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Alaskans and Canada’s Transboundary Mining Pollution: Kick-starting the US-Canada Bilateral Pollution Regime

by Kenta Tsuda

[Kenta Tsuda is an attorney at the non-profit law organization Earthjustice in Juneau, Alaska. Earthjustice was involved in the Pelly Amendment process described below in the post.]

For millennia the peoples of southeast Alaska have prized the salmon harvests of the Taku, Stikine, and Unuk rivers, three transboundary waterways flowing from headwaters in British Columbia’s Coastal Range through Southeast Alaska to the sea.  Customary harvests continue today, along with tens of millions of dollars’ worth of commercial fishing.  In recent years, however, Alaskan  communities have faced a threat of potentially devastating transboundary pollution from mines in British Columbia.  Hard-rock mines exploiting gold-copper deposits in the headwaters of the three rivers would produce billions of tons of waste rock and tailings.  Each would require indefinite treatment of uncertain efficacy to prevent the poisoning of surrounding watersheds by a toxic cocktail of acidity and dissolved heavy metals.  This contamination could have population-level harms on salmon, both in Canadian reaches of these waters and on the U.S. side of the border.  Downstream communities in Southeast Alaska fear for their economic futures and ways of life, while Canadian authorities are allowing the projects to advance.  Alaskan groups now seek resolution of the dispute at the international level.  To that end, under a domestic statute they have invoked the U.S. Government’s duties to confront these environmental threats, aiming to prompt the Government’s assertion of rights held under international law.

The transboundary nature of the threat limits private legal action on the American side of the border.  The situation requires what Professor Thomas Merrill has described as a transboundary collective action regime.  As Merrill has explained, such regimes are difficult to create, however, “if some mechanism can be devised for inducing mutual cooperation, the situation is potentially a positive-sum game for all.”  In the case of the United States and Canada, a mechanism for addressing transboundary pollution already exists: under Article IV of the 1909 Boundary Waters Treaty the United States has a right against transboundary pollution from Canada.  This same instrument creates an institution to address potential violations of treaty rights, the International Joint Commission (IJC).  Under Article IX, the parties agree that “any . . . questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier” could be referred to the IJC “for examination and report.”  A referral would entail the governments of both the United States and Canada formally requesting that the commission exercise its investigative powers with respect to specific questions of rights or interests along the frontier.  Such Article IX referrals have been made many times.  Although IJC findings in response to a referral are not automatically binding, historically the parties have abided by them.  For these reasons, groups in Alaska and Canada—indigenous communities, commercial fishing interests, conservationists—as well as Alaska’s congressional delegation, and Washington’s Senators Murray and Cantwell, have requested that the State Department consider referring to the IJC questions regarding the potentiality of and means to prevent transboundary pollution from hard-rock mines in the three watersheds.  So far, both American and Canadian federal governments have demurred, suggesting that an information-sharing agreement between the state of Alaska and Province of British Columbia—which cannot be binding, and therefore includes no liability rule—might eventually yield a solution.

To encourage further consideration and engagement among federal agencies, and ultimately the Federal Government’s referral of the issue to the IJC, Alaska Native and conservation groups recently invoked a domestic legal lever to prompt an invesigation by the Department of the Interior.  The groups, including the environmental law organization Earthjustice, submitted a petition invoking Secretary of the Interior Sally Jewell’s duties under the 1971 Pelly Amendment to the Fishermen’s Protective Act.  Under this statute, the Secretary must investigate and certify to the president if foreign nationals act to diminish the effectiveness of a U.S. conservation treaty.  The petitioners describe six mine projects in the transboundary watersheds, detailing how they threaten Pacific salmon and steelhead trout—protected under the 1991 Anadromous Stocks Conservation Convention—as well as the grizzly bear and woodland caribou—protected by the Western Hemisphere Convention.  The petition requests the Department of the Interior to bring its expertise to bear upon the issue via an investigation of the mines and their environmental effects, and for Secretary Jewell to engage her colleagues in the federal executive to seek a referral of the issue to the IJC.

This developing situation demonstrates that parties to an established transboundary collective action regime must actively exercise their relevant rights and privileges to protect the interests of their citizens against transboundary threats.  It also illustrates the potential role that domestic statutory remedies can play in private actors’ efforts to address transboundary threats, even where the domestic law does not afford ample opportunity directly to address sources of transboundary pollution.

Multi-Blog Series: First Thoughts from Academia on the Updated GCI Commentary

by Kevin Jon Heller

[This is the third episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, jointly hosted by the Humanitarian Law & Policy Blog, Intercross and Opinio Juris. The first, by Jean-Marie Henckaerts, can be found here, and the second, by Sean Murphy, here.]

It is a great pleasure to contribute to this multi-blog series on the ICRC’s newly-released Commentary on the First Geneva Convention (GC I). Sean Murphy is right that GC I might seem “of lesser significance” than the Third and Fourth Geneva Conventions (GC III and GC IV) – and there is no question that IHL scholars everywhere will eagerly await the ICRC’s Commentaries on those Conventions. But that does not detract from the importance of this first Commentary, which represents a remarkable achievement in its own right. As the Introduction notes, the authors of this new Commentary had to analyze nearly seven decades of state practice, a massive and unenviable task. Moreover, they had to address some of the most contentious issues in IHL, such as the scope of application of Common Article 3 (CA 3). Indeed, I have little doubt that the Commentary’s overall Common Article 3 discussion – which runs to 907 paragraphs, approximately 800 more than its 1952 predecessor! – will attract considerable scholarly attention (and cause considerable academic controversy) in the coming years.

 

Flyer cover page - GC I launch

For my part, I generally agree with Murphy’s and Jean-Marie Henckaerts’ comments about the ICRC’s methodological approach in the Commentary. But I think Henckaerts actually underplays one of the most encouraging aspects of the ICRC’s methodology: its willingness to make liberal recourse to travaux preparatoires when interpreting provisions of GC I. Here is paragraph 49 in the Introduction:

Indeed, it seems logical for a thorough examination of all the issues to look at the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’ which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 33 and 34 of the First Convention dealing with the fate of buildings and material of medical units of the armed forces and aid societies after they fall into enemy hands.

This is a refreshing deviation from VCLT orthodoxy about travaux preparatoires being unnecessary when the “ordinary meaning” of treaty terms is ostensibly clear. As Julian Mortenson has shown, that orthodox view of the VCLT is impossible to reconcile with the treaty’s own history, becausethe drafters repeatedly reiterated that any serious effort to understand a treaty should rely on a careful and textually grounded resort to travaux, without embarrassment or apology.” Indeed, scholars all too often use a treaty’s supposed “ordinary meanings” as a vehicle to substitute their own political preferences for the will of the states that drafted and concluded it.

I also agree with Henckaerts and Murphy concerning the central role that the ICRC plays in interpreting the Geneva Conventions – the “guardian and promoter of IHL,” in Henckaerts’ words. But that role poses a danger that needs to be openly acknowledged: namely, that those who use the Commentary – soldiers and scholars alike – will be tempted to uncritically accept the ICRC’s interpretation of GC I. There is no question that the authors of the Commentary are among the world’s most expert IHL practitioners and scholars, but they are neither infallible nor objective. On the contrary, both the experts and the ICRC as an institution have political and legal commitments that cannot help but influence how they interpret GC I. That does not mean that their interpretations should be discarded. It does not even mean their interpretations should always be viewed with a skeptical eye. But it does mean that IHL scholars should be willing to challenge the Commentary when they believe that the ICRC is wrong.

To be clear, I am in no way suggesting bias or bad faith on the part of the Commentary’s authors. I am simply pointing out that interpretation is an inherently indeterminate, subjective, and political activity, which means that it matters a great deal who is doing the interpreting. And there is no escaping the fact that the members of the Editorial Committee, the ICRC Project Team, and the Reading Committee come exclusively from states in the Global North – most from states in Western Europe. Again, that does not mean that the Commentary is wrong on any particular point. Moreover, to the ICRC’s credit, the Commentary’s peer-review group, who “reviewed the drafts and provided comments in their personal capacity,” included individuals from dozens of states in the Global South. But it is nevertheless regrettable that the primary authors and reviewers of the Commentary are so geographically homogenous – especially given that the states they represent rarely if ever experience the kind of conflict that is subject to Common Article 3.

Finally, I want to flag a very odd statement in the Commentary, paragraph 10 in the Introduction:

In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.

I have no doubt this is true – but I find it somewhat troubling to know that the ICRC’s interpretation of GC I is based on evidence that cannot be subjected to scholarly criticism. I hope the ICRC will say more about its reliance on non-public information in future Commentaries, which will deal with even more controversial aspects of IHL.

Assessing the Fallout from the South China Sea Award

by Julian Ku

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!

The Chilcot Report and the Doctrine of Humanitarian Intervention

by Frederick Cowell

[Dr. Frederick Cowell is a Lecturer in Law at Birkbeck College, University of London School of Law.]

On the 6th of July the UK’s Iraq Enquiry report was finally published having taken almost seven years to complete. The process,  chaired by a leading former British civil servant, Sir John Chilcot, aimed to look at the causes and consequences of the 2003 Iraq War from the perspective of the British government. Since it was a public and not a judicial enquiry, it did not pronounce on the legality of the war but, as Sir John said in his press conference on the report, on “the circumstances under which the UK decided there was a legal basis for war were far from satisfactory.” The report raised a number of different legal issues but perhaps the most intriguing feature of the report is the implication for the doctrine of humanitarian intervention.

The 2003 Iraq war was not politically ‘sold’ on the basis of humanitarian intervention. UN Security Council Resolution 1441 (.pdf) spelt out the terms for further weapons inspections in Iraq following the weapons inspections that had been on and off since the 1991 Gulf War. The legal advice to invade Iraq that was presented to the British Cabinet on the 11th of March 2003 was based on the argument that earlier legal authority had been ‘revived’ (Vol. 6 paragraph 690 onwards [.pdf]).  This argument was somewhat overstretched and was criticised in an earlier section of the report which doubted the idea that states had a “residual right” to unilaterally enforce UN Security Council resolutions. As Dinos Kritsiotis (.pdf) argued, applying Nicaragua v US (.pdf) to the case for operation Iraqi freedom, it is important to distinguish the legality of the overt political justification for war and the legal basis for the use of force. In the 2003 Iraq War the overt legal basis for use of force under the UN Charter was highly flimsy and dependent on a stretched reading of the right to use military force under Article 42 of the UN Charter.

Though the Chilcot report did not expressly rule on the legality of the use of force the legality of regime change is a somewhat different question. As Gerry Simpson noted the notion of regime change is difficult to justify under the principles of self-defence, not least because the UK and US opinions on the validity of this argument radically diverged. The question of regime change on ideological grounds is prohibited, as the ICJ made clear in the Nicaragua judgment, but humanitarian intervention to remedy human rights abuses had, prior to Iraq, received some degree of acceptance not least when the Kosovo Commission concluded NATO’s 1999 air war was “illegal but legitimate.”  The concept of a Responsibility to Protect (R2P) was still two years away in 2003 and even when the doctrine was developed in the late 2000s it was careful not give outright support for intervention absent Security Council authorisation. The 2010 Secretary General’s report on the Responsibility to Protect was critical of humanitarian intervention saying that it “posed a false choice between two extremes: either standing by in the face of mounting civilian deaths or deploying coercive military force to protect the vulnerable” (UN SG Report 2010 Para 7). Two principles from the R2P doctrine which have often guided arguments about humanitarian intervention – is there a human rights abuse and would the intervention remedy that abuse – provide a prism through which to view the report’s findings and their relation to the doctrine of humanitarian intervention.

The human rights abuses committed by Saddam Hussein’s regime were, as the report details, a central part of the case being made by the British Government during late 2002 (see Volume 2, Section 3.4 paragraph 331). Crucially, however, this was largely secondary to the overall aim of regime change. Where the British were concerned about Saddam Hussein’s human rights abuses it was in connection to gathering evidence to prove the instability of the regime more generally (see Volume 2, Section 3.2 Paragraph 575). Kenneth Roth was fairly clear in his assessment in 2006 that human rights abuses, such as the 1988 massacre of Kurds, would not add up to a sufficiently immediate threat to justify the invasion of Iraq in 2003 in order to prevent such abuses occurring.  Indeed whilst it was clear in pre-war Cabinet meetings that Saddam was, in words of the former UK Foreign Secretary Robin Cook, “a tyrant” and a “shit,” this was not the motivation for invasion, nowhere in the Chilcot report is there a mention of a specific human rights abuse that the invasion is designed to stop. Michael Walzer in 2012 drew a distinction between intervention for purposes of relief (to stop a genocide) and purposes of repair (to change a regime) indicating that the former may still be defensible post-Iraq.

With regard to the second principle the Chilcot report was highly critical of all levels of post invasion planning noting systemic failures in several areas including the preparation of basic resources to provide security post invasion and any real plan for civil contingency in the aftermath of the invasion.  This was causally linked to the violence that broke out after the invasion leading to many thousands of civilian deaths. Kier Starmer, a former public prosecutor and now Labour Party Member Parliament, in a thoughtful piece reflecting on the Chilcot report’s findings suggested that a post-conflict plan ought to be a legal requirement for any future intervention. This helps resolve one tension at the heart of humanitarian intervention what JL Holzgrefe  described as ‘act utilitarianism’; the otherwise illegal act can be justified for its maximisation of welfare. But there is a need to actually deliver on this promise of welfare, otherwise the argument fails. This clearly was not the case in the 2003 Iraq War, as the report outlined.

Whilst not expressly commenting on the concept of humanitarian intervention the Chilcot reports findings leave little doubt that the 2003 Iraq War cannot be justified under this doctrine. The attempts by supporters of the war to frame the conflict in retrospect as a form of quasi-humanitarian intervention, examining Saddam’s appalling human rights record or the prospect of further abuses, are missing the point; the type of war launched in 2003 could not be justified under any reasonable understanding of the doctrine of humanitarian intervention, and the findings of fact in the Chilcot report support this interpretation.  The report’s finding will shape the understanding of the most contested conflict of the last half-century and the one that colours all subsequent debates on the doctrine of humanitarian intervention.

The Lawfare over South China Sea: Exceptional Rules vs. General Rules

by Liu Haiyang

[Liu Haiyang is a research fellow at the Collaborative Innovation Center of South China Sea Studies, Nanjing University, China. This post was submitted to Opinio Juris under the auspices of the Chinese Initiative on International Law, an NGO with a mandate of promoting a better understanding of international law, particularly international criminal law and justice.]

The ad hoc Arbitral Tribunal established under the request of Philippines issued its final award on 12 July 2016. The lawfare over the legal effect of the verdicts of the Tribunal between China, on one side, and the United States with its allies and partners behind the case, on the other, will change focus from the legality of jurisdiction concerning the preliminary award to the legal consequences of the final award.

Although the U.S. is not a party to the present case, it seemed well prepared for the decision. Besides a significant increase of military presence and operations, with more warships and aircraft in the South China Sea, the U.S. and its allies have also loudly raised their voices to urge China to respect the final decisions of the said arbitral tribunal. The general tone of the criticisms suggests that China’s non-compliance with the final ruling would amount to non-compliance with international law and as well as a show of contempt for the international rule of law. For its part, China has also stepped up its media campaign to defend its position of non-recognition of any ruling by the tribunal through more diplomatic efforts and academic symposiums.

While both sides may hype up or downplay the legal consequences of the ruling, the heart of the question is the legal effect of the arbitral ruling in international law. To be more specific, is the award legally binding? How could the decision of an arbitral tribunal be implemented in international law? Is the non-recognition and non-implementation of the decision of an arbitral tribunal equivalent to non-compliance with international law? These are questions that need to be addressed.

In general, once an arbitral award has been made, it is final and binding upon the parties. That is the reason why the mainstream international understanding, misdirected by the U.S., is that the South China Sea arbitral award is binding upon China. However, there is an exception to the rule. In certain circumstances the award itself may be regarded as a nullity. It is fairly generally accepted under international law that the excess of power may be treated as a nullity. That’s exactly the position taken by China: that the arbitral tribunal exercised jurisdiction ultra vires and any of its decisions have no legal effects. In particular, the disputes between China and Philippines are either sovereignty disputes over islands, which are not governed by the UNCLOS, or disputes concerning maritime delimitation, which are excluded by China through a 2006 declaration based on Article 298 of the Convention. However, those exceptional rules are fully understood only by a small group of legal experts, and the general public only knows general rules. This put the U.S. in a good position to hype up the binding force of the award as a general rule, while China has an uphill battle to explain to the international community why the award has no legal effects as an exceptional rule. The U.S. and its allies will surely make full use of this advantage to put consistent international pressure on China to abide by the award.

Even supposing an arbitral award is binding on both parties, how to enforce it is another issue. In general, the success of arbitration depends on the goodwill between the parties in actually enforcing the award. Unlike in a domestic legal system, which has a central government to enforce the law, there is no such world government above states to enforce international law. The only exceptional case lies with the International Court of Justice (ICJ). Under article 94 of the UN Charter, one party may have recourse to the Security Council, which may enforce the decisions. However, the present case was decided by a 1982 UNCLOS Annex VII arbitral tribunal and the decision could in no way be enforced by third parties. Under article 12 of the UNCLOS Annex VII, “Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award.” Also, “[a]ny such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.”

Finally, does the arbitration award per se amount to international law, so that the non-recognition and non-implementation of the award is equivalent to non-compliance with international law? It is common sense among international lawyers that, under article 38 of the Statute of the ICJ, the sources of international law are composed of international treaties, international customs, and general principles of law and judicial decisions can only be utilized as a subsidiary means for the determination of rules of law rather than as an actual source of law. However, the U.S. may again make use of the gap between the understanding shared by small group of legal experts and the general public’s misunderstanding of international law so as to label China’s non-recognition of the award as non-compliance with international law.

In fact, neither the U.S. nor the Philippines has much credibility in this regard. The U.S. is the least qualified state to criticize China on this point, as the U.S. is the only country that used veto power in the UN Security Council to prevent the enforcement of the ICJ decision in Nicaragua case. Notwithstanding this clear defiance of international judicial decisions, many U.S. politicians and scholars are echoing the same voice that China would dishonor international rule of law in the sense that China does not recognize the award. Even the Philippines has been inconsistent in its respect for international arbitration, holding in the present case that a arbitral tribunal’s decision in Southern Bluefin Tuna case was wrongly decided. It is questionable whether the Philippines’ dishonoring of an arbitral decision amounts to non-compliance of international law. While it is not meant to make a tu quoque argument here, the position of the U.S. shows a clear sign of a double standard.

For its part, the best approach for China to win this lawfare is to tell its side of the story regarding the general rule versus exceptional rule. There is still a long way to go for China to pierce the legal veil covering American political trickery.

The South China Sea Arbitration is Here! And China Will Not Be Happy

by Julian Ku

The much-anticipated long awaited South China Sea Arbitration award on the merits is here!  It is a slam-dunk, complete, utter, massive, total legal victory for the Philippines on all counts (lots of metaphors here, none are quite sufficient). Essentially, the tribunal ruled in favor of almost all of the Philippines’ claims in the arbitration.  Perhaps the most headline friendly result: The Nine Dash Line has been ruled inconsistent with China’s obligations under the UN Convention on the Law of the Sea.

I have been mostly reacting on twitter this morning, and I am working on some related posts here and elsewhere. This case brings to an end the long process initiated by the Philippines back in 2013 (links to my discussion of them are below).  We will be discussing and debating the impact of this award for a while.

Multi-Blog Series: The Role of the ICRC Commentaries in Understanding International Humanitarian Law

by Jessica Dorsey

In the second installment of episode 1 in this multi-blog series on the updated Commentaries, Professor Sean Murphy responds to Jean-Marie Henckaerts first post on locating the commentaries in the international legal landscape.

Sean D. Murphy, Professor of International Law at George Washington University and Member of the U.N. International Law Commission, considers the role of the ICRC commentaries as a matter of treaty law, customary international law, and practical lawyering.

Taiz, Yemen - Two men drive through the area, where snipers have been present since the intense hostilities started there. ©Wael Al Absi/ICRC

Taiz, Yemen–Two men drive through the area where snipers have been present since the intense hostilities started there. ©Wael al Absi/ICRC

Read the full post on the Intercross Blog and stay tuned for the third installment, coming soon.

This series is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.

Is the Requirement That Crimes Against Humanity Be Committed Against a “Civilian Population” Really Necessary?

by Joanna Nicholson

[Dr. Joanna Nicholson is a Researcher at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo.]

For a crime to amount to a crime against humanity, it must be shown to have been part of a bigger picture, namely part of a widespread or systematic attack against a civilian population. The requirement that an attack be against a “civilian population” has created some uncertainty as to whether persons who are hors de combat can be victims of the crime.

Case law is peppered with discussion as to whether those who are hors de combat are “civilians” or constitute members of the “civilian population” for the purposes of crimes against humanity. Careful examination of this jurisprudence reveals that international criminal courts and tribunals, particularly the ad hoc tribunals, have taken different approaches to this issue.

The International Criminal Tribunal for the former Yugoslavia’s (ICTY) case law has taken a meandering path. Some cases have endeavoured to include those who are hors de combat within the notion of “civilian” (see for example, Kordić and Čerkez (.pdf), para. 421), whereas others have sought to include them within the notion of “civilian population” (see, for example, Naletilić and Martinović(.pdf), para. 235). The issue was ultimately resolved by the ICTY Appeals Chamber in two cases: Martić (.pdf) and Mrškić (.pdf). The Trial Chambers in both cases (rightly) held that persons hors de combat are not civilian for the purposes of Article 5 of the ICTY Statute (the provision of the Statute concerning crimes against humanity). This was confirmed on appeal. However, both Appeals Chambers held that the chapeau requirement of Article 5 does not require that the individual criminal acts be committed against civilians, but rather that it serves to emphasise the collective nature of the crime. Thus, providing the chapeau requirement is fulfilled, and that there has been a widespread and systematic attack against a civilian population, individual victims who are hors de combat can be victims of the crime (Martić Appeal Judgment paras 303-314; Mrškić Appeal Judgment, para. 33).

The International Criminal Tribunal for Rwanda (ICTR) has taken a different approach. In Akayesu (.pdf), the Trial Chamber found that persons hors de combat are members of the civilian population for the purposes of crimes against humanity.  This finding was followed, with zero to minimal discussion, in subsequent cases before the tribunal.

The different approaches of the ad hoc tribunals on this matter can lead to very different outcomes. Adopting the ICTY’s approach means that an attack directed purely against persons hors de combat does not amount to a crime against humanity. Indeed, this was found to have been the case in Mrškić, where the attack had been solely against the persons who were hors de combat and did not form part of a wider attack against a civilian population. The Appeals Chamber held that the attack did not therefore amount to a crime against humanity.

Following the ICTR’s approach, on the other hand, would mean that persons hors de combat are included within the notion of “civilian population” and constitute victims of the crime even if the attack is only against them.  Thus, the persons hors de combat in the Mrškić case would have been eligible victims of the crime.

If one weighs up the two different approaches, the ICTY’s presents itself as being the most logical and thoroughly considered. Nevertheless, it leaves a certain amount of dissatisfaction, and it makes one wonder whether there is a need for a “civilian population” element within the definition of crimes against humanity at all.

As it stands at the moment, following the ICTY approach at least, the civilian population requirement means that attacks that are purely against persons hors de combat cannot amount to crimes against humanity. Certainly, such acts could be prosecuted as war crimes, as indeed happened in the Mrškić case, but this fails to adequately reflect the gravity of the offence, and ignores the symbolic nature that a charge of crimes against humanity has.

The reference to “civilian population” does help to emphasise the collective nature of the crime, but this is arguably adequately reflected in the “widespread or systematic attack” element.  Future definitions of the crime could omit reference to a “civilian” population in the chapeau requirement, replacing it with “population.” Naturally, any court interpreting the chapeau requirement would have to bear IHL in mind and ensure that legitimate attacks against military personnel were not erroneously found to be crimes against humanity.

The “civilian population” requirement should no longer be considered a necessary element to find an act is a crime against humanity. Discarding the civilian population” requirement would mean that attacks that are purely against persons hors de combat can be prosecuted as crimes against humanity and can receive the recognition they deserve.

The NY Times on Bitcoins and China

by Chris Borgen

William Gibson, repurposing a Gertrude Stein quip, said about cyberspace “there’s no there, there” capturing the ethos of the internet as a place beyond the physical world of borders and jurisdiction.  Bitcoin melded cryptography and networked processing to attempt to make a currency that was not based in or controlled by any state.

But the internet is based on servers and fiber-optic cable and telecom switching stations that are firmly rooted in the physical world.  The cloud is made out of metal and plastic and glass. And as for Bitcoin, there increasingly is a there, there. And “there” is China. (For a quick background on Bitcoin, see this video, which explains how Bitcoin builds a payment system that replaces trust and personal allegiance with “mathematical confidence” or  this article.)

The New York Times reports how Chinese companies have come to dominate the production of Bitcoins:

In its early conception, Bitcoin was to exist beyond the control of any single government or country. It would be based everywhere and nowhere.

Yet despite the talk of a borderless currency, a handful of Chinese companies have effectively assumed majority control of the Bitcoin network. They have done so through canny investments and vast farms of computer servers dispersed around the country. The American delegation flew to Beijing because that was where much of the Bitcoin power was concentrated…

…But China’s clout is raising worries about Bitcoin’s independence and decentralization, which was supposed to give the technology freedom from the sort of government crackdowns and interventions that are commonplace in the Chinese financial world.

“The concentration in a single jurisdiction does not bode well,” said Emin Gun Sirer, a professor at Cornell and a Bitcoin researcher. “We need to pay attention to these things if we want decentralization to be a meaningful thing.”

What follows is a story considering the possible factors that contributed to Bitcoin’s popularity in China (including attempts to avoid government financial regulators and the popularity of online gambling) which, in turn, incentivized large investments in Bitcoin businesses, leading to the situation where “over 70 percent of the transactions on the Bitcoin network were going through just four Chinese companies…”

And, through it all, there is the question as to whether these and other Chinese companies even want to exercise leadership over Bitcoin at all. There is an interesting question of the psychology of power. The frame of the NY Times story is a meeting that took place in China between US and Chinese corporate leaders. The Americans flew to China because, as the Times put it, “that was where much of the Bitcoin power was concentrated.” They tried to persuade Chinese leadership to make certain changes to Bitcoin but were unable to do so. They also expressed frustration at the reluctance of the Chinese companies to exercise leadership in the industry. But then consider this description by one of the Chinese CEO of the same meeting:

“It was almost like imperialistic Westerners coming to China and telling us what to do… There has been a history on this. The Chinese people have long memories.”

Same room; completely different views of the dynamics of the meeting.

So, before we deploy too much post-modern, post-Westphalian, post-everything analysis to cryptocurrencies like Bitcoin or to the internet more generally, perhaps we need to  give jurisdiction, territory, memory, and psychology a second look. There is a there, there.

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the University of California, Davis, School of Law and Co-Reporter for the Restatement (Fourth) of Foreign Relations Law: Jurisdiction. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

In RJR Nabisco, Inc. v. European Community, the Supreme Court applied the presumption against extraterritoriality to determine the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO makes it illegal to use a pattern of racketeering activity in particular ways relating to enterprises. Racketeering activity consists of certain state and federal offenses generally known as predicates—money laundering, for example. RICO also creates a civil cause of action for treble damages for “[a]ny person injured in his business or property” by a RICO violation. In RJR, the Court unanimously held that two of RICO’s substantive prohibitions apply extraterritorially to the same extent as their predicates. For example, since the federal money laundering statute, applies to offenses “outside the United States” if the defendant is a U.S. person, RICO also prohibits acquiring an interest in an enterprise or conducting its business through a pattern of money laundering outside the United States if the defendant is a U.S. person. But RJR also held, by a vote of 4-3, that RICO’s civil cause of action requires injury to business or property in the United States. The Court thus preserved RICO as a law enforcement tool for the U.S. Government in a wide range of cases, including terrorism cases, while limiting private damages actions that might have caused friction with foreign nations.

In the process of describing its framework for applying the presumption against extraterritoriality, however, the Court said something that it almost certainly did not mean and that is likely to cause confusion among the lower courts unless nipped in the bud. Writing for a unanimous court, Justice Alito said that a court must ask whether the statute gives a clear indication that it applies extraterritorially “regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction.” I have previously argued that the presumption against extraterritoriality does not apply to jurisdictional statutes, and in this post I explain why that is still true after RJR.

Although Article III of the U.S. Constitution sets the outer limits of subject matter jurisdiction for federal courts, Congress must confer jurisdiction upon the lower federal courts by statute. The U.S. Code contains a number of general subject matter jurisdiction statutes that apply in large numbers of cases. For criminal cases, 18 U.S.C. § 3231 gives district courts jurisdiction “of all offenses against the laws of the United States.” On the civil side, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States,” while the diversity statute, 28 U.S.C. § 1332, gives district courts jurisdiction “of all civil actions where the matter in controversy exceeds the sum or value of $75,000” between citizens of different states or between citizens and aliens (subject to a few exceptions). Some federal statutes have more specific grants of subject matter jurisdiction, like § 27 of the Securities Exchange Act, which gives the district courts jurisdiction over both civil and criminal actions “to enforce any liability or duty” created by the Act or its rules and regulations. None of these statutes contains the “clear, affirmative indication” of extraterritoriality that RJR says is necessary to rebut the presumption against extraterritoriality. Thus, if the presumption really applies to statutes that confer jurisdiction, those statutes might be interpreted not to apply extraterritorially. This might mean that federal courts would lack subject matter jurisdiction over criminal offenses committed abroad even if the substantive offense (like money laundering or RICO violations based on money laundering) clearly applies extraterritorially. It might similarly mean that civil suits arising abroad might have to be dismissed for lack of subject matter jurisdiction even if they are based on federal statutes that clearly apply extraterritoriality or are brought between diverse parties. Any sensible court would hesitate to reach such results. But how do we know that RJR does not command them.

First, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR applied the presumption to RICO’s substantive provisions and not to the subject matter statute on which the suit was based. RICO lacks a general subject matter provision of its own, so jurisdiction in the civil suit brought by the European Community had to have been based on § 1331, the general federal question statute. The European Community lost its claim because the Supreme Court held that RICO’s civil cause of action required injury to business or property in the United States, but it lost on the merits. The Supreme Court assumed (correctly) that the district court had subject matter jurisdiction under § 1331 to hear the claim in the first place.

Second, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR held that two of RICO’s criminal provisions do apply extraterritorially to the same extent as the predicates on which they are based. This preserves the ability of the U.S. government, in the example that the Court itself gave, to use RICO to prosecute “a pattern of killings of Americans abroad in violation of § 2332(a)—a predicate that all agree applies extraterritorially.” Yet the Court’s holding would be for naught if 18 U.S.C. § 3231, the general subject matter provision for violations of federal criminal law, were limited to the United States.

Third, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR specifically discussed the possibility that the European Community might bring suit for violations of their own laws and “invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts.” This would be impossible if 28 U.S.C. § 1332, the federal diversity statute, were limited to cases arising in the United States.

Fourth, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because Morrison v. National Australia Bank, the decision that RJR elaborates and applies, similarly applied the presumption against extraterritoriality to a substantive provision of the Securities Exchange Act (§ 10(b)) and not to its jurisdictional provision (§ 27). Indeed, the Morrison Court went out of its way to say that “[t]he District Court had jurisdiction under [§ 27] to adjudicate the § 10(b) question.”

So if RJR could not have meant that the presumption against extraterritorially applies to statutes granting subject matter jurisdiction, what did the Court mean when it said the presumption applies “regardless of whether the statute in question . . . merely confers jurisdiction”? The RJR Court was attempting to describe what it had done with the presumption in Kiobel v. Royal Dutch Petroleum Co., a case involving the Alien Tort Statute (ATS). In Kiobel, the Court held “that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Kiobel, however, did not apply the presumption against extraterritoriality to the ATS itself—a statute the Court characterized as “strictly jurisdictional”—but rather to the implied federal-common-law cause of action under the ATS. On page 9 of the slip opinion, RJR accurately describes Kiobel as a case where “we concluded that principles supporting the presumption should ‘similarly constrain courts considering causes of action that may be brought under the ATS.’” And again on page 19, RJR correctly characterizes Kiobel as holding “that the presumption ‘constrain[s] courts considering causes of action’ under the ATS.” Understanding Kiobel to have applied the presumption against extraterritoriality to the implied cause of action and not to the ATS itself also makes sense of Kiobel’s statement that the presumption “is typically applied to discern whether an Act of Congress regulating conduct applies abroad,” for causes of action regulate conduct in a way that purely jurisdictional statutes do not.

In short, RJR’s statement that the presumption against extraterritoriality applies to statutes that “merely confer[] jurisdiction” must be read in context as describing the presumption’s application to implied causes of action under statutes like the ATS and not to subject matter jurisdiction statutes themselves. Any other reading would be contrary to what the Supreme Court held with respect to subject matter jurisdiction in Morrison and, indeed, to what the Supreme Court did with respect to subject matter jurisdiction in RJR. It would also be contrary to common sense, for it would constrain the jurisdiction of the federal courts over civil cases and criminal prosecutions based on substantive statutes that clearly apply abroad. One can only hope that lower courts do not waste too much time and effort trying to figure this out.

Multi-Blog Series: Locating the Geneva Conventions Commentaries in the International Legal Landscape

by Jean-Marie Henckaerts

For the first episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, the Humanitarian Law & Policy Blog has published Locating the Geneva Conventions Commentaries in the International Legal Landscape, by Jean-Marie Henckaerts.

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View of destruction in downtown Homs, Syria. © Jerome Sessini/Magnum Photos for ICRC

Jean-Marie is the head of the unit in charge of the update of the ICRC Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977.

To kick off the series, Jean-Marie addresses critical questions surrounding the commentaries such as: Where do the ICRC Commentaries fit into the legal landscape? What are the rules governing treaty interpretation and how do they operate in the area of IHL? Where does the ICRC’s legitimacy to interpret the Geneva Conventions stem from?

Read the full post on the ICRC’s Humanitarian Law & Policy Blog.

This series is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.

Implications of the 30th Ratification of the International Criminal Court’s Crime of Aggression Amendment by Palestine

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.]

A significant event happened quietly at the UN on June 27: Palestine deposited the thirtieth instrument of ratification of the International Criminal Court’s crime of aggression amendment, with 30 ratifications being the required number for activation. However, one more vote to activate the amendment, to occur after January 1, 2017, is required by the ICC’s Assembly of States Parties for the ICC to be able to exercise jurisdiction. Thus, Palestine’s deposit did not cause the amendment to become operational, although it brought it a step closer to the activation vote planned for December 2017.

There may be some confusion on the meaning of Palestinian ratification among those not steeped in the jurisdictional nuances of the crime of aggression amendment negotiated in 2010 in Kampala, Uganda. Although one might think that this is all about the Palestinians trying to create jurisdiction over Israel vis-à-vis the crime of aggression, that is not how it will work.

The crime of aggression amendment has a different jurisdictional regime than what currently exists under the ICC’s Rome Statute concerning the crimes of genocide, war crimes and crimes against humanity. If a national of a non-State Party (e.g., Israel) commits any of those crimes in the territory of a State Party, there would be ICC jurisdiction.

The crime of aggression amendment — whether for good or ill (depending on one’s perspective) —per 15bis(5) keeps crimes committed on the territory of, or by the nationals of, non-States Parties entirely out of its jurisdiction for purposes of State Party and proprio motu referrals (article 15bis). This means that Israeli nationals or crimes committed on Israeli territory will be outside the ICC’s crime of aggression jurisdiction. This then has a bizarre consequence here – that Palestine can ratify the crime of aggression amendment, not “opt out” of jurisdiction (something a State Party can also do per 15bis(4)), and, even after the crime activates, the ICC still could not prosecute Palestinian nationals who commit aggression against Israel, since Israel is a non-State Party. A Handbook compiled by some of the Kampala drafters clearly states: “Non-States Parties are thus excluded both as potential aggressor and victim States.” The crime of aggression amendment thus has significant jurisdictional loop-holes, and will create quite a narrow jurisdictional regime, even once activated. Stated more positively, it creates a consensual regime.

While activation also will activate ICC jurisdiction if the U.N. Security Council makes referrals (under article 15ter), it is considered unlikely that the US would permit alleged Israeli aggression to be referred.

So, the 30th ratification brings the world one step closer to having crime of aggression jurisdiction activated before the ICC, but it does not have direct ramifications for Israel – whether that was the Palestinian goal or not.

At this point, the reader may well wonder – is this Kampala amendment worthwhile with all these jurisdictional loopholes? I will argue it is: activation of the crime will undoubtedly cause states to take pause and ponder more seriously the potential consequences of starting an illegal war, and this is a good thing – even if ICC jurisdiction will not cover the specific case in question; also, states may implement the amendment into their domestic laws, and that may create jurisdiction – giving further pause to states inclined to commence an illegal war. The goal of course is not to generate ICC cases, but to influence state behavior positively.

The crime of aggression, of course, is hardly a novel concept. It criminalizes what is already illegal under article 2(4) of the U.N. Charter, and is similar in concept to the prosecutions of the International Military Tribunal at Nuremberg, which prosecuted war of aggression. In fact, states were working already over 100 years ago on this concept, when in 1913 they founded the “Peace Palace” in The Hague, Netherlands — in an attempt to have states litigate and arbitrate over issues of war, rather than go to war.

A few states have concerns about activation — the US for example, although it too as a non-State Party is exempt from jurisdiction vis-à-vis its nationals and crimes on its territory. Yet, the process is proceeding, with the 30 ratifications accomplished, and several other States Parties in the process of ratifying the amendment. US concern that humanitarian intervention would be criminalized may be something of a “red herring” – first, the US does not appear to have any clear and consistent policy of humanitarian intervention (for instance, as the UK has) and second, because, as at least most scholars seem to agree, humanitarian intervention would not be covered by the crime, as it would not constitute a “manifest” Charter violation. (The crime has a significant “threshold” in requiring that there be a “manifest” Charter violation [.pdf]; this means that only very serious cases that are unambiguously illegal , could be prosecuted.) The crime of aggression, in these ways, is rather conservative — having both jurisdictional loopholes and this high threshold.

There is still a chance, that, at some point, the ICC judges will find that Palestine is not a “state,” and thus was incapable of ratifying the Rome Statute, and similarly incapable of ratifying the crime of aggression amendment. (Judges always have jurisdiction to review their own jurisdiction – so regardless of the UN’s acceptance of the instruments of ratification, the ICC Judges could view the issue differently.) This would have little impact on the process of activating the crime, since several ratifications are in the pipeline, and will undoubtedly happen prior to December 2016. (There must be a year’s delay after the 30th ratification, for activation, along with the ASP vote).

Overall, while the Palestinians may have hoped to make a strong political statement, what the ICC crime of aggression tries to do is take the issue of aggression more out of the political process and into judicial hands. How one feels about this may depend on one’s confidence in the ICC, which, despite some setbacks, has gradually been proving itself to be a responsible, judicial institution, warranting confidence and support.