Archive of posts for category
International Courts and Dispute Resolution

New Article on SSRN

by Kevin Jon Heller

I have posted a short article on SSRN, entitled “Taking a Consenting Part: The Lost Mode of Participation.” Here is the abstract:

This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using Hadžihasanović at the ICTY as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.

As always, comments welcome!

The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

The Media Spotlight on Investor-State Dispute Settlement Just Got a Lot Brighter

by Julian Ku

Buzzfeed’s Chris Hamby is out today with the first installment of a promised four-part investigative report into the system of investor-state dispute settlement (ISDS).  Like all such reports, it needs a spectacular headline and summary to draw clicks, and this one’s a doozy:

The Court That Rules the World

A parallel legal universe, open only to corporations and largely invisible to everyone else, helps executives convicted of crimes escape punishment.

The article itself is much more fair and thorough than this ridiculous headline teaser suggests.  It contains lots of original reporting on three ISDS cases involving Egypt, El Salvador, and Indonesia where Hamby says actual or threatened ISDS actions allowed corporate executives to escape criminal punishment.

I have no reason to doubt the accuracy of Hamby’s reporting on these cases. But I do have two initial somewhat critical reactions:

  • ISDS does give foreign investors leverage with host nations like Egypt or El Salvador that they wouldn’t otherwise have.  But I think Hamby overstates the amount of leverage a real or threatened ISDS claim creates.  Foreign governments don’t immediately comply with all ISDS awards and collecting judgments against foreign sovereigns, even weak ones like Egypt or El Salvador, is no easy task given those states’ sovereign immunity legal defenses and the difficulty of seizing state-owned assets.  Moreover, research shows that ISDS shows that states win more often than investors do, or they at least prevail as often as investors do. (See Footnote 3 to this letter defending ISDS as well as this EU Commission report).  ISDS may have allowed some foreign investors to unjustly avoid liability for their actions, but it is hard to know (and Hamby’s article cannot prove) that such cases represent a majority, or even a meaningful percentage, of overall ISDS actions.
  •  I don’t have a problem with Hamby reporting on these cases where it seems ISDS has been abused.  But I think it is important to keep the larger context of ISDS in mind.  What would be the impact of not having ISDS at all?  Would it make cross-border investment less common?  A lot less common?  Would the elimination of ISDS result in more corruption as foreign investors feel a need to pay protection money to host countries rather than resort to legal means?  Would the elimination of ISDS result in simply more cross-border investment among “rich” countries with well-developed domestic legal systems such as the US and Europe to the exclusion of “poor” countries with developing legal systems?  In other words, ISDS may be bad in many ways, and much abused (although I doubt the abuse is as common as Hamby intimates), but would eliminating ISDS be worse?

I am not an uncritical cheerleader for ISDS. I am doubtful, for instance, that ISDS adds much to the (now pretty much dead) proposed Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US.  And I have questioned the constitutionality under US law of the ICSID Convention’s requirement of automatic enforcement of ISDS awards.   But I do feel ISDS critics should eventually have to answer the question: If not ISDS, then what? And will that non-ISDS future be better or worse? Hopefully, one of Hamby’s remaining three parts will address this important policy issue.

China’s Vice-Minister for Foreign Affairs Casually Slanders the South China Sea Arbitral Tribunal

by Julian Ku

I have been trying to move on from writing about the blockbuster UN Convention on the Law of the Sea arbitral award on the South China Sea.  As our readers know, I have written way too much on this topic lately.  But the Chinese government’s outrageous statements criticizing the award deserve one last post from me before I head out for a South China Sea-free vacation this summer.

In particular, I wanted to turn our readers’ focus to statements such as those made by China’s Vice-Minister for Foreign Affairs, Liu Zhenmin, shortly after the award was released.  In his remarks denigrating the arbitral tribunal, Liu implied that the arbitrators may have been bribed to adopt the views of the Philippines in the award.  Below is an excerpt of a transcript of his remarks:

Besides, who supported the Arbitral Tribunal? The arbitrators are paid by certain parties, but who? Maybe by the Philippines or other countries. This system is completely different from the ICJ or the ITLOS.

Judges of the ICJ or the ITLOS receive salaries from the UN for the sake of independence and impartiality. But these five judges of the Arbitral Tribunal are doing it for a profit, and their payments come from the Philippines and probably others, too. We are unsure about the details but they do provide paid services.

These comments are outrageous on so many levels.   Liu knows, or should know, that the arbitrators were paid by the government of the Philippines.  The tribunal announced publicly in its Rules of Procedure Article 31-33 that it was exercising its treaty powers under Article 7 of Annex VII to UNCLOS to require payment from both parties. But Liu also knows that the only reason the arbitrators received all of their compensation from the Phillippines government is because China refused to participate and refused to pay its share. If China had actually showed up, it would have been obligated under Article 7 of UNCLOS Annex VII to pay half of the fees.  There is no evidence, and Liu cites none, that any government other than the Philippines paid the arbitrators.  Liu also conveniently fails to mention his own government’s failure to pay its fair share.

Such payments are almost always made in advance of the award being issued, or even before the proceedings begin.  In other words, the payments could not influence the award’s contents because the Philippines did not know the content of the award before they made their payments.

This manner of compensating arbitrators is so standard and unremarkable that China’s own leading commercial arbitration organization, CIETAC, allows in Rule III.C.1 for one party to pay fees for the entire arbitration even if the other party does not show up and refuses to pay its own share.   This is essentially the situation that the Philippines found itself in.  It could continue to demand that the Tribunal seek money from China for its share of the expenses, or it could pay up. It chose to pay China’s share as well, and (as a reward) is now being lambasted by China for doing so.

Vice-Minister Liu is not a party hack who doesn’t know anything about arbitration.  He is, in fact, on the roster of arbitrators available for appointment by the Permanent Court of Arbitration and he is a arbitrator of the aforementioned CIETAC.  In other words, Liu knows exactly how arbitration works, and he is feigning ignorance in order to defame the character of the UNCLOS arbitrators.

In the same press conference, Liu also claimed that UNCLOS arbitration is some sort of aberration that has never happened before, unlike the more established ICJ or ITLOS systems.  On this point, Liu is flatly incorrect. In fact, there have already been seven UNCLOS arbitrations convened under the exact same rules that were applied to the Philippines/China arbitration.  In fact, as Liu well knows, the Chinese government freely chose arbitration instead of the ICJ or ITLOS for any dispute settlement under UNCLOS.

When acceding to UNCLOS, China could have chosen under Article 287 to specify the ICJ or ITLOS as its preferred forum for dispute settlement.  It did not do so, thereby forcing any dispute involving China to be sent to UNCLOS arbitration pursuant to Article 287(5).  In other words, the Chinese government made a conscious choice to avoid the ICJ and ITLOS for disputes arising under UNCLOS.  It is astounding for one of China’s leading diplomats to denigrate the integrity of a system of dispute settlement that China freely chose and in fact demanded.

Liu’s borderline defamatory remarks matter even if China and the Philippines eventually work out a settlement of their dispute.  Liu has knowingly denigrated the integrity of five arbitrators – three of whom continue to sit on the International Tribunal for the Law of the Sea – using facts he almost certainly knows are false. As the esteemed Professor Jerome Cohen of NYU has noted, in many jurisdictions, this could be enough to constitute defamation or slander.  Since Liu would have immunity for his remarks, perhaps the softer sanctions could be imposed, such as demanding his resignation from the PCA’s roster of arbitrators or perhaps his removal from the position as an Associate Member of UNIDROIT.  At the very least, this sort of casual character assassination should not be forgotten nor forgiven.

Assessing the Fallout from the South China Sea Award

by Julian Ku

In addition to my posts here (see below), I have several  pieces over the last week discussing different aspects of the South China Sea award up at various outlets across the web universe (I know, I know, I need to stop writing about this topic, but indulge me just a little longer).  To briefly recap my various takes, here is a quick summary:

As a legal matter, China lost every substantive issue before the South China Sea arbitral tribunal.  I argued here at Lawfare that the award “dramatically widens” the scope of future more aggressive U.S. freedom of navigation operations by, for instance, eliminating any legal basis for a Chinese territorial sea around its artificial island on Mischief Reef.  Since that reef is also within the Philippines’ exclusive economic zone, the U.S. Navy has (as a legal matter) carte blanche to sail or fly within 500 meters of what is now an artificial island in clear violation of Philippines’ rights under UNCLOS.

On the other hand, I warned here in The National Interest that the arbitral award does not require China to leave the South China Sea or the Spratlys in particular.  The award leaves open the legal possibility for China to claim a series of 12 nautical mile territorial seas around various rocks in the island group. This means that even in China complied with the award, it would have the legal right to maintain a robust presence there.

Taking a step back, I also blamed China’s government (in this piece for Quartz) for exacerbating the negative impact of the award by refusing the participate in the proceedings and then starting a global media war against it.  This drew much more attention to the award than would have otherwise been the case.

Finally, over at Foreign Policy, I offered a very tough critique of the role of Chinese international law scholars in bolstering the Chinese government’s claim that it can legally ignore the arbitration.  It is not so much that Chinese international legal scholars were wrong, but that their unanimity weakens their long-term credibility on the global stage.  I contrast the unanimity within China’s academic community with the much-divided U.S. academic reaction to the U.S. government’s refusal to comply with the ICJ’s Nicaragua judgment in 1986.

For any Chinese-language readers out there, I have been engaging in a debate (thanks to the fabulous translation work of my student Weitao Chen) at the Financial Times (Chinese edition) with Professor Liu Haiyang on China’s obligation under UNCLOS Article 288(4) to accept the arbitral tribunal’s determination of its own jurisdiction. Here was my initial essay, here is Prof. Liu’s response, and here is my rebuttal.  Annoyingly, it appears my initial essay has been censored in China, which must mean I am making good arguments!

I am not done with discussing this award, but I do need to get a life at some point. I am also trying to incorporate all of this into a larger project on China’s overall relationship with international law.  Certainly, this whole dispute will be a significant chapter in my book!

Will Today’s Blockbuster South China Sea Award Save or Destroy UNCLOS Dispute Settlement?

by Julian Ku

I have been mildly obsessed with the dispute between the Philippines and China for over three years now. It touches on so many areas of my research interest: international courts, China, and the UN Convention of the Law of the Sea. So I am almost sad that the dispute, at least for legal purposes, finally ended today with the arbitral tribunal’s sweeping award in favor of the Philippines.

Since the beginning of the arbitration process, I have wondered what the impact of China’s boycott would be on the future viability of the UNCLOS system of dispute settlement. For the first two years of the dispute, I was skeptical that China would suffer any meaningful damage from defying the UNCLOS arbitral system. Thus, I wondered if, combined with Russia’s almost cavalier defiance of an ITLOS proceeding involving Greenpeace, the end result in this process would be a toothless UNCLOS dispute settlement process of little value or significance. This was one of the reasons I sharply criticized the Philippines for adopting a fruitless “lawfare” strategy.

Time will tell, but early reviews point to me being wrong. China is much more vulnerable to “shamefare” than I had imagined. The evidence for China’s vulnerability lies, I think, in the extraordinary over-the-top global public relations campaign to denigrate and delegitimize the award before it was even issued. If China thought the award would have little impact, it would not have dragooned its diplomatic service, its state-run media, and even its civil society into a huge, sometimes nasty PR effort against the award.

Still, the game must run its course. The key is how other nations not named the Philippines or the U.S. react to the award. If most key nations, including China’s regional neighbors, follow the line set out by the U.S. and call upon China to comply with the award, then China’s isolation on this issue will be significant.   The G-7 is expected to follow this path, and it is possible that Vietnam, Malaysia, Singapore, and Indonesia will do so as well. If South Korea, Australia, and India can also be brought on board, then China will have suffered a diplomatic as well as a legal defeat. Why? Because any aggressive Chinese action to respond to the award, such as by militarizing its artificial islands or even building new ones, will be framed as a further violation of China’s international obligations. China will have its own mini-Crimea crisis, and it will be hard for it to gain legitimacy for its actions.

On the other hand, no matter how many government press releases denounce China, it is hard to imagine China ever complying with the award. It can’t, even if it wanted to, since it has locked itself into a rigid public position against the award in front of the world and its own people. So the arbitral award will go unenforced and unimplemented for the foreseeable future. No matter how you slice it, an unenforced award is not a sign of a strong and effective legal system. UNCLOS dispute settlement can be ignored, not without cost, but certainly it can be ignored.

On balance, however, the UNCLOS system seems to have been strengthened by today’s ruling. The U.S. and other key countries seem to have rallied in support of it, and the tribunal’s findings seem to carry a fair amount of credibility with most governments. Indeed, the U.S. now seems to endorse the UNCLOS dispute settlement system with more vigor than one might expect for a non-party. It seems that UNCLOS dispute settlement will survive in a post-Philippines v. China world after all.

How Not to Lie Convincingly About the ICC

by Kevin Jon Heller

Did you hear the one about Judge de Gurmendi, the President of the ICC, taking bribes for from 2004 on to ensure Omar al-Bashir’s indictment?

The president of the International Criminal Court (ICC) is facing calls to resign after it emerged that she may have received financial rewards said to be in millions of dollars to ensure the indictment of Sudanese President Omar al Bashir.

Information reaching The London Evening Post here say that between 2004 and 2015, Argentinian-born ICC President Judge Silvia Alejandra Fernández de Gurmendi allegedly received into her private bank accounts at Banco Popular in the Virgin Islands, the First Caribbean Bank in the Bahamas and the Congregation B’nai Israel unexplained funds mounting to over US$17million that was allegedly used to bribe witnesses that enabled the ICC to indict the Sudanese leader.

The funds are alleged to have been channelled through Judge de Gurmendi’s accounts by Barting Holding Ltd, Atlantic Corporation, Genesis International Holdings and Napex International, all of which are offshore financial companies, who allegedly made wire transfers ranging from US$150,000-US$250,000 to the judge’s bank accounts. It is alleged that these funds were made available to Judge de Gurmendi during the time that President Bashir was under investigation and the ICC was looking for evidence to indict him.

It has been further alleged that funds channelled through Judge de Gurmendi’s accounts were allegedly distributed by her to groups in Darfur including the Sudan Liberation Movement, formerly the Darfur Liberation Front founded by Abdul Wahid al Nur and others in 2002. Appointed ICC President in March last year, de Gurmendi is alleged to have used the funds to ‘recruit, coach and fake evidence and witnesses to testify against President Bashir’.

You have to admire the skill of the bribers. Judge de Gurmendi didn’t become a judge at the ICC until 2010 — long after the first arrest warrant for al-Bashir was issued.

NOTE: Judge de Gurmendi was the head of the Jurisdiction, Complementarity, and Cooperation Division in the OTP from 2003-2006. But nearly four years passed from the end of her tenure to the issuance of the first arrest warrant for Bashir. So my sarcasm above stands.

Mark Kersten’s New Book on the ICC

by Kevin Jon Heller

I am delighted to announce that OUP has just published Mark Kersten’s new bookJustice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. Here is the press’s description:

What happens when the international community simultaneously pursues peace and justice in response to ongoing conflicts? What are the effects of interventions by the International Criminal Court (ICC) on the wars in which the institution intervenes? Is holding perpetrators of mass atrocities accountable a help or hindrance to conflict resolution? This book offers an in-depth examination of the effects of interventions by the ICC on peace, justice and conflict processes. The ‘peace versus justice’ debate, wherein it is argued that the ICC has either positive or negative effects on ‘peace’, has spawned in response to the Court’s propensity to intervene in conflicts as they still rage. This book is a response to, and a critical engagement with, this debate.

Building on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution, and negotiation theory, the book develops a novel analytical framework to study the Court’s effects on peace, justice, and conflict processes. This framework is applied to two cases: Libya and northern Uganda. Drawing on extensive fieldwork, the core of the book examines the empirical effects of the ICC on each case. The book also examines why the ICC has the effects that it does, delineating the relationship between the interests of states that refer situations to the Court and the ICC’s institutional interests, arguing that the negotiation of these interests determines which side of a conflict the ICC targets and thus its effects on peace, justice, and conflict processes.

While the effects of the ICC’s interventions are ultimately and inevitably mixed, the book makes a unique contribution to the empirical record on ICC interventions and presents a novel and sophisticated means of studying, analyzing, and understanding the effects of the Court’s interventions in Libya, northern Uganda – and beyond.

I’ve been following (and promoting) Mark’s work for a long time — since he was a PhD student at the LSE and had just started the blog Justice in Conflict. The blog has turned into a major player in the world of international criminal law, and I have no doubt that Mark’s book will have a significant impact on the field, as well. I’ve had the pleasure of reading it, and it’s excellent.

Buy Kersten! You’ll learn something and help better society, because Mark says that “OUP has agreed to make up to 200 copies of the book available, with all royalties I earn from sales of the book being used to pay for those copies to be shipped to libraries and universities across Africa, especially to those in ICC-affected countries.”

Does the International Court of Justice Have Jurisdiction over Iran’s Claim Against the U.S? Actually, Maybe It Does

by Julian Ku

After about two months of public statements threatening to take the U.S. to the International Court of Justice over frozen Iranian assets, Iran finally instituted ICJ proceedings yesterday under the 1955 U.S.-Iran Treaty of Amity, Economic Relations, and Consular Rights.  Iran alleges in its complaint that the U.S. has violated the treaty’s obligations by taking Iranian government assets and redistributing them to families of U.S. marines killed in the 1983 Beirut bombing.  In April, the U.S. Supreme Court upheld the constitutionality of a 2012 congressional statute authorizing the seizure of Iranian government assets for distribution to the plaintiffs.

Iran argues that the U.S. government violated the 1955 Treaty in numerous ways by its failure to recognize the separate legal identity of the Iranian Central Bank and other state-owned companies and its failure to provide protection for such property as required by international law.  Iran further alleges that the U.S. conducted an expropriation of Iranian assets, while also denying access for those legal entities in US. court, while at the same time failing to respect their sovereign immunity, as well as other treaty violations.

Under paragraph 2 of Article 21 of the Treaty,


Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

I have previously tweeted on more than one occasion that the ICJ would have no jurisdiction, but I had forgotten about this provision (luckily someone reminded me on Twittter).  Believe it or not, Article 21 of the U.S-Iran Friendship Treaty has already been the basis for two prior ICJ proceedings: the U.S. case against Iran’s seizure of the U.S. embassy and its personnel (1979) and the Iranian case against U.S. actions against its Iranian oil platforms in 1992.  So it is clear that Article 21(2) is a legitimate basis for jurisdiction, and the ICJ held in both prior cases that this provision conferred jurisdiction upon it.

On the other hand, Article 21 limits a party’s claim to a “dispute…as to the interpretation or application of the present Treaty.”  This means Iran will have to limit its claim to violations of the treaty, rather than violations of general international law.  This is harder than it looks.  In the 2003 Oil Platforms judgment, the ICJ found that it had jurisdiction, and that U.S. attacks on the oil platforms were not justified on self defense. The ICJ nonetheless found that Iran’s claim that U.S. attacks on its oil platforms did not breach the “freedom of commerce” between the two nations, since no such commerce in oil was occurring at that time.  So the U.S. lost on jurisdiction, but won on the merits.

So I am going to reverse my earlier views and tentatively guess that the ICJ will find that it has jurisdiction over this case.  In particular, I think Iran will have a good argument that Article IV(2), which requires the U.S. give Iranian nationals’ property “the most constant protection and security within the territories of the other High Contracting Party, in no case less than that required by international law….” (emphasis added). I am not sure Iran is right that the U.S. violated Article IV(2), but I think Iran has a plausible argument that it could have been violated. That should be enough for jurisdiction.

I nonetheless expect the U.S. government to make a big fight over jurisdiction and admissibility. Even if it loses, the U.S. can slow down these proceedings tremendously by battling over jurisdiction and narrowing which claims Iran can bring forward.  This strategy worked very well in the Oil Platforms case.  Iran filed the proceedings in 1992. The ICJ did not issue an determination on jurisdiction until 1996.  The ICJ then took another seven years to finally issue a judgment on the merits in 2003 (which the U.S. won anyway).  With any luck, the U.S. could avoid a merits judgment here until 2027.

I think this case might move along more briskly, but it will still take a while.  And I think the slow wheels of international justice might work out for both sides here. Iran’s leaders can say they are doing something, but it will not result in any immediate judgment that will put the U.S. on the spot.  The U.S. can drag this out, and it might even prevail on the merits (I have no strong opinion on that complex issue yet).

I do not expect the U.S., however, to boycott of the entire proceedings, as China has been doing in the Philippines South China Sea arbitration.  For one thing, there is really no need, as I explained above, since we could be in for a 10 year wait for a judgment. For another, the U.S. needs to show that it plays nice with international law and courts to bolster its own calls on China to abide by the South China Sea arbitration.

Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

I read with great interest Jens’s excellent post about whether the US attack on the MSF hospital in Kunduz was a war crime. I agree with much of what he says, particularly about the complexity of that seemingly innocuous word “intent.” But I am not completely convinced by his argument that reading intent in the Rome Statute to include mental states other than purpose or dolus directus would necessarily collapse the distinction between the war crime of intentionally directing attacks against a civilian population and the war crime of launching a disproportionate attack. Here is the crux of Jens’s argument:

In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

I don’t want to focus on recklessness, because it isn’t criminalised by the Rome Statute. The lowest default mental element in Art. 30 is knowledge, which applies to consequence and circumstance elements — “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” So Jens’s real worry, it seems to me, is that reading the “intentionally” in “intentionally directing attacks against a civilian population” to include knowledge would mean a proportionate attack could be prosecuted as an intentional attack on a civilian population as long as the attacker was aware that civilians would be harmed “in the ordinary course of events” — a state of affairs that will almost always be the case, given that an attacker will engage in a proportionality assessment only when he knows that civilians will be incidentally affected by the planned attack on a military objective.

I’m not sure I agree. As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

To be sure, this analysis is probably not watertight. But I think it’s based on the best interpretation of the war crime of “intentionally directing attacks against a civilian population.” The key, in my view, is that the crime does not contain a consequence element — no harm to civilians is necessary. If the war crime was “intentionally directing attacks that cause harm to a civilian population,” the analysis would be very different: the crime would then consist of three material elements: a conduct element (intentionally directing an attack), a consequence element (harming a group of people), and a circumstance element (the harmed group of people qualifying as a civilian population).The applicable mental elements would then be quite different: the defendant would commit the war crime if he (1) intentionally launched an attack that harmed a civilian population, (2) knowing that the attack would harm a specific group of people, and (3) knowing that the harmed group of people qualified as a civilian population. And in that case, a proportionate attack on a legitimate military objective would qualify as “intentionally directing attacks that harm a civilian population” — a nonsensical outcome, for all the reason Jens mentions.

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Your thoughts, Jens?

NOTE: This post generally takes the same position Adil Haque took in a series of comments on Jens’s post.

The $50 BILLION Treaty Interpretation Question: Dutch Court Sets Aside Yukos Award Against Russia

by Julian Ku

Russia scored a huge victory today when the Hague District Court in the Netherlands court set aside a $50 billion arbitral award in favor of former shareholders of Yukos.  The $50 billion Yukos award (that’s BILLION, with a “B”),  is the largest arbitration award ever issued, was issued under the authority of the Energy Charter Treaty.  The arbitral tribunal (hosted at the Permanent Court of Arbitration) had found that the Russian government was liable for expropriating the former shareholders of Yukos through use of tax laws, harassment, criminal punishments, and other government measure without providing adequate compensation.

The Hague District Court set aside the award on jurisdictional grounds.  According to this English-language summary, the Dutch court held that Russia was not bound to arbitration under the Energy Charter Treaty because it never ratified the ECT.  The arbitral tribunal held in its interim award that Russia was bound under Article 45, which calls for provisional application of the treaty pending ratification.  But the Hague District Court disagreed.

Here is Article 45(1) and (2)(a):

(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.

(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository.

Russia did not make such an Article 45(2) declaration, but the Dutch Court held that Article 45(1) still acted as a jurisdictional bar on the arbitral tribunal’s jurisdiction because it requires the arbitral tribunal to go back and assess whether the dispute resolution provision (Article 26) of the Energy Charter treaty is “inconsistent” with Russia’s “constitution, laws or regulations.”  the Dutch court concluded that Russia’s constitution does not permit it to be bound to an arbitration assessing the legality of its tax laws without the consent of its legislature.

I don’t have a strong view on who is right here. I will note that Russia is represented by the well-known New York law firm Cleary Gottlieb (where I once toiled as a young summer associate) and that Russia mustered an impressively long list of international law experts on its behalf such as Martti Koskenniemi, Alain Pellet, and Gerhard Hafner (to list just a few).  The claimants had their own impressive list including James Crawford and my former Yale professor Michael Reisman.  This is a truly difficult treaty interpretation question, which just happens to have $50 billion riding on it.  So we can be sure there will be an appeal of the Hague District Court’s ruling.

It is worth noting that also that Russia has a lot riding on this case, but it also decided to litigate this matter fully even though it believes the tribunal has no jurisdiction.  This turns out to be a smart move, since they seem to have won (for now) and because not litigating would have still subjected them to lots of enforcement actions against them around the world. So litigation seems to have worked out for Russia this time. I wonder if that will encourage Russia  to try its hand at litigation in future cases as well?