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The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

Guest Post: The Law of Occupation in the New DOD Law of War Manual

by Gregory H. Fox

[Gregory H. Fox is Professor of Law and Director of the Program for International Legal Studies, Wayne State University Law School.]

In the aftermath of the Iraq occupation, a vigorous debate began over the legitimacy of the Coalition Provisional Authority’s (CPA) vast reform of Iraqi legal, political and economic institutions (see Gregory H. Fox, The Occupation of Iraq, 36 Geo. J. Int’l L. 195 (2005)). Adam Roberts coined the term “transformative occupation” to describe occupations whose very purpose was to alter local institutions. In Roberts’ (and others’) telling, transformative occupations differed from the rapacious and brutal occupations of the WWII era, creating not repressive puppet states but liberal democracies that aligned the occupied state with a host of new international norms. Yet transformative occupations seemed directly at odds with the “conservationist principle,” a term I coined (Fox, Occupation of Iraq, at 199) to describe the traditionally limited nature of an occupier’s legislative authority. Grounded in the Hague Regulations and Fourth Geneva Convention, the conservationist principle held that an occupier did not acquire the central attribute of the ousted regime’s sovereign prerogatives, namely the unlimited ability to alter local laws and institutions.

Proponents of transformative occupations argued that the Iraq model made important progress in bringing occupation law into the 21st century. It took account of the emergence of human rights, democratic politics, anti-corruption and even market-based economics as legitimate concerns of international law. Occupiers giving effect to liberal democratic rights, it was argued, should not be seen as violators of the sovereignty of the occupied state, “but, to the contrary, as facilitator of the exercise of rights recognized by international law.” (Eyal Benvenisti, The International Law of Occupation, 2d ed. 2013, at 349-50).

Opponents (including me) argued that apart from Iraq being the only recent case of a “liberally” transformative occupation, granting occupiers broad legislative powers would represent an unfortunate turn toward unilateralism in the reconstruction of post-conflict states. The UN Security Council has authorized multiple post-conflict reform missions under Chapter VII of the Charter.   Occupiers would have little incentive to seek Council approval for their actions if they could accomplish the same objectives unilaterally. Relatedly, the many fiascos attending the Iraq occupation demonstrated the wisdom of a collective approach to legal and political reform in post-conflict states.

The publication of the new DOD Law of War Manual on June 12 is an important milestone in the debate over transformative occupation. The last iteration of the Manual (FM 27-10, “The Law of Land Warfare”) dated to 1956, so an update was long overdue. Would the Pentagon claim that occupation law now permits Iraq-type reforms? A path to such a claim had already been laid by the United Kingdom, which updated its 1958 manual in 2004. The UK manual provided that an occupier may “repeal or amend laws that are contrary to international law and is also entitled to make changes mandated or encouraged by the UN Security Council.” (§11.11). Specifically, laws may be repealed if they “violate human rights treaties.” (Id. n.15). Would the United States do the same? And if so, would it claim that the traditional view of an occupier’s legislative powers should give way to a liberal democratic imperative that holds, in the words of a CPA legal advisor, that “tyrannical and repressive laws can no longer survive merely for the sake of continuity” and that international law “cannot stand opposed to consensual self-government and the rule of law”? (Brett H. McGurk, Revisiting the Law of Nation-Building: Iraq in Transition, 45 Va. J. Int’l L. 451, 464 (2004-2005)).

Remarkably, the US Manual does not take this path. Its view of occupiers’ legislative authority is quite limited. The powers afforded an occupier derive not from a general reformist imperative or even specific areas of policy such as human rights or democratic governance, but rather “from its war powers and from its duty to ensure public order and safety in occupied territory.” (§11.7).   Repeating almost verbatim language from Article 43 of the Hague Regulations, Section 11.5.2 sets out the traditionally restrictive view of the conservationist principle:

The duty of the Occupying Power to respect, unless absolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.

The permissible reasons for changing local law (set out in Section 11.9.2) are also virtually identical to the 1956 version (§369):

The Occupying Power may subject the population of the occupied territory to provisions:

(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

The Manual then lists examples of laws that may be suspended or repealed, and only one arguably serves the purposes of an Iraq-style transformation: provisions “relating to the administration of the law, such as repealing laws establishing racial discrimination or promulgating laws requiring the impartial application of the law by local officials.” (§11.9.2.2). That’s it. No endorsement of the top-to-bottom changes that the CPA made to Iraqi security and military institutions, human rights protections, criminal law and procedure, banking law, tax law, regulation of foreign trade, regulation of private economic transactions, securities law and the status of state-owned enterprises (see Kaiyan Homi Kaikobad, Problems of Belligerent Occupation: The Scope of Powers Exercised by the Coalition Provisional Authority in Iraq, 54 Int’l & Comp. L.Q. 253 (2005); Fox, The Occupation of Iraq, at 208-225). The CPA declared (.pdf) in 2004 that its goal was to create a “stable, democratic Iraq that is underpinned by new and protected freedoms and a growing market economic.” The Manual does not endorse anything close to those goals. To the contrary, it seems to disclaim wholesale transformation as a legitimate goal of occupation law, specifically noting “limitations on the ability of the Occupying Power to alter institutions of government permanently or change the constitution of a country.” (Section 11.4.2).

The Manual is not entirely free from ambiguity on the scope of an occupier’s legislative power. As quoted above, section 11.9.2. prohibits an occupier from “arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.” (emphasis added). This language would seem to allow for non-arbitrary suspensions. As authority for this test, the Manual cites commentary to Article 64 of the Fourth Geneva Convention, which builds on Article 43 of the Hague Regulations by providing that penal laws of the occupied state will continue in force unless they threaten the security of the occupier. But neither Geneva Article 64 nor Hague Article 43 refers to “arbitrary” changes in law; nor is the term used in Pictet’s commentary on Article 64, quoted extensively in the Manual’s footnote to this provision. So the idea of permitting non-arbitrary changes is an invention of the DOD. What scope of action does this test permit? Presumably changes would become “arbitrary” if they did not serve one of the three purposes listed in Section 11.9.2. or amounted to the kind of sweeping constitutional change precluded by Section 11.4.2.

Why did the DOD hew so closely to the traditional approach of 1956? The new Manual suggests one reason by making clear that while occupiers acting unilaterally will have limited legislative powers, those powers can be substantially enhanced by the Security Council:

Acting under the Charter of the United Nations, the U.N. Security Council may also establish authorities or limitations that might interact with those otherwise applicable under occupation law. For example, a U.N. Security Council authorization may provide additional authority for an Occupying Power to govern occupied territory. (§11.1.2.5).

The sole example cited of such authorization is Resolution 1483 on Iraq. Many scholars (though not me) argue that the Council gave the CPA a broad legislative mandate in Resolution 1483.   The debate over 1483 arose because the resolution was a muddled set of mixed signals, resulting, no doubt, from Council members’ lingering anger at the Bush Administration for invading Iraq in the first place. But DOD might well have reasoned that if future occupations do follow a Council authorization for intervention, the occupier would have little trouble having the same Council membership approve a transformative occupation. In many situations, therefore, the Council may simply legislatively override the conservationist principle.

Unfortunately, the Manual makes this point with less than model clarity. Many provisions legitimating acts under occupation law (e.g. §11.10.1.2, §11,8.1 and §§11.11.1 – 11.11.1.4) are footnoted to CPA decrees. If the CPA was acting under Chapter VII then its actions provide no clear support for propositions of occupation law, since, as the Manual itself states, the Council may authorizes legislative authority that would otherwise be prohibited by that law (i.e. the conservationist principle).

Another possible reason for the restrictive approach lies in one of the most common arguments for transformative occupation: that occupiers must give effect to their own human rights treaty obligations in occupied territory. This is the most obvious explanation for DOD’s unwillingness to follow the UK’s more expansive view of an occupier’s legislative powers. The UK is bound by the extra-territoriality jurisprudence of the European Court of Human Rights, which in the Al-Skeini case specifically involved acts of British occupiers in Iraq. DOD was almost certainly eager to distance the US from this position and the Manual reiterates the much-criticized US claim that its human rights treaty obligations do not extend outside US territory (§11.1.2.6).

In my view the Manual does exactly the right thing in holding to a hard line against the transformative occupation. The Security Council has authorized numerous reforms in post-conflict states, and the argument for circumventing Council approval to accomplish the same goals through unilateral action should face a heavy burden of persuasion. I find most of the arguments unpersuasive. If Iraq is to be the test case for this new theory then it stands for exactly the opposite proposition: the Council correctly withheld its approval for the invasion and exerted too little control in Resolution 1483, allowing the CPA to chart a course that most agree was ineffective at best and a disaster at worst. There is thus a deep irony in proponents of transformative occupation arguing that it is necessary to bring occupation law into accord with contemporary international law, for it would incentivize occupiers to avoid multilateral control over post-conflict reconstruction, arguably one of the most remarkable legal innovations of the post-Cold War era.

Farewell to Professor Michael Lewis: A Tireless and Important Voice on the Law of Armed Conflict

by Julian Ku

I want to join the others in the legal blogosphere in expressing my shock and sadness at the loss of Professor Michael Lewis.  Mike and I were fellow travelers on many legal and political issues, and I learned long ago that I would learn more from him on the law of armed conflict than he could learn from me.

As Professor Tom Lee of Fordham notes in his comment to Chris’s post below, Mike was an experienced naval aviator who overlapped in his time of service in the Navy with Tom.  Mike brought operational insights to the law of armed conflict, as his article on aerial bombardment during the First Gulf War in the American Journal of International Law showed.  But his background in the Navy was only a part of his identity as a legal scholar.  Mike was steadfast in working to develop a workable approach to the law of armed conflict that would satisfy both operational concerns and also strategic policy goals.

Mike was truly indefatigable. He would go anywhere, or take to any venue, to debate or discuss his views on LOAC and drone strikes in particular. Of course, he did not find many folks who agreed with him, but he always treated his interlocuters with respect and dignity. He wanted to debate, argue, and continue to debate and discuss.  He would do this for even the most sensitive and controversial issues.

Indeed, I first met Michael when he recruited me to speak on a panel he organized at the annual meeting of the American Association of Law Professors on one of those topics:  U.S. interrogation policies and torture.  I was not exactly excited to be on the panel, given the reaction I was sure we would receive, but Michael worked hard to keep our discussion civil and useful.  I was impressed with his willingness to tackle this topic, and his willingness to take a controversial and unpopular approach.

Michael was an important and thoughtful academic voice on some of the most important legal questions facing us today.  I will miss him.

 

Remembering Mike Lewis

by Chris Borgen

We are very sorry to mark the passing of Professor Michael W. Lewis of Ohio Northern University.

Mike spoke and wrote with rare authority as someone who was not only a leading international law and national security scholar who engaged in broader public discourse (see his many debates, presentations, and interviews), but also as a former Naval aviator and TOPGUN graduate, who had flown F-14’s in Desert Shield and enforced no-fly zones over Iraq.

More than most, Mike appreciated how international law was actually operationalized.

We at Opinio Juris benefited from Mike’s frequent contributions to the discussion, with posts and comments on issues such as the relationship between Additional Protocols I and II,  on various aspects of drone warfare (see, for example, 1, 2, and 3), and on  “elongated imminence” and self-defenseBobby Chesney and Peter Margulies have also posted remembrances about Mike Lewis at Lawfare.

On a more personal note, I remember the first time I met Mike in person, perhaps ten years ago, at a dinner at a national security law conference. He was a great conversationalist, speaking about the need to crystallize key principles of international law in a manner that would be immediately usable by the pilots and flight crews who were actually flying sorties.

His voice was unique and it will be missed.

Guest Post: Exploring Legal Rationales for South Africa’s Failure to Arrest al-Bashir

by Asad Kiyani

[Asad Kiyani (LL.B (Osgoode); LL.M (Cambridge) is a PhD Candidate at the University of British Columbia (UBC).]

While social and traditional media have been flooded with complaints about South Africa’s recent failure to arrest Omar al-Bashir, legal analysis of the situation has been lacking. Many have insisted that the reluctance to arrest al-Bashir is  ‘the impunity club’ disregarding legal principle and undermining the rule of law.

Yet, given the widespread insistence that the ICC has jurisdiction over Bashir and he must be arrested by anyone who can do so, there is a remarkable lack of agreement on exactly how the treaty-based ICC has jurisdiction over the sitting head of state of a country that has not ratified said treaty, and when that head of state is protected by customary law immunities (see Gaeta vs Akande, which inspired my article on the same).

For reasons of space, this post does not address the claim that there is already a rule of customary international law that provides an exception to head of state immunity. That position frequently involves the same errors: conflating the immunities of former heads of state (such as Pinochet) with incumbent heads of state, and conflating the elimination of the substantive defence of official capacity with elimination of the procedural bar of immunities. Nor does it deal with peace versus justice arguments, the specificities of South African constitutional law, or perhaps the more promising, genocide-based arguments in favour of arresting al-Bashir highlighted by Göran Sluiter. Instead, this post problematises the assertion that states refusing to arrest al-Bashir have no legal legs to stand on by highlighting four interrelated public international law issues raised by the legal pursuit of al-Bashir.

(1) There has been no reconciliation of the apparent internal contradictions in the Rome Statute: that states are obligated to carry out ICC decisions while also respecting the customary duties they owe to other states, particularly third-party states. Article 27(2) of the Rome Statute waives states’ customary protections of immunities. At the same time, Article 98(1) states that persons clothed in immunity can only be arrested by or surrendered to the Court if “the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

Sudan has clearly not consented to this waiver, and is not cooperating with the Court to waive al-Bashir’s immunity. At the same time, the Court insists that al-Bashir is to be arrested. Thus States Parties to the ICC are faced with competing obligations written into the Statute itself: to arrest al-Bashir while also observing his immunity from arrest. Arguments that there is no contradiction nullify these important provisions of the Rome Statute, and ignore the treaty-law implications of doing so.

(2) Importantly, the Article 98(1) provision is not just a treaty-based rule; it is the assertion of pre-existing principles of public international law that (a) preclude placing treaty obligations on third-party states, and (b) recognize customary law immunities. Thus, even if the Court were to interpret Article 98(1) differently, or the Assembly of State Parties were to delete it from the Rome Statute (a virtual impossibility), the same restrictions would still apply to states such as South Africa because those rules exist in international law independent of the Rome Statute.

These restrictions also apply to the Security Council, even when acting under Chapter VII. While the Security Council has extensive powers in international law, the general scholarship (see, e.g., herehereherehere, and here) and jurisprudence makes clear that – contrary to Jens Ohlin’s interpretation of Article 103 of the UN Charter – the Council is restrained by the norms of customary international law. Thus, as far as al-Bashir goes, it makes no difference that the Council referred Darfur to the ICC through a Chapter VII resolution. Insisting that Chapter VII can override customary international law – no matter how awful the person protected by it may be – collapses the agreement/custom distinction first made in Article 103 of the Charter and preserved in Article 98 of the Rome Statute. Additionally, it raises the question of what legal limitations do exist on the Council, and how this interpretation fits with the Tadić court’s view (here at para. 28).

Of course, this does not render Security Council referrals null – it simply restricts the pool of situations that the Council may refer to the Court. (more…)

Guest Post: Revoking Citizenship of Foreign Fighters: Implications for the Jurisdiction of the International Criminal Court

by Ailsa McKeon

[Ailsa McKeon is a BA/LLB (Hons I) from the University of Queensland.]

Growing numbers of men and women are travelling to the Middle East to fight for ‘ISIS’. Political figures from several Western nations, including Australia, the UK, Canada and Norway, have publicly asserted that these individuals should be stripped of citizenship of their countries of origin to protect, punish and deter. Yet, however well-intentioned this strategy may appear, it could also have negative consequences for the ICC’s jurisdiction if these individuals are accused of crimes within its remit.

Revocation of citizenship is contrary to international law if it renders any individual stateless. It is possible nonetheless, as shown, for example, by Burma/Myanmar’s treatment of Rohingya people. The idea is less controversial when applied to those with multiple nationalities who would retain at least one. Regardless, revocation of citizenship in any case would be a complicating factor for ICC jurisdiction.

Art 25(1) of the Rome Statute gives the ICC jurisdiction over natural persons only. Art 12 sets out the preconditions for the ICC’s exercise of jurisdiction in relation to the crimes specified in Art 5(1). Essentially, it requires the State on whose territory the relevant conduct occurred, or of which the person accused of the crime is a national, to be a party to the Rome Statute or to have consented to the Court’s jurisdiction in respect of the particular crime alleged. The exception is where the UN Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Prosecutor in which a crime within the ICC’s competence appears to have been committed. The ICC can then exercise jurisdiction whether or not the relevant State is a party. However, such referrals may be impeded by the exercise of the veto power by any of the five permanent Security Council members.

Where an individual commits acts alleged to constitute crimes within the ICC’s jurisdiction before revocation, they can be pursued as a national of a ratifying nation based on Art 12(1): that is, at the time the crime is said to have been committed, the person was a national of a State Party, which, by becoming a State Party, accepted the court’s jurisdiction over its territory and nationals. Subsequent withdrawal of citizenship cannot change that. However, the ability later to exercise that jurisdiction is a distinct issue, as will be discussed below in relation to Art 127.

In the reverse situation, where an individual commits such conduct only after withdrawal of citizenship of a State Party, the existence of jurisdiction is unlikely. It seems that in the continued absence of territorial jurisdiction, the ICC would be unable to commence proceedings due to lacking jurisdiction ratione personae. This challenging prospect presently confronts the ICC, as Western nations foreshadow action to revoke citizenship of foreign fighters. Prosecutor Bensouda released a statement in April 2015 indicating that, although the situation continues to be monitored, the Office of the Prosecutor is not currently in a position to commence investigation or prosecution of any individual involved with ISIS from a State party. As the Prosecutor observes, neither Iraq nor Syria (nor many of their neighbouring States) is party to the Rome Statute: as such, the ICC would rely on personal jurisdiction to prosecute any foreign fighter alleged to be most responsible for mass crimes. In the event that personal jurisdiction is removed, the ICC would be rendered powerless over such individuals.

The situation with respect to crimes continuing either side of revocation is more indeterminate, in the same manner as continuing crimes commenced prior to the Rome Statute’s entry into force. This is relevant because the precise point at which revocation of citizenship would take effect with respect to any particular individual under various national legislative regimes is unknown.

The most direct analogy as to loss of jurisdiction over continuing crimes arises under the Statute of the ICTR. (Similar circumstances affect the ECCC, however the issue has not been addressed there.) Art 7 defines the ICTR’s temporal jurisdiction to “extend to a period beginning on 1 January 1994 and ending on 31 December 1994”. The ICTR held in the Nahimana appeal that “[criminal] responsibility could not be based on criminal conduct prior to 1 January 1994, but… evidence of pre-1994 acts could nonetheless have probative value”. However, nothing was said in that case of conduct occurring after 31 December 1994; the same conclusion cannot necessarily be drawn regarding the evidentiary value of subsequent conduct as to possible earlier criminality in this context. Regardless, this ruling seems to confirm the view that jurisdictional limits are applied strictly, even for continuing crimes that are commenced before, but not completed until after, jurisdiction is removed. Loss of jurisdiction by the ICC would therefore prevent determination of culpability or innocence.

A less obvious parallel may be drawn with the law of diplomatic protection. Where an individual with immunity loses nationality of the State from which it was derived prior to commencement of criminal proceedings, the individual will also lose the protection of that State in respect of a wrong they committed while its national. As a result, proceedings may ensue against an individual who had held diplomatic protection at the time of allegedly committing a wrong, where otherwise they could not. However, that situation is distinguishable from the one of present concern: there, a pre-existing bar is removed so that jurisdiction is allowed, while in the case of revocation of citizenship, jurisdiction exists until its substratum is displaced by the revocation. This does not speak in favour of ICC jurisdiction existing in respect of continuing crimes where the elements of the crime are not complete until after citizenship is revoked.

A contrasting analogy may be made with the withdrawal of ratification of the Rome Statute. Art 127(2) states:

“… [a State Party’s] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

This provision foresees politically-motivated withdrawals and operates so that the ICC retains the ability to exercise jurisdiction over individuals already being investigated or prosecuted, despite the State Party’s ouster of its jurisdiction otherwise. Art 127 explicitly applies only to State Party withdrawal from the entire Rome Statute, operating to displace the rebuttable presumption that a treaty cannot be denounced unilaterally unless it is shown that this possibility was intended by the parties or that a right of withdrawal exists by implication from express terms.

The obverse consequence implied by Art 127(2) is that proceedings may not be commenced in the ICC in respect of the territory or nationals of a State that has withdrawn with effect as per Art 127(1). This position seems also to apply to persons whose citizenship of a State Party has been revoked, even where a continuing crime was allegedly commenced while citizenship of a State Party remained in force, for the reason observed earlier that such jurisdiction has been lost by the time the crime is complete. Further, given its specificity, Art 127 cannot be applied directly to revocation of citizenship to suggest that jurisdiction will continue over individuals whose investigation or prosecution has been commenced, but whose citizenship is subsequently revoked. Rather, in the absence of express provision to that effect, it appears that proceedings would have to be abandoned. This proposition is confirmed by the terms of Art 12(2), which relevantly provides that “the Court may exercise its jurisdiction if… the State of which the person accused of the crime is a national” is a State Party or has accepted the jurisdiction of the Court in accordance with Art 12(3). Although the crime remains within the ICC’s competence, personal jurisdiction is absent where the person is no longer a national of a ratifying State.

Were any ratifying nation to follow through with revoking a foreign fighter’s citizenship, it is arguable that this act would breach the obligation under Art 86, “in accordance with the provisions of [the] Statute, [to] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” In fact, it would make it substantially more difficult for the ICC to pursue individuals suspected of involvement in the most egregious crimes where those crimes are not commenced or completed until after the revocation.

This issue is a live one. Foreign fighters are firmly positioned within ISIS’s leadership structure and in active operations, while allegations of war crimes and crimes against humanity have already been made against the group. There is a clear possibility that foreign fighters may warrant investigation and prosecution by domestic or international authorities. It should therefore be of concern that an essentially administrative act by a State Party may seriously impede ICC involvement where a State is unwilling or unable to proceed.

Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 2 of 2)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace. Part 1 can be found here.]

2. International Criminal Justice and Reconciliation: Improving Connections

It is easy to criticize international criminal justice for its shortcomings. A hard question is: How can the connection between international criminal justice be improved?

Existing studies have expressed doubts to what extent international criminal trials have promoted a ‘thicker’ conception of individual, inter-group or inter-societal reconciliation, at least in the short or medium term. International trials have limited the space for denial of atrocities and created a public space and reference point to confront history, which is one pre-requisite for societal transformation. In past years, international courts have sought to address their limitations through greater investment in restorative features (i.e., victim participation, compensatory justice), complementarity strategies, and education and outreach (e.g., legacy). But improvements might start with a closer look at retributive practices and procedures.

2.1.Reconciliatory potential of retributive justice

There is, first of all, a need to reduce practices that undermine the reconciliatory potential of retributive justice.

(I) Judicial Management

One of the most basic lessons is that  criminal courts and tribunals need to complete trials and produce a judicial outcome, in order to have a transformative effect. In existing practice, criticism has focused on the divisive nature of acquittals or dissents. Such judgments may indeed confirm existing societal tensions. But they are not necessarily detrimental to longer-term processes of reconciliation. They represent a legitimate outcome and contribute to the process of truth-finding. More critical are flaws in the justice process as such, i.e., unfinished or derailed proceedings. At the international level, there are number of critical examples over the past decade, including Milošević, Lubanga, or most recently Kenyatta. In a national context, the Rios Montt trial was affected by dilatory tactics and intimidation. Such examples undermine the demonstration effect of justice, and the faith in law and institutions that is necessary for meaningful engagement with the ‘other’.

The prospect of the trial to contribute to reconciliation depends on its acceptance and perception as a common forum. Each trial necessarily involves a certain degree of theatre and drama. International trials can easily turn into show trials, and struggle to confront ideology fueled criminality. These challenges need to be addressed. Judicial proceedings need to provide space to challenge pre-determined attitudes and biases or the heroization of agents, in order to maintain their perception as shared fora. This requires active, and sometimes better judicial management of proceedings, deeper engagement with conflicting visions of history and causes of criminality, and space to highlight and challenge contradictions in ideology-tainted discourse.

(ii) Plea agreements

From a reconciliatory perspective, it seems tempting to encourage plea agreements in proceedings. But this inclination is deceptive. In the early ICTY practice, guilty pleas were used as a means of reconciling punishment with acknowledgment of wrong or apology. Experience has shown that such admissions of guilt cannot be taken at face value. For instance, Mrs Plavsic’s guilty plea in 2003 was initially heralded as a significant move towards the advancement of reconciliation. After sentencing, she retracted her guilty plea and expression of remorse. This experience highlights the fragility of negotiated justice.  If an apology is offered in return for sentence leniency, it might not necessarily benefit reconciliation, and call it into question the genuineness of remorse.

In the ICC context, risks of bargaining are curtailed by greater judicial power, and structural attention to the interests of victims (Art. 65 (4) ICC Statute) But at the Court, similar concerns have arisen in the context of the apology of Katanga. Katanga’s remorse was offered after the sentencing judgment, and before the decision on appeal. It caused resentment among victims, since it was perceived as a tradeoff for the discontinuance of the appeal.

2.2. Justice Approaches

International criminal justice may contribute to break divides, if it makes best use of the constructive tension between retributive and restorative approaches.

(i) Constituency and locality  

A fundamental element is the approach towards constituency and locality. Justice, and in particular, justice in the Hague, must be a two- way street. International proceedings are not merely abstract processes, geared at the interests of the parties or fictive community interests; they require a close nexus  context, and the interests of affected communities and victims. It is this inclusiveness, which connects international criminal justice to processes of reconciliation. In current practice, interaction with the ‘domestic’ or ‘local’ is often characterized by outsourcing, transfer of cases or one-directional communication (e.g., ‘outreach’). The conditions of this relationship, and its transformation over time (e.g., after closure of cases) require further structural attention. Holding local hearings (e.g., Ntaganda) may facilitate visibility and access to victims, and foster the perception that ‘justice is seen to be done’. But it is not in itself sufficient to facilitate a structural dialogue locally.

(ii) Challenging‘friend/enemy’ clusters

Many trials suffer from the reproduction of binaries, and are perceived as obstacles to reconciliation, if they remain entrenched in ‘friend/enemy’ clusters, or associate crime or victimhood across pre-configured collective identities (e.g., ethnic lines). International criminal justice may reduce these frictions, if it pays attention to rights and wrongs of  all sides of the conflict, as mandated by the principle of objectivity (Art. 54 ICC Statute). A positive contribution to reconciliation also requires better engagement with dilemmas of selectivity, and justification of choices (e.g., selection of situations, cases, defendants). Typically, most attention is focused on action. But from a perspective of reconciliation, inaction requires equal attention. It is, in particular, important to communicate that inaction does not entail an endorsement of violations.

(iii) Contradictorial v. adversarial proceedings

International criminal courts have experimented with different types of procedures. Experiences suggest that inquisitorial features may be more closely aligned with rationales of reconciliation. Accusatorial models tend to treat parties to proceedings as adversaries. This structure consolidates binaries, and produces clear winners and losers. This methodology fuels a certain hostility, and stands in tension to a more exploratory mode of inquiry. As noted by Albin Eser, this contradiction could be mitigated, if procedures were construed as ‘contradictorial’, rather than ‘adversarial’, i.e. focused on ‘elucidating the truth by way of  contradiction, including confrontation’ and ‘(controversial) dialogue’ in ‘a spirit of cooperation’, rather than hostile contest. Steps like these would facilitate empathy and potential re-humanization of perpetrators and victims. One of the implicit purposes of these trials is to give back to the victims some of the humanity that they have lost.

(iv) Fact-finding

A last procedural point relates to fact-finding and quality of evidence. Existing practice continues to rely heavily on oral testimony. Testimonial evidence is fragile and limited by epistemic challenges, since it linked to assessments of trustworthiness. This is shown by many examples, internationally and nationally. Some of these vulnerabilities might be limited by creative uses of information technology, and better translation of ‘big data’ into analysis or evidence. International courts and tribunals (e.g., ICC, STL) serve as important pioneers in this field.

2.3. Treatments of Actors

Finally, prospects of reconciliation are closely linked to the experiences of parties and participants in the justice process. Individuals share and digest experiences through narratives. Criminal proceedings may contribute to this process, if parties and participants have the impression that they are listened to.

Some of the most direct transformative effects may occur through the experience of testimony, i.e., the contact and exposure of witnesses or victims to a professional justice environment. Existing practice provides positive and negative examples. Existing experiences might be improved through greater care for witnesses before and after testimony, and better management of victim participation in proceedings, including information, representation  and processes of inclusion and exclusion. Greater caution is required in the use and labeling of victims. Judicial proceedings tend to produce imageries (e.g., vulnerability) and abstract categorizations of victimhood that may have disempowering effects on victims.

One innovative development at the international level is the ICC’s approach towards reparation. It combines retributive and restorative features. It establishes a direct form of  accountability of the convicted person towards victims, which differs from classical models of victim-offender mediation. Accountability is grounded in the obligation to repair harm, but linked to the punitive dimensions of ICC justice (e.g., conviction, sentence). Jurisprudence has made it clear that establishment of accountability towards victims through reparation proceedings is an asset per se that can provide a greater sense of justice to victims, even in cases where the defendant is indigent. Examples like these illustrate some of the strengths and possibilities of international criminal justice.

 3. Not a conclusion

In the future, as in the past, it will remain difficult to demonstrate empirically whether and how international criminal justice contributes positively to reconciliation. This debate is likely to continue. It might be interesting to turn the question around: Would one be better off without international criminal justice? If the question is framed in the negative, the ‘benefit of the doubt’ might gain greater weight.

At least three insights can be drawn now. First, reconciliation is not, and should not necessarily be treated as a primary goal of international criminal justice. The criminal trial is at best one intermediate factor in such a process. Second, the contribution to reconciliation cannot be assessed exclusively through the lens of restorative justice. Some important impulses result from the positive tension between retributive and restorative justice. Third, some of the strengths of international criminal justice lie in its expressivist features and, its ability to serve as experiment for national experiences. These experiences require further translation and/or transformation in a national or local context, rather than mere replication.

The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs

by Julian Ku

I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts.  That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs.  I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.

Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.

To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress.  This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today.  Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power).  Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.

I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly.  That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power.  Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.

In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power.  Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President.  I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon.  Justice Thomas was getting lonely, so I suppose he will be glad to have the company.

 

Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 1 of 2)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace.]

Introduction

Punishment and reconciliation are closely linked. In this post, I would like to explore one issue of this relationship, namely the link between the retributive and restorative justice. The core dilemma was identified by Hannah Arendt in her treatment of forgiveness in the Human Condition in1958:

 ‘men are unable to forgive what they cannot punish and are unable to punish what turns out to be unforgivable’.

This dichotomy still stands today. Since Nuremberg and Tokyo, there is a strong trend to recognize that the purposes of trials reach beyond retribution and vengeance. International criminal proceedings are increasingly associated with restorative features, because punishment alone has inherent limitations. Some harm may only heal with time. At the same time, certain acts may be beyond forgiveness. This argument is used to discard alternatives to punishment or short cuts to impunity, in particular in relation to core crimes.

These dilemmas arise in any mass atrocity context. They have a legitimate space in law and justice policies. They cannot, and should not be outplayed against each other, but stand in a dialectic relationship. The right equilibrium must be found anew in any specific context, through argument, contestation and persuasion.

The contribution of international criminal justice to reconciliation is modest. Reconciliation has of course many meanings. It extends beyond the victim-offender relationship that forms part of the criminal trial. It involves different levels: interpersonal forgiveness and collective dimensions (e.g., community-based, societal or national reconciliation). It contains retrospective (e.g., understanding of the past, healing, undoing of wrong) and prospective elements (e.g., social repair). Legal visions of time do not necessarily correlate with societal understandings. International criminal justice typically only covers fragments of the past, and glimpses of the imagination of the future.

Unlike a judgment in a trial, reconciliation can rarely be tied to a specific moment in time. It occurs as a process. As argued in the Handbook on Reconciliation after Violent Conflict, it is both a goal, i.e., an ideal state to strive for, and a process ‘through which a society moves from a divided past to a shared future’. It involves ‘social learning’ and a move beyond negative co-existence and the mere absence of conflict. Justice is only one element, alongside others such as the search for truth, forgiveness or healing.

It is questionable to what extent reconciliation should be framed as a primary goal of international criminal justice per se. International criminal justice can neither stop conflict nor create reconciliation. A Court can judge, but only people can build or repair social relations. A Chamber cannot order an apology by the perpetrator, nor forgiveness by victims. In fact, the liberal criminal trial may require respect of the will of those who do not choose to forgive. The experiences in the Balkans, Latin America and Africa have shown that healing and forgiveness are culturally-bound processes that are rooted in local cultures, and start at the level of the individual or community based structures. Reconciliation requires the recognition of a more inclusive common identity that transcends the justice trial. But international criminal law strengthens the claim that reconciliation should not be conceived ‘as an alternative to justice’. Moreover, the criminal trial can provide conditions that facilitate such complex processes. It may signal a rupture with the past that contributes to a process of reconciliation.

In the following, I will try to unpack some of the existing divides. I will first challenge whether restorative approaches are per se better suited to achieve reconciliation than retributive mechanisms. I will then explore certain means to improve the connection between international criminal justice and reconciliation.

1. Links between Reconciliation and Retributive Justice

Retributive justice mechanisms, such as international criminal courts and tribunals, are often criticized for their limitations, namely their emphasis on perpetrators, their individualization of guilt and focus on the past, and their risks. This includes detachment from local context and emphasis on universal justice models and standards. Restorative mechanisms of justice, including victim-centred and less formal forms of accountability, have gained increased acceptance as a middle ground between retributive justice and blanket pardon. They are viewed as more conducive to reconciliation, in light of their stronger focus on needs of victims, their proximity to community or group structures, and their flexibility in terms of process and sanction (e.g., restorative penalties). This either/or logic requires differentiation. Developments over past decades suggest that it is the linkage between these two models that may be most conducive to reconciliation.

1.1.Punishment as prerequisite for reconciliation

One first important point is that prosecution aimed at punishment is not necessarily an obstacle to reconciliation. In certain contexts, retribution may have a greater effect on reconciliation that certain restorative forms of justice that prioritize forgiveness or forgetting. Forgiveness often requires more than a mere apology or generic acknowledgments of responsibility. Victims might be more willing to forgive, or at least temper their feelings of revenge, if they know that the perpetrator will be punished. A recent example is the trial against camp guard Oskar Gröning before German Courts. Ausschwitz survivor Eva Moses Kor shook hands with Gröning. She noted that she could forgive because ‘forgiveness does not absolve the perpetrator from taking responsibility for his actions’ nor diminish the ‘need to know what happened there.’

1.2.‘Us vs. them’ divides

Second, reconciliation is linked to cognitive and affective change, grounded in social interaction. It is shaped by positive experience with the ‘other’ and a relationship of recognition and trust. As argued by Jodi Halpern and Harvey Weinstein, reconciliation ‘shows itself in the degree to which people actually can act as distinct individuals with mutual regard in the real world’. Prosecutor have a tendency to portray perpetrators as persons lacking in humanity. But there are many types of perpetrators in international criminal justice: Political leaders, executers, followers. Alette Smeulers has identified at least nine different species:

 

‘(1) the criminal mastermind; (2) the careerist; (3) the profiteer; (4) the fanatic; (5) the devoted warrior; (6) the professional; (7) the criminal and sadist; (8) the follower; and (9) the compromised perpetrator’.

 

One common feature is that many of them are ‘ordinary’ persons who turn into criminals because of context. International criminal justice offers a space to re-humanize, by breaking some of the inequalities and hierarchies inherent in system criminality, or de-constructing context. As argued by Pablo de Greiff, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, the criminal trial provides a forum to discard any ‘implicit claim of superiority made by the criminal’s behaviour’. In specific contexts, the victim and perpetrator (re-)encounter each other as mutual holders of rights, or as members of a common polity. These structural features can lay important foundations for longer-term processes of social repair or reconciliation. They can break up ‘us vs. them’ divides.

1.3.Acceptance of multiple truths

A third point relates to the relationship between reconciliation and truth-finding. One of the inherent features of a criminal trial is that it can produce different narratives, or even multiple truths, through assigned roles in the legal process, competing testimonies or conflicting decisions. International criminal justice is paved with such examples. It has produced many frustrating experiences for victims of crime. But this is not necessarily an impediment to healing or forgiveness. Reconciliation is not linked to the acceptance of a ‘single truth’ or narrative, but grounded in the acceptance or toleration of conflicting points of view. It lives from the ability to respect the ‘other’ and tolerate difference, despite opposite or conflicting views of events and facts. The strength of the criminal process lies in the fact that it offers a forum where contradictions and contestations may legitimately co-exist, based on the constraints of the law.

Is Law Losing Cyberspace?

by Duncan Hollis

The ALL CAPS headline of the last few hours involves news that social security and other identifying information for some 4 million U.S. federal workers was compromised in a cyber exploitation that, if one believes the unofficial finger pointing, came at the behest of the Chinese government.  Of course, it was just yesterday, that the Council on Foreign Relations’ Adam Segal was reporting how China was crying foul over “OceanLotus” a cyber exploitation that counted various Chinese governmental agencies and research institutes among its victims (and where the fingers were pointed back at the United States). And that’s to say nothing of the Snowden disclosures or the tens of millions of people whose personal data has been compromised via data breaches of an ever-expanding list of private companies (e.g., in February 2015 the U.S. health insurer Anthem admitted that up to 80 million people in its databases had their personal data compromised).  Now, maybe such data breach stories are hyperbolic, offering big numbers of potential losses that do not necessarily mean actual data compromises, let alone consequences for the associated individuals.  Nonetheless, the current zeitgeist seems to be the normalization of cyber insecurity.

As someone who believes international law has an (imperfect) role to play in preserving international peace and stability, I find the current scenario increasingly worrisome.  The level and breadth of cyber exploitations suggests a world in which actors are engaged in a race to the bottom of every data well they think might be useful for their own purposes, on the theory that their adversaries (and their allies) are all doing the same.  In such a world, law seems to be playing a diminishing role.

To be clear, domestic law certainly may constrain (or facilitate) a State’s cyber operations, as all the anxiety associated with the expiration of the PATRIOT Act and this week’s passage of the USA FREEDOM Act suggest. For those of us who care about international law, however, it seems increasingly marginalized in the current environment.  We’ve spent much of the last several years, focused on how international law applies to cyber-operations with huge efforts devoted to questions of line-drawing in what constitutes a prohibited use of force in cyberspace under the jus ad bellum or where the lines are for an attack under the jus in bello.  The Tallinn Manual is the paradigmatic example of this (often quite good) work.  More recently, States and scholars have moved on to cyber operations below these lines, with attention shifting in Tallinn and elsewhere to which cyber operations may generate counter-measures and defining when cyber operations violate the duty of non-intervention.

Such efforts have (so far) had relatively little to say on the question of a cyber exploitation that is best characterized as espionage.  With the exception of U.S. efforts to decry “economic” cyber espionage (as opposed to national security cyber espionage), most international lawyers have shrugged their shoulders on the legality of governments (or their proxies) stealing data from other governments or their nationals.  The conventional wisdom suggests intelligence agencies will be intelligence agencies and we should let this play out via diplomacy or power politics.  To the extent international law has long failed to prohibit espionage, the thinking goes, by analogy it should also leave cyber espionage alone.  And if that’s true, international law has little to say about China taking whatever data it can on employees of the U.S. federal government.

Of course, conventional wisdom is often conventional for good reasons.  From a national security perspective, there are important interests that militate against regulating or constraining data collection from abroad.  Yet, I worry that we’re reaching a tipping point where in conceding international law can do little to nothing for the problem of cyber exploitations, we are effectively conceding the rule of law in cyberspace.  It’s understandable that, from a rational perspective, States will want to do as much of this activity as their technical capacity allows.  But, such self-centered policies have generated a dramatic collective action problem.  The current cyber system is certainly sub-optimal, whether you consider it in economic, humanitarian, or national security terms. The economic costs of the status quo are by all accounts growing, whether in terms of losses of data and IP, or the costs of cleaning up after exploits occur.  Similarly, the ability of individuals to preserve their privacy is rapidly diminishing, and the right to privacy along with it.  And, of course, national governments are fighting, and losing, the battle to keep their own data (and secrets) secure.

All of this leads me to ask whether it’s time to revisit the question of how international law deals with data breaches?  I recognize some may say “no” or that after long and careful thought the answer may remain the same.  But, the rising importance and success rates of data breaches across the globe suggests it’s high time for international law to at least engage these questions more closely.

What do others think?  Is international law losing in cyberspace or is there still a chance that it can play a regulatory role over modern cyberthreats, even if only an imperfect one?

 

Appeals Chamber Fails To See the Forest — Complementarity Edition

by Kevin Jon Heller

Earlier this week, the Appeals Chamber rejected Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo. The challenge was based on Gbagbo’s 20-year sentence for disturbing the peace, forming and organising armed gangs, and undermining state security. Like the Pre-Trial Chamber, the Appeals Chamber concluded that Gbagbo’s domestic convictions failed to satisfy Art. 17’s “same conduct” requirement, making her case admissible. Here are the key paragraphs:

99. The Pre-Trial Chamber found that the conduct underlying the alleged economic crimes was “clearly of a different nature” from the conduct alleged in the proceedings before the Court, and therefore “irrelevant”.171 The Pre-Trial Chamber further found that according to the documentation provided by Côte d’Ivoire, in particular Annex 8 to the Admissibility Challenge, the alleged conduct was characterised as [REDACTED].172 In view of the description of the alleged acts provided in the material submitted by Côte d’Ivoire, the Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find this conduct to be of a different nature to Ms Gbagbo’s alleged conduct in relation to the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts, on the basis of which the Warrant of Arrest was issued against her by the Court. In addition, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

100. As regards crimes against the State, the Pre-Trial Chamber noted that in the domestic proceedings it is alleged that Ms Gbagbo [REDACTED].173 The Pre-Trial Chamber further noted that, in the domestic proceedings, “there are references to, inter alia, the allegations of [REDACTED].174 The Pre-Trial Chamber observed that the provisions criminalising such alleged conduct are included in the section of the Ivorian Criminal Code concerning felonies and misdemeanours against the safety of the State, the national defence and the public security.175 The Pre-Trial Chamber concluded that the alleged conduct only includes [REDACTED] and therefore the domestic proceedings in question “do not cover the same conduct” that is alleged in the case before the Court.176 The Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find, on the basis of the description of the alleged conduct contained in the documents provided by Côte d’Ivoire, read in light of the applicable provisions of the Ivorian Criminal Code, that this conduct, characterised as infringing [REDACTED], is not the same as that alleged before the Court. In addition, as indicated earlier, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

I have no doubt that the Appeals Chamber’s application of the “same conduct” requirement is correct. But I think it is important to once again ask a basic question about the requirement: what does the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? 20 years is a significant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Even if the OTP manages to convict Gbagbo, she is very unlikely to receive a substantially longer sentence. So why should the ICC waste the OTP’s precious and overstretched resources by trying Gbagbo again?

My answer, not surprisingly, remains the same: it shouldn’t. The ICC simply cannot afford the kind of hyper-formalism that underlies the “same conduct” requirement. As I have argued elsewhere, the Court should defer to any national prosecution that results in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s prosecution.

In fairness to the Appeals Chamber, it’s worth noting that Gbagbo’s attorney challenged the Pre-Trial Chamber’s application of the “same conduct” requirement; she did not challenge the requirement itself. That’s a shame, because I think Gbagbo’s case perfectly illustrates why the Appeals Chamber should jettison the “same conduct” requirement. Would it? Probably not — as I note in my article, the requirement does have a clear textual basis in Art. 20 of the Rome Statute (“upward” ne bis in idem). But the Appeals Chamber has proven remarkably willing to ignore the Rome Statute when it proves inconvenient, so it would have been worth a shot — especially as the “same conduct” requirement is fundamentally inconsistent with the principle of complementarity’s emphasis on the ICC being a court of last resort . At the very least, challenging the requirement would have forced the Appeals Chamber to explain why the requirement’s waste of OTP resources is warranted. I would have liked to read that explanation.

Dear World Media: The U.S. is NOT Challenging China’s Territorial Claims in the South China Sea (Yet)

by Julian Ku

I have been following closely the U.S. Navy’s plans to use military ships and aircraft to challenge China’s aggressive land reclamation activities in the South China Sea, and China’s not very positive reaction to these plans.  But although there is a real dispute brewing here that could escalate into a sovereignty fight, I think media reports are making this dispute more serious than it actually is.

Contrary to some media reports, the U.S. Navy plans do NOT intend to challenge China’s “sovereignty” claims in the South China Sea. Instead, the U.S. Navy is asserting its rights to freedom of navigation under international law. If we understand the U.S. Navy plans in this context, it may help us defuse (at least somewhat) the growing tensions between the U.S. and China in this region, if only the media would help us out with better reporting.

From CNN, here is an example of how media reporting is making this dispute seem worse than it is.

Above the South China Sea (CNN)The Chinese navy issued warnings eight times as a U.S. surveillance plane on Wednesday swooped over islands that Beijing is using to extend its zone of influence.

The series of man-made islands and the massive Chinese military build-up on them have alarmed the Pentagon, which is carrying out the surveillance flights in order to make clear the U.S. does not recognize China’s territorial claims.

(Emphasis added). This report feeds into the (accurate) narrative about growing tensions between the US and Chinese navies.  In this story, the US Navy is flying “over” the Chinese islands in order to challenge or reject China’s territorial claims.  But later in that same report, CNN says that U.S. Navy is considering “flying such surveillance missions even closer over the islands, as well as sailing U.S. warships within miles of them, as part of the new, more robust U.S. military posture in the area.” (emphasis added).

Here’s the problem.  If the U.S. Navy aircraft featured in the CNN video (a military surveillance plane and “sub hunter”) actually flew “over” the Chinese artificial islands, then why would they consider flying even closer “over” the islands and what would be the significance of sending naval ships?

In fact, the US Navy has tried to make it clear to reporters that they are merely conducting freedom of navigation operations and “that U.S. military aircraft do not fly directly over areas claimed by China in the Spratly Islands.” (in the washington post).  It’s my guess that the Navy hasn’t even flown within 12 nautical miles of the artificial islands.

Why? Because as far as I can tell, this is a standard US Navy “freedom of navigation” operation that it uses to assert international law rights of navigation against numerous countries around the world.  It is NOT, as the CNN and other reports suggest, a challenge to China’s territorial claims.

Freedom of Navigation” operations involve sending US Navy warships into both the 200 nautical mile Exclusive Economic Zone and the 12 nautical mile territorial seas recognized under the UN Convention on the Law of the Sea.  In the view of  the U.S., military warships and aircraft are free to conduct surveillance operations (e.g. spying) in any country’s 200 nm EEZ and surface warships (but not military aircraft or submarines) have the right to “innocent passage” through a country’s 12 nautical mile territorial waters.

The U.S. Navy has been conducting  “freedom of navigation” operations for decades to enforce these views of international law, and it even has a “Freedom of Navigation” website making public where it has been operating. The point of these operations it to publicly challenge a country which is making (in the U.S. view) unjustified legal rights under UNCLOS.  China has a longstanding disagreement with this U.S. interpretation of UNCLOS. So they always make protests, and China has sometimes sent its fighter jets out to harass or challenge US spy aircraft.

But the bottom line: pace CNN, freedom of navigation operations are not challenges to “territorial claims” or “sovereignty.” The US Navy operations assume that the other nation has “sovereignty” over the relevant coastline or island.  So the US Navy operations near China’s artificial islands can assume that China has sovereignty but still demand China allow US military aircraft and ships  transit rights etc. under UNCLOS.

It is worth noting that the U.S. could escalate the dispute with China.  The U.S. might take the view that China is building artificial islands on top  of reefs or submerged features which do not entitle China to any legal rights at all (See UNCLOS, Art.60(8): “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”).  If so, then the US would fly within 12 nm miles or even directly “over” the artificial islands. Such operations would effectively be a direct challenge  to a China’s territorial claims, because the U.S. would be taking the view that China has no territorial basis at all for claims in the South China Sea.

“Challenging legal rights under UNCLOS” doesn’t make for very sexy headlines or get many clicks as compared to “challenging China’s territorial claims”. But it is worth parsing media reports about US Navy activities in the South China Sea very carefully, and it would be nice of those well-sourced reporters would clarify just how close the US Navy is going to fly/sail to China’s reclaimed islands.

Maybe the U.S. government should directly challenge China’s territorial claims and sovereignty claims.  I am not sure in my own mind whether the U.S. should take that next step.   But for now, the U.S. hasn’t challenged China’s territorial claims yet, and I wish reporters would stop making it seem like it is doing so.