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Human Rights

The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy

by Kevin Jon Heller

How does an international-law doctrine become conventional wisdom without actually having support in the practice of states? It starts with one article asserting the doctrine, but failing to defend it. Then another article makes the same claim, citing only the first article. And then another. And another. And so on — until no one remembers that the first article did not actually identify any state practice at all.

So it is with the “unwilling or unable” test, as indicated by an otherwise quite good new article in the Journal of Conflict & Security Law entitled “Jus ad Bellum and American Targeted Use of Force to Fight Terrorism Around the World.” Consider (p. 228):

With regard to the use of self-defence against private actors located in another state, two consequences flow from the requirement of necessity. First, state practice indicates that the exercise of self-defence against the private actor is conditioned on the inability or unwillingness of the authorities in the host state to stop the private actor’s activities.98 Obviously, if the host state both can and will stop the activities in question, it will not be necessary for the victim state to resort to the use of force.

I’ve left the footnote number in, because it refers to precisely one source: Ashley Deeks’ essay “Unwilling or Unable: Toward an Normative Framework for Extra-Territorial Self-Defense.” An essay in which, as I have pointed out, the author openly admits that she “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation.” (The US and UK have formally endorsed the unwilling or unable test since Deeks’ article was published.)

To be sure, the new article elaborates a bit on the “support” for the unwilling or unable test. But none of that support involves the practice of states — nor does the article acknowledge the inconvenient fact that the Arab League (22 states) has formally rejected the test (post-9/11, even). Instead, it simply says this (p. 229):

The test is widely supported in the literature, and it is also mentioned in two 2013 UN reports by, respectively, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. It also features among a series of “Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors” proposed by the former legal adviser of the United Kingdom Foreign & Commonwealth Office, Daniel Bethlehem.

“Instant custom”? How passé. Who needs state practice at all? And please don’t bore us by pointing out contrary practice by a bunch of benighted states in the Global South. All we really need are enough scholars, special rapporteurs, and former legal advisors in the Global North willing and able to endorse a particular doctrine and poof — customary international law.

CMCR Voids David Hicks’ Conviction for Material Support

by Kevin Jon Heller

Big news — and news I wasn’t expecting:

A former prisoner at the U.S. Navy base at Guantanamo Bay, Cuba, from Australia on Wednesday won a legal challenge to his terrorism conviction before a military court.

The U.S. Court of Military Commission Review struck down the March 2007 conviction of David Hicks in a unanimous ruling that reverses what had been one of the government’s few successes in prosecuting prisoners at Guantanamo.

Attorney Wells Dixon said he immediately called Hicks’ attorney in Australia, where it was the middle of the night, to pass on the news to his client.

“David is aware of the decision and he is thrilled,” Dixon said. “He is free to live his life without this conviction hanging over his head.”

Hicks, 39, pleaded guilty to providing material support to terrorism. It was a plea bargain in which all but nine months of his seven-year sentence was suspended and he was allowed to return home by the end of that year.

In 2014, an appeal’s court ruled that material support was not a legally viable war crime for the special wartime court at Guantanamo known as a military commission. Prosecutors argued his conviction should still stand because he agreed not to appeal as part of the plea deal, an argument rejected by the U.S. Court of Military Commission Review.

Quite a journey for Hicks. When he was first charged, he was one of the most hated men in Australia. By the time the military-commission farce was through with him, he was a national hero.

Kudos to the CMCR for doing the right thing.

The Absence of Practice Supporting the “Unwilling or Unable” Test

by Kevin Jon Heller

Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine):

It therefore follows not only from the right of self-defense’s general requirement of necessity, but primarily from the respect for the sovereignty of the territorial State that the right of self-defense in case of a non-State armed attack is of a subsidiary nature. It presupposes that the territorial State is either unwilling or unable to end the non-State armed attack – or, as it should be added for the sake of completeness, fails to exercise due diligence to that effect. State practice is remarkably consistent with these principles. As Professor Ashley Deeks has demonstrated in a formidable article, the legal claims to a right of collective self-defense in cases of non-State armed attacks have generally included the statement that the territorial State is unwilling or unable to deal with the non-State threat.

In terms of what the “unable or unwilling” test might look like if it represented customary international law, Deeks’s article is indeed excellent. But the article is anything but “formidable” in terms of state practice that supports the test. Indeed, the non-state actor section of the article spans all of two pages (pp. 501-03) — and cites precisely two states that officially endorse “unwilling or unable”: the United Kingdom and the United States. That’s it. And those are the same two states that Claus discusses in his post.

Simply put, there is simply no “consistent practice” that supports the “unwilling or unable” test, and scholars need to be careful not to put states in the “unwilling or unable” camp simply because they are willing to use armed force against a non-state actor. Deeks has been particularly prone to this kind of overinclusiveness, most recently arguing that Jordan, Bahrain, Qatar, the UAE, and Iraq support the “unwilling or unable” test because they have attacked ISIL in Syria — this despite the fact that all five states are members of the Arab League, which has specifically rejected the test in the context of Israel’s attacks on Hezbollah in Lebanon. (Actual opinio juris.)

I have the utmost respect for Claus, and I have no desire to pick on Deeks. But methodological rigor is particularly critical when it comes to doctrines like “unwilling or unable,” because its actual adoption by states would open the floodgates to the extraterritorial (ie, sovereignty-infringing) use of force against non-state actors. There may well come a time when the “unwilling or unable” test reflects customary international law, but that time is not now. Two states do not a customary rule make, however powerful those states may be. And we cannot simply ignore the states in the Global South, however inconvenient powerful states in the Global North may find their views.

What Exactly Is the ICRC’s Position on Detention in NIAC?

by Kevin Jon Heller

I still need to write Part 2 of my response to Ryan Goodman, but it’s worth noting that he and I actually agree about detention in NIAC much more than we disagree. We both agree that IHL itself does not authorize such detention. We both agree that the standard governing detention in NIAC is that it must be non-arbitrary. We both agree that, in practice, it is non-arbitrary to detain individuals in NIAC for (something like) imperative reasons of security. So we seem to disagree only on one substantive point: where the requirement of non-arbitrariness comes from. Ryan says it comes from IHL itself. I argue that it comes from IHRL.

In my previous post, I took issue with Ryan’s claim that an ICRC Background Paper and Rule 99 of the ICRC’s study of customary law supported his position. I argued that neither clearly supports the idea that IHL requires detention in NIAC to be non-arbitrary, because both the Paper and the Rule rely on both IHL and IHRL for the substantive detention rules they endorse — and do not adequately disentangle the two legal strands. In response, Ryan accused me on Twitter — in a friendly manner — of arguing that he and the ICRC don’t understand the law of war.

Ryan and I obviously do disagree about whether IHL itself requires detention in NIAC to be non-arbitrary or whether its silence on that issue means IHRL’s requirement of non-arbitrariness applies as lex specialis. But I was not trying to claim that the ICRC was wrong, because I did not believe that Ryan was accurately characterizing its position. So I spent more time than than I expected after our exchange combing through the ICRC’s statements on the arbitrariness issue. I won’t bore readers with the twists and turns, but I do want to flag the ICRC’s most recent statement, an Opinion Paper dated November 2014. If the Opinion Paper does indeed reflect the ICRC’s current position on detention in NIAC, it turns out that  the ICRC disagrees with both me and Ryan, as well as with Dapo Akande and Lawrence Cawthorne-Hill at EJIL: Talk!, because it believes that IHL does, in fact, authorize detention in one kind of NIAC — extraterritorial NIAC. Here is what the ICRC says (p. 7):

In a “traditional” NIAC occurring in the territory of a State between government armed forces and one or more non-State armed groups, domestic law, informed by the State’s human rights obligations, and IHL, constitutes the legal framework for the possible internment by States of persons whose activity is deemed to pose a serious security threat. A careful examination of the interplay between national law and the applicable international legal regimes will be necessary. The right to judicial review of detention under human rights law will, of course, continue to apply; there are, however, differing views on whether this obligation may be derogated from.

Identifying the legal framework governing internment becomes particularly complicated in NIACs with an extraterritorial element, i.e. those in which the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups.

The fact that Article 3 common to the Geneva Conventions neither expressly mentions internment, nor elaborates on permissible grounds or process, has become a source of different positions on the legal basis for internment by States in an extraterritorial NIAC. One view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly. Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment.

In short, according to the ICRC, IHL does not authorize detention in “traditional” NIACs, those fought solely on the territory of one state, but does authorize detention in extraterritorial NIACs. Indeed, the Opinion Paper specifically cites Serdar Mohammed as an example of the first view of extraterritorial NIAC — the one that the ICRC rejects. The ICRC’s position thus seems to be closest to Aurel Sari in the comments to my previous post, as well as to Kubo Mačák at EJIL: Talk!. Then again, the ICRC doesn’t completely agree with them, either, because the Opinion Paper quite specifically limits IHL’s inherent power to detain to extraterritorial NIAC — thus seeming to agree with me, Ryan, Dapo, and Lawrence that the authority to detain in at least traditional one-state NIACs comes from domestic law, not from IHL itself.

I confess that I find the ICRC’s traditional/extraterritorial distinction rather confusing. I don’t understand how the conventional and customary IHL of NIAC could contain “an inherent power to intern” in extraterritorial NIAC but not in traditional NIAC; doesn’t it have to be both — or neither? After all, each of the factors the ICRC cites in defense of its position apply equally to traditional NIAC. Internment is indeed a “common occurrence in armed conflict,” but it is common in both traditional and extraterritorial NIACs. Common Article 3 does not prohibit detention in either traditional or extraterritorial NIAC. And Additional Protocol II is capable of applying to some traditional NIACs and of not apply to some extraterritorial NIACs. In fact, it is probably more likely to apply in a traditional NIAC.

To be clear, I’m skeptical the Opinion Paper is correct even concerning extraterritorial NIAC. Nothing in conventional IHL suggests an inherent power to detain in any kind of NIAC: as Ryan, Dapo, and Lawrence have all pointed out, international law often recognizes and regulates a practice without authorizing it. And although there could in principle be an asymmetric customary rule that says IHL authorizes detention in extraterritorial NIAC while domestic authorization is required in a traditional NIAC, there seems to be no evidence that such a rule exists. As Dapo and Lawrence point out in their post, “[e]ven in the context of extraterritorial NIACs, states have looked elsewhere for authorisation [to detain] (see, e.g., Iraq and Security Council Resolution 1546).”

My point, then, is simply that I don’t think the ICRC can have it both ways. Either there is an inherent power in IHL to detain in NIAC or there isn’t.

One thing is clear: the ICRC really needs to clarify its position on detention in NIAC.

Responding to Ryan Goodman About Serdar Mohammed — Part I

by Kevin Jon Heller

At Just Security, my friend Ryan Goodman has posted a long analysis of Serdar Mohammed v. Ministry of Defense, in which the UK High Court held that IHL neither authorizes nor regulates detention in non-international armed conflict (NIAC). That decision will soon be considered by the Court of Appeal.

In his post, which is a must-read, Ryan states that he agrees with the High Court that IHL does not authorize detention in NIAC but disagrees that IHL does not regulate such detention. I share Ryan’s position on the first point, but I disagree with him — and agree with Justice Leggatt in Serdar Mohammed — on the second. In a subsequent post, I will address Ryan’s argument that “whatever is permitted in international armed conflict is permitted in noninternational armed conflict.” I have described that argument in a forthcoming book chapter as “reasoning by analogy”; Ryan rejects that description and says he is engaging in “reasoning by structure.” I will try to show in the next post that the “whatever is permitted” argument is problematic no matter how we describe its underlying reasoning.

In this post, I want to focus Ryan’s argument that, contrary to Justice Leggatt, IHL does in fact regulate the permissible grounds for detention in NIAC. Here is what he says (emphasis mine):

So far we have discussed the permissive boundaries of detention in NIAC but what about limitations on states in these contexts? IHL also imposes a set of prohibitions on the grounds for detention in internal armed conflict. That is, multiple sources conclude that IHL prohibits arbitrary deprivation of liberty in NIAC (see footnote 12 of the AJIL article, for example). Subsequent to that law review article, several important states through the Copenhagen Process—including “specially affected” states which is a significant category for customary international law purposes—explicitly accepted such restrictions on detention in NIAC.  Consider also the ICRC’s statement in a Background Paper on detention for the regional consultations 2012-2013: “In terms of grounds for internment, the ICRC, along with a growing international consensus of experts considers that ‘imperative reasons of security’ is an appropriate standard for internment in NIAC.” And a Report by a group of experts convened by the ICRC and Chatham House “quite easily” reached a consensus that in NIACs “parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat.” (See also the ICRC’s customary international humanitarian law Rule 99: Deprivation of Liberty).

To begin, it’s worth noting that Ryan does not seem to be “reasoning by structure” here — he seems to be arguing that, as a matter of customary international law, IHL prohibits arbitrary detention in NIAC. After all, he specifically mentions custom and “specially affected” states in the context of the Copenhagen Process. Moreover, he refers to the ICTY’s jurisdiction decision in Tadic both here and in his superb law-review article on security detention — and Tadic specifically based its (methodologically dubious) extension of IAC-based rules of IHL to NIAC on customary international law. As it said with regard to those rules (para. 127), “it cannot be denied that customary rules have developed to govern internal strife.”

If Ryan is claiming that IHL prohibits arbitrary detention in NIAC as a matter of customary international law, I have no theoretical objection to his argument. Indeed, as I’ll explain in my next post, my position is that international human rights law (IHRL) governs the regulation of detention in NIAC precisely because there are no contrary customary rules of IHL that can serve as the lex specialis of detention. If there are such customary rules, IHL may well displace IHRL (depending on how we understand the lex specialis principle).

That said, I take issue with Ryan’s claim that (as a matter of custom?) IHL prohibits arbitrary detention in NIAC — a standard that has no basis in the conventional IHL of NIAC and is normally associated with IHRL

Go Read Jens’s New Book!

by Kevin Jon Heller

9780199987405_450I am occasionally accused — correctly, of course — of using the blog as little more than a tool for shameless self-promotion. So it gives me great pleasure to use the blog as a tool of shameless other-promotion and announce the publication of Jens’s important new book, The Assault on International Law, now available from our friends at Oxford University Press. Here is the publisher’s description:

International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture became official government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations.

Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In a series of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. Theses abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largely irrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the US should block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases – ultimately triggering America’s pernicious withdrawal from international cooperation.

In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these ‘New Realists,’ in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality. According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature—a result that is not only legally binding but also in each state’s self-interest.

I have had the pleasure of reading the book, and it’s tremendous. Many international-law scholars are (understandably) resistant to the caricature of international law presented by the Posners and Yoos of the world, but few have the theoretical chops to engage in the kind of imminent critique of “New Realism” that Jens provides. I hope the book gets the audience it deserves.

The CIA Violated the Terrorist Bombing Convention

by Kevin Jon Heller

The Washington Post has a long article today about how Mossad and the CIA collaborated to blow up Hezbollah’s chief of international operations in 2008. Here are the key paragraphs:

On Feb. 12, 2008, Imad Mughniyah, Hezbollah’s international operations chief, walked on a quiet nighttime street in Damascus after dinner at a nearby restaurant. Not far away, a team of CIA spotters in the Syrian capital was tracking his movements.

As Mughniyah approached a parked SUV, a bomb planted in a spare tire on the back of the vehicle exploded, sending a burst of shrapnel across a tight radius. He was killed instantly.

The device was triggered remotely from Tel Aviv by agents with Mossad, the Israeli foreign intelligence service, who were in communication with the operatives on the ground in Damascus. “The way it was set up, the U.S. could object and call it off, but it could not execute,” said a former U.S. intelligence official.

The United States helped build the bomb, the former official said, and tested it repeatedly at a CIA facility in North Carolina to ensure the potential blast area was contained and would not result in collateral damage.

“We probably blew up 25 bombs to make sure we got it right,” the former official said.

The extraordinarily close cooperation between the U.S. and Israeli intelligence services suggested the importance of the target — a man who over the years had been implicated in some of Hezbollah’s most spectacular terrorist attacks, including those against the U.S. Embassy in Beirut and the Israeli Embassy in Argentina.

The United States has never acknowledged participation in the killing of Mughniyah, which Hezbollah blamed on Israel. Until now, there has been little detail about the joint operation by the CIA and Mossad to kill him, how the car bombing was planned or the exact U.S. role. With the exception of the 2011 killing of Osama bin Laden, the mission marked one of the most high-risk covert actions by the United States in recent years.

The article touches on the legality of Mughniyah’s killing, with the US arguing that it was a lawful act of self-defense under Art. 51 of the UN Charter and Mary Ellen O’Connell claiming that it was perfidy. Regular readers will anticipate my skepticism toward the former claim, and there is simply no support in IHL for the latter claim. Perfidy is an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Mossad and the CIA did nothing of the kind.

Mossad and the CIA did, however, violate the International Convention for the Suppression of Terrorist Bombings, which Israel ratified on 10 February 2003 and the US ratified on 26 June 2002. I don’t want to dwell on Mossad in this post; the analysis is the same as the one I provided here with regard to its assassination of Iranian nuclear scientists. Instead, I want to focus on the US’s complicity in Mughniyah’s death.

To begin with, there is no question that the bombing itself qualifies as a prohibited act of terrorism under the Terrorist Bombing Convention. Here is the relevant definition, Art. 2(1):

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

Mughniyah’s killing satisfies this definition. The attack involved an “explosive device” and it was clearly intended to “cause death.” It also took place on a public street, which qualifies as a “place of public use” under Article 1(5) of the Terrorist Bombing Convention. Article 1(5) defines a place of public use as “those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally.”

The CIA was also complicit in that prohibited act of terrorism, pursuant to Art. 2(3):

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

The language of Art. 2(3) easily encompasses the CIA’s involvement in Mughniyah’s death, given that the US admits the CIA built the bomb, helped track Mughniyah’s movements, and had the power to call off the attack.

The US will no doubt object to this analysis by arguing that the Terrorist Bombing Convention is intended to apply to bombings by terrorists, not bombings of terrorists. That objection would be valid had the US military been involved in the operation instead of the CIA. Justifiably or not, Article 19(2) of the Convention specifically permits acts that would otherwise qualify as terrorist bombing when they are committed by the military forces of a state:

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

The CIA, however, does not qualify as the US’s “military forces” under the Terrorist Bombing Convention. Art. 1(4) specifically defines “military forces of a State” as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.” The second provision does not apply, because there is no evidence the CIA was acting under the “formal command, control and responsibility” of the military when it participated in Mughniyah’s killing. And neither does the first provision: although there is no question that the CIA contributes to the US’s “national defence or security,” it is not an “armed force” under US “internal law.” According to 10 USC § 101, “[t]he term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.”

The bottom line: the CIA committed an act of terrorism — actual terrorism, not figurative terrorism — when it participated in blowing up Mughniyah. The US military has the right to kill terrorists with bombs; the CIA does not. There is no doctrine of “close enough” in the Terrorist Bombing Convention.

An Intersubjective Treaty Power

by Duncan Hollis

Ian Henderson may be mad at me.  He asked for fewer posts on foreign relations.  But he also asked for more posts on treaties.  I have a new paper up that tackles both topics — An Intersubjective Treaty Power.  For those of you who are interested in such things, here’s the abstract:

Does the Constitution require that U.S. treaties address matters of international concern? For decades, conventional wisdom answered that question negatively; The Restatement (Third) of U.S. Foreign Relations Law dismissed the very existence of an international concern test. In Bond v. United States, however, three Justices – Alito, Thomas, and Scalia – insisted on its existence, pushing the issue into the foreground of foreign relations law.

This article analyzes whether the Constitution contains an international concern test and what contours it has. I argue that Justices Alito, Scalia and Thomas are correct – and the Restatement (Third) was wrong – on the test’s existence. Various modalities of constitutional interpretation – original meaning, historical practice, doctrine, structure, and prudence – offer evidence supporting some version of an international concern test. But I part ways with the Justices on how the test works. They and other proponents have tended to look for static or objective criteria to divide appropriate “international” matters from impermissible “purely domestic” ones.

In contrast, I argue that the international concern test is intersubjective. U.S. treaties can only be formed (or ratified, implemented, or applied) where the relevant actors at each stage (e.g., States in forming a treaty, the President and the Senate in ratifying it) share a belief that its subject-matter is international. Absent that understanding, the treaty will not be formed (or ratified, or implemented, or applied). Such views may coincide or divide depending on the context. Thus, the Supreme Court could agree that the Chemical Weapons Convention generally addressed a matter of international concern, even if they also agreed that the prosecution of Ms. Bond did not. Nor are these understandings fixed; issues need not be “purely” domestic (or international) for all time. Some topics such as human rights were once understood by States (and the President and the Senate) to be inappropriate subjects for treaty-making, but are now believed to be an essential aspect of international relations. Other topics such as Native American relations were once subject to extensive treaty treatment, but are now no longer accepted as appropriate subjects for U.S. treaties.

This article thus answers one of the longest running questions of U.S. foreign relations law. It confirms the existence of an international concern test, but locates its operation within the treaty process rather than in an externally-imposed laundry list of topics or criteria. In doing so, it provides an explanatory lens for a U.S. treaty practice that many label incoherent and suggests a need for more research on what conditions generate intersubjectivity (or its absence).

 

Guest Post: A Response to Kevin Jon Heller

by Nimrod Karin

[Nimrod Karin is a J.S.D. candidate at New York University School of Law. From 2006 to 2012 he served as a legal adviser to the Israel Defense Forces at the International Law Department of the Military Advocate General’s Corps’ HQ, and from 2012 to 2013 he was the Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations.]

Thanks so much for the kind words, Kevin, and even more so for the interesting push-back. I confess that a reader of an early draft of my post cautioned me against using the term “lawfare,” although for different reasons than those Kevin noted. Now I realize I should’ve given this comment more thought, but at the same time I’m very pleased to have helped generate the side-discussion over Kevin’s use of the term “bravery,” which is fascinating in itself.

In my original post I wrote that “lawfare” is a Palestinian prerogative, and therefore I clearly think that it’s both politically and legally legitimate, and so I can’t think that it has such negative connotations as Kevin apparently thinks I do. In fact, I did mean “lawfare” in the sense Kevin’s discussants (Dov, el roam, and Mendieta) are using it: “lawfare” as strategic utilization of the law, which for me isn’t negative but rather value-neutral, and this is why in the post I contrasted it with “the quest for justice” or “embracing the law.” Strategy is simply neither of those, just as it isn’t “good” or “bad” – Strategy is only successful or unsuccessful. And as my original post indicated, to me the only plausible strategic role for the ICC in the Israeli-Palestinian conflict is as “the (legal) straw that broke the camel’s (political) back”. Only time will tell whether this is in fact a successful strategy for the Palestinians.

As with most strategies, this latest Palestinian move carries risk, not only of failing but also of backfiring, exactly as Dov put it. And this is what Kevin apparently deems to be “bravery,” and that’s because (1) the ICC process is uncontrollable and (2) it is likely to implicate Hamas as well. At first blush I thought that in this context Kevin’s use of “bravery” stands for selfless, non-strategic risk-taking, on behalf of some higher or noble cause. This would mean Kevin does see the Palestinian ICC bid as primarily driven by “justice” or “rule of law” considerations, in which case Kevin and I substantively disagree. However now I think that Kevin’s using “bravery” in its dictionary form, i.e. doing something incredibly risky (for whatever reason), perhaps even unreasonably dangerous given the possible reward, and maybe even a “Samson Option” type of last resort (as melodramatic as it may sound). I think this meaning of “bravery” conforms to the value-neutral charchter of the “lawfare” definition, which means Kevin and I agree on the principle, and then we can ask whether the Palestinian move is strategically sound given the well-known thinness of the line separating bravery and stupidity.

The question therefore becomes just how risky the Palestinian ICC bid really is, and how risky the Palestinians thought it was when they made it, and we can only speculate with regard to both of these questions. My educated guess here is that the ICC bid isn’t that much of a risk for the Palestinians, or at least that it’s not perceived as such by the Palestinians, least of all by the relevant decision-makers, i.e. Abbas and his concentric power circles of PA-PLO-Fatah. I think that by now it’s more than obvious that for that side of the Palestinian internal conflict the best possible scenario is an international cop stepping in to take care of Hamas. If Hamas leaders ever get indicted by the ICC, Abbas would be finally free of the whole unity charade, and at absolutely no internal political cost for him, because Abbas wouldn’t face the dilemma of whether or not to extradite suspects or accept external investigation – Abbas has no de facto authority or control whatsoever over either the suspects or the actual “scene(s) of the crime(s)”. This means that the “Abbas side” is not only strategically superior in this respect, but a free-rider; and as I mention in the post, this might not have been so easy for the “Abbas side,” if the new ad hoc declaration had stuck to the July 1, 2002 date for retroactive temporal jurisdiction – because this might have put some PA/PLO/Fatah leaders in the path of the ICC due to their activities during the Second Intifada.

The way I see it, the only real backfire risk for the (relevant) Palestinians comes from Israel, where possibilities are endless when it comes to overreaction. I can’t tell of course if the Palestinians are simply dismissive of this risk, or if they’re fully aware and think the possible reward outweighs the risk (perhaps only in the cynical sense of cutting off the nose to spite the face), or if the Palestinians are realistic with respect to both risk and reward, but also truly desperate, as el roam seems to think. I guess that it’s a mix of all three.

No, Going to the ICC Is Not “Lawfare” by Palestine

by Kevin Jon Heller

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

The Haunting “I Cannot Recall (Ballad of Manus Island)”

by Kevin Jon Heller

Not surprisingly given where I perch on the political spectrum, I love protest songs. One of my favourite jogging playlists is a disparate collection of classics — Buffalo Springfield’s “For What It’s Worth,” Barry McGuire’s “Eve of Destruction,” Country Joe and the Fish’s “I Feel Like I’m Fixin to Die Rag,” Paul Revere and the Raiders’ “Indian Reservation,” Phil Och’s “I Ain’t Marching Anymore” (the greatest anti-war song ever), and a bunch of others.

I’ve now added a new song to my playlist: Peter Joseph Head’s “I Cannot Recall (Ballad of Manus Island),” a very unusual jazz/spoken-word hybrid about Australia’s horrific detention centre in Papua New Guinea. Manus Island has been much in the news lately, because the refugees detained there have gone on a hunger strike — and tried to kill themselves by swallowing razor blades and laundry detergent — to protest their confinement and living conditions. Here is the YouTube video; the spoken words seem to be based on the transcript of a lawsuit involving the detention centre:

You can read about the Melbourne-based Head here, and you can find a higher-quality recording of the song here. I’ve embedded the YouTube video so readers can see images of Manus Island.

Listen. Read. Learn.

Protest.

H/T: Bianca Dillon.

Guest Post: The Palestinian Accession to the Rome Statute and the Question of the Settlements

by Ido Rosenzweig

[Adv. Ido Rosenzweig is the chairman of ALMA –Association for the Promotion of International Humanitarian Law; Director of Research – Terror, Belligerency and Cyber at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa; and a PhD candidate at the Hebrew University of Jerusalem.]

Recently the Palestinians submitted (for the second time) a declaration accepting the jurisdiction of the International Criminal Court (ICC) in accordance with article 12(3) of the Rome Statute, thus providing jurisdiction to the International Criminal Court over their territory starting with June 13th, 2014. This was conducted alongside the Palestinian accession to the Rome Statute. That act was described as a political storm, a very aggressive and game changing move by the Palestinians who decided to throw their most important card into the game. That move gave rise to many different questions about its legality and the possible legal and political implications for Israel. In this short comment I address some of these issues and provide my own point of view on them.

What’s at stake here? Currently the ICC has jurisdiction over three types of crimes – war crimes, crimes against humanity, and genocide. It could be argued that with regard to most crime allegations Israel will have the option of raising the complementarity argument in accordance with article (article 17(1)(a) of the Rome Statute). Israel will most likely base her complementarity argument on the outcomes of the 2nd Turkel Report and the ongoing investigation process. However, even if the Israeli complementarity claim stands, there’s still one issue which complementarity won’t resolve, and that’s the settlements.

Where’s the problem? The wording of article 8(2)(b)(viii) goes:

“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;”

There’s a legitimate argument claiming that the settlements and more precisely, the government’s support of the settlements and the transfer of people from Israel to the West Bank, are strictly prohibited and amount to war crimes under the Rome Statute article (“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”). Moreover, since the Israeli High Court of Justice ruled that the Israeli policy regarding the settlements is not justiciable (for example see HCJ 4481/91 Bargil v. GoI), it seems that in this case Israel could be considered as “unwilling and unable” to exercise its jurisdiction with regard to the settlements (or some aspects of that policy).

Will the ICC investigate the Settlements? This question brings us to the other barriers of the ICC admissibility (besides complementarity). The first barrier is gravity (article 17(1)(d)) – the ICC will only deal with severe violations. The interpretations assigned to the population transfer prohibition vary in such way that some from a prohibition to forcibly deport local population into occupied territory, which probably doesn’t include the Israeli settlements in the West Bank, to other interpretations which could include the situation of the settlements.

Another barrier is the territorial jurisdiction of the Palestinians over the settlements. In their recent 12(3) declaration, the Palestinians provided jurisdiction to the court over “the Occupied Palestinian territory, including East Jerusalem“. However, it’s not legally clear over what territory the Palestinian are allowed to provide jurisdiction to the ICC. This is due to the fact that there’s no clear decision or ruling about what constitutes the territory of the Palestinians. In fact, the November 29th, 2012 General Assembly’s resolution 67/19 clearly stated that the issues of the Palestine refugees, Jerusalem, settlements, borders, security and water need to be resolved via negotiations. This can lead to three very important conclusions – (a) It is unclear if the territory where the settlements are located is under Palestinian jurisdiction and therefore if such jurisdiction can be granted to the ICC; and (b) since the very same resolution provided the Palestinians with the upgraded status also left the resolution of borders and settlements to negotiations, it is unclear if the ICC would be allowed to resolve such sensitive political questions through criminal procedures; (c) finally, it can also be argued that by leaving the settlements issue to negotiations, the international community doesn’t regard the transfer of population as a severe act which meets the gravity threshold that was mentioned above.

What’s next? This is where things get even more complicated. Since the questions of the borders and territory are important, they need to be resolved somehow. In my view there are (at least) six potential and interesting ways for these questions to be resolved:

  • Another General Assembly resolution clarifying the situation and thus changing the requirement for negotiations in order to resolve those issues. I think that if the Palestinians were able to achieve that in the first place they would have done so. Therefore it seems that there won’t be a majority in the General Assembly for such a resolution.
  • Security Council resolution on this issue. This is the most farfetched option, as it was the refusal of the Security Council to adopt a relevant resolution that led to the Palestinian Accession to begin with.
  • Decision of the ICC with regard to its jurisdiction. While this could be the main road in this context – letting the ICC prosecutor and after that the Judges, decide on the Court’s jurisdiction, it’s a well known fact that the ICC doesn’t operate rapidly and I believe that the Palestinians won’t be willing to sit down and wait until the ICC issues a decision on that topic.
  • Advisory opinion of the International Court of Justice (ICJ) is probably the Palestinian’s next move. While it’s not a “win-win” situation for the Palestinians as the ICJ might decide against their claim for jurisdiction over the settlements’ territory, it is definitely a “win-no lose” situation where they can gain with a decision in their favor or remain in the same situation as they are now if the ICJ rules against their claim for jurisdiction.
  • The Human Rights Committee, the professional body charged with the implementation and interpretation of the International Covenant on Civil and Political Rights which the Palestinians joined in their first round of ratification of treaties. When the Palestinians come before the committee, one of the decisions the committee will have to make will relate to the treaty’s territorial applicability, and to that end, the committee will have to decide whether Palestinian territory includes the settlements. I doubt that the professional committee will desire to deal with such a hot political and diplomat potato, and anyway, such a review is not scheduled for the upcoming year.
  • Lastly, as was suggested here by my good friend and colleague, Sigall Horovitz, Israel has also the option of joining to the Rome Statute and submitting a declaration under article 124 with an attempt to gain a delay of seven years with regard to the ICC’s jurisdiction over any allegation of war crimes committed by Israel.

It seems that the already complicated Israeli-Palestinian situation just got more complicated, and while it’s unclear what the outcome will be, I’m just not sure that outcome of the Palestinian move was as aggressive as it seemed at first glance. The question of the settlements is obviously broader than the discussion presented above, and in this short comment I presented my thoughts on one specific aspect related to them following the recent developments.