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Making Libya an ICC Priority Situation: Fake Promises to a Difficult Customer?

by Alexandre Skander Galand

[Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University.]

Exactly one week before the annual meeting of the Assembly of States Parties (ASP) to the Rome Statute, Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), was before the Security Council (SC) presenting her Twelfth report on the situation in Libya pursuant to resolution 1970 (.pdf). As the ASP’s 2016 annual meeting was probably the most important one since the Statute’s entry into force, recent coverage in academic circles has missed the ICC Office of the Prosecutor (OTP) unsuccessful try to bargain with the SC.

In the wake of the recent withdrawals of South Africa, Burundi and Gambia from the Rome Statute, it is obvious that a need for a new strategy is necessary for the Court to remain a relevant – and alive – institution. At the SC 7806th meeting (.pdf), 9 November 2016, the OTP made clear that it was ready to be flexible in its prosecutorial discretion over which crimes to investigate if this could please the SC. Indeed, the OTP offered to exercise its jurisdictional power against two of the most prominent threats to the P-5 world order, i.e. the Islamic State (aka ISIS, ISIL, or Daesh) and the migrant crisis. However, this commodity came at a price: the SC needs to finance and ensure the security of the Court’s staff.

In return for a more comprehensive framework for OTP to operate in Libya, Bensouda pledged to make Libya a priority situation for next year. Three actions were thus summed up. First, it announced that it intends to apply for new warrants of arrest under seal. Second, it will undertake new investigations and consider bring charges for crimes committed by the Islamic State. Third, it will study the feasibility of opening an investigation into alleged criminal acts against refugees and migrants in Libya. In this post, I will tackle the last two issues. I will argue that current crimes committed in Libyan territory are on the verge of falling outside ICC’s jurisdiction.

Crimes currently committed in Libya by the Islamic State

The OTP asserted that her new investigations will consider recent and current instances of alleged crimes committed by the Islamic State. This new focus received a positive feedback from many SC members; in particular the UK, France, Egypt, Ukraine and Venezuela. The Islamic State and other terrorist groups have been active in Libya for a certain period. Already on 12 May 2005, the OTP had declared before the SC (.pdf), that her office “considers that ICC jurisdiction over Libya prima facie extends to such alleged crimes” perpetrated by the Islamic State.

One may question, however, whether crimes currently committed in Libya do still fall within the jurisdiction of the Court. Libya is not a State party to the Rome Statute. The ICC jurisdiction over Libya emerges from SC resolution 1970, adopted on 26 February 2011, under Chapter VII of the UN Charter. In order to invoke its Chapter VII powers to trigger the Court’s jurisdiction under Article 13 (b) Rome Statute, the SC had to, according to Article 39 UN Charter, find that the situation in Libya constituted a threat to international peace and security. In my opinion, the threat noted in SC resolution 1970 constitutes the legal basis and the contextual framework on which the ICC’s jurisdiction over Libya is premised.

The threat to international peace and security, back in February 2011, were crimes committed by Gaddafi’s regime against popular protests and demonstrations taking place in several Libyan cities – as the preamble of the referral indicates. After the referral, the Libyan situation spiraled into an armed conflict between Gaddafi’s and rebels’ forces, accompanied by a NATO intervention. Since then, the Gaddafi regime has fallen and Libya has been into a civil war where security and control by the Libyan authorities have not been achieved. While forces claiming to be associated with the Islamic State have seized this chaos to control part of the Libyan territories, we are very far from the situation that constituted a threat to international peace and security back in February 2011.

In Decision on the Prosecutor’s Application for a Warrant of Arrest against Mbarushimana (.pdf), Pre-Trial Chamber I stated that the ICC can exercise its jurisdiction over repeated times as long as the crimes “are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral.” True, the situation concerning the Islamic State in Libya has been declared by the SC to constitute a threat to international peace and security. However, the initial threat noted in SC resolution 1970 is neither mentioned in the meetings nor in the resolutions condemning the Islamic State’s criminal acts in Libya. Indeed, the situation has changed.

For how long will the ICC jurisdiction extend over the territory of Libya? Like for other trigger mechanisms foreseen by the Statute, a SC referral to the ICC, does not entitle the Court to exercise jurisdiction over a situation ad infinitum. While SC resolution 1970 refers the situation in the Libyan Arab Jamahiriya since 15 February 2011, it does not set an end date. Since the referral does not specify for how long the jurisdiction of the Court ought to or may be exercised, it is left to the discretion of the Court. As I argued elsewhere, to capture within the same situation crimes committed by entirely different actors in a different context than the one initially constituting the situation of crisis at the time of the referral is an overstretch of the ICC jurisdiction over Libya.

Crimes currently committed in Libya against migrants

A further type of crimes the OTP announced it will examine in Libya is crimes committed against migrants, refugees and asylum seekers. One may recall that Gambia in the weeks preceding its official notification of withdrawal (.pdf) said it had been trying unsuccessfully to push the Court to punish the European Union (EU) for the death of thousand of African refugees to reach its shore. The OTP partly responds to this by saying that it will “continue to study the feasibility of opening an investigation into alleged criminal acts against refugees and migrants in Libya.” While I doubt that it will find evidences that the EU is committing these crimes on Libyan territory, this new focus on crimes against African migrants passing through Libya pleased the Angolan representative to the SC, who stated ‘In that regard, we consider the ICC to be highly important in Libya.’

For the same reasons as for crimes currently committed by the Islamic State, one might express doubts about the Court jurisdiction over crimes against migrants in Libya. Although such crimes could indeed fit within the jurisdiction ratione materiae of the Court (e.g. crimes against humanity of enslavement), I am unsure that the context in which they are currently committed in Libya is sufficiently linked to the original situation referred by SC resolution 1970.

As the OTP says it in its report, many serious crimes are committed in Libya, ”both conflict and migrant related.” However, one has to acknowledge that on a prima facie basis the migrant related crimes currently committed in Libya do neither involve actors active in 2011 nor are they part of the context that was ongoing at the time of the original situation.

To be sure, I am not arguing that the ICC does not have jurisdiction over any current crimes committed in Libya. Crimes committed by Libyan armed militias and the Presidency Council’s forces are indeed part of the post-Gaddafi transition. Furthermore, both the Islamic State’s crimes and crimes against migrants may be defined as symptoms of Libya’s lack of unified and effective security institutions. Thus, it may be claimed that this security vacuum ultimately results from the threat to international peace and security SC resolution 1970 aimed to repress.

However, it seems to me that a second referral of the situation in Libya would be appropriate for the ICC jurisdiction to be (safely) legally grounded. As an example for the need of a second referral, one may take the case of the Central African Republic (CAR). In December 2004, CAR then-president, François Bozizé, referred (.pdf) to the OTP a situation where “des crimes contre l’humanité et des crimes de guerre relevant de la competence de la Court ont été commis sur toute l’étendue du territoire de la République Centre Africaine à compter du 1er juillet 2002.” The conflict ongoing at the time of the referral was between Bozizé’s forces and the CAR former president from who he had overthrown power through a coup, Ange-Félix Patassé, who was backed by Jean-Pierre Bemba’s (.pdf) then-rebel army. The first CAR referral did not contain an end date, nonetheless the OTP limited its jurisdictional framework over crimes committed between 2002-2003. In May 2014, the transitional government of the CAR – Bozizé had been ousted by Séléka forces in 2013 – sent a second referral to the Court with respect to “la situation qui prévaut sur le territoire de la République Centrafricaine depuis le 1er août 2012”. While one may have argued that CAR II is a continuation of CAR I, it was deemed in this case, that the incidents of 2013-2014 was a situation separate from the one referred by the Central African authorities in December 2004.

The solution to all these jurisdictional conundrums would simply be that Libya ratifies the Rome Statute. If Libya ratifies the Rome Statute, it could refer to the Court the new situation involving war crimes and crimes humanity committed in Libya since the fall of Ghaddafi’s regime. Or, if Libya does not refer under Article 13(a), the OTP could initiate an investigation proprio motu. On the other hand, if Libya does not ratify the Rome Statute, the OTP should try to convince the SC to make a new referral of the current situation in Libya. This would ensure that its jurisdiction over the Islamic State and crimes committed against migrants is not based on a perceptibly faulty legal basis. With Russia’s declared hostility to the Court, the latter option seems implausible.

While the OTP announced its willingness – despite clear legal basis to do so – to prosecute crimes that were in the SC current agenda, no resolution on financing and security for ICC’s staff was adopted at the end of the SC 7806th meeting (.pdf). If Libya becomes a State party to the Rome Statute, it would allow the OTP to gets out of its bad bargain with the SC. And, in contrast with the SC, Libya will at least contribute to the Court budget.

Boer on Footnotes in Use of Force Scholarship

by Kevin Jon Heller

My friend Lianne Boer, who recently finished her PhD at VU Amsterdam, has just published a fantastic article in the Leiden Journal of International Law entitled “‘The greater part of jurisconsults’: On Consensus Claims and Their Footnotes in Legal Scholarship.” Here is the abstract:

This article portrays the use of consensus claims, as well as their substantiation, in the debate on cyber-attacks and Article 2(4) of the UN Charter. Focusing on (re)interpretations of the prohibition on the use of force in the light of cyber-attacks, the article first shows how scholars appeal to the ‘majority opinion’ of scholars or the ‘generally accepted’ interpretation of the norm. It points out the different uses of these ‘consensus claims’, as I refer to them, and what scholars invoke exactly when referring to this elusive majority. Elaborating on this ‘elusive’ nature of consensus, I argue that the appeal of a consensus claim lies precisely in its invocation of a fairly mystical ‘out there’. Consensus, as it turns out, evaporates the moment we attempt to substantiate it, and this might be precisely where its strength lies. The second part of the article thus shifts focus to how these claims are substantiated. An empirical inquiry into the footnotes supporting consensus claims reveals that, most of the time, writers refer to the same scholars to substantiate their claims. Making use of Henry Small’s idea of ‘concept symbols’, the article argues that these most-cited scholars turn into the ‘bearers’ of majority opinion. On the level of the individual academic piece, the singular reference might appear to be fairly innocent. Yet, when considered as a more widespread practice of ‘self-referentiality’, it seriously impacts who gets a say – and thus, ultimately, what we know – in international law.

This is truly innovative scholarship — the kind of work that makes you ask yourself, “why didn’t I think of that?” Well, Lianne did think of it. And I hope her article, as well as her dissertation, spurs similar work in other areas of international law.

Read Boer!

The UN’s Apology Won’t Heal Disease, But It’s A First Step to Justice

by Beatrice Lindstrom

[Beatrice Lindstrom is a Staff Attorney at the Institute for Justice & Democracy in Haiti and counsel for plaintiffs in the lawsuit Georges v. United Nations.]

When the outgoing Secretary-General issued his long-overdue apology for the UN’s role in Haiti’s cholera epidemic, he turned a corner on six years of silence and stonewalling. At the Bureau des Avocats Internationaux—the Haitian public interest law office that has led the charge against the UN for introducing the disease to Haiti—about 100 victims and activists were gathered to watch a live-stream of the statement in Port-au-Prince. They broke into spontaneous cheers and applause when the apology was delivered.

“This was a victory for us today. It wasn’t easy. We sent thousands of letters and took to the streets to get this victory, for them to say today that they were responsible. They said that, and we thank them…” said Desir Jean-Clair, a cholera survivor who has been organizing for justice, in a statement following the apology.

A public apology has been a central demand of the victims, along with cholera eradication and compensation for families who have suffered. While the disease has caused thousands of deaths and massive suffering since UN peacekeepers contaminated Haiti’s largest river with cholera-laden sewage in 2010, the UN’s failure to own up to its actions has itself been an affront to victims’ dignity. By continuously denying responsibility in the face of overwhelming scientific evidence to the contrary, and by hiding behind immunity to avoid an independent hearing on the merits of victims’ claims, the UN turned its back on Haitians and on its own human rights principles. Against this background, an apology from the Organization’s top leadership is a fundamental component of a just UN response.

As the Secretary-General acknowledged, however, “apologies don’t heal disease” – a play on a Haitian proverb that states that apologies do not heal scars. On December 1, he also launched a $400 million plan that will bring cholera control measures to Haiti and material assistance to victims. The material assistance is intended as a “concrete and sincere expression of the Organization’s regret,” and could take the form of community projects, death benefits to surviving families, or some combination thereof. [U.N. Doc. A/71/620]. Importantly, the plan promises to “place victims at the centre and be responsive to their needs and concerns” by engaging a nationwide consultation process on remedies.

These actions will be crucial steps to fulfilling the UN’s legal and moral obligations to the victims. Under Section 29 of the Convention on Privileges and Immunities of the United Nations and the Status of Forces Agreement signed with Haiti, the UN has a well-established obligation to address claims for compensation submitted by third parties “for personal injury, illness or death arising from or directly attributed to MINUSTAH.” An appropriate remedy, even if fashioned outside of this legal framework, is critical to staving off criticisms that the UN’s obligations have no meaning.

Yet the refusal to accept legal responsibility for the outbreak, and the decision to treat the new response as an expression of “solidarity” rather than as remedies for a legal wrong, complicates the UN’s ability to actualize the new plan. Whereas the General Assembly has an obligation to meet the Organization’s legal liabilities through assessed contributions [Memorandum to Controller, 2001 U.N. Jurid. Y.B. 381], the UN is currently relying on voluntary contributions from Member States, agencies, and even private individuals. Thus far, this has not generated adequate pledges to turn the plan into a reality.

On December 16, the General Assembly unanimously adopted a resolution calling on all Member States and other actors to provide their full support for the new approach.  This is an important signal that the Organization’s membership must step up and do its part. But to actually right the UN’s wrongs in Haiti, and avoid criticisms that the Organization operates above the law, governments must now follow through on this acknowledgement with actual funding

The UN must also ensure that it does not foreclose the option of providing cash payments to victims out of a misguided aversion to anything that could resemble compensation grounded in legal liability. In his report to the General Assembly, the Secretary-General outlined a series of challenges with direct payments, including identification of victims and meeting burdens of proof in a country with limited documentation. These challenges have been overcome in other similar contexts around the world, and merit full study and victim input to inform the way forward.

As the report notes, the new response “will inevitably be an imperfect exercise.” Full funding, and involvement of victims throughout the elaboration of the plan, will be critical to ensuring that the plan still translates into justice for cholera victims and lives up to its promise of healing the UN’s credibility in Haiti and the world.

Addendum to Goodman: Saudis Haven’t Promised to Stop Using Cluster Munitions

by Kevin Jon Heller

The inestimable Ryan Goodman has a new post at Just Security listing all the times the Saudis denied using cluster munitions in Yemen. As Ryan points out, we now know that those denials were what I like to call “shameless lies” (emphasis in original):

On Monday, British Defense Secretary Michael Fallon told the House of Commons that following the UK’s own analysis, the Saudi-led coalition has now admitted to using UK manufactured cluster munitions in Yemen. Mr. Fallon heralded the “transparent admission” by the coalition, and added, “we therefore welcome their announcement today that they will no longer use cluster munitions.” Many news outlets ran a headline focused on the Saudi-led coalition’s statement that it would stop using cluster munitions in Yemen (including Al Jazeera, Fox, ReutersUPI).

Lost in the news coverage is the Saudi-led coalition’s  consistent pattern of denial of using cluster munitions.

So, let’s take a walk down memory lane. At the end, I will discuss the significance of this pattern of denial for future policy options on the part of the United States and the United Kingdom.

At the heart of Monday’s revelations were allegations of the use of cluster munitions by Amnesty International, and here’s a key point: Riyadh previously assured the UK government that it had not used cluster munitions in response to Amnesty’s allegations.

Ryan’s post is very important, particularly its discussion of how Saudi Arabia’s admission could affect the US and UK. I simply want to point out something that also seems to have been lost in all the media coverage: Saudi Arabia did not promise to stop using cluster munitions in Yemen.

No, it promised to stop using British-made cluster munitions in Yemen. From Al Jazeera:

“The government of Saudi Arabia confirms that it has decided to stop the use of cluster munitions of the type BL-755 and informed the United Kingdom government of that,” said the Saudi statement, carried by state news agency SPA.

If Saudi Arabia only had BL-755 cluster munitions, its announcement today might be meaningful. But we know from investigations conducted by Human Rights Watch that Saudi Arabia has also used US-made cluster munitions in Yemen, particularly the CBU-105 Sensor Fuzed Weapon:

yemenclusters0516_map-01

Nothing in the Saudi statement rules out continuing to use American-made cluster munitions in Yemen. Only British ones are off the table. And if you believe that I am parsing the statement too carefully — well, I’d suggest reading Ryan’s post. Saudi Arabia cannot be trusted to tell the truth about the brutal UK- and US-backed counterinsurgency it is waging in Yemen. Full stop.

To Be Responsible for Ourselves: Dominic Ongwen and Defences Before the International Criminal Court

by Clare Frances Moran

[Clare Frances Moran is a Lecturer in Law at Edinburgh Napier University.]

The trial of Dominic Ongwen, in which he is pleading not guilty to the charges of war crimes and crimes against humanity, raises the question of how he may defend what he has done as commander in the Lord’s Resistance Army. The discussion of the use of duress for child soldiers has been undertaken elsewhere, but a more general examination of the defences is useful at this juncture. The prosecution of a former child soldier confronts a classic dilemma for the Court, the Prosecutor and, indeed, all with a vested interest in international criminal justice: When boy soldiers become adults and then, commanders, how do we deal with the aftermath of the crimes they commit? Should they be tried for all the crimes committed from childhood onwards, those committed in adulthood, or those that were committed while they were in command? Arguably this is where the issue of defences under the Rome Statute ought to play a role; could the defences be used to exonerate the individual or to mitigate their conduct?

The defences under the Rome Statute most likely to be utilised by individuals in the position of Ongwen would be mental disease or defect, destroying their capacity to perceive the wrongfulness of their actions, or duress which compelled them to act. Under article 31(1)(a), the first defence is open to those who can demonstrate that they suffer from a mental disease or defect that destroys their ‘capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.’ One of the two tests should be satisfied: either the accused did not know what he or she was doing as a consequence of mental disease or a defect in perception, or they lacked the control to conform to the criminal law that can be expected of the average person, again as a consequence of the defect or disease. The wording of the defence presents a complex set of question which would require expert opinion: what kind of illnesses would permit the use of the defence? Regarding the idea of a ‘defect,’ would this need to be medically or psychologically evidenced? From a legal perspective, it may be possible to argue that the brutality to which Ongwen was subjected altered his frame of mind so substantially that it ought to constitute a mental defect. As a consequence, it may be impossible to expect him to conform to the normative strictures which apply to most individuals, based on the impact on him of the treatment he encountered from such a young age. The experiences of child soldiers are well-documented, and their suffering is acute; this is beyond doubt. Fatou Bensouda’s opening statement at Ongwen’s trial demonstrates amply their vulnerability: she gives the example of child soldiers too small to properly carry the weapons which drag along the ground after them. In our search for international criminal justice, it is difficult to acknowledge that the worst crimes may be carried out by those who were originally victims themselves, leading to significant moral problems in pursuing their prosecution. Returning to the Rome Statute, Ongwen may qualify for the defence of mental defect, rather than mental disease, given that there is, at least, an arguable case that he cannot possibly be expected to control his behaviour following a lifetime of appalling treatment which may have resulted in psychological damage constituting a mental defect.

The defences of intoxication and mistake are likely to be outwith the scope of his pleading: the drafting of the Statute views intoxication as a short-term phenomenon, while his crimes were committed over a period of years. It is without doubt that the charges have been confirmed in a way which puts beyond doubt the mistaken commission of any of them, thus mistake would be unavailable.

This leaves duress as a defence, which highlights a key problem of the defence itself in what may transpire to be its first use before the ICC. The drafting of duress in the Statute indicates that it is available because he may meet the first test. Many child soldiers are threatened with death and brutalised, to anaesthetise them to the violence they are expected to display at a later point. This sort of treatment would undoubtedly constitute the serious threat anticipated by the defence in article 31(1)(d). However, the qualifications of a necessary and reasonable reaction, as well as the proportionality requirement of not causing ‘a greater harm than the one sought to be avoided’ would make it difficult for Ongwen and, indeed, anyone to plead the defence successfully. Duress appears stronger in the Statute than it actually is; it would be nearly impossible for it to be pleaded successfully in any circumstance. Duress in the Rome Statute is something of a façade. It constitutes a nod to Cassese’s dissent in Erdemovic, heeding the warning to avoid setting intractable standards of behaviour. However, it has been so tightly drafted that it is virtually inconceivable that it could ever apply to any cases involving serious physical harm of another person. It is questionable that Erdemovic himself would even have been able to use the defence, would he appear tomorrow before the ICC.

The issue of defences appears natural to a domestic criminal lawyer, but the issue is amplified at the international level because of the crimes that concern the ICC. The desire to include defences in the Rome Statute is a laudable aim, and one which honours Cassese’s legacy. However, the way in which the defences does not suggest that each has been considered as they might have. The distinction between mental defect and disease in article 31(1)(a) demonstrates thoughtful consideration of the problems regarding evidence of psychological, as well as psychiatric, problems. However, the defence of duress does not demonstrate consideration of how difficult it would be to meet the tests specified. The variable geometry of deliberation prior to the drafting of the defences is evident.

Defences in international criminal law are possible, but ought to be fairly and thoughtfully considered, paying heed to a key message in Cassese’s dissent: that there are broad and creative ways in which individuals may mistreat one another, and that international criminal justice must be prepared for these eventualities. The issue of defences connects to a key aspect of international criminal justice which must be considered when the defences are reformed: when is it just not to find war criminals guilty?

UN Apologies for Cholera Outbreak: “Moral Responsibility” and Legal Escapism”

by Pierre Bodeau-Livinec

[Pierre Bodeau-Livinec is Professor of Public Law at University Paris-Nanterre and the Managing Editor of The Law and Practice of International Courts and Tribunals.]

As Kristen Boon very aptly points out, apologies given on December 1 by Secretary-General Ban Ki-moon for the role of the United Nations with regard to the cholera outbreak in Haiti can only be welcomed as a highly significant “change of direction” in the conduct adopted by the UN since 2010. At the same time, the Secretary-General’s statement and the report introducing “A new approach to cholera in Haiti” raise a number of questions – and doubts – from the standpoint of international law, especially as far as issues of responsibility are concerned. This post purports to offer modestly some preliminary elements of reflection and background on some of these issues.

The first one relates to the (non-)admission of any legal wrongdoing or, to put in the terms of the 2011 ILC’s Articles on the Responsibility of International Organizations, of any “internationally wrongful act” actually committed by the UN in relation to the cholera outbreak. Obviously, the language used by the Secretary-General to offer the apologies of the Organization has been carefully crafted to avoid giving any sense of a legal acknowledgement in that respect: albeit speaking “very clearly” and in three successive languages (Creole, French, and English), Ban Ki-moon rather obscurely offers apologies, “on behalf of the Organization”, “for our role.”

The report fails to provide further clarification in that respect. While one will easily accept that the package of material assistance genuinely “represents a concrete and sincere expression of the Organization’s regret for the fact that the people of Haiti suffered yet another blow” (Report, para. 6), the primary concerns of the UN largely seem to ignore legal considerations. Justified by a sense of “moral responsibility to the victims of the cholera epidemic”, the new approach intends to provide material support to the Haitian people and “to protect the integrity of its peace operations in the future” (Report, para. 4). By contrast, the report fails to provide, even summarily, any legal assessment of the involvement of the Organization in the cholera outbreak. As to the crucial question of the source of the epidemic, it merely quotes the conclusion made by the independent panel of scientific experts that “personnel associated with the Mirebalais MINUSTAH facility were the most likely source” of the outbreak (Report, para. 22). The Organization makes no further comment and forgets that the experts, in the same article, expressly stated that “The response of the UN to date has been not to focus on the legal issues of the introduction of cholera”. In a rather paradoxical twist, it could even be argued that the “New Approach” report marks a legal step backwards if compared with the famous letter sent by the former UN Legal Counsel on 21 February 2013: as is well-known by those who have followed the cholera affair, the letter refers to undetailed “political and policy” considerations in order to deny the claims made by lawyers of Haitian victims of cholera as not receivable under Section 29 of the 1946 Convention on the Privileges and Immunities of the UN; it did not induce that the claims were legally unfounded.

One may however argue that responsibility does not need to be expressly acknowledged to exist as a matter of international law. Providing reparation may also serve as substantiating a form of responsibility which would not say its name: as explained by the ILC in providing examples of satisfaction as a mode of reparation, “Although [those] examples […] do not expressly refer to the existence of a breach of an obligation under international law, they at least imply that an apology or an expression of regret by an international organization would be one of the appropriate legal consequences for such a breach” (Commentary to Art. 37 of the ARIO, para. 1, available here). The commentary then refers to expressions of regret offered by the Secretary-General with regard to the fall of Srebrenica and the 1994 genocide in Rwanda. Arguably, the apologies given by the Secretary-General on 1 December could fall in a similar category and be considered as an implicit form of reparation for the harm suffered by the Haitian community. It remains however that the United Nations has not endorsed such a view: in its own comments on the Draft Articles on the Responsibility of International Organizations, the United Nations came back to the Srebrenica and Rwanda precedents mentioned by the ILC in the context of satisfaction but refrained from “attempting to qualify the nature of those expressions of regret in relation to events still loaded with heavy moral and political implications”.

The “New approach” of the United Nations to the cholera outbreak in Haiti obviously calls for a more detailed legal analysis. It leaves completely aside, for example, important issues as to the respective obligations of the Organization and its Member States in “ensuring the fulfilment of the obligation to make reparation” (Article 40 ARIO). As it stands, it regrettably tends to show that the Organization consistently avoids facing the legal consequences of its conduct in Haiti, as if “responsibility” in the legal sense would still be too bad a word in the UN corridors.

 

Marrakech Express–Going Slow But Still on Track

by Daniel Bodansky

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

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

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

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

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

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

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

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

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

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

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

by Matt Brown

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Carsten Stahn

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

Contextualizing the Debate on First Strikes

by Charles Kels

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

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

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

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

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

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

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

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

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

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

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

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

The Corrosive Risks of Lawless Leadership

by Geoffrey Corn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Second Thoughts on First Strikes: A Reply to Heller

by Adil Ahmad Haque

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

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

Kevin writes that

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

Kevin goes on to write that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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