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Guest Post: A Response to Kevin Jon Heller

by Nimrod Karin

[Nimrod Karin is a J.S.D. candidate at New York University School of Law. From 2006 to 2012 he served as a legal adviser to the Israel Defense Forces at the International Law Department of the Military Advocate General’s Corps’ HQ, and from 2012 to 2013 he was the Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations.]

Thanks so much for the kind words, Kevin, and even more so for the interesting push-back. I confess that a reader of an early draft of my post cautioned me against using the term “lawfare,” although for different reasons than those Kevin noted. Now I realize I should’ve given this comment more thought, but at the same time I’m very pleased to have helped generate the side-discussion over Kevin’s use of the term “bravery,” which is fascinating in itself.

In my original post I wrote that “lawfare” is a Palestinian prerogative, and therefore I clearly think that it’s both politically and legally legitimate, and so I can’t think that it has such negative connotations as Kevin apparently thinks I do. In fact, I did mean “lawfare” in the sense Kevin’s discussants (Dov, el roam, and Mendieta) are using it: “lawfare” as strategic utilization of the law, which for me isn’t negative but rather value-neutral, and this is why in the post I contrasted it with “the quest for justice” or “embracing the law.” Strategy is simply neither of those, just as it isn’t “good” or “bad” – Strategy is only successful or unsuccessful. And as my original post indicated, to me the only plausible strategic role for the ICC in the Israeli-Palestinian conflict is as “the (legal) straw that broke the camel’s (political) back”. Only time will tell whether this is in fact a successful strategy for the Palestinians.

As with most strategies, this latest Palestinian move carries risk, not only of failing but also of backfiring, exactly as Dov put it. And this is what Kevin apparently deems to be “bravery,” and that’s because (1) the ICC process is uncontrollable and (2) it is likely to implicate Hamas as well. At first blush I thought that in this context Kevin’s use of “bravery” stands for selfless, non-strategic risk-taking, on behalf of some higher or noble cause. This would mean Kevin does see the Palestinian ICC bid as primarily driven by “justice” or “rule of law” considerations, in which case Kevin and I substantively disagree. However now I think that Kevin’s using “bravery” in its dictionary form, i.e. doing something incredibly risky (for whatever reason), perhaps even unreasonably dangerous given the possible reward, and maybe even a “Samson Option” type of last resort (as melodramatic as it may sound). I think this meaning of “bravery” conforms to the value-neutral charchter of the “lawfare” definition, which means Kevin and I agree on the principle, and then we can ask whether the Palestinian move is strategically sound given the well-known thinness of the line separating bravery and stupidity.

The question therefore becomes just how risky the Palestinian ICC bid really is, and how risky the Palestinians thought it was when they made it, and we can only speculate with regard to both of these questions. My educated guess here is that the ICC bid isn’t that much of a risk for the Palestinians, or at least that it’s not perceived as such by the Palestinians, least of all by the relevant decision-makers, i.e. Abbas and his concentric power circles of PA-PLO-Fatah. I think that by now it’s more than obvious that for that side of the Palestinian internal conflict the best possible scenario is an international cop stepping in to take care of Hamas. If Hamas leaders ever get indicted by the ICC, Abbas would be finally free of the whole unity charade, and at absolutely no internal political cost for him, because Abbas wouldn’t face the dilemma of whether or not to extradite suspects or accept external investigation – Abbas has no de facto authority or control whatsoever over either the suspects or the actual “scene(s) of the crime(s)”. This means that the “Abbas side” is not only strategically superior in this respect, but a free-rider; and as I mention in the post, this might not have been so easy for the “Abbas side,” if the new ad hoc declaration had stuck to the July 1, 2002 date for retroactive temporal jurisdiction – because this might have put some PA/PLO/Fatah leaders in the path of the ICC due to their activities during the Second Intifada.

The way I see it, the only real backfire risk for the (relevant) Palestinians comes from Israel, where possibilities are endless when it comes to overreaction. I can’t tell of course if the Palestinians are simply dismissive of this risk, or if they’re fully aware and think the possible reward outweighs the risk (perhaps only in the cynical sense of cutting off the nose to spite the face), or if the Palestinians are realistic with respect to both risk and reward, but also truly desperate, as el roam seems to think. I guess that it’s a mix of all three.

No, Going to the ICC Is Not “Lawfare” by Palestine

by Kevin Jon Heller

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

Does President Obama Need Congress’s Approval to Sign a Nuclear Deal with Iran? Can Congress Force Him to Get Their Approval?

by Julian Ku

The fight between President Obama and Congress over Cuba policy is nothing compared the brewing struggle over a U.S.-Iran agreement over Iran’s nuclear program. I noticed this little foreign affairs law nugget today from the WSJ’s report of this ongoing struggle (emphasis added):

In the Senate, Mr. Menendez, of New Jersey, is co-author of a bill that seeks to impose new, escalating sanctions on Tehran if negotiators fail to conclude an agreement limiting Iran’s nuclear program before the end of June, the diplomatic deadline.

A second piece of legislation, promoted by the committee’s new chairman, Sen. Bob Corker (R., Tenn.), seeks to give Congress the power to either approve or reject any nuclear agreement reached with Tehran.

Senior administration officials who testified before the committee said the White House would oppose both bills.

Deputy Secretary of State Antony Blinken said the White House doesn’t view an agreement with Iran as a treaty that requires Senate approval, but a matter of “executive prerogative.”

In general, I think the President has broad discretion under U.S. statutes to impose or lift sanctions on Iran, and although I haven’t looked at the Iran sanctions in detail, I bet the President has broad powers to waive sanctions without going back to Congress. The White House is certainly acting like that’s the case, although the devil is in the details.

Is Boehner’s Netanyahu Invite Unconstitutional?

by Peter Spiro

John Boehner has invited Bibi Netanyahu to address Congress. There’s a modern tradition of foreign leaders appearing before the legislature (list here). I’m willing to bet that every single one of those appearances was pre-cleared with the State Department or White House in advance.

I’m no student of Middle East politics, but it’s seems pretty clear that the the White House and the congressional GOP leadership are at loggerheads on US policy here and that the Boehner invitation is meant to advance the GOP (and Israeli) position on Iran. In the past, when members of Congress have gone freelance on foreign policy there’s been a tradition of waving around of the Logan Act, which provides:

Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

It happened most prominently when Jim Wright played footsie with Nicaragua’s Sandinista regime in the 1980s. It was suggested as a problem as recently as 2007 when Nancy Pelosi visited Syria against Bush Administration wishes. As conservative commentator Bob Turner argued in a Wall Street Journal op-ed (“Illegal Diplomacy“):

consider this statement by Albert Gallatin, the future Secretary of the Treasury under President Thomas Jefferson, who was wary of centralized government: “it would be extremely improper for a member of this House to enter into any correspondence with the French Republic . . . As we are not at war with France, an offence of this kind would not be high treason, yet it would be as criminal an act, as if we were at war . . . .” Indeed, the offense is greater when the usurpation of the president’s constitutional authority is done by a member of the legislature — all the more so by a Speaker of the House — because it violates not just statutory law but constitutes a usurpation of the powers of a separate branch and a breach of the oath of office Ms. Pelosi took to support the Constitution.

No intent here to compare Netanyahu and Assad, but the logic of presidential control applies in both cases. (This isn’t about actual prosecution under the Logan Act. No one is ever actually prosecuted under the measure; it’s more a focal point for highlighting structural aspects of foreign relations.) In both cases, presidential powers are “embarrassed” in the terms of Curtiss-Wright. Will the Wall Street Journal take Boehner to task for his move? Somehow I doubt it. (For that matter how could constitutional originalists square this with the Framers’ intent? No head of a foreign state appears to have addressed Congress prior to 1919.)

The White House has called the Boehner move a breach of protocol. If this were happening beyond the political anomalies of the Middle East, I wonder if it might be using some stronger language. In any case the episode will set a precedent for congressional bypass of executive branch foreign policy in interacting, fairly formally, with foreign government leaders. (Will the Speaker host something like a state dinner for Bibi?)

Mind you, I’m not sure it’s a bad precedent (again, leaving aside policy particulars of the ME situation). It’s a fact of life that governmental components are now semi-autonomous foreign policy players in a way that would have been unimaginable in the 18th century. The constitutional custom, norms, “protocols” — whatever you want to call them — are catching up to those realities. Presidents will just have to learn to deal with the new tools of foreign policy dissent.

UPDATE: More thoughts from me on this here. On the originalism point, don’t take it from me, take it from Mike Ramsey, easily the leading expert on originalism in the context of foreign affairs. The VC’s David Bernstein, a consistent Israel/Netanyahu/GOP backer, is also on board in thinking there is a constitutional problem.

Does President Obama Need Congress to Lift the Embargo on Cuba? Yes.

by Julian Ku

It looks like a big showdown is brewing between the President and Congress over Cuba policy (Here comes 2016 presidential candidate Rubio!).  Some legal commentators have argued, however, that President Obama already has the legal authority to lift all or most of the Cuba embargo without any further action by Congress.  Robert Muse, a lawyer whose practice is all about Cuba sanctions law, has stated that the President has very broad discretion to lift most of the restrictions on trade with Cuba without further congressional action. Is he right?

I am not Cuba sanctions law expert, so it is possible I am missing something.  Since the bulk of the Cuba sanctions are found in regulations issued by the Treasury Department’s Office of Foreign Assets Control pursuant to the Trading with the Enemy Act, it would seem like President Obama could indeed lift those sanctions by simply withdrawing those regulations.  The TWEA has never been read to require sanctions, and President Carter lifted similar sanctions on China without Congress in 1979.

On the other hand, Congress has also enacted two Cuba-specific statutes: the Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091 (“Helms Burton). The latter appears to codify” the OFAC regulations on Cuba that were initially issued under the TWEA. See Section 102(h) (“Codification of Economic Embargo.– The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of this Act.”).  Section 204 in turn “authorizes” the President to lift sanctions only after submitting a determination to Congress that a transitional government in Cuba exists and that the lifting of sanctions will contribute “to the stable foundation for democratic government.” There is also the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211, which imposes further limitations on financial transactions with Cuba and allows no Presidential waiver.

It is worth noting that President Clinton expressed some reservations about the impact of Section 102(h) when he signed the Helms-Burton Act, stating that it”could be read to impose overly rigid constraints on the implementation of our foreign policy.” But Clinton didn’t suggest imposing conditions on when the President could lift sanctions actually violated the Constitution.  Since I assume Congress is the source of the authority to impose sanctions in the first place, it seems reasonable that Congress could impose conditions on when those sanctions can be lifted.  Any argument that those conditions themselves are unconstitutional would be a remarkably aggressive legal argument.

So I don’t think the calls from some quarters for a unilateral lifting of the embargo on Cuba is supportable as a legal matter.  In fact, there are good reasons to doubt the legality of the loosening of sanctions already announced by OFAC.  In any event, there will be lots of legal skirmishing over the next few months on this front. It will be interesting to see if President Obama ever pulls out the “presidentialist” card and tries to argue some of these sanctions laws violate his constitutional authority.  I would doubt it, but then again I never thought he would engage in a separate war in Iraq and Syria with ISIS and change US immigration law without Congress either.

 

International Law as Behavior Symposium: An Introduction

by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]

This past November, the University of Georgia School of Law and the ASIL International Legal Theory Interest Group convened a book workshop on “International Law as Behavior,” at Tillar House, ASIL’s headquarters in Washington, DC. The workshop brought together scholars working in variety of different fields, including anthropology, behavioral law and economics, constructivist international relations theory, organizations theory, rational choice, social psychology, and sociology, to discuss how these approaches might best be applied to the study of international law, how these approaches can complement each other, the opportunities and challenges of working across these fields, and the development of a common language and tools to study how international actors actually behave. Participants included Anne van Aaken (University of St. Gallen), Elena Baylis (University of Pittsburgh School of Law), Tomer Broude (Hebrew University Faculty of Law), Adam Chilton (University of Chicago School of Law), Sungjoon Cho (IIT Chicago-Kent College of Law), Jean Galbraith (University of Pennsylvania Law School), Ron Levi (University of Toronto Global Affairs and Sociology), Tim Meyer (University of Georgia School of Law), Galit Sarfaty (University of British Columbia Faculty of Law), and Kathryn Sikkink (Harvard Kennedy School). A book based on presentations at the workshop that I will be editing will follow.

The workshop and book arise out of an intuition that there is more international legal scholars can learn from sophisticated work on legal behavior developing in other disciplines and more that scholars drawing on those disciplines can learn from each other. International law and legal scholars have long borrowed from a variety of disciplines to help understand the functioning of the international system. Important work on international law, including work of the New Haven and English Schools, has drawn on Law & Society, Anthropology, Constructivism, Linguistics, and Sociology. Drawing on international relations and economics, scholars have invoked principles of rational design to explain the shape of international agreements and international organizations and the choice between hard and soft law. Economic analysis has helped explain cooperation and compliance. Most recently, international law scholars have begun to draw insights from behavioral law and economics and psychology.

Instead of informing and enriching each other, however, these varied approaches have often developed in parallel and isolation, siloed off from the insights of the others. Drawing from distinct fields with their own languages and methods, scholars pursuing these approaches have often ended up talking past each other – if they spoke to each other at all. (There are obviously exceptions to these trends, including contributors to this project; readers of these posts know who you are.) The goal of this workshop and the edited volume to follow is to begin to bridge those gaps and foster the conversation between methods and approaches that might form the foundation for a study of international law as behavior. How do international actors actually behave and what drives their behavior? How and when is their rationality bounded by psychology? How do they operate as members of groups and recipients of culture? How do they write and follow organizational scripts? Dialogue between these approaches should only help to enrich all of them, suggesting new paths, blindspots, and even wrong-turns for each. Some of these methods will fit together well; others, whether because of initial assumptions or research styles and demands, may not. And, different approaches may have an advantage depending on the specific questions about international behavior being asked. But it is exactly these questions that we hope to explore.

Over the next few days, Galit Sarfaty, Jean Galbraith, Tim Meyer, Elena Baylis, Tomer Broude and I hope to give you a flavor of the presentations and conversations at the November workshop. Thank you to Opinio Juris for allowing us to showcase some of this project here. We look forward to hearing your thoughts and to kicking off Opinio Juris’ tenth year in style!

What Are International Law’s “Must Reads” from the Past Decade?

by Chris Borgen

In a comment to a recent post, Patrick O’Donnell noted a post from the first year of Opinio Juris in which I had taken a crack at starting a list of the “must reads “of international law. I wanted to get a discussion going over what should be the key scholarly texts in our field. Opinio Juris readers made significant contributions and suggestions to the list.

Returning to this discussion, are there any “must reads” that we should add from the last ten years: articles, books, blog posts? What were the any earlier texts that we missed?

As Peter mentioned in his post, international law is constantly expanding breadth and drilling down in depth, such that there are now relatively few generalists. It may be that the moment has passed where one person could have have deep expertise across the whole of the field.

I wonder if the “must reads” on international law will be less and less about “international law” in general, but rather be deep dives into a particular substantive areas. My guess is that as international law itself is flowering, the list of “must read” texts is also growing as there are important texts across an ever-widening spectrum of international legal theory and practice. But now some (perhaps most?) of the “must reads” might not be “must reads” for everybody, but for anybody interested in a certain area of our profession.

If you have any suggestions as to “must reads,” either generalist texts or in a particular sub-field, please let us know in the comments to this post or via Twitter to @Chris_Borgen and @OpinioJuris with the hashtag #OJ10 (we may then post them in the comments section to the post).

I have a few initial (and non-exhaustive) suggestions from the last decade. They are texts that I return to time and again for their perspectives and insights. With the following selections to start things off (as well as the original list from 2005), I look forward to any other suggestions the Opinio Juris community may have!

General Texts or Treatises

James Crawford, The Creation of States in International Law (Oxford 2d ed. 2006)  A remarkable compendium of analysis of the international law of statehood and sovereignty.

James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge 2002). This should have been on the original list back in 2005. A key reference to an important project in international law.

Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (.pdf) (13 April 2006) UN Doc A/CN.4/L.682 and the accompanying Analytical Study (.pdf). Much the this post is built on the assumption that international law is expanding, becoming more institutionally complex, and deepening. But is the proliferation of law and institutions also leading to legal fragmentation? This has been a much-debated topic since at least the 1990’s. The ILC’s report, finalized by Martti Koskenniemi and the related study, have been much-debated and remain key resources in thinking-through this important topic.

The Oxford Guide to Treaties (Duncan Hollis, ed.) (Oxford 2012) At the risk of being accused of cheering for the home team, I want to note this volume that Duncan edited because it is a particularly significant contribution to the law of treaties, with 25 essays by many of the leading scholars and practitioners in the field as well as a sort of “bird-watcher’s guide” with examples of treaty clauses. (Truth in advertizing, I have a short piece in this book. No, my own chapter is not a “must read.”)

Legal History

The Oxford Handbook of the History of International Law (Bardo Fassbender and Anne Peters, eds) (Oxford 2012). A deep survey of the history of international law in and across countries and cultures. It goes beyond international legal history as European history and widens the focus to encompass comparative legal histories and how different international legal traditions encounter and interact with each other. Plus a section of legal biographies. A fascinating and much-needed resource.

 

From Strawberries to Sony Pictures

by Duncan Hollis

One of my first posts with Opinio Juris remains one of my all time favorites — Strawberries versus Skin Cancer.  Looking back, that post marked a transition point for me as a scholar and an academic; in it, I began to allow myself to think more critically about my former employer, the U.S. State Department, even as I remained loyal to its employees and their mission. Certainly, the post benefited from my work on the Montreal Protocol while I was in the Legal Adviser’s office, but I also began to feel free to call out U.S. non-compliance where I saw it (and to flag the politically motivated rationales that lay behind it).  At the time, I figured this sort of post would typify my new academic self — detailed doctrinal analysis of specific treaty regimes especially in the environmental arena.

As it turns out, my assumption proved only half right.  True, I’ve ended up spending a lot of time thinking about treaties and their alternatives; it remains a core focus for my blogging and scholarship. But along the way, blogging also brought new lessons and served as a catalyst for my career in ways that I could never have anticipated in 2005.  What follows are nine takeaways from my blogging these last nine years:

1) Somehow I became a scholar of cyberspace, particularly questions of how to govern over (and within) this medium.  For those who have known me for a while, this is pretty surprising.  Until 2007, I openly described myself as a Luddite; my only claim to cyber-expertise was my (small) role in negotiating the final clauses of the Cybercrime Convention.  Today, I still can’t code, but I do think the experience of blogging gave me enough self-confidence to take advantage of opportunities that came my way to opine on how international law translates into cyberspace and offer some new ideas for dealing with cyber insecurity.

2) People find cyberspace issues really interesting; I had multiple friends and family ask me if I was going to blog about the Sony Pictures Hack (I didn’t).  In contrast, no one ever asks me to blog about treaties.  This makes me a little sad sometimes.

3) I love treaties; I like blogging about treaties, hosting symposia on treaties and treaty interpretation, drafting lists of the best treaties, and calling out those (e..g, the Supreme Court) that seem willfully ignorant of treaty terminology and processes.

4) International lawyer humor is not a thing, despite my semi-regular efforts to make it a thing.

5) International lawyers love underdog efforts to create a new state, especially if it’s a small pacific island.

6) I can never blog more than once a week, and I remain in awe of those who toss off daily blog posts (cough, Kevin, cough).  At least once each year, I’ve made a resolution to blog more.  But don’t hold your breath; I seem to be slowing down the pace of my blogging rather than speeding it up of late.

7) Major writers and Hollywood producers need international law consultants. For those of them reading this, e-mail me.  We still need to talk.

8) Opinio Juris has helped make the “invisible college” more collegial.  I’ve met so many people through blogging and credit it for starting several friendships that formed here on-line or via some in-person conversation about my blogging.  Meanwhile, Opinio Juris has become a place where we can opine on the state of the profession; celebrate our champions, and mourn the passing of our giants.

9) Blog in haste, regret at leisure.

Being a law professor can be an isolating experience, but Opinio Juris has done so much to make me feel part of a larger community; it’s made me appreciate that, whatever our substantive disagreements, there is among my co-bloggers and so many of our readers a passion for international law (both its potential and its pitfalls).

Let me close with a thank you to those readers that actually care about treaties (or cyberspace for that matter).  It’s your interest and dedication that make this enterprise worthwhile and what keeps me doing it (even if I don’t do it enough — see comment 6).  You’ve helped make this blog what it is and you offer the promise of it continuing to grow and flourish in depth and breadth for years to come.

How the Legal Blogosphere Has Changed After Ten Years of Opinio Juris

by Julian Ku

I want to mark our Opinio Juris anniversary with some musings on how the legal blogosphere has changed in the decade since Chris, Peggy, and I launched this site. When we began, there was already a pretty robust universe of legal blogs.  But law blogs were still pretty much hobbies rather than serious professional publications.  Chris, Peggy and I were writing for each other and our friends,and the blog may have seemed more like a convenient forum for long-distance communication.

In the early days, it was enough to simply link to stories and articles in corners of the internet that most mainstream papers wouldn’t have noticed.  I remember linking to reports of Iraq’s accession to the ICC, way before most news media reported on it.  I developed an early ongoing obsession with the legal battle over Japan’s whaling practices, way before reality TV and the ICJ case made it mainstream news.   Sometimes, we would take random shots at celebrities for their lack of understanding of international legal issues but mostly just to try to get attention.  I challenged Angelina Jolie, for instance, to rethink her support for international criminal justice (and I have some reliable sources tell me she actually read the post at some point). I think Opinio Juris still can serve an important news function for specialized stories most people don’t care about, although much of that has been taken over by our fabulous Twitter account.

Blogs today, especially law blogs, have become much more professional and serious.  The great advantage of law blogs is that they provide a way for detailed legal analysis to reach the public and policy-making worlds directly and immediately.  A judge at the International Court of Justice,an attorney-adviser in the U.S. State or Justice Department, and a journalist can find useful detailed legal analysis with very little effort (and all have at various points).  Journalists in particular can and have used law blogs as a quick and dirty way to canvass expert opinion on whatever legal issue their stories are intersecting. For instance, a recent Vox explainer was able to draw on our blog and others to discuss the legality of military action in Syria.   Law blogs are surprisingly important and influential, and I could not have predicted that in 2005.

For academics like us, Opinio Juris is a way for us to apply our professional analysis to current events in a way that was simply not possible before law blogs.  To be sure, some of our analysis was incorrect or mistaken (I managed to declare various ICJ judges dead when they were very much alive), but much of it became part of the larger public conversation.  For me, the blog has always challenged me to link my academic ideas to real-world events, and I am always grateful for that outlet.

I am also grateful that non-American readers continue to find our musings useful and interesting.  We remain a resolutely Americanist/ America-centered blog, but I think that actually is part of our utility to non-American readers.  We offer a certain perspective of what American academics think about international legal issues, and a particular insight into U.S.-law-heavy topics that impact the world (like the war on terrorism and the Alien Tort Statute).

But at the heart of the blog, and what continues to motivate me to write, is the chance to “talk” with my co-bloggers, guest-bloggers, and readers about things that my neighbors (or even my colleagues) find tedious or boring or over-technical.  I am curious about the world, and I cherish the existence of an online community to share this exploration with. Thanks for reading, and I hope continuing to read, for the next decade (at least!).

Guest Post: 2014 at The African Court on Human and Peoples Rights–a Year in Review

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international human rights and international criminal law, currently based in The Hague, Netherlands. He is founder of the blog The ACtHPR Monitor, on twitter @acthpr_monitor. In June 2014 Oliver was one of five non-African lawyers to be appointed to the Court’s inaugural List of Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of any organisation affiliated to the author.]

Many readers will be familiar with the African Court on Human and Peoples Rights. For those who are not the Court was established by the African Union to hear cases relating to alleged violations of the African Charter on Human and Peoples Rights (Charter) and other international human rights instruments. The Court is based is in Arusha, Tanzania and is separate to the African Commission on Human and Peoples Rights. What follows is a summary of the Court’s activity in 2014.

March: the Court’s 32nd Ordinary Session

At its 32nd Ordinary Session, the Court conducted the public hearing in Konate v. Burkina Faso. The Applicant, working as editor of the weekly newspaper L’Ouraganin, published two articles which lead to his convicted for defamation, public insult and insulting a magistrate. He was sentenced to twelve months imprisonment and handed large fines. The Applicant argued that his conviction and punishment contravened his right to freedom of expression as protected under Article 9 of the Charter and Article 19 of the International Covenant on Civil and Political Rights.

The Court also rendered three judgments. The first, Zongo and others v. Burkina Faso, related to the alleged assassination of Norbert Zongo an investigative journalist and Director of the weekly paper l’Indépendent and three colleagues in December 1998. The Applicant argued that following the alleged assassination the local authorities had failed to mount a proper investigation and failed to act with due diligence in seeking, trying and judging those involved in the death of Zongo and his companions. In only the second case to be decided on its merits, the Court found that Burkina Faso had indeed failed to take measures to ensure the Applicants right to be heard by a competent national court, therefore violating articles 1, 7, 9(2) of the Charter and Article 66 of the ECOWAS Treaty. Reparations are to be decided after further submissions from the parties.

The second and third cases, Omary and others v. Tanzania involving an application by former East African Commission employees who had not received promised reparations, pension and severance benefits when the then East African Community was disbanded in 1984, and Chacha v. Tanzania, concerning the Applicant’s alleged unlawful arrest, detention, charging and imprisonment contrary to Tanzanian laws, were both declared inadmissible due to the Applicant’s failure to exhaust local remedies.

The Court also considered its first application for interpretation and review of a previous Judgment. In June 2013 the Court had found the case of Mkandawire v. Malawi inadmissible due to the Applicant’s failure to exhaust local remedies. The Applicant made an application to the Court for review and interpretation of the Judgement. The Court ruled that the application for interpretation could not be entertained because “interpretation” as found in the Protocol and rules of the Court can only be sought for the purposes of executing a judgement. Since the case was dismissed due to non-exhaustion of local remedies there was no judgement to interpret. As to the application to review, the Court found the application inaccurately cited key paragraphs of its earlier judgement which were the subject of the review application. In addition evidence provided by the Applicant which he argued was new was known to him at the time the Court handed down its judgement and was therefore neither new or evidence.

June: movement toward the African Court of Justice and Human Rights

The Court, or at least the future guise of the Court, came into the spotlight in June after the African Union met in Malabo, Equatorial Guinea where it adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. (Incidentally, Equatorial Guinea has not signed the Protocol establishing the existing Court).

This Protocol has been the subject of much comment and debate, in particular for its amendment to Article 46A bis of the Protocol on the Statute of the Court which imparts immunity against criminal charges for acting heads of state or government and other senior state officials. We also learned a little more of the new court’s ambitious proposed structure consisting of a “general” chamber handling trade issues and conflict between states, a “human rights chamber” handling work similar to the current Court and “criminal chamber”. For more comment on the immunity amendment see Paul Bradfield’s piece here, and Mark Kersten’s piece here. A press conference by Legal Counsel for the African Union Vincent Nmehielle on the new court, including the issue of immunity, can be seen here. Please note that the press conference does not start until about 6 minutes in, so best to skip forward.

June: Mtikila ruling on reparations

Also in June, the Court rendered its first ever ruling on reparations in Mtikila v. Tanzania. The case centered on Tanzanian laws that require candidates running for local government, parliamentary and presidential elections to be members of a registered political party, effectively barring independent candidates. In June 2013 the Court delivered its judgment, unanimously finding Tanzania’s ban on independent candidates had violated the Applicant’s Article 10 and 13(1) Charter rights and, by majority, that the same ban violated the Applicant’s Article 2 and 3 Charter rights. The judgment can be read here. My summary and analysis of the case can be seen here.

The issue of reparations was postponed in order that both parties could make additional submissions. In its ruling the Court found there exists a fundamental principle of international law that where a violation of an “international obligation” causes harm, there entails an obligation to provide adequate reparation which the Court should follow and is reflected in Article 27(1) of the Court’s Protocol. The Court found that applying this principle, pecuniary and non-pecuniary damages and legal expenses were capable of being awarded by the Court, but that the Applicant had failed to provide evidence of a link between the damages and expenses claimed and the claim itself.

In addition, the Court also examined Tanzania’a compliance with the June 2013 judgment noting that in Tanzania’s reply to damages it continued to maintain that the judgment was wrong, since the law in Tanzania prohibits independent candidates from running for election. The Court expressed its “concern” at this line of argument which was compounded by Tanzania’s failure to report to the Court on the measures it is taking to comply with the Judgment. Consequently, it ordered that within six months Tanzania should: (i) publish the official English translation translated into Kiswahili at Tanzania’s expense and publish in both English and Kiswahili once in the official gazette and once in a national newspaper; and (ii) publish the Judgment it its entirety in English on an official website and remain available for one year. The Court ordered that nine months from the ruling Tanzania should submit to the Court a report ion the above measures. (more…)

Guest Post: When Should the ICC Call It Quits?

by Rebecca Hamilton

[Rebecca Hamilton is an Associate in Law at Columbia Law School, and author of Fighting for Darfur.]

The close of 2014 continued to bring bleak news for civilians in Darfur. As fighting in Sudan’s beleaguered western region increased, the UN looked to reduce its peacekeeping presence there. And this on the heels of the ICC Prosecutor, Fatou Bensouda, telling the Council that in the absence of any commitment from them to enforce the Darfur warrants, the Court would be suspending its investigative activities.

As Kevin has already noted, Bensouda’s statement is a depressing insight into the moribund state of ICC-Security Council relations (not to mention another blow for survivors of the conflict). Yet as he also observed, it is heartening to see the Prosecutor laying the blame for the lack of arrests squarely where it belongs. For too long the Council has used its Darfur referral to outsource the problem to the ICC in lieu of taking meaningful steps itself.

Beyond the immediate implications for Darfuris, the ICC, or the Security Council however, there is a broader question triggered by Bensouda’s statement, and one that commentators are yet to pay attention to: Under what conditions should the ICC Office of the Prosecutor stop its activities in a given situation?

Both academics and practitioners have spent the first decade of the Court’s existence focused largely on issues related to the OTP’s commencement of activities in new situations. But as I argue in a forthcoming article in N.Y.U. J. Int’l L. & Pol., attention now needs to be directed to the question of what principles might guide the end of its operations. Given that Bensouda’s statement marks the first time an ICC Prosecutor has publicly discussed any halt to the OTP’s activities, it is worth closely scrutinizing the rationale upon which her decision is based, and considering some of the implications should the same rationale be used consistently as the basis for the temporary or permanent cessation of OTP operations in other situations.

Good faith and cooperation

Bensouda’s statement to the Council is worth reading in its entirety as a striking example of straightforward truth-telling in a setting so often filled with obfuscating diplomatic language. But in terms of using the statement to extract criteria the OTP could use to decide whether to stop its activities in other situations, there are a few key excerpts to focus on.

The Prosecutor is clearly frustrated by the lack of arrest warrant enforcement, stating that “What is needed is a dramatic shift in this council’s approach to arresting Darfur suspects.” But her concerns also seem to extend more broadly.

“In the almost 10 years that my Office has been reporting to the Council, no strategic recommendation has ever been provided to my Office, and neither have there been any discussions resulting in concrete solutions to the problems we face in the Darfur situation.”

It seems reasonable to assume that her reference to “the problems we face” includes not only the lack of arrest warrant enforcement, but also the lack of cooperation and denial of access that has plagued the Court’s Darfur investigation. As Sarah Nouwen details in her excellent book on the ICC and complementarity, the Sudanese government has refused all communications with the Court since the first Darfur warrants were issued back in 2007.

Of particular note in the above excerpt is the focus on effort, in addition to results. The Prosecutor is seeking warrant enforcement and “concrete solutions.” Yet in bemoaning the absence of even recommendations by the Council to the Court, she also seems to suggest that a good faith effort by the Council to work with the Court throughout the duration of its Darfur investigation would have gone a long way toward convincing the OTP to continue its activities in the situation. (more…)

New Essay: The Use and Abuse of Analogy in IHL

by Kevin Jon Heller

I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ’s own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled “The Use and Abuse of Analogy in IHL,” and here is the abstract:

It is a truism to say that conventional international humanitarian law (IHL) regulates international armed conflict (IAC) far more extensively than non-international armed conflict (NIAC). In IAC, conventional IHL authorizes both targeting and detention and carefully circumscribes their use. In NIAC, by contrast, conventional IHL is silent on the authorization for targeting and detention and imposes only rudimentary limits on when individuals may be targeted or detained.

Like nature, however, international law abhors a vacuum. Many of the gaps in the conventional IHL of NIAC have been slowly filled by custom; the ICRC has concluded that 138 of the 161 customary rules of IHL now apply in both IAC and NIAC – nearly 86%. As a result, it is now common for scholars to claim that, with the notorious exceptions of the combatant’s privilege and POW status, very few critical differences remain between IAC and NIAC concerning the applicable rules of IHL.

From a positivist perspective, the gradual harmonization of IAC and NIAC through convention and custom is unproblematic, because both are formal sources of international law. Since 9/11, however, the United States has consistently taken the position that certain IAC-based rules of IHL can be applied in NIAC via a third method: analogy. The U.S. has argued, for example, that it can target members of any organized armed group that would qualify under IAC rules as a “co-belligerent” of al-Qaeda.

In assessing the legitimacy of such analogies, it is tempting to focus on whether it makes sense to apply a particular IAC rule in NIAC. Is the Haqqani Network’s relationship with al-Qaeda really equivalent to Italy’s relationship with Nazi Germany? Emphasizing the substantive “fit” between IAC and NIAC, however, simply obscures a more fundamental question: where does the U.S.’s authority to analogize between IAC and NIAC come from?

That is a critical question, for two reasons. First, targeting and detention potentially violate the human rights of the individuals they affect. As the International Law Commission has noted, it is not enough for targeting or detention to qualify as a legitimate act of self-defence under Art. 51 of the UN Charter; that targeting or detention must also be consistent with either IHL or international human rights law (IHRL), depending on which legal regime applies. Second, because all of the targeting and detention activities that occur in the NIAC between the U.S. and al-Qaeda take place extraterritorially, each U.S. use of force and each capture operation potentially violates the sovereignty of the state on whose territory it takes place.

Put more simply, by relying on analogized rules of IHL to justify expanded targeting and detention of al-Qaeda, the U.S. potentially runs afoul of a number of prohibitive rules of international law: the principle of non-intervention; the prohibition on the use of force; and IHRL prohibitions on the arbitrary deprivation of life and liberty. What, then, is the legal basis for those analogies?

This chapter’s answer is straightforward: nothing. There is no basis in international law for taking rules of IHL that exist as a matter of convention and custom only in IAC and applying them in NIAC by analogy – which means that the U.S. is systematically violating international law by relying on those analogized rules to target and detain extraterritorially.

I am very rarely happy with essays when I finish them, but I’m quite happy with this one. I’m sure many people will disagree with it, and I’ve likely made plenty of mistakes. But I think the essay addresses a number of difficult issues in IHL/IHRL that deserve further discussion. If I can provoke debate, I’ll be happy.

As always, comments, criticisms, and ad hominem attacks are welcome.

PS:  I should note that the essay was inspired by, and provides a response to, my friend Ryan Goodman’s excellent 2009 article in AJIL, “The Detention of Civilians in Armed Conflict” (pdf here). I highly recommend reading his article before reading my essay.