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Human Rights

Guest Post: Maldonado v. Holder and the US’ “Understanding” of Its Convention Against Torture Obligations

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

The 9th Circuit issued a revised Opinion on March 27th in Maldonado v. Holder, a case about non-refoulement (the obligation not to expel, return or extradite someone to a country where they would be in danger of being tortured) and deferral of removal under the UN Convention Against Torture. The En Banc panel said that the lower court erred in placing the burden on the petitioner to show that he could not relocate within Mexico in order to mitigate the risk that he would be subjected to torture. The Court also overruled several precedents that placed excessive burdens on petitioners seeking protection from torture abroad, saying they were incompatible with federal regulations designed to implement the non-refoulement obligation. This decision is a big deal in the realm of immigration law. Petitioner’s lawyer was quoted in the San Francisco Chronicle: “(The ruling) puts us in compliance with our international obligations and protects tortured people.”

Well, not exactly, counselor. It depends on what you mean by “obligations.”

The result is commendable, as far as it goes, but a US “understanding” upon ratification of the Convention Against Torture considers the non-refoulement obligation to be triggered only if torture is more likely than not. In other words, if the petitioner can only show a 49% chance that he will be tortured, he loses. The Convention is not nearly so demanding. It prohibits refoulement “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (Emphasis added). The Convention certainly doesn’t require proof that torture, or even the danger of torture, is more likely than not.

The US “understanding” is actually a “reservation” that significantly varies from the text of the Convention. One might say it tends to defeat the object and purpose of the treaty, and thus, is unacceptable. If so, the US is still some distance from compliance with its international obligation to protect people from torture.

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…

John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

[snip]

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

Guest Post on the ICC and Palestine at Justice in Conflict

by Kevin Jon Heller

My contribution to the symposium is now available. Here is the introduction:

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

My thanks to Mark Kersten for posting it — and to Kirsten Ainley for organising the roundtable at the LSE on which it’s based.

Israel’s “Defenders” Show Their True Colors Regarding Academic Freedom

by Kevin Jon Heller

From April 17-19, the University of Southampton is scheduled to host a conference entitled “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism.” As the title indicates, the conference was always going to be controversial. (Full disclosure: I was originally scheduled to present at the conference, but pulled out a couple of weeks ago because I simply didn’t have time to prepare anything.) Indeed, the conference webpage contains the following statement by the organisers:

The conference “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism” at the University of Southampton on April 17-19th will engage controversial questions concerning the manner of Israel’s foundation and its nature, including ongoing forced displacements of Palestinians and associated injustices. The conference will examine how international law could be deployed, expanded, even re-imagined, in order to achieve regional peace and reconciliation based on justice.  The conference is intended to broaden debates and legal arguments concerning historic Palestine and the nature, role, and potentialities of international law itself.

Participants will be a part of a multidisciplinary debate reflecting diverse perspectives, and thus genuine disagreements, on the central themes of the conference. Diligent efforts, including face-to-face meetings with leading intellectuals in Israel, were made to ensure the widest range of opinions possible. Those who chose to abstain, however, cannot derail the legitimate, if challenging, academic discussion the conference will inspire.

The conference organizers are grateful to the University of Southampton for ensuring academic freedom within the law and for taking steps to secure freedom of speech within the law. The conference organizers accept that the granting of permission for this event does not imply support or endorsement by the University of any of the opinions to be expressed at the conference.

The final paragraph is more than a little ironic — because earlier today the University of Southampton caved to pressure from self-appointed right-wing “defenders” of Israel and withdrew its permission for the conference. To be sure, the University did not have the integrity to admit the real reason why it was withdrawing permission. Instead, it fell back on that time-worn excuse, “security.” (Read: Israel’s right-wing “defenders” promised to disrupt the conference if the University didn’t cancel it.) The organizers’ statement in response makes clear just how pathetic that excuse really is:

A number of risks have been identified by the police but it is very clear from the Police’s report that they are more than capable of policing the conference and ensuring the safety of university staff, speakers, delegates, students and property. However, instead of accepting this at face value the University decided to focus on the risks identified by the Police and ignore their statement about their ability to police the event – we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to that extent it should be able to resort to police assistance in order to curb security risks to enable it to fulfil its legal obligation to uphold freedom of speech. If this is not done, if commitment to safety is not undertaken by the police, freedom of speech becomes an idle worthless notion. At no point were we given an indication that the University has indeed allowed itself the time to seek viable police assistance to supplement its own resources. Additionally, and unconvincingly, the University claims that it is now too late to put proper security arrangements in place. We do not accept that in any way as there are still 18 days left before the conference.

It will be a great shame if the conference does not go ahead as planned, whether at Southampton or at another venue. But the University’s decision does have a silver lining: it makes clear the contempt that Israel’s right-wing “defenders” have for academic freedom. They love to invoke academic freedom in the context of academic BDS, where the freedom in question is that of Israeli academics. (Regular readers know that I oppose academic BDS, and I voted against it recently at SOAS.) But when academic freedom means permitting criticism of Israel — well, then censorship is just fine. Consider the following…

Symposium on Palestine and the ICC at Justice in Conflict

by Kevin Jon Heller

Just in time for the activation of Palestine’s membership in the ICC, over the next few days Mark Kersten’s blog, Justice in Conflict, will be featuring posts by all of the people who participated in last week’s roundtable at the LSE — Mark, me, Kirsten Ainley, Dov Jacobs, Chantal Meloni, Leslie Vinjamuri, and Michael Kearney. Mark’s introductory post can be found here. I will post a link to a podcast of the LSE event as soon as it’s available. My contribution to the symposium should be up tomorrow or the next day.

Also, a hearty congratulations to Dr. Kersten, who has just been awarded a two-year SSHRC postdoc at the University of Toronto! London will miss him.

So How Do We Assess Proportionality? (A Response to Blank, Corn, and Jensen) (UPDATED)

by Kevin Jon Heller

Just Security published a post by Laurie Blank, Geoffrey Corn, and Eric Jensen yesterday criticizing two surveys that are interested in how laypeople think about IHL’s principle of proportionality. Much of what the authors say is absolutely correct, particularly about the need to recognize that assessing ex post the ex ante decision-making process of military commanders is fraught with difficulty and likely to both overemphasize actual civilian casualties and underemphasize anticipated military advantage. But the post is still problematic, particularly the following claims:

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.

[snip]

Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

I can’t speak to one of the surveys, because the authors don’t provide any information about it. But I am aware of (and have completed) the survey they do link to, which is conducted by Janina Dill, an excellent young Oxford lecturer who is the Associate Director of the Oxford Institute for Ethics, Law and Armed Conflict. The authors caricature Dill’s survey when they claim that it is based on the “flawed assumption” that “public perception” is “the ultimate touchstone for compliance with the proportionality rule.” Dill does not suggest that the legality of a particular attack should be determined by public perception of whether it was proportionate; she is simply interested in how non-military people think about proportionality. Like the authors, I don’t believe Dill’s questions capture the complexity of the military commander’s task. But neither does Dill. That is not the point of the survey.

Dill, however, is more than capable of defending herself. I am more interested in the first paragraph quoted above, because the authors come perilously close therein to claiming that it is per se illegitimate for anyone — or at least individuals who are not soldiers themselves — to second-guess the targeting decisions of military commanders. I suppose they leave themselves a tiny escape from that position by implying (obliquely) that “you, or I, or anyone” could assess ex post a military commander’s ex ante proportionality calculation as long as we had “full knowledge of the circumstances at the time of the attack.” But the authors make no attempt whatsoever to explain how the decision-makers involved in any ex post “compliance assessment” could ever take into account everything the military commander knew about the circumstances of the attack — from “the enemy’s center of gravity and the relationship of the nominated target to that consideration” to “the exigencies of the tactical situation” to “the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences.” Some information about the objective circumstances of the attack may be available in written reports and through the testimony of the military commander’s superiors and subordinates. But those objective circumstances are only part of the story, because IHL proportionality requires (as the authors rightly note) assessing the reasonableness of the attack “through the lens” of the commander herself — what she actually knew about the objective circumstances of the attack. And that information will be located solely in the mind of the military commander. Perhaps some commanders are so honest and so mentally disciplined that they will provide a court-martial or international tribunal with an accurate assessment of what went through their mind before the attack. But most commanders faced with discipline or prosecution for a possibly disproportionate attack will either lie about their proportionality calculation or unconsciously rewrite that calculation after the fact to justify killing innocent civilians.

In most cases, therefore, the decision-makers involved in a compliance assessment will have no choice but to rely on circumstantial evidence — including, yes, an attack’s actual consequences — to infer what went through the mind of a military commander prior to launching an attack. Such inferences will always be, for all the reasons the authors note, complex, fraught with difficulty, and prone to error. But unless we are going to simply defer to “the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat,” we have no choice but to ask people to draw them. I doubt that any of the authors think that uncritical deference is appropriate; more likely, they think that although compliance assessment is necessary, no civilian should ever be permitted to sit in judgment of a soldier. If so — or if they think that civilian assessment is possible in the right system — the authors need to do more than just complain about how difficult it is to be a military commander and dismiss as irrelevant how civilians think about fundamental principles of IHL. They need to tell us what a properly-designed system of compliance assessment would look like.

UPDATE: Janina Dill has posted her own response at Just Security. It’s excellent; interested readers should definitely check it out.

Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.

Guest Post: China As a Shaper of International Law?

by Sonya Sceats

[Sonya Sceats is Associate Fellow in the International Law Programme at Chatham House where she leads a project on the implications of China’s rise for the international human rights system. Follow @SonyaSceats and @CHIntLaw]

China punches below its weight in the development of international law, despite its growing international power and the participation of Chinese representatives and experts in various international law-making bodies. Judging by recent statements of intent from the Chinese government, this might be about to change.

As Julian Ku indicated in a recent post, China is ramping up portrayal of itself as a staunch defender of international law. China has long presented itself as an upholder of the UN Charter, especially on questions related to use of force, but in the signed article cited by Julian, Chinese Foreign Minister Wang Yi sought to broaden the point.

It is right to view this rhetoric as an attempt by China, as an ascending but conservative power, to harness law to its longstanding political agenda to constrain (US) hegemonic power and promote state equality. But the Foreign Minister’s article should also be seen as one of the opening moves in China’s new play to expand its influence on international law.

The key lies in a directive buried deeply in the outcome document from the 4th Plenary Session of the 18th Central Committee of the Chinese Communist Party, known colloquially as the Rule of Law plenum. The plenum concluded on 23 October 2014, the day before the Foreign Minister released his article. According to the document, China must:

Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security and development interests.

China, therefore, wishes to transform itself from a norm-taker to a norm-shaper internationally.

Elsewhere I have argued that China’s concerted push to mould global norms on the internet should be understood as a vanguard expression of these ambitions. This analysis drew on discussions within a global expert network we launched last year as a means of engaging with the growing community of Chinese international lawyers writing, thinking and teaching about international human rights and related areas of international law.

To date, we have held two roundtable meetings for this network, the first in London and the second in Beijing. Both meetings were held in collaboration with China University of  Political Science and Law (CUPL), one of China’s leading law schools and probably the only university in the world with an entire faculty of international law.

Chatham House’s work on these issues dates back to 2012 when we launched a project on China and the international human rights system. This work culminated in a research report which has become a key resource for diplomats, human rights advocates and others (including inside China) seeking to understand China’s behaviour in the international human rights system and engage with and influence China on these issues.

In the course of this research, we visited China to see if Chinese experts would be willing to share views on these matters. We learned that there were lively debates on these issues in China and that international lawyers working in this area were eager for more structured opportunities to engage with their peers outside China. Our network aims to help meet this need.

Professor Sarah Cleveland, Columbia Law School, and Professor Ling Yan, China University of Political Science and Law, at the first meeting of the International Law Programme’s global experts network at Chatham House in April 2014. Photo used with permission from Chatham House.

Professor Sarah Cleveland, Columbia Law School, and Professor Ling Yan, China University of Political Science and Law, at the first meeting of the International Law Programme’s global experts network at Chatham House in April 2014. Photo used with permission from Chatham House.

At our first meeting at Chatham House in London, Chinese experts spoke of the need for their country to strengthen its contribution to the field of international law. It is clear from the Rule of Law plenum outcome document that the Chinese government now shares this aspiration. The government also pledged in the document to:

Establish foreign-oriented rule of law talent teams who thoroughly understand international legal rules and are good at dealing with foreign-oriented legal affairs.

Of course, China’s desire to exert more influence on international law will not automatically lead to greater influence, but an investment in home-grown capabilities is a first step. It will be interesting to see how these ‘talent teams’ develop, how active they will be in international legal forums, and whether there will be two-way traffic between these experts and their government in relation to China’s positions on international rules and participation in international institutions and dispute resolution mechanisms.

Our second meeting at CUPL, just three weeks after the plenum, was an early opportunity to explore the potential implications of China’s plans, now explicit, to increase its impact on international law. Our discussions traversed a range of public international law areas relating to individual rights, including international human rights, criminal and humanitarian law, and we were pleased to have OJ’s Kevin Jon Heller among our participants.

Some of the insights generated from these discussions to date include:

  • While most commentary of the Rule of Law plenum outside China was highly sceptical, many Chinese legal academics regard it as a progressive development – strong statements about the authority of the constitution are seen as particularly significant;
  • Chinese experts report signs that China may be moving beyond the human rights hierarchy it has traditionally promoted in which socio-economic rights are favoured over civil and political rights;
  • Most Chinese international law scholars we have engaged with consider that, despite the delays, China is sincere in its stated commitment to ratifying the International Covenant on Civil and Political Rights;
  • Even Chinese members of the network with strong internationalist leanings object to the confrontational attitude towards China in bodies like the UN Human Rights Council;
  • China’s commitment in principle to the concept of the Responsibility to Protect seems to have survived the experience of Libya and some Chinese experts consider that this is an area where China’s arch-sovereigntist approach could shift in the future; and
  • Many Chinese international lawyers were deeply disappointed by China’s decision not to sign the Rome Statute of the International Criminal Court and international criminal law is a fast developing sub-discipline of international law in China.

To find out more, read the summaries of our roundtable meetings prepared in accordance with the Chatham House Rule:

Chinese Approaches to Public International Law and the Rights of Individuals

Chinese Approaches to Public International Law and the Rights of Individuals – Part Two

Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement

by Kevin Jon Heller

Another complementarity fight is brewing, this time between the ICC and Cote d’Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however, Gbagbo was convicted in an Ivorian court and sentenced to 20 years imprisonment on very different charges:

A court in Ivory Coast has sentenced Simone Gbagbo, the wife of the former president Laurent Gbagbo, to 20 years in prison for her role in a 2011 post-election crisis in which around 3,000 people were killed, her lawyer said.

Simone Gbagbo, who is also wanted by the international criminal court, was tried alongside 82 other allies of her husband in a case that revived deep divisions in a nation still recovering from years of political turmoil and conflict.

Gen Bruno Dogbo Ble, who headed the elite republican guard, and the former navy chief Admiral Vagba Faussignaux were both jailed for 20 years, according to their lawyer, while others got shorter sentences. Michel Gbagbo, the former president’s son, was sentenced to five years.

Supporters of Laurent Gbagbo, whose refusal to acknowledge his defeat to Alassane Ouattara in elections in late 2010 sparked the brief civil war, claimed his wife’s trial was politically motivated.

“The jury members retained all the charges against her, including disturbing the peace, forming and organising armed gangs and undermining state security. It’s a shame,” said Simone Gbagbo’s lawyer, Rodrigue Dadje.

Cote d’Ivore will no doubt now file an admissibility challenge with the ICC, claiming that they do not have to surrender Gbagbo because  Art. 17(1)(c) of the Rome Statute provides that a case is inadmissible if “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” Art. 20(3) specifies that, as long as the trial is genuine, “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”

I do not know the precise conduct that underlies Gbagbo’s domestic conviction. But it seems highly likely that the “undermining state security” and “organizing criminal gangs” charges were not based on substantially the same conduct as the ICC’s crimes against humanity charges. If not, the case will still be admissible before the Court, because Art. 20(3) explicitly permits the ICC to prosecute conduct different than the conduct underlying a domestic conviction. That specific provision has never been litigated, but the judges are very unlikely to read Art. 20(3) more expansively. After all, in the context of cases still under investigation at the domestic level, the Appeals Chamber specifically held in the Kenya cases that the domestic investigation must focus on “substantially the same conduct” as the ICC’s investigation:

The defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(l)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.

Here is my question: what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t. As I have argued at length in my essay “A Sentence-Based Theory of Complementarity,” the ICC simply cannot afford the kind of hyper-formalism that underlies both the “same conduct” requirement and Art. 20(3). In my view, the Court should defer to any national prosecution that results (or any national investigation is likely to result) in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s investigation. The upcoming Gbagbo complementarity fight, I think, will likely illustrate why my theory of complementarity makes sense.

Finally, it’s worth noting that should the ICC agree with me, it does in fact have an out — Art. 89(4) of the Rome Statute, which provides as follows:

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Nothing in the Rome Statute seems to prohibit the Court from deciding, after such a consultation, to let the suspect serve his or her domestic sentence prior to — or even instead of — requiring the state to surrender the suspect to the Court. I hope the ICC will consider such a decision regarding Gbagbo. It has nothing to gain by forcing Cote d’Ivoire to turn her over.

Mea Culpa Regarding Israel’s Attacks on Hezbollah in 2006

by Kevin Jon Heller

In a number of posts (see, for example, here and here), I have claimed that the League of Arab States (LAS) formally rejected the “unwilling or unable” test in the context of Israel’s 2006 attacks on Hezbollah in Lebanon. Thanks to comments by Ori and Tom Ruys on the most recent post, I now realize I have been guilty of the same kind of methodological sloppiness that characterizes most scholarly work in defence of the test. If you read the statement by the LAS — you can find it here — there is no way to determine whether the it denounced Israel’s attack because it rejected the “unwilling or unable” test or — and this actually seems more likely — because it simply rejected Israel’s claim that it was acting in self-defence. (I disagree with Ori that the statement can be read as an indictment of Israel solely for using disproportionate force in self-defence.) And if we cannot determine the precise reason why LAS rejected Israel’s self-defence claim, that rejection obviously cannot provide opinio juris against the “unwilling or unable” test.

That said, loathe though I am to disagree with Tom, I don’t see the international response to Israel’s attacks on Hezbollah in Lebanon as supporting the “unwilling or unable” test. Most obviously, Israel claimed that Hezbollah’s actions were attributable to Lebanon — it did not invoke the test at all. Moreover, no state specifically invoked “unwilling or unable” during the Security Council debate over Israel’s actions — some expressed concern over Lebanon’s failure to exercise effective control over the entirety its territory, but a number of those states attributed that failure to Israel’s occupation of southern Lebanon, not to Hezbollah’s actions. So I agree with Olivier Corten that “these standpoints are highly ambiguous and so it seems a very difficult business to deduce from them any opinio juris.”

My thanks to Ori and Tom for weighing in — and to Ori for providing links to the relevant documents. Apologies to readers for being so sloppy. I just hope my lack of care will not distract from my basic point, which is that scholars who claim that the “unwilling or unable” test represents customary international law have failed to identify (anywhere near) sufficient significant state practice or opinio juris in defense of their position.