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Book Symposium: Cyber War–Introduction

by Kevin Govern

[Kevin Govern is Associate Professor of Law at Ave Maria School of Law.]

The science fiction author William Gibson coined the term cyberspace in his short story, Burning Chrome (1982), before most of the public had a concept of, let alone experience with, using networked computer systems. Science fiction has given way to cyber reality, with 42.3% of the world’s population using the Internet on a regular basis, some 741% growth between 2000-2014 alone. At the same time, cyber weapons and cyber warfare are among the most dangerous innovations in recent years. Cyber weapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide ranging potential consequences. A non-exclusive list of some notable past cyber incidents includes but is not limited to:

The US director of national intelligence, James Clapper, recently told the House intelligence committee the next phase of escalating online data theft most likely will involve manipulation of digital information, with a lower likelihood of a “cyber Armageddon” of digitally triggered damage to catastrophically damage physical infrastructure.

Contemporaneous with this writing, a Chinese delegation met with representatives from the FBI, the intelligence community and the state, treasury and justice departments for a “frank and open exchange about cyber issues” amounting to “urgent negotiations…on a cybersecurity deal and may announce an agreement when President Chinese President Xi Jinping arrives in Washington on a state visit on Thursday [24 September].”

In this era of great cyber peril and opportunity, my colleagues and co-editors Jens Ohlin from Cornell Law School and Claire Finkelstein from the University of Pennsylvania Law School and I had the privilege of contributing to and editing a book that assembles the timely and insightful writings of renowned technical experts, industrial leaders, philosophers, legal scholars, and military officers as presented at a Center for Ethics and the Rule of Law roundtable conference entitled Cyberwar and the Rule of Law.

The collected work, Cyber War – Law and Ethics for Virtual Conflicts, explores cyber warfare’s moral and legal issues in three categories. First, it addresses foundational questions regarding cyber attacks. What are they and what does it mean to talk about a cyber war? State sponsored cyber warriors as well as hackers employ ever more sophisticated and persistent means to penetrate government computer systems; in response, governments and industry develop more elaborate and innovative defensive systems. The book presents alternative views concerning whether the laws of war should apply, whether transnational criminal law or some other peacetime framework is more appropriate, or if there is a tipping point that enables the laws of war to be used. Secondly, this work examines the key principles of the law of war, or jus in bello, to determine how they might be applied to cyber-conflicts, in particular those of proportionality and necessity. It also investigates the distinction between civilian and combatant in this context, and studies the level of causation necessary to elicit a response, looking at the notion of a “proximate cause.” Finally, it analyzes the specific operational realities implicated by cyber warfare technology employed and deployed under existing and potential future regulatory regimes.

Here is the full Table of Contents: (more…)

Does President Obama Have to Send the “Cyber Arms Control” Agreement with China to the Senate?

by Julian Ku

U.S. and Chinese negotiators are apparently very close to working out an agreement to limit the use of cyberweapons against each other.  There is talk that this agreement will be concluded before Chinese President Xi Jinping’s state visit to the U.S. next week.  The agreement will be pretty narrow in scope and apparently would not address the acts of cyber-theft and espionage that China allegedly carried out earlier this year. According to the NYT:

The United States and China are negotiating what could become the first arms control accord for cyberspace, embracing a commitment by each country that it will not be the first to use cyberweapons to cripple the other’s critical infrastructure during peacetime, according to officials involved in the talks.

I am skeptical that this kind of agreement could be effective for the reasons that Jack Goldsmith and Paul Rosenzweig have laid out (see also Goldsmith at greater length here).  But putting aside its effectiveness, it is worth asking whether a “cyber arms control agreement” would be the type of an agreement that required approval by two-thirds of the Senate as a treaty.

Much depends on exactly what the agreement purports to do.  If the agreement actually contains a commitment by the U.S. to “not be the first to use cyberweapons to cripple the other’s critical infrastructure”, than it is much closer to the traditional kinds of arms control agreements that have usually been approved under the U.S. system as treaties.  Unlike the Iran Nuclear Deal (which is mostly about lifting economic sanctions), the U.S. would be committing to refraining from using certain weapons or from exercising its military forces.

On the other hand, U.S administration sources caution that this agreement would not lay out specific obligations, but it “would be a more ‘generic embrace’ of a code of conduct adopted recently by a working group at the United Nations.” But even an agreement incorporating that code of conduct might be considered an “arms control” agreement since it requires that a state “should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public;” The rest of the code of conduct also imposes fairly robust obligations on a state.

I will have to think about this some more, but on first cut, it is possible that this cyber control agreement will have to be sent to the Senate as a treaty.  I think Senate approval of such a treaty would be a non-starter given the current political climate, so perhaps the Obama Administration will announce that this will be a sole executive agreement after all.  Whether that is permitted under the Constitution remains unclear though.


Guest Post: A Presumption Against Authorization in the Iran Nuclear Agreement Review Act

by David H. Moore

[David H. Moore is a Professor at the J. Reuben Clark Law School, Brigham Young University.]

Professors Ackerman and Golove, on one hand, and Professor Ku, on the other, disagree over whether the Iran Nuclear Agreement Review Act provides statutory authorization for the recent Iran Deal. The resolution of this question bears on whether a future President may unilaterally withdraw from the Deal. Both sides begin and end their analysis in the text, purpose, and history of the Act. At the outset, however, the authorization inquiry should face a presumption against authorization.

Analysis of presidential power questions is stacked in the President’s favor. As the Supreme Court has repeatedly explained, the President acts lawfully when supported by constitutional or congressional delegations of power. Defining the President’s constitutional powers presents difficult and far-reaching questions such as the meaning of the Vesting Clause and the distribution of war powers. Accordingly, the Court has an incentive to decide presidential power cases by reference to Congress.

Applying Justice Jackson’s framework, the Court upholds presidential action, with very rare exception, if the President acts with congressional approval. If Congress has remained silent, the President, and perhaps more importantly, the Court sits in a twilight zone in which Jackson’s analysis provides little to no guidance as to the legality of the President’s conduct. If Congress disapproves the President’s action, the President’s power is at its lowest ebb. The President will lose unless, as in Zivotofsky, the President possesses an exclusive power to perform the challenged actr. But to find exclusive power, the Court must engage those difficult constitutional questions. Thus, the easiest way to resolve a case is to find congressional approval. As Dames & Moore illustrates, the Court will sometimes scratch hard for evidence of authorization. The President exploits this dynamic by avoiding Congress and cobbling together evidence of congressional approval. Reliance on the 2001 Authorization for the Use of Military Force to combat ISIS is, in my mind, a good example.

Further, even if a statutory authorization is clear, it is suspect. As I have discussed here, Congress has a variety of reasons to delegate power to the President against institutional interest. Reelection concerns, for example, might motivate Congress to affirmatively delegate foreign affairs decisions to the President to leave time to focus on domestic matters that are more salient to constituents.

The aggregation of these dynamics means that assessing the legality of presidential action by reference to Congress tends toward the expansion of presidential power. One way to check this expansion is to begin the search for congressional approval with a presumption against authorization. Applying such a presumption to the Iran Nuclear Agreement Review Act would render Professor Ackerman and Golove’s interpretation, and similar arguments for congressional approval, even more suspect than Professor Ku asserts.

Why Professors Ackerman and Golove Are Still Wrong About the Iran Deal

by Julian Ku

I thank Professors Ackerman and Golove for taking the time to respond to my earlier post on whether a future President could unilaterally withdraw from the Iran Nuclear Deal.  But I remain unconvinced by the claims they made in their original Atlantic essay that a future President’s unilateral withdrawal from the Iran Deal would be “lawless”. Here’s why I still think they are wrong:

1)  Ackerman and Golove argue that the Iran Nuclear Agreement Review Act “authorizes” President Obama to enter into binding congressional-executive agreement with Iran.  In their sur-reply, Professors Ackerman and Golove cite two pieces of statutory text from the Iran Nuclear Agreement Act which they say is congressional authorization for the President to conclude the Iran Deal (the JCPOA).  They point out that the act “specifically defines ‘agreement’ to include any accord with Iran ‘regardless of whether it is legally binding or not.’ § 2610e(h)(1).” They then point out that the Act “authorizes the President to implement sanctions relief unless Congress enacts ‘a joint resolution stating in substance that the Congress does not favor the agreement.’ 42 U.S.C. § 2610e(c)(2)(B).”

For the purpose of this argument, it doesn’t really matter whether the agreement is legally binding or not.  The real problem is that Professors Ackerman and Golove do not (and cannot) cite statutory text “authorizing” the President to enter into an agreement with Iran.  They can’t cite this text because that language does not exist in the Act.  The Act defines an “agreement” broadly because Congress wants the President transmit everything, including supporting materials and annexes, to Congress.  The Act suspends the President’s pre-existing power to suspend or terminate sanctions on Iran while Congress “reviews” the agreement.  Congress may vote a resolution of disapproval, which would prevent the President from lifting or waiving sanctions, but it doesn’t say he can’t enter into the Agreement.  But Congress may also simply do nothing (which is what it has done), which would also allow the President to lift the sanctions after 90 days.  Nothing in the Act says the President can’t enter into the Agreement. It just says, once he does so, he has to disclose that agreement to Congress and hold off on implementation.*

Professors Ackerman and Golove somehow read this framework as an authorization of the President’s power to conclude an agreement, but a more plausible reading of the Act as a whole sees it as a suspension of the President’s pre-existing power to implement an agreement.  If you think (as I do) that the President has broad powers to conclude international agreements (especially nonbinding ones) without Congress, then this law makes a lot of sense since it requires the President to suspend implementation of the agreement for 60 or 90 days and disclose all information about the agreement.

Under the Ackerman/Golove reading of this language, Congress has authorized the President to enter into whatever agreement with Iran he wants, and the only condition it places on it is that Congress gets 90 days to review it before it automatically goes into effect. Why would  Congress bother to give the President the power to enter into an agreement without reserving for itself the power to approve it?

It is worth noting that Congress knows how to specifically authorize an executive agreement, and require its approval before going into effect.  In Section 103(b) of the Trade Promotion Authority Act (enacted about the same time as the Review Act), Congress states that:

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

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

[Emphasis added].

Moreover, the trade agreements require approval by a separate Act of Congress.  As the TPA bill makes clear in Section 106, no agreement “entered into under section 103(b) shall enter into force with respect to the United States if (and only if)—” among other requirements — “(F) the implementing bill is enacted into law.” [Emphasis added).  Again, Congress is making clear that it ( and not the President) is the one who has authorized the agreement and that the agreement cannot have any force until Congress acts to approve and implement it.

It bears repeating: there is no language even remotely like this in Iran Nuclear Agreement Review Act. There is no language saying the President can enter into an agreement, nor is there language explaining when that agreement has “entered into force.”  Congress knows how to authorize an international agreement, and the most natural reading of the Iran Nuclear Agreement Review Act is that it didn’t do so there.

2) Professors Ackerman and Golove also argue that a future President cannot legally (under U.S. law) terminate this agreement without either approval from Congress or without undermining U.S. credibility in trade agreements like NAFTA or the WTO.

I find this argument lacking for at least two reasons.

First, as I stated above, the Iran Nuclear Agreement Review Act doesn’t follow the pattern of trade promotion authority laws  in any way so it is highly unlikely that any trading partners will worry about a President Rubio pulling out of the WTO because he pulled out of the JCPOA. (Simon Lester makes that point here)

Moreover, the Review Act does not in any way prohibit a future President from withdrawing from the JCPOA, nor does it prohibit the President from reimposing sanctions on Iran. He is perfectly free to put them back on without violating the Review Act or any other U.S. statutory law.

The contrast with trade agreements is again instructive because Congress knows how to reserve to itself the power to terminate an agreement.  Under Section 125 of the Uruguay Agreements Implementation Act, Congress can vote every five years on whether to pull out of the WTO. This suggests that Congress has reserved for itself some power to terminate the WTO agreement. And because the laws implementing the WTO agreement change all sorts of other U.S. laws, it makes sense for Congress to supervise how and when the U.S. gets out. (It bear repeating: terminating the JCPOA does NOT violate or change any U.S. domestic law).

Second, as I noted in my original post, even if the Iran Deal was a treaty approved by the Senate, there is good reason to think the President could withdraw from the Iran deal-treaty without going back to the Senate for approval.  President Bush withdrew from the Anti-Ballistic Missile treaty without going to the Senate, President Carter withdrew from the U.S.-Taiwan defense treaty without going to the Senate, etc.  For this reason, a future President could withdraw from the JCPOA (even if the JCPOA is legally binding) without going back to Congress, especially where the Review Act does not reserve to Congress any termination rights.  Thus, even if Professors Ackerman and Golove are right that the Review Act authorizes the President to enter into an agreement, it doesn’t REQUIRE him to do so or REQUIRE him to stay in the JCPOA. (And he can withdraw via the JCPOA’s provisions if he chooses).

In conclusion, I am back where I started.  Professors Ackerman and Golove use the thinnest of statutory language to claim that Congress “authorized” the President to make an agreement, and further, that Congress has also prohibited the President from withdrawing from it.  That’s a lot of work for a mere definition of the word “agreement” to carry. It’s far too much, especially when one considers the way Congress goes about its business in the trade agreement context.  The next President can unilaterally withdraw from the JCPOA. And, with all due respect to Professors Ackerman and Golove, such a withdrawal will be the opposite of “lawless.”


*As a side note, the fact that the definition of an agreement includes non-binding political commitments suggests that Congress is really after review and disclosure, not authorization and approval.  Could Congress authorize the President to enter into a non-binding political commitment? And then require him and future presidents to stick to such a commitment?

Guest Post: The Lawless Presidency of Marco Rubio–A Reply to Professor Ku

by Bruce Ackerman and David Golove

[Bruce Ackerman, Sterling Professor of Law and Political Science at Yale, is the author of The Decline and Fall of the American Republic and David Golove, Hiller Family Foundation Professor of Law, New York University School of Law, is the co-author of Is NAFTA Constitutional?]

Responding to our essay in the Atlantic, Professor Julian Ku believes that we are “deeply and badly mistaken” in criticizing Senator Rubio’s claim that the next President has constitutional authority to repudiate the Iran Nuclear Agreement on his first day in office.

We are not convinced.

According to Professor Ku, nothing in the “Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize[s] the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments.”

This claim boldly ignores the Iran Act’s key operative provisions. The Act specifically defines “agreement” to include any accord with Iran “regardless of whether it is legally binding or not.” § 2610e(h)(1).  It then authorizes the President to implement sanctions relief unless Congress enacts “a joint resolution stating in substance that the Congress does not favor the agreement.” 42 U.S.C. § 2610e(c)(2)(B).

Professor Ku is simply wrong in asserting that the statute is silent on the issue of legality. Congress was fully apprised of the President’s intention to conclude an accord. Far from objecting to his plans, it granted him authority to implement any “agreement” – so long as it passed its own specially devised procedure for reviewing the deal

He does, however, have a fallback position. Although Congress plainly gave the president authority to create a “legally binding” agreement, it did not require him to do so – and Professor Ku notes that the Administration at one stage denied that it had any such intention.

When those comments were made, President Obama was thinking of making an Iran deal entirely on his own authority. If he had taken this route, it was only natural for him to concede that he could not bind his successors to his purely executive agreement.

But the constitutional situation radically changed once the President signed the Iran Act in May. When Secretary Kerry hammered out the terms of the Six Power Agreement with Iran on July 14, he could do so with assurance that the agreement had the force of statutory authorization behind it, so long as it survived Congressional review.  Professor Ku fails to point to any subsequent statement from the State Department suggesting that the Administration did not take full advantage of its new legal powers.[1]

In any event, we should be looking at the text of the Agreement itself to determine its legal status. Once again, Professor Ku’s interpretations of the text refute, rather than confirm, his larger claim. He emphasizes that Paragraph 36 of the Agreement creates an “exit ramp” for any party confronted with “significant non-performance” by another signatory.  This is surely an important provision, but it supposes that the American commitment is indeed binding unless and until such a “significant” breach has been established.

To override this obvious implication, the Agreement could have declared explicitly that, appearances to the contrary, it was non-binding.  But no such provision exists. Contrast a recent agreement also dealing with military affairs – the 2011 Vienna Document on Confidence and Security-Building Measures – which loudly proclaims: “The measures adopted in this document are politically binding and will come into force on 1 December 2011.”

Since Professor Ku rests his textual case on Paragraph 36, he has failed to present a convincing defense of Rubio’s position. The Senator is not telling the American people that he would terminate the agreement if he soberly determined that Iran’s on-going conduct fell significantly short of its commitments. Instead, he is saying that “there is nothing” about the agreement “that is binding on the next administration.”

Other commentators have presented additional arguments – both pro and con – based on the language of the agreement. Compare here with here.  A full assessment is beyond the scope of a brief blog-post. It is enough to explain why Professor Ku’s critique entirely fails to refute our position.

[1] Our own independent search of the record has uncovered one relevant sentence from the post-ratification period. It appears on the White House site encouraging the general public to submit petitions soliciting presidential action. This particular petition, with 322,000 signatures, asserted that “47 senators have committed treason”, as well as a violation of the Logan Act, in writing a  “condescending letter to the Iranian government stating that any agreement brokered by our President would not be upheld once the president leaves office.” We do not know who was assigned the task of preparing a brief response to this inflammatory petition. But the anonymous author refused to confront the treason charge directly, providing a discussion which emphasized Congress constructive role, and contenting itself with the observation that “The United States has a longstanding practice of addressing sensitive problems in negotiations that culminate in political commitments, including in areas of national security significance.” See here. This sentence did not engage in any discussion of the Agreement’s text, nor does it explicitly address the interpretive issues we have discussed. Given the surrounding context, it cannot be fairly construed as a serious statement from a high-level official committing the Administration to a well-reasoned position that rejects the legally binding  character of the Iran agreement.

Guest Post: Is the International Criminal Court in Need of Support to Clarify the Status of Heads of States’ Immunities?

by Alexandre Skander Galand

[Alexandre Skander Galand is a Ph.D. Candidate at the European University Institute (EUI), Law Department.]

In the aftermath of the last episode of the ‘Al-Bashir saga’, one might have wondered what the International Criminal Court (ICC) will do with the last report (filed on 17 June 2015) of the ICC registry concerning South Africa’s failure to arrest and surrender Sudan’s President. The answer is now clear: there will be proceedings to determine whether South Africa failed to cooperate with the ICC. Indeed, last Friday 4 September, Pre-Trial Chamber II issued an “Order requesting submissions from the Republic of South Africa for the purposes of proceedings under article 87(7) of the Rome Statute”.

As it is known, the Decision of Pretoria High Court Judge Hans Fabricius on 15 June directing the various executive authorities of South Africa to take all necessary steps to prevent President Omar Al-Bashir of Sudan from leaving South Africa was overlooked by the concerned authorities. On the next day, just after the High Court handed down its decision that Al-Bashir be arrested and detained, the counsel for the South African executive authorities informed the Court that Sudan’s President had already left the country.

The ‘Al-Bashir Saga’ raises the question of whether it is crystal clear that Al-Bashir is not immune from the ICC and its States parties’ exercise of jurisdiction. Is the immunity of Heads of States not parties to the Rome Statute completely irrelevant when a State enforces an ICC arrest warrant? Or, must the State be deemed to have waived its immunity? If so, is a Security Council (SC) referral sufficient to waive the immunity of a Head of State? Or, must the immunity to which the Head of State is entitled under international law be explicitly waived by the SC?

The ICC says: In claris non fit interpretatio

Three days before the Pretoria High Court ruling, the ICC Pre-Trial Chamber (PTC) held:

“it is unnecessary to further clarify that the Republic of South Africa is under the duty under the Rome Statute to immediately arrest Omar Al-Bashir and surrender him to the Court, as the existence of this duty is already clear and needs not be further reiterated. The Republic of South Africa is already aware of this statutory duty and a further reminder is unwarranted.” (§ 10)


President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”

by Julian Ku

Professors Bruce Ackerman and David Golove argue in this Atlantic essay that the next President cannot withdraw from the Iran agreement because it is a “congressionally authorized executive agreement.” They argue that Senator Marco Rubio’s pledge to terminate the Iran Deal on day one “would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization….The President can no more walk away from them than he can from any other law or treaty.”

I am sorry to say that this article, which comes from two super-respected legal scholars, is deeply and badly mistaken.

This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.

But this premise is wrong.  The U.S. government has repeatedly stated (see here)  that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here).   Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).

Nor does the Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments. The Review Act simply sets up a disclosure and timetable regime for the President’s disclosure of his foreign affairs activities that he wouldn’t otherwise have to disclose to Congress.

It is nothing like the Trade Promotion Authority that the President has received to conclude trade agreements like NAFTA or the WTO. While the Review Act discusses agreements that were already made and sets out disclosure and timing requirements, Trade Promotion Authority laws (like the most recent one) say things like: “the President— (A) may enter into trade agreements with foreign countries before” certain dates and then cannot afterwards.”  This is explicit authority, and no similar language can be found in the Iran Nuclear Agreement Review Act.

In any event, Ackerman and Golove are also mistaken on a more mundane point. Even if the Iran Deal is a binding congressionally authorized international agreement, a future President could withdraw from such an agreement unilaterally.  This is true because: 1) the JCPOA itself has an “exit ramp” under Paragraph 36 which allows the U.S. to terminate its participation after 35 days if its concerns about Iran’s compliance are not satisfied; and 2) the President appears to have broad constitutional powers to unilaterally terminate treaties without Congress or the Senate’s approval.  Surely, the President could terminate a nonbinding voluntary “plan of action” without going back to a Congress that didn’t really authorize him to make an agreement in the first place.

Even though I am increasingly convinced that the Iran Nuclear Deal is a bad deal for the U.S. and Europe (not to mention Israel), I have publicly defended the legality of President Obama’s decision to conclude a nuclear “agreement” with Iran without going to Congress to get approval. But the decision to bypass Congress has got to have a price for the President.  And that price is that the Iran Deal does not bind his predecessor either as a matter of constitutional or international law.

The Difference Between the British and American Debates Over the Legality of Drone Strikes: The Brits Seem to Care About International Law

by Julian Ku

Earlier this week, British Prime Minister David Cameron announced that the UK had conducted a lethal drone strike against one of its own nationals (affiliated with ISIS)  in August and that the British government was confident of the strike’s legality under international law.

As an outside observer, I am fascinated at how important the drone strike’s legality under international law seems to be for UK policymakers and commentators.  The BBC’s useful analysis of “Who, What, Why: When is it legal to kill your own citizens?” is exclusively focused on the legality of the strike under international law.  So is this editorial from the UK newspaper The Independent.

To be sure, the US debate over drone strikes also dealt seriously with international law.  But the most powerful legal arguments against drone strikes were those made on the basis of the U.S. Constitution’s Due Process Clause and U.S. statutes criminalizing murder of U.S. nationals abroad. International legality has not played a big part in this litigation, nor even in its broader public debate. Senator Rand Paul of Kentucky famously filibustered for a whole day against targeted killings but his legal complaint was wholly constitutional.

But as far as I can tell, there has been little discussion of whether the UK government’s killing of a UK national abroad violates the UK Human Rights Act (incorporating the European Convention on Human Rights) or UK statutory law more generally.  I may be missing something, but it does seem a telling difference in the nature of public and legal discourse in the two countries.


Guest Post: A Complementarity Challenge Gone Awry– The ICC and the Libya Warrants

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor, The Center for Global Affairs, NYU-SPS, and Chair, International Criminal Court Committee, American Branch of the International Law Association.]

On July 28, 2015, a domestic court in Libya announced death sentences against Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, and Abdullah al Senussi, who served as intelligence chief. In total, 32 former Gaddafi-era officials were convicted, including 9 who were sentenced to death. Yet, observer accounts suggest the trials were deeply flawed, lacking key fair trial protections. The possibility that Libya will carry out the death sentences is clearly of huge concern to the defendants, but should also be of concern at the International Criminal Court.

On February 26, 2011, the UN Security Council referred the situation in Libya to the International Criminal Court. The Court originally issued 3 warrants for crimes committed during the 2011 uprising, against Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al Senussi, charging them with murder and persecution as crimes against humanity. The case against Muammar Gaddafi was terminated after his death.

Initially at issue in both the Saif Gaddafi and al Senussi cases was whether they should be tried in Libya or at the ICC, as the ICC will only try cases where national courts are “unwilling” or “unable” to conduct the trials. The Court ruled that Saif needed to be tried at the ICC, whereas al Senussi could be tried in Libya, as he was the subject of domestic proceedings and the ICC deemed Libya “willing” and “able” to carry them out. The ICC Appeals Chamber affirmed both rulings.

Yet, despite the ruling that Saif should be tried in The Hague, he was never surrendered, and remains in Libya. His situation is complicated by the fact that he is not held by any governmental authorities, but the “Zintan” militia.

As to al Senussi, this Author thinks the Court erred in its decision. The problem with the criteria of “willing” and “able” (or that a national court is not “unwilling” or “unable” to try the accused, as it is phrased in article 17 of the Rome Statute), is that it generally ignores an equally problematic third possibility – that a national court is “all too willing” to try someone (i.e., the situation of “overzealous” national proceedings). This is a situation one can certainly anticipate any time there has been a regime change and the new government wants to “get” at officials of the past regime – in other words, potentially the situation here. The rush to justice resulting in the Saddam Hussein execution is another example.

Human Rights Watch reports that al Senussi was denied adequate time to prepare his case, and adequate assistance of counsel. Saif, who was not even present for his trial, was apparently denied both these protections, and, additionally, while trials in absentia are permitted in Libya, the procedural safeguards required for them were apparently not provided. While the death penalty is permissible under Libyan law (and its imposition alone does not necessarily mean the trials were unfair), more and more countries categorically oppose the death penalty. At minimum, where it is a possible punishment, it is especially important that fair trial guarantees are scrupulously observed.

Should this turn of events be of concern to the ICC? Indeed.

Saif was supposed to be tried at the ICC, and he could end up executed in Libya. As a result of the ICC’s rulings, a “green light” was given to al Senussi’s trial in Libya, which has also resulted in a death sentence. If the sentences are affirmed on appeal and carried out, the ICC will have played a role in allowing two executions based on trials suspected of serious due process flaws.

There is still a chance for an appeal in Libya. Libya’s Supreme Court should independently and fairly review the verdict, particularly with a view to due process. But in the mean time, more pressure should be put to bear to ensure that Saif is transferred to The Hague (where he should have been all along), and al Senussi’s counsel should move to reopen the admissibility challenge based on newly discovered information (the events in Libya), or the ICC Prosecutor’s Office should do so.

The Appeals Chamber did leave an opening in its July 24, 2014 ruling (.pdf), suggesting that it would not utterly ignore due process violations by a national court, suggesting some concerns of an “all too willing” or “vengeful” national court:

It is clear that regard has to be had to ‘principles of due process recognized by international law’ for all three limbs of article 17(2), and it is also noted that whether proceedings were or are ‘conducted independently or impartially’ is one of the considerations under article 17(2)(c). . . . As such, human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article 17(2)(c).

To the extent the Appeals Chamber also suggested the national proceedings would have to be “completely lack[ing in] fairness” such that they fail to provide “any genuine form of justice,” before the ICC can be the proper venue, the Judges are setting the bar too high. (Alternatively, it is conceivable that, upon further inquiry, one might find even that bar met.)

It is true that the drafters of the Rome Statute specifically rejected making the lack of due process a ground for admissibility. Yet, the precedent they were dealing with at the time – the experiences of the ICTY and ICTR, where “unwilling” and “unable” trials respectively were the concern – simply do not reflect what has become the experience of the ICC. Moreover, it is quite possible –as the Appeals Chamber has done — to read a “due process” component into the language of article 17 of the Rome Statute.

Based on the events in Libya—flawed proceedings that suggest a lack of impartiality—the Court should now find the al Senussi case “admissible” at the ICC and order him transferred. If that happens, individual states and the UN Security Council should be prepared to help ensure the transfer actually happens.

These may not seem the most significant cases the ICC has on its docket (they probably aren’t), but it would be a bleak day if the ICC (and the UN Security Council) stand by and let these death sentences be carried out on cases that stemmed from the Security Council’s referral, and as to which the ICC was involved.

Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

by Justin Yang

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.]

The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership.

Tracing the development of international criminal justice institutions in the 20th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric.

Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors.

The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld. (more…)

Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 2)

by Aaron Matta and Anda Scarlat

[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga, Jill Coster van Voorhout and Thomas Koerner 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.]

Following on from our previous commentary on potential state responsibility, this post will look at the role of individual criminal responsibility in addressing the downing of MH17. Proposals have been made for using either existing mechanisms or for setting up a new tribunal to address this incident specifically. Determining the best avenue ultimately depends on the outcome of the investigations into the incident and the political realities of the situation.

At the outset, it is important to note the most recent major development: the Russian veto, on 29 July 2015, of a proposed United Nations Security Council (UNSC) resolution which aimed to set up an international tribunal to prosecute the individuals responsible for downing MH17. Despite this apparent setback, which is explored further below, a wide variety of options remain open.

Domestic Prosecution

First, the alleged perpetrators could face domestic prosecution in a state which has jurisdiction over the crimes in question. The most familiar bases for jurisdiction under international law would be: territorial (i.e. Ukraine, in whose territory and/or airspace the alleged crimes took place; or Malaysia, as the state of registration of the aircraft, in accordance with Article 3(1) of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft); nationality (depending on the nationality of the alleged perpetrators, which has not yet been established); and passive personality (depending on the nationality of the victims, so including states such as The Netherlands, Malaysia and Australia). In addition, if international crimes are alleged, any state could exercise universal jurisdiction over the alleged perpetrators, for example on grounds that the incident amounted to “war crimes”; this would depend on the various states having legislated to give their domestic courts jurisdiction to prosecute international crimes. In addition, it may be very difficult to secure the arrest and surrender of accused persons for prosecution at the national level, especially if they are high ranking officials.

It is possible that The Netherlands would exercise jurisdiction over these alleged crimes, based on either passive personality or universality, given the important role it has played in investigations thus far, as well as the fact that a large number of its nationals died during the incident. Although these circumstances are likely to result in support for such a prosecution at the domestic level in future, The Netherlands (alongside states such as Australia, Belgium, Malaysia and Ukraine) is currently pushing for other avenues for prosecution, such as an international tribunal.

One could also argue that Ukraine and Malaysia have more robust jurisdictional claims over the incident by virtue of the territoriality principle. However, this argument is typically based on the practical reality that these states would, in most cases, have better access to the witnesses and other evidence needed for prosecution. In the case of MH17, given the strong involvement of The Netherlands and other states in the investigation thus far, these investigating states may be in a better position, de facto, to carry out the prosecutions, regardless of the relative robustness of the de jure basis for jurisdiction.

International Criminal Court

Secondly, if international crimes falling within the ambit of the Rome Statute of the International Criminal Court (ICC) are alleged, the perpetrators could also be tried before this Court. However, (more…)

Emerging Voices: “Do No Harm” and The Development of General Corporate Human Rights Obligations

by Gabriel Armas-Cardona

[Gabriel Armas-Cardona received his J.D. from New York University and was a legal officer at Lawyers Collective in New Delhi, India where he managed the Global Health and Human Rights Database.]

Human rights activists have long complained of legal lacunae in domestic and international law over the regulation of corporations. This is why last year’s United Nations Human Rights Council resolution to elaborate binding obligations on corporations was cheered by activists (and derided by business). The UN’s previous attempt to develop a general framework of responsibilities in the 2011 Guiding Principles on Business and Human Rights did not impose binding obligations, likely one of the reasons it was generally praised by corporations.

Corporate behavior is primarily regulated through two domestic legal systems: tort and a corporate regulatory regime. The first is the traditional remedy system for individuals while the latter is the State impositions on business to promote a social good. In well-regulated States, these two distinct systems have grown to more effectively protect that society. But many developing countries don’t have legal systems in place that effectively protect their society and almost no State regulates corporate action abroad for the protection of other societies. The value of binding legal obligations is that they can remove the lacunae by having universal and consistent obligations for all corporations within States and in the interstitial space between jurisdictions.

These obligations would be distinct from and would not dilute State human rights obligations. Having multiple dutybearers, even qualitatively different ones, is not problematic. Corporate obligations would positively interplay with States’ duty to protect to further realize human rights. When a violation by a corporation occurs, it would be the State’s duty to provide a remedy system, stemming from a State’s duty to protect, and the corporation’s duty to cooperate with that system, stemming from the secondary duties mentioned in the duty to fulfill, or to directly provide reparations to the victim (in normal parlance: go to court or settle). If the corporation cannot provide reparations (e.g. due to bankruptcy), then the State would have to provide reparations directly. Either way, the victim is made whole.

Underlying the challenge is that there currently is no principled framework for universally applicable corporate obligations. One can’t simply copy State obligations and apply them to corporations; their obligations must reflect that they are private actors. The Guiding Principles state that corporations “should avoid infringing on the human rights of others” (Principle 11), or as the Special Representative of the Secretary-General that wrote the Guiding Principles said, the responsibility of a corporation is “put simply, to do no harm.” The principle of “do no harm” has been used as a touchstone in corporate human rights obligations since at least 2002 and is a surprisingly suitable standard for developing a structure for general obligations.

As dutybearers, the same tripartite typology of human rights can apply to corporations as States; i.e., a human right would impose duties on corporations to respect, protect and fulfill. The Shue/Eide typology recognizes that the realization of rights can require measures of varying degrees of activity by dutybearers. Corporations can violate rights as producers, industry players, or employers; thus, depending on the situation, corporations may be required to stop selling defective goods, protect victims from violations done by the corporation’s supply chain or provide reparations for a prior harm. The majority of obligations falls within the duty to respect, but the duties to protect and fulfill provide new and interesting duties that respond to the concerns of corporate violations.

To understand what substantive obligations arise from “do no harm,” it helps to use the example of a particular right, such as the right to health. As economic entities, corporations are able to directly infringe on the realization of economic, social, and cultural (ESC) rights. The right to health is one of the most developed and broadest ESC rights, making it useful to use here.

The content of corporate obligations vis-à-vis the right to health