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International Criminal Law

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…

The ICC, Continuing Crimes, and Lago Agrio

by Kevin Jon Heller

Lawyers for the Lago Agrio plaintiffs have filed a communication with the ICC asking the OTP to investigate Chevron officials for alleged crimes against humanity in connection with the company’s “rainforest Chernobyl” in Ecuador. Ecuador ratified the Rome Statute in 2002.

Regular readers know my sympathies — both ethical and legal — lie squarely with the Lago Agrio plaintiffs. The only thing more unconscionable than Chevron’s destruction of the rainforest in Ecuador is its willingness to lie and manufacture evidence in order to avoid paying for its destruction. In a world with better criminal laws, I have no doubt that the CEO of Chevron and everyone else involved in the company’s misdeeds would be serving long prison sentences somewhere.

But we do not live in a world with better laws, and unfortunately the Lago Agrio plaintiffs’ communication faces a steep uphill battle. To begin with, the communication is not quite sure what Chevron has done that qualifies as a crime against humanity. It oscillates — very confusingly — between failing to pay the damages award in Ecuador (p. 19), attempting to cover up the extent of the pollution in Ecuador (p. 23), engaging in unsavoury litigation practices (p. 25), maintaining the polluted conditions (p. 36), and causing the pollution in the first place (p. 36). Those are, of course, very different arguments.

One thing is clear: the ICC could not prosecute Chevron’s deliberate dumping of more than 18 billion gallons of toxic waste-water into the Lago Agrio region, because that dumping occurred long before 1 July 2002, when the Rome Statue entered into force. That’s too bad, because I think a strong case can be made that intentional pollution of an area occupied by civilians could, in the right circumstances, qualify as a number of crimes against humanity — from forcible transfer to persecution to “other inhumane acts.” As the plaintiffs rightly note (p. 27), an “attack on a civilian population” does not have to involve physical violence.

That said, the communication seems to suggest that the plaintiffs view the contamination as some kind of continuing crime. It claims (p. 40), for example, that the potential crimes against humanity involved in the dumping “continue even today.” The idea seems to be that those crimes will continue until Chevron remediates the pollution — similar to the idea, promoted by various scholars, that Israel’s illegal transfer of its civilians into the West Bank will qualify as a crime against humanity until such time as the settlements are disbanded or that enforced disappearances continue until the responsible government identifies the fate of the victims. It is an open question whether the ICC will even recognise continuing crimes, as the ICTR has. I’m skeptical, given the drafters of the Rome Statute’s quite deliberate decision not to give the ICC retroactive jurisdiction. Few Latin American governments would have ratified the Rome Statute if they knew that their actions during the Dirty War would be open to judicial scrutiny.

But let’s assume the ICC will recognise continuing crimes. Would that mean the Lago Agrio plaintiffs have a case? It’s an interesting question. As noted above, it’s possible that Chevron’s deliberate pollution of the Lago Agrio region qualified as the crime against humanity of forcible transfer; “forcible” doesn’t require physical force and the defendant(s) do not have to intend to drive people fro where they are lawfully entitled to be. (They simply have to be virtually certain that will be the result.) So there is at least an argument that Chevron is responsible for forcible transfer until it cleans up the region to the point where displaced residents can return to their homes. But I can’t see the ICC accepting that argument, if only because of the potential implications — there are probably dozens of situations in member-states in which pollution predictably drove people from their homes and continues to prevent their return. That’s the problem with “continuing crimes”: they simply throw open the courthouse door in a manner the drafters of the Rome Statute were unlikely to have intended.

But that is not the only problem with the communication. Even if the ICC recognised continuing crimes, it is not clear how the current crop of Chevron officials could be held responsible for the (continuing) forcible transfer of people from Lago Agrio. Aiding and abetting would seem to be the most likely mode of participation, given that those officials presumably had nothing to do with the dumping of the waste (which was done by Texaco, which Chevron later acquired). Not paying the judgment and litigation misconduct, though reprehensible, would hardly qualify as aiding and abetting the forcible transfer. (I suppose one could argue paying the plaintiffs would make it easier for them to return home, but I can’t see the ICC convicting someone on such an attenuated basis.) The only real argument would be that Chevron’s current officials are aiding and abetting the continuing forcible transfer by failing to remediate the environmental damage in Lago Agrio. That is not a nonsensical idea, but it seems unlikely to succeed. Art. 25(3)(c) aiding and abetting would almost certainly be off the table, because it would require the Chevron officials to subjectively intend for people in Lago Agrio not to be able to return to their homes. No matter what you think of Chevron — and I obviously think precious little — that would be nearly impossible to prove. More likely is Art. 25(3)(d)’s version of aiding and abetting, contributing to a group crime, which would “only” require the OTP to prove that Chevron officials contributed to the forcible transfer by impeding remediation despite knowing that Chevron intended for the displacement to continue. Again, no matter what you think of Chevron’s remediation efforts (much of which was fraudulent), that’s a stretch. Not impossible, to be sure. But a stretch.

In short, unless the ICC is willing to recognise continuing crimes and adopt a very capacious understanding of aiding and abetting, it is difficult to see the OTP opening an investigation into the Lago Agrio situation. All of the other crimes against humanity identified by the Lago Agrio plaintiffs — murder, persecution, other inhumane acts — clearly took place, if they took place at all, long before 1 July 2002. And the current Chevron officials can hardly be held accountable for them.

Lawfare Podcast on al-Bahlul

by Kevin Jon Heller

While in DC last week for the ICC/Palestine event at George Mason — I’ll post a link to the video when it becomes available — I had the pleasure of sitting down with Lawfare’s Wells Bennet and Just Security’s Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended that morning. You can listen to the podcast at Lawfare here; Steve did most of the talking, because he understands the constitutional issues in the case better than anyone, but I weighed in a few times on the international-law side. I hope you enjoy it — and my thanks to Wells for inviting me to participate.

Mark Kersten on the Terror Attacks in Canada

by Kevin Jon Heller

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:

The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.

Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.

Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.

ICC and Palestine Event at George Mason

by Kevin Jon Heller

The event at George Mason University on the ICC and Palestine is today. Here, again, is the flyer:

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If you cannot attend, the live-stream link is here.

Guest Post: Removing the cloak of immunity – the Director of Public Prosecutions for England and Wales accepts no immunity from criminal investigation into torture

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

Last week saw the discontinuation of alleged Bahraini torture survivor FF’s judicial review of the Director of Public Prosecutions for England and Wales (DPP) decision not to authorise a criminal investigation into the alleged involvement of Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, in torturing persons involved in the political protests in Bahrain in April 2011. Unfortunately, since the DPP withdrew from the case just prior to the court hearing there does not appear to be a final judgement, only this 2013 directions hearing judgement which  sets out the parties’ submissions.

As background, FF took part in Bahraini political protests in February and March 2011 which resulted in him being allegedly badly beaten by police and held without charge. In July 2012 a dossier prepared by the European Center for Constitutional and Human Rights (ECCHR) alleged that Prince Nasser was directly involved in the torture of detained prisoners linked to the same political protests FF participated in. In addition to being the son of the King of Bahrain, Prince Nasser also holds the position of Commander of the Royal Guard.

The ECCHR’s dossier was handed to the British police which in turn lead the Crown Prosecution Service for England and Wales (CPS) to indicate in August 2012 that Prince Nasser would enjoy personal immunity under Section 20 of the State of Immunity Act 1978 since Prince Nasser was a member of the Bahraini royal household and/or functional immunity pursuant to section 1 of the same act in relation to any conduct in his role as Commander of the Royal Guard.

Following a request for review of the CPS’s decision, the CPS Special Crime and Counter Terrorism division indicated in September and October 2012 that Prince Nasser did not enjoy personal immunity under Section 20 (1) (b) of the 1978 Act as his household was independent from that of his father, the King of Bahrain. It maintained however, that Prince Nasser still enjoyed functional immunity under Section 1 of the 1978 Act based on his position as Commander of the Royal Guard of Bahrain

FF sought judicial review of the CPS’s decision submitting that Section 1 of the 1978 Act does not apply to criminal proceedings. He cited in support Pinochet III and Jones v Saudi Arabia, both of which he argued supported his contention that public officials of foreign states have no functional immunity from criminal process in relation to the international crime of torture.  FF argued therefore that prosecution of Prince Nasser for torture committed in Bahrain would be possible in UK courts pursuant to the extraterritorial criminal jurisdiction under Section 134 of the Criminal Justice Act 1988. In January 2013 FF was granted judicial review permission.

As mentioned above, the matter was due to be heard in the High Court of England and Wales on 7 October 2014, roughly one year and 10 months after permission for judicial review was granted. However shortly before, the DPP appears to have accepted that Prince Nasser does not enjoy immunity from torture allegations and withdrew from the case.

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Panel at George Mason on the ICC and Palestine

by Kevin Jon Heller

I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent — David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer:

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I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.

Guest Post: Kenyatta (Finally) Has to Go Back to The Hague

by Abel Knottnerus

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

The case against Kenyan President Uhuru Kenyatta has reached a critical juncture. Almost six months ago, Trial Chamber V(B) adjourned the commencement of his trial until 7 October “for the specific purpose of providing an opportunity for compliance by the Kenyan Government with outstanding cooperation requests” (para. 2). Three weeks ago, however, the Prosecution submitted that the start of Kenyatta’s trial should again be adjourned, because the Kenyan government would still not have fulfilled its cooperation requirements. In response, the Chamber decided on 19 September that it will hold two status conferences on 7 and 8 October to discuss “the status of cooperation between the Prosecution and the Kenyan government” (para. 11).

These conferences will determine the future, if any, of Kenyatta’s trial. Yet, before this ‘do-or-die’ moment, the Chamber first had to decide on another sensitive matter, namely whether Kenyatta would have to be physically present in The Hague for the second of the two status conferences. On Tuesday, the Chamber ruled, by Majority (Judge Ozaki partially dissenting), that Kenyatta indeed has to travel to The Hague. Assuming that Kenyatta will not disobey this direct order, this will be the first time that a sitting Head of State will appear before the ICC.

Kenyatta’s excusal request and the Prosecution’s response

In the initial decision announcing the status conferences, the Trial Chamber stated that “given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on 8 October” (para. 12). Despite this clear language, Kenyatta’s defence requested the Chamber last Thursday to excuse Kenyatta from attending. Based on Rule 134quater of the Rules of Procedure and Evidence the defence argued that Kenyatta has to fulfil extraordinary public duties at the highest national level on the scheduled date, because he is due to attend the Northern Corridor Infrastructure Summit in Kampala, Uganda. The defence added that this meeting was arranged prior to the Chamber’s decision to convene the status conference and that Kenyatta would therefore also not be able to attend by video-link.

In the alternative, the defence requested to reschedule the status conference and that on this new date Kenyatta would be allowed to be present through video-link in accordance with Rule 134bis. Instead of travelling to The Hague, a ‘skype session’ would enable Kenyatta “to perform his extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the Court” (para. 13).

In response to the defence’s request, the Prosecution submitted on Monday that Rules 134bis and quater are not applicable at this stage of the proceedings because Kenyatta’s trial has not yet commenced. According to the Prosecution, the Trial Chamber would have the (inherent) discretion to reschedule the status conference as well as to permit Kenyatta to attend by video-link. While not opposing the former option, the Prosecution as well as the Legal Representative for Victims (LRV) argued that the defence had given no clear reasons for attendance by video-link on a later date, other than the distance that the accused would have to travel and his status as Head of State.

The (in)applicability of Rules 134quater and bis

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The Invention of the Khorasan Group and Non-Imminent Imminence

by Kevin Jon Heller

I will be back blogging regularly soon, but I want to call readers’ attention to a phenomenal new article at the Intercept by Glenn Greenwald and Murtaza Hussain about how the US government has cynically manipulated public fears of terrorism in order to justify its bombing campaign in Syria. Recall that Samantha Power — the UN Ambassador formerly known as a progressive — invoked the scary spectre of the Khorasan Group in her letter to the Security Council concerning the US’s supposed right to bomb terrorists in Syria in “self-defence.” As it turns out, not only is there literally no evidence that the Khorasan Group intends to launch an imminent attack on US interests — unless “imminent” is defined as “sometime before the Rapture” — there is also very little evidence that the Khorasan Group actually exists in a form that could threaten the US. Here is a snippet from the article on the latter point:

Even more remarkable, it turns out the very existence of an actual “Khorasan Group” was to some degree an invention of the American government. NBC’s Engel, the day after he reported on the U.S. Government’s claims about the group for Nightly News, seemed to have serious second thoughts about the group’s existence, tweeting “Syrian activists telling us they’ve never heard of Khorosan or its leader.”

Indeed, a NEXIS search for the group found almost no mentions of its name prior to the September 13 AP article based on anonymous officials. There was one oblique reference to it in a July 31 CNN op-ed by Peter Bergen. The other mention was an article in the LA Times from two weeks earlier about Pakistan which mentioned the group’s name as something quite different than how it’s being used now: as “the intelligence wing of the powerful Pakistani Taliban faction led by Hafiz Gul Bahadur.” Tim Shorrock noted that the name appears in a 2011 hacked Stratfor email published by WikiLeaks, referencing a Dawn article that depicts them as a Pakistan-based group which was fighting against and “expelled by” (not “led by”) Bahadur.

There are serious questions about whether the Khorasan Group even exists in any meaningful or identifiable manner. Aki Peritz, a CIA counterterrorism official until 2009, told Time: “I’d certainly never heard of this group while working at the agency,” while Obama’s former U.S. ambassador to Syria Robert Ford said: ”We used the term [Khorasan] inside the government, we don’t know where it came from…. All I know is that they don’t call themselves that.”

I don’t know for a fact that the Khorasan Group doesn’t exist. But it is profoundly troubling that the Obama administration has provided no evidence that it does — especially given that its case for the international legality of bombing Syria is based so heavily on the supposed threat the Khorasan Group poses to the “homeland.”

And let’s not forget that the Obama administration is doing everything it can to denude the concept of “self-defence” of all meaning. Here is the Intercept article on the “imminent” threat posed to the US by the maybe-existing Khorasan Group:

One senior American official on Wednesday described the Khorasan plotting as “aspirational” and said that there did not yet seem to be a concrete plan in the works.

Literally within a matter of days, we went from “perhaps in its final stages of planning its attack” (CNN) to “plotting as ‘aspirational’” and “there did not yet seem to be a concrete plan in the works” (NYT).

Late last week, Associated Press’ Ken Dilanian – the first to unveil the new Khorasan Product in mid-September – published a new story explaining that just days after bombing “Khorasan” targets in Syria, high-ranking U.S. officials seemingly backed off all their previous claims of an “imminent” threat from the group. Headlined “U.S. Officials Offer More Nuanced Take on Khorasan Threat,” it noted that “several U.S. officials told reporters this week that the group was in the final stages of planning an attack on the West, leaving the impression that such an attack was about to happen.” But now:

Senior U.S. officials offered a more nuanced picture Thursday of the threat they believe is posed by an al-Qaida cell in Syria targeted in military strikes this week, even as they defended the decision to attack the militants.

James Comey, the FBI director, and Rear Adm. John Kirby, the Pentagon spokesman, each acknowledged that the U.S. did not have precise intelligence about where or when the cell, known as the Khorasan Group, would attempt to strike a Western target. . . .

Kirby, briefing reporters at the Pentagon, said, “I don’t know that we can pin that down to a day or month or week or six months….We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

Regarding claims that an attack was “imminent,” Comey said: “I don’t know exactly what that word means… ‘imminent’” — a rather consequential admission given that said imminence was used as the justification for launching military action in the first place.

According to the Obama administration, in short, the US is entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it.

The mind — and international law — reels.

Guest Post: The Crimes Against Humanity Initiative and Recent Developments towards a Treaty

by Leila Nadya Sadat and Douglas J. Pivnichny

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and the Director of the Whitney R. Harris World Law Institute. Douglas J. Pivnichny is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.]

Last month, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity. Although this post will not rehearse the reasons a treaty is needed, an eloquent case for a treaty can be found in an important 1994 article by Cherif Bassiouni.

Professor Murphy’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles for Commission’s approval. The Commission first included the topic of crimes against humanity on its Long-Term Programme of Work in 2013 on the basis of a report prepared by Professor Murphy.  This report identified four key elements a new convention should have: a definition adopting Article 7 of the Rome Statute; an obligation to criminalize crimes against humanity; robust inter-state cooperation procedures; and a clear obligation to prosecute or extradite offenders (para. 8). The report also emphasized how a new treaty would complement the Rome Statute (paras. 9-13).

The Crimes Against Humanity Intiative
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So Much for Academic Freedom at the University of Sydney

by Kevin Jon Heller

There’s been much discussion in the blogosphere about the University of Illinois’ decision to “un-hire” (read: fire) a Palestinian-American scholar who resigned a tenured position at Virginia Tech to join its faculty, a decision motivated by a series of anti-Zionist (but not anti-Semitic) tweets that made the University’s wealthy donors uncomfortable. But the rightful revulsion at Illinois’ decision (more than 5,000 academics, including me, have agreed to boycott the University until Steven Salaita’s offer of a tenured position is honoured) shouldn’t obscure the fact that Illinois is far from the only university that does not take academic freedom seriously.

Case in point:  the University of Sydney’s distressing decision — abetted by one of its faculty members — to “un-invite” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific because of pressure from the Sri Lankan military. Here’s a snippet of the Guardian‘s story, which deserves to be read in full:

The University of Sydney has withdrawn invitations for two Sri Lankan human rights organisations to an international conference at the request of the Sri Lankan military, angering campaigners.

The university is due to host a two-day event in Bangkok from Monday along with the University of Colombo, which will see delegates from around the world discuss the enhancement of human rights in the Asia Pacific region.

Delegations from the Sri Lankan military and the Sri Lankan police are expected to attend the conference. Leaked correspondence, seen by Guardian Australia, shows that these delegations had originally requested that all non-government organisations (NGOs) from Sri Lanka be uninvited, and organisers subsequently rescinded two invitations.

The civil war in Sri Lanka, in which up to 100,000 people were killed, ended in 2009. The Rajapaksa regime stands accused of war crimes for its brutal suppression of civilians in the north of the country, with both sides subject to a UN human rights council inquiry into alleged war crimes.

Australia was one of 12 countries to abstain in a UN vote for the investigation.

Guardian Australia has also seen a letter discussing the reasons for rescinding the invitations to the two NGOs sent by the conference’s director, University of Sydney associate professor Danielle Celermajer.

“With about 130 people from across the region confirmed from the conference, it would be a disaster for all members of the Sri Lankan forces, who have been at the heart of the project, to withdraw,” it states.

As the article’s reference to the UN vote indicates, Tony “Difficult Things Happen” Abbott’s administration has proven to be one of the murderous Sri Lankan government’s staunchest allies. But that’s a right-wing government for you; no surprise there. It’s absolutely appalling, though, that a major Australian university cares so little about academic freedom that it would allow the Sri Lankan military to dictate who can attend a conference it sponsors — a conference about the enforcement of human rights in the region.

Dr. Celermajer says it would be a “disaster” for the academic conference if the Sri Lankan military didn’t attend. You know what an actual disaster is? The Sri Lankan military’s systematic violation of the human rights of hundreds of thousands of Sri Lankans — the very acts that make the conference in question so necessary.

I guess it’s more important to discuss human-rights violations among the perpetrators than among those who work to end the violations. Shameful.

NOTE: You can find the powerful open letter the Sri Lanka Campaign for Peace and Justice sent to participants in the conference — ironically entitled “Enhancing Human Rights and Security in the Asia Pacific” — here. Key line: “By allowing the Sri Lankan Army to dictate who can or cannot attend, the organisers of this conference are, in effect… potentially making themselves complicit in the Sri Lankan government’s systematic attempts to suppress dissent and intimidate critical voices within civil society, and to legitimize that policy internationally. “

Mike Lewis Is Wrong About the Nature of Self-Defence

by Kevin Jon Heller

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.

Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.