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Human Rights

Another Terrible Day for the OTP

by Kevin Jon Heller

Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber’s complete rejection of the OTP’s case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect co-perpetrator, choosing to “recharacterize” the facts to support finding him guilty as an accessory under Art. 25(3)(d) of the Rome Statute (contribution to a group crime).

The OTP, in short, failed to prove any of its legal claims — just as it did with regard to Katanga’s co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well.

(Which is, by the way, exactly what should have happened. The Trial Chamber’s “recharacterization” of the facts in the case, which was motivated solely by the desire to ensure Katanga’s conviction — thereby saving the OTP from itself — was fundamentally inconsistent with Katanga’s right to a fair trial. But that will be the subject of my next post.)

All in all, another terrible day for the OTP.

Can Crimea Secede by Referendum?

by Chris Borgen

As Julian mentioned, the Crimean parliament is attempting to achieve the secession of Crimea through the use of a parliamentary vote and a referendum. More legal rhetoric in the midst of political crisis. Back in 2007 and 2008, Russia, the U.S. and the EU used quasi-legal arguments to try to explain why one could support the independence of Kosovo, but not South Ossetia and Abkhazia, or vice versa. It looks like a new iteration of this debate is starting. According to CNN:

lawmakers in Crimea voted in favor of leaving the country for Russia and putting it to a regional vote in 10 days.

It’s an act that drew widespread condemnation, with Ukrainian interim Prime Minister Arseniy Yatsenyuk calling the effort to hold such a referendum “an illegitimate decision.”

“Crimea was, is and will be an integral part of Ukraine,” he said.

The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.

There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine.  This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.

Nor does the International Court of Justice’s Advisory Opinion on the legality of Kosovo’s declaration of independence under international law recognize an international right of secession. It side-stepped the question of whether there is a right to secede under international law and framed the legal issue as one of domestic law. It was an advisory opinion that gave very little advice.

If the recent ICJ opinion does not provide much guidance, the tradition of state practice over the longer term does. The international community has not given much legal weight to referenda such as these. Back in the interwar period the Aaland Islands attempted to use a referendum to secede from Finland. In that case, an international commission of jurists brought in to assess the situation for the League of Nations found that there is no right of national groups to separate by the simple expression of a wish. And, particularly relevant today, the ability to choose secession by plebiscite must be granted by the state itself, that is, Ukraine. Otherwise, such a formulation would infringe upon the sovereign right of states. (See the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Off. J., Spec. Supp, No. 3, at 5-10 (1920)).

We have seen more recent examples of referenda, such as when Transnistria tried to use a plebiscite to claim independence from Moldova and possible unification with Russia. It received no support from the international community for that claim. (This tactical use of referenda seems to be used time and again by secessionist groups supported by Russia.)

It is important to keep in mind that the whole population of Ukraine has a right of self-determination, as well, and that includes the right not to have their country be torn asunder either by a local referendum and/or external military intervention.

The only place that could confer a right to Crimea to leave by referendum is the Ukrainian Constitution. As far as I can see, there is nothing there conferring the power to secede by referendum. Title X of the Ukrainian Constitution (revised link) concerns the Autonomous Republic of Crimea; there is no mention of secession by act of regional parliament or by local referendum.

Even the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution. Article 1 of the Crimean Constitution states:

The Autonomous Republic of Crimea shall be an integral part of Ukraine and it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.

The Autonomous Republic of Crimea shall also exercise any and all powers as may be delegated to it by Ukrainian laws pursuant to the Constitution of Ukraine.

By the way, as I understand it (and, again, I invite any readers with particular knowledge in this area to comment), the term “autonomous republic” had a specific meaning in the old Soviet constitutional law.  Under the Soviet constitution, there were “union republics” and “autonomous republics.” Union republics had the highest form of sovereignty within the USSR. When the USSR dissolved, the Union republics such as Russia, Moldova, Georgia, Azerbaijan and Ukraine became new sovereign states. The autonomous republics did not have that level of sovereignty; they were subsidiary entities.

I note that Russia has within it its own autonomous regions and republics. Yet, I see nothing indicating that they believe those entities can voluntarily secede from Russia.

Words like “self-determination” are rhetorically persuasive when kept vague but they also have actual legal meaning. One needs to be careful about setting up unreasonable expectations by claiming certain results (such as secession) as a matter of right, when no such right exists.

Such use of legal rhetoric does not help resolve conflicts; it only makes some people more intransigent and the conflict more intractable.

Lozano v. Montoya Alvarez: The Latest Supreme Court Treaty Interpretation Case

by Duncan Hollis

I’m a bit pressed for time, but wanted to offer a brief post calling readers’ attention to a US Supreme Court case that came down today – Lozano v. Montoya Alvarez.  In it, a unanimous Court interprets the Hague Convention on the Civil Aspects of International Child Abduction to not allow equitable tolling of the requirement that a child be automatically returned to the country from which s/he was abducted in the one year period after the child is taken.  The case involved two Colombian nationals living in England in 2008 when the mother leaves with her child for France and then New York (via a shelter for victims of domestic violence).  The father was unaware where his child had been abducted to, and thus could not file for the return remedy provided for by Article 12 of the treaty.  After much searching, he located her in the United States in November 2010.  At that point, however, the near automatic-right of return for one year provided via Article 12 no longer applied and the Convention imposes a different standard – wherein courts must order the return of the child ‘unless it is demonstrated that the child is now settled in its new environment’ (emphasis added).  Lower courts found that the child had become settled and thus she remained in the United States pending the outcome of this litigation.

In its opinion, the Court interpreted Article 12 not to contain any equitable tolling possibility with respect to the one year period for the automatic right of return.  In doing so, it declined to apply the equitable tolling doctrine available for federal statutes to treaties, offering in the process some general statements on its approach to treaty interpretation:

For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas,  552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.

It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996). Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling….

I don’t see anything too dramatically different in this reasoning than the Court’s earlier pronouncements.  More interesting, perhaps, is the Court’s unwillingness to let the existence of implementing legislation via federal statute impact its interpretative analysis:

It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.

There’s more later in the opinion offering views on the negotiators’ intent as well as the object and purpose of the Hague Convention itself.  But, I’ll leave that for readers to comment on if anyone is inclined to do so.

Guest Post: Autonomous Weapons at Chatham House: It’s Bentham versus Kant

by Charles Blanchard

[Charles Blanchard served as General Counsel of the U.S. Air Force from 2009-2013, and General Counsel of the Army from1999-2001, is currently a partner at Arnold & Porter LLP.  He was a panelist at a Chatham House conference on autonomous weapons.]

In the past year, proposals for an autonomous weapons ban have gone from a fringe notion to an agenda item for the Convention on Conventional Weapons this year.  Last week, I joined a diverse group at a Chatham House conference to discuss the issue.  The participants included advocates of a ban, technologists on both sides of the issue, government officials, and Law of War experts.  The conference was surprisingly useful in illuminating lots of common ground, and more importantly it illuminated the different philosophical differences between proponents and skeptics of a ban.

The degree of agreement was actually surprising, but also very helpful:

  • There was broad agreement that except in very unique battle spaces (where the likelihood of civilians was nonexistent), deployment of autonomous weapon systems today would not be consistent with the requirements of International Humanitarian Law (IHL).  One panel concluded that the current technological limits, when combined with IHL, has effectively created a temporary moratorium on completely autonomous weapon system deployment.
  • Even the proponents of a ban would not oppose completely autonomous weapon systems that targeted other machines—such as might be the case with missile defense systems in the future—assuming that the technology develops sufficiently to meet IHL requirements. To be clear, however, the proponents of a ban would oppose even a purely defensive system that targeted tanks, airplanes or other platforms with human beings on board.
  • While the proponents of a ban advocate for a ban on development, they seem to agree that a very narrow definition of “development” is appropriate.  They would not attempt to limit research and development of even dual us civilian uses of autonomy, and would not even oppose development of semiautonomous weapons technology as long as a human remains in the loop.  The development ban would be imposed on the creation of completely autonomous systems.

So what was the disagreement?  It centered on the following question:  if technology ever developed to the point that machines were more capable than humans in complying with IHL than humans, should autonomous weapons be banned?  The skeptics of a ban, such as me, argued that it would be troubling to accept more civilian casualties that would then result from a ban.  The proponents, on the other hand, argued that it would violate notions of human dignity to let a machine to decide who to kill.

While one advocate calls the aversion to allowing machines to kill the “yuck” factor, a panel of ethicists and philosophers illuminated what this difference is really about:  the skeptics (like myself) are advocating a utilitarian ethical scheme (the greatest good for the greatest number), while the proponents are applying Kant’s categorical imperative that no human being should be used as an instrument.  While a utilitarian would be focused on whether civilian (and military) casualties would be less if autonomous weapons were used, a Kantian would object to the removal of humans from the lethal decisionmaking altogether.  One panelist noted that Germany’s highest court had rejected a purely utilitarian view in overturning a law that allowed hijacked planes to be shot down.  Even though the passengers on the plane would likely die anyway, and shooting down the plane would save other lives, the German court concluded that the statue violated human dignity.

So what are we to make of this philosophical dispute?  To a great degree, warfare and the laws of war have arisen out of utilitarian philosophical frameworks.  Indeed, one could argue that the very use of military force against other human beings (even for a righteous cause) violates Kant’s categorical imperative.  And the IHL concept of proportionality—that attack on a military target is permissible even if there will be civilian casualties as long as the civilian casualties are “proportional” to the military value of the target—is expressly utilitarian and inconsistent with Kant.

Nonetheless, the development of IHL is itself a history of a battle of humanitarian concepts (Kant) against utilitarianism. Arguably, the Geneva Gas Protocol in 1925 was a victory of humanitarian concepts over pure utilitarianism. And the more recent bans on land mines and cluster munitions are also clearly motivated by nonutilitarian concepts.

Now obviously there is much more at stake here than this narrow philosophical dispute.  Purely utilitarian concerns about strategic stability—based on the fear that purely autonomous systems will make it more likely that countries will go to war—can also lead to concerns about these weapons.  But at their root, the debate here is whether the principle that only humans should decide to kill other humans is sufficiently important that we are willing to accept more death as a result.

Who Speaks for Ukraine?

by Chris Borgen

[Expanding and moving this up from the comments section of my previous post.]

In a comment to the previous post, reader “Non liquet” noted that:

The UN Security Council Meeting was interesting in this regard today. Reportedly, the Russian Ambassador to the UN stated he received a letter from the former President of Ukraine dated 1 March requesting intervention of the Russian army in Ukraine.
It seems that the Russians believe they need to frame their own arguments regarding intervention with at least a fig leaf of international law.

“Non liquet” also linked to this Yahoo News article, which reported that:

“The country has plunged into chaos and anarchy,” Russian Ambassador Vitaly Churkin read from an unofficial translation of the letter while speaking to reporters after an emergency meeting of the U.N. Security Council. “The country is in the grip of outright terror and violence driven by the West.”

“People are persecuted on political and language grounds,” he read. “In this context, I appeal to the President of Russia Vladimir V. Putin to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine.”

“Non liquet” makes a good point that this is an attempt at a legal fig leaf: arguing that any Russian intervention is not an invasion, but rather a lawful response to a request for assistance by a  government.

But this is predicated on the idea that Yanukovich was empowered to ask for Russian assistance and military intervention. And thus we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.

In a U.S. State Department press conference this past Friday, the spokesperson said:

We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward.

I take that as an indication that the the U.S. government would not take any further statements or actions by Yanukovich as being actions of the government of Ukraine, in part because the Yanukovich regime has fled and no longer has effective control of the country.

Russia, clearly, disagrees… (Continue reading)

Mueller on Kenya and the ICC

by Kevin Jon Heller

Susanne Mueller, who works at Boston University’s African Studies Center, has published a very interesting essay on the relationship between Kenya and the ICC. I want to bring it to our readers’ attention, because it’s published in the Journal of East African Studies, which many international-law folk may not normally read. Here is the abstract:

Kenya’s 2013 election was supremely important, but for a reason not normally highlighted or discussed. Uhuru Kenyatta and William Ruto’s run for president and deputy president as International Criminal Court (ICC) indictees was a key strategy to deflect the court and to insulate themselves from its power once they won the election. The paper maintains that the strategy entailed a set of delaying tactics and other pressures to ensure that the trials would not take place until after the election when their political power could be used to maximum effect to halt or delay them. However, unlike in 2007–08, the 2013 election did not result in mass violence. The Kenyatta–Ruto alliance united former ethnic antagonists in a defensive reaction to the ICC. The analysis has implications for theories seeking to explain why countries ratify and comply with treaties. It develops an alternative political economy argument to account for outliers like Kenya and has implications for international criminal justice and democracy in Kenya.

It’s an illuminating and persuasive argument, well worth the read if you are interested in Kenya and the ICC. A free copy can be downloaded here.

A Modest Suggestion for the Ukrainian Parliament (Updated)

by Kevin Jon Heller

According to VOA News, the Ukrainian Parliament would like the ICC to investigate recently-deposed President Yanukovych:

Ukraine’s parliament voted on Tuesday to send fugitive President Viktor Yanukovych to be tried for ‘serious crimes’ by the International Criminal Court once he has been captured.

A resolution, overwhelmingly supported by the assembly, linked Yanukovych, who was ousted on Saturday and is now on the run, to police violence against protesters which it said had led to the deaths of more than 100 citizens from Ukraine and other states.

The resolution said former interior minister Vitaly Zakharchenko and former prosecutor-general Viktor Pshonka, who are also being sought by the authorities, should also be sent for trial at the ICC, which is based in The Hague.

The court says it needs a request from Ukraine’s government giving it jurisdiction to investigate Yanukovych and others over deaths during the protests.

I’m pretty sure the Court did not actually say that. Why? Because Ukraine has signed but not ratified the Rome Statute. And it can’t without Parliament’s intervention, because Ukraine’s Constitutional Court has held that the Rome Statute is not in conformity with the Ukrainian Constitution. So here’s a suggestion: before Parliament tries to send its former President to the Hague — and it would, of course, have to refer the situation in the Ukraine, not just him — it should amend the Constitution and ratify the Rome Statute.

All that said, there would be worse things than a Ukraine self-referral. After all, the Ukraine is not in Africa, and it’s unlikely that Yanukovych won’t eventually be apprehended. Prosecuting a former non-African head of state would do wonders for the ICC’s reputation.

UPDATE: In the comments, Shehzad Charania mentions the possibility of the Ukraine accepting the ICC’s jurisdiction on an ad hoc basis and then waiting for the OTP to initiate a proprio motu investigation. As I read the Constitutional Court’s decision, linked to above, that route is also foreclosed by the Ukrainian Constitution. Here is the relevant paragraph from the ICRC’s summary of the decision:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

If the problem with ratifying the Rome Statute is that Ukraine cannot delegate the administration of justice to an international court, that would seem to prohibit accepting the ICC’s jurisdiction on an ad hoc basis, as well.

Lecture Next Week at UCL

by Kevin Jon Heller

Opinio Juris readers who are based in London may be interested in coming to a lecture I’ll be giving for the ILA at University College London next week. Here is the relevant information:

International Law Association (British Branch) Lecture
What is an international crime?

Wednesday 5 March 2014, 6-7pm

  • Speaker: Professor Kevin Jon Heller (Prof. of Criminal Law, SOAS)
  • Chair: Dr Kimberley Trapp (UCL)
  • Venue: UCL Faculty of Laws
  • Admission: Free of charge
  • Accreditation: 1 CPD hour SRA (BSB pending)

Nearly all ICL scholars accept the idea that an international crime is an act that is directly criminalized by international law. Professor Heller will challenge that definition, what he calls the “direct-criminalization thesis,” in this lecture. More specifically, he argue that the thesis can only be defended on the basis of an unconvincing and illegitimate naturalist understanding of the creation of international law — and that any attempt to defend the direct-criminalization thesis on positivist grounds collapses it into what he calls the “national-criminalization thesis,” the idea that an international crime is an act that all states are obligated to domestically criminalize.

This is essentially the same presentation I gave at Oxford a few weeks ago, so if you were there or listened to the podcast, there is no reason to come to this event. But if you do go, please come up afterward and say hello!

The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan - whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):…

The Cossacks: A Legal Primer

by Chris Borgen

The recent altercation between members of Pussy Riot and Cossack militia that was caught on video is a red flag signalling a broader issue in the Russian Federation: the resurgent power of the Cossacks and their relation to the Russian state, especially to keep politically-disfavored groups in check.

But who are the Cossacks?  A paramilitary organization? A political party? An ethnic group? And what are they doing at the Sochi Olympics?  This post will try to explain a little about who the Cossacks are, their role in Russia today, and the legal implications for human rights, minority rights in particular, and the use of state power.

The word “Cossack” summons for many images of mustachioed horsemen with bearskin hats. But, as one CNN report put it, “the Cossacks have long symbolized rebellion and military might in Western and Southern Russia and Ukraine.” Today’s Cossack organizations provide contracted-for security services for Russian regional governments.  Aleksandr Tkachev, the governor of Russia’s Krasnodar region, in which Sochi is located, has been at the forefront of contracting with the Cossacks (although, as I’ll explain below, this has been supported from the Presidency on down). About 400 Cossacks are being used as security in Sochi. But this is just the tip of the iceberg.

As for the utility of  having Cossacks–a non-state (or perhaps quasi-governmental) entity–provide security services, the official line seems to be that Cossacks will have greater leeway for action. CNN again:

“What you cannot do, a Cossack can,” Krasnodar Gov. Aleksandr Tkachev explained to local police.

His comments sparked an outcry from Sochi natives, minorities and migrants. Analysts say it is not a coincidence that the Cossacks’ revival is taking place as nationalism and xenophobia are on the rise in Russia.

[Emphasis added.]

The Pussy Riot incident in Sochi is simply the most obvious example of a larger trend that could have important implications for the rule of law in Russia and in former Soviet republics. But before looking at the current situation in greater detail, some history and context is needed…

(Continue Reading)

Ukraine: Background, Sanctions, and the Sword of Damocles

by Chris Borgen

The BBC is reporting that dozens of people have died today in new fighting between police and protestors in Ukraine.  For a background to what is underlying the protests, see these posts concerning the struggle over the norms that will define Ukraine,  how Ukraine’s domestic disputes interact with Russian and European regional strategies, and the significance of the eastward spread of the protests and Russia’s technique of push-back against the norm-based arguments of the EU.

Some of these themes are echoed in the BBC report:

Ukraine seems be caught in a modern “Great Game”. Vladimir Putin wants to make Russia a global economic player, rivalling China, the US and EU. To that end he is creating a customs union with other countries and sees Ukraine as a vital and natural element in that – not least because of the countries’ deep cultural and historical ties.

The EU says assimilation and eventual membership could be worth billions of euros to Ukraine, modernising its economy and giving it access to the single market. It also wants to reverse what it sees as damaging infringements on democracy and human rights in Ukraine.

Many Ukrainians in the east, working in heavy industry that supplies Russian markets, are fearful of losing their jobs if Kiev throws in its lot with Brussels. But many in the west want the prosperity and the rule of law they believe the EU would bring. They point out that while Ukraine had a bigger GDP than Poland in 1990, Poland’s economy is now nearly three times larger.

While the immediate issue in the streets of Kiev is an end to the violence, the medium-term Western response may be sanctions against Ukraine, particularly targeting the assets of President Yanukovich and his allies.

But, hanging over all of this like the sword of Damocles is the concern over the stability of the Ukrainian state. The previous Opinio Juris posts, the BBC report linked-to above, and others have noted the sharp electoral and linguistic (Ukraine-speaking/ Russian speaking) divide between western Ukraine and eastern Ukraine. Some have voiced concern that Ukraine faces a possible civil war or a break-up of the country.  Edward Lucas of The Economist has written in an op-ed in today’s (February 20) Telegraph:

Perhaps the authorities will decide that they cannot crush the protesters and will draw back, meaning months of tension, jitters and uncertainty. Even then, Ukraine’s territorial integrity has been shattered, perhaps fatally. In the west, government buildings have been set ablaze. The region – the old Austro-Hungarian Galicia – was the site of a decade-long insurrection post-war against Soviet rule. If pro-Moscow authorities in Kiev try to crack down there, civil war looms…

Equally worrying is Crimea – site of the Charge of the Light Brigade 160 years ago – which could now be the flashpoint for another conflict with Russia, with far more devastating effects. The region is on the verge of declaring independence from Kiev (a move likely to prompt Russian intervention to protect the separatist statelet).

The BBC report sounds a more hopeful note:

Some commentators suggest this shows the country is liable to split violently across the middle. But others say this is unlikely – and that many in the east still identify as Ukrainians, even if they speak Russian.

As I mentioned in my previous post on Ukraine, the answer to the question of whether or not there is civil war or secession, depends in part on what the protestors in the eastern part of the country are protesting about.  If they are willing to continue on the path to closer integration with the EU and set aside closer integration with Russia, then the strand of hair keeps the sword suspended. If the Ukrainians in the east just want Yanukovich out, but still want to avert integration with the EU and increase integration with Russia, then the strand doesn’t necessarily break, but it does fray, as the normative conflict over the future of Ukraine will persist.

But while the question of civil war and secession depends in part on the severity of normative friction in Ukraine, that is not the only determinant. Also important is what role Russia will play in either further exacerbating the conflict or finding a peaceful solution. In September, Russia raised the specter of secessionism in Ukraine, specifically linking it to Ukraine’s signing the EU Association Agreement. Russia actively supports secessionist movements in Moldova and Georgia, two other countries seeking closer relations with the EU. Whether President Putin believes that preventing Ukraine from  signing an Association Agreement with the EU is important enough to push that country to war remains to be seen.

The issue for today is ending the violence in the streets of Kiev. But that is the first step in a long road to finding stability in Ukraine.

Guest Post: Bartels–Temporal Scope of Application of IHL: When do Non-International Armed Conflicts End? Part 2

by Rogier Bartels

[Rogier Bartels is a Legal Officer (Chambers) at the International Criminal Court and a research-fellow at the Netherlands Defence Academy. The views below are the author’s alone.]

The first part of this post discussed that a non-international armed conflict (NIAC) ends when the NIAC-criteria (a certain level of organisation of the parties groups, and a certain intensity of the armed violence) are no longer both present.

At the ICTY, the various trial chambers seized of cases concerning Kosovo and Macedonia had to consider the lower threshold for the start of (or continued existence of) a NIAC. The Boškoski and Tarculovski Trial Chamber, for example, gave a detailed overview of the indicators used so far and reviewed how the relevant elements of Common Article 3 recognised in Tadić (organisation and intensity; see Tadić TJ, para. 562) are to be understood. Its findings were confirmed by the Appeals Chamber (see Boškoski and Tarculovski AJ, paras 19-24). Certain “factors”, and a number of “indicators” thereof, were identified that need to be taken into account when assessing the organisation and intensity criteria. These factors have since been adopted by the Lubanga Trial Chamber in the first ICC judgment (paras 537-538).

If agreed that a NIAC ends when the criteria of “intensity” and “organisation” no longer exist, using these factors and indicators identified in the case law, could be helpful in determining such an ending. Naturally, not all indicators are of assistance. Most notably, the indicator of the existence of (attempts to broker) ceasefire agreements shows that parties considered that there was an armed conflict took place (at the time of the alleged crimes), but obviously does not answer the question whether the conflict continued or ended after such agreements.

Other indicators cannot easily be applied ‘in reverse’. A reversed examination of “the extent of destruction”, for example, would be difficult, as it is hard to assess whether damage diminishes if only few buildings are left standing or if few potential targets remain. The lack of (new or ongoing) damage may well be due to these circumstances, rather than result from the end of the conflict. Nevertheless, an indicator merely serves to ‘indicate’ the existence of an NIAC, and has to be seen in relation to the other indicators: if few military objects remain and a prolonged period occurs during which no targets are attacked, this may well be a sign that the conflict has ended.

In addition, some indicators could be adapted. Instead of looking at the (type of) weapons used, an indicator could be the effectiveness of a disarmament programme: the type and amount of weapons handed in vis-à-vis the initial number of fighters or the approximate type and number of weapons initially deployed. For the indicator of refugee flows from combat zones, one could look, rather than at the number of civilians fleeing an area, at the number of civilians returning home, i.e. considering their pre-conflict place of residence safe enough to return to. (That is not to say that a conflict could never be considered as ended when refugees and or IDPs do not return to their homes as this may be caused by other factors, such as, a changed ethnic composition of the area concerned, lack of cooperation by the government and/or measures implemented by the victorious party).

When peace agreements, as suggested by Tadić, are considered to be the end of NIACs, the focus appears to be laid on the intensity requirement. The discussion regarding the start of the Syrian NIAC (see here for an overview), however, has highlighted the (greater) importance of the organisational requirement. Between the two NIAC-criteria, organisation is the most relevant for the assessment of the end of such conflicts. The decline in organisation of one or more of the parties to the conflict can result in a security vacuum when the controlling regime (i.e. the state or the rebel force) gives way and the resulting (state) apparatus is not (yet) able to provide for effective security. Also, the opposing party will mainly target the organisational structure of an armed group. Whilst targeting the leadership was relatively uncommon in IACs, it has been the main goal in NIACs. It appears also the most effective way to bring about the end of such a conflict. See, for example, the killing of LTTE leader Prabhakaran in 2009, the effects of air strikes killing commanders of the FARC, and the (drone) attacks by United States on the Al-Qaeda leadership. Furthermore, intensity or ‘protractedness’ is hard to pinpoint on a specific moment, because some time element – despite claims to the contrary (see, e.g., the ICTY’s Delalić et al. TJ, para 184 and Kordić and Cerkez AJ, para. 341) – is still inherent in this requirement. Moreover, small break-away fractions of an armed group could continue to carry out attacks, or sectarian violence could go on after – or perhaps result from – the disappearance of the organisational structure of one or more of the fighting parties. Take, for example, the situation in Libya in the period after the defeat of the Gaddafi regime and the forming of the new government by the rebels.

My submission that NIACs end when the level of violence and/or organisation drops below a certain lower threshold, has consequences for the application of IHL and consequently for the protection afforded by IHL. It may be feared that it would lead to “legal uncertainty and confusion” (compare Gotovina et al TJ, para. 1694). In practice, however, having an end-threshold should not create a gap in protection, hence no uncertainty – or at least no more uncertainty than as to the start of the application of IHL at the beginning of a NIAC. Using the lower threshold for the application of IHL ‘in reverse’ in order to determine the end of a NIAC may actually allow for a smoother transition between the law governing the use of force during armed conflict (conduct of hostilities paradigm) and the law governing force outside situations of armed conflict (law enforcement paradigm). It makes sense to gradually move towards a law enforcement approach in the end stages of a NIAC. When the intensity of the fighting has decreased, and/or organisational structure of concerning groups has broken down, to such an extent that it no longer reaches the lower threshold, persons belonging to a (partly or fully broken down) group, would not be “directly participating in hostilities” in the traditional sense, but rather find themselves in a situation where the opposing party controls the territory they are in. As advocated elsewhere (albeit received with much criticism; see here for an overview), the opposing party should then apply the human rights/law enforcement approach when taking action against these persons. If it is unclear whether or not a situation of armed conflict continues to exist, the attacking party should err on the safe side and apply the least amount of force necessary (i.e. in line with law enforcement type of proportionality). This also follows from a moral as well as practical point of view: if the conflict is ending, what would be the benefit of and why would one want to continue to kill the opponents, rather than to start thinking about a process that would bring a lasting peace after the conflict?

The breakdown of the organisational structure of an armed group (which will, amongst other things, be indicated by the inability to carry out military operations) should result in the cessation of the “continuous combat function” of members of that group, thereby limiting the right to target the persons concerned. For those advocating for the so-called “membership approach”, no problem arises either: an even further breakdown of the group’s organisational structure would result in the concerning persons ceasing to be ‘members’; and thus targetable. After all, there needs to be a group or organisation in order for someone to be a member of it.

To sum up, it is my hypothesis that NIACs do not necessarily end only by virtue of a peace settlement being reached, but rather by the more factual circumstance of the level of “organisation” and “intensity” falling below the threshold set for the application of IHL. To assess when NIACs end, one could resort to using the factors and indicators for determining the lower threshold for the start of such conflicts, as identified by the ICTY in its voluminous case law. However, they are to be applied on a case-by-case basis, as not all of them are adaptable to the specific circumstances in which some conflicts take place.