an area under its control, and civilians are killed or injured because of the omission, has there then been committed an internationally wrongful act? Has any de jure obligation been violated, and, if so, by whom? Can anybody be held accountable under international law?

The informed reader will here think about the European Court of Human Rights’ inadmissibility decision in the Behrami case. The case concerned an incident where some children while playing found a number of undetonated cluster bomb units, which had been dropped during the NATO bombardment in 1999. When a cluster bomb unit exploded, one boy was killed and another was seriously injured. It was alleged that UNMIK personnel were aware of the location of the units. The application was brought against concrete Troop Contributing Nations, but the Court declared the application inadmissible because the relevant omission was attributable to the United Nations, which fell outside the Court’s jurisdiction ratione personae. Accordingly, the Court didn’t consider whether the European Convention on Human Rights was applicable, and in any case it wouldn’t have had jurisdiction to consider the other conventions mentioned above.

The International Society for Military Law and the Law of War is presently developing a Manual of the International Law in Peace Operations, where this issue has arisen. After consultations with representatives from the UN Department of Peacekeeping Operations, it has become clear that the United Nations does not accept any legal obligation to remove explosive ordnances in areas within the control of an operation. The UN insists that the primary responsibility for demining and removal of explosive remnants lies with the host State, and it is necessary for the mandate to stipulate it if a peace operation should have any responsibilities for demining and removal of explosive remnants. It is worth noting in that regard that peacekeeping operations are rarely given a mandate to actively remove explosive remnants, but that mandates instead focus on providing assistance to other actors that perform the actual demining. By way of example, UN Security Council resolution 1244 (1999) gave KFOR the responsibility of «supervising demining until the international civil presence can, as appropriate, take over responsibility for this task», while resolution 1990 (2011) mandated UNISFA to «provide … de-mining assistance and technical advice». But if the mandate of an operation doesn’t specify a duty, what then applies? The conventions refer to the responsibility of States Parties, but if the United Nations is the responsible entity, then the conventions don’t apply. The United Nations position is that there doesn’t exist enough evidence to establish as a rule under customary international law that any actor that exercises jurisdiction or control over a contaminated area has an obligation to clear that area.

Even with regard to the duty to make feasible efforts to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants in affected areas under their control, the UN position is that any legal obligation to do so must stem either from the mandate or from the treaty obligations of a Troop Contributing Nation. The applicability of these treaty obligations for Troop Contributing Nations is a contentious issue that has not been authoritatively solved, and it may be argued that current operational practice does not support a claim that legal obligations to this effect exist during peace operations. If not, a responsibility to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants only applies to the extent that the mandate of the operation states this as a responsibility, and even then it may not qualify as a legal obligation.

Protection of civilians in peace opertions is a multifaceted issue. It is not only about the legal right or obligation to use force to protect civilians, it is much more. In the case of removal of explosive ordnances, the question is whether anyone has the positive obligation to protect the civilian population from threats. It can quite plausibly be argued that the United Nations has no such obligation since it’s not a party to any convention and since the relevant rules don’t qualify as customary international law, and that Troop Contibuting States can’t be held accountable when it participates in a UN peacekeeping operation, even if they would otherwise be bound by their treaty obligations. The legal challenges with regard to protection of civilians in peacekeeping operations remain considerable.

Protection of Civilians Symposium: Some Thoughts on the Use of Force by UN Peacekeeping Operations to Protect Civilians

by Marten Zwanenburg

[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]

In this post, I will focus on Mona’s chapter in “Protection of Civilians”, in which she addresses the issue of the use of force by UN peacekeeping operations for the protection of civilians.

Mona’s main point is that the mandate to use force to protect civilians is broad and deeply founded. However, a number of factors may have an inhibiting effect on the use of force by UN peacekeepers beyond self-defence and for the protection of civilians.

She points to a number of legal considerations that may impede carrying out a PoC mandate. While these undoubtedly play a role, I cannot escape the thought that the main obstacle appears to be unwillingness of TCC to put their troops in harm’s way, as well as the limited capabilities and resources available to many missions.

One of the factors Mona argues contributes to peacekeeping operations not fulfilling their PoC mandate is “complacency regarding the legal consequences of failure to fulfil the mandate.” This refers to the ultimate accountability of the Force Commander for both acts of commission and acts of omission when it comes to the use of force by military contingents under the mandate and ROE. This forms an interesting parallel to the question discussed by Siobhan whether the UN mandate imposes a positive obligation on a peacekeeping operation to protect civilians, In this context, Mona states when discussing self-defence that UN forces have not only the right but also the duty, under Chapter VII of the UN Charter, to use force where and when necessary and appropriate to pre-empt, prevent, deter and/or respond to targeted or systematic attacks on civilians within the limits of their capabilities and deployment. She thus appears to see the mandate as imposing a duty to use force in certain circumstances. This in contrast to Siobhan, who argues that a Chapter VII mandate authorizing use of force to protect civilians does not create an obligation to use force (although it may create an obligation to provide protection).

Another consideration Mona mentions is an inhibition to use force arising from fear of criminal accountability or loss of protected status (under IHL). Personally I wonder whether fear of loss of protected status plays an important role. This would assume that peacekeepers have an expectation that their opponents will act in accordance with IHL and respect their protected status under IHL as long as they do not directly participate in hostilities. I wonder whether they really do have such an expectation, for example vis-a-vis armed groups in the DRC or in Mali. Fear of criminal prosecution on the other hand seems a plausible factor in the minds of peacekeepers, judging from my own experience talking to military personnel. Although she doesn’t say to explicitly, Mona probably has fear of prosecution for the use of force in mind. Interestingly, the more protection of civilians is propagated as an obligation, the more likely that not using force may lead to prosecution. In this context, an interesting development in recent years was the (unsuccessful) attempt by relatives of men killed by the Bosnian Serbs in Srebrenica to have three members of Dutchbat prosecuted for not protecting those men.

A final consideration that Mona refers to is unwillingness to use force due to perceived contravention of the basic principles of peacekeeping. Her argument, with which I agree, is that the interpretation and application of these principles have evolved, to varying degrees, in a similar and corresponding manner as operations have evolved to become increasingly robust and operate in volatile environments. I find the development of a nuanced interpretation of consent particularly interesting in this regard. Traditionally, consent of the parties was seen as a fundamental principle of peacekeeping. As the High Level Independent Panel on Peace Operations stated: “In conflict management settings today, where fighting continues and is not confined to two parties, there may be practical obstacles to obtaining consent beyond that of the government. Clearly the consent of the government is fundamental for the deployment of a mission, and this should be reinforced. Obtaining and maintaining the consent of the other parties remains an important objective of any mission and should be pursued to the extent possible.” Even consent of the government is not always as black-and-white as this statement might suggest, however. Such consent may be equivocal and be manifested only to a limited degree in practice. This is illustrated by the recent initial refusal of the government of South Sudan to accept the deployment of additional UNMISS personnel, even though this increase was already part of a resolution adopted by the UN Security Council.

Protection of Civilians Symposium: Some Thoughts on Legal Obligations for UN Peacekeeping Operations to Protect Civilians

by Marten Zwanenburg

[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]

Let me start by saying that the publication of “Protection of Civilians” is very timely. As Ralph says in his introductory post, this topic is a well-established topic in international law but controversial in practice. The latter is particularly true in the context of peacekeeping operations.

In this post, I will focus on Siobhan’s chapter in the book. I will return to Mona’s chapter in a separate post.

Siobhan’s main proposition, with which I fully agree, is that relevant to peacekeeping operations are legal obligations to protect that are largely derived from international human rights law (IHRL), International Humanitarian law (IHL), and the law of international responsibility. I also agree with her that these obligations are relatively weak, but have important operational implications for UN missions. Siobhan’s contribution is especially important because it tries to tease out the latter, thus making the issue concrete.

One very interesting question that she raises, is whether the mandate of a UN mission creates obligations for the mission. In other words, if the mission fails to carry out its PoC task, can it be held responsible for failure to carry out the mandate?

UNSC resolutions clearly are not treaties, and thus a “breach” of a resolution is not a non-performance of a treaty obligation. An alternative could be to regard the mandate as a unilateral undertaking by the UN. Siobhan states that the majority view is that mandates provide an authorization to act but do not, in themselves, create any legal obligation to do so. However, she adds that some provisions in peacekeeping mandates do imply that at least those particular paragraphs are intended to be obligatory, such as e.g. an obligation report gross violations of human rights “immediately”. I have some doubts concerning the latter conclusion, however. For one, I would be very surprised if the drafters of the relevant resolutions considered that if e.g. UNMISS does not “immediately” report gross violations of human rights to the UNSC, this would constitute an internationally wrongful act. Another consideration is that the examples Siobhan gives all relate to things that the operations must do vis-a-vis the organization itself. In other words, they say that one part of the UN must do something vis-a-vis another part of the UN.

A very important conclusion that Siobhan draws from this is that, even in the absence of a specific task in its mandate, a UN peace operation has an obligation to protect. She does not pursue this thought further, but it is nevertheless interesting to do so. It makes me wonder whether it can be argued that this would mean that the UNSC must give every peace operation the task of protecting civilians, or that the UNSC must provide a peace operation with sufficient capabilities to enable a peace operation to carry out its PoC mandate/responsibility.

Siobhan discusses IHRL and IHL as possible sources of legal obligations on UN peace operations to protect civilians. In doing so, she focuses mostly on specific rules under these regimes and their interpretation. The legal basis for the UN being bound by these rules in the first place is discussed only very briefly, and almost seems to be taken for granted. This is of course a perfectly legitimate choice, since a book chapter does not lend itself to detailed analysis of every aspect, but it does make me interested in her underlying argumentation. This question will however probably become increasingly theoretical, as the notion that the UN is bound is increasingly accepted and the UN increasingly implicitly or even explicitly says so itself. In this sense the emphasis that Siobhan places on peremptory norms as those norms by which the UN is bound at a minimum, comes across as quite conservative.

Her reliance on articles 14 and 42 of the DARIO, on the other hand, seems somewhat too liberal. My own feeling is that state and organizational practice may not be sufficient to conclude that these articles have a customary law status (yet).

Another important question raised by Siobhan is the relationship between the obligations of the UN and those of the troop contributing states (TCC). Siobhan states that according to a number of courts, human rights violations of a UN Peacekeeping force may be attributable to the TCC, and possibly to both the UN and the contributing state. In discussing this issue, she focuses primarily on the exercise of (extraterritorial) jurisdiction, rather than on attribution issues. The attribution question is however highly interesting. Siobhan refers inter alia to the Nuhanovic and Mustafic cases. In these cases, the Dutch Supreme Court held that in the very specific circumstances of that case, conduct of Dutch peacekeepers could be attributed to the TCC. One may wonder whether courts would be willing to go even further and hold a TCC responsible for conduct that is a priori attributable to the UN. Arguably, the Bosphorus line of case law of the ECtHR could form the basis for such a finding.

The most important part of Siobhan’s contribution to me is the section on accountability. The usefulness of establishing whether or not the UN has legal obligations to protect civilians loses much of its relevance if there is no forum where a breach of those obligations can be invoked, Siobhan points to the extensive immunity of the UN, which as it is practically applied arguably goes beyond what is reasonable and necessary for the independent functioning of the organization. She rightly stresses that it is important that the Organization establishes mechanisms that promote accountability beyond legal and claims processes. This does not take away from the importance of also having adequate claims processes that take into account the human right of access to a judge. A recent statement by a UN spokesman relating to the Haiti cholera crisis might mean that the UN is looking at ways to increase its accountability but it is clear that it has a long way to go.

Without adequate mechanisms, it may be that judges will start chipping away at the immunity of the UN. Although hitherto judges have been very reluctant to set aside the immunity of the UN in particular, it may be that they will become increasingly willing to do so if the situation persists. Alternatively, claimants may try to turn to TCC, which they may perceive as easier to hold responsible than the UN itself. The Dutch Srebrenica cases could be seen as a first manifestation of this. If this would indeed become the trend, it could have precisely the result that then UNSG Kofi Annan invoked for an expansive reading an application of UN immunity and that is cited by Siobhan: “if we allowed our peacekeepers to be brought to courts and tried over matters like this, that would be the end of peacekeeping.”