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Addressing the Urban Future

by Chris Borgen

Urbanization is our present and it is our future. Between the recently completed UN Habitat III conference in Quito, Ecuador, and Iraqi Special Operations entering Mosul, starting what may be a complex urban battle, we face constant reminders that  much of the world’s population now lives in cities. How we protect rights, foster development, interact with the environment, organize politically, and fight wars is increasingly an urban story.

Consider the bleak picture of megacities and the future of combat in this leaked Pentagon video (at the link and also embedded above). Some key take-aways from the video:

  • By 2030 60% of world’s population will be in cities. Most of the urban growth will be in the developing world.
  • Illicit networks will fill the gaps left by overextended and undercapitalized governments.
  • Growth will magnify the increasing economic separation between rich and poor, even thought they may be in close proximity. Uneven growth means that slums and shantytowns will rapidly expand alongside ever increasing levels of prosperity.
  • Moreover, religious and ethnic tensions will be a defining element of these urban environments
  • Megacities are complex systems where people and structures are compressed together in ways that defy both our understanding of city planning and military doctrines.
  • Living habitats will extend from the high-rise to the ground level cottage to subterranean labyrinths, each defined by its own social code and rule of law.
  • Social structures will also be stressed. Criminal networks will offer opportunity for the growing class of unemployed  and will be part of the nervous system of non-nation state, unaligned, individuals and organizations that live and work in the shadow of national rule.
  • There will be increasing complexity of human targeting as proportionally smaller number of adversaries mix with an increasingly large population of citizens.
  • The interactions of governmental failure, illicit economies,  economic growth and spreading poverty, informal networks, environmental degradation, and other factors leads to an environment of convergence hidden within the enormous scale and complexity of megacities, which become the source of adversaries and hybrid threats.
  • Classic military strategy counsels either (a) avoiding the cities or establishing a cordon to wait out the adversary  or (b) draining the swamp of non-combatants and then engaging the adversary in high-intensity conflict. But megacities are too large to isolate or cordon in their entirety.  The U.S. military will need to operate within the urban environment and current counterinsurgency  doctrine is  inadequate to address the sheer scale of megacities
  • “This is the world of our future. It is one we are not prepared to effectively operate within and it is unavoidable.”

According to FoxtrotAlpha, this video was produced for a course at the Joint Special Operations University on “Advanced Special Operations Combating Terrorism,” it is focused on urbanization from the perspective of military planning. A 2010 issue of the International Committee of the Red Cross’s journal was devoted to humanitarian law and conflict in built-up urban areas. The ICRC also had recommendations for the UN’s Habitat III conference that just ended.

The topics covered, though, are very much the province of law and lawyers, including the needs of the urban poor, the operations of criminal networks, environmental degradation and climate change, the law of armed conflict and targeting in built-up areas, informal rulemaking in communities (“order without law”), informal markets and economies,  and the role of non-state actors, to name only some of the topics that crop up. While this video is (understandably) focused on the implications on combat operations, what I also see is the need for sustained  engagement in the protection of human rights, the distribution of public goods, the fostering of inter-communal dispute resolution, and the spurring of bottom-up economic development in megacities.

The video emphasizes that the future is urban. But, as the writer William Gibson has said, “The future is already here; it’s just not very evenly distributed.”

 

How Dualism May Save the United Kingdom from Brexit

by Julian Ku

Early in my international law education here in the U.S, I learned that dualism was an unfortunate concept that led to the U.S. violating international law obligations by failing to enforce those obligations (usually treaties) domestically.  But today’s blockbuster decision from a UK court in Miller v. Secretary of State on Brexit should remind us that dualism can also work to protect international law. How?  Well, if a country has many international obligations but is now seeking to withdraw from those obligations, dualism makes it harder to withdraw from those obligations.

In Miller,  the court noted that although the UK Prime Minister usually has the unilateral authority to enter into and withdraw from treaties, that power cannot be used in anyway that would affect or change domestic UK law. Quoting an earlier decision, the High Court today noted that under the UK constitution, the Crown (through her ministers) has the sole and unreviewable power to make treaties. No Parliamentary assent or approval is needed. However,

[T]he Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.  Treaties, as it is sometimes expressed, are not self-executing.  Quite simply, a treaty is not part of English law unless and until it has been incorporated into law by legislation. 

(Citing J.H. Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 AC 418).

This basic principle seems to me crucial to the UK court’s holding today that the Crown (through her ministers) does not have the power to give notice under Article 50.  Although the Crown would ordinarily have this power, the fact that triggering Article 50 would alter the domestic law of the UK makes this a question for Parliament.

In the US system, the President holds similar powers as the Crown and has similarly exercised unilateral powers to withdraw from treaties.  But because treaties in the US have a vaguely monist character — they are self-executing and they have been approved by the Senate — it is harder to argue that the President cannot terminate treaties even if that termination would affect domestic US law. Why?  Because if the treaty was “monist” and self-executing when made, then it is less troubling to unmake that treaty without going back to Congress.  Unlike the UK, treaties are the supreme law of the land and directly preempt state law and earlier in time federal statutes.  The kind of argument wielded by the Court in Miller just wouldn’t have any purchase here.

In any event, I don’t want to stretch this argument too far.  The US may be facing its own Brexit moment soon if a President Trump makes good on his threat to withdraw the US from NAFTA.  And if that happens (god forbid), expect pro-NAFTA folks to raise the case for congressional approval of any termination.  But all in all, I think the dualist nature of the UK system aided the cause of the anti-Brexiteers in this case, which is a somewhat surprising result if you grew up learning that dualism was one of the great obstacles to a stronger international legal system.

A Quick Reply to Stephen Rapp About the US and the ICC

by Kevin Jon Heller

The inimitable David Bosco dropped quite the bombshell yesterday at FP.com: The Office of the Prosecutor at the ICC intends to open a formal investigation into the situation in Afghanistan — a situation that includes, as the OTP discussed in its most recent preliminary-examination report, US torture of detainees between 2003 and 2005. I’ll have more to say about the possibility of an investigation in the coming days, when I’m a bit less harried. But I wanted to briefly respond to something Stephen Rapp, the former US War Crimes Ambassador, recently said about that torture — a comment that David reprints in a post today. Rapp contrasted US torture in Afghanistan with the kinds of crimes international criminal justice normally addresses:

[T]he alleged crimes committed during US enhanced interrogations do not reach anything like the scale of these other violations. The Durham review was looking into 101 cases of alleged abuse, including those of two detainees who died in custody. A broader inquiry could increase those number, but even with the widest scope, the numbers of victims pale in comparison to those in the situations that have come before international courts and tribunals.

As is often the case when people discuss crimes potentially within the ICC’s jurisdiction, Rapp’s comment elides the critical difference between situational gravity and case gravity. If the OTP was considering opening an investigation only into US torture in Afghanistan (not “enhanced interrogation”), Rapp would have a point — the situational gravity would almost certainly be insufficient to justify a formal investigation. Israel’s attack on the Mavi Marmara is a good point of comparison: however unjustifiable Israel’s actions, the numbers simply weren’t large enough to investigate. (And I say that as perhaps the earliest opponent of a quantitative approach to situational gravity.)

But that is not what Bosco says the OTP will do. According to Bosco, and consistent with its previous statements, the OTP will be opening a formal investigation into the situation in Afghanistan generally — not only crimes committed not by US forces, but also crimes committed by the Taliban, by Afghan government forces, and by other members of the coalition. At most, therefore, US torture will be one case within the overall situation in Afghanistan. That’s critical, because it means that the scale of US torture should be compared to the scale of crimes at issue in other individual cases the OTP has pursued, not to the scale of crimes in other situations as a whole. And there is no question that the OTP has pursued similarly limited cases. To take only the most striking example, Ahmad Al Faqi Al Mahdi was charged with and convicted of purely victimless crimes — destroying cultural property. If the Al Mahdi case was grave enough for the OTP, surely US torture in Afghanistan would be.

To be clear, I do not expect the OTP to bring charges against an American anytime soon. But if no such case materialises despite the OTP opening a formal investigation into Afghanistan, it won’t be because US torture there is insufficiently grave enough to prosecute.

NOTE: I am using Rapp’s comment to make a point, not to criticise him. I have great respect for Rapp’s commitment to international criminal justice, and I like him very much as a person.

The Re-branding of the International Criminal Court (and Why African States Are Not Falling For It)

by Christine Schwobel

[Christine Schwobel-Patel is Senior Lecturer and co-Director of the Critical Approaches to International Criminal Law research cluster at the University of Liverpool.]

The International Criminal Court in The Hague, has been making the headlines in quick succession. In September it became evident that it is changing course, moving away from (protracted and politically sensitive) trials of heads of state and rebel leaders for physical injury and instead focusing on cultural and environmental crimes. In October, several African states, including South Africa, have dramatically announced that they are withdrawing from the Court. Although the changing of priorities appears to be diversifying the prosecution of grave crimes, the African states withdrawing from the Court are most likely under no illusions of the neo-colonial flavour of the ICC dissipating. In fact, it looks as though the re-brand of the ICC is likely to be a move which further stigmatises the global South while protecting the interests of the military and economic powers of the global North.

The failing of the brand

When the Rome Statute was signed in 1998 after negotiations between state delegates and civil society organisations, there was a sense of euphoria about the establishment of an International Criminal Court. Footage of diplomats with bouncy 90s hairstyles forgetting themselves with rhythmic clapping and the exchanging of teary embraces is a firmly entrenched imagery of international criminal justice. When, in 2002, the new court in The Hague opened its doors, then-United Nations secretary-general Kofi Annan, announced exuberantly that this was ‘a giant step forward in the march towards human rights and the rule of law’. The first Prosecutor of the Court, Luis Moreno-Ocampo, made sure that the ICC was never far from the public eye, even if there were no trials occupying the new courtrooms. He gave press conferences, contributed to institutional videos, gave guest talks, spoke to celebrities, and made appearances in several documentaries. The promise of the Court got loftier and loftier.

In a way, the ICC was always going to be an institution which thrives more on image than on concrete outcomes: Its promises were simply too ambitious. It proclaimed to end impunity for those most responsible for crimes that shock the conscience of mankind. On its website, it declares itself to be concerned with the gravest crimes of concern to the international community. Its President recently proclaimed that it has ‘become an integral part of the international system for promoting the rule of law, human rights, peace and security’.

However, with a meagre four completed trials since its opening 14 years ago, with eye watering budgets and the move into a new, bigger, better, budget-busting building, annual budgets in the hundreds of millions, and the discontent of its greatest ally – the African continent (all current charges are against individuals from the African continent), there was some salesmanship to be done for the ICC.

In light of its focus on Africa, there have been long-standing demands to try former US-President George W. Bush and former British Prime Minister Tony Blair in The Hague for war crimes.

Then there is the fact that observers of the ICC’s practices are becoming tired of the constant reference to the Court’s youth; with well over a decade of activity, the ICC is well and truly growing out of its baby steps.

Things were certainly looking grim for the Court in May 2016 when, at his inauguration ceremony, Ugandan President Museveni described the ICC as ‘a bunch of useless people’. Not only did this sting because Uganda was the first state to refer its own situation to the ICC, meaning that the first arrest warrants issued finally provided the court with its first cases; it was also an act of defiance to the Western diplomatic corps present because Sudanese President Omar al-Bashir, who has been issued with an arrest warrant by the ICC, was also in attendance.

The outspoken discontent about the ICC from African states has now, in mid October, come to a head with South Africa having given notice of withdrawal, Burundi and Gambia also announcing their decision to withdraw. Other African member states will no doubt follow.

Re-branding and its promises

One might wonder why this comes so shortly after the ICC made clear that it was going through what the marketing world would call a re-brand. After much-lamented drawn out (and therefore costly) trials, the ICC surprised observers with an exceedingly short trial this year: Opening on 22 August 2016 with an admission of guilt by the defendant and delivering its judgment on 27 September 2016, the ICC saw its first trial concerning the intentional destruction of cultural, religious and historic monuments. Ahmad Al-Faqi Al-Mahdi, a mid-level militiaman, pleaded guilty to the destruction of mausoleums in Timbuktu, Mali.

Then, in September 2016, the Chief Prosecutor Fatou Bensouda published a policy paper, which stated its new priorities for case selection, namely a ‘particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.’ Emphasis was specifically placed on land-grabbing. This new interest in environmental crimes has generally been received positively. For, although it is impossible for the ICC to do justice to the environmental harms caused, it is necessary for a high-profile institution such as the ICC to point the finger. With these cases, the ICC is not only re-branding its priorities, it is also clearly embracing its symbolic function (discussed here and here).

Rather than going after leaders of governments or rebel groups (who make a claim to governing) for crimes of genocide, ethnic cleansing, murder, rape, torture, enslavement and the like, the ICC is instead moving into the prosecution of non-physical violence, mid-level perpetrators, and gestures against corporate power. In this context it is significant that the Office of the Prosecutor decided to charge Al-Mahdi with the crime of the destruction of cultural heritage instead of the possible alternative case of murder and rape committed during The Northern Mali Conflict. With this, the ICC is aiming to send a message to terrorist groups such as ISIS. The destruction of cultural heritage has, of course, been one of the prime Islamist State terror tactics. And with its change of focus to environmental crimes such as land-grabbing, it is seemingly sending a message to private businesses and government officials who have allocated land to these businesses. This is, then, a turn to explicit symbolism: It is impossible to try ISIS for its crimes because the Islamic State is not a recognised state under international law; and it is impossible to criminalise all behaviour leading to environmental harms.

Not falling for the re-brand

However, this seeming rebrand of the ICC is not only to be understood as a welcome response to its critics and a welcome admission of its symbolic nature; it could also be an indication of a further bloating of the ICC’s staff, greater narcissism, and a continued sycophantism to Western economic and military powers.

The ICC has a history of a type of land-grabbing itself, concerning itself with what it deems are the current injustices of the world. From war crimes to terrorism to aggression, it has already swallowed large parts of other disciplines, technical discussions, and humanitarian concerns. It is therefore not surprising that the ICC claimed it will not be formally extending its jurisdiction; but that instead it would assess existing offences, such as the crime against humanity, in a broader context. For all the value to a naming and shaming on an international stage, this could be troubling. For where does the jurisdiction of the court then end? What crime is to be excluded from a list of crimes against humanity? How many experts need to be hired to mirror its growing self-proclaimed expertise?

But the bloating of the court’s jurisdiction is not the only concern. Of much greater concern is whether the ICC is capable of turning attention to the pressing issues of injustice in the global South while daring to enter the terrain of the complicity of the global North in its condition. And, unsurprisingly, the rebrand is a means by which to respond to critics while at the same time maintaining the status quo.

While cultural heritage across the world (and not just Western heritage) is at stake, ISIS is not only violently imposing its particular extremist Islamist ideology, it is of course also challenging the imperialist interventions (cultural and military) of the Western economic powers. The symbolism behind a criminalisation of the destruction of cultural heritage in the international sphere is then also an insistence on the protection of the neo-colonial practices of Western super-powers. For although international criminal law has a symbolic capacity to stigmatise violent behaviour, it does not have the capacity to explain the root causes of this behaviour. In other words, while extremists may be criminalised, there is no means to draw attention to questions of how these individuals became extremists, what motivates them, and the conditions which are allowing for them to act. International criminal law therefore remains blind to colonial histories and resource-motivated interventions which have caused chains of exploitation and attendant grievances.

The same concern about the status quo applies to environmental crimes, in particular land-grabbing. Various campaign groups have said that the new priority on land-grabbing would hold corporate executives to account for associated consequences of evictions, malnutrition, and environmental destruction. Under the Rome Statute regime, corporations themselves cannot be held criminally liable, and so far no corporate executives have been held to account. There is precedent for holding corporate managers to account in international criminal law: Prosecutor v Musema at the International Criminal Tribunal for Rwanda was a case against a tea factory director; the Nuremberg trials against Nazi industrialists are further precedents. However, these are chains of accountability in regard to exercising control over employees, and using concentration camp inmates as slave workers respectively in wartime. In comments, it is hoped that the Court’s new priorities may make executives accountable for environmental crimes committed in peacetime. In peacetime, however, there would likely be heightened murkiness in the relationships between contractors and sub-contractors involved; a cooperation of the relevant corporations would also be highly unlikely. Ultimately, it is much more likely that a land-grabbing case would instead criminalise the national government officials allocating the land to businesses. This focus on governmental action would again place the focus on criminality in the global South (which is most seriously affected by land-grabbing).

Maintaining the status quo

Despite the change of course of the ICC, the message under these conditions continues to be that international crimes are committed in the global South and are prosecuted in the global North. The global South is, in this understanding, the recipient of global justice – because it is also the place of global injustice – and the global North is the sponsor of global justice. And this remains the crux of the global justice brand.

Prosecutor v. Al Mahdi: A Positive New Direction for the ICC?

by Marina Lostal

[Marina Lostal is a Lecturer in International Law at The Hague University of Applied Sciences.]

On 27 September 2016, the International Criminal Court (ICC or the Court) entered a conviction and sentence that marked several firsts in the history of the Court. It found the Accused – Ahmad Al Faqi Al Mahdi, guilty of the war crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments (in violation of Article 8(2)(e)(iv)of the Rome Statute). He was sentenced to 9 years of imprisonment. Al-Mahdi’s conviction is not only the first at the ICC arising from a guilty plea, but it is also the first for destruction of cultural heritage. In the latter respect, it raises an important conceptual question: is the adjudication of these crimes contingent on showing anthropocentric harm, or are they independently actionable before the Court?

Al Mahdi was accused of having been involved in the attacks in Timbuktu against nine mausoleums and the door of the mosque of Sidi Yahia during summer of 2012 in the context of the non-international conflict in Mali. Al Mahdi was a member of the Ansar Dine, a militant Islamist group involved in the armed conflict in Mali, and the head of the Hisbah, the body which acted as a form of morality police which mandate included deciding on the fate of the shrines, mosques and antiquities of Timbuktu. This was an important role in light of Timbuktu’s status as a UNESCO World Heritage List site, deemed to be of outstanding universal value for the whole of humanity.

Al Mahdi has received the lowest sentence to date at the ICC. This may be due to his guilty plea, but also to the fact that the attack was directed against property since, according to the Trial Chamber, “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”.

Underlying Al Mahdi’s conviction lies a conceptual question going to the essence of the Court’s substantive jurisdiction. During the confirmation of charges hearing, the prosecution consistently emphasized the human impact of Al Mahdi’s crimes saying, for instance, “[w]hat is at stake here is not just walls and stones”. In doing so the prosecution indicated that human suffering is an essential prerequisite for any substantive proceedings before the Court. Indeed, in the words of Fatou Bensouda:

“[T]he Rome Statute prohibits and punishes the most reprehensible criminal acts: Crimes of genocide, crimes against humanity and war crimes. These crimes can be perpetrated in various forms, but they all have one common denominator: They inflict irreparable damage to the human persons in his or her body, mind, soul and identity.

[…]

Such an attack against buildings dedicated to religion and historic monuments falls into the category of crimes that destroy the roots of an entire people and profoundly and irremediably affect its social practices and structures. This is precisely why such acts constitute a crime under Article 8(2)(e)(iv) of the Rome Statute.”

It is true that the tangible and intangible dimensions of cultural heritage are, usually, two sides of the same coin. According to the Committee for Economic, Social and Cultural Rights, the right of everyone to “take part in cultural life” enshrined in Article 15(1)(c) of the Covenant on Economic, Social and Cultural Rights is “associated with the use of cultural goods”. Former UN Special Rapporteur on Cultural Rights, Farida Shaheed, was of the view that “access to and enjoyment of cultural heritage as a human right is a necessary and complementary approach to the preservation/safeguard of cultural heritage.” In this line, UNESCO has adopted two treaties emphasizing the immaterial side of cultural heritage; the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

However, traditionally, the prohibition of attacking cultural heritage has not been associated with the impact it carries for individuals. In fact, the existence this prohibition predates the movement of human rights altogether. One of its first examples dates back to the Lieber Code of 1863 which declared that “classical works of art, libraries, scientific collections, or precious instruments . . . must be secured against all avoidable injury” (Art. 35). The 1899 Annex to the Hague Convention (II) with Respect to the Laws and Customs of War on Land contained provisions demanding respect for edifices dedicated to religion, art, science and charity, historical monuments, works of art or science without making their application contingent on human suffering (Arts. 27 and 56). Similarly, Article 27 of the 1907 IV Hague Regulations, which represents customary international law and the basis for Article 8(2)(e)(iv) of the Rome Statute, does not incorporate a requirement of human harm. Back in 1907, the concept of human rights still had to wait decades to take hold. Discourses on the intrinsic connection between the tangible and intangible sides of cultural heritage would only appear almost a century later.

There have been subsequent more complete instruments dedicated to the protection of cultural property in armed conflict, such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its 1999 Second Protocol. These treaties are founded on the idea that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind”. Yet, none of their articles specifically rely on establishing a link between the offences against cultural heritage (e.g. acts of hostility, military use) and harm caused to human beings, their social structures or religious practices.

There is nothing in the wording of Article 8(2)(e)(iv) (or (b)(ix)) of the Rome Statute nor the elements of crimes that requires demonstrating human harm to prove this crime. To the contrary, the elements are consistent with the historic reading of the provision and require, inter alia, that the perpetrator directed an attack against one or more protected buildings, which did not constitute military objectives; and that s/he intended to direct such attack. As such, suggesting that profoundly affecting a people’s social practices and structures “is precisely why such acts constitute a crime under Article 8(2)(e)(iv) of the Rome Statute” is a legal innovation, which may bear unforeseen consequences.

Insisting on the possible human consequences of attacks against cultural heritage may restrict the applicability of these provisions. For example, the Buddhas of Bamiyan dynamited in 2001 were not in active use as a cultural or religious site; indeed there is no record of Buddhism in Afghanistan after the 14th Century. Granted, this destruction predated the ICC era and it is generally accepted that these acts took place during peacetime. But, what if it happened today in the context of an armed conflict? There are important similarities with the case of Timbuktu: the sites had either tentative or declared world heritage status; their destruction occurred as a consequence of sheer iconoclasm; and, in both cases, the international community reacted with shock and outrage. However, the approach in Al Mahdi where harm to the human persons is paramount would potentially exclude such attacks from the coverage of the Rome Statute provisions on cultural heritage.

The Prosecutor’s declaration that the common denominator of all core Rome Statute crimes is that they inflict irreparable damage to the human persons may have a profound effect on the Court’s future activities. Recently, the prosecution indicated that it wishes to focus on acts harming the environment. Would such acts also require an anthropocentric impact in accordance with the Al Mahdi approach? If so, is there really any independent value in declaring a willingness to address environmental harm, or attacks on cultural heritage, for that matter?

Ultimately, all crimes have some anthropocentric rationale: it is humans who define them, and we inevitably choose to criminalise what we deem important to us. In the case of cultural heritage, it could be its time-capsule quality as a source of knowledge about our past, it could be its beauty, its symbolic relevance, or all of these things combined. In the case of the environment, it may be as simple as the fact that earth is our only home. However, stretching the anthropocentric emphasis in line with the prosecution’s approach in Al Mahdi entails the risk of turning a blind eye to the independent value of objects and entities in and of themselves.

Ecuador’s Disconnect of Assange: Politics or Principle?

by Steven Ratner

[Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.]

Ecuador’s announcement that it had severed Julian Assange’s internet connection in its London Embassy can be seen as a cynical manipulation of international law or a principled stance in favor of an important rule. Recall that Assange has been holed up in the embassy since June 2012, evading a Swedish warrant for questioning him, upheld by the UK Supreme Court. Ecuador justifies the move as an act of diplomatic asylum, which it argues is allowed under international law. The UK has rejected the claim, calling him little more than a fugitive from justice for a sexual assault charge in Sweden.

In cutting off Assange’s internet combination, Ecuador suggests that Wikileaks’ publication of hacked Clinton emails constitutes unlawful intervention in the internal affairs of the United States, an act that Ecuador seeks to end. Marko Milanovic, over at EJILTalk!, finds this all too rich – that Ecuador has in fact been interfering in the UK’s internal affairs through the harboring of Assange, and that its latest act just makes matters worse by denying him his human right to free expression. I think Ecuador has a stronger case than that.

The legality of Ecuador’s shielding of Assange seems to go mostly against Ecuador. The right of a state to grant diplomatic asylum is not generally accepted as a matter of customary international law, and the ICJ rejected Colombia’s claim that it was a customary rule for Latin American states in the Asylum Case in 1950. Even if it is a rule of regional custom, it is certainly not opposable to the United Kingdom. As for the Caracas Convention on Diplomatic Asylum of 1954, although Ecuador is a party, the UK is not. Moreover, Assange does not seem, at least based on the evidence, to be bona fide political asylee, but merely a fugitive from justice for a non-political crime. The United States, for its part, does not recognize such a norm, though it has accepted that embassies can grant temporary humanitarian refuge to a foreign national facing imminent danger. This theory proved the basis for the U.S. secret harboring of Fang Lizhi in its Beijing Embassy for thirteen months after the June 1989 Tiananmen Square massacre, as well as its simultaneous rejection of any right of the Papal Nunciatura to hold Manuel Noriega after he sought refuge there after the US invasion of Panama the following December.

But what about the interference claims? Is Ecuador unlawfully interfering in UK domestic affairs, and was Assange unlawfully interfering in US domestic affairs? As an initial matter, the customary law norm of noninterference (or nonintervention) bars only coercive action, not all the run-in-the-mill ways that states try to influence run another. Thus, in the Nicaragua case, the ICJ wrote that coercion is “the very essence of prohibited intervention.” (para. 205) Broadcasts, diplomatic protest, withholding of foreign assistance, most prescription of domestic law to cover extraterritorial conduct, funding of foreign human rights NGOs, and other non-coercive acts, while sometimes unpleasant for the government on the receiving end, are not acts of unlawful interference or intervention, even if some global actors may claim that. If they were, much of routine international intercourse would be unlawful. Moreover, the interference must go to something core about the state, notably the way it organizes itself politically or economically.

So even if Ecuador has no ex ante right to deploy diplomatic asylum, it’s difficult to see it as unlawful interference in the UK’s internal affairs. It is not coercive and it does not go to core governance issues in the UK.   Nonetheless, it’s worth noting that the ICJ in the Asylum Case stated that “diplomatic asylum withdraws the offender from the jurisdiction of the territorial state and constitutes an intervention in matters which are exclusively within the competence of that State.” (p. 275). On that view, Ecuador’s act is analogous to kidnapping Assange off the streets of London insofar as Ecuador did put him beyond the reach of British police. Either way, we have a more precise and clear norm that is relevant here -– namely the Vienna Convention on Diplomatic Relations, where it seems clear that Ecuador has violated Article 3 through an impermissible use of the diplomatic premises. (Though that list is non-exhaustive, it probably does not include as a normal function the prevention of arrest by local authorities.)

As for Assange, he would not seem to have any duties under international law in his current situation. Individual duties are generally confined to the list of well-accepted crimes (and even then, some scholars insist the only duties are on the states to suppress them). So he’s not breaking international law rules on nonintervention or diplomatic law (though I suppose evading an international warrant directed at him could be seen as breach of international law). That does not, however, contra Marko, mean that he has a human right to disseminate private emails all over the world. This too is a complicated question. The ICCPR makes freedom of expression a “balanceable” right, and so it’s not at all clear that he has a human right to share such information, even if the US might grant him a constitutional right to do so. Demands of privacy and public order in a democratic society would cut toward allowing Ecuador, the UK, or the United States to interfere with his exercise of free expression.

Where does that leave Ecuador’s claim that it shut down Assange’s internet connection to avoid interference in the US elections? Perhaps Ecuador fears that its grant to him of an internet connection made it complicit in interference in the U.S. elections. This makes some sense given the way in which an internet connection presumably facilitates Assange’s actions. (The embassy did not say whether they severed his phone connection as well.) Yet the ILC Articles on State Responsibility (ASRs) do not attribute the acts of a private actor to the state merely because the latter has facilitated the acts of the former, so legally it seems a stretch to say that Ecuador is committing an illegal act by allowing Assange access to the internet. Perhaps it fears complicity with Russia, which the U.S. government sees as responsible for the original hacking. But under ASR Article 16, one state is only complicit if it does so “with knowledge of the circumstances” of the act, and it’s hard to say Ecuador knew about the Russian hacking.

Moreover, even if Ecuador fears complicity of some sort, the release of the documents does not seem to represent truly unlawful interference in the US elections, as seen from the legal elaboration above. It certainly can affect the outcome, but is it coercive and does it deny the United States voters a voice in charting the future course of their country? Again, governments routinely express their preferences in foreign elections, in some ways muted and other ways quite direct. According to the New York Times, Ecuador’s president has expressed the hope that Hillary Clinton will prevail. And, in the end, Wikileaks is merely releasing authentic communications. But while we may find these foreign preferences distasteful, or unwarranted, that does not make them illegal. A harder question concerns the illegality of the hacking itself, as Sean Watts points out over at JustSecurity. If it’s not illegal under current international law, there is a good argument from the perspective interstate order that it should be, and state attitudes might well change on this question.

All this suggests that international law does not require Ecuador to sever the internet connection. Nevertheless, Ecuador’s invocation of the principle of noninterference is not that surprising. Latin American countries have traditionally been among the strongest advocates of the norm of non-intervention, and so from Ecuador’s perspective their claim that Assange’s acts constitute such interference does not seem cynical, even if that claim has not been broadly accepted internationally. Quite ironically, it is Latin America’s sensitivity to historical heavy-handedness by the United States in some Latin American countries that serves as the ground for an Ecuadorian attempt to avoid interference in the U.S. elections.

Ironic, but also quite principled. For legal rules do not function merely as commands to states as to what they must or must not do. Law can also frame a policy decision by suggesting that that decision is grounded in, and consistent with, a legal norm. As Rosalyn Higgins wrote long ago about the Security Council, we are witnessing “political operation within the law, rather than decision making according to the law.”

We will probably never know Ecuador’s exact motivations for the latest move. Maybe the U.S., the UK, or one of Ecuador’s friends read the government the riot act. Maybe its leaders want Hillary Clinton to win. Maybe they and their diplomats are getting a little tired of their houseguest and are signaling that they want to end the standoff with the UK and Sweden. But whatever their motivations, they seem to have come up with a pretty sound legal grounding for their actions. Their hands may not be so tied that they were legally bound to cut off the connection, but they have deployed the law to give a principled reason for doing so.

Kim Priemel, “The Betrayal: The Nuremberg Trials and German Divergence”

by Kevin Jon Heller

I want to call readers’ attention to Oxford University Press’s publication of my friend Kim Priemel‘s new book, The Betrayal: The Nuremberg Trials and German Divergence. Here is the publisher’s description:

At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of ‘genocide’ and ‘crimes against humanity’ had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany’s divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a ‘civilised’ nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler’s rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today’s courtrooms from Arusha to The Hague.

I cannot recommend the book highly enough. It’s a remarkable piece of scholarship, weaving together legal history, political history, and intellectual history into a seamless and compelling whole. Kim is a superb historian — and one who writes about law as well as most legal scholars. The book also does something almost unprecedented: tell the story of the IMT and NMTs together, which is necessary for understanding both. The book’s only competitor in that regard is Telford Taylor’s wonderful book The Anatomy of the Nuremberg Trials: A Personal Memoir — but Taylor’s book is, as the title indicates, a memoir, not an “objective” legal history.

Anyone interested in Nuremberg, international criminal law, or transitional justice will want to pick up a copy of The Betrayal. To appropriate Larry Solum: read Priemel!

The Brexit Case and the Foreign Man on the Clapham Omnibus

by Mariam Kizilbash

[Mariam Kizilbash read for her LLM in Public International Law from UCL, has worked as a legal officer with charities in London and Islamabad on areas such as death-row offences, US drone strikes and large-scale corporate corruption. She now works now as a freelance writer.]

An Englishman of Bangladeshi origin, an Irishman, two Scotsmen resident in France, a Welshman and and a Gibraltarian, whose wife is Spanish, with family resident in Spain.

Miss Mountfield does not narrate these individuals as the start to a colourful joke, but as an introduction to the parties she is representing in her submissions in the ongoing case, The Queen on the Application of Santos & Miller v Secretary of State for Exiting the European Union 2016, which concerns, as she points out, the nature of the EU citizenship rights which her clients enjoy and seek to enjoy.

The UK High Court through this case is presently considering whether ministers can invoke Article 50 of the Lisbon Treaty, the trigger for formal talks for the UK to leave the European Union, without Members of Parliament passing a new law which allows them to do so. It may be interesting especially for the people affected by Brexit, to try and make sense of what points were raised by the first hearing on Thursday.

While the UK Government feels a need to argue that the European Union will, by no means, be re-joined by the UK via a “back door” being unbolted through the bringing of this case against them, for the claimants, perhaps it is just about the pertinent legal point; only Parliament, they argue, can remove or reduce rights granted under law and Article 50 must have the consent of the House of Commons and the House of Lords.

If the Government intends to give simple effect to the outcome of the EU referendum without this step, royal prerogative- a collection of executive powers held by the Crown-will be seen to trump parliamentary sovereignty, something which just cannot be legally done as the claimants are arguing.

Till now some of the claimants in this case have had their arguments heard. Some of the most cogent arguments I feel made by Lord Pannick on behalf of Ms. Gina Miller, the lead claimant in this case last Thursday were these:

Firstly, that notification of withdrawal from the EU via Article 50(2) of the Lisbon Treaty, has a “dramatic impact” in UK domestic law. This removes certain rights conferred by Parliament through the European Communities Act 1972. This is why these rights cannot be simply removed by a minister through his prerogative powers.

Secondly the EU Referendum Act 2015 itself, lacks a provision specifying what consequences, if any, should follow from the referendum result. The Act, said Lord Pannik, does not provide statutory authorization for the trigger notification. Neither does it suggest common law legal limits on the use of the prerogative are in any way limited by the Act.

Thirdly, the European Communities Act 1972, confers rights at international law which take effect it national law. These rights also take priority over inconsistent national law. For example the Van Gend & Loos case, pointed out the direct applicability of European community law which renders inapplicable any conflicting national law. This is a case about the limits of executive power where the Parliament has itself conferred those fundamental rights to the citizens of the country. Presumably this means, the Parliament must inevitably now have a say in the change or discarding of those rights.

Fourthly, the defendant cannot lawfully use the prerogative to make the notification under Article 50 because this has the intended consequence of depriving individuals of rights they currently enjoy under the 1972 Act as well as other legislation. The Case of Proclamations from 1610 narrated by Lord Pannick, amongst others, stated “The King, by his proclamations or other ways, cannot change any part of the common law or statute law or the customs of the realm.” A common law restriction on the use of prerogative powers can only be removed or altered by an express statutory provision. Lord Pannick stated: “The fact that Parliament has not addressed the common law use on the limits of prerogative powers simply means in my submission, and elementarily means, that Parliament is content for the common law limits to continue to be applied by the courts.” This argument may be a reverse form of the Lotus principle i.e. the Lotus principle would result in the thinking that it is permissible to assume there is executive prerogative to make the Brexit notification in absence of Parliament not expressly forbidding this, but here it is being said executive prerogative cannot be said to prevail over Parliamentary sovereignty because the latter has not expressly overruled the common law restriction of it doing so.

Meanwhile, Mr. Chambers on behalf of the claimant Santos, stated this case can simply be resolved by a direct application of parliamentary sovereignty- the “most fundamental legal doctrine of the British constitution.” No person or body is recognised by the law as having the right to override or set aside the legislation of Parliament. Indeed, the Bill of Rights 1688 states: “The pretended power of suspending of laws, or the execution of laws by a legal authority without consent of Parliament, is illegal.”   Chambers also reminded us of an interesting point. The philosopher, John Austin, in his lectures Province of Jurisprudence Determined, spoke about a “sovereign” as being the electorate; in this case, indeed can the “sovereign” be seen as majority of UK people who voted for Brexit in the 2015 Referendum instead of the UK Parliament? However Chambers goes on to say that the electorate may be the political sovereign and not the legal sovereign even in Austin’s terminology- the latter which remains the UK Parliament.

There have been a string of other legal cases of course in the past which have examined the dance between Parliament sovereignty and the opposing, executive prerogative. For instance, in Attorney General v De Keyser (1920), the House of Lords had to decide whether the Government could use a broad prerogative power to requisition property, rather than using a statutory power which allowed the same but also imported an obligation to pay compensation. Lord Parmoor said: “The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments.” In R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995], the question was whether the prerogative could be used to establish a criminal injuries compensation scheme, given that such a scheme was already granted by statute while not yet in force. In that particular case Lord Browne-Wilkinson said “it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament.” In both cases the prerogative was curtailed. In BBC v Johns ( HM Inspector of Taxes) 1964, LJ Diplock had stated: “It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative…”

However, these cases by no means give a clear cut answer the Brexit conundrum. De Keyser established if legislation grants the Government a power to do something which the Government is also empowered to do under the prerogative, then the statutory power displaces the prerogative power if the statutory power is subject to conditions to which the prerogative power is not. The Fire Brigades Union case examined the manner in which the Government must act. The BBC case was more concerned with which institution can claim the prerogative and in doing so, be subject to judicial review.

In the Brexit case before us today however there is no conflict between statute and prerogative. Instead the tension is between the relationship with the European Union both the Parliament and the Executive individually hold and who can effectively now dissolve this relationship.

The Queen on the Application of Santos & Miller is also not the only “Brexit” case. The United Nations Commission might be hearing a petition by World War 2 veteran who argues that British citizens abroad were denied the right to vote in the referendum. Barrister Eskander may assist clients against individuals who lead the exit campaign on the interesting legal premise of “broken promises”. But Santos & Miller, which will surely go up to the Supreme Court may be the most decisive case by a UK court.

What arguments the defence presents next week will be beyond interesting. After all, we are far from the days where the execution of the royal Charles 1 was brought on by his altercations with Parliament. One also cannot forget Lord Steyn’s words in Jackson v Attorney General 2005 when he said: “Parliamentary sovereignty is no longer, if it ever was, absolute….”

The EU’s other 27 members have said negotiations about the terms of the UK’s exit cannot begin until Article 50 has been invoked. All eyes and ears will be on the case as it continues and the following Supreme Court appeal which will be leapfrogged to the end of this year. Already being hailed as the Queen Mary of all constitutional cases, this affair after an already controversial Brexit, questions the relationship between state organs, the result of a national referendum as well as the rippling effects on devolved governments- as arguments next week will reveal.

15 Years Later: A History of the Forever War and the Laws of War (Part 2 of 2)

by Boyd Van Dijk

[Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He holds degrees in History and Political Science from the University of Amsterdam and Columbia University. He is currently working on a new international history of the Geneva Conventions of 1949. His first post can be found here.]

In my first post I discussed the historical origins of the ideas underpinning the relationship between war and peace, and those rules regulating them – and demonstrated the risks that arise from prioritizing one field over another. This second post will bring the story forward to today.

The United Nations, ICRC, and IHL

The United Nations, like its predecessor the League of Nations, was initially also very skeptical about saying anything regarding the laws of war. Largely in line with the League’s Covenant, the UN Charter remained completely silent on this issue, mainly out of fear that it might undermine its wish to re-create stability between the Great Powers and lasting peace following the defeat of the Axis powers. In light of these attempts to ban most types of war (except of self defense), Jesús Yepes, the Colombian representative at the International Law Commission, said “it would certainly create an unfortunate impression on public opinion if the laws of war were included in the list of topics for codification.” Whereas some of its state representatives demanded the laws of war’s further development, the ILC as a whole finally removed the subject from its drafting agenda. This situation changed gradually only in the late 1950s – though arguably more so in the period directly afterwards.

At this time, certain prejudices or hostilities towards the laws of war started to slowly evolve, partly due to the UN Secretariat and the General Assembly’s progressive engagement with “reaffirming” and “developing” the Geneva Conventions, a terminology which had to prevent particular states from getting the impression they were trying to fundamentally revise the original treaties. This change in attention of the UN’s bureaucracy was a direct response to its most recent witnessing of violations and other legal defects that were exposed during the wars of the Cold War and decolonization, for instance in Algeria (see Fabian Klose’s article).

As a result of this change in attitudes towards the laws of war – a critical alteration which is badly in need of historical interpretation – there was a revival in interest, both intellectually as well as globally. The Carnegie Endowment for International Peace, originally skeptical about studying the topic, started to regularly publish reports about it. Similarly, the United Nations, like the ICRC, began preparing for the revision of the Geneva Conventions. In 1968, with the twenty years anniversary of its adoption of the Universal Declaration of Human Rights – and in light of its witnessing of forms of impunity in Vietnam and Palestine, the General Assembly accepted its so-called “Teheran Resolution,” demanding the recognition of human rights in wartime. Soon after, the UN Secretary-General published one of his famous reports, entitled “Respect for Human Rights in Armed Conflicts,” which helped to further stimulate the overall drafting process.

In other words, the UN, under the strong influence of its Human Rights Division led by the former wartime exile and Belgian jurist Marc Schreiber, broke almost completely with its original skepticism towards the idea of regulating warfare. Conversely, the ICRC, originally strictly limiting its focus to regulating war alone, gradually adopted certain elements of peace activism and universalism in its own rhetorical devices, mostly in light of pressures caused by the Cold War and decolonization.

While often neglected in the still booming human rights historiography, the Teheran Resolution constituted not just a major break in the UN’s own history, but it also showed the increasing overlap and cross-fertilization between originally quite separate – though far from distinct – initiatives and fields of international law. Around this period, Jean Pictet, one of the many influential drafters of the 1949 Geneva Conventions, coined the phrase of “international humanitarian law” (IHL), a term that incorporated different fields of law, including human rights law, “Geneva Law,” “Hague Law,” and possibly even the laws of peace, revealing the ever changing boundaries between these different legal realms. In 1970, he and others also helped to establish the International Institute of Humanitarian Law, in San Remo. At the same time, his organization, working closely together with (post-)colonial governments, felt forced to balance its humanitarian interests, which were informed by its fundamental principles of (Swiss) neutrality, independence, and impartiality (see Andrew Thompson’s article https://www.icrc.org/en/international-review/article/humanitarian-principles-put-test-challenges-humanitarian-action-during). Accordingly, it picked its battles strategically. Among other things, it expressed certain reservations when confronted with initiatives it saw as being ‘far too political’, for instance those demanding the end of ‘Western imperialism’, or certain racist regimes (Jim Crow laws, apartheid).

One example of this hesitant attitude of the ICRC can be seen in the fact that it kept a certain distance from particular peace movements, such as the World Peace Council that was under a strong Communist influence. In the 1950s, it attracted the attention of numerous activists, from Jean-Paul Sartre, Bertrand Russell to W.E.B. Du Bois, who sought to remove, as they claimed, the “causes” – e.g. colonialism, racism, marketism – rather than the “symptoms” of war – protecting hospitals in imperial wars. While being an observer at some of these Council’s meetings, the ICRC took a distance from the views at such gatherings, mainly out of fear they might potentially undermine its own (Swiss) humanitarian interests.

Still, in the wake of increasing superpower tensions and heated debates surrounding the topics of Third World-ism, peace activism, anti-racism, human rights, and civil liberties, the ICRC felt obliged to bring some of these efforts into line with its own ‘mental maps’, as it saw itself as a promotor of peace, for instance, although – as A.J.P. Taylor once noted – it preferred to see itself as pacifistic, rather than pacifist.

Take for example the ICRC’s application for the Nobel Peace Prize of 1963, which was sent by Pictet to his intermediary. In this document, it admitted forthrightly that it was often criticized for being “an obstacle to attempts to outlaw war,” or that in rendering war less atrocious it had made it “less detested.” While admitting that its work was not “completely pacifist,” it said that it essentially constituted “acts of peace,” thereby referring to its calls upon parties to abolish atomic warfare, to make a truce, or to create “inviolable areas” for wounded and sick soldiers where “fire and the sword had no place.” In addition to these examples, the ICRC further suggested that it had helped to bring about a so-called “advent of ethical ideas,” leading to a situation in which the “political and military interests of states (…) [are] no longer the only ones concerned.” In connection to this, it claimed that “its existence, its work, its attitude, [were] a living protest against the unleashing of material forces” – a clear reference to the recent Cuba Crisis and its threat of a nuclear Holocaust.

To sum up, at a time when the anniversary of the post-September 11th AUMF and the commencement of the “forever war” continues to attract popular and scholarly attention, it is worth remembering three lessons about its complicated relationship with especially the laws of war. First, by moving beyond overly simplistic dichotomies or anachronistic suppositions, the laws of war are about far more than just making war more humane. Its history has been shaped by a mosaic of ideas, both progressive and deeply conservative, as well as states, armies, national liberation movements, international organizations to humanitarians, including the ICRC.

Second, instead of being legal comrades in arms, advocates of the laws of war and those fighting against injustice and for peace have frequently been uncomfortable bedfellows. And, lastly, it is vital to remember that this relationship, featuring a history of major contradictions, paradoxes, potentials, and limits, is far less teleological, or unitary, than what many have said so far. Sometimes they, the work of the laws of war and that of peacemaking, overlap and work cooperatively, whereas at other times they operate completely independently, or even work in ways going directly against each other, with occasionally potentially dangerous implications in light of relatively new technological (e.g. drones, autonomous weapons), legal (such as the 9/11 AUMF, the responsibility to protect), and certain ideological developments (the rise of emergency doctrines).

15 Years Later: A History of the Forever War and the Laws of War (Part 1 of 2)

by Boyd Van Dijk

[Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He holds degrees in History and Political Science from the University of Amsterdam and Columbia University. He is currently working on a new international history of the Geneva Conventions of 1949.]

Fifteen years ago, the longest war in American history began. Following the 9/11 attacks the United States Congress passed an Authorization to Use Military Force (AUMF). Shortly after, the Bush Administration decided to question the relevance of the 1949 Geneva Conventions, a position recently re-endorsed by the Republican presidential candidate. Since then, consecutive US governments have used that AUMF to justify their effective continuation of the so-called “War on Terror.” Armed operations, from drone strikes to special operations, have taken place in areas across the globe, most recently in Syria and Iraq as to fight ISIS, a terrorist organization originating in a period long after 9/11. Some have, therefore, spoken of a ”forever war.”

In two provocative and historically-rich contributions for Dissent and Just Security, Harvard Law professor Samuel Moyn asked whether our preoccupation with making war more humane (“hygienic”) has perhaps led to this outcome of endless fighting. By contrast, constitutional lawyer David Cole has (rightfully) pointed out that most civil liberties activists have actually done both: they have criticized Washington’s track record of endless war and its violations of the laws of war. There is “little evidence,” he notes, which could show that their concerns about making wars less inhumane have led to a softening of their criticisms towards the US government’s continuing effort to wage war. Clearly, this debate has a certain resonance with the ongoing controversies surrounding the tension between retribution and peace – think of the ICC’s intervention in Sudan, or that of Human Rights Watch in Colombia most recently.

Strikingly, however, both experts seem to have a very selective – and problematic – understanding of the historically ambiguous, yet constantly changing relationship between the two fields of international law in wartime – jus in bello and jus ad bellum. In this post, adhering to Moyn’s call for a new history of this forever war and its relationship with those laws and principles regulating its conduct, I will shed light on this often misunderstood history by arguing that it is far more contradictory, if not paradoxical, and definitely less uniform than what is commonly assumed.

Lieber and Belligerent Equality

While referring to the genesis of the Red Cross movement in the 1860s and seeking to challenge particularly certain triumphalist accounts, Moyn defines the laws of war as essentially a tradition that seeks to make war more humane. However, to quote the Austrian-American jurist Joseph Kunz, this movement owed less to professors, statesmen, or humanitarians, than to soldiers, such as Francis Lieber. A war veteran, first, and a legal scholar at Columbia College, second, Lieber prepared the well-known and influential code governing the conduct of Union soldiers during the US Civil War. In contrast to those narratives built upon the founding fathers of the Red Cross seeking to alleviate the suffering of (certain) victims of war, Lieber, another early advocate of the laws of war in the nineteenth century, held the view that one could allow for forms of suffering to occur so as to end wars and injustice – slavery, for instance – quickly. In line with this maxim, President Lincoln, trying to increase pressure on the South’s slave regime, decided to halt the exchanges of prisoners of war with his enemy, causing a major inflation of the death toll in the war’s already overcrowded POW-camps.

It is important not to forget that Lieber’s idea, instrumentalizing the laws of war by making them dependent upon a just – or unjust – cause, combined with a comparatively strong if not distinct notion of military necessity, has been subsequently endorsed by many other jurists. In the 1940s, the Allied prosecutors at the Tokyo War Crimes Trials – as well as those in Nuremberg, were focused less on crimes in war than on war itself as crime (see this piece by Moyn). They argued that, since aggressive war was prohibited by the 1928 Kellogg-Briand Pact, the death of any soldier by the invader was a murder, rather than a legal act of war. Similarly, a few years later, when discussing the revision of the Hague and Geneva Conventions, an Israeli delegate, a survivor of the Shoah, and a soldier too, noted that:

“Up to the last war combatants alone were involved in the event of conflict. That was no longer the case during the Second World War [when] a belligerent power [i.e. Nazi Germany] was manifestly bent on exterminating a whole people, massacring women and children in cold bold. What should a people do in such circumstances? Should it not rightly and dutifully seek to defend itself?”

Like many members of certain national liberation movements, later Communist states, or other Jewish survivors, including Raphael Lemkin, the godfather of the Genocide Convention, the Israeli delegate demanded lowering the law’s threshold for those acting against genocidal and/or racist rule. In doing so, he questioned the doctrine of so-called ‘belligerent equality’, which means that the laws of war apply equally to everyone regardless of the (in-)justice of his or her cause. If accepted, the denial of this principle might give, for instance, irregulars having a just cause (e.g. fighting occupation, or a war of national liberation) the right to target civilians with enemy ties indiscriminately, to take them hostage, or to use ‘human shields’ when fighting in an asymmetrical war.

Ironically, as a typical example of the Arendt-ian boomerang effect, this very same principle was re-addressed in the 1970s, when the Additional Protocols were being discussed, by certain delegates who criticized the Israeli occupation of Palestine – and wished to let go of this belligerent equality principle. Around the same period, the Communist North Vietnamese even argued, loosely based upon Lenin’s revolutionary ideas of just and unjust wars, that, as they considered themselves as victims of aggression by the United States, they were not bound to give POW rights to captured US personnel (‘war criminals’), a radical position they (unsuccessfully) defended at the Protocols’ negotiating table. Since then, a similar critique – though originating from a very different legal-intellectual starting point – has been raised by certain revisionist political theorists, such as Jeff McMahan and Cécile Fabre of All Souls College, who have questioned Michael Walzer’s embrace of belligerent equality and/or legitimate authority. Again, it shows the great diversity and constantly changing set of ideas underpinning the relationship between these two legal domains in wartime – jus ad bellum and jus in bello.

The Great War

Like the 1970s, the period up to the Great War witnessed a great deal of interest in the laws of war, a discipline then still highly Eurocentric, very strictly defined, or consciously left vague in light of certain dominant state interests (see the then ratified law’s silence on blockading).

During these years, the laws of war received extensive study by jurists and soldiers alike. Established by the “men of 1873” [http://www.cambridge.org/jo/academic/subjects/law/public-international-law/gentle-civilizer-nations-rise-and-fall-international-law-18701960] following an initiative supported by Lieber, the Institut de Droit International promoted the development of the laws of war. Numerous publications in various languages were published on this topic. Exemplary of this growing interest in the laws of war were the Hague Conventions of 1899 and 1907: the majority of their provisions do not affect the field of peacemaking – aggressive war was still considered lawful, but rather with the regulation of warmaking. As some would complain later, the “moral forces” of this era were “diverted” from the former to the latter – a Moyn-ian criticism avant la lettre.

With the outbreak of savagery on the “civilized” European continent in August 1914 (see my contribution https://muse.jhu.edu/article/627404), the tide slowly turned in favor of those critics. At the end of World War I, many (and especially jurists themselves) claimed that rules for warfare were useless because they will be broken; war can only be abolished, not regulated. Their attention then shifted to alternative plans in order to “end all wars,” such as collective security and “peace through justice,” culminating in the League of Nations’ Covenant and the 1928 Kellogg-Briand Pact (see here), even though neither of these instruments banned war, nor reprisals, altogether – an element which is often forgotten in anthologies describing their history.

By banning certain types of war, the study of the laws regulating the conduct of war lost its appeal almost entirely. Various law schools removed the subject from their curricula; the Institut de Droit International and l’Académie de droit international de La Haye banned it too, although only for a brief period of time. Neither did the legal specialists of the League of Nations put much interest in it, except with regard to regulating gas warfare – framed as part of the still far more popular project of disarmament – that was finally covered by the Geneva Protocol, signed in 1925. As a result of this lack of interest, contrasting with contemporaries’ growing appetite for the effort to taboo war itself by means of codifying law, the ICRC faced increasing criticisms as well as competition (e.g. from the American-dominated League of Red Cross Societies working exclusively in peacetime) in the interwar period. Or, as the Cambridge legal scholar Hersch Lauterpacht would later note, “if international law [was], in some ways, at the vanishing point of law, the law of war [was], perhaps even more conspicuously, at the vanishing point of international law.”

So what? Most importantly, it forced the ICRC, as well as its partners like the Belgian military physician Jules Voncken, of the International Committee of Military Medicine and Pharmacy, to pick its battles very carefully – with sometimes devastating results. For example, in the 1920s, it chose to first solve the allegedly “easier” question of regulating military imprisonment, which led to the acceptance of the POW Convention in 1929, as opposed to that of civilians in occupied territory, a matter which was for the first time seriously addressed only in the 1930s when the international system was breaking down rapidly.

What was the effect of this legal lacuna? Above all, it left civilians during the Second World War extremely vulnerable. In turn, this, a lack of comprehensive but strong codified protections for civilians, made it more challenging for Allied war crimes tribunals after 1945 to condemn those atrocities perpetrated against this group of victims. Particularly telling in this regard was the verdict of the (in-)famous Hostages Trial, held from 1947 to 1948. Its judges had to admit that the Nazis’ vicious counterinsurgency policies, featuring the taking of hostages, reprisal killings, and the summary executions of partisans, were mostly lawful considering the existing law’s permissiveness on these points – a warning from history especially for those wishing to prioritize one field over another. As important, the verdict revealed too how jurists’ perceptions of the idea of military necessity, or that of the boundaries between what is considered humane or savage, changed quite radically over time, both materially as well as in scope.

Monday, my second post will further reflect upon these and other questions, such as how the ICRC, as the guardian and promoter of the Geneva Conventions, struggled during the Cold War with questions of peace and injustice.

What’s the Right Comity Tool in Vitamin C?

by William S. Dodge

[William S. Dodge is the Martin Luther King, Jr. Professor of Law at the UC Davis School of Law, where he specializes in international law, international transactions, and international dispute resolution.]

American law has many doctrines based on international comity—doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit’s decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry’s interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should “abstain from exercising jurisdiction,” Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court’s. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity—deference to foreign lawmakers—which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court’s view, this doctrine authorized it to “balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders” (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court’s later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford “narrowly” (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as “too complex to prove workable.” Empagran recognized that ambiguous statutes should be construed “to avoid unreasonable interference with the sovereign authority of other nations,” but it also said in no uncertain terms that “application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.” Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must “declare invalid, and thus ineffective as ‘a rule of decision for the courts of this country,’ the official act of a foreign sovereign.” W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants’ own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China’s interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its “comity” analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. “International comity” is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

by Julian Ku

As we face the first U.S. presidential debate tonight (on my home campus of Hofstra University!),  the possibility of a President Trump seems more and more real.  Although U.S. election analysts all make Hillary Clinton the favorite, most of them continue to give Trump a very realistic chance of winning on November 8.  I am not a Trump supporter, but I think it would be irresponsible not to think seriously about the legal policy consequences of his election to the presidency.  In particular, candidate Trump has promised or threatened to withdraw the U.S. from numerous international treaties and agreements such as the North American Free Trade Agreement, the World Trade Organization, NATO, the U.S.- Japan Mutual Defense Treaty, the Paris Climate Change Agreement, and the Iran Nuclear Deal (I am sure I am missing a few more).  Unlike our friends in Britain who weren’t really planning for Brexit, I think those of us here in the U.S. should start planning, before it happens, for “Trumpxit.”

As an initial matter, we should consider to what extent a President Trump could unilaterally withdraw the U.S. from international treaties and agreements.  I notice that most commentary, including this scary piece by Eric Posner in the NYT from this past spring, assume the President has this unilateral power. But I do not think this issue is not entirely settled as a matter of U.S. constitutional law.

In the 1979 decision Goldwater v. Carter, the U.S. Supreme Court dodged the question of whether a President could unilaterally terminate the U.S.-Republic of China (Taiwan) mutual defense treaty without consulting or getting the approval of the U.S. Senate by invoking the political question doctrine and (in a concurrence) the judicial ripeness doctrine.  No U.S. court has, as far as I am aware, reached the merits of this question.  I think scholars are somewhat divided, and historical practice is mixed.

President George W. Bush did set a precedent in favor of presidentialism, however, by withdrawing from the Anti-Ballistic Missile Treaty in 2002 without getting the approval of the Senate and President Carter did likewise in the 1979 Taiwan defense treaty.    It seems likely that the president does have unilateral authority to withdraw the U.S. from treaties which specify terms for withdrawal and which don’t require further alterations or changes to domestic U.S. law.

Defense Treaties/Military Alliances

This suggests that a President Trump could terminate NATO and the US-Japan Defense Treaty pursuant to those treaties’ withdrawal provisions.  Interestingly, the NATO Treaty Article 13 specifies that “Any Party” can terminate their membership with one year’s notice.  That notice must be sent to the U.S. Government. So I guess a President Trump could give himself a one year’s notice?

Because the issue has not been settled by the U.S. Supreme Court, another Goldwater v. Carter type lawsuit could be brought.  It seems less likely that such a case would be dismissed on political question grounds given recent Supreme Court jurisprudence, but I think the smart money would be on a President Trump prevailing on the merits on a challenge to a presidential NATO or US-Japan Defense Treaty termination.

Nonbinding/Sole Executive Agreements

On the other end of the spectrum, I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.   This would be true, even if the agreements were treated as binding international agreements, since both agreements have withdrawal provisions.  Since the Senate or Congress never approved either agreement, there is no need to ask them for approval to terminate it either.

Trade Agreements 

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

For instance, in the most recent version of the “fast track” enacted by Congress to allow President Obama to finalize the TPP, Section 103(b) states:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

(Emphasis added).  This language means that there is at least a colorable argument in favor of requiring a President Trump to seek congressional approval before withdrawing from a trade agreement like NAFTA or the WTO.  To be sure, both trade agreements have specific withdrawal provisions similar to those found in the NATO treaty. But the fact that the president is acting pursuant to his congressional authorized “trade promotion authority” suggests that Congress did not necessarily delegate the power of termination to the President alone.

Moreover, the implementing legislation for some trade agreements further suggests Congress has reserved some residual “termination” power.  In Section 125 of the Uruguay Round Agreements Act, for instance, Congress may terminate U.S. participation in the WTO with a joint resolution of both Houses.  This does not necessarily mean the U.S. is automatically out, but since the President can’t (under the terms of the law) join the WTO until Congress approves, presumably withdrawing that approval terminates U.S. participation.  It is all somewhat uncertain, but again, I think there is colorable argument that a President Trump could not unilaterally withdraw the U.S. from the WTO,  NAFTA and other trade agreements.

O O O

None of this may matter, of course, if we get a President Clinton instead.  But as the possibility of a President Trump gets closer to reality, we need to start thinking about the legal authority he would have to fulfill his campaign promises, and the limits (if any) on that authority,