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Human Rights

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

Yes, the Rule of Law Must Remain Central to the Debate on Trumpism

by Ian Seiderman

[Ian Seiderman is the Legal and Policy Director, International Commission of Jurists]

Andrew O’Hehir, an ordinarily astute analyst of US political skullduggery, adopts a contrarian posture when it comes to Trump, Trumpism and the rule of law. He thinks that all the brouhaha about trampling on cherished rule of law traditions misses the point. What’s so precious anyway, he suggests, about mutable law written by corrupt, unprincipled or ideologically charged politicians? Writing in Salon recently, O’Hehir characterizes the rule of law as “a poorly defined principle”:

It seems ludicrous to claim that anyone, of any party or any ideology, actually sees the law as a neutral or abstract force rather than a naked instrument of power.

Nothing has traditionally been more central to Americans’ quasi-religious understanding of their democracy than the importance of the rule of law, which can be broadly defined as the notion that laws should govern people rather than the other way around. (Spoiler alert: There’s an enormous paradox baked into that from the beginning, since it’s always people with power who make the laws in the first place.) That was essentially the basis for the constitutional separation of powers laid out by Thomas Jefferson and James Madison, which was meant to ensure that the law itself would remain independent of those who enacted it, enforced it or interpreted it.

O’Hehir goes on to point out the obvious: that certain long discredited tenets like the absolute sacrosanctity of property rights and the natural order of slavery were once grounded in principles of law in the United States. He adds that it is in fact the contested political terrain of liberal democracies with their market economies that “produce [a] vision of the law as a neutral, independent and almost mystical force that stands outside the control of any person or any party.”

For those of us who consider the rule of law to be a near-universal principle that can operate comfortably within a broad – though hardly infinite – range of political and economic arrangements, O’Hehir’s arguments do not sit well. He is hardly the first commentator to assume that the “rule of law” is tantamount to “rule by law”: indeed there are advocates of this “thin” notion of the rule of law, epitomized by the writings of 19th century British jurist A.V. Dicey and the “Singapore model”. But this line of thinking ignores the now more dominant conception of the rule of law as not simply a value neutral construct addressed to forms and procedures, but a norm-laden overarching governance framework. (In fairness to O’Hehir, his point is ultimately that the rule of law is an elusive concept, not that it must mean rule by laws imposed by the powerful.)

While the normative concept of the rule of law has long antecedents, a watershed moment for its entrenchment in international law discourse was the Nuremberg and other legislation that emerged during the Third Reich. Thus the Justice Case (United States v- Alstoetter) before Military Tribunal III, the defendants that included judges, prosecutors and officials of the German Ministry of Justice could be held responsible for a criminal enterprise by the very fact that they enacted or enforced legal statutes and decrees, such as the Night and Fog decree. Respecting those perverse laws necessarily meant not respecting the rule of law.

The organization which I serve, the International Commission of Jurists, devoted the first 15 years of its existence during the 1950s and 60s, to defining what we then called the “dynamic” conception of the rule of law. The idea was that the rule of law is not an abstract notion, but necessarily tied to other legal and normative content, especially human rights principles. Rule of law was a broad organizing concept under which a range of correlatives principles could be grouped. And to O’Hehir’s point, those normative principles are quite apart from the underlying subject matter of particular statutory legislation or administrative rules at issue. This view has over time gained widespread international currency, promoted by leading judges, like the late Lord Tom Bingham, endorsed at the political level and serving the basis for major work from UN agencies such as UNDP and OHCHR.

A definitive enumeration of rule of law principles may have so far eluded universally accepted codification, but building on the historic work of the ICJ there have at least been attempts at enumeration. One example, where most of the elements are more or less uncontroversial, has the imprimatur of the States of the UN Rights Council. Its Resolution on human rights, democracy, and the rule of law, adopted in 2012, highlights, among many other elements, the principles of the separation of powers; legality; equal protection before courts and under the law; non-discrimination; accountability, including criminal accountability for human rights and IHL violations; the independence and impartiality of the judiciary; the subordination of the military to civilian authorities; access to justice; gender equality; and the right to effective remedies for rights violations.

Whether adherence to rule of law in this kind of progressive framing is by itself sufficient to address the myriad transgressions by Trump and his acolytes, is questionable, but it is certainly part of the equation. For instance, the idea that a State’s prosecution services must be functionally independent of the political arms of the executive is a well entrenched rule of law principle which Trump and his subordinates have certainly run over rough shod, especially in respect of the FBI and Special Counsel investigations on “collusion” and obstruction of justice. The fact that some administered laws could themselves theoretically run afoul of the rule of law or constitute poor policy is a critical but distinct issue that should not blind one to the indispensability of the rule of law itself.

Activating the Crime of Aggression: A Response to Stürchler

by Kevin Jon Heller

Nikolas Stürchler, the Head of International Humanitarian Law and International Criminal Justice Section at the Swiss Federal Department of Foreign Affairs, has a new post at EJIL: Talk! discussing the ASP’s decision to completely exclude states parties from the crime of aggression unless they ratify the aggression amendments — the “opt-in” position advocated by a number of states, most notably the UK, Japan, and Canada. The post is very long and quite technical, so I won’t try to summarise it. Basically, Stürchler argues that the judges are still free to adopt the “opt-out” position, because the Resolution “confirming” the opt-in position, despite being adopted by consensus, conflicts with Art. 15bis(4) of the Rome Statute, which reflects the opt-out position. Here are the relevant paragraphs:

What remains is an operative paragraph 2 that, like the second sentence of paragraph 5 of article 121 of the Rome Statute which it seeks to leverage, stands in contradiction to paragraph 4 of article 15bis of the Rome Statute. Paragraph 4 of article 15bis literally asserts that the Court has jurisdiction over a crime of aggression “arising from an act of aggression by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.” In this sense, it is somewhat difficult to argue that operative paragraph 2 is simply a case of interpreting or clarifying the crime of aggression amendments. If the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions. One could argue that the Assembly did no more than clarify that the second sentence of paragraph 5 of article 121 fully applies, thus conditioning the application of article 15bis on a State Party’s ratification or acceptance, but this nonetheless would seem to imply a revision of the plain reading of article 15bis.

Be it as it may, with the Assembly having achieved activation, it is now up to the Court to determine the extent of its jurisdiction over acts of aggression committed by nationals or on the territory of non-ratifying States Parties. It is for this reason that the reference to the independence of the judges in operative paragraph 3 is so important. Pending a clear pronouncement by the Court, the only way for any State Party to legally ensure that its nationals fall outside the remit of the ICC’s jurisdiction continues to be to file an opt-out declaration in accordance with paragraph 4 of article 15bis of the Rome Statute.

I want to make three quick points here. The first is that, in fact, Operative Paragraph 3 (OP3) of the Resolution is completely irrelevant to the jurisdictional question. The judges are independent because of Art. 40 of the Rome Statute; OP3 simply reiterates their independence. So the judges would have the right to decide on the jurisdictional question even if OP3 was not included in the Resolution. (In that regard, I’m not sure why the states promoting the opt-in position were so opposed to OP3. A paragraph that tried to take away judicial independence concerning the interpretation of the new crime of aggression would have been patently ultra vires.)

The second — and more important — point is that Stürchler’s argument about the conflict between Operative Paragraph 2 (OP2) and Art. 15bis(4) is remarkably selective. The underlying principle is that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself. As he writes, “[i]f the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions.” I agree with the principle! But here is the problem: Art. 15bis(4) was also not adopted pursuant to the Rome Statute’s amendment provisions. Art. 121(5)’s second sentence “literally asserts” that, “[i]n respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” Art. 15bis(4)’s requirement of an opt-out thus can only apply to a state that has ratified the aggression amendments. If a state does not ratify the amendments, Art. 121(5) — which pre-existed Art. 15bis(4) — controls, the unamended Rome Statute applies to that state, and the Court has no jurisdiction over an act of aggression committed by that state’s nationals or on its territory.

This is not — or should not be — a controversial point. Not even the opt-out positions’s most fervent defenders claim that the adoption of Art 15bis(4) was consistent with the amendment provisions in Art. 121(5). Instead, they argue that the ASP agreed by consensus to apply only the first sentence of Art. 121(5), excluding the inconvenient second sentence. Stürchler’s own principle, therefore, means that the judges are perfectly free to ignore Art. 15bis(4) and apply Art. 121(5) as written — thus ending up with the same opt-in provision that OP2 is designed to confirm. Stürchler and the other opt-out proponents cannot have it both ways: either both OP2 and Art. 15bis(4) are valid (in which case opt-in applies) or neither of them are (in which case opt-in applies).

The third and final point is that Stürchler’s principle — that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself — supports what I argued a few weeks ago: that the new weapons amendments adopted by the ASP apply to non-states parties even though the ASP declared that they do not. As I noted in that post, the ASP did not amend the Rome Statute to exclude non-states parties, as it did with the crime of aggression. Instead, the ASP simply confirmed its understanding that the new war crimes (covering the use of biological, fragmenting, and blinding weapons) would not apply to non-states parties. According to Stürchler’s principle, therefore, the judges are free to ignore the ASP’s declaration and apply the Court’s normal jurisdictional regime in Art. 12(2) to the new war crimes — which means that the Court has every right to prosecute the national of a non-state party who uses a prohibited weapon on the territory of a state party.

No, There Is No International Legal Basis for the “Bloody Nose” Strategy

by Kevin Jon Heller

At Lawfare yesterday, two law professors at West Point defended the US’s right to attack North Korea if it tests another nuclear weapon or fires another missile into Japanese waters:

North Korea is extraordinarily close to becoming a . This very real possibility has reportedly resulted in the United States debating a limited military strike dubbed the “bloody nose” strategy. In effect,  would allow for a timely and proportional response against North Korean sites in the event of another nuclear test or missile launch. For , such a strike might include using force to target a North Korean missile site or a military base. The hope would be that such a strike would “” and “illustrate the high price the regime could pay for its behavior” without “igniting an all-out-war on the Korean Peninsula.”

In the authors’ view, “[t]here is a strong argument such a strike would be lawful” either as collective self-defense of Japan or as individual self-defense by the US.

I disagree.

The fundamental problem is that “another nuclear test or missile launch” would not qualify as an armed attack sufficient to give rise to the right of either collective or individual self-defense. The authors make no attempt to explain how another nuclear test would be an armed attack — which is not surprising, given that previous tests have all been on North Korean territory (with terrible consequences for North Koreans). And here is their argument concerning another conventional missile launch:

More difficult is determining whether North Korea’s current behavior justifies the limited military strike proposed in the “bloody nose” strategy. Consider, for example, another North Korean test in which it launches an unarmed missile into Japanese sovereign territory. Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “” and thus could be construed as a “weapon.” According to the and the , a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression. Such a North Korean missile launch would seem to fall within this definition and could  as an armed attack.

On the contrary, such an interpretation would not be reasonable — even if we accept the idea that an unarmed missile is a weapon. Tom Ruys has carefully analysed state practice concerning when a de minimis attack qualifies as an armed attack for purposes of self-defense. Here is his conclusion (p. 155; emphasis mine):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

The attack that the authors imagine — an unarmed missile fired into Japan’s territorial sea — is precisely the kind of attack that is not “capable of resulting in destruction of property or loss of lives.” That attack thus cannot give rise to the right of self-defense. Indeed, even the source that the authors cite, Karl Zemanek’s entry “Armed Attack” in the Max Planck Encyclopedia of International Law, rejects their insistence that an unarmed missile fired into Japan’s territorial sea could “reasonably be interpreted as an armed attack.” Here is what Zemanek says about de minimis attacks (emphasis mine):

In sum, it is submitted that regardless of the dispute over degrees in the use of force, or over the quantifiability of victims and damage, or over harmful intentions, an armed attack even when it consists of a single incident, which leads to a considerable loss of life and extensive destruction of property, is of sufficient gravity to be considered an ‘armed attack’ in the sense of Art. 51 UN Charter.

The authors’ claim that the US would be entitled to act in “collective self-defense” in response to an “armed attack” in the form of an unarmed missile fired into Japan’s territorial waters is also problematic. Here is their argument:

The 1960  of Mutual Cooperation and Security between the United States and Japan states “[e]ach Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” This treaty may provide a basis for the United States’ to engage in a limited retaliatory strike. One could argue that, pursuant to the 1986  out of the International Court of Justice (ICJ), the United States would have to obtain Japan’s affirmative consent before engaging in a strike against North Korea in collective self-defense. However, Article 51 certainly does not refer to any such prerequisite, and the ICJ’s conclusion in Nicaragua is . On a more practical note, it is highly unlikely  a collective self-defense strike by the United States.

It is not clear why the authors believe that Japan would not need need to specifically consent to “collective self-defense.” There are two possible interpretations of their argument: (1) the Treaty of Mutual Cooperation automatically provides the US with the consent it needs to “defend” Japan in case of an armed attack; (2) collective self-defense never requires the consent of the attacked state. The authors’ criticism of the Nicaragua judgment implies that they take position (2). As Ruys explains, however, state practice — from Jordan in 1958 to South Vietnam in 1965 to the Soviet invasion of Afghanistan in 1980 — indicates that collective self-defense is lawful only when the state with the right of individual self-defense requests it (pp. 88-89):

This brings us to the third and decisive reason why the conception of collective ‘defence of the other’, endorsed by the ICJ and a majority of legal scholars, holds the upper hand over the ‘defence of the self’ approach: customary practice provides virtually no support either for the requirement that a proximity relationship should exist, or for the idea that collective self-defence may be exercised absent the approval of the actual victim State. On the contrary, practice convincingly shows that a State which is the subject of an attack has a legal right to ask for military assistance.

[snip]

In sum, in each case, what was deemed crucial was whether the actual victim State had a right of individual self-defence, and whether it approved of the actions of the assisting State. Of course, the assisting State will most often have some sort of interest in responding to the victim’s request; States seldom engage in military action out of pure altruism. Yet, practice makes clear that a proximate relationship is not a legal criterion; only the victim State’s approval is.

The stronger argument, then, is that the Treaty of Mutual Cooperation would automatically provide the necessary consent for US to engage in “collective self-defense.” Aurel Sari raised this possibility on Twitter last night. I am not convinced that the Treaty eliminates the need for Japan’s consent to armed force being used on its behalf. In particular, Art. IV provides that “[t]he Parties will consult together… at the request of either Party, whenever the security of Japan or international peace and security in the Far East is threatened,” which seems to contemplate acts of self-defense being undertaken only with the specific agreement of both Japan and the US. But Aurel’s argument must still be taken seriously, and it provides the only coherent basis for the authors’ position on collective self-defense.

(As an aside, I find very unconvincing the author’s casual assertion that “it is highly unlikely  a collective self-defense strike by the United States.” On the contrary, I think Japan would be quite likely to oppose the US responding to a unarmed missile attack by using force — even relatively restrained force — directly against North Korea. A North Korean response would be more likely to target Japan than the US. So Japan would have every incentive not to consent to “collective self-defense” in such a situation.)

Finally, I find very unconvincing the author’s insistence that the US is close to having an individual right of self-defense against North Korea:

Even without another missile targeting Japan, the United States could arguably rely on its own Article 51 individual right of self-defense to justify a “bloody nose” strike. While somewhat controversial, the United States interprets the individual right of self-defense to allow for a preemptive-but-proportional  when the need to do so is . In other words, if the United States determines North Korea’s behavior indicates a forthcoming attack it can act in self-defense before absorbing the first blow.

North Korea’s recent activities help support a preemptive self-defense argument. Despite extensive efforts by the international community, including through , and , North Korea continues to defiantly test powerful nuclear weapons and launch ballistic missiles. Furthermore, it has gone to great lengths to conceal its nuclear testing program by creating underground facilities and intricate . This behavior, coupled with North Korea’s pattern of  and  against the United States and other nations, makes a preemptive use of force seem more and more . As the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.

There is no question that the US would have the right to act in self-defense to prevent an imminent attack by North Korea — anticipatory self-defense. But the authors seem to adopt an understanding of self-defence’s necessity requirement that goes well beyond the traditional Caroline standard of imminence, according to which the need to act must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” They specifically argue for preemptive self-defense, a term that the US traditionally uses to describe self-defense against attacks that are not imminent.(The Bush doctrine is an example.) And they invoke the “last opportunity to act” test, which is not necessarily inconsistent with anticipatory self-defense, but can easily be interpreted to allow for preemptive self-defense, as Adil Haque nicely explains here.

If the authors are endorsing a view of self-defense that does not require an imminent attack, their position is clearly wrong. Here is Ruys again (pp. 336-38):

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

By contrast, if the authors believe that an imminent attack is required but want to define “imminent” to include the “last opportunity to act” test,” they are not necessarily arguing for an unlawful version of self-defense. It depends on how broadly they interpret “last opportunity to act.” An acceptably narrow definition of the test does, however, seem inconsistent with the authors’ insistence that “[a]s the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.” To begin with, although there is certainly cause for concern, North Korea does not seem particularly close to having the technology necessary to attack the US mainland with a nuclear missile. Moreover — and more importantly — despite its belligerence and bluster, there is little evidence that North Korea actually wants to attack the US, much less intends to do so as soon as possible. North Korea has long had the ability to launch a conventional attack against numerous US installations overseas — and probably now has the ability to reach the US mainland with a conventional missile. Yet no such attack has ever taken place.

Is it possible that, at some point, the US will have the legal right to attack North Korea in self-defense? Absolutely. But that time is not now — even if North Korea fires another unarmed missile into Japanese territorial waters. And there is little reason to believe that the “last opportunity for the United States to act is fast approaching.” Any argument at present for the “bloody nose” strategy, therefore, is both legally unsound and profoundly counterproductive.

A Problematic Take on the Lubanga Trial

by Kevin Jon Heller

Justice in Conflict has a guest post today from a scholar who has written a book about the Lubanga trial. I think the post makes some excellent points about the problems with the trial. But I have serious reservations — acknowledging that I have not read the book — about the author’s take on why the trial did not focus on sexual violence:

Another [serious flaw] was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

This is both unfair and mistaken. There is one reason, and one reason only, that sexual violence did not figure more prominently in the trial: Luis Moreno-Ocampo decided not to charge Lubanga with the relevant war crimes or crimes against humanity, choosing instead to focus exclusively on the war crime of conscripting or enlisting child soldiers. Here, for example, is what Patricia Viseur Sellers, a former Legal Advisor for Gender and prosecutor at the ICTY has to say:

Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.

The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.

Given Moreno-Ocampo’s decision to charge Lubanga solely with conscripting or enlisting child soldiers, the Trial Chamber had no choice but to limit the amount of testimony the prosecution could introduce regarding sexual violence. The Chamber explained why in paras. 629 and 630 of its judgment:

629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.

630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.

Moreover, I think the author’s claim that “[t]he matter of sexual violence loomed large in the trial not by its presence but by its absence” is considerably overstated. Not only did sexual violence figure prominently in both the prosecution’s opening and closing arguments, as the Trial Chamber notes in its judgment, there was also considerable testimony concerning sexual violence during trial. The judgment points out in a footnote (n. 54) that 30 different witnesses, 18 female, 12 male, “referred to acts of sexual violence which they either suffered or witnessed.” And it discusses testimony given by one witness, P-0046, at length. Here is just a snippet of P-0046’s testimony:

890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. Some fell pregnant, resulting in abortions; and there were instances of multiple abortions. The witness gave evidence that the psychological and physical state of some of these young girls was catastrophic.

891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.

Should the Lubanga trial have included specific crimes of sexual violence? Absolutely. But the absence of those charges and the (relatively) limited testimony concerning sexual violence cannot be attributed to the Trial Chamber. If you are looking for someone to blame — and you should be — blame Luis Moreno-Ocampo.

NOTE: I have not addressed the victims’ efforts to add sexual-violence charges in the middle of trial. If you want to blame the Chamber for rejecting that request, fair enough. But I have already explained why I think the Chamber was correct.

Don’t Forget About Hors De Combat — Shovel Version

by Kevin Jon Heller

On January 9, Command Sergeant Major John Wayne Troxell, the senior enlisted adviser to the Chairman of the Joint Chiefs of Staff, posted a rather incendiary statement on Facebook about the future of ISIS:

ISIS needs to understand that the Joint Force is on orders to annihilate them. So, they have two options should they decide to come up against the United States, our allies and partners: surrender or die!

If they surrender, we will safeguard them to their detainee facility cell, provide them chow, a cot and due process.

HOWEVER, if they choose not to surrender, then we will kill them with extreme prejudice, whether that be through security force assistance, by dropping bombs on them, shooting them in the face, or beating them to death with our entrenching tools.

The statement has provoked horror in many quarters — particularly concerning Troxell’s colourful endorsement of beating ISIS members to death with shovels. That horror, in turn, has elicited a long post at Lawfare from Laurie Blank explaining that, in fact, beating ISIS members to death with a shovel is completely lawful. As Blank explains, IHL permits lethal force to be used against combatants, a shovel is neither an indiscriminate weapon nor one that necessarily causes superfluous injury and/or unnecessary suffering, and there is no obligation not to attack a combatant who has not affirmatively surrendered. Blank thus concludes that “[i]n fact, though gruesome, the use of a shovel to kill an enemy in combat is entirely within the bounds of the law.”

As far as it goes, Blank’s analysis of IHL is absolutely correct. Her conclusion, however, overlooks one of the most basic principles of IHL: namely, that it is categorically unlawful to intentionally attack — or continue to attack — a combatant who is hors de combat because he is unconscious or incapacitated by wounds. As Jonathan Horowitz pointed out a few days ago at Just Security, essentially anticipating Blank’s post, once an ISIS fighter was rendered unconscious or incapacitated with a shovel, it would violate IHL and be a war crime to continue to hit him:

Someone who surrenders is only one of three types of fighters that the laws of war protect from attack, known as hors de combat. The other types are 1) anyone who is in the power of an adverse party (such as an unwillingly captured ISIS fighter) and 2) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. What this means is that, similar to ISIS fighters who surrender, these others types of people hors de combat also can’t be legally bombed or “beaten to death with entrenching tools.” If an ISIS enemy fighter is wounded and unconscious, he surely can’t surrender. But U.S. soldiers equally can’t then legally shoot that unconscious fighter in the face. Doing so would be a war crime.

Blank knows  all three prongs of the hors de combat rule (Art. 41(1) of the First Additional Protocol) as well as anyone, which is what makes her failure to discuss that critical limitation on the lawfulness of using a shovel as a weapon all the more odd. Words don’t just matter in war, as Jonathan powerfully notes. They also matter in popular discourse. It would be very unfortunate if a reader not particularly familiar with IHL came away from Blank’s post thinking it is “entirely within the bounds of the law” to beat an ISIS fighter — or any combatant — to death with a shovel. That isn’t the law, nor should it be. Just as you can’t beat an ISIS fighter to death with a shovel after he has surrendered or been captured, you can’t beat him to death with a shovel after he is unconscious or incapacitated.

Why the New Weapons Amendments (Should) Apply to Non-States Parties

by Kevin Jon Heller

Although aggression received most of the attention at the Assembly of States Parties (ASP) last month, the ASP also adopted a series of amendments to Art. 8 of the Rome Statute, the war-crimes provision, prohibiting the use of three kinds of weapons in both international armed conflict (IAC) and non-international armed conflict (NIAC):

[W]eapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production.

[W]eapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

[L]aser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.

Because the weapons amendments were adopted pursuant to Art. 121(5) of the Rome Statute, they will only apply to state parties that ratify the amendments. This is, of course, the effect of the second sentence of Art. 121(5), which caused so much controversy in the context of aggression: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”

Art. 121(5), however, applies only to states parties. It does not apply to states that have not ratified the Rome Statute. In the context of aggression, that limitation raised the possibility of the Court prosecuting an act of aggression committed by a non-state party on the territory of a state party — something the Court’s normal jurisdictional regime permits for war crimes, crimes against humanity, and genocide. To avoid that possibility, the ASP amended the Rome Statute to include a new provision, Art. 15bis(5), that specifically (and also controversially) completely excludes non-states parties from the crime of aggression:

In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

I had assumed that no such jurisdictional limitation applied to the new weapons amendments. As Patryk Labuda recently pointed out on twitter, however, the ASP appears to believe otherwise. Here is the second preambular paragraph to the amendments (emphasis mine):

Noting also article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted this amendment applies also in respect of States that are not parties to the Statute.

The bolded language is intended to exempt non-states parties from the normal jurisdictional regime of the Court. Clause 2 states that if a state party does not ratify the weapons amendments, the Court cannot prosecute the use of a prohibited weapon either when committed by a national of that state or on the territory of that state. Clause 3 then puts non-states parties in the same position as a state party who has not ratified the amendments.

This limitation regarding non-states parties is very odd, because the ASP had every right to make the new weapons amendments applicable to non-states parties. Non-states parties are currently prohibited from using certain weapons on the territory of a state party — those that are criminalized by the Rome Statute as adopted in 1998. The new weapons amendments thus fragment the Court’s jurisdiction over non-states parties: although they cannot use poisoned weapons, asphyxiating gases, and expanding/flattening bullets on the territory of a state party, they are still permitted to use biological, fragmentation, and blinding laser weapons — even on the territory of a state party that has ratified the new weapons amendments.

I see no persuasive rationale for this asymmetry. Exempting non-states parties from the crime of aggression is one thing: aggression is a sui generis crime and was not previously within the Court’s (active) jurisdiction. But the drafters of the Rome Statute had no problem making non-states parties subject to the original war crimes involving prohibited weapons, nor did the 124 states who ratified the Rome Statute have a problem accepting the potential criminal liability of non-states parties. So why should things be any different for the new war crimes? If Russia cannot use napalm (an asphyxiating gas) on Georgian territory, why should it be able to use ricin (a biological weapon) on it?

To be sure, the same exclusion of non-states parties was included in the war-crimes amendments adopted at Kampala in 2010, which criminalized the use of poisoned weapons, asphyxiating gases, and expanding or flattening bullets in NIAC. But that limitation was largely superfluous regarding non-states parties, because the Rome Statute already criminalized the use of those weapons in IAC, the primary type of conflict in which a non-state party can be subject to the Court’s war-crimes jurisdiction. (Transnational NIACs aside.) The limitation is anything but superfluous for the new weapons amendments, because they are specifically designed, inter alia, to criminalize the use of certain weapons in IAC.

I also believe — and this is the reason I have written this post — that the exclusion for non-states parties included in the preamble to the new weapons amendments has no legal effect. The argument is a complicated one, and I have made aspects of it at length in a JICJ article on the legal status of the aggression “Understandings” that were adopted at Kampala in 2010. The basic problem is this: nothing in the amended Rome Statute excludes non-states parties from the new war crimes. That limitation exists solely in the preamble. So it is difficult to see why or even how the judges could enforce it, given that Art. 21(1)(a) of the Rome Statute specifically provides that “[t]he Court shall apply… [i]n the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence.” If the judges simply apply the Rome Statute, the Court has jurisdiction over every war crime in Art. 8 that is committed by a non-state party on the territory of a state party — including the new ones.

To be sure, one could fashion a fancy argument for applying the limitation based on Art. 31 of the VCLT, which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and deems a preamble to be part of a treaty’s context. I would be sympathetic to such an argument, because I think the point of treaty interpretation is to give effect to the intent of the drafters. But that is by no means the dominant approach to treaty interpretation. Most international-law scholars favour a “plain meaning” approach — and the Court seems to, as well. (At least when doing so expands the ambit of criminal responsibility. When it doesn’t, object and purpose tend to take over.)

Moreover, all of the other parts of the Rome Statute also qualify as “context” under Art. 31. And here the aggression amendments are, in my view, not only relevant but dispositive: if non-states parties could be excluded from the normal jurisdictional regime of the Court simply by saying as much in a preamble to an amendment, why did the ASP specifically amend the Rome Statute to exclude non-states parties from the crime of aggression? Perhaps the ASP was just being overly cautious, but that seems unlikely given how carefully almost every word of the aggression amendments was negotiated and drafted. It seems far more likely that the ASP realized — correctly, in my view — that the exclusion had to be included in the text of the Rome Statute to be given force by the judges.

In short, despite what the preamble to the new weapons amendments says, I believe that the OTP now has have every right to charge a national of a non-state party who uses (say) a biological weapon on the territory of a state party that has ratified the amendments — and the judges would have every right to convict the perpetrator of the relevant war crime. The ASP exclusion of non-states parties from the amendments has no legal effect.

NOTE: Dapo Akande has posted at EJIL: Talk! an excellent analysis of the relationship between the new war crimes and customary international law. I completely agree with him — including with his statement that, in practice, excluding non-states parties from the crimes will solve some tricky immunity problems.

How Did Carter Page Get a PhD from SOAS?

by Kevin Jon Heller

The Guardian is reporting today that Carter Page — Donald Trump’s bumbling former foreign-policy advisor, who has been interviewed quite extensively by the FBI regarding his contacts with Russia — earned a PhD from SOAS in 2011 after failing his defence twice. Here are some snippets from the story:

Page first submitted his thesis on central Asia’s transition from communism to capitalism in 2008. Two respected academics, Professor Gregory Andrusz, and Dr Peter Duncan, were asked to read his thesis and to examine him in a face-to-face interview known as a viva.

Andrusz said he had expected it would be “easy” to pass Page, a student at the School of Oriental and African Studies (Soas). He said it actually took “days and days” to wade through Page’s work. Page “knew next to nothing” about social science and seemed “unfamiliar with basic concepts like Marxism or state capitalism,” the professor said.

The viva, held at University College, London, went badly. “Page seemed to think that if he talked enough, people would think he was well-informed. In fact it was the reverse,” Andrusz said. He added that Page was “dumbfounded” when the examiners told him he had failed.

Their subsequent report was withering. It said Page’s thesis was “characterised by considerable repetition, verbosity and vagueness of expression”, failed to meet the criteria required for a PhD, and needed “substantial revision”. He was given 18 months to produce another draft.

Page resubmitted in November 2010. Although this essay was a “substantial improvement” it still didn’t merit a PhD and wasn’t publishable in a “learned journal of international repute”, Andrusz noted. When after a four-hour interview, the examiners informed him he had failed again, Page grew “extremely agitated”.

[snip]

After this second encounter, Andrusz and Duncan both resigned as Page’s examiners. In a letter to Soas, they said it would be “inappropriate” for them to carry on following Page’s “accusation of bias” and his apparent attempts to browbeat them. Andrusz said he was stunned when he discovered Page had joined Trump’s team.

Soas refuses to identify the academics who eventually passed Page’s PhD thesis, citing data protection rules.

In a statement, Soas said it had “proper and robust procedures for the award of PhDs”. It added: “All theses are examined by international experts in their field and are passed only where they meet appropriate high academic standards.”

I don’t think it is technically accurate to say that Page “failed” his defence twice. It seems more likely that each time he received a “not pass, but with major corrections” — which is not the same thing as a fail under SOAS’s PhD regulations. If a student fails, he or she cannot resubmit.

That said, I have never heard of a SOAS doctoral student being offered “not pass, but with major corrections” twice. The current regulations, which date back to at least 2014, specifically provide (section 6.9) that “[c]andidates for MPhil or PhD who are ‘not pass, but with major corrections’ are permitted one re-entry to examination.” They also require the revised dissertation be submitted within 12 months of the defence, while Page was given 18 months. It is possible, of course, that the regulations were different in 2010. But I think it’s unlikely.

It is also strange that SOAS would simply replace the original examiners with new ones after two “not pass” results and a subsequent allegation of bias. Why would a student who failed to correct his dissertation twice be given a third bite of the apple with different examiners? Page is hardly the first student to allege bias when he received a failing mark — and it’s not like he’s Saif Gaddafi or anything.

Something is seriously wrong here. SOAS is a world-class university with very high academic standards — one I’m proud to be associated with. The administration owes all of us an explanation. Hiding behind data privacy is not acceptable.

NOTE: SOAS’s Guidance for Examiners says candidates have 18 months to resubmit and at least mentions the possibility of examiners recommending “a further referral to revise and resubmit the thesis.” I am not sure how the Guidance can be reconciled with the PhD Regulations, and I presume the latter are binding.

One Step Forward for International Criminal Law; One Step Backwards for Jurisdiction

by Jennifer Trahan

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

On Thursday, December 14, 2017, the ICC’s Assembly of States Parties (ASP) took the historic and significant decision, by consensus, to activate, effective July 17, 2018, the ICC’s jurisdiction over its 4th crime, the crime of aggression. (The Kampala crime of aggression amendment had been “adopted” in 2010 at the Kampala Review Conference, but there was a delay mechanism such that jurisdiction did not yet “activate”, but first required 30 States Parties to ratify the amendment (35 now have), and one more decision by the ASP to activate.)

The decision made by the ASP was a step forward for international criminal law, a step forward for completing the Rome Statute as envisioned in 1998 (which already included jurisdiction over 4 crimes), a step forward for carrying on the legacy of the International Military Tribunal at Nuremberg, and a step forward in trying to create more deterrence behind UN Charter article 2(4). But, it was a step backwards in how to read the Court’s jurisdiction over the crime.

While many had hoped that at the ASP, it could be agreed to simply “activate” jurisdiction by consensus (for instance, simply reflected in a sentence in a resolution), already over the past year it appeared that would not be the case. As many readers will know, there have been two different readings of what was accomplished in Kampala.

The differences in reading pertained to which States Parties would be covered by the ICC’s crime of aggression jurisdiction after activation in the situation of State Party referral or proprio motu initiation of investigation (Rome Statute article 15 bis). (Activation also triggers the possibility of UN Security Council referrals covering the crime of aggression (article 15 ter); non-States Parties were completely exempted from the crime’s jurisdictional reach already during the Kampala negotiations (art. 15 bis, para. 5).)

One reading (let us call it the Liechtenstein/Swiss/majority reading) was that after the activation decision, for purposes of State Party referrals and proprio motu initiation, ALL States Parties could be subject to crime of aggression jurisdiction, absent their lodging an “opt out” declaration, but only also if either the aggressor or victim State Party had also actively ratified the crime of aggression amendment. The other reading (let us call it the UK/French reading), was that no State Party could be covered by the crime of aggression after activation unless it had also actively ratified the amendment. (This reading results in an extremely restrictive jurisdictional regime, because, frankly, ratifying States Parties such as Liechtenstein and Botswana are not invading each other.)

After a year of a “facilitation” process, led by Austria, to try to resolve this issue, negotiations opened during the ASP. What I am calling the Liechtenstein/Swiss/majority group proposed various draft texts that could have helped bridge the gap between the two readings, with Brazil and Austria also proposing helpful suggestions. Yet, the UK/France (at times joined by Norway, Japan, Colombia, Australia, Canada and Denmark) insisted on their view simply prevailing, and, in the end, the UK and France never moved from that position. (This narrative reflects my understanding of negotiations gleaned from discussions with representatives of States Parties, as, unfortunately, members of civil society were excluded from the “closed door” negotiations.)

The desire to achieve consensus activation (meaning any State Party could block consensus) provided any single State Party (or two States Parties, as was the case here) with enormous leverage. A vote would require 2/3rd of States Parties voting for it, and a few delegations did not stay to the close of the ASP (so the full 123 States Parties were not present towards the end of the conference). Additionally, a vote suggests a divided commitment that States Parties did not appear to want, and how the vote would turn out seemed uncertain as well.

In the end, States Parties had (for many of them) the very difficult decision to make—whether to activate the crime in an historic and important decision, if it meant accepting the extremely restrictive reading of jurisdiction given by the French/UK group. (This is quite ironic because it means that the 4 states that had conducted the Nuremberg prosecutions are either now caved out of crime of aggression jurisdiction (the US and Russia as non-States Parties) or can easily do so by not ratifying the amendment (the UK and France).) On the other hand, a decision not to accept the UK/French reading meant that the negotiations would conclude with no agreement, and no clear commitment when, where or whether to resume negotiations, and no certainty that any resumed negotiation would conclude any differently in the future.

This author believes States Parties made the right decision. It was not what many of them had wanted and thought they had negotiated in Kampala. Yet, international law often moves forward in imperfect ways (the war crimes amendment also adopted at this ASP dropped a key war crime along the way). And, really, in the end of the day, all States Parties agreed that the crime of aggression is a consensual regime—and it was only how to achieve that (basically an “opt in” or “opt out” approach).

It was a large concession, which now means, at present when the crime of aggression activates on July 17, 2018 (the activation date selected in the activating resolution, ICC-ASP/16/L.10*), it will have extremely limited jurisdictional reach. The good news is the ICC will hardly be overwhelmed with cases (for those who worried about this)—it could even take years before there is a case of aggression within its jurisdiction. The bad news of course if that if one hoped the activation of the crime could have some deterrent impact in trying to prevent aggressive uses of force, including war, that deterrent impact is now lessened. (Deterrent impact is more likely now to be created through the possibility of U.N. Security Council referral—which could cover States Parties (whether or not they ratify) and non-States Parties). In terms of increasing the jurisdictional reach for purposes of non-Security Council referrals, it is now up to the ICC, civil society and States Parties to press for additional crime of aggression ratifications.

The Draft Resolution’s Curious Paragraph 3

by Kevin Jon Heller

A friend who is even more jaded than I called my attention to the following curious paragraph in the Draft Resolution the ASP has just adopted by consensus:

3.    Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court.

This paragraph is new — it was not included in the earlier Draft Resolution I blogged about. For those of you who are not total Rome Statute nerds, here is the text of the two referenced articles:

Art. 40(1): “The judges shall be independent in the performance of their functions.”

Art. 119: “Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.”

I think my friend is right: Paragraph 3 likely represents the last gasp of the opt-out camp — a shameless plea to the judges to ignore the text and drafting history of the Draft Resolution and require states that have not ratified the aggression amendments to opt-out. Fortunately, as jaded as I am about the ICC’s judges, I think the likelihood of the plea ever succeeding is essentially zero. The text and drafting history are too clear. Moreover, a decision to adopt the opt-out position despite the text and drafting history of the Draft Resolution would be catastrophic for the Court. It would be bad enough if the OTP brought aggression charges against a state party that had not ratified the amendments. It could be the end of the Court — and I am not being Chicken Little here — if the judges permitted such charges to proceed. Such a decision could easily lead to the UK, France, Japan, and others to withdraw from the Court. And they would be justified in doing so.

The judges’ relentless judicial activism has damaged the Court enough. If the Court is to have any future — one in which states cooperate with it and use their muscle to ensure that it succeeds — states have to be confident that the judges will respect their will, even when that will is less than ideal.

Paragraph 3 should never have been included in the Draft Resolution.

ASP Adopts the Aggression Amendments by Consensus

by Kevin Jon Heller

It went down to the wire, but it’s over. States reached consensus on adopting the aggression amendments — after those in the opt-out camp gave in to the opt-in camp. The adopted Draft Resolution provides the following:

Confirms that… in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

This language is unequivocal, going well beyond the Draft Resolution I referenced in my previous post. Under the adopted Resolution, state parties do not have to do any in order to remain outside the Court’s aggression jurisdiction. Unless a state party ratifies or accepts the aggression amendments, it will be in the same position as a non-state party.

Having received a few rather nasty emails regarding my defense of the opt-in position, I want to make my substantive views clear. Although I completely agree with the opt-in states that, as a matter of treaty law, they could not be subjected to the Court’s jurisdiction over aggression in any way unless they ratified the aggression amendments, that is not my preferred jurisdictional regime. On the contrary, I believe that aggression should be governed by the same regime — automatic jurisdiction — that applies to the other core crimes. In particular, I strongly dislike the decision to exempt non-states parties from the Court’s jurisdiction even when one of their nationals commits the crime of aggression on the territory of a state party. I see no reason why state parties should not be protected against aggression by non-party states in the same way they are protected against war crimes, crimes against humanity, and genocide.

My reservations aside, this is clearly an historic day. Kudos to all the states, NGOs, and individuals — I am so glad the inestimable Ben Ferencz lived to see this — who made the activation of aggression possible.

A Different View of the Aggression Activation Negotiations – A Perspective from the Ground

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law at the Chinese University of Hong Kong]

I’m here on the ground in New York and I want to provide an additional perspective on Kevin’s post. First, the document he has posted is strictly a transitory draft meant only to facilitate discussion. In no way does it necessarily represent any hardened position of the delegates. From what I understand, there is no consensus on it and the parties have moved on from it.

Second, even if it did represent the final word, his understanding about OP(1)(a) and (b) is not necessarily accurate. ICC-ASP/16/L.9/Rev.1 OP (1)(a) only acknowledges the position of those States Parties (i.e., the UK/France camp), which is already reflected in the Report on the facilitation, statements made here upon adoption of any resolution, or by letter to the ASP by 31 December 2018. Subsection (b) applies only to the States Parties referred to in (a). Kevin provides his interpretation that “they” extends to all other States Parties. But the understanding of folks here on the ground is that (b) is limited to those States Parties in (a).

Kevin is entitled to his interpretation — but it does not seem to accord with the tenor of negotiations. Moreover – and this is very important – and in all due respect to Kevin – at this point, it is not helpful to speculate on either the process or substance of negotiations that remain active and have a way to go prior to a final decision (either way) by States Parties. I appreciate that he is trying to stimulate interested discussion – that’s his right – but given the delicate nature of negotiations, public comment could have a potentially misleading and unintended detrimental effect. ICC-ASP/16/L.9/Rev.1, which Kevin has posted in its entirety, was not intended to be publicly released. There are good reasons for that. Many of us here are hoping that this delicate negotiation process will lead to an outcome that will contribute toward the progressive development of international criminal law. Let us hope those delicate negotiations – still very much in train — come to fruition.