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Missing Charges in the OTP’s Georgia Request

by Kevin Jon Heller

I  have finally made my way through the OTP’s 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes: Art. 8(2)(b)(ix), “[i]ntentionally directing attacks against… hospitals and places where the sick and wounded are collected, provided they are not military objectives”; and Art. 8(2)(b)(xxiv), “[i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.” Paragraph 175 of the request, which discusses an attack by Georgian armed forces on Russian Peacekeeping Forces Battalion headquarters (RUPKFB HQ), would seem to amply justify both charges (emphasis added):

According to information provided by the Russian authorities, at around 06h35 on 8 August 2008 a Georgian tank, located on the road leading from Zemo-Nikozi to Tskhinvali, fired at the Glaz observation post, located on the roof of the RUPKFB HQ barracks, wounding Jun Sgt I.Ya. Lotfullin.240 Following this attack on the RUPKFB HQ, Georgian armed forces carried out a larger attack on the RUPKFB HQ using small arms, mortars, artillery and tank guns. The attack lasted around 20 minutes. At approximately 07h00, Georgian tanks moving towards Tskhinvali allegedly fired on and destroyed an infantry fighting vehicle (type BMP-1, hull number 619) and an armoured patrol car (type BRDM) that had been placed on the Tshkinvali road to separate the opposing sides. Two peacekeepers on duty are alleged to have been killed. The Georgian armed forces allegedly reopened fire on the RUPKFB HQ at 07h40 and 8h00, killing another two Russian peacekeepers. In the course of the attack on the RUPKFB HQ, the Georgian armed forces also allegedly targeted a medical aid post and ambulances which were located inside the compound and appropriately marked with Red Cross symbols. The shelling of the RUPKFB HQ is said to have continued through the day until 9 August 2008.

The absence of charges involving the medical facility and the ambulances is particularly baffling given that, as Patryk Labuda has ably discussed, the OTP might find it difficult to prove its more general allegations concerning Georgia’s attacks on Russian peacekeepers. The attacks on the medical facility and ambulances would be criminal even if the Russian soldiers at the RUPKFB HQ did not legally qualify as peacekeepers at the time of the attack. So it is clearly in the OTP’s interest to pursue Art. 8(2)(b)(ix)&(xxiv) charges in addition to the Art. 8(2)(b)(iii) peacekeeper charges — even if only as a fallback should the peacekeeper charges fail.

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:



The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!

Guest Post: Bolivia’s First Triumph in The Hague

by Andrés Guzmán Escobari

[Andrés Guzmán Escobari is a former Bolivian diplomat, Master in Conflict Resolution and Governance of the University of Amsterdam and associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

The ICJ recently delivered its judgment on Chile’s preliminary objection to its jurisdiction in the case “Obligation to negotiate access to the Pacific Ocean”, initiated by Bolivia in 2013. The Court rejected the Chilean objection and declared that it has jurisdiction to hear the Bolivian case by 14 votes in favor to 2 against. This decision surprised almost everyone not because the Bolivian arguments lack legal basis, but because of the overwhelming rejection of the Chilean legal reasoning, primarily based in the existence of a boundary Treaty signed with Bolivia in 1904.

This astonishing and resounding first triumph for Bolivia has naturally caused stir in Chile, where some analysts spoke of “a spectacular failure” (CNN Chile, 24/09/2015) and others of “a strong and shameful defeat” (DiarioUchile, 25/09/2015). Nevertheless, and not surprisingly, President Michel Bachelet declared: “Bolivia has not won anything” (La Tercera, 24/09/2015). But concern among Chileans is strong and clear, as this judgement follows a bad experience in the case about the maritime delimitation with Peru (solved by the ICJ in 2014). Moreover, to face the further proceedings on the merits, Chile´s legal team has to change its strategy based in the 1904 Treaty, which was specifically excluded from the discussion by the Court. In this regard is worth asking what were the arguments of the parties? And does Bolivia really have a good case? In the following lines I will try to address these two questions.

In April 2013, Bolivia instituted proceedings asking the Court to adjudge and declare that Chile has the obligation to negotiate an agreement that grants Bolivia a fully sovereign access to the Pacific Ocean. The legal basis for Bolivia’s claim is rooted in the previous negotiations in which the government of Santiago pledged itself formally and through its highest-level representatives to give a sovereign access to the sea back to Bolivia. The Bolivian Application seeks to found the jurisdiction of the Court on Article XXXI of the Pact of Bogotá.

In contrast, Chile responded that, pursuant to Article VI of the Pact of Bogotá, the Court lacks jurisdiction under Article XXXI to decide the dispute submitted by Bolivia. This is because Article VI restricts the jurisdiction of the Court for matters already settled by treaties in force in 1948, when the Pact of Bogotá was signed. According to Chile, the various declarations made by its governments in the past about Bolivia´s landlocked status “concern in substance the same matter settled in and governed by [the 1904] Treaty”, which was in force in 1948.

Bolivia’s response was that its claim does not have any relation to the 1904 Treaty but to the ensuing compromises and promises made by Chile to negotiate a sovereign access to the sea for Bolivia, which were assumed and formulated by Chile “independently” of that Treaty and also after 1948. Therefore, Bolivia argued that the matters in dispute are not settled and governed by the 1904 Treaty, within the meaning of Article VI of Pact of Bogotá. Consequently the Court has jurisdiction under Article XXXI thereof.

In its judgment, the Court defined the subject matter of the dispute as follows:

while it may be assumed that sovereign access to the Pacific Ocean is, in the end, Bolivia’s goal, a distinction must be drawn between that goal and the related but distinct dispute presented by the Application, namely, whether Chile has an obligation to negotiate Bolivia’s sovereign access to the sea and, if such an obligation exists, whether Chile has breached it. The Application does not ask the Court to adjudge and declare that Bolivia has a right to sovereign access. (Judgment at Para. 32).

And then it clarifies: “Even assuming arguendo that the Court were to find the existence of such an obligation, it would not be for the Court to predetermine the outcome of any negotiation that would take place in consequence” (Para. 33).

This last assertion was used politically by Chilean authorities to say that the Court has “cut” the Bolivian claim because now it cannot oblige the government of Santiago to cede territories. According to their official position, this was Bolivia’s true goal. However, Bolivia did not ask the Court to determine the outcome of eventual negotiations. What the Bolivian legal team has asked is that the Court remind Chile that it has an obligation to negotiate Bolivia’s access to the sea, nothing more but nothing less. The form in which these negotiations will be celebrated is one of the matters to be discussed in the further proceedings on the merits. However, the negotiation as such, forgive the repetition, will be about the Bolivian sovereign access to the sea.

For these reasons, and especially because of the many times that Chile effectively offered negotiations to solve this issue in the past, I believe that Bolivia has everything necessary to obtain a positive result. While it is true that the Court’s decision will not return Bolivia’s sovereign access to sea, at least it will pave the way for a negotiation that this time, after so many attempts, will be initiated by a mandatory and binding decision of the principal judicial organ of the United Nations.

Why “Following International Law” Won’t Necessary Solve the South China Sea Conflict Over Freedom of Navigation

by Julian Ku

As Chris notes below, it seems like there will be a showdown soon between the U.S. and China in the South China Sea over the right of freedom of navigation set out in the UN Convention on the Law of the Sea and customary international law. It is tempting to see this as a problem of one side ignoring international law, and the other trying to uphold it.  But the U.S. and China have a fundamentally different understanding of what international law requires and allows under the principle of “freedom of navigation”. So getting all sides  to “follow” international law is not necessarily going to solve the dispute here.

The U.S. definition of freedom of navigation means all ships (including warships) are allowed to traverse both the 200 nm exclusive economic zones (EEZ) and the 12 nm territorial seas without obtaining the permission of the coastal state.  In the 200 nm EEZ, the U.S. believes that military ships may conduct any activity, including surveillance of the coastal state (e.g. “spying”).  Within 12 nm, the U.S. believes military ships must abide by the rules of “innocent passage” which precludes any overt military-related activity.

The Chinese definition of freedom of navigation is quite different.  Essentially, the Chinese argue that military ships should have to follow rules of innocent passage even in the 200 nm EEZ, and that military ships must get permission to enter the 12 nm territorial sea, even if those ships are planning to make an innocent passage.

Why does this difference in the definition of freedom of navigation matter?  Because it allows both sides to say that they are abiding by the rules for freedom of navigation set forth in UNCLOS, while disagreeing dramatically on what each side is allowed to do.  From the U.S. perspective, its navy should be allowed to enter the 12 nm territorial seas around China’s “islands” as long as they abide by the rules of innocent passage.  But the Chinese will say that freedom of navigation doesn’t permit this activity.

Most states agree with the U.S. definition of freedom of navigation.  But some states (including neighboring South China Sea coastal states) do agree with the Chinese view on the EEZ (like Malaysia) and others follow the Chinese view on the 12 nm territorial sea (like Vietnam). So although I think the U.S. reading of UNCLOS is the correct one, the Chinese are not alone in their interpretation.  And as this editorial from China’s leading state-run English language paper indicates, the Chinese are going to emphasize this difference in legal interpretations in their response.

Of all foreign military activities in the special economic zones (especially those of China and the U.S.), the innocent passage of warships through territorial seas, have fueled the majority of clashes and disagreements, as the United Nations Convention on the Law of the Sea fails to provide explicit regulations on such activities.

To be sure, the Chinese may be shifting their own views since the Chinese Navy recently entered U.S. territorial seas on an “innocent passage”. But the official Chinese position still would require the U.S. to get permission before entering its 12 nm territorial seas.

One more note:  because several of China’s “artificial islands” are not islands but underwater features like shoals or reefs, the U.S. position ought to be that there is no “innocent passage” requirement for its naval ships even after entering within 12 nm miles.  Because China’s artificial island do not generate a 12 nm territorial sea, the U.S. should make clear it is NOT following the rules of innocent passage.

In any event, although international law is important, it cannot by itself resolve this festering US-China dispute until both sides agree on what international law actually requires.

Freedom of Navigation Operations and the South China Sea

by Chris Borgen

The BBC charts the latest back-and-forth between China, the U.S. over the Spratly Islands and, especially, navigation in the South China Sea. Much of the discussion of this issue has focused on the increased pace of China construction and land reclamation on series of islands and reefs, changing the “facts on the ground” to bolster its territorial and maritime claims. Other countries have also built on various islands and reefs, positioning for their own claims. But the scope of China’s activities had brought the issue back to the forefront.

The current flurry has been about the U.S.’s reaction and, in particular, whether the U.S. will use of “freedom of navigation” (FON) operations (previously discussed by Julian, here) in the midst of all this activity in the Spratlys.

According to the BBC, Hua Chunying, a spokesperson for China’s Foreign Ministry stated:

“We will never allow any country to violate China’s territorial waters and airspace in the Spratly Islands, in the name of protecting freedom of navigation and overflight.”

On Tuesday, US Defence Secretary Ash Carter expressed “strong concerns” over island-building, and defended Washington’s plans.

“Make no mistake, the United States will fly, sail and operate wherever international law allows, as we do around the world, and the South China Sea will not be an exception,” he said at a news conference with the Australian foreign and defence ministers.

“We will do that in the time and places of our choosing,” he added, according to Reuters news agency.

According to the U.S. Department of State, the U.S. has undertaken such freedom of navigation (FON) operations since 1983 to “exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention.” This is a topic where one can see the U.S. refer explicitly and repeatedly to international law:

The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.

Emphases added.

A year-by-year summary of Freedom of Navigation operations by the U.S. can be found on the U.S. Department of Defense website, here.

However, the BBC notes that:

The US might have mounted sea patrols in this area, but not for several years, our analyst says – and not since China began its massive building programme in the South China Sea.

A US military plane that flew near one of the islands in May was warned off – eight times.

The US now has to decide whether to send in its ships and risk confrontation, or back down and look weak, our analyst says.

How the situation evolves from here will depend in part on the reactions of other states that border the South China Sea or use its sea lanes.  Stay tuned…

Guest Post: Air Strikes in Syria–Questions Surrounding the Necessity and Proportionality Requirements in the Exercise of Self-Defense

by Sina Etezazian

[Sina Etezazian serves as regional coordinator for the Digest of State Practice at the Journal on the Use of Force and International Law. He is also a PhD candidate at Monash Law School, where he is researching the necessity and proportionality criteria for the exercise of self-defense in international law.]

The lawfulness of conducting air strikes against the Islamic State Group (IS) in Syria is attracting increasing scrutiny from legal commentators. This scrutiny has intensified markedly (for example, see here, here, here, and here) since the UK’s targeting of alleged IS terrorists using drones and France’s joining the air campaign to bomb IS positions in Syrian territory. The extent to which air strikes would meet the necessity and proportionality requirements in the exercise of the right to self-defense under Article 51, however, remains less explored.

This post does not aim to consider the issue of the permissibility of engaging in unilateral forcible measures against unattributable attacks by private groups. However, even assuming that the lawful exercise of the right of self-defense extends to action against irregular forces, it can be argued that the air campaign in Syria goes beyond the necessity and proportionality conditions of defensive force.

First, the operation in Syria would appear to act in direct contradiction to the legal obligations attached to the “no choice of means” criterion of necessity. As I have explained before (see here and here), “no choice of means” — or, as most legal writers have referred to it, the “last resort” — as a condition inherent in the necessity requirement, denotes that self-defense is available to the victim state only when measures not involving force are unlikely to be practicable and effective to cease an actual armed attack (or prevent an impending attack, supposing that one accepts the idea of anticipatory self-defense). This implies that if measures other than force are likely to be practicable in redressing the wrong caused by the attacker, the victim state may not be entitled to use force under Article 51.

An exploration of state practice since the establishment of the UN would suggest that, in several instances (see here, here, and here), the claimant state highlighted its alleged failed attempts to convince the territorial state to suppress the activities of the non-state entities acting from that state, so as to prove that its self-defense action against those entities had satisfied the necessary requirement. Therefore, whatever the legal merit of the actions themselves (and regardless of whether, in practice, the responding states authentically used force outside an inter-state context), adherence to the “no choice of means” requirement can be distilled from state practice during the UN-era.

Conversely, most states carrying out air strikes in Syria did not even consider cooperating with the Syrian government in suppressing the activities of IS militants in Syria. The United States, for example, explicitly rejected a request for such cooperation, maintaining that it is “not looking for the approval of the Syrian regime.” In its letter to the Security, Canada likewise stated that “in expanding our airstrikes into Syria, the government has now decided we will not seek the express consent of the Syrian government.” The approach taken by US and Canadian officials appears to be in clear violation of the necessity condition of defensive action, mainly because the US and Canada have not provided an explanation of why cooperating with the Syrian government seems impracticable to settle the problem. The use of force in Syria, accordingly, hardly seems compatible with the concept of “no choice of means” that states have shared during the UN-era.

As for proportionality, the air campaign in Syria may be seen to have contravened the geographical requirement inherent in proportionate self-defense. Under the contemporary jus ad bellum regime, defensive action must conform to three criteria to determine its proportionality with regard to a primary objective of halting the attack: effects on civilians, the geographical scope and temporal duration of the conflict (Judith Gardam, Necessity, Proportionality and the Use of Force by States (2004) 155–187). The second of these criteria, usually called the geographical criterion of proportionality, means that forcible self-defensive measures must be limited to the region of the attack that they are designed to repel. In other words, any coercive action that occurs far from the initial attack is likely to constitute a disproportionate use of force (Christopher Greenwood, ‘Self-Defence and the Conduct of International Armed Conflicts’ in International Law at a Time of Perplexity, Yoram Dinstein (ed) (1989) 276–278).

Observance of the geographical criterion of proportionality has been required by both state practice and ICJ jurisprudence (see examples from state practice in Gardam, Necessity, Proportionality and the Use of Force by States, 162–167). For example, in the Armed Activities case, the Court refuted Uganda’s claim of self-defense against attacks from the private groups based in the Eastern Democratic Republic of Congo (DRC). More concretely, Uganda asserted that a string of attacks that had been mounted by those private groups across its border had justified Uganda’s right to use force in self-defense. However, Uganda had taken airports and towns in the DRC, which were located “many hundred kilometers” from Uganda’s border. This extensive forcible response gave rise to the majority judgment observing that the measures undertaken by Ugandan forces were disproportionate to those alleged cross-border attacks (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 223, 223).

However, some commentators have occasionally argued for the diminishing role of the geographical criterion in the assessment of proportionate self-defense, particularly when the situation encompasses the use of force against non-state actors. Thus, in the words of Tams and Devaney:

[R]ecent practice suggests that geographical factors that may be considered relevant to the proportionality of inter-state self-defence are of limited relevance: hence states hit by terrorist attacks on their home soil have asserted a right to respond against terrorists at their base – and even where their conduct was not generally accepted, the fact that the self-defence operation had carried the fight against terrorism into far-away, remote countries seemed to be a factor of limited relevance (Christian J Tams and James G Devaney, ‘Applying Necessity and Proportionality to Anti-Terrorist Self Defence’ (2012) Israel Law Review 94, 104).


Guest Post: Do All Roads Lead to Rome? Why Ukraine Resorts to Declarations Rather than Ratification of the Rome Statute

by Aaron Matta and Tom Buitelaar

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Tom Buitelaar is a Researcher with the Global Governance Program at the Institute. With many thanks to Thomas Koerner, Rod Rastan, Dan Saxon and Eamon Aloyo for their helpful feedback on earlier drafts of this commentary. The views expressed here do not represent the views of the Hague Institute for Global Justice. ]

Ukraine is engulfed in a complex and bloody conflict that has cost nearly 8,000 lives and generated over 1.4 million internally displaced persons. The conflict has erupted in different areas of the country and in different forms, from civil unrest and revolution to alleged Russian aggression and illegal annexation of Crimea. The MH17 incident is of particular importance now due to the recent release of the Dutch Safety Board Report on the causes of the crash, which concluded that the plane was hit by a BUK-missile, ruling out other options. Moreover, the UNSC resolution 2166 stipulates that those directly or indirectly responsible for the downing of MH17 must be held accountable and brought to justice. But how can the International Community respond to these challenges and bring those responsible of international crimes and serious human rights violations to justice?

In this regard, on September 8, Ukrainian Foreign Minister Klimkin lodged a second ad hoc Declaration (.pdf) under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) for crimes committed on Ukraine’s territory since 20 February 2014. This provision can be used by non-state parties to the Rome Statute – Ukraine signed the Statute, but has not ratified it. This declaration was preceded by the declaration lodged (.pdf) on 17 April 2014, which triggered the Court’s jurisdiction over crimes committed during the events on Maidan square between November 2013 and February 2014, and prompted Prosecutor Ms. Fatou Bensouda to open a preliminary investigation.

With the second declaration, the Ukrainian government postpones the ratification of the Rome Statute, choosing to involve the ICC in a more ad-hoc manner. This approach can be explained by looking both at the legal and political obstacles to ratification.

The main legal obstacle for ratification arises from certain incompatibilities (.pdf) between the Rome Statute and the Ukrainian Constitution. In July 2001, the Ukrainian Constitutional Court (Case N.1-35/2001 [.pdf]) ruled that “some of the Rome Statute provisions were in conflict with the Constitution of Ukraine”. Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the national courts and that judicial functions cannot be delegated to other bodies or officials. Therefore, Ukraine would have to amend its constitution in order to ratify the Rome Statute – as required by Article 9 of the Ukrainian Constitution (.pdf). While for example some countries like Brazil ratified the Rome Statute first on 2002 and amended their constitution later in 2004 – as provided by Article 5(3) of the Brazilian Constitution (.pdf) – this option is not viable for Ukraine.

An interesting question is whether the declarations would also be incompatible with the Ukrainian Constitution. On the one hand, this issue would not affect the legal obligation of a state to a Treaty, pursuant to article 27 of the Vienna Convention on the Law of Treaties (.pdf) (which states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”), or the ICC’s competence per se. On the other hand, this might have legal or practical unintended consequences in the domestic legal order if the Court’s potential decisions, warrants of arrest or requests for judicial cooperation cannot be given effect, or if their lawfulness is challenged at the domestic level.

Besides the legal obstacles there are also several political challenges to ratification. First of all, rule of law reforms—such as those required by ratification of the Statute and the implementation of its cooperation requirements—have shown to be a serious challenge in post-Soviet states. Because of these difficulties, ratification of the Rome Statute was not necessarily seen as a political priority. Secondly, until 2014, there had been no imminent threat of serious civil or international military conflict. Most importantly, armed conflict with potential Russian ‘involvement’ was unthinkable due to the historical, cultural and economic ties between the two countries. Moreover, Ukraine’s government is being increasingly overwhelmed with numerous urgent challenges, particularly since the conflict erupted. These include securing financial resources to avoid economic collapse and fighting corruption as a prerequisite for obtaining international financial aid. Currently, the main reform priorities have been tax reform, anti-corruption, and decentralization (the latter as part of the Minsk Agreements package). Therefore, amendments to Article 124 of the Constitution are only foreseen for the second phase of reforms planned for next year.

In addition to these legal and political challenges (more…)

Guest Post: Colombia–How Much Justice Can the Peace Take?

by Kai Ambos

[Kai Ambos is Professor for Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg August Universität Göttingen, Judge at the District Court in Göttingen,  Director of the Centro de Estudios de Derecho Penal y Procesal Latinoamericano (CEDPAL) of Göttingen University and has worked in Colombia in various capacities over the last 25 years.] 

On 23 September, the Colombian President Juan Manuel Santos achieved a major breakthrough in the peace negotiations with Latin America’s oldest guerilla movement, the “Revolutionary Armed Forces of Colombia People’s Army” (FARC). After over three years of negotiations and reaching agreement in principle on other, less controversial matters (land reform, political participation and the drugs problem), the question of how to deal with the crimes committed by the parties to the conflict – especially by the FARC – remained the last and greatest obstacle to the successful conclusion of negotiations. Now, the FARC – much to the astonishment of many observers – have accepted the creation of a “Special Jurisdiction for Peace”. Essentially, this special jurisdiction’s aim is to ascertain the criminal accountability of all parties involved in the armed conflict with a dual procedural model: those actors who submit to the new jurisdiction of their own volition and confess to their acts can expect a maximum – so-called alternative – sanction of up to eight years, while those who refuse to cooperate will be subject to ordinary criminal proceedings ending in a prison sentence of up to 20 years. All concerned must contribute actively to the ascertainment of the truth, to the reparation of victims, and to guaranteeing the non-repetition of the crimes committed. A truth commission will – at long last – be established. The FARC must lay down their weapons at the latest 60 days after the signing of final accord, which is planned for 23 March 2016. The agreement makes a distinction between (political) crimes for which amnesty is possible and the core crimes under international criminal law, namely genocide, crimes against humanity, and serious war crimes, for which there is no amnesty. In return for submitting to the abovementioned special jurisdiction, the FARC is granted the status of a political movement.

While the agreement marks a key step towards achieving lasting peace in Colombia, it also raises some difficult legal and political questions that may – apart from the short period until 23 March 2016 – hinder its implementation. As far as the composition of the abovementioned special jurisdiction is concerned, the accord in principle follows the model of the so-called “hybrid” tribunals created in other transition processes, albeit with three “Salas previas” (kinds of pre-trial chambers) – responsible for fact-finding, amnesties and pardons and the determination of the legal situation of the respective responsible individual – and the more important “Tribunal para la Paz” (Tribunal for Peace), which will conduct the main trials. The structure is not set out clearly in the public part of the agreement. It is clear, however, that the judges will mainly be Colombians – insiders speak of 20 – , with a small number of foreigners (three to five). Here, the key question is: how will these judges be selected? Besides their professional suitability, the main concern will be their neutrality towards and independence from the parties to the conflict, which will make the selection of the Colombian judges quite a challenge, given the fact that the Colombian judiciary is highly politicised. The case is similar for the selection of the members of the abovementioned truth commission.

As regards the ratione materiae jurisdiction, any amnesty is excluded not only for the core crimes mentioned above (albeit with the qualifier “serious” for war crimes), but also for individual acts such as forced expulsion, forced disappearance, torture and – very broadly – “sexual violence”. The explicit prohibition of amnesty was welcomed by the Chief Prosecutor of the International Criminal Court (ICC), but it goes beyond the crimes contained in the Court’s Statute and thus beyond the prohibition of amnesty recognised under international law. Otherwise, as broad an amnesty as possible – pursuant to Art. 6(5) Additional Protocol II to the Geneva Conventions – will be granted for political and related offences (“delitos políticos y conexos”). The opposition, led by former President Álvaro Uribe and the Prosecutor General (Procurador General) Ordóñez Maldonado, have already criticised in this respect that the crimes of drug trafficking and kidnapping could be granted amnesty as “related offences” according to this approach. While this is indeed the case, it neither is prohibited under international law nor under Colombian law. On the contrary, it is in line with the special political offence tradition enshrined in Colombia’s legal history and Constitution. Indeed, the Colombian Supreme Court has explicitly acknowledged that the offence of drug trafficking is not excluded from the transitional justice regime (Judgment of 30 April 2014, Sala de Casación Penal, case no. 42534) and, furthermore, that it is linked to the offence of rebellion if it serves to finance the armed struggle (Concepto de extradición CP117-2015 of 24 September 2015).

As to the ratione personae jurisdiction, in principle all parties to the conflict, including the members of the state security forces, will be subjected to the special jurisdiction, but the prosecution will need to concentrate upon the main persons responsible – in accordance with international practice. This is not stated explicitly in the agreement, but can be deduced from its reference to “the most serious and representative acts” and “cases”.

The most difficult and controversial issue is that of the enforcement of the abovementioned sanctions. In their public statements, the FARC leaders have repeatedly made it clear that they would not accept a usual prison sentence in a normal detention facility; however, they appear to have yielded in this regard also. Strictly speaking, the agreement sets out a threefold differentiation, whereby any sanction must include “an element of restriction of liberty”: those who admit their acts will receive the abovementioned alternative punishment of between 5 and 8 years, with the type of enforcement depending on whether the individual concerned has admitted to their acts immediately or only “later” (“tardía”). which needs to be determined more precisely. In the first case, the punishment is enforced under “special conditions”, and in the second under “ordinary conditions”. These “ordinary conditions” will also be applied to those who refuse to cooperate and can thus expect a prison sentence of up to 20 years. Accordingly, it seems clear that only those who confess at once can expect special treatment, that is, to serve their sentence outside a normal detention facility. The Colombian legislator will have to determine the exact details of these special conditions, with international (criminal) law leaving a broad margin of appreciation.

As it stands now, there are no objections to the agreement from the point of view of international law, and the ICC will also be happy with it. Of course, the much more detailed basic document which contains 75 points has not been published so far. In any case, on the domestic front the main concern will be less with international law and more with the Colombian population’s political acceptance of the agreement. Ultimately, this can only be achieved by a referendum.

The author is grateful to Margaret Hiley, M.A., Ph.D., for her assistance in the preparation of this English version.

Update to Open Letter from International Lawyers to EU States, the European Union and European Publics on the Refugee Crisis in Europe

by Başak Çalı

[Dr. Başak Çalı is Director for the Center of Global Public Law and Associate Professor of International Law at Koç University, Turkey. She the secretary general of the European Society of International Law. The following is written in her personal capacity. This is a follow-up post to the open letter we published 24 September.]

The open letter from international lawyers to the EU, EU states and the European Publics public concerning the existing international legal obligations to those seeking international protection has attracted signatures from over 900 international lawyers after it has been reopened for signature. The signatories include leading experts in international refugee law, Professors Deborah Anker (University of Harvard); Chaloka Beyani (LSE); Vincent Chetail (Graduate Institute of International and Development Studies);  Bhupinder Chimni (Jawaharlal Nehru University); Michelle Foster (University of Melbourne); Geoff Gilbert (University of Essex, Editor in Chief, International Journal of Refugee Law); Guy Goodwin-Gill (Emeritus Fellow, All Souls College, Emeritus Professor of International Refugee Law, University of Oxford); Elspeth Guild, (Radboud University Nijmegen); James Hathaway (Professor of Law and Director, Program in Refugee and Asylum Law, University of Michigan & Distinguished Visiting Professor of International Refugee Law, University of Amsterdam); Jane McAdam (University of New South Wales (UNSW)); Boldizsár Nagy, (Central European University & Eötvös Loránd University, Budapest); Gregor Noll (University of Lund); Thomas Spijkerboer (Professor of Migration Law, VU Amsterdam) and many others.

On 30th September, the office of the President of the European Commission, Mr Jean-Claude Juncker, responded to the Open Letter explaining that the Member of the Commission responsible for Migration, Home Affairs and Citizenship, Mr Dimitris Avramopoulos ‘is looking into the points you have raised and will respond to you rapidly.’

In summary, the Open Letter urges European states and the EU to:

  •  meet their obligations of international responsibility-sharing, to resettle significant numbers of refugees and provide aid to countries hosting large numbers of refugees.
  • as regards those seeking protection in Europe, abandon those policies which prevent safe and legal access to protection. The UNHCR estimates over 2,860 people have died at sea trying to get to Europe this year alone. Suspending carrier sanctions and issuing humanitarian visas would largely prevent the need for those seeking refuge to make dangerous journeys.
  • respect and protect the human rights of those seeking refuge once they are in Europe, including by enabling them to access asylum procedures or ensuring safe passage to countries where they wish to seek international protection.
  • immediately suspend Dublin returns of asylum-seekers to their first point of entry, but ensure that its rules on family reunification are implemented fully and swiftly.
  • relocate asylum-seekers and refugees in a manner that respects the dignity and agency of those relocated, and increases Europe’s capacity to offer protection.
  • replace the Dublin System with one which accords with international human rights law and respects the dignity and autonomy of asylum-seekers, and supports international and intra-European responsibility-sharing.
  • implement fair and swift procedures to recognize all those in need of international protection.
  • while claims are being examined, afford those in need of international protection, at a minimum, the reception conditions to which they are entitled in international human rights and EU law.
  • respect the right to family life, including positive obligations with regard to family unity, facilitation of swift family reunification and family tracing.
  • treat all refugees, asylum-seekers and migrants with dignity and respect, respecting and protecting their human rights, irrespective of status.

Read the entire Open Letter here (.pdf).

Under the New “Investor-State Arbitration” in the Trans Pacific Partnership, Claimants May Have to Pay Attorneys’ Fees

by Julian Ku

The U.S. and eleven other Pacific Rim countries announced they have reached agreement on the Trans Pacific Partnership trade agreement, which will more tightly integrate 40% of the world’s economy into a single regional bloc. There will be a huge fight in Congress over the TPP by progressive Democrats in the U.S. Even presidential candidate Hillary Clinton has already announced her opposition (sort of).

One area of ire for critics will certainly be the TPP’s provisions for investor-state dispute resolution (See Sen. Elizabeth Warren’s attack on this area here).  The TPP negotiators seem to have recognized that those provisions needed modifications and they seem to have focused on providing more transparency in arbitral proceedings.  But I was particularly struck by the U.S. Trade Representative’s official summary of the agreement’s provisions on investor state arbitration below.

The chapter also provides for neutral and transparent international arbitration of investment disputes, with strong safeguards to prevent abusive and frivolous claims and ensure the right of governments to regulate in the public interest, including on health, safety, and environmental protection.  The procedural safeguards include:  transparent arbitral proceedings, amicus curiae submissions, non-disputing Party submissions; expedited review of frivolous claims and possible award of attorneys’ fees; review procedure for an interim award; binding joint interpretations by TPP Parties; time limits on bringing a claim; and rules to prevent a claimant pursuing the same claim in parallel proceedings.

I find this provision on attorneys’ fees fascinating. I presume this will allow state-respondents to actually recover attorneys’ fees from investor-claimants if those claims were somehow deemed frivolous.  I didn’t realize frivolous claims were actually a huge problem in investor-state dispute resolution.  I am not aware of data showing lots of weak claims being filed with state-respondents just settling to avoid the costs of arbitration.

I am also not aware of any other kind of international dispute resolution, public or private, which has this kind of arrangement. It is worth the wait to see the details, but it is sign the TPP negotiators are getting ready to take fire on this area from folks like Sen. Warren, and have added a little armor ahead of time.

Defending the FSA Against Russia — the Jus ad Bellum Perspective

by Kevin Jon Heller

It’s been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution — the Commander-in-Chief Clause — would permit the US to defend the FSA, which it has been equipping and training. As Bobby points out, rather skeptically I think, the USG seems to believe it would (internal block quote omitted):

[I]t is an interesting legal question, especially in light of recent testimony from Under Secretary of Defense for Policy Wormuth to the effect that Article II could be invoked to permit U.S. forces to defend DOD-trained Syrian forces in the event of an attack on them by Assad regime forces.  Wormuth’s position was repeated by an unnamed “senior administration official” a few days ago.

Given this position, is there any reason to think the answer would be different if we are talking instead about Russian forces attacking those same DOD-trained units?  I see no reason why that would be the case, though the policy stakes obviously are immensely different.  Next, is there anything different if instead we are talking about CIA-trained, rather than DOD-trained, Syrian forces.  Again, I can’t see why this would alter the analysis; under the apparent theory of the Obama administration, the government already possesses whatever legal authority would be needed to use force to prevent Russian jets from striking U.S.-sponsored Syrian units.

I have no doubt Bobby’s right — as I said on Twitter, he has forgotten more about Art. II than I ever knew. I just want to point out that invoking Art. II to defend the FSA against Russia would be more than a little perverse given the status of such an attack under international law — the jus ad bellum, in particular.

Let’s start with Russia. Although its attacks on the FSA might have violated the jus in bello — I certainly wouldn’t be surprised — they did not violate the UN Charter’s prohibition on the use of force with regard to Syria, because they were conducted with the Syrian government’s consent. Nor is there any plausible argument for viewing the Russian actions as an armed attack on the US — whatever the Art. II argument about the US’s “national interest” (see this skeptical Jack Goldsmith post), an attack on the FSA is not a use of force against the US’s “territorial integrity or political independence.”

What this means, of course, is that the US could not invoke self-defense under Art. 51 to justify using force against Russia to defend the FSA — say, by destroying a Russian bomber. Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US.

(To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an aggressive act against a major Western power — one that is also a permanent member of the Security Council.)

Again, I have no idea how these jus ad bellum considerations affect the Art. II analysis. Knowing the US, the fact that attacking Russia would qualify as an unlawful act of aggression might be irrelevant. The optics of using Art. II to justify such an attack would nevertheless be deeply troubling, to say the least.

The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter

by Julian Ku

The UN General Assembly is set to vote once again (for the 24th consecutive year) on a Cuba-sponsored resolution condemning the United States’ economic, commercial, and financial embargo against Cuba.  This resolution will probably get near majority support, and perhaps even unanimous support.  Indeed, there are rumors that the U.S. government itself may abstain from voting against the resolution, which is certainly odd and perhaps unprecedented.  Cuban President Raul Castro’s speech at the UN reiterated his demand that the U.S. end its embargo and sanctions on Cuba.

I don’t want to get into the merits of whether the U.S. should have an embargo on Cuba here, but I am baffled by the implication that the embargo violates international law.  The GA resolution doesn’t quite condemn the US embargo as illegal, but it comes close.  From last year‘s resolution:

2. Reiterates its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation;

Now Cuba has long called the U.S. embargo a “blockade”, which would be illegal under international law.  But despite some economic penalties on third-party countries trading with Cuba (largely never applied and always suspended), the U.S. does not actually prevent, militarily or otherwise, other countries from trading with Cuba.

I am heartened to see that the GA thinks the UN Charter reaffirms the freedom of trade and navigation, but I am not aware of any authority for the proposition that a country’s choice not to trade with another country is a violation of the Charter’s non-existent textual references to the freedom of trade and navigation.

Here’s the problem with U.S. (and other nations’) acquiescence with the Cuba resolution’s language.  It strongly suggests that a country cannot impose a unilateral embargo on another country without somehow violating its UN Charter obligations.  This can’t possibly be something the EU or Canada can or should sign onto as a matter of principle.  And it is even odder for the U.S. administration to agree to this idea, when its main policy for dealing with foreign aggression (e.g. Russia in Ukraine) is the unilateral imposition of sanctions.

So I think it would be perfectly appropriate (and indeed necessary) for the U.S. and other countries that impose unilateral sanctions to oppose this resolution on principle.  They won’t of course, but they should.