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Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

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

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

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

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

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

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

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

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

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

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

Guest Post: The Security Council Resolution on the Iran Deal–A Way around the “Reverse Veto”

by Jean Galbraith

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

The Security Council’s voting procedures make it difficult to pass resolutions – and, typically, difficult to undo resolutions once passed. In an article published not long after the end of the Cold War, David Caron observed that while it is hard to address the difficulty of passing resolutions, the Security Council itself has the power to make it easier for resolutions to be undone once passed. One way, of course, is for the Security Council to put specific time limits on a resolution. But as an alternative Professor Caron suggested that the Security Council could “incorporate in any resolution taking a decision a modified voting procedure for future use in terminating the action taken.” In this way, the Security Council could get around what he described as the “reverse veto” – the default position that a resolution needs another resolution to terminate it and therefore that all P5 members must acquiesce in this termination. Professor Caron described how he had run his idea by a lawyer serving at the mission of one of the P5 but gotten a “quick and dismissive” reaction.

In the Security Council resolution endorsing the Iran deal, we now have something resembling Professor Caron’s suggestion. To see this, one must work through multiple paragraphs of Resolution 2231. To begin with, paragraph 7(a) terminates prior Security Council resolutions imposing sanctions on Iran. But the Resolution further provides that paragraph 7(a) itself can be undone – thus reinstating the prior Security Council resolutions – through what is effectively a modified voting procedure. Specifically, paragraph 11 states that if the Security Council receives a complaint from one of the parties to the Iran deal alleging that there is “significant non-performance of commitments” under the deal, then the Security Council is to “vote on a draft resolution to continue in effect the terminations in paragraph 7(a) of this resolution.” According to paragraph 12, if this draft resolution does not pass, then after a short time lag all the resolutions that had “been terminated pursuant to paragraph 7(a) shall apply in the same manner as they applied before the adoption of this resolution, and the measures contained in paragraphs 7, 8 and 16 to 20 of this resolution shall be terminated, unless the Security Council decides otherwise.” (These “snapback” provisions track the arrangement reached in the Iran deal. Also consistent with that deal, there are further related issues, including that invocation of these provisions could lead Iran to abandon the deal and also a partial limit on the reinstatement of the earlier sanctions as noted earlier on this blog by Julian Ku.)

In other words, paragraphs 7, 8, and 16-20 of Resolution 2231 will automatically terminate if a single P5 member vetoes the draft resolution that follows a complaint submitted to the Security Council by one party to the deal. This flips the usual voting procedure for terminating a resolution. Rather than needing the acquiescence of all the P5 to terminate these provisions, what is now needed is only for one P5 member to block their continuance.

Going forward, the potential for these kinds of modified voting procedures is fascinating to consider. They could increase the likelihood of getting Security Council resolutions ex ante by making it easier for these resolutions to be terminated ex post. They could also reduce the likelihood of stretched interpretations of existing resolutions. For example, if Resolution 678 authorizing the first Gulf War had provided for its own termination through a modified voting procedure, it presumably would have been so terminated before it could have been used by the United States as an asserted legal justification for the second Gulf War. On the flip side, if such modified voting procedures become part of the practice, it is possible that they could be over-used in ways that undermine the effectiveness and stability of the Security Council. It will be very interesting to see whether these kinds of mechanisms get more use in the future.

As someone who studies U.S. constitutional law as well as international law, this issue brings to mind the U.S. constitutional issue of whether a congressional statute can delegate authority to the executive branch but provide that this authority can be terminated in the future through a mere majority vote of one house of Congress (or of both houses of Congress but without Presidential signature). The first instance of this practice that I know of occurred in the Lend-Lease Act and sparked a back-and-forth between President Franklin D. Roosevelt and Attorney General Robert Jackson over the constitutionality of this practice. Ultimately, a majority of the Supreme Court held in INS v. Chadha (1983) that Congress does not have the constitutional authority to develop modified voting procedures for terminating statutory delegations. Even since Chadha, however, the practice of Congress and the President has continued to make use of such procedures, albeit often in more informal ways. In addition, the United States uses modified voting procedures in other contexts, such as the practice-based approach of allowing the President alone (without needing two-thirds of the Senate) to withdraw the United States from treaties where this withdrawal is consistent with international law.

The U.N. Charter does not specify voting procedures for terminating an existing resolution (or other ways in which a resolution might terminate of its own accord). In practice, moreover, the Security Council has long had some flexibility in interpreting its procedures under the U.N. Charter, as demonstrated by its practice of concluding that a resolution can pass with abstentions rather than affirmative votes from P5 members. To me, as to Professor Caron in his article, it seems fairly straightforward that the Security Council has the power to use a modified voting procedure as a condition for the termination of a resolution, just as it can use a fixed termination date. Resolution 2231 is an example of how such modified voting procedures for termination can be useful, and the practice may become more common in the future.

In closing, I thank Opinio Juris for letting me contribute this guest blog post.

The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre….

Guest Post: The Joint Comprehensive Plan of Action Regarding Iran’s Nuclear Program

by Dan Joyner

[Dan Joyner is Professor of Law at the University of Alabama School of Law.  He is the author of the forthcoming book Iran’s Nuclear Program and International Law, which is under contract with Oxford University Press, and is expected in print in 2016.]

The Joint Comprehensive Plan of Action (JCPOA) agreed to by the P5+1 (Germany, France, the U.K., the U.S., China, Russia) and Iran on July 14 is a major success of international diplomacy, possibly to be credited with the avoidance of war.  It is the culmination of twenty months of negotiations between the P5+1 and Iran since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013.  See my analysis here of the JPOA when it was concluded.

The JCPOA is comprised of 159 total pages of text, consisting of 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes.  All of the documents can be found at this link.  It is a carefully drafted, well organized document, and compliments are due its drafters.

That being said, it is an extremely complex document, which attempts to address all of the issues in dispute between the parties concerning Iran’s nuclear program, from how many and what type of uranium enrichment centrifuges Iran can maintain in operation, to the technical specifications of transforming the Arak heavy water reactor into an alternate less-proliferation-sensitive design, to excruciatingly detailed provisions on the precise sequencing of sanctions lifting by the U.N. Security Council, the U.S. and the E.U.

The general gist of the JCPOA is easy enough to summarize.  It is a quid pro quo agreement under which Iran agrees to significant limits on its civilian nuclear program, and to an enhanced inspection regime by the International Atomic Energy Agency (IAEA) to verify the continued peaceful nature of its program.  In return, the P5+l agree to a coordinated lifting of the economic and financial sanctions that have been applied against Iran over the past six years by both the Security Council acting multilaterally, and the U.S. and E.U. in particular acting unilaterally.  The end goal of the JCPOA is stated to be that Iran will ultimately be treated as a normal nuclear energy producing state, on par with Japan, Germany and many other Non-Nuclear Weapon States party to the 1968 Nuclear Non-Proliferation Treaty.

The precise sequencing of the implementation of the JCPOA’s commitments was one of the most difficult issues in the negotiations, and the JCPOA has one full annex, Annex V, devoted to the issue.  The implementation plan provides for approximately a 10 year timeline over which the main commitments are to be implemented by the parties.  Technically “UNSCR Termination Day,” on which all Security Council resolutions on Iran will terminate, and on which the Council will no longer be seized of the Iran nuclear issue, is set to occur 10 years from “Adoption Day,” which is scheduled for 90 days after the endorsement of the JCPOA by the Security Council.

Sanctions relief will be staggered, but will begin in earnest on “Implementation Day,” on which date the IAEA will certify that Iran has implemented its primary commitments limiting its nuclear program.  This could occur within approximately six months from “Adoption Day.”  The final, full lifting of all multilateral and unilateral sanctions is set to occur on “Transition Day,” which is defined as 8 years from “Adoption Day,” or when the IAEA reports that all nuclear material in Iran is in peaceful use, whichever is earlier.  So the JCPOA envisions a full lifting of all nuclear-related sanctions on Iran within the next eight years at a maximum, with significant sanctions lifting to occur hopefully within the coming year.

There are a number of important legal observations to make about the JCPOA text.  (more…)

Those “Snap-Back” Sanctions in the Iran Deal Have a Pretty Big Loophole

by Julian Ku

I don’t have a profound take on the Iran Deal (full text here) announced today between Iran and the P-5+1 leading world powers. From my understanding of this agreement, I am doubtful it will work out to benefit the U.S. and the E.U., but I don’t feel particularly strongly on this point. There are more than enough commentators out there who have strong opinions on the merits, a few of whom are even worth reading!

Here at Opinio Juris, we have concentrated on the key legal aspects of the Iran Deal in previous posts.  As Duncan has explained, the Iran Deal is not a binding international agreement.  As I have noted, the Iran Review Act does not actually require Congress to vote in order to approve the deal, and it allows the President to veto any congressional vote of disapproval.  Additionally, I think a future president could withdraw from the Iran Deal without violating either international law or the Constitution. (It’s nonbinding under international law and it’s not a treaty nor an congressional-executive agreement for U.S. constitutional purposes).

In this post, I would like to focus on another interesting legal quirk. In order to sell the bill to Congress and the U.S. public, the Obama Administration has insisted on some provisions to re-impose sanctions if Iran is caught cheating.  In earlier discussions, the President has called for “snapback” provisions in the Iran Deal.  In other words, if Iran is caught cheating, the prior UN Security Council Resolutions would be “automatically” re-imposed without going back for a new vote of the Security Council.

I have been skeptical about how this would work, as a legal matter. But the Iran Deal does indeed contain language calling for something like a “snapback” sanction.

37. Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise….

I suppose it is theoretically possible for this mechanism to work, as long as the UN Security Council resolution lifting sanctions on Iran contains language incorporating this “snapback” process.  The Iran Deal, we should recall, is not a binding agreement and cannot bind the Security Council. I am not aware of similar instances where terminated UN Security Councils could be automatically revived upon a finding of non-compliance, but I am hardly an expert on this subject so I would welcome any readers who can offer some examples.

In any event, there is one more rather large loophole. Paragraph 37 goes on to insulate contracts with Iran that have already been made from whatever “snapback” sanctions that are imposed:

…In such event, these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

Since there is likely to be a “gold rush” of business rushing to sign deals with Iran upon lifting of sanctions, this exception might prove a pretty big hole in the “snapped-back” sanctions.   The expected Chinese and Russian deals with Iran for arms sales and oil purchases could survive any snapback, even if Iran was caught cheating.

So even if “snapback” works legally, it would have pretty limited impact practically.Or am I missing something?

Guest Post: Protecting Schools 80 Years After Roerich

by Bede Sheppard

[Bede Sheppard is deputy children’s rights director at Human Rights Watch.]
Eighty-years ago today, the United States became the first country to ratify the international treaty commonly known as the Roerich Pact. Actually, “commonly” is a bit of a stretch—the 80-year-old agreement doesn’t get a lot of attention these days—yet one of its key objectives has recently been in the spotlight.
The pact’s full name, the “Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments,” gives a clearer overview of its intentions. The treaty’s first article notes that “educational…institutions shall be considered as neutral and as such respected and protected by belligerents… The same respect and protection shall be accorded to…educational…institutions in time of peace as well as in war.”
Only 10 countries joined the treaty—all of them from the Americas. The Americas is also the region with the highest number of countries in which laws explicitly limit the authority of government security forces to enter higher education institutions. Most recently, many countries in the Americas have been early and enthusiastic supporters of the Safe Schools Declaration that was opened for states to join at an international summit in Oslo, Norway, on May 28-29.
The Safe Schools Declaration was drafted under the leadership of Argentina and Norway. The 47 countries that have joined so far include Argentina, Brazil, Chile, Costa Rica, Ecuador, Honduras, Jamaica, Panama, and Uruguay. The Declaration is a political commitment to do more to protect students, teachers, schools, and universities from attack during times of armed conflict. It also allows countries to endorse and commit to use a set of Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, which call upon armed forces to refrain from converting schools or universities into military bases, barracks, defensive positions, detention centers, and weapons caches.
The need to continue working for the protection of education institutions 80 years after the Roerich Pact remains clear. In the past decade, schools have been used for military purposes in at least 26 countries with armed conflict—the majority of countries with armed conflict during that time. The practice exposes students and teachers to the danger of incoming attacks if they remain in the school while they are being used, as well as the risk of harassment, rape, and forced recruitment by the soldiers inside the school. When schools are taken over completely, those buildings may still be damaged or destroyed, with long-term consequences for students’ education. The practice has also been shown to cause students to drop out of school as well as harming school attendance, new enrollment, and advancement to higher levels of education.
But 80 years after being the first to join the Roerich Pact, the United States has shown no interest in joining the Safe Schools Declaration. At the United Nations Human Rights Council in Geneva this month, the United States joined countries such as China, Cuba, Pakistan, and Saudi Arabia to snub efforts to highlight the Oslo Safe Schools Summit in an annual resolution on the right to education. (Bolivia and Venezuela sat out the vote as well.)
Another sign of the waning US interest in the goals of the Roerich Pact can be found in the new Defense Department Law of War Manual. The manual’s forerunner—the army’s 1956 field manual on the law of land warfare, noted that the Roerich Pact “accords a neutralized and protected status” to educational institutions. Disappointingly, that recognition of educational institutions’ neutrality has been dropped in the new manual, which instead describes the pact as providing only for the “respect and protection” of education institutions.
The United States should be moving forward, not backward, when it comes to improving the protection of schools during armed conflict.  UN Security Council Resolution 2225, passed in June, expresses “deep concern that the military use of schools in contravention of applicable international law may render schools legitimate targets of attack, thus endangering the safety of children and in this regard encourages Member States to take concrete measures to deter such use of schools by armed forces and armed groups.” Many states will see endorsement and use of the new Guidelines as just such “concrete measures,” and the United States should too.
On overseeing the signing of the Roerich Pact, US President Franklin Roosevelt said: “In opening this Pact to the adherence of the nations of the world, we are endeavoring to make of universal application one of the principles vital to the preservation of modern civilization.” Respecting schools and universities as neutral and protected sites is indeed vital to the preservation of modern civilization. Let’s work to achieve it before another 80 years pass.

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.