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The ICC Is Not Shying Away from the Georgian Challenge

by Aaron Matta and Anca Iordache

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anca Iordache is an intern within the Rule of Law Program the Institute. With many thanks to Stephen Rapp, Danya Chaikel and Lyal S. Sunga for their helpful feedback on earlier drafts of this commentary. The views expressed here do not necessarily represent the views of the Hague Institute for Global Justice. ]

On Wednesday, 27 January 2016, the Pre-Trial Chamber I (PTCI) of the International Criminal Court (ICC) authorized the Office of the Prosecutor (OTP) to proceed with an investigation into the situation in Georgia. Specifically, the OTP will investigate crimes allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. Not only is this the first investigation outside of Africa, but it is also the first proprio motu case involving a non-State party, the Russian Federation. This is striking given the current geopolitical tensions between Russia and the West, and the PTCI decision raises many procedural issues and political challenges for the ICC, while at the same time providing the Court with a number of unprecedented opportunities.

After nearly two months of border clashes between Georgia and its breakaway region of South Ossetia, Georgia launched, in the early days of August 2008, a major military offensive against South Ossetia which prompted Russia to intervene against Georgia. Despite a 12 August cease-fire brokered by the French-led EU presidency, crimes reportedly continued to be committed. Russia completed most its withdrawal of troops on 8 October, and it later recognized South Ossetia, as well as Georgia’s  second breakaway region of Abkhazia, as independent states. It was in this context that the OTP opened a preliminary investigation on 14 August, only two days after the cease-fire was agreed upon. Then on 13 October 2015, the Prosecutor requested authorization from the Court’s judges to proceed with an investigation into the Georgia situation. To quote Harvard professor Alex Whiting, “the Prosecutor is moving forward on Georgia not because she is necessarily eager to do so, but because after seven years the case demands it.”

The PTCI decision touches upon a number of issues. First, it concludes that there are reasonable grounds to believe that war crimes and crimes against humanity were committed during the 2008 Georgian war (PCTI authorization, paras. 26–31). These include alleged forcible displacement of ethnic Georgians from South Ossetia, and alleged Georgian attacks on Russian peacekeepers. Second, it is worth noting the issue of rationae loci jurisdiction of the Court over crimes committed in the region of South Ossetia (Art. 12 of the Rome Statute). Although South Ossetia claims independence and is still supposedly under Russian effective control, the region continues to be internationally recognized as part of Georgia – a state party to the Rome Statute – and therefore the Court concluded, that it falls within the jurisdiction of the Court (para. 6). This will inevitably be of concern in future Georgia cases, particularly when it comes to judicial cooperation issues, such as gathering of evidence, arrest of suspects, or witness protection, since Russia currently holds de facto effective control over South Ossetian territory.

Another contentious point the PTCI addresses concerns the issue of admissibility of the case under Article 17 of the Rome Statute. With regard to complementarity (Art. 53(1)(b) of the Statute), both Georgia and Russia have had sufficient time to undertake national investigations of conflict related crimes – more than 7 years. On the one hand, while the Russian Federation authorities have shown to be willing and able to conduct national proceedings (para. 50), the Court could not conclusively decide on the question regarding their inability to access crucial evidence (para. 46). On the other hand, the Georgian authorities seemed to have been unable to conduct investigative activities in South Ossetia (paras. 40–41). The Court agreed with the Prosecution’s position in that any proceedings undertaken by the de facto authorities of South Ossetia are not capable of meeting the requirements of article 17 of the Statute, due to South Ossetia not being a recognized State. In view of this, together with a lack of full cooperation between the parties involved, Georgia was considered to be unable, even if it seemed willing, to investigate effectively serious crimes committed during the 2008 war. PTCI ultimately found that potential cases arising from the situation were “largely admissible” as there was also sufficient gravity (Art. 17(1)(d) of the Statute) to warrant an OTP investigation (paras. 51–56).

The PTCI decision also addressed respective cooperation of Georgian and Russian authorities with the OTP’s investigation. Georgia, as a State Party to the Rome Statute since 2003, has an obligation to cooperate fully with the ICC (Art. 86, of the Statute) and it thus far declared its commitment to collaborating with the Court. After signing in 2000 but not ratifying the Rome Statute, the Russian Federation has not yet become a state party. However, the Court could investigate Russian nationals suspected of committing crimes on the territory of a State Party, as is the case of South Ossetia. The Russian Federation initially confirmed that it would cooperate with the ICC probe and thus far has done so, for example, by providing the Court with more than 30 volumes of material from its own criminal investigation. However, following the PCTI authorization to proceed with an investigation, Russia’s Ministry of Foreign Affairs criticized the Court for taking Georgia’s side, and also stated that “in the light of the latest decision, the Russian Federation will be forced to fundamentally review its attitude towards the ICC”. This criticism was followed by Alexander Bastrykin’s (Chair of Russia’s Investigative Committee) lengthy interview (in Russian) in the official newspaper Rossiyskaya Gazeta, during which he said that the Court “turned the circumstances of the case on its head” (‘с ног на голову’) by ignoring Georgian crimes. This would not be the first time the Russian Federation has criticized or has opposed an international court for seeming to display an ‘anti-Russian bias’. For example, Moscow has on several occasions criticized the European Court of Human Rights (ECtHR) as well as the Permanent Court of Arbitration, and more recently, it vetoed the establishment of a Tribunal to prosecute individuals in relation to the downing of the MH17 flight. Russia has gone as far as to adopt legislation that allows it, in certain cases, not to implement ECtHR rulings.

A major issue that could make its way to the ICC in this situation is what the European Parliament has termed Russia’s effective misinformation campaign during the Ukrainian conflict. This concern coupled with the apparent “lack of transparency” of the Russian Prokuratura, which “remains vulnerable to presidential and other political power” (see Council of Europe’s Venice Commission Opinion, para 75), could prove to be a major challenge to the Court. This criticism also applies to Georgia in the sense that proposed domestic reforms of the General Prosecutors Office “does not yet fully achieve the stated goal of depoliticizing the office of the Chief Prosecutor” (see Venice Commission opinion no. 811/2015 para 10). In addition, the OTP will have to remain vigilant about not relying on information that may be heavily biased from either side. It will not be the first time the Court has to show its ability to discern genuine evidence from biased reports. In the end, a positive result of the ICC’s involvement could be that the OTP’s investigation focuses on all sides to the conflict equally which has been a challenge for the Court in other cases such as the collapsed Kenyatta case and the recent blow to the Prosecution in the Ruto case.

It is also useful to compare the Georgian and Ukrainian circumstances as they deal with some similar issues. First, a UN Security Council referral was not an option for Ukraine or Georgia, due to the potential use of the veto power by Russia. Unlike Ukraine however, Georgia is a State Party to the Rome Statute. While Kiev’s only choice was to submit a declaration to the Court accepting jurisdiction under Article 12(3) of the Rome Statute, this was not the same for Tbilisi, which could have but did not refer its own situation to the Court. Unlike Ukraine, where the conflict was still ongoing, there were fears of Russian retaliation if Georgia had chosen to ‘poke the bear’ further after the conflict had ceased. Therefore, the proprio motu investigation could be seen as a blessing in disguise for the Georgians, in spite of the fact that it will target Georgians as well.

Another important point to consider with regard to the issue of Crimea and South Ossetia, is whether the Prosecutor has jurisdiction to lay charges for the crime of aggression. In view of this, the jurisdiction of the ICC may begin one year after the 30th ratification of the 2010 Kampala Amendments to the Rome Statute, but not before the Assembly of State Parties has approved the commencement of jurisdiction after 1 January 2017.  So far, only 26 states, including Georgia, have ratified the amendments and notably the Court’s jurisdiction will be limited only to those States Parties once jurisdiction over aggression kicks in. Even so, the Prosecutor could not lay charges for the crime of aggression with regard to the issue of South Ossetia due to the non-retroactive nature of the Court’s jurisdiction.

The ICC´s decision to open an investigation in Georgia is significant because it is the first investigation into a situation outside the African continent. The ICC focus on Africa has led to accusations that the Court has been biased. However, a majority of ICC investigations have been opened at the request of African governments, even if these investigations can be criticized as ‘low-hanging fruit’ the OTP can easily pluck for prosecutions. Ultimately, regional balance should not be a factor in deciding the direction of the Court’s prosecutions. Nonetheless, such a development is a small but positive step towards a truly global Court. The fact that the ICC is now focusing also outside Africa will certainly help diminish the alleged anti-African bias, particularly at a time when some African Union States have threatened to leave the ICC. However, a plausible scenario, judging from official reactions cited above, is Russia embracing anti-ICC rhetoric. In that event the main challenge will be to tackle the broader criticism of the Court as “a tool of Western Imperialism” not exclusively aimed at Africa.

In the end, the authorization on Georgia shows that the Court has not shied away from challenges even if they involve a non-state party or more importantly a UN Security Council permanent member. However, the potential cases emanating from the Georgian situation will no doubt prove to be particularly challenging if Russia’s shows less cooperation with the Court. Hopefully the Court will show itself to be up to the challenge and the next steps will set a positive tone for future potential and similarly challenging situations such as Afghanistan or Palestine.

Guest Post: UN Peacekeepers and Sexual Exploitation and Abuse

by Melanie O'Brien

[Dr Melanie O’Brien, TC Beirne School of Law & Asia-Pacific Centre for the Responsibility to Protect, University of Queensland.]
Since December, there have been multiple announcements of new allegations of sexual exploitation and abuse (SEA) by peacekeepers, and criticism of the UN for the handling of these allegations. These allegations all relate to SEA committed by peacekeepers in the Central African Republic, usually by soldiers who are part of the UN’s Multidimensional Integrated
Stabilization Mission in the Central African Republic (MINUSCA). Allegations of peacekeeper SEA are not new. In fact, I have been researching on this topic for almost 13 years. Thirteen years of begging for accountability, and still the SEA continues. I have even written on how the ICC should not shy away from holding peacekeepers accountable for SEA when it occurs in the context of armed conflict and/or crimes against humanity, based on the seriousness of the offence. That is, the role of peacekeepers as protectors of civilians means that they are a special category of offender that should be held accountable. My call for the ICC to step up stems from the fact that sending states, which hold exclusive jurisdiction over their military and police personnel serving in peace operations, are not investigating or prosecuting SEA offences.
The UN’s Conduct and Discipline Unit (CDU), developed a decade ago in response to allegations of sexual abuse by peacekeepers, is not fully transparent. UN annual reporting of statistics on SEA does not ‘name and shame’ states involved, which means that the UN’s follow-ups to states involved go unheeded. Why should states bother if nobody knows it’s them? Last year Ban Ki-Moon finally announced that he would ’name and shame.” Months have dragged by, but it seems that perhaps this is actually happening, with the most recent allegations naming the Republic of Congo and the Democratic Republic of Congo as sending states, and the UN announcing that Burundi peacekeepers have been repatriated from MINUSCA. ”Naming and shaming” means greater transparency. It also enables the international community and a sending state’s nationals to pressure that sending state to take action with investigation and prosecution. Since reporting began, from a high of almost 400 allegations, we have dropped to under 100 allegations per year. Yet this is still far too many. The UN has been unwilling to rock the boat of sending states’ generosity, in case the UN is no longer able to procure enough personnel for missions. Missions are already understaffed (and under resourced). However, without proper vetting from sending states, the UN tendency to take whoever they can get it is jeopardising mission success. SEA breaches the trust between host communities and peacekeepers, which creates insecurity and uncertainty in which a peace operation cannot successfully operate. The conduct also damages the reputation of the UN.

There are also entrenched problems within the UN.l. The recent scandal has revealed a disregard for human rights, evidence by inaction to sexual abuse allegations.It also exemplified the ongoing targeting and condemnation of whistleblowers. The most recent whistleblower has been vindicated, but his time in the spotlight has brought many people forward who have likewise been attacked for reporting in-house human rights violations. In this way, the UN needs to clean house and maintain only employees of integrity. This is not to say that there are not people in the UN working hard and ethically: I met a Samoan police officer working with the UN Mission in the Republic of South Sudan (UNMISS) CDU who took great pride in her work and championed the importance of the standards set by her team. Clearly, we need more people like her in the UN (not to mention a greater gender balance in missions). What we should be doing is empowering UN Civilian Police (CivPol) to act like police in relation to criminal allegations against mission personnel. CivPol are trained police officers who have the ability to conduct proper investigations, including taking on-site witness statements and safeguarding secure chains of evidence.

However it is not the UN who has sole responsibility here; it is time sending states step up to the plate. There is an inherent human rights component to the SEA. Peacekeeper SEA is derived from entrenched gender inequality and patriarchal attitudes where women are perceived as unimportant and as chattel of men to be used when and how men see fit. There is also an element of bigotry and discrimination involved in the SEA, where peacekeepers are committing crimes they may not necessarily commit at home, both out of opportunity (a common reason for the commission of crime and enhanced by conflict/post-conflict circumstances and the powerful position of peacekeepers), but also out of a perception that the local community are lower in social standing than they are. In addition, the number of allegations relating to SEA of children is substantial. Does this indicate an issue of paedophilia that states need to be specifically dealing with? There is definitely a need for criminological, especially psychology, studies of this ‘phenomenon’. Sending states need to be addressing these social issues as a root cause, targeting education and social structures.

SEA by peacekeepers is a human rights violation (or rather, it violates many human rights). It is termed ‘misconduct’, but let’s stop calling it that and minimising the behaviour. It is criminal conduct, and states must take action to eliminate these crimes. Punishment of criminal conduct is a crucial component of preventive justice. Firstly, States must ensure they have the legislative means to prosecute their personnel. This means having the substantive law that covers this particular conduct; many states lack the specific provisions to prosecute sexual exploitation of adults. States must enact such legislative provisions, which reflect the imbalance in power dynamic between the peacekeeper and victims, and the exchange in goods/services/money that takes place. These provisions must include appropriate and proportionate punishment. In memoranda of understanding to contribute personnel, states must guarantee they will carry out investigation and prosecution using the proper provisions (as opposed to minor offences). States also need to establish extra-territorial application of the substantive law. Once these capabilities are in place, the sending state must make very clear to its personnel that commission of crimes will not be allowed to take place with impunity. A demonstration of action by states will contribute to prevention of peacekeeper SEA.

The UN and its member states champion the rule of law and human rights in states in the midst of conflict or in post-conflict disarray. We need the UN and its member states to practice what they preach.

Guest Post: Do Child Soldiers Remain Civilians?

by Joanna Nicholson

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

If you were to ask most International Humanitarian Law (IHL) experts whether the fact that a fighter is a child under the age of fifteen affects when they constitute a military target under IHL, their answer would most likely be ‘no’. The traditional view is that while international law prohibits the recruitment and use of children under fifteen to participate actively in hostilities, this has no bearing upon the status of the children involved and their targetability under IHL. Although there may be moral reasons for treating child soldiers differently to their adult counterparts in matters of targeting, from a legal standpoint they have no such entitlement.

I would like to propose that this issue may not be as cut and dried as most people may imagine. The basis for my argument is the reasoning employed by the Pre-Trial Chamber in the Ntaganda Decision on the Confirmation of Charges (‘the Decision’) from the International Criminal Court (‘ICC’).

Bosco Ntaganda is currently standing trial before the ICC accused of war crimes and crimes against humanity. Two of the charges he faces concern the rape and sexual slavery of child soldiers as a war crime under Article 8(2)(e)(vi) of the ICC Statute. In the Decision, Pre-Trial Chamber II found the conflict to be a non-international armed conflict, meaning that Common Article 3 to the Geneva Conventions and Additional Protocol II applied. Accordingly, in order to determine whether the child soldiers in question were entitled to protection under these provisions, the Chamber needed to establish whether they had been directly/actively participating in hostilities at the time that they were victims of the acts of rape and/or sexual slavery. The Chamber found that this must be assessed in the light of the prohibition against the recruitment and use of children under 15 to take an active part in hostilities. It held:

The mere membership of children under the age of 15 years in an armed group cannot be considered as determinative proof of direct/active participation in hostilities, considering that their presence in the armed group is specifically proscribed under international law in the first place. Indeed, to hold that children under the age of 15 years lose the protection afforded to them by IHL merely by joining an armed group, whether as a result of coercion or other circumstances, would contradict the very rationale underlying the protection afforded to such children against recruitment and use in hostilities (para. 78)

The Chamber concluded that ‘children under the age of 15 years lose their protection afforded by IHL only during their direct/active participation in hostilities’ (para 79). The children who were victims of rape and/or sexual slavery could not be considered to be actively/directly participating during the time that they were subject to acts of a sexual nature.

To summarise the Chamber’s reasoning, as it is prohibited under international law to recruit children under the age of 15 into armed groups and use them to participate actively in hostilities, such children do not lose their protection under IHL simply by becoming members of an armed group.

The concept of membership within an armed group is important in IHL, affecting when an individual constitutes a legitimate target. Thus, combatants are defined as being ‘members of the armed forces of a Party to the conflict’ (Article 43(2), Additional Protocol I). Combatants are entitled to privileges- the right to directly participate in hostilities and to prisoner of war status if captured. However, their combatant status also means that they constitute legitimate military targets at all times unless hors de combat.

The consequences of membership within an armed group for fighters who do not qualify for combatant status is less clear. Different approaches can be taken: all members of an armed group can be viewed as being legitimate military targets. Alternatively, one can look at the function of a member of an armed group, as the International Committee of the Red Cross recommend in their Guidance, meaning only those with a continuous combat function may be viewed as being legitimate targets at all times. A third possibility is that they retain their civilian status and may only targeted if they are directly participating in hostilities. Regardless, the fact of an individual’s membership within the armed group is often key to when they constitute military targets.

The Ntaganda Decision suggests that, as international law prohibits the recruitment of children under fifteen into armed groups, the consequences of such membership may be different for child soldiers, who remain under the protection of IHL unless they are in fact directly/actively participating in hostilities. In other words, they retain their civilian status, regardless of their membership within an armed group.

Should this approach be correct, it would give rise to questions: what happens regarding child soldiers who would otherwise qualify for combatant status, are they nevertheless entitled to combatant privileges? Are these child soldiers to be seen as having a kind of hybrid status, entitled to the advantages of both combatant and civilian status? This would be an unprecedented situation.

It remains to be seen whether the Trial Chamber will follow the lead of the Pre-Trial Chamber in this case, and, of course, even if they do, it is but one case, and does not necessarily set a precedent for IHL. However, the reasoning employed by Pre-Trial Chamber II seems sound- as recruiting child soldiers is prohibited under international law, then it is arguable that the children continue to have civilian status despite their membership within an armed group. Furthermore, it coincides with the general trend within international law towards protecting child soldiers, and may be indicative of an emerging rule of customary law. It would seem that this issue is not as black and white as it may first have appeared.

This post is based on my recent article, Is Targeting Naked Child Soldiers a War Crime?

RIP Justice Antonin Scalia: The Misunderstood Internationalist

by Julian Ku

Like many lawyers who study constitutional law, I was saddened when I heard last night of the unexpected death of U.S. Supreme Court Justice Antonin Scalia. The internet being what it is, commentators have already offered their quick takes on Scalia’s substantial and multifaceted jurisprudential legacy (indeed, I think we’ve already moved on to debating his replacement). Most of these analyses have been fair, but I have been a little irritated with the glib and mostly inaccurate descriptions of Justice Scalia’s attitude toward international law.

For instance, Rosa Brooks writes at Foreign Policy that while many in the U.S. will mourn Justice Scalia’s passing,

The global legal and judicial communities, however, will mostly be indulging in joyful private choruses of “Ding, Dong, the Witch is Dead.” Or maybe not so private.

There was no love lost between Justice Scalia and foreign jurists. Scalia was famously dismissive of foreign and international law, which he considered good enough for, well, foreigners — but not for the great United States. “I doubt whether anybody [in the United States] would say, ‘Yes, we want to be governed by the views of foreigners,’” he scoffed in 2005.

Brooks’ piece highlights one of Scalia’s more famous intellectual crusades: to reject the use of foreign and international law in the interpretation of the U.S. Constitution. Scalia was the leading critic of using foreign and international law to interpret the Constitution and, in due course, he has often been derided as a judicial sovereigntist or even as a know-nothing contemptuous of all foreign or international law.

I have always felt this criticism of Justice Scalia was unfair for at least two reasons.

First, Justice Scalia was an “originalist” with respect to constitutional interpretation. To him, this meant that interpreters should privilege the original meaning of the Constitution’s text over any other sources of interpretation. Scalia was famously skeptical of legislative history in statutory interpretation, and he was fairly skeptical of even of using the Constitution’s drafting history in constitutional interpretation. He wanted judges to look at the text, standing alone, as much as possible.

Given these jurisprudential commitments, it is odd to criticize Scalia for rejecting the use of foreign and international law in constitutional interpretation. Unless one could show that foreign and international law was relevant to determining the original meaning of the constitution’s text, Scalia believed it was irrelevant. And so he criticized judges who relied upon such sources, just as he criticized them for relying upon their own personal preferences or on what he thought were simply the latest intellectual or social fads.

Secondly, Scalia was actually one of the most cosmopolitan members of the Supreme Court. Few justices enjoyed foreign travel more, and he was always willing to go abroad to lecture at foreign law schools or in front of foreign bar associations. Indeed, he was in Hong Kong just last week giving lectures and he had planned to teach in France this summer.

More importantly, Scalia was not afraid or contemptuous of international law when that was the governing law in a case before him. Indeed, when he started law teaching at the University of Virginia, comparative law and private international law were his primary research and teaching interests. And as Duncan pointed out in a post back in 2007, Justice Scalia was not unwilling to interpret statutes to conform to international law or treaties, nor was he unwilling to rely upon foreign judicial opinions interpreting international treaties. He did not think foreign judicial decisions or international law was irrelevant or meaningless. He simply objected, on grounds of intellectual consistency, to using those sources when interpreting the U.S. Constitution.

I did not agree with Scalia on every constitutional question. And no doubt he should take his lumps for mistakes he may have made. But he was not a judicial sovereigntist or a constitutional know-nothing. And contra Rosa, I rather think many foreign jurists and academics (especially those he met personally) will miss this remarkably effective and important representative of American jurisprudence in the world.  I certainly will.

Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict…

The First Annual Michael Lewis Memorial Teleforum on “Defining the Law of War”

by Julian Ku

As many of our readers may recall, the late Professor Michael Lewis was a great friend of this blog and an important voice in U.S. international law and national security scholarship.  To honor his memory, the Federalist Society has recently launched the first annual Michael Lewis Memorial Teleforum in his honor.  The podcast features Maj. Gen. Charles Dunlap (Professor of the Practice of Law Executive Director, Center on Law, Ethics and National Security, Duke University School of Law) and Prof. Michael A. Newton (Professor of the Practice of Law, Vanderbilt University Law School).

The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are.” So begins the new U.S. Department of Defense Law of War Manual, published last June, which had not been updated for nearly 60 years. At 1180 single-spaced pages and with 6,916 footnotes, the manual would seem to be thorough and exhaustive. Our experts will critique the Department of Defense Manual. Does it provide the guidance necessary to troops on the ground, commanders, and all actors in between? How does it address modern warfare, terrorism, and asymmetrical war? How does it define lawful and unlawful belligerents? What does it say about interrogation and detention? These and other questions were addressed by our experts.

It’s a wonderful way to remember a great guy, but continuing to discuss and debate those issues about which he cared the most.

Dear Fox News South Carolina: Shariah Law is Not “Also Known As International Law”

by Julian Ku

So local TV news in the U.S. is hardly the most sophisticated part of the U.S. media.  Still, I was taken aback by this passage from a news report from WACH Fox Channel 57  in South Carolina.

COLUMBIA, SC (WACH) – A measure that would ban the use of Sharia Law in South Carolina court rooms is working its way through the State House.

Sharia Law, also known as International Law, is closely tied to Islam. It covers an entire way of life, but one rule under Sharia Law is if someone is caught stealing, they would have their hand cut off as punishment.

(Emphasis added).  You can also watch the video version of the report.

It is worth noting that most state laws banning “international law” have been invalidated under the U.S. Constitution free exercise of religion clause because federal courts have held that the ban on “international law” is really aimed at “sharia” law.  This report confirms that this is indeed the case in South Carolina, and that some state legislators may not even know the difference between sharia law and international law.

One other note for our non-U.S. readers:  South Carolina is the third U.S. state to hold primary elections in our presidential race.  Its voters have a pretty big role in deciding who will be the nominees.  Just noting this fact, without comment.

 

As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.

Guest Post: The ACHPR’s New General Comment on the Right to Life–A Missed Opportunity for the Prohibition of the Death Penalty?

by Nader Diab

[Nader Diab is an Associate Legal Adviser at the International Commission of Jurists. LL.M Geneva Academy of International Humanitarian Law and Human Rights. Twitter : @NaderiskDiab]

In the GC the ACHPR reiterated its call for the abolition or imposition of a moratorium on the death penalty (for previous similar calls see two resolutions of the ACHPR on this issue here and here). It did not provide for a legal basis for such a call neither in the GC nor in the resolutions.

Despite the call for abolition in the GC the ACHRP does not seem to view the imposition of the death penalty, per se, as a breach of article 4, which protects the Right to Life under the African Charter. The GC, echoing the UN Human Rights Committee, stated that the imposition of the death penalty would violate article 4 of the African Charter if it is not used for the most serious crimes and the proceedings did fully comply with the right to a fair trial (para. 24). Similar conditions had been set out for example in its 2008 resolution on the moratorium on the death penalty, which states:

“1. Exhorts State Parties to the African Charter on Human and Peoples’ Rights that still retain the death penalty to:

  • Fully comply with their obligations under this treaty; and

  • Guarantee that every person accused of crimes for which capital punishment is applicable, benefits from all the guarantees of a fair trial included in the African Charter and in other relevant regional and international norms and treaties.”

This might seem the unwavering the position of the ACHPR’s stance on the issue. However, recent developments and previous statements suggest that the outcome of the GC regarding the death penalty could have been different, and could have gone so far as to prohibit the death penalty as a violation of article of the African Charter protecting the right to life.

The African Charter, unlike the ICCPR, does not address the issue of the death penalty. The ICCPR does not necessary exclude recourse to of the death penalty when it is imposed pursuant to a final judgment rendered by a competent court only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. (The death penalty is, however, prohibited for those States that are party to the second Optional Protocol of the ICCPR). Therefore, unlike the Human Rights Committee, the ACHPR is not restricted by a provision in its founding treaty that narrows the scope of interpretation of the right to life provisions of the treaty as concerning the death penalty. (It should be noted that the ICCPR was adopted in 1966, when only a relatively small minority of States were retentionist. The adoption of Optional Protocol two was seen as a means of progressively reducing the number of States two, which the death penalty provisions would apply).

Furthermore, the General Comment was adopted the same year the ACHPR achieved a big step towards the abolition of the death penalty with the adoption of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa. A year earlier the ACHPR convened a continental conference on the abolition of the death penalty in Africa. The Cotonou Declaration that came out of the conference ‘recalls’ and ‘bears in mind’ in its preamble in several instances the right to life in abstracto in international treaties and declarations, seemingly implying that the right to life and the death penalty in all circumstances are inherently contradictory. It would have been expected that the culmination of this process, i.e the general comment on the right to life, would have taken a different position on the issue.

At the global political level, the trend is inexorably towards abolition. The periodic resolutions of by the UN General Assembly since 2008 calling for all retentionist States to implement a moratorium on the death penalty with a view to full abolition have been adopted with increasing majorities. In December 2014 (69/186), the resolution passed with 117-37 (34 abstentions). The vast majority of AU member States supported or at least abstained from the resolution. While the GA resolutions do not expressly identify all instances of the death penalty as violations of the right to life, it does situate the moratorium within “the progressive development of human rights”. This GA resolutions, because of their universal reach, could therefore also have been relied on as evidence of an emerging international opinion that the use of the death penalty is incompatible with general human rights principles.

Finally, as previously mentioned the ACHPR’s position has not been consistent, and in some instances it has considered that the imposition of the death penalty amounts to a violation of the right to life regardless of any other circumstances. In May 21 2015, it issued a press release condemning the execution of six individuals in Egypt. It stated in communiqué: “its opposition to the imposition of the death penalty as it constitutes a violation of Article 4 of the African Charter on Human and Peoples’ Rights (the Charter), which specifically prohibits the arbitrary deprivation of the right to life and enshrines the integrity of persons. Article 5 of the Charter also prohibits cruel, inhuman or degrading punishment and treatment.” In the communiqué the ACHPR did not raise any issues regarding the fairness of the trial or the gravity of the crime (which it did previously a year earlier, see here). This indicates that the ACHPR has viewed the imposition of the death penalty as a violation of the right to life in all circumstances, and not just when imposed when the conditions laid out in its GC are not met (a position that happens to be shared by its Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary killings in Africa.)

Guest Post: On Business and Human Rights in Illegal Territorial Regimes

by Valentina Azarova

[Valentina Azarova is a Research Fellow in the Institute of Law, Birzeit University. She has assisted and advised in the suits filed by Al-Haq against foreign corporations for involvement in abuses in occupied Palestinian territory and is a member of the legal committee, Global Legal Action Network (GLAN)].

On 19 January 2016, Human Rights Watch (HRW) released Occupation, Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, a report detailing the involvement of foreign and Israeli business in settlements and their support for unlawful Israeli acts. The report is an important piece of one-stop-shop documentation that brings together the work of Who Profits and others on the involvement of foreign businesses in the occupation through financing, servicing, or trading with Israeli settlements. As HRW argues, any business operations in settlements are associated with the human rights abuses and international law violations that ensue from Israeli settlement activity. However, the legal basis of HRW’s claims merit further consideration. The report takes the position that “to comply with their own human rights responsibilities” all companies should “stop working with and in Israeli settlements.” This responsibility derives, the report asserts, from the UN Guiding Principles on Business and Human Rights, which requires businesses to mitigate their involvement in abuses. According to HRW, businesses operating in the settlements cannot “mitigate,” and therefore must pull out to comply with these obligations.

Yet states, companies and scholars have argued that the UN Guiding Principles prescribe only a duty of due diligence on businesses and states (an obligation of means, not result, to reflect on how to mitigate involvement in abuses). In practice, this duty has been understood by even the most law-abiding states as having the purpose of warning business of the risks they incur to their reputation and economic integrity, rather than as being a positive obligation to firmly prohibit all business operations. Businesses’ involvement with the system of abuses underlying and ensuing from Israeli settlement activity has prompted some state measures – such as the recommendatory government advisories that have now been issued by 18 EU Member States (see e.g. the UK advisory). But home-states have stopped short of enforcing international law-based obligations by adopting measures that could redress the immitigable business involvement in the harm resulting from operations under the auspice of Israel’s illegal legislative and administrative regime in settlements – where all legislative acts are predicated on the entitlement of Israel to exercise sovereign authority in occupied territory.

Moreover, states perceive their obligations under the business and human rights framework in international law (set out in the UN Guiding Principles and the OECD Guidelines) as voluntary and politically discretionary. Home-states legal machinery to enforce human rights and other international law obligations against business has in practice been limited to the gravest forms of complicity in abuses that could result in civil or even criminal suits. As with other transnational enforcement actions, the success of such lawsuits is hinged on foreign policy concerns and considerations of non-interference in the domestic affairs of another state, even though the state’s own corporate nationals are involved. Home-states are unlikely to crack down on their corporate nationals abroad if their involvement in violations lacks sufficient proximity to the principal perpetrator or is not sufficiently substantial. Cases that meet these criteria are allowed to go forward only when they are meticulously evidenced and deemed politically prudent. Yet the track record on lawsuits for foreign business involvement in Israeli wrongdoing is dismal: French, Canadian and Dutch courts succumbed, to different degrees, to political and procedural barriers and brought an end to several straightforward claims against their corporate nationals’ involvement in wrongdoing.

While the HRW report focuses on businesses’ human rights responsibilities in international law, it also addresses demands to third states. Yet given the nascent nature of state practice on the enforcement of business and human rights, the following three issues (or caveats) are of note in relation to the report’s claims concerning the definition of the scope of corporate wrongdoing and the prescription of legal consequences under international and domestic law for business involvement in Israeli unlawful acts in relation to the settlements:

1) The report does not capture the scope or the nature of wrongdoing by business in settlements. The report’s case studies document settlement quarries that benefit from financial incentives while Palestinian quarries are subject to “discriminatory” restrictions; a bank that finances construction and a real estate company that sells properties in settlements, which profit from land confiscation; a company that supports settlement infrastructure by collecting garbage and operating a landfill; and a textile company that contributes to labor abuses against Palestinian employees. But not only are there types of less direct foreign business involvement in settlements that are not captured by this list – e.g. investment in Israeli companies operating in settlements, or procurement of products originating from settlements – it does not address the key underlying form of wrongdoing in international law resulting from the administrative and territorial regime that Israel maintains in occupied Palestinian territory.

What unifies all companies that have any kind of activity in the settlements is that they operate under the auspices of Israel’s illegal extension of its domestic administrative and legal jurisdiction in occupied territory, which is premised on its sovereign claims and the extension of Israeli sovereignty into occupied territory.

The report notes that Israel’s actions create a duty for third states not to recognise Israel’s illegal acts as lawful, but it appears to limit this duty to the specific types of wrongdoing on which the report focuses. Yet the duty of non-recognition is instead triggered by the simple, but crucial fact that all activities in settlements are conducted under Israeli domestic jurisdiction, which Israel extended into occupied territory (legislative and executive) — a state of affairs that constitutes an illegal territorial regime no state recognises as lawful. Since the report does not address per se the illegal territorial regime maintained by Israel in occupied Palestinian territory when it defines the scope of corporate wrongdoing, the report fails to substantiate its claim that “the only way settlement businesses can avoid or mitigate contributing to abuses is by stopping to operate in settlements or engage in settlement-related commercial activity.” The report’s claim that all business should cease and desist from all settlement activities risks appearing ambitious, given the lower-level demand of to exercise due diligence in international law.

2) The report makes the unfounded, aspirational claim that the duty of non-recognition requires states to stop or prevent their corporate nationals from becoming involved in settlements. The duty of non-recognition in international law addresses states, not businesses. A state has horizontal obligations to protect individuals from private abusers under human rights law, but the reality is that the legal force of these obligations is weak: most states consider them obligations of means and not result, and only a few states have developed national action plans to implement them (see 3). Moreover, the duty of non-recognition – which states interpret, as discussed above, as a mere ‘due diligence’ responsibility of means – does not have concrete content in terms of what it requires states to do. The duty of non-recognition does not require states to prevent their businesses from conducting any activities in a conflict zone. This claim (like arguments that base the demand that states ban trade with settlements on the duty of non-recognition) is aspirational, given the minimalist view that is reflected in state practice recorded in ILA recognition/non-recognition committee reports (.pdf) and in scholarly works. The duty of non-recognition – which Talmon calls a “hollow shell,” and is a “soap bubble” for Focarelli – can mean anything and nothing.

The most effective way to regulate the conduct of businesses and make sure they are not involved in settlements is based on states’ need to ensure consistency between their domestic public policy positions on the illegality of settlements, and the implementation of their domestic laws on corporate governance (intended to protect consumers, procurers, and investors). Since the application of Israeli domestic laws in the occupied territory is considered unlawful by all states, to uphold the integrity of their domestic rule of law, state authorities must ensure that their domestic law does not give legal effect to the basis for business activities in Israeli settlements. All business activities carried out under Israel’s illegal regime by the corporate nationals of law-abiding states would entail concrete legal risks under the company’s home-state law, insofar as those activities oblige the state to give legal effect to Israel’s internationally unlawful acts as though they were lawful.

3) The report’s recommendations to states fall short of adequately addressing foreign corporate involvement in extraterritorial wrongdoing. The report calls for states, in accordance with the UN Guiding Principles, to issue “guidelines” to prevent business from conducting activities in settlements. Many states continue to consider their UNGP obligations as soft norms and recommendatory standards, and do not enforce them as exigently as domestic law (most have not even initiated the implementation of a “national action plan”). Since the government advisories issued by foreign ministries and trade departments of EU countries are non-binding recommendations (suggesting compliance with human rights), they are insufficient to trigger exigent enforcement action.

However, if the home-state line ministries were to transpose and streamline these standards through specific domestic law provisions (e.g. procurement, consumer protections, proceeds of crimes laws), they would become as enforceable as any other domestic laws regulating corporate actors to business operations in a settlement (in whatever capacity or manner) by virtue of the legal basis for any activity, transaction or title there being Israeli domestic law. Such measures, intended to guarantee the consistent application of domestic law with public policy by ensuring non-recognition of Israeli unlawful acts as lawful, first require state authorities to provide their nationals with guidance to enable their ‘informed compliance’ with specific domestic law provisions.

While the HRW report should become a reference point for its case studies of business involvement in Israeli abuses, its recommendations to third states merit further consideration. The measures that can actually trigger vigorous domestic enforcement action to ensure the protection of consumers, procurers and investors from wrongdoing, are premised on the need to uphold the integrity of the home-state’s legal order by excluding internationally unlawful acts from their internal domain. Indeed, the wave of divestment from the settlements by European private actors, following EU’s ‘differentiation’ measures, coupled with a series of government advisories waiting to be operationalized, signals that this process is already underway.

Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict

by Jonathan Horowitz

[Jonathan Horowitz is a Legal Officer on National Security and Counterterrorism in the Open Society Justice Initiative. This post is based on his recently published article in Emory International Law Review, “Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict,” and will also appear in a longer form and under a different title in a forthcoming book, Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens Ohlin for Cambridge University Press.]

If a foreign State asked you (a government official) permission to let it kill an individual on your government’s territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren’t allowed to do?

These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.

The underlying assumption of a global NIAC is that the US, or any State, may chase its enemies around the world using international humanitarian law (IHL) targeting rules. John O. Brennan, when serving as assistant to the US president for homeland security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are more permissive than the host State’s international human rights law (IHRL) obligations. This is because, under our scenario, the host State is not in a NIAC with the attacking State’s enemies and so the host State’s IHRL obligations still apply in full.

A second observation it that under the obligations to respect and protect the human rights of people on its territory, a State must not take part in unlawful and arbitrary deprivation of life and it must protect people in its territory from the same.

When this second observation is linked with the first one, the situation arises whereby even if the foreign State sought to carry out a killing in complete conformity with IHL, the way the killing occurred may still have gone far beyond what IHRL allows the host State to permit. That being the case, the host State would be barred from providing its consent; and, as I explain in more detail in a new article, this significantly undercuts the notion of a global NIAC.

This conclusion, however disappointing it may be for attacking States that wish to use consent as a legal sanitizer, isn’t exactly legal nuclear science. But I do think it’s an area that has largely gone unexplored and allows consenting States to get off the hook for their unlawful role in permitting killings that they have no right to permit.

The problems that IHRL poses for a State that is asked to grant its consent in the context of a global NIAC doesn’t, however, mean that a State can’t defend itself from the serious threats of non-State actors abroad. It means that such use of force must be based on other legal authorities, be them host State law enforcement measures, relying on the inherent right to self-defense, UN Security Council authorization, joining a host State’s armed conflict with a common enemy, and so on.

And while it’s true that distinguishing between using a legally permissible framework or a legally impermissible framework may lead to no material difference in the final outcome (i.e., use of lethal force and casualties may still result), the distinction remains important. A global NIAC stands for something far greater than the consequences of any single lethal attack or group of lethal attacks that a State may wish to carry out. It permits a State to engage in long-lasting armed conflict whereby human rights law is sidelined and the more permissible IHL targeting rules are routinely applied without geographic constraint. Such a legal framework dramatically expands a State’s use of force beyond what international law had envisaged to date.

But herein lays a considerable problem. It will be an uphill battle to persuade host States to respect their human rights obligations (in this case by refusing to grant consent) within the extremely politicized and highly insecure sphere of terrorism, counterterrorism, and armed conflict, especially when the request for consent comes from an attacking State that has considerable military, political, and economic resources to provide or withhold. In turn, this will require a sustained focus and intensified discussions on the legal obligations of the host State and will have to include holding the host State accountable for its breach of international law.

Navy SEAL Who Supposedly Killed Bin Laden Under Investigation

by Kevin Jon Heller

The SEAL in question is Matthew Bissonnette, who published the bestselling No Easy Day under the pseudonym Mark Owen. According to the Intercept, the federal government is investigating Bissonnette for revealing classified information and using his position to make money while still on active duty:

A former Navy SEAL who shot Osama bin Laden and wrote a bestselling book about the raid is now the subject of a widening federal criminal investigation into whether he used his position as an elite commando for personal profit while on active duty, according to two people familiar with the case.

Matthew Bissonnette, the former SEAL and author of No Easy Day, a firsthand account of the 2011 bin Laden operation, had already been under investigation by both the Justice Department and the Navy for revealing classified information. The two people familiar with the probe said the current investigation, led by the Naval Criminal Investigative Service, expanded after Bissonnette agreed to hand over a hard drive containing an unauthorized photo of the al Qaeda leader’s corpse. The government has fought to keep pictures of bin Laden’s body from being made public for what it claims are national security reasons.

The investigation is a perfect example of the US government’s bipartisan unwillingness to address crimes committed by the military as part of the war on terror. As I noted more than three years ago, Bissonnette openly admits to committing the war crime of willful killing — a grave breach of the Geneva Conventions — in No Easy Day. Here is his description of how he and a fellow SEAL killed bin Laden (p. 315):

“The point man reached the landing first and slowly moved toward the door. Unlike in the movies, we didn’t bound up the final few steps and rush into the room with guns blazing. We took our time.

The point man kept his rifle trained into the room as we slowly crept toward the open door. Again, we didn’t rush. Instead, we waited at the threshold and peered inside. We could see two women standing over a man lying at the foot of a bed. Both women were dressed in long gowns and their hair was a tangled mess like they had been sleeping. The women were hysterically crying and wailing in Arabic. The younger one looked up and saw us at the door.

She yelled out in Arabic and rushed the point man. We were less than five feet apart. Swinging his gun to the side, the point man grabbed both women and drove them toward the corner of the room. If either woman had on a suicide vest, he probably saved our lives, but it would have cost him his own. It was a selfless decision made in a split second.”

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

This is about as clear-cut as IHL and ICL get in a combat situation. Bissonnette did not make a split-second decision to shoot bin Laden; his account makes clear that he had plenty of time to assess the situation. And there is no question bin Laden was hors de combat when Bissonnette pointed his weapon at him and finished him off. Bissonnette wasn’t even the SEAL who first shot bin Laden in the head, so he can’t argue that this was some kind of continuous action designed to eliminate any possibility that bin Laden remained a threat. Ergo: a war crime.

But it’s bin Laden, of course. Inter malum enim silent leges. So instead of prosecuting Bissonnette for murder under the UCMJ, the US government investigates him for hanging onto a trophy of his kill and profiting from his notoriety.

Behold impunity.

PS: In case anyone is wondering, “death throes” refers to the agonal phase of dying, when the body is shutting down. The agonal phase precedes clinical death (when the heart stops and respiration ceases), brain death, and biological death.