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Marrakech Express–Going Slow But Still on Track

by Daniel Bodansky

[Daniel Bodansky is Foundation Professor of Law at the Center for Law and Global Affairs’ Faculty Co-Director at the Sandra Day O’Connor College of Law; an Affiliate Faculty Member, Center for Law, Science & Innovation; an Affiliate Faculty Member, Global Institute of Sustainability,School of Sustainability, Arizona State University.]

In general, climate change conferences of the parties (COPs) can be divided into big-COPs and mini-COPs. Of course, all COPs nowadays are big in terms of the number of participants and the general air of frenzy. But some have major issues to be resolved and others are comparatively inconsequential. After a string of big-COPs, dating back to the 2009 Copenhagen conference and culminating in last year’s Paris conference, last month’s Marrakesh conference was definitely a mini-COP. Very little had be – or was – decided. The main outcome was the adoption of a work plan to elaborate the Paris Agreement’s rulebook, consisting of technical workshops, facilitated roundtables and other meetings, scheduled to wrap up in 2018.

Until the US presidential election, Marrakech had been expected to be a celebration of the Paris Agreement’s exceptionally rapid entry into force, which made the Marrakesh conference not only the 22nd meeting of the parties to the UN Framework Convention on Climate Change (COP-22), but also the 1st meeting of the parties to the Paris Agreement (CMA-1). The prospect of a Trump presidency cast a pall over the proceedings, but did not significantly affect the actual negotiations, which, for better or worse, have an internal dynamic largely impervious to external events.

Was the conference a success? As usual, the glass was both half full and half empty.

On the positive side, the conference did what it had to do, namely, to begin the process of elaborating the Paris Agreement’s rules. In contrast to the Kyoto Protocol, whose rules significantly shaped party’s obligations and implementation options and had to be finalized before countries could ratify, the Paris Agreement will be able to operate even if no additional rules are ever agreed. Nevertheless, the development of more detailed rules on transparency, accounting, and periodic global stocktakes of progress will play a crucial role in making the agreement effective. And rules are needed to operationalize the agreement’s new market mechanism to reduce emissions and promote sustainable development as well as its new implementation and compliance mechanism. In Marrakech, there was only limited substantive discussion of possible rules. Instead, the focus was procedural, resulting in the adoption of a work plan and timetable to reach final decisions in 2018.

Another positive feature of the Marrakech meeting was the reaction by states and business to the prospect that the incoming Trump Administration might walk away from the Paris Agreement. Although some feared that this might lead others to withdraw as well, leading to an unraveling of the UN climate regime, there was a general reaffirmation of the Paris Agreement by parties, cities, regional governments, business, and NGOs. In a Marrakech Action Proclamation, states declared that the “extraordinary momentum on climate change worldwide … is irreversible.” Of course, these are only words and if the Trump Administration does, in the end, withdraw from the Paris Agreement, other states may use this as a reason to do so as well. But the signals from Marrakech suggest that the Paris Agreement will move forward, regardless of what the United States decides to do.

But there were also glass-half-empty elements to the Marrakech conference. After a surge of momentum over the past year, beginning with the adoption of the Paris Agreement and continuing this fall with the Montreal Protocol amendment to phasedown HFCs, the decision by ICAO to create a market mechanism to limit emissions from civil aviation, and the early entry into force of the Paris Agreement, the Marrakech meeting represented a reversion to business as usual – that is, to the slow pace characteristic of the international climate regime.

A key question coming out of Paris was whether the Paris Agreement had finally moved the climate regime into a “normal” phase of routine, technical work, by resolving, at least for the time being, the key political issues that had bedeviled the climate regime since its inception – in particular, how to differentiate the commitments of developed and developing countries? Would the move in the Paris Agreement away from categorical, annex-based differentiation stick, or would parties seek to reintroduce annex-based differentiation in elaborating the Paris Agreement’s rules? To few observers’ surprise, the Marrakech meeting emphatically demonstrated that the Paris Agreement had not put the issue of differentiation to bed, and that it will continue to be a major source of debate in elaborating the Paris Agreement’s rules.

Two issues that preoccupied the discussions in Marrakech were whether the Paris Agreement would continue the Adaptation Fund established by the Kyoto Protocol, and whether and how to address various “orphan” elements of the Paris Agreement that had not been addressed by the work program coming out of Paris – for example, whether to establish common time frames for nationally-determined contributions and beginning a process to develop a 2025 finance goal. Neither of these issues is particularly pressing or momentous compared to the issues negotiated in the Paris Agreement. Nevertheless, the Marrakech negotiations were as contentious as ever, running into the early hours of Saturday morning – confirming the climate regime’s version of Parkinson’s law, namely, that climate negotiations expand to exceed available time.

Despite their kabuki-like character, do the annual climate COPs serve a useful function? Or they should be held less frequently – say, every two years – as some have suggested? Certainly, the actual issues decided in Marrakech do not justify the vast spectacle that COPs have become. Nevertheless, the annual COPs do provide an important focal point for climate action. They bring together a wide array of actors and focus political and public attention on the climate change problem. In Marrakesh, the conference also served as a platform for states, cities, regional governments, businesses, and NGOs to reaffirm their commitment to address climate change, despite the US presidential election. At least in the short term, that may be the most important contribution of the Marrakech conference.
For more on the Marrakech conference, see the summary by the Center for Climate and Energy Solutions, available here.

African Withdrawals Mask the Real Issue at the Assembly of States Parties 15

by Matt Brown

[Matt Brown holds an LL.M in Public International Law from Leiden University and is currently a Defence Intern for Jovica Stanišić before the MICT and worked as an intern for the Coalition for the International Criminal Court during the Assembly of States Parties. The views expressed here do not necessarily reflect those of the CICC, and he held no involvement in the budget negotiating process.]

The backdrop to the 15th Assembly of States Parties (ASP) has been dominated by the announced intent to withdraw from the International Criminal Court (ICC) by South Africa, Burundi and The Gambia. Prior to the ASP, there was almost exclusive attention on the withdrawal issue and whether discussion during the ASP would pave the way towards a reversal of these decisions to leave the Court. The importance of these withdrawals, and the need to evaluate the legitimacy of the arguments put forward by these States, cannot be underestimated, but almost under the radar, an issue of arguably equal importance has failed to garner the same detail of scrutiny and reaction. The financial strangulation of the Court by States Parties is if anything a far greater threat to the Court’s ability to fulfill its mandate than the withdrawals of three states.

To provide some context, the proposed budget put forward by the Court for 2016 was €153,328,200, (p187) which ultimately became an approved budget of €139,960,600* (p14). This demonstrates the gulf in stance, between the organs of the ICC and States, who although vocal in their support for the Court at the ASP podium, become remarkably restrained in contributing financially to the success of the institution. An initiative by eleven States, including Canada, Colombia France, Germany, Italy, Japan, and the United Kingdom to limit the Court’s budget, reflects how the Court’s biggest financial contributors are seeking to restrict the ability of the Court to expand its operations – cynically one might say into more politically sensitive situations, including Afghanistan.

This ‘dragging of the heels’ is likewise seen in comments by the Committee on Budget and Finance on 28 October who ‘noted with concern the large amount of outstanding contributions’ – €17.88 million (12.73 per cent) of the 2016 approved budget. In addition to that, outstanding contributions from previous years stood at €15.95 million, meaning ‘total outstanding contributions, including the regular budget, the Contingency Fund and interest on the host State loan, stood at €34.16 million as of 15 September 2016.’

A similar pattern has emerged this year, the Court for the 2017 budget proposed a figure of €150,238,000, (p7) but ultimately the approved budget came to only €144,587,300 (p1). Although this budget represents a rise of €4,626,700, (3.30 per cent) this overlooks the natural growth of the Court’s operations, and its increased operations as we move into 2017. Compared to 2016, the number of preliminary examinations rises to ten, with Honduras and Georgia being closed or moving to investigation, and new examinations opening in Burundi, the self-referral of the Gabonese Republic, and the reconsideration of The Comoros situation. The self-referral by the Gabon, falling after release of the proposed budget, highlights the strain that unexpected referrals can place upon the Court’s budget.

With respect to situations, in the proposed budget for 2016, the OTP outlined its expectation to be dealing with ‘twenty-two cases in eight situations’. For 2017, there is an increase to ten situations, (p10) which results in the continued increase in courtroom activity from 200 court hearings in 2015, to a projected 500 hearings for 2017 (p48). As the Court grows, the associated cost of its prior and current docket also creates a ‘snowball effect’. Time will be needed in 2017 for the progression of reparation proceedings in Lubanga and Katanga, alongside hearing the appeal in the Bemba trial, meaning that it is not just future investigations to consider in light of tightening resources, but also the progression of its existing caseload.

To provide some context on these figures and to illustrate the concern, the bi-annual budget for the ICTY in 2010-2011 was approximately €214,000,000 and the ICTR operated with a healthy bi-annual budget of €176,074,077 for the same period. Per year, these two institutions focusing on one ‘situation’ each worked with roughly two-thirds the budget of the ICC, an institution that from next year will be preoccupied with ten situations. International justice, however expensive it might be, was clearly not unaffordable to the major powers, who generously increased the ICTY budget from its humble beginnings of approximately €200,000.

A balanced assessment of the issue, of course reveals that for the 1,479,301,700 spent by the ICC since 2002, there have ‘only’ been four convictions (eight if we include the additional Article 70 convictions). Weighing in at €369,825,425 per core crimes conviction, if we were to transpose that figure to the ICTY, then the 83 convictions would have cost the ICTY €30.61 billion, a figure which is approximately €28 billion above the actual cost (p13). A few rebuttals can be advanced however, to illustrate that this ‘price per conviction’ comparison masks some of the institutional differences between the ICC, ad-hoc tribunals and domestic proceedings.

First, tribunals including the ICTY, ICTR, SCSL and ECCC have the upfront and immediate outlay of establishing investigations for their respective situations, once established and having prosecuted those responsible for the alleged crimes, the costs of the institution can plateau and then recede, rather than increase, as seen in both the ICTY and ICTR and now their move to the MICT. In contrast, as the ICC has 124 States Parties, and is involved in ten different situations, the ‘start-up costs’ that these other Courts faced are borne by the ICC each time it begins work in a new situation, including field costs, interpretation and translation costs.

Second, neither the ICTY nor the ICTR provided any opportunity for victims to present their testimony before the Tribunal outside of serving as a witness. The much broader role for victims at the ICC, through the Legal Representative for Victims and the establishment of the Trust Fund for Victims which has itself seen a 15.3 per cent increase this year, illustrates that the ICC (for better or for worse) encompasses more than a narrow conception of the trial of the accused and their subsequent detention / acquittal.

Third, the ICC and the ICTY / ICTR emerged from two very different contexts, the 1990’s Tribunals were born with immediate jurisdiction granted by virtue of the Court’s establishment. The ICC, on the other hand, experiences a far more conservative approach to case selection, the processes of preliminary examination and complementarity means that the Court is not designed to have its success measured purely by the number of cases it completes, but also whether its presence can encourage effective domestic prosecutions, and some may argue serve as a deterrent. A simple data comparison of successful prosecutions to illustrate effectiveness therefore ignores that the ‘objective’ by which effectiveness is measured against, differs between the three organisations.

The budget issue is in essence not new, but it is vital to remind ourselves that the ‘colonial critique’ or so-called ‘African bias’ that received so much attention at the ASP is a multi-faceted issue. For the OTP to be able to expand the number and geographic spread of its investigations, there has to be the adequate funding to support it – thus it raises deep questions about the reluctance of certain States to increase the Court’s budget, at a time when the OTP appears to be preparing the ground for an investigation in Afghanistan. There is an available contingency fund, which allowed the OTP to open their 2016 investigation into Georgia (p10), a cost now incorporated into the 2017 budget; but at €7,000,000 (p169), the contingency fund is not designed to cover the costs of entire unplanned investigations.

In closing, and to use the United Kingdom as but just one example, the opening and closing lines of their general debate address highlights the point that States more than ever are unwilling to back up their rhetoric with adequate financial support.continued support for, and commitment to the International Criminal Court’, only to qualify this by expressing their commitment to ‘working with others to ensure the budget is as streamlined as possible.’

The withdrawals from the ICC were a set back for the Court’s desire to be universal, but for all the hyperbole of dialogue in the fight against impunity that dominated the ASP, the internal contradictions of States Parties own positions lays bare the fact, that whilst others might not be withdrawing, support for the Court is found not just at the ASP podium, but also in its financing. The wriggling away by States Parties from funding the Court raises even more interesting questions as to their justification – especially at a time when the Court appears destined to broaden its horizons.

*For clarity – all budget references include interest and the principal repayment (installments) for the host State loan for the permanent premises. – Other budget references may vary.

Regionalization as a Blessing  or as a Curse? The EU and International Criminal Justice

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project.]

Introduction

International Criminal Justice is a tipping point. It is a bit like a scene in Woody Allen’s “Match Point” movie. The ball is in the air. It has hit the net. But it cannot quite decide where to go. It may tip to the one corner of the field, or the other.

There has been a lot of support for international criminal justice in past decades. The EU has been crucial in this regard. But there is also backlash and critique. Some wonder what’s the point of international courts and tribunals. The international community is good at creating new treaties and new institutions. But it seems to  be less good at devoting long-term attention and resources that are necessary to ensure that they are effective. Once a new institution is created, there is a feeling the job is done and that is time to move on.

After the ICC withdrawals, the question of the justification of international criminal justice is more acute than ever. Some might claim that the withdrawals are a sign that international criminal justice becomes more effective since it targets power politics. Other might say that we need to go back to the drawing board and reflect more critically on the foundations of our assumptions. Both arguments appear to have a grain of truth.

One crucial question is the role of regional organizations in international criminal justice. After the end of the Cold War, institutional development has quickly shifted from domestic to universal approaches. The role of regional institutions has long remained at the periphery.     Recently, much attention has been devoted to regionalization in the context of African critiques of international criminal justice, and the Malabo Protocol. While the Protocol has many problems (e.g., in relation to crime base, complementarity or immunities), there seems to be at least some support for the general assumption that regionalism can have benefits for international criminal justice enforcement.  Such advantages include geographical proximity to crimes, and the ability to reflect specific regional interests or priorities. In existing doctrine, some attention has been devoted to the role of regional human rights courts as “quasi-criminal jurisdictions”. But there are relatively few explorations of the role of the EU as actor in international criminal justice.

The EU counts undoubtedly among the strong champions of international criminal justice on the international plane. One of its unique strengths is that it has achieved some “unity in diversity”. All 28 EU member states are states to the ICC Statute. This allows EU members to act as a collective entity.

EU support for the project of international criminal justice cuts across institutions. The Council has enacted multiple legal instruments to strengthen national investigation and prosecution of mass atrocity crimes. Initiatives, such as the European Arrest Warrant, the European Evidence Warrant, the Framework Decision on the freezing of property and evidence, and the Framework Decision on the standing of victims in Criminal Proceedings, or the European Network of Contact Points are relatively unique on the international plane.

The EU was the first regional organization to sign an agreement on cooperation and assistance with the ICC in 2006. The European Parliament has been a strong supporter of international justice. Europeans have taken a lion’s share in the funding of international criminal justice. This is complemented by the important work of Eurojust, and of course, the broader network of the Council of Europe which extends beyond EU Member States.

The main achievements from a macro perspective are in my view two-fold.

First, European institutions have forged a certain alignment of normative preferences within the European legal space. This is an important achievement. Hardly any other regional bloc has gained a similar level of convergence, and approximation of national approaches.  Decisions under the Justice and Home Affairs Pillar have prompted various member States, like Belgium, Denmark, Germany, The Netherlands and Sweden to establish “specialized units” for the investigation and prosecution of international crimes.  EU member states score high in terms of implanting legislation. This suggests a positive correlation between EU membership and commitment to international criminal justice. The European Area of Freedom, Security and Justice remains imperfect. The EU can do better in terms of strategic coordination.  Some domestic jurisdictions feel that developments are so dynamic that it is difficult to keep up with the pace of transformation. But the degree of cooperation defies comparison.

Second, EU approaches have significantly contributed to “damage control” at the international level. Without the support of European countries, the ICC might have never seen the day in its current form. In the early years of the Court, the EU has taken a strong counter approach towards US policies towards international criminal justice. US approaches have navigated between objection under the Bush Administration to “smart power” approaches under Obama administration.

The EU has differed fundamentally. It has openly discarded US objections in a common position in 2003, while trying to foster a constructive partnership between the US and the ICC. The EU has defined guiding principles for bilateral non-surrender agreements under Art. 98 of the ICC Statute. Later, the EU members have been instrumental in securing Security referrals to the ICC in relation to Darfur and Libya, and supporting a Syria referral.

The EU approach may be characterized by three cardinal features: (i) “principled” pragmatism,  (ii) non-confrontational approaches, and (iii) a long-term vision towards international justice. These are virtues that are key to the success of international criminal justice.

In times like these, the EU serves more than ever as a fire brigade. Damage control is urgently needed. The voices of European members on the Security Council are crucial to avoid action that might hamper existing institutions. There is a need to speak up against unfair critique, and to counter false rhetoric. (more…)

Contextualizing the Debate on First Strikes

by Charles Kels

[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]

The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstein (see here), Jonathan Horowitz (see here and here), and Kevin Heller (see here and here) over the criteria for non-international armed conflict (NIAC) risks overlooking the proverbial elephant in the room: what to do about the phenomenon of states, notably the United States, invoking jus ad bellum principles to both justify and regulate the use of force?

One way of looking at Adil’s “first strike” proposal is as a solution to the problem of so-called “self-defense targeting” or “naked”/“robust” self-defense: it preserves the distinction between the jus belli branches by ensuring, in Daniel Bethlehem’s formulation, that “any use of force in self-defense [is] subject to applicable jus in bello principles governing the conduct of military operations.” Adil’s framework would, at least presumably, complicate the current White House’s efforts to distinguish between “the use of force in armed conflict or in the exercise of the nation’s inherent right of self-defense,” since the very fact of a military strike against certain non-state actors would automatically trigger a NIAC.

Of course, solving one problem can engender others. As Kevin notes, the lex lata is clearly on the side of Adil’s critics in insisting upon a substantive organization and intensity test for NIACs. Perhaps more to the point, the traditional critique of post-9/11 U.S. counterterrorism operations—particularly of the targeted killing variety—has been that a geographically unbounded conflict, whether framed as a war on terrorism or against specific terrorist groups, is essentially asserting the right to render the entire world a warzone. There is at least some (and maybe more than some) validity to this concern, as evidenced by the malleability of extralegal terms such as “areas of active hostilities” that the president can apparently turn on or off depending upon policy preferences.

This is the problem that Jonathan highlights with his Trojan horse analogy: lowering the NIAC threshold triggers humanitarian protections, but also invites wartime rules for targeting and detention. In this view, Adil’s proposal threatens to undo the hard work of those in academia and elsewhere who have persistently rejected the notion of a transnational NIAC without territorial limitations, or what they perceive as powerful states playing fast and loose with the concept of armed conflict in order to inflict lethal force with relative impunity.

Adil’s response to this critique is as brilliant as it is unsettling. Essentially (and to oversimplify), he maintains that the only real consequence of applying international humanitarian law (IHL) to first strikes is to create war crimes accountability for flagrant violations. Otherwise, the co-application of human rights law (IHRL) operates to negate deadly force as a first resort except where states have formally derogated from applicable treaties and such derogating conduct proves necessary (necessity here can only be understood in the IHRL, rather than IHL, sense). Central to Adil’s argument is the notion that IHL does not authorize conduct which it fails to prohibit: comportment with IHL is a necessary, but not sufficient, condition of lawful killing in armed conflict.

It probably comes as no surprise that as a military practitioner, I have deep misgivings about Adil’s cramped reading of IHL (or put another way, his rendering of IHL-IHRL co-application in a manner that appears to swallow IHL in seemingly every case but pitched battle on Napoleonic terrain). His conception of IHL as solely constraining, and never enabling, seems to cut against the way law in general works. To borrow Adil’s driving analogy, is a speed limit of 75 miles per hour not, at least in some way, permission to drive 70?

More specifically, while Adil astutely emphasizes that IHL does not confer “affirmative” legal authorities on states, it does privilege and immunize certain conduct that would otherwise be illegal. This is the point that Deborah made in her colloquy with Adil: IHL provides the legal framework for status-based targeting in armed conflict, not necessarily because it grants the power to kill, but because it removes the presumption that killing is unlawful in virtually all cases besides self-defense. “War,” as Telford Taylor famously wrote, “consists largely of acts that would be criminal if performed in time of peace.” (To Adil’s point that combatant immunity is inapplicable in NIACs anyway, I would only proffer that the convergence of IAC/NIAC norms may increasingly cut against this, and that better minds than mine—notably Ian Henderson and Jen Ohlin—have taken this issue head-on.)

Indeed, what Adil terms the “mistaken view” of states is, in my estimation, the very key to IHL’s cogency and moral force as a self-contained system of licenses and limitations regulating armed conflict and “alleviating as much as possible the calamities of war.” In my own limited experience and understanding, it is hard to overstate the significance of IHL as not just a set of restrictions overlapping and complementing IHRL, but as a moral lodestar critical to defining what it means to be an honorable warrior. Military lawyers tend to perceive IHL less as a barrier or obstacle telling the client what it cannot do—although it serves this function as well—and more “as a prerequisite to the meaningful exercise of power” in the first place. As Geoffrey Corn recently reminded us, IHL “serves to mitigate the potential moral corrosion that is often produced by mortal combat,” in large part by “providing the warrior with a rational and morally grounded framework” undergirding their actions.

It is notable in this regard that many of the pivotal developments in IHL have “owed less to professors, statesmen, or humanitarians, than to soldiers” themselves, resulting in a set of rules both by and for warriors that reflects the accrued wisdom of history and hardship. Armed conflict denotes a specially-defined space wherein soldiers can act effectively, decisively, justly, and—yes—violently pursuant to a unique code of conduct.

This is why it was important to rebut Ryan Goodman when he admirably, but erroneously, argued for a duty to capture under IHL by offering novel conceptions of military necessity and humanity. Under Adil’s proposal, it is worth noting, whether or not IHL imposes a least-restrictive-means requirement wouldn’t terribly matter, since IHRL would sweep in to impose such a requirement in nearly all cases. The difference between Ryan and Adil’s contentions is mostly the locus of the duty to capture—IHL for Ryan and IHRL operating in parallel with IHL for Adil—but the practical effect of undermining clarity in status-based targeting would be similar.

Adil has done us a great service with his erudite discussion shaking up the sometimes stale debate over NIAC definitions. Personally, I find his proposal to lower the NIAC threshold preferable to any suggestion of raising or complicating the categorical IAC threshold, as erring on the side of some realistically effective regulation of violence seems preferable to the prospect of an enforcement vacuum. But we shouldn’t lose sight of the fact that IHL matters, and not just because it puts war crimes culpability on the table. Armed conflict brings into play both the aspects of IHL that human rights lawyers tend to like, and also those that they don’t. Eroding the boundaries between war and peace can’t help but yield this result.

The Corrosive Risks of Lawless Leadership

by Geoffrey Corn

[Geoffrey S. Corn is Professor of Law at South Texas College of Law Houston in Houston Texas. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, retiring in the rank of Lieutenant Colonel. He served a subsequent year as the Army’s senior civilian law of war expert advisor. ]

Leadership is the sine qua non of great military forces. And the reason why is clear: because what military leaders demand from subordinates is a complete willingness to go into harm’s way, put life on the line to achieve the collective mission, and to employ deadly force on command.

There is no easy answer to the question of what attributes that define great leaders. Even if there were a list of objective criteria, the intangible qualities – qualities subordinates and enemies alike recognize – probably defy definition. There is, however, one indispensable attribute: trust. The bond of trust between leader and subordinate – a bond based on commitment to the core values that define the nation for which the military fights – is essential to genuine combat effectiveness.

For the American soldier, integrity is the glue that cements the essential bond of trust between leader and subordinate. Integrity is a core value of the U.S. Army, and demands that soldiers and leaders, “Do what’s right, legally and morally . . . a quality you develop by adhering to moral principles.” Respect for law and a genuine commitment to moral interests advanced by the law are therefore central to truly effective leadership and the development of combat effective units.

Respect for law is therefore central to the maintenance of good order and discipline in the military unit, and in that sense is a genuine, “force multiplier” for the unit commander. But true good order and discipline requires more than blind obedience to superior orders. It requires trust – trust that the leaders issuing those orders adhere to the same core value of integrity as the subordinate tasked to obey them. Indeed, it is a myth that military leaders develop units willing to endure the challenges, dangers, and deprivations of war through despotic or dictatorial leadership detached from commitment to law and morality. Indeed, any leader who thinks obedience is ensured by leveraging fear for the consequences of disobedience does not understand the time-tested link between quality leadership and combat effectiveness. Ultimately, the fear of what the subordinate is asked to do will almost always outmatch the fear of sanction for refusing to do it; subordinates confront those fears and the risks of combat that produce them not because they are afraid of their leaders, but because they trust them.

In the U.S. military, commitment to values plays a critical role in building the mutual trust and respect essential to good order and discipline and genuine combat effectiveness. Doctrinal publications that address leadership are replete with this message, emphasizing that men and women who volunteer to serve the armed forces of our great democracy expect their leaders to embrace the values that define our nation. This reflects a recognition that true motivation flows from building genuine trust between the leader and the led; trust that flows from mutual respect. This is what lays the foundation for developing a commitment to a common cause; a passionate desire to make the maximum individual contribution to the collective effort. Indeed, as an officer candidate, the first piece of, “required knowledge” I and my fellow candidates had to commit to memory and recall on demand emphasized this central truism of military leadership. It was General Schoffield’s Definition of Discipline, which warns that, “The discipline which makes the soldiers of a free country reliable in battle is not to be gained by harsh or tyrannical treatment. On the contrary, such treatment is far more likely to destroy than to make an army.”

Prior to the U.S. presidential election, numerous highly respected experts expressed significant concerns about Donald Trump’s commitment to rule of law in relation to military and national security policy development and execution. These concerns have not abated since his victory, and while the signs are still cryptic, many observers fear he, and those he has appointed to senior positions within his administration, will seek to revert back to the type of law avoidance that in many ways defined U.S. national security policy in the aftermath of the tragic terrorist attacks of September 11th, 2001.

This would be a tragic error, and some commentators, including me, have already warned of the adverse strategic consequences of such backsliding. But these potential adverse consequences are not the only reason to be opposed to the dismissal of international legal obligations related to the conduct of hostilities and treatment of detainees. Another, and perhaps even more profound reason, is the corrosive effect on our armed forces such an approach will produce.

The legal regulation of armed conflict advances a range of important interests. The most commonly referenced is the mitigation of human suffering resulting from the effort to limit the destructive and harmful effects of war to only those that are justified by military necessity. However, there is another interest that is often overlooked, an interest directly linked to effective leadership and good order and discipline: providing the warrior with a rational and morally grounded framework that contributes to mitigating the moral hazard resulting from the brutal reality of war. This is no trivial or inconsequential benefit. Men and women who have been subordinate to command directives related to warfare understand, perhaps uniquely, the consequences of unleashing mortal combat power. Indeed, the very essence of military duty is the obligation to employ deadly combat power on order; to kill on demand.

The law of armed conflict serves to mitigate the potential moral corrosion that is often produced by mortal combat. This benefit of legal compliance is perhaps best articulated by Telford Taylor, World War II Army intelligence officer, and subsequently a principle prosecutor of high ranking Nazi war criminals in his book, Nuremberg and Vietnam: An American Tragedy,:

Another, and to my mind, even more important basis of the laws of war is that they are necessary to diminish the corrosive effect of mortal combat on the participants . . .

Unless troops are trained and required to draw the distinction between military and non-military killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives . . .

As Francis Lieber put the matter in his 1863 Army regulations: “Men who take up arms against one another in public war do not cease on this account to be moral beings . . .

Law, or more importantly fidelity to the law, enables this effect, as well as the derivative benefit of building the bond of trust between superior and subordinate. Commanders and other leaders in a military unit are looked to by subordinates to make decisions that advance the objective of mission accomplishment. But there is also an expectation that they will do so consistently with institutional core values, which means subordinates expect that the tasks they are assigned, no matter how brutal or violent, are aligned with their legal obligations.

Responsible commanders understand this, and build units that are prepared to unleash combat power violently and decisively. But that willingness is built on a foundation of trust: that the orders they are executing are consistent with the core values of their military institution and with their nation. Accordingly, commanders must recognize that subordinates simply assume that when, where, and how they use that power must align with the law of armed conflict. As I discussed in an article written last year, international law has historically linked the qualification to engage in hostilities – the “privilege” of belligerency – with operating under responsible command. If all “responsible” meant in this equation were developing subordinates who obey orders, then units like the Japanese forces in Nanking or the German Einsatzgruppen would be icons of responsible commands. But we know they are not; that they are icons of leadership failure. Why? Because their obedience was disconnected from the imperatives of law and morality.

Any high level decision that compels, or even encourages disconnection from the legal underpinnings of truly responsible leadership risks corroding the bond of trust and confidence between leader and led. Even where a short term tactical or operational advantage is perceived from such policies, this must be outweighed by the long term negative consequences to good order and discipline, and to the moral integrity of the men and women who accept the burden of service. Leaders bear an obligation to protect from the hazards of war, not only physical, but also moral. As James McDonough expressed so prophetically in his seminal memoir of small unit leadership in Vietnam,

I had to do more than keep them alive. I had to preserve their human dignity. I was making them kill, forcing them to commit the most uncivilized of acts, but at the same time I had to keep them civilized. That was my duty as their leader . . . War gives the appearance of condoning almost everything, but men must live with their actions for a long time afterward. A leader has to help them understand that there are lines they must not cross. He is their link to normalcy, to order, to humanity. If the leader loses his own sense of propriety or shrinks from his duty, anything will be allowed . . . War is, at its very core, the absence of order; and the absence of order leads very easily to the absence of morality, unless the leader can preserve each of them in its place.

It is imperative that all military leaders, including our commander in chief, understand this vital relationship between law and leadership. This is why U.S. commitment to law must be manifested in every aspect of our military operations, and projected globally as a defining aspect of our global identity. Disconnecting leadership from the time-tested and credible legal foundation provided by the law of armed conflict risks corrosion of the essential bond of trust between leader and led. The decisions made by our president, and the tone those decision project, will reverberate through the force with intense magnitude. As a desktop leadership reminder that I inherited from a former commander emphasizes, “leader actions are exaggerated and repeated.” What needs to be exaggerated and repeated is commitment to law, and to the integrity and honor that such commitment manifests. And that must start with our President.

Second Thoughts on First Strikes: A Reply to Heller

by Adil Ahmad Haque

[Adil Ahmad Haque (@AdHaque110) is a Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School.  His first book, Law and Morality at War, will be published by Oxford University Press in January.]

My sincere thanks to Kevin Heller for thoughtfully engaging with my view that the law of non-international armed conflict (NIAC) applies to first strikes between State armed forces and organized armed groups. Kevin’s post raises a number of important issues, and I am grateful for the opportunity to discuss them. At the outset, I should note that my original post mostly discussed common article 3 of the Geneva Conventions and the customary law of NIAC. However, since Kevin primarily discusses Additional Protocol II, so will I.

Kevin writes that

the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities . . . is based squarely on Art. 1(2) of Additional Protocol II, … which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

Kevin goes on to write that

[t]he text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government?

In my view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a “sporadic act of violence” within the meaning of APII 1(2). On this point, I follow the ICRC Commentrary to APII, which negatively defines “isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups.” APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe “acts of violence against the adversary in offence or defence” (that is, attacks as defined by API).

Unfortunately, the ICRC Commentary goes astray when it suggests that APII only applies to “sustained and concerted” military operations. According to the Commentary,

[a]t the beginning of a conflict military operations rarely have such a character; thus it is likely that only common Article 3 will apply to the first stage of hostilities.

Indeed, common article 3 applies to the first stage of hostilities. So does APII. The ICRC’s contrary view is hard to square with the text of APII 1(1), which refers to

organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

APII 1(1) requires that a group has the ability to carry out sustained and concerted military operations, not that the group has already carried out such operations. In other words, this clause bears on the organization criterion, not on the intensity criterion.

The only term in APII 1(1) that bears on the intensity criterion is “armed conflict.” On the prevailing view, an “armed conflict” between States begins with the first use of military force by one against the other. In my view, an “armed conflict” between a State and an organized armed group begins with the first military operation by one against the other. Nothing in the text of APII 1(1) or APII 1(2) precludes this symmetrical approach.

As Kevin notes, I believe that we should interpret the term “armed conflict” in light of the object and purpose of IHL, namely to protect human beings against dangers arising from military operations. In general, we interpret all the terms of a treaty in light of the object and purpose of the treaty as a whole. If protecting human beings from military operations is the primary purpose of APII as a whole, then we should interpret every term of APII in light of that purpose. The term “armed conflict” should be no exception.

In contrast, Kevin argues that while IHL’s protective purpose should inform our interpretation of IHL’s substantive rules, it should not inform our interpretation of IHL’s field of application. I find this argument hard to accept. After all, there is no easier way to subvert the object and purpose of a legal rule than to deny its application. Indeed, according to the ICRC, “Common Article 3 . . . gave rise to a great variety of interpretations and in practice its applicability was often denied.” APII 1(1) was drafted in order “[t]o improve the protection of the victims on non-international armed conflicts” by ensuring that “the authorities concerned could no longer deny the existence of a conflict” and, with it, all the protections of IHL. Whether it succeeded in that aim is another matter.

Now, Kevin also suggests that we don’t need to look to the object and purpose of APII to interpret the term “armed conflict” because, in the language of the Vienna Convention, subsequent practice in the application of the treaty establishes the agreement of the parties that it does not apply to first strikes. It’s an empirical question, and Kevin may be right. We would have to look at State practice and see what we find. If Kevin is right, then I would indeed make the normative argument that States should change their view. As Kevin knows, I am quite fond of normative arguments.

However, I suspect that States haven’t thought this question through. If they did, I suspect that they would insist that IHL requires humane treatment of a single soldier captured by an armed group, and that IHL constrains the initial advance of a group like Daesh. Or so I argued in my initial post.

Finally, Kevin argues that my purposive approach entails that IHL should apply to military operations by State armed forces against unorganized armed groups. As Kevin puts the point, “[a]ll of Adil’s arguments against the intensity requirement apply equally to the organization requirement.”

Of course, APII 1(1) expressly states that APII applies only to armed conflicts between State armed forces and organized armed groups that possess responsible command, territorial control, and the ability to carry out sustained and concerted military operations as well as to implement APII. While the terms of APII’s organization requirement should be interpreted in light of APII’s object and purpose, they cannot be ignored.

For their part, common article 3 and the customary law of NIAC apply to all organized armed groups, irrespective of territorial control. Importantly, it is a structural principle of IHL that IHL applies equally to opposing parties and their armed forces. The legal obligations that IHL imposes on armed groups presuppose that such groups are sufficiently organized that they are capable of conforming to those obligations. Where such organization is absent, individuals must seek legal protection in human rights law, the law of genocide and crimes against humanity, and domestic criminal law. IHL is designed to protect human beings from one source of danger. Unfortunately, there are others.

First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate

by Kevin Jon Heller

I have been following with great interest the debate at Just Security between Adil Haque and Jonathan Horowitz over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a “first strike” at an organized armed group or whether hostilities of a certain intensity between the two are required. Adil takes the former position (see here, here, and here); Jonathan takes the latter one (see here and here).

Though Adil’s posts exhibit his typical brilliance, my sympathies lie with Jonathan. To begin with, as a matter of the lex lata, I don’t think the argument is even close: the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).

Adil, it is worth noting, has a different interpretation of AP II, one that does not require intensity:

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict. The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

This is a difficult position to defend. The text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government? More importantly, despite some stray practice cited by Michael J. Adams and Ryan Goodman in this post, states have simply never interpreted the AP II standard to require only organization.

Even more problematic, though, is Adil’s argument that the “object and purpose” of IHL counsels against conditioning the application of IHL on adequately intense hostilities:

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

As regular readers know, whenever I see arguments based on the supposed “object and purpose” of a treaty, I reach for my pen. All too often, such arguments simply use object and purpose to justify interpreting a treaty in a manner that specifically contradicts the intention of the states that drafted and concluded it. And unfortunately I think that is what Adil does here. He defends applying IHL to first strikes by claiming that the “object and purpose” of IHL is “to protect human beings against dangers arising from military operations” (emphasis mine). But that is misleading: the object and purpose of IHL is to protect human beings against dangers arising from military operations in armed conflict. If there is no armed conflict, IHL has nothing to say about the danger of military operations — because IHL doesn’t apply. And as discussed above, states have always insisted that a first-strike military operation is not enough to create an armed conflict — IHL applies only once there are adequately intense hostilities between government forces and the organized armed group.

Adil is free, of course, to normatively argue that IHL should apply to first strikes in NIAC because doing so would better protect human beings. I would disagree, but the claim is coherent and deserving of discussion. What he can’t do is base that claim on the object and purpose of IHL, because that would be to use an object and purpose that only applies within armed conflict to justify changing the definition of armed conflict itself. The definition of when IHL applies cannot be determined by reference to what the goals of IHL are once it applies. That definition has to be sought outside of the IHL system — and again, it is clear that states do not want IHL to apply to first-strike military operations against organized armed groups.

There is, however, an even deeper problem with Adil’s argument that the need to protect human beings from military operations counsels a definition of NIAC that does not require adequately intense hostilities: if that is true, there is also no reason why the application of IHL should require armed groups to be organized. All of Adil’s arguments against the intensity requirement apply equally to the organization requirement. If we need to protect human beings from the dangers of first-strike military operations by states against organized armed groups, surely we also need to protect them from the dangers of first-strike military operations by states against unorganized armed groups. After all, Adil’s central argument is that the inherent danger of military operations means that IHL should apply to a first-strike regardless of whether that military operation leads to any kind of hostilities.

I see no convincing response to this criticism. It is tempting to argue that the organization requirement is important because a first-strike military operation against an organized armed group is much more likely to lead to actual hostilities than a first-strike military operation against an unorganized armed group. But Adil rejects the idea that hostilities are relevant to the application of IHL. He believes IHL should apply even if a first-strike military operation meets with no response whatsoever.

Another potential response would be to argue that first-strike military operations against organized armed groups pose greater dangers for innocent civilians than first-strike military operations against unorganized armed groups. But that would be a difference of degree, not of kind — and thus far from a convincing basis for applying IHL to the former and not the latter. I’m also not sure whether the claim is even empirically sound. It is at least equally plausible to assume that states are more willing to use military force against unorganized individuals whom they can assume will not fight back (or will not fight back effectively) than against an organized armed group with the capacity to respond to a first strike with military operations of its own.

Adil’s desire to protect human beings from the dangers of military operations is laudable, but his claim that IHL should apply to first strikes against organized armed groups cannot be sustained. Not only have states insisted that IHL applies only to hostilities that reach a certain level of intensity, the idea that protecting individuals from the danger of military operations requires eliminating the intensity requirement is underinclusive. Those dangers exist for all military operations, even those against unorganized armed groups. So the only consistent — if still objectionable — position is that IHL applies to any military operation launched by a state, regardless of its object. I’m curious whether Adil would be willing to take that position.

Clarifying the Alternative: International Criminal Justice Options for African Union Member States

by Oliver Windridge

[Oliver Windridge is a British lawyer specializing in international human rights and international criminal law. Oliver is founder of The ACtHPR Monitor, an independent blog and website dedicated to the African Court on Human and Peoples’ Rights, on twitter @acthpr_monitor. In June 2014 he was one of five non-African lawyers to be appointed to the Court’s inaugural list of Legal Aid Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organization affiliated to the author.]

Following moves from Gambia, Burundi and South Africa in the past weeks to withdraw from the ICC, much thought is now being given, and keyboards worn down, by the international community as it considers what this news will mean for these countries individually, Africa more generally and of course the ICC.

I want to slightly side-step some of these issues though and address the seemingly confused narrative circulating on the African alternative to the ICC. This seems especially important given the South African Minister for Justice Michael Masutha’s first statement on South Africa’s withdrawal from the ICC which reportedly included the line “South Africa will work closely with the African Union and with other countries in Africa to strengthen continental bodies, such as the African Court on Human and People’s Rights, created to deal with such crimes and to prosecute the perpetrators, whilst at the same time continuing to participate and honour its commitments under international human rights instruments.”

Let’s be clear, the African Court on Human and Peoples’ Rights does not and will not, barring an extraordinary turn of events, ever have the jurisdiction to try cases of genocide, crimes against humanity and war crimes. The African Court is a human rights court, similar in many ways to its European and Inter-American cousins. It has jurisdiction to consider alleged violations of the African Charter on Human and Peoples’ Rights and other international human rights instruments to which the member state in question has signed up to, but nothing in the African Court’s statute, Protocol or Rules gives the African Court the power to prosecute individuals for crimes such as genocide, crimes against humanity and war crimes. To point to the African Court as an alternative to the ICC is like Germany or France withdrawing from the ICC and then pointing to the European Court of Human Rights to handle things from now on.

There is another possibility for AU member states though on the horizon and one that not only has the same jurisdiction as the ICC but actually one much greater; the African Court of Justice and Human Rights (ACJHR). At present however this court exists on paper only in the form of the Protocol on the Statue of the African Court of Justice and Human Rights and the subsequent 2014 Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Read through this second Draft Protocol and there emerges details of a mega-court that would subsume the current African Court on Human and Peoples’ Right which would then exist as a “Human and Peoples’ Rights Section”, alongside a “General Affairs” section and an “International Criminal Law” section. The International Criminal Law section would have three chambers, a Pre-Trial Chamber, a Trial Chamber and an Appellate Chamber and have jurisdiction to try individuals on charges of genocide, crimes against humanity and war crimes. Sound familiar?

There are however a number of differences between the ICC and the International Criminal Law Section of the ACJHR. To start with, in addition to genocide, crimes against humanity and war crimes, the ACJHR would have jurisdiction over a further 11 crimes including corruption, mercenarism and the trafficking in persons and drugs, creating an ambitious roster of 14 crimes under its jurisdiction (Article 28A, Draft Protocol). Additionally, the International Criminal Law Section of the ACJHR would include immunity from prosecution for serving AU heads of state or government and other “senior state officials” whilst in office- a vague definition if there ever was one (Article 46A bis, Draft Protocol). But above concerns over immunity and jurisdiction exists the real kicker; to take the ACJHR off the page and into reality requires at least 15 AU member states to ratify the amended Protocol (Article 11, Draft Protocol). Currently however, not a single AU member state has ratified the Draft Protocol and its international criminal law section- not one. This complete lack of ratification goes some way to demonstrate the clear gap that exists between those advocating for withdrawal from the ICC ostensibly to allow the AU to handle matters, and those who have actually signed up to the AU’s alternative.

So as Gambians, Burundians, South Africans and the wider world starts to come to grips with what withdrawal from the ICC could mean, let’s be clear on the regional alternative – the African Court of Justice and Human Rights and where it currently exists- on paper only.

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

Dualism is Overrated – As is Monism: A Response to Julian Ku

by Odile Ammann and Benedikt Pirker

[Odile Ammann is a PhD candidate at the University of Fribourg, Switzerland and a visiting researcher at the University of Oxford. Benedikt Pirker is a Senior Lecturer (Maître d’enseignement et de recherche) at the University of Fribourg, Switzerland, where he teaches and does research in international law and EU law.]

In his Opinio Juris blogpost of November 3, Julian Ku contends that “dualism may save the United Kingdom from Brexit.” To make this claim, he starts by emphasizing an alleged correlation between dualism and a State’s propensity to “violat[e] international law obligations by failing to enforce those obligations (usually treaties) domestically.” However, according to Ku, the decision of the High Court of Justice of England in Wales in Miller v Secretary of State for Exiting the European Union of November 3 tells us otherwise, namely that dualism “makes it harder [for a State] to withdraw from [its] international obligations.” Ku places an emphasis on the High Court’s statement that while the conduct of foreign affairs (and more specifically “the making and unmaking of treaties”) is a prerogative of the Crown, the Crown cannot change domestic law when making use of these powers. More specifically, the Crown, in using these powers, “cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights” (Miller, paragraphs 32 and 33; see also para. 89).

We argue that, contrary to Julian Ku’s assessment, dualism is overrated – as is monism, for that matter. In other terms, the domestic procedure that governs the State’s withdrawal from its international obligations does not hinge on whether a State is monist or dualist. It may be equally difficult (or easy) for dualist States to withdraw from (or to violate) their international obligations as for monist States.

Our response has three parts. First, we show that Miller is not a case about dualism. Instead, it addresses the question of the domestic procedure that applies when the State terminates an international agreement. Secondly, neither dualism nor monism encourage (or hamper) the State’s termination of its international obligations. In a third step, we draw an example to Switzerland to demonstrate that monism creates a number of challenges, too, as regards the termination of international agreements and, more generally, State compliance with international law. We also highlight the fact that the Swiss law on the termination of treaties is similar to the procedure identified by the High Court in Miller. In short, neither monism nor dualism encourage or discourage a State’s termination of its international obligations.

I. Miller v. Secretary of State is not a case about dualism

Some passages of the High Court’s decision in Miller could indeed suggest that the case is about dualism. Besides stressing that 1. the Crown cannot, when exercising her prerogative powers to make or unmake treaties, unilaterally change domestic law (para. 32), the High Court notes that 2. domestic courts do not have the power to interpret international law, since “treaties […] are not self-executing,” (para. 33) and 3. that domestic courts cannot examine the legality of the Crown’s exercise of her prerogative powers (para. 33).

Only the second point is a consequence of dualism, however. The issue at stake in Miller does not pertain to the relationship between domestic law and international law, of which monism/dualism is only one aspect besides the issue of rank and direct effect (three distinct issues that are often conflated in practice). Nor is the question one of international law (e.g. the question of the UK’s right under international law to withdraw from the EU), as the Court rightly clarifies (para. 55 f). Rather, and as Aurel Sari’s response to Julian Ku’s post already convincingly suggests, the High Court’s decision is mainly concerned about determining the appropriate domestic procedure to trigger art. 50 of the Treaty on European Union – a procedure that does not hinge on whether a given State is monist or dualist, but rather on the domestic separation of powers.

Ku’s post is pointing at a conjunction of two facts: first, due to dualism, the United Kingdom’s treaty obligations need to be implemented by a domestic statute in order to be valid in the domestic legal order; second, under UK constitutional law, this domestic statute then takes on a life of its own, as the Crown cannot alter it unilaterally. This second point, however, is not a logical consequence of dualism. Dualism per se does not make it more difficult for a State to alter its international obligations. In monist States, domestic law may create similar hurdles, as the Swiss example shows (below, III.). 

II. Neither monism nor dualism allow inferences as to the termination of international obligations under domestic law

As Ku notes, most of us have, at some point, read that dualism encourages violations of international law, while monism is conducive to compliance with international law. However, such phrases spark confusion instead of providing clarity, and they do so for a number of reasons.

To begin with, the notion of “compliance with international law” is indeterminate, especially given the absence of an international court with general jurisdiction that could clarify what States’ international obligations require in practice. Second, monism and dualism pertain to the conditions under which an international legal obligation takes effect in the domestic legal order, but have no bearing on whether State organs 1. actually apply international law (or, in dualist States, the version thereof transposed into domestic law), 2. interpret domestic law in conformity with international law, so as to avoid normative conflicts, and 3. grant international law direct effect. Courts in monist States may be reluctant to apply international law, they may emphasize rather than downplay or avoid conflicts between domestic and international law, and they may refuse to grant international law direct effect – and vice versa. In other terms, monism or dualism should not be taken to mean more than they actually do. Thirdly, the distinction between monism and dualism is not an on-off-switch: rather, it allows for a range of intermediary forms, and whether a State is monist or dualist can vary depending on the norm, source and substantive area of international law that is at stake. One example is what Melissa Waters calls “creeping monism,” i.e. the tendency of some courts in dualist States to rely on international human rights treaties although these treaties have not been incorporated into domestic law.

Importantly, the fact that a State is dualist or monist allows no inference as to the domestic procedure that applies to the termination of international agreements. As a matter of fact, a dualist State may have an analogous procedure to a monist one, as is the case of the United Kingdom and Switzerland (below).

III. A Brief Comparison with Swiss Monism

Neither dualism nor monism have a bearing on the procedure through which States can enter into international legal obligations and withdraw from them under domestic law. Switzerland provides an illustration of this. It also shows that monism does not necessarily go along with compliance with international law (taking into account the fact that the notion of compliance leaves room for indeterminacy, see above, II.). Switzerland is a monist State: contrary to the United Kingdom, international treaties do not require to be transposed into Swiss law to have effect in the Swiss legal order.

First, the Swiss case illustrates that monism does not ensure compliance with international law. Under Swiss law, constitutional amendments must only respect “peremptory norms of international law”, while they can conflict with non-peremptory norms. This risk has materialized through a number of popular votes that have triggered constitutional amendments, while conflicting with some of Switzerland’s international obligations. Moreover, due to the special system of judicial and constitutional review in place in Switzerland, federal laws that conflict with international law must in principle be applied by the courts (art. 190 of the Swiss Constitution). The Swiss Federal Tribunal accepts that domestic laws enacted with full legislative intent to deviate from international obligations take precedence over such obligations (so-called Schubert practice), although the Tribunal has later created some exceptions to this rule, e.g. in the case of domestic laws conflicting with obligations of international human rights law or under the Swiss-EU Agreement on the Free Movement of Persons.

Second, monist and dualist States may have (at least in some respects) analogous laws as regards the domestic procedure to enter into international agreements. In Switzerland, for instance, the federal government has the competence to enter into some international treaties, considered to be “of limited scope” (art. 7a para. 2 and 3 of the Federal Government and Administration Organization Act, FGAO), without an intervention of the federal parliament. In spite of the fact that Switzerland is monist, this competence has proven controversial in some instances. One example pertains to the so-called “UBS-Agreement” of August 19, 2009, initially concluded by the federal government based on its independent powers. Shortly after the Swiss Federal Administrative Court had found that the treaty would have required the approval of the federal parliament, the parliament, in a somewhat awkward pirouette, approved the treaty a posteriori.

Moreover, and notwithstanding the monism of the Swiss legal order, the issue of which authority has the power to terminate international agreements remains unclear (see e.g. Blum/Nägeli/Peters (BNP); Keller/Balazs). Some authors argue that treaties of limited scope can be terminated unilaterally by the Swiss government, while a flexible approach with parliamentary approval is advocated fort he case of „important“ treaties (BNP, S. 542 f.). Other authors consider that parliamentary approval is always required in the context of treaty termination (see the references in Keller/Balazs, footnote 107).

The possibility of terminating international agreements is often raised in the Swiss political debate (see e.g. BNP, p. 552 with further references). Already in 1988, Swiss parliamentarian Hans Danioth requested the federal government to consider withdrawing from the European Convention on Human Rights, and even as Switzerland was celebrating its 40th anniversary of ECHR ratification, some members of the federal government and of the federal parliament were still advocating withdrawal, even if their views were isolated. Swiss voters will soon be required to express their opinion on a proposed constitutional amendment based on which existing international agreements that conflict with the Swiss Constitution must be renegotiated or terminated. On the other hand, the question as to whether a specific international agreement should be terminated is rarely explicitly put to vote, presumably due to its political sensitivity and, hence, of its slight chances of succeeding at the ballot box. The practice of some political parties to avoid the issue of termination, while triggering votes that may eventually require a renegotiation of international agreements, is criticized by some as a way of misleading voters (see e.g. BNP, p. 557).

The Swiss popular vote of February 9, 2014 “against mass immigration” shows that in practice, dualist States like the UK face similar challenges as monist States. The vote led to a constitutional amendment pursuant to which immigration must be subjected to quantitative restrictions – a regulation that flies in the face of the Swiss-EU Agreement on the Free Movement of Persons. While a “Switzerleave” is not up for discussion given that Switzerland is not an EU member, the federal government has three months left to renegotiate its Agreement on Free Movement with the EU – a situation that British negotiators may find eerily familiar.

To conclude, the power of dualism to act as a safeguard against Brexit (or, more generally, against States withdrawing from their international obligations) is overrated – as is monism. What is decisive in this regard are the mechanisms in domestic law to anticipate and address conflicts between domestic and international law. In this respect (and despite the obvious differences that exist between their respective legal orders and the international obligations they have taken on), Switzerland and the UK might well have things to learn from one another in the course of the next few months.

Trump and International Human Rights #1: The Man and the Government

by Peggy McGuinness

As I recover from the gut-punch delivered last Tuesday, I plan to get back to blogging – something I have put aside for other priorities in the past years. The times and the issues are urgent, and I am anxious to engage with our readers and colleagues around the world at what I see as an extremely fragile period for the U.S. and the globe.  Trump is not a normal president-elect, and we are not in normal times.  In that spirit I plan to resist attempts to normalize Trump. This will the first in an ongoing series on the Trump transition and US engagement with international human rights.

For over 40 years, the U.S. has maintained a bipartisan commitment to the promotion of human rights around the globe.  The depth and the breadth of that commitment has, to borrow a phrase from President Obama, zigged and zagged.  It has bent to presidential national security policies and priorities, and the scope of what is meant by “human rights” has been subject to ideological interpretation by particular administrations.  But a commitment to the broad international project of human rights has remained a constant and ingrained feature of U.S. foreign policy.  Will President-elect Trump – who campaigned on a deeply isolationist rhetoric that explicitly disclaimed an interest in the human rights practices of other states – maintain this commitment?  It will take some time to fully understand the implications of a Trump presidency on US human rights policy, but I want to start by discussing two dimensions to U.S. foreign policy engagement with international human rights:  presidential policy and the human rights bureaucracy.

Let’s be frank:  We have no idea what Trump’s “policy” on human rights – or much else for that matter – will be, since he campaigned on virtually no policies in the traditional sense.  So we start with Trump himself.  We know that he is a man who has acted and spoken as a bigot, sexist and misogynist.  He is a man who admires authoritarian and anti-democratic regimes.  He is a man who has – at least implicitly if not explicitly – emboldened racists and anti-Semites among his supporters, groups that are a very small but sadly resilient element of American politics.  And he has among his closest advisers leaders of the so-called alt-right movement that fuels vile conspiracy theories, including the racist “birtherism” movement against President Obama that Trump himself used as the platform that launched his political campaign.  He has never, as far as I am aware, in his long public life, expressed genuine empathy or concern for the suffering of others.  And the scope of his business interests, the details of which remain largely undisclosed, poise him to embody as president the kind of personal corruption and conflicts of interest that the U.S. usually makes the focus of its anti-corruption and good governance efforts. He has acted and spoken in ways that would subject him, quite properly, to criticism and condemnation by the U.S. government if he were a foreign leader.  Trump, the man, is no defender of human rights.  At best, Trump is an empty vessel, a self-absorbed “bullshit artist” (hat tip:  Fareed Zakaria). At worst, Trump’s contempt for democratic norms and institutions poses a serious danger to American democracy and his rhetoric and behavior will completely undermine the ability of the U.S. to speak with any authority – moral or otherwise —  on questions of human rights.

Given the range of possibilities here, my first question is whether Trump can be constrained, in the ways Michael Glennon argues all presidents are constrained(and in the way Deborah suggested earlier), by the institutions of the government he will lead?  Throughout the executive branch, at the Departments of State, Defense, Homeland Security, Labor, Commerce and Justice, as well as the intelligence agencies and the national security staff at the White House, hundreds of lawyers, diplomats and other government officials monitor and report on the human rights practices of governments all over the world.  Hundreds more work on creating, funding and implementing projects designed to promote human rights, democracy and the rule of law .  This federal “bureaucracy of international human rights” cannot be easily or swiftly dismantled.  The central human rights institutions and networks within the Executive Branch (the Bureau of Human Rights Democracy and Labor, for example) are creatures of statute and of congressional funding priorities.  And it is not clear the Republican House or Senate are interested in eliminating or restructuring of these.  Keep in mind that funding for democracy promotion and other rule of law programs was a favorite of the George W. Bush administration.

The Republican party platform suggests that one dimension of the US commitment to human rights may receive special attention: International Religious Freedom. The US Commission on International Religious Freedom – a favorite of the evangelical right — will continue to be funded, and the platform further states:

At a time when China has renewed its destruction of churches, Christian home-schooling parents are jailed in parts of Europe, and even Canada* threatens pastors for their preaching, a Republican administration will return the advocacy of religious liberty to a central place in its diplomacy, will quickly designate the systematic killing of religious and ethnic minorities a genocide, and will work with the leaders of other nations to condemn and combat genocidal acts.

(*I am not familiar with the anti-religion policies in Canada that are referenced here, but maybe a reader can help me out.)  This is a robust statement in favor of reinforcing the UDHR and ICCPR rights that are mentioned in the 1998 International Religious Freedom Act, the statute that created both USCIRF and the office of International Religious Freedom at the State Department. But it also includes some strong language regarding genocide that would trigger  U.S. obligations under the Genocide Convention.  The platform goes on to endorse continuing engagement on anti-human trafficking programs (and, presumably, continuing the annual trafficking report required by Congress).  As to the broader question of human rights diplomacy, the platform states:

The United States needs a radical rethinking of our human rights diplomacy. A Republican administration will adopt a “whole of government” approach to protect fundamental freedoms globally, one where pressing human rights and rule of law issues are integrated at every appropriate level of our bilateral relationships and strategic decisionmaking. Republican policy will reflect the fact that the health of the U.S. economy and environment, the safety of our food and drug supplies, the security of our investments and personal information in cyberspace, and the stability and security of the oceans will increasingly depend on allowing the free flow of news and information and developing an independent judiciary and civil society in countries with repressive governments such as China, Russia, and many nations in the Middle East and Africa. 

Supporting rule of law projects that promote the “free flow of news and information” and develop “an independent judiciary and civil society” is precisely what the human rights bureaucracy within the Executive has been doing for at least three decades under presidents of both parties.  But if the Republicans want to pitch this as a “radical rethinking,” that’s fine by me.  (They may even want to share their view on a free press with the President elect.)

Taken together, I think it unlikely that the Trump administration will dismantle the bureaucracy of human rights – at least not soon, and certainly not in areas that are important to the Republican Congress.  But unlike the national security functions whose purpose lies at the heart of immediate security and safety of the American people, the human rights bureaucracy can be deeply damaged by the tone and priorities set by the President and his key foreign policy appointees – State, Nat’l Security Adviser, DHS, and the UN Ambassador, among others.  And of course, more than ever, the actual human rights practices of the U.S. at home – issues of domestic rule of law, criminal justice, gender equality, LGBT rights – will either strengthen or weaken the ability of the U.S. to practice human rights diplomacy abroad.  Appointments at the Dept. of Justice and nominees for the bench will send the clearest signal on that front.

 

 

 

Homage to California? (More on What Calexit Teaches Us About Secessionist Movements)

by Chris Borgen

Law professors should not be political prognosticators.  That’s probably something on which we can all agree.  Nonetheless, here’s my prediction: despite the current buzz (see also, this), California will not secede from the United States. Sorry, Silicon Valley Hamiltons.  However, the “Yes California” movement, spurred on by a Trump presidential victory can be instructive on the law,  psychology, and incentives behind more robust secessionist movements around the world.

As Julian mentioned in a post earlier today, the “#Calexit”  movement is seeking a referendum on secession in 2019.  The  group’s website states:

“As the sixth largest economy in the world, California is more economically powerful than France and has a population larger than Poland. Point by point, California compares and competes with countries, not just the 49 other states.”

In our view, the United States of America represents so many things that conflict with Californian values, and our continued statehood means California will continue subsidizing the other states to our own detriment, and to the detriment of our children.

Although charity is part of our culture, when you consider that California’s infrastructure is falling apart, our public schools are ranked among the worst in the entire country, we have the highest number of homeless persons living without shelter and other basic necessities, poverty rates remain high, income inequality continues to expand, and we must often borrow money from the future to provide services for today, now is not the time for charity.

This statement, and much about the movement, is like a study in secessionist politics, albeit with a sun-kissed white wine and Jacuzzis twist.  OK, that Jacuzzi quip may be snarky, but I wanted to attach an image to this idea: the yearning for Calexit, such as it is, is an example of a wish for a “secession of the successful” (to use a term political geographers John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga used to describe the attempted  Transnistrian secession from Moldova, actually). These types of separatist movements, in which the separating group wants to stop paying rents to the central government and/or keep resources within their own territory for themselves, are generally called “tax exits.”

The Transnistrian, Slovenian, and Croatian separations or or attempted secessions all had elements of tax exits. (See P. Collier & A. Hoeffler, ‘The Political Economy of Secession’, in H. Hannum & E. F. Babbitt (eds), Negotiating Self Determination (2006), 46 (concerning Slovenia and Croatia)). This is not even a solely a phenomenon of nation-building.  In the U.S., we have even had new towns made up of wealthy neighborhoods that separated themselves from exiting municipalities over tax allocations.

Perhaps the best analogy, though, is Catalonia.  Relatively wealthy,  a large export economy, and the hub of creative industries in Spain, Catalonia even looks like parts of California (or vice versa). A common complaint is that wealth generated in Catalonia is redistributed by the national government to regions that are economically weak.

Now, here’s what the Calexiters argue:

Since 1987, California has been subsidizing the other states at a loss of tens and sometimes hundreds of billions of dollars in a single fiscal year. As a result, we are often forced to raise taxes and charge fees in California, and borrow money from the future to make up the difference. This is partly why California presently has some of the highest taxes in the country, and so much debt. Independence means that all of our taxes will be kept in California based on the priorities we set, and we will be able to do so while repaying our debts and phasing out the current state income tax.

You can’t state more clearly that a tax exit is a significant motivating factor for Calexit.

So, if a majority of Californians say “yes to California,” do they have a right to become their own country under domestic law or international law?

Julian answered the domestic law question in his post.

As for international law, the right to self-determination is described in Article 1 of both the International Covenant of Civil and Political Rights Covenant and the International Covenant on Economic, Social and Cultural Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, while Catalans, for example, can make a credible argument that they are  a distinct people with its own language and culture and a heritage as a significant nation in European history, Calexiters are mainly upset about the recent election and would like to hang on to more tax revenues.  Those are disputes over policy, but not claims of an independent national identity.

Regardless, since the birth of the United Nations, diplomats and jurists emphasized that a right of self-determination does not provide a remedy of secession outside of the context of decolonization. A broad right to secession would have clashed with a cornerstone of the UN, the territorial integrity of states. Outside of the context of decolonization, the right of self-determination for communities that are within already existing states is understood as a right to “internal” self-determination: the pursuit of political, cultural, linguistic, and other rights within the existing state (in this case, the U.S.).

However, secession is not in and of itself illegal under international law (although it may be linked to an act that is breach in international law, such as a military intervention by another state: think Russia invading Georgia to assist South Ossetia.)

While secession may be neither a right nor illegal under international law, secessionist acts are usually illegal under domestic laws.  Taken together, whether or not a secession is successful begins as a domestic political struggle, framed by the legal system of the pre-existing country and sometimes implicating international law due to intervention by other countries (or if the secession becomes a non-international armed conflict, but that’s another story).

All this sounds quite exotic in the context of some tech industry founders applying their credo of “disruption” to national politics. (I’m just waiting for the first Calexiter to say he or she aims to “break shit.”)  The short answer is that there is no right for California to secede under either domestic or international law.

However, the rhetoric of self-determination is enticing to would-be nation-builders and Calexiters make many of the same mistakes as other tax exit secessionists:

First, they assume there is a clear path to secession, when that is rarely the case.  Talk to the Catalans about this.  They have mustered hundreds of thousands of people in the streets in (more…)