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Proportionality and Autonomous Weapons Systems

by Jeroen van den Boogaard

[Jeroen van den Boogaard is assistant professor military law of the Netherlands Defence Academy and a lecturer and associate researcher at the Amsterdam Center of International Law.]

Despite Chris Borgen’s plea that “the immediate legal issues may have to do more with international business transactions than international humanitarian law”, the International Committee of the Red Cross (ICRC) hosted their second expert meeting on autonomous weapons systems last week. The meeting brought together a number of legal and technical experts on the subject as well as governmental representatives (the Report of the first expert meeting in 2014 is here). Autonomous weapons systems, or ‘killer robots’ as they are referred to by others, are sophisticated weapons systems that, once they have been activated, can select and attack targets without further human intervention.

The focus of the ICRC in their definition of autonomous weapons systems (AWS) is on systems with a high degree of autonomy in their ‘critical functions’, namely autonomously selecting and attacking targets. The ICRC has in the past called on States to ensure that AWS are not employed if compliance with international humanitarian law (IHL) cannot be guaranteed. The Campaign to stop Killer Robots have called for a pre-emptive and comprehensive ban on AWS and to prohibit taking the human ‘out-of-the-loop’ with respect to targeting and attack decisions on the battlefield.

It is important to realise that professional militaries around the globe already possess and use scores of weapon systems with varying levels of autonomy. The use of artificial intelligence of future AWS may however enable AWS to learn from earlier operations, which enhances their effectiveness. It is feared that this will lead to scenarios where AWS go astray and decide in an unpredictable way which targets to attack.

The concerns for the use of AWS are based on a number of grounds, for example the moral question whether decisions with regard to life or death can be left to machines. Another concern is the fear that the protection of civilians during armed conflict would be adversely affected through the use of AWS. In legal terms, this means that it is unclear whether AWS are in compliance with IHL, particularly the principles of distinction, proportionality and precautionary measures.

The main focus of the ICRC expert meeting was to establish what may be understood by retaining ‘adequate, meaningful, or, appropriate human control over the use of force’ by AWS. This is important because although there is by definition always a human actor who deploys the AWS, the question is what the consequences are in case the AWS is fully independently making decisions as required by IHL. For example, it is unclear whether AWS would be able to comply with the obligation to verify whether its target is a legitimate military objective.

It seems that in technical terms, it may be expected that the use of complex algorithms may enable AWS to reliably identify the military advantage of attacking a certain target. Recent history has revealed the exponential speed of developments in computers, data storage, and communications systems. There is no reason to assume that this would be any different for the development of self-adapting AWS whose algorithms rely on artificial intelligence to independently assess what the destruction of a certain military objective would contribute to the military advantage of an operation. This is necessary to attack an object in compliance with IHL. Especially in environments without any civilian presence, such as below the sea on the high seas, IHL seems to be no obstacle to deploy AWS.

The picture changes as soon as (more…)

Why Bemba’s Conviction Was Not a “Very Good Day” for the OTP (Updated)

by Kevin Jon Heller

As readers probably know by now, the ICC convicted Jean-Pierre Bemba yesterday of various war crimes and crimes against humanity, including rape as both a war crime and crime against humanity. Commentators are praising the conviction as landmark with regard to sexual violence — against both women and men. Here, for example, is Niamh Hayes:

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

I agree with Niamh that the decision is a landmark in terms of sexual violence — but I would take strong issue with the idea that Bemba’s conviction represents a “very good day” for the OTP. On the contrary, the Trial Chamber’s judgment illustrates that the OTP continues to have problems developing its cases without the judges’ help. As Niamh notes, Bemba is the first ICC defendant convicted on the basis of superior responsibility. But she fails to point out a critical fact about the trial: the OTP alleged that Bemba was responsible for the various war crimes and crimes against humanity as a superior only because the Pre-Trial Chamber told it to do so. The OTP’s original theory of the case was that Bemba was responsible for those crimes solely as an indirect co-perpetrator. The PTC, however, disagreed: because the evidence the OTP presented at the confirmation hearing indicated that Bemba was most likely responsible for the crimes as a superior, not as an indirect co-perpetrator, the PTC adjourned the hearing and requested (read: instructed) the OTP to amend the charges to include superior responsibility. The OTP did so — but it continued to insist that Bemba was primarily responsible for the charges as an indirect co-perpetrator. Here is the relevant paragraph from its Amended Document Containing the Charges:

57. Primarily, BEMBA is individually criminally responsible pursuant to Article 25(3)(a) of the Rome Statute, for the crimes against humanity and war crimes referred to in Articles 7 and 8 of the Statute, as described in this Amended DCC, which he committed jointly with Patassé through MLC troops. Alternatively 1 , BEMBA is criminally responsible by virtue of his superior-subordinate relationship with MLC troops pursuant to Article 28 (a), or in the alternative Article 28(b), of the Statute, for crimes against humanity and war crimes, as described in this Amended DCC and enumerated in Counts 1 to 8, which were committed by MLC troops under his effective command, or authority, and control as a result of his failure to exercise control properly over these forces.

The OTP should be grateful to the PTC for its “request,” because the PTC ultimately refused to confirm Bemba’s potential responsibility as an indirect co-perpetrator. Had the PTC not intervened, the case would not even have made it past the confirmation stage.

So, to summarise: The OTP had a theory of the case. The PTC told it to rethink that theory. The OTP did so — reluctantly. The PTC rejected the OTP’s preferred theory. And the TC ultimately convicted Bemba on the theory first proposed by the PTC.

Bemba’s conviction clearly represents a very good day in the struggle against sexual violence. But it hardly represents  a very good day for the OTP. On the contrary, it actually represents a rather stunning rebuke to the OTP’s ability to develop its cases without the judges’ help.

NOTE: I have updated the post in light of an email from Alex Whiting pointing out that the PTC refused to confirm indirect co-perpetration. My thanks to him for the correction.

When A.I. Met R.O.I.

by Chris Borgen

Over the years a few of us have written issues concerning battlefield robots. (See, for example: 1, 2, 3, 4, 5.)  Sometimes, we had links to remarkable videos of quadruped robots stomping through forests. Those robots and videos were made by Boston Dynamics, a company that started from an MIT research group.

Besides its designing quadruped robots, Boston Dynamics gained further renown when, in 2013, it was acquired by Google as part of that company’s broad push into robotics. Just last month, one of Boston Dynamics’ new videos wen viral; it highlighted its two-legged Atlas robot walking indoors, on snowy hillsides, lifting and stacking boxes, and being pushed by a human (and righting itself). Yesterday, Google announced that it was selling Boston Dynamics. Why? And what does this say about all the prognostications about the rise of the robots, either on the battlefield or in the workplace?

At its most basic level, the story here seems to be as much about the difficulties of post-acquisition integration of business cultures and goals as it is about robotics. An article in Bloomberg Business notes:

Executives at Google parent Alphabet Inc., absorbed with making sure all the various companies under its corporate umbrella have plans to generate real revenue, concluded that Boston Dynamics isn’t likely to produce a marketable product in the next few years and have put the unit up for sale, according to two people familiar with the company’s plans.

After Boston Dynamics’ 2013 acquisition, it was made part of Google’s broader robotics initiative, called Replicant. (Query whether naming the division after the murderous androids of Philip K.Dick’s dystopian classic Do Androids Dream of Electric Sheep, which became the movie Blade Runner, was a good idea.) Bloomberg Business explains:

At the heart of Replicant’s trouble, said a person familiar with the group, was a reluctance by Boston Dynamics executives to work with Google’s other robot engineers in California and Tokyo and the unit’s failure to come up with products that could be released in the near term.

While the issue inside of Google was less about the technology of artificial intelligence (AI) than about the return on the investment (ROI) of the robotics company acquisitions, according to Bloomberg Business the Atlas video did cause concern among some of the public relations folks at Google over whether humanoid robots  would be perceived as taking jobs from real human. Plus, as one PR person put it, some people found the robot “terrifying.” (Yeah, that “Replicant” name-choice seems increasingly like a bad idea. At least they didn’t call the business unit the “Terminator Division.”)

Many  have spent time writing and talking about the legal issues related to the use of remotely controlled or autonomous battlefield robots. The immediate issues stemmed from the use aerial drones, of course, but on the horizon has been the possibility of robots being deployed in ground combat (as opposed to in bomb demolition, or other areas where remotely controlled units are already deployed). I am all for lawyers anticipating issues caused by technological change. But before we get there, there are a host of legal issues concerning the transactions that will support the R&D that will develop this technology. With the potential sale of Boston Dynamics to Toyota, it bears noting that the immediate legal issues may have to do more with international business transactions than international humanitarian law.

Article 87(5) of the Rome Statute – It’s Complicated…But Not Bizarre

by Patricia Jimenez Kwast

[Patricia Jimenez Kwast is completing her doctoral research on wrongful non-cooperation in international law at the University of Oxford, where she also co-convenes the Oxford Public International Law Discussion Group.]

In a recent post on Russia’s announcement that it will not cooperate with the ICC’s investigation into the Georgia situation, Kevin Jon Heller noted his puzzlement as to why Russia did not simply “milk a little goodwill by at least pretending to cooperate with the ICC” and simply “stop cooperating” if incriminating evidence was found. In response, I suggested that “[o]nce Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute.” I commented that “pretending to cooperate or stopping cooperation after agreeing to cooperate does carry legal consequences.”

Article 87(5)(b) of the Rome Statute provides:

Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I should admit that I posted my comment without giving the precise implications of Article 87(5)(b) much thought at this point (I planned to consider them in a later journal article). I simply recalled Article 87(5) from writing an earlier post on a non-cooperation finding against Sudan. Like Sudan, Russia is a non-party, but the situation in Darfur was referred to the ICC by the SC whereas the Georgia situation is not. So the SC option in 87(5)(b) is irrelevant to questions of Russian non-cooperation. As Heller points out, “the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties.”

But what about my suggestion that Russia can face other steps under Article 87(5)(b) for its non-cooperation if it fails to cooperate after agreeing to do so? In the follow-up post Article 87(5) of the Rome Statute – Bizarre and Possibly Counterproductive, Heller comments:

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

My first impulse is to agree entirely with the suggestion that Article 87(5)(b) should be read to apply “only when a non-party-State makes a formal commitment to cooperate with the Court and then breaks that commitment.” A formal commitment was the scenario of initial Russian cooperation that I had in mind, at least in so far as the phrase “or any other appropriate basis” – i.e. other than agreements and ad hoc arrangements – of 87(5)(a) is omitted from 87(5)(b).

However, (more…)

Seeking the Regulatory High Ground: the International Civil Aviation Organization and Commercial Spaceflight

by Chris Borgen

In 1958, Air Force Chief of Staff Thomas D. White wrote: “For all practical purposes air and space merge, form a continuous and indivisible field of operations.” White later coined the term “aerospace” and used it in a Congressional hearing. Later it was used in policy papers to explain why the U.S. Air Force would also have the responsibility for space issues. (William Burrows, The New Ocean, 248.)

The International Civil Aviation Organization, a specialized agency of the UN, has just made a similar giant leap from air into space. Agence France Press reports that in a March 15 speech at the Second Annual Aerospace Symposium (there’s that word again) co-sponsored by ICAO and the UN Office on Outer Space Affairs (UNOOSA), ICAO Council President Olumuyiwa Benard Aliu said:

The International Civil Aviation Organization “recognizes that sub-orbital and outer space flights will foster new tourism and transport markets, and that investments in related research and development remain at a very healthy level,”…

“Personally, as an engineer, I am very excited to see the dream and theory of normalized space flight now becoming such a tangible reality,” he told an aerospace symposium in Abu Dhabi.

In making its case, the agency noted an uptick in the number of spacecraft designs that have made the leap from concept to reality, saying more will follow.

As SpaceNews put it: ICAO is “spreading its wings into commercial spaceflight.” Thinking holistically about the continuum of air and space activities does make sense. Virgin Galactic’s space planes and SpaceX’s and Blue Origin’s returnable, reusable rockets will have significant activities within the atmosphere as well as in space. And, so, we see domestic and international organizations adapting.

That adaptation is itself an interesting story. ICAO’s mandate is focused on aviation. Its vision statement is to “[a]chieve the sustainable growth of the global civil aviation system.” Even its 2014- 2016 strategic objectives make no mention on of space– or aerospace. However, Agence France Press reports that at the ICAO/ UNOOSA conference, the ICAO leadership stated that:

Rules must be put in place soon to ensure safety and security in space, as well as prevent the creation of a patchwork of regulations by individual states..

The agency suggested adapting the existing regulatory framework for aviation, for which the ICAO and national governments are responsible.

ICAO, as it stands, does not have enforcement authority. It studies,  fosters coordination and  develops policies and standards.

While there has been a focus on certain potential future space activities, such as asteroid mining, and their relation to the Outer Space Treaty, is there a need for a new treaty covering launches and activities such as space tourism? In the U.S., there seems to be a concern that too much regulation of the space tourism and orbital launch services could stifle the nascent industry. According to R&D:

Both the Federal Aviation Administration and the recently passed commercial-space competitiveness legislation from the U.S. Congress keep their distance from regulating space tourism, “as long as passengers receive explicit warnings about the hazards and the vehicles have basic safeguards,” the Wall Street Journal reported.

And so there are likely two discussions that will be taking place in the coming months. The first will concern the an institutional question: should ICAO become a norm-setter in regards to space activities? The second will address a set of regulatory issues: do we need a new treaty on aerospace activities, space tourism, and launch activities? Could consultation and coordination among national regulators be enough?

Stay tuned…

Torturing and Raping ‘Brothers in Arms’: International Law and Intra-Party Violence

by Tilman Rodenhauser

[Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva. He worked with different international and non-governmental organizations on the implementation of international humanitarian and human rights law.]

It is uncontroversial that international law prohibits and criminalizes appalling crimes such as summary executions, torture, or rape and other forms of sexual violence. An understudied but increasingly relevant issue is to what extent these international law prohibitions also apply to intra-party violence, meaning if fighters commit such crimes against their brothers or sisters in arms. As I discuss in more detail elsewhere, this question has been raised – but not decided upon – in the ICC’s decision on the confirmation of charges in the Ntaganda case. In this case, Ntaganda is charged with the war crimes of rape and sexual slavery committed by members of the Forces Patriotiques pour la Liberation du Congo against child soldiers in their own ranks. If child soldiers were considered members of armed groups and not civilians, one result could be that violence against these children by their ‘own forces’ falls outside the scope of IHL (the status of child soldiers under IHL has recently been discussed here and here). Likewise, US president Obama reports that Daesh (IS, ISIL, ISIS) summarily executes defectors, and testimony of a German former Daesh member – who recently stood trial in Germany for membership in a terrorist group – confirms that Daesh has a intelligence unit torturing and executing dissidents or deserters in Daesh’s ranks. This post raises the question of whether intra-party violence by armed groups amounts to international human rights law (IHRL) and international humanitarian law (IHL) violations, and should be considered a war crime.

Intra-party violence under international human rights law

If state actors rape, torture, or summarily execute subordinates in their own armed forces, these acts normally constitute crimes under national law as well as IHRL violations. Likewise, similar acts by members of non-state armed groups violate national criminal law. However, it remains somewhat controversial to what extent they also violate IHRL. It is widely agreed that armed groups with quasi-state capacities, such as Daesh, have at least some human rights obligations (for example, the Committee against Torture condemned Daesh’s ‘severe human rights violations’ (para. 11), and UN Special Rapporteur Emmerson considers Daesh ‘bound under international law to respect core human rights obligations’ (para. 30)). In contrast, it is less clear whether at least some norms of IHRL also apply to armed groups that are not ‘state-like’. Some UN expert commissions argued that any non-state armed group must, at a minimum, respect peremptory human rights law obligations (for discussion, see here). Recognizing that armed groups acting beyond state control commit severe human rights violations and not only national crimes or moral wrongs would first be important to reaffirm fundamental rights of all human beings, including those in the hands of armed groups. Second, it may also have legal consequences. While at present regional human rights courts or UN treaty mechanisms do not have jurisdiction over non-state groups, if human rights violations such as torture or extrajudicial executions were considered ‘in violation of the law of nation’, they may fall under national civil or criminal jurisdiction in some states, such as the US Alien Tort Statute (for discussion on non-state actors under the ATS, see here). Yet, at present armed groups’ IHRL obligations remain debated, and condemnations by states in the UN Human Rights or Security Council, human rights experts, or non-governmental organizations are primarily politically significant.

Intra-party violence: an international crime?

While rape, torture, or arbitrary killings could, in certain circumstances, form part of crimes against humanity or genocide, it is difficult to see that intra-party violence alone constitutes an attack against a civilian population or be committed with the intend to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. In contrast, the mentioned acts arguably all violate article 3 common to the four Geneva Conventions and could amount to a war crime under article 8(2)(c) and/or (e) of the Rome Statute of the International Criminal Court.

The Special Court for Sierra Leone (SCSL) discussed the question of whether intra-party violence violates IHL and constitutes a war crime. In the Sesay case, the SCSL argued that ‘the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces’ (para. 1451) because IHL was never intended to criminalize intra-party violence (para. 1453). Prima facie, this approach seems convincing: most IHL rules were developed to regulate hostilities between opposing forces and to protect persons that do not or no longer participate in hostilities against a party to which they do not belong. Upon closer examination, however, Kleffner criticized the Court for ‘rather cursory reasoning’, and Sivakumaran suggested that ‘things are not quite as self-evident as the traditional position suggests’.

Indeed, in my view at least three arguments – especially if considered together – could be raised for arguing that intra-party violence could violate IHL and be prosecuted as a war crime.

First, IHL’s personal scope of application is not as clearly restricted to the relation between adversaries as one may think. Since its early codifications, IHL contains certain rules applicable amongst brothers in arms. Notably, the obligation to respect and to protect the wounded and sick under article 12 and 13 of the First Geneva Convention applies to all ‘[m]embers of the armed forces of a Party to the conflict’. As Pictet pointed out, this obligation applies to ‘friend or foe’. This interpretation is confirmed in article 10(1) of Additional Protocol I.

Second, in light of changing conflict patterns, overly strict textual interpretations should be avoided. As the ICTY has repeatedly argued, IHL should not only be interpreted in accordance with its text and drafting history, but its object and purpose must be considered. Based on this argument, the Tribunal famously suggested that a protected person under the Fourth Geneva Convention is not only defined by nationality but also by ‘allegiance’. More recently, in the Prlic case Trial Camber III applied a similar reasoning to conclude that members of the Croatian Defence Council, who were detained by their own forces because they were perceived as loyal to the enemy, were protected under IHL (paras 608-611).

Third, article 3 common to the four Geneva Conventions, which prohibits all above-mentioned acts, applies to persons who do not, or no longer, take an active part in hostilities. As Kleffner asserts in a recent commentary on the article: ‘No requirement, other than that the person concerned abstains from actively participating in hostilities, conditions the protection under Common Article 3.’ Indeed, the imperative that such persons ‘shall in all circumstance be treated humanely, without any adverse distinction’, suggests that any member of an armed force who is hors de combat falls under the article’s protective scope, no matter which force he or she belongs to. Under this provision, reasons for being hors de combat may include ‘sickness, wounds, detention, or any other cause’. In line with the plain meaning of being hors de combat, it is generally understood that persons only fall under this category if they no longer pose a threat to the adversary and harming them no longer provides a military advantage.

Returning to the cases of torture and summary executions of dissidents and deserters, or rape against child soldiers in an armed group’s own ranks, it can be argued that a person detained and ill-treated by his or her own forces is hors de combat. Likewise, at least during the act of rape, a child soldier is in the hands of the perpetrator and not posing a threat to anyone. As a result, these forms of intra-party arguably fall under the scope of Common Article 3 and could constitute war crimes.

The Recent Letter of John Kerry and its Impact on the Joint Comprehensive Plan of Action (JCPOA)

by Abdollah Abedini

[Abdollah Abedini is an Assistant Professor of International Law at the Faculty of Law, Farabi College at the University of Tehran.]

On December 19, 2015, John Kerry, the United States Secretary of State, sent a letter to Mohammad Javad Zarif, the Foreign Minister of Iran, on the US government’s firm intention to implement the JCPOA. The letter was issued pursuant to an Act adopted by the House of Representatives (H.R) entitled “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.” Then, the Act included by Congress in the “Consolidated Appropriations Act, 2016.” According to Iranian authorities, the Act contains a provision which may jeopardize the implementation of the JCPOA. In this respect, Mr. Zarif is of the view that: “Acting exactly based on the congressional law, it will definitely mean violation of the JCPOA.”

Having been inspired by terrorist attacks of Paris on November 13, 2015, the Act mainly governs acts of terrorism. According to the Act, an individual with any of the nationalities of the 38 countries (or in the language of the Act, “aliens”) involved in Visa Waiver Program (VWP) may not be permitted to enter the US, when he or she “has been present, at any time on or after March 1, 2011: (I) in Iraq or Syria; (II) in a country that is designated by the Secretary of State…or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism.” It is to be noted that the month before enacting Visa Waiver Act, the H.R adopted an Act on November 19, 2015 entitled “American SAFE Act,” in which there were many provisions similar to those of the Visa Act; however, the point that countries specified by the Secretary of State as States sponsors of terrorism has been added.

Some commentaries suggest this could be a ban for whomever wants to go to Iran, including businessmen, tourists, scientists, educational activists and so on. It is noteworthy that some of the supporters of the VWP raised protest to the Act.

The ambassadors of 28 EU countries, for instance, have declared in a common note: “such indiscriminate action against the more than 13 million European citizens who travel to the U.S. each year would be counterproductive, could trigger legally-mandated reciprocal measures, and would do nothing to increase security while instead hurting economies on both sides of the Atlantic.” It is noteworthy that under a Regulation adopted in 2013, the EU may take into account appropriate measures on the different treatment taken by countries which have reciprocally waived visa requirements for the specific time.

Kerry’s letter, in such circumstances, is a response to Iran’s concerns on the future of the JCPOA in general, and its implementation in particular. The piece, therefore, is sought to indicate whether and to what extent the letter will impact on the JCPOA.

The Letter as a Unilateral Declaration

Kerry’s informal letter, which has been neither printed on the Secretary’s official letterhead, nor found on the US Secretary of State’s official website, has been published by many other websites on the Internet. However, the US Secretary of State’s spokesperson, John Kirby has observed officially: “the Secretary noted the concerns by Foreign Minister Zarif. You saw that he addressed that in his letter. There’s no violation of the JCPOA or our commitments by dint of this new legislation.”

The International Court of Justice (ICJ) in one of its most renowned cases, the Nuclear Tests case, upheld the view that: “declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.”

Hence, without a doubt, the letter can be categorized as a unilateral act under international law. In fact, the letter is a unilateral declaration, as a form of a unilateral act that obliges the US not to give effect to the Act to the extent that jeopardizes the implementation of the JCPOA. In addition, the ICJ has pointed out: “…interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.”

The International Law Commission, in “Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations” adopted in 2006, points out: “any unilateral behavior by the State producing legal effects on the international plane may be categorized as a unilateral act.”

Moreover, a unilateral declaration must be issued by authorized officials explicitly and publicly. As established in international law, foreign ministers’ statements, by virtue of their functions, may create obligations for their respective countries. The US Secretary of State has explicitly maintained in the letter that: “we remain fully committed to the sanctions lifting provided for under JCPOA.”

Giving assurance to his Iranian counterpart, John Kerry affirmed the US intention to JCPOA commitments. In another part of the letter, he points to the US Government’s power to waive the Act and confirms that: “the recent changes in visa requirements passed in congress…will not in any way prevent us from meeting our JCPOA commitments…” The letter indicates that the US Government would not permit potential impediments which may be created by the Act to affect in the implementation of the JCPOA.

On the other hand, some Congressmen have been dissatisfied and have observed that: “we…express our strong opposition to your commitment to waive a newly-enacted reform to the Visa Waiver Program that was clearly intended to cover individuals who have traveled to Iran in the past five years.” Unfortunately, it seems that enacting the Visa Waiver Act and the following reactions do not signify an optimistic future for the JCPOA implementation.

Impact of the letter on the future of the JCPOA

The Conclusion of the JCPOA in an atmosphere which there was little hope to reach an agreement made “a fundamental shift in [the UN Security Council] consideration of this issue, and its desire to build a new relationship with Iran strengthened by the implementation of the JCPOA and to bring to a satisfactory conclusion its consideration of this matter.”

In fact, the JCPOA has satisfied what its parties, namely, the E3+3 and Iran, hope for. In this situation, some actions taken by some parties, such as enacting Visa Waiver Act, could frustrate all endeavors to reach JCPOA aims. However, Kerry’s letter is a sign that the US government intends to continue to implement the JCPOA. Some of the letter’s sentences could be interpreted as an hindrance to this path. Thus, it is necessary to focus on the related words of the letter.

When it comes to the Kerry’s letter, he states: “we will implement them [JCPOA commitments] so as not to interfere with legitimate business interests of Iran.” He suggests some solutions and further observes that: “to this end, we have a number of potential tools available to us, including multiple entry ten-year business visa, program for expediting business visa, and the waiver authority provided under the new legislation.”

One may well ask what does he mean by “legitimate business interests”? And who should determine such “legitimate business interests”? According to the letter itself, the answer would be that the US would determine what the business interest is and whether it is legitimate. The logical follow-up question regards the exact meaning of the legitimacy, whether as a point of fact or law.

Generally speaking, these are the issues which would arise during the implementation of the JCPOA. It is proposed that JCPOA parties bring these questions to the Joint Commission contemplated by JCPOA to resolve them, before endangering the JCPOA’s implementation. The JCPOA has established a dispute resolution mechanism in its Annex IV under which a Joint Commission is comprised of respective parties, (China, France, Germany, the Russian Federation, the United Kingdom, and the United States, with the High Representative of the Union for Foreign Affairs and Security Policy, and Iran) would consider any kind of disputes concerning JCPOA. Section 2 of Annex IV states the relevant functions of the Joint Commission: “review and consult to address issues arising from the implementation of sanctions lifting as specified in this JCPOA and its Annex II’ and ‘consult and provide guidance on other implementation matters that may arise under the JCPOA.”

The JCPOA, pursuant to the adoption of the UN Security Council resolution 2231, is considered as a part of international peace and security which requires unanimity as well as leaving any unilateral approach of all parties, particularly the US as a key partner.

Can/Will President Sanders Withdraw the U.S. from the WTO?

by Julian Ku

It’s been a rough U.S. presidential campaign season for free traders.  Very few of the candidates are willing to voice broad support for free trade and free trade agreements.  Populist candidates like Senator Bernie Sanders and Donald Trump have made some pretty ugly noises about either violating or withdrawing from existing trade agreements.

Although Donald Trump’s proposal for 45% tariffs on China would violate WTO obligations (as Roger detailed here), it is Senator Bernie Sanders who might be more radical on free trade.  Although he doesn’t mention it much on the campaign trail, Senators Sanders (as a congressman) has introduced bills in Congress that would have withdrawn the U.S. from the World Trade Organization.

Today, Congressman Bernie Sanders will urge his colleagues in the U.S. House to support a plan to have the United States withdraw from the World Trade Organization.

Sanders acknowledges that the proposal probably won’t pass, but he hopes it will stimulate debate over the nation’s growing trade deficit.

Here a youtube video of his speech defending his proposed bill to withdraw the U.S. from the WTO.

What is interesting is that if elected President, Sanders could probably unilaterally withdraw the U.S. from the WTO with six months notice pursuant to Article XV of the Agreement Establishing the WTO (An earlier version of this post erroneously referred to Article XXXI of the WTO Agreement, which is really the 1947 GATT Agreement. Thanks to the commenter below for the correction).  I think that a President has broad delegated authority to terminate such agreements, although as I noted back in 2008, it is a bit uncertain whether Congress must also approve.    Still, given that the president arguably has such powers, shouldn’t someone ask Senator Sanders whether he still wants to withdraw the U.S. from the WTO, and if so, would he promise to do so if elected?  I have a feeling he has backed off this position (hopefully!), but it is certainly worth asking!

Article 87(5) of the Rome Statute — Bizarre and Possibly Counterproductive

by Kevin Jon Heller

In a recent post, I noted my puzzlement at Russia’s recent announcement that it will not cooperate with the ICC’s investigation in Georgia. Noting that “Russia has very little to fear” from the investigation, I asked why it would not “milk a little goodwill by at least pretending to cooperate with the ICC” — especially as Russia could simply stop cooperating with the ICC if the OTP ever found evidence that incriminated it.

My post elicited the following response from Patricia Jimenez Kwast on her personal blog:

This might be true in political terms. However, the legal picture is more complicated than this. Once Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute. As a permanent member of the Security Council, Russia would probably block any meaningful Security Council engagement under 87(5)(b), but the point is that ‘pretending to cooperate’ or stopping cooperation after agreeing to cooperate does carry legal consequences. It is not a decision that should be taken lightly.

To be perfectly honest, I had never paid any attention to Art. 87(5) until I read Kwast’s post. Here is what it says:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

In any case, I doubt Russia is trembling in its boots at the thought of a non-cooperation finding. The Security Council did not refer the situation in Georgia, so the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties. And the Assembly of States Parties has no authority over Russia — because it’s a non-party State…

I’m more than a little baffled by Art. 87(5). Comments from readers would be most appreciated.

Who Says America Can’t Agree on Anything Anymore: Every US Presidential Candidate is in Favor of U.S. Drone Strikes

by Julian Ku

In a tumultuous U.S. presidential campaign season, it is easy to conclude that the U.S. is hopelessly polarized between a proto-fascism and a proto-communism. But while there may be some truth to that observation with respect to immigration and economic policy, it is worth noting that the presidential candidates of both parties agree on many issues of foreign policy, even those that are controversial among international lawyers.

For instance, it is worth noting that all of the presidential candidates support the current U.S. program of drone strikes against Al-Qaeda and ISIS terrorists.

From a legal perspective, the U.S. program of lethal drone missile strikes against ISIS and Al Qaeda terrorist targets is controversial. Not only is the domestic legal authority to strike at ISIS targets under the September 11, 2001 authorization for the use of military force questionable, but the international legality of such strikes in countries such as Pakistan, Syria, Yemen, and Libya is uncertain because none of those four countries have explicitly given consent to such strikes. More significantly, legal critics of the drone program have questioned whether its use complies with the proportionality and other requirements of international humanitarian law due to the number of civilian casualties injured or killed in such strikes.

All of these legal criticisms are plausible, but none of the remaining U.S. presidential candidates are seriously troubled by these criticisms. None have pledged, for instance, to seek an additional authorization for the use of force from Congress to clarify the legal authority for such strikes against ISIS. None have suggested they would cut back or eliminate the program in any meaningful way.

Both of the remaining Democratic presidential candidates, for instance, have publicly expressed support for the program as it is currently being implemented. Hillary Clinton, as might be expected from a former Obama administration cabinet member, has endorsed such strikes on both a policy and legal basis. But so has her chief Democratic rival Bernie Sanders:

In an interview with NBC’s Meet the Press scheduled for broadcast on Sunday, host Chuck Todd asked the independent senator from Vermont if drones or special forces would play a role in his counter-terror plans.

“All of that and more,” Sanders said.

Asked to clarify, he added: “Look, a drone is a weapon. When it works badly, it is terrible and it is counterproductive. When you blow up a facility or a building which kills women and children, you know what? … It’s terrible.”

Todd asked Sanders: “But you’re comfortable with the idea of using drones if you think you’ve isolated an important terrorist?”

Sanders answered: “Yes.”


Indeed, there has arguably been more criticism of the drone program from the Republican presidential candidates, although that criticism is largely that the program doesn’t go far enough.

Republican frontrunner Donald Trump has not specifically addressed the drone program (surprise, surprise!). But Trump has famously called for counter-terrorism activities worse than torture, including the deliberate killing of terrorists’ families (presumably through drone strikes). Although Trump has partially reversed himself in a recent statement pledging to comply with all U.S. “laws and treaties” relevant to counterterrorism operations, none of this suggests he is going to cut back. (But this is Donald Trump, so who the hell knows!)

U.S. Senator Ted Cruz, currently Trump’s main rival, has been primarily concerned with limiting or prohibiting the use of drone strikes against U.S. citizens. Cruz, and has sponsored legislation to prohibit drone strikes on U.S. citizens on U.S. soil (with one exception).

Senator Marco Rubio, currently in third place, has also sponsored legislation to require independent review of drone strikes against U.S. citizens. Governor John Kasich, the last remaining GOP candidate, has proposed shifting drone strikes away from the CIA to the military. This last proposal may be the most significant drone reform proposal on the table from any of the remaining candidates. (Kasich is in fourth place on the Republican side).

So who says Americans can’t agree on anything anymore. The U.S. public, and its leading presidential candidates, want drone strikes to continue. All seem to feel like the current drone program is legal under U.S. and international law.  (I should hasten to add that I agree with them on the legal point, although I do think there are many reasonable questions about the program.)  In any event, for U.S. presidential candidates, the only question is whether to do more, not less.

United Nations Working Group on Arbitrary Detention Decision on Assange: The Balanced View

by Liora Lazarus

[Liora Lazarus, BA (UCT), LLB (LSE), DPhil (Oxon), is an Associate Professor in Law at the Faculty of Law, University of Oxford, and a Fellow of St. Anne’s College. Her primary research interests are in comparative human rights, security and human rights, comparative theory and comparative criminal justice.]

The UN WGAD Assange decision was initially met with incredulity and general ridicule from British officials, legal academics and the international press. Noah Feldman was astonished, calling the decision ‘unjustified’. Many of the decisions detractors don’t like Assange and what he stands for. They think he is exploiting his status to avoid prosecution for rape, suggesting he is guilty of the offence. His supporters argue that the rape allegations are part of a grand conspiracy against Assange, and that their hero has been vindicated by the UN. Serious discussion needs to lie somewhere between these polar positions and address the core questions of human rights reasoning and institutional protection. Cooler contributions have followed my own initial intervention (Kirsty Brimelow QC, Dinah PoKempner General Legal Counsel to Human Rights Watch, Balakrishnan Rajagopal, MIT Professor; and Julian Braithwaite, UK Ambassador and Permanent Representative to the UN). This piece seeks to continue this trend, by examining the content and standing of the WGAD decision from a human rights lawyer’s perspective.

Some preliminary points

Mr. Assange has lived in the Ecuadorian Embassy since June 2012, after 550 days of house arrest and 10 days of confinement in Wandsworth prison. There is still no formal charge laid against him in Sweden (Assange No. 2). He does not know the full case against him. He has under domestic and international law, the right to be presumed innocent until proven guilty (Stefan Lindskog, Chairman of Swedish Supreme Court, lecture 2013). He has previously co-operated with the prosecutorial investigation in Sweden, and has since offered to co-operate through the Council of Europe ‘mutual assistance’ process. He has also offered to co-operate fully if given a further guarantee of non-refoulement to the US.

The UK is operating pursuant to the European Arrest Warrant procedure which is not without criticism. Two dissenting UK Supreme Court justices considered this EAW invalid under UK law because it was issued by a prosecutor and not a judge, and one dissenting Swedish Supreme Court judge considered its continued use disproportionate. After extensive parliamentary scrutiny, the EAW conditions have been tightened since the initial Assange ruling by the Supreme Court. Two key requirements now apply: that the EAW is issued by a ‘judicial authority’ and that its use is ‘proportionate’. Despite the impact these safeguards could have, the UK government argue that they do not apply retrospectively to Assange. 

The mandate and composition of the UN WGAD

Matthew Happold argues that the WGAD cannot ‘issue binding decisions’ but rather ‘opinions’ which States are only under a duty to take ‘due consideration’, resulting in ‘a rather weak obligation’. This strict formalistic reading of international law discredits the UN human rights system as a whole, which depends almost entirely on bodies like the WGAD.

The mandate of the WGAD is clear (see UN Commission on Human Rights Resolution 1991/42 and subsequent resolutions outlined in para 1 of HRC Resolution 30/69) and includes investigating individual cases (Para 15, HRC Resolution 1997/50). It discharges its tasks according to Basic Principles which draw on the full body of international law sources. These are applied in an independent and exacting standard of review to national authorities, precisely because it is instituted to provide the highest expression of the review of arbitrary detention that can be made by a human rights body.

HRC Resolution 20/16 (A/HRC/RES/20/16) ‘requests States to take account of the Working Group’s views and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have taken’ (para 3). The resolution also ‘encourages all States to give due consideration to the recommendations of the Working Group’ (para 6). Importantly, the European Court of Human Rights has recognised that ‘in view of the composition, functions, process complaints and investigative powers of this body, the WGAD should be viewed as “a procedure of international investigation or settlement” within the meaning of Article 35 of the Convention’ (Peraldi v France).

The composition of the WGAD flows from its mandate as a body under the UN ‘special procedures’ process which stipulate either that a person of specific expertise (‘Special Rapporteur’) or a ‘working group of experts’ shall conduct its task. Judges and academic specialists both meet this benchmark of expertise, which explains why WGAD has included former judges and professors of law. Marina Hyde’s complaint that the WGAD is made up of ‘academics seemingly devoid of judicial expertise’ misses the point of the special procedures system, which (as with UN treaty bodies) is based clearly on expertise broadly understood and not only on judicial office.

We may disagree with the content of its decisions, but to deny the legal standing of the WGAD is to do wider damage to the UN human rights system as a whole and fails to take a long view of the conditions upon which international institutions rely.

The UN WGAD decision

In essence, the WGAD had to decide two questions: first, whether there was a ‘deprivation of liberty’ as opposed to a ‘restriction of liberty’; second, whether that deprivation of liberty was ‘arbitrary’.

In response to the first question, although the WGAD clearly accepted the argument that Assange’s conditions are not ‘self-imposed’, its decision failed to address this point directly. The discussion does not explicitly endorse Assange’s argument that his detention is involuntary, nor does it directly refute the dissenting argument on the WGAD that Assange is self-confined. This weakness in the report has been exploited by critics, and the arguments require elaboration.

The line between a ‘restriction of liberty’ and ‘deprivation of liberty’ is finely drawn in European human rights jurisprudence ‘as a matter of degree or intensity, but not one of nature or substance’ (Guzzardi). As counterintuitive as it may seem, liberty deprivation doesn’t consist only in the easily recognizable conditions of state detention. The conceptual grounds for describing Assange’s conditions as a form of deprivation of liberty are arguable. To be clear, liberty must be capable of being realized in practice. Where exercising liberty has considerable coercive results, this constitutes a restriction of liberty in actuality. Assange can hardly be said to be voluntarily ‘self-confined’. He will be extradited to Sweden and detained there if he leaves the embassy, and he fears further extradition to the US and prosecution there. The fact that Assange is deliberately resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation. But liberty is not a privilege gained for good behavior, it is a right which demands justifications from those seeking its restriction.

To argue that Assange’s conditions are a ‘deprivation of liberty’ is not to argue that this deprivation is necessarily ‘arbitrary’. It is essential to demonstrate here that the onus of justification on the UK and Sweden for restricting Assange’s liberty is fulfilled. This relates to due diligence grounds as well as proportionality, and the requirements of proportionality will change over time. I do not share the WGAD view that Assange’s initial arrest was arbitrary. But as time moved on, the grounds for maintaining the stand-off with Assange needed to remain proportionate to the ends sought. As events unfolded there could have been another, less restrictive way of proceeding. For example, before issuing a EAW, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room. After Assange took residence in the Ecuadorian embassy they could have relied on ‘mutual assistance’ protocols, questioned Assange by video link, and given him the chance to respond to the allegations against him. The proportionality of the process has to be read as a whole.

This approach is accepted in principle by the majority of the Swedish court which noted with approval at that time that steps were being taken to interview Assange in London ( Case No. Ö 5880.14 of May 11, 2015, see summary translation). With the passage of time, this Court may well join the dissenting judgment of Justice Svante Johansson, that the conditions of the investigation have become disproportionate. There is now growing support in Sweden for this dissenting view (Anne Ramberg, head of Sweden’s Bar Association; Hans Corell, former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs; and Sven-Erik Alhem, former Swedish chief prosecutor).

Reasonable and judicial minds have evidently differed on these issues, and emotions have run high. No doubt the initial outcry was coloured by views on the integrity of Assange himself. But human rights are not meant to favour the popular amongst us; they are meant to favour us all. Importantly, human rights limitations demand rigorous State justifications. Over time, these justifications have looked less convincing, and the WGAD is the body best placed to say so.

Ukraine Prepares Even More International Lawsuits That Russia Will Ignore

by Julian Ku

Things are not going well for Ukraine.  It has lost Crimea, effective control over eastern parts of its territory, its divided government is hampered by corruption which is sparking more internal violence, and its economy is doing poorly.  Russia is the cause of many (though not all) of its problems, so it is not surprising that Ukraine is looking to try to retaliate somehow and in some way.

This past week, Ukraine’s government announced that it is preparing to bring claims against Russia in the International Court of Justice.

Along with three interstate claims filed to the European Court of Human Rights (ECHR), we’re preparing for filing a claim to the International Court of Justice on the Convention for the Suppression of the Financing of Terrorism and racial discrimination, as we have real facts of discrimination, in particular, Crimean Tatars on the territory of Crimea,” [Deputy Justice Minister for European integration Serhiy] Petukhov said in the parliament on Wednesday.

To my surprise, Russia has actually agreed to compulsory dispute settlement under the ICJ for both treaties.  Under Article 24 of the Terrorism Financing Convention,

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Similarly, under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

On this latter provision, it is worth noting that the United States has reserved its liability by agreeing to jurisdicition only upon its specific agreement.  Russia did not make such an argument in Georgia’s ICJ case against Russia, so it is unlikely to do so again.

So in addition to a case under the UN Convention for the Law of the Sea, Ukraine could file at least two more international court actions against Russia over Crimea and other actions.  But will it? Russia has been largely unaffected by the Arctic Sunrise case, and it doesn’t seem in a mood to reconcile.  But, like the Philippines against China, Ukraine may simply think it doesn’t have any better options.