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International Law in U.S. Courts

It’s High Time for the US to Conduct Complementarity As To Crimes in Afghanistan

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.]

The ICC Prosecutor announced last week that she was requesting the ICC Pre-Trial Chamber to authorize the Afghanistan Preliminary Examination moving into the Investigation stage. This would take the ICC’s Afghanistan investigation one step closer to resulting in actual cases.

We have known for quite a while that the Prosecutor was examining the situation in Afghanistan, and her past reports and press releases indicate she has been examining war crimes and crimes against humanity committed by the Taliban, Afghan government forces, and US nationals—US armed forces and CIA.

As Kevin Jon Heller notes, it will be interesting to see the US reaction to this news, yet it should hardly come as a surprise. As he also notes, the Prosecutor has been under pressure to expand her docket beyond the African continent. The US does not have anyone in the post of US War Crimes Ambassador (or head of the Office of Global Criminal Justice), so it is unclear who would lead any US response.

The US has of course one very simple way that it could react to this news, and that is to endorse the rule of law, and itself conduct any investigations into torture or ill-treatment at the hands of US nationals, be they armed forces, CIA, or contractors of either.

Under the principle of complementarity (Rome Statute art. 17), any state can avoid an ICC case proceeding by conducting a good faith investigation and/or prosecution into the same conduct. It has been high time for the US to do this, but the Prosecutor’s announcement illustrates the urgency of the US finally taking this seriously.

As a US national and a supporter of the ICC, I don’t really want to see the US locked in a showdown against the ICC. Yet, past experience (the misnamed American Servicemember Protection Act, bilateral immunity agreements, legislation allowing US forces in invade The Hague to liberate Americans in ICC custody) suggests such a confrontation is quite possible. Such an approach would not well serve either the ICC or the US, as it would amount to mere bully-tactics by the US against an institution, supported by all the US’s key allies, that is committed to ensuring rule of law for the worst crimes of concern to the international community.

Both the ICC and the US have the same interest in adhering to the rule of law, and there is a simple rule-of-law-abiding solution here: the US must undertake to do complementarity. The UK, faced with the possibility of the ICC proceeding against UK nationals for abuses committed in Iraq has been working hard to conduct complementarity; the US should do the same.

Alex Whiting raises the possibility that US conduct might not satisfy the ICC’s fairly high “gravity threshold”; yet, if the Prosecutor also includes certain “black sites” run by the CIA that were located in Rome Statute States Parties, such as Poland, Romania and Lithuania (as her announcement suggests), it is also possible that the gravity threshold will be met.  (Her announcement stated, in addition to crimes in Afghanistan, her request for authorization would include “war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”)

We should not lose sight of the fact that the ICC is not aiming this investigation solely towards US nationals, and to the extent the ICC can prosecute the much more extensive crimes committed by the Taliban or other armed groups in Afghanistan, these would be welcome developments. Afghanistan has been plagued by decades of crimes, with those pertaining to US nationals constituting just one subset of what is at issue.

Meanwhile, the US should expeditiously fill the post of US War Crimes Ambassador (head of the Office of Global Criminal Justice), with the office’s initial focus being to finally conduct complementarity to ensure that justice for crimes in Afghanistan is done, and that to the extent US nationals are implicated in wrongdoing, that it is addressed within the US legal system. The US has credible and effective military and civilian investigative capacity and court systems which can and should be utilized.

Initial Thoughts on the ICC’s Decision to Investigate Afghanistan

by Kevin Jon Heller

Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda’s announcement:

For decades, the people of Afghanistan have endured the scourge of armed conflict.  Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.  It will be for the Judges of the Court’s Pre-Trial Chamber, constituted by the Presidency, to decide whether I have satisfied them that the Statute’s legal criteria to authorise opening an investigation are fulfilled.

Given the limited temporal scope of the Court’s jurisdiction, my request for judicial authorisation will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.  The Court has no jurisdiction respecting crimes alleged to have been committed before those cut-off dates.

Assuming the PTC grants the OTP’s request — which is basically a foregone conclusion — Afghanistan will become (following Georgia) the second ICC investigation outside of Africa.

It will be very interesting to see how the US reacts to the announcement. The OTP made it clear in its 2016 preliminary-examination report that it intends to investigate crimes committed by the US military and the CIA:

211. The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2)(c)(i) and (ii) and 8(2)(e)(vi) of the Statute. Specifically:

  • Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
  • Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

212. These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred.

213. The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan. Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict.

If the US formally challenges the investigation — a big if, because it would probably see doing so as an acknowledgment of the investigation’s legitimacy — it will no doubt rely on Mike Newton’s argument in the Vanderbilt Journal of Transnational Law that the Status of Forces Agreement (SOFA) between Afghanistan and the United States precludes the ICC from exercising jurisdiction over American soldiers. (The SOFA presumably doesn’t apply to CIA operatives, who are not part of the US armed forces.) Oversimplifying a bit, Mike argues that Afghanistan has no jurisdiction that it can delegate to the ICC, because the SOFA provides that the US retains exclusive jurisdiction over crimes committed by American soldiers. I disagree with the argument, for reasons ably laid out by Roger O’Keefe and Carsten Stahn. But it is a serious argument that deserves serious consideration.

Like Dov Jacobs, I am also intrigued by the OTP’s stated intention to investigate crimes committed by the CIA in Romania, Lithuania, and Poland. There is no jurisdictional problem, because those states are all members of the ICC and the the SOFA that applies to NATO states is based on shared jurisdiction, not exclusive jurisdiction. And I don’t think anything in the Rome Statute prohibits the OTP from defining a situation to include territory of multiple states. But we have definitely never seen a situation like this before.

I doubt that we will see the ICC issue arrest warrants for an American soldier or CIA operative anytime soon. My guess is that the OTP will begin with crimes committed by the Taliban, which will be much easier to investigate and prosecute than American crimes. (If only because Donald Trump might be crazy enough to actually invade The Hague if the Court ever got its hands on an American.) But this is still a momentous — if long overdue — day for the ICC. Opening an investigation that could lead to Americans being prosecuted, even if only in theory, is a remarkable act of bravery for a Court that has proven largely impotent with regard to crimes committed by government officials.

Kudos to Fatou Bensouda and the OTP.

New Essay: Specially-Affected States and the Formation of Custom

by Kevin Jon Heller

I have just posted on SSRN a draft of a (very) long article entitled “Specially-Affected States and the Formation of Custom.” It represents my first real foray into both “classic” public international law and postcolonial critique. Here is the abstract:

Although the US has consistently relied on the ICJ’s doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has been almost completely ignored both by legal scholars and by the ICJ itself. This article attempts to fill that lacuna. In particular, by focusing on debates in a variety of areas of international law – with particular emphasis on the jus ad bellum and jus in bello – it addresses two questions: (1) what makes a state “specially affected”? and (2) what exactly is the importance of a state qualifying as “specially affected” for custom formation? The article concludes not only that the US approach to the doctrine of specially-affected states is fatally flawed, but also that a more theoretically coherent understanding of the doctrine would give states in the Global South power over the development of custom that the US and other Global North states would never find acceptable.

You can download the article here. As always, comments most welcome!

If President Trump Ends the Iran Deal, Can He Trigger the Security Council Snapback?

by Jean Galbraith

[Jean Galbraith is an Assistant Professor of Law at the University of Pennsylvania Law School]

President Trump has reportedly made a decision about whether or not to end the Iran deal – although he won’t yet say what he’s decided.  The Iran deal, more formally known as the Joint Comprehensive Plan of Action (JCPOA), is a political commitment rather than an agreement that is binding as a matter of international law.  President Trump can thus abandon the Iran deal without violating international law, although there will be plenty of other repercussions from such a step.

But abandonment will nonetheless raise at least one interesting legal question.  If the United States ends the Iran deal, can it thereby trigger the re-imposition of Security Council sanctions against Iran?

First, a bit of background (discussed more here).  Prior to the JCPOA, the Security Council had imposed various sanctions against Iran – sanctions which all countries were legally obligated to enact.  The core bargain in the Iran deal involved the lifting of sanctions, including these Security Council sanctions, in exchange for Iran’s commitments not to develop nuclear weapons and its acceptance of a monitoring regime.  But what would happen if Iran failed to honor its commitments?  In that case, would there be the votes on the Security Council to re-impose sanctions or instead might Russia or China veto such a resolution?  In order to address this concern, negotiators included innovative provisions in the JCPOA and in Security Council Resolution 2231, which was passed in July of 2015 to help implement the JCPOA.  These provisions have been referred to as the “snapback” provisions, and I have called them “trigger termination” provisions.

Summarizing a bit, Resolution 2231 provided that the pre-existing Security Council resolutions imposing sanctions on Iran are terminated, but they can be reinstated at any time during the next 10 years by any single P5 country (including the United States) or by Germany, under certain conditions.  Specifically, the country seeking reinstatement must notify the Security Council “of an issue that [it] believes constitutes significant non-performance of commitments under the JCPOA.”  If the Security Council does not pass any resolutions on this issue in the 30 days following notification, then the prior resolutions imposing sanctions are automatically reinstated.  These resolutions would not apply retroactively to contracts signed prior to their reinstatement.

If President Trump simply ends the Iran deal without trying to trigger the snapback provision, then he can only re-impose U.S. sanctions.  (He could try to persuade other countries to re-impose sanctions, but his ability to do that in practice will likely be fairly low.)  But what if instead of or in addition to announcing an “end” to the deal, President Trump states that Iran is not complying with the deal and attempts to trigger the snapback provision?  Will this be effective as a matter of law, even if President Trump’s claim of Iranian non-compliance looks like a pretext?

In a comment I wrote in the October 2015 issue of the American Journal of International Law (draft version here), I addressed the issue of a pretextual snapback.  I wrote as follows:

Resolution 2231’s trigger termination has some protections against arbitrar[y use], but not very strong ones.  The activator can be a single state – any one of the P5 [including the United States], Germany, or theoretically Iran.  The standard is that this state must ‘believe’ that there is ‘significant non-performance of commitments under the JCPOA.’  While ‘significant non-performance of commitments under the JCPOA’ is a reasonably clear criterion, the fact that the activator is only required to ‘believe’ this nonperformance to have occurred makes the standard a fairly flexible one.  But although flexible, it is not a grant of total discretion.  It must require a good faith belief in significant nonperformance, for otherwise it would be meaningless.  Indeed, if such a good faith belief is demonstrably absent, other states would have grounds for considering that the trigger termination has not been properly activated.  In that case, they could presumably treat Resolution 2231 as continuing in force and thereby have a legal basis for declining to reinstitute the prior sanctions.

If President Trump tries to trigger the snapback provision now, other countries will have reasonable grounds for disputing the legal effectiveness of such a trigger.  Of course, if the United States walks away from the Iran deal and re-imposes its own sanctions, Iran may then cease its implementation of the deal and ramp up its pursuit of nuclear weapons.  After that point, the United States will have good faith grounds to believe in Iran’s significant non-performance – but if Iranian non-compliance is clearly due to U.S. non-compliance, states might raise other arguments for doubting the legal ability of the United States to trigger the snapback.

In closing, my thanks to the editors of the Opinio Juris blog for letting me contribute this guest post.

The Drafters Knew Best: Corporate Liability and the Alien Tort Statute

by Heather Cohen

[Heather Cohen is a Legal & Policy Associate with the International Corporate Accountability Roundtable (ICAR), which harnesses the collective power of progressive organizations to push governments to create and enforce rules over corporations that promote human rights and reduce inequality.]

Can corporations be held accountable in the United States for violations of international law? This question is back before the Supreme Court of the United States (SCOTUS) this fall. On October 11, 2017, SCOTUS will hear oral arguments in Jesner v. Arab Bank, PLC on the question of whether corporations can be held liable under the Alien Tort Statute (ATS). In the case, the plaintiffs, victims of terrorism in Israel, allege that Arab Bank knowingly and willfully used its U.S. branch to provide financial services to the terrorist organizations that harmed them and their family members.

On August 21, Arab Bank filed its respondent brief in the proceedings, arguing that corporations should not be held liable for violations of international law under the ATS. This argument is inconsistent with the intent of the drafters of the Constitution who enacted the law, as well as with the legal interpretation that has followed.

An analysis of the language and historical context of the ATS demonstrates that the drafters of the Constitution intended for the ATS to be applied broadly to both individuals and legal persons, such as corporations. By placing no categorical limits on who can be sued under the legislation, it is clear that corporations can and should be held liable for violations of international law under the ATS.

The Enactment of the ATS and its Application to Legal Persons

The ATS was passed by the First Congress in 1789 to demonstrate the commitment of the new country to upholding the “law of nations,” thereby granting the United States legitimacy on the world stage. Its enactment was spurred by two incidents of offences against foreign ambassadors, but the law would also provide merchants plagued by piracy with a legal avenue to obtain remedy for the harm and losses suffered.

In passing the ATS, the First Congress chose not to limit who can be sued under the legislation:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

By choosing not to exclude any particular class of defendant, the ATS places no limitation on who can be sued. This is made even more clear by the contrasting restriction on who can sue, i.e. only “aliens.”

Historical context suggests that the First Congress intended the law to hold both legal persons as well as natural ones accountable. Courts have held legal persons liable for their abuses as far back as the 1600s. A number of piracy cases provide a clear example of this. For instance, in 1666, Thomas Skinner sued the East India Company for “robbing him of a ship and goods of great value.” The U.K. House of Lords ruled in favor of Mr. Skinner and held that the company owed him compensation. Even where piracy was not committed by corporations, courts have imputed corporate form to the ships themselves. Similarly, early American courts held that ships, as entities, could be ordered to pay damages for piracy. They reasoned that it made financial sense to direct judgment against a captured ship, which had substantial value, while pirates were unlikely to pay the compensation ordered.

These piracy cases demonstrate that courts during the era of the drafters of the Constitution were not only familiar with the concept of liability for legal persons, but that they regularly imposed it for violations of international law. In light of this familiarity, the fact that the First Congress did not limit the language of the ATS suggests that it intended for legal persons, such as corporations, to be sued under the statute.

A Modern Interpretation of the ATS

This interpretation has been supported by courts in subsequent decisions. For example, the D.C. Court of Appeals, in Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 48 (D.C. Cir. 2011), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013) held that “[t]he notion that corporations could be held liable for their torts… would NOT have been surprising to the First Congress that enacted the ATS” [emphasis added]. For decades, corporations have been sued under the ATS “without any indication that the issue [of their liability] was in controversy, whether in ruling that ATS cases could proceed or that they could not on other grounds.

Since its passage in 1789, the ATS has remained the law of the United States for more than two hundred years, without ever being limited, narrowed, or amended by Congress. In contrast, Congress has made it abundantly clear when it does mean to exclude a particular class of defendants, namely corporations, from liability. For instance, the Torture Victim Protection Act (TVPA) explicitly excludes suits against corporations. While one can argue that failure to amend the ATS does not necessarily mean acceptance, one cannot negate the fact that both times that the issue of corporate liability under the ATS has come before SCOTUS, the U.S. Government has argued in favor of it. The Government has made it clear that it supports the original words and meaning of the ATS.

Arab Bank’s Interpretation of the ATS

Faced with this evidence of the intent of the drafters of the Constitution, all Arab Bank can do is endeavor to chip away at little pieces of it by attempting to undermine the piracy cases raised by the petitioners and their amici. In Arab Bank’s brief, it attacks the British case by claiming that the East India Company functioned more like a sovereign than a corporation, and that the case was ultimately vacated by King Charles II.

While it is beyond the scope of this blog to offer an analysis of the differences between the East India Company and the modern day corporation, the broad power and scope of today’s multinational corporations suggest that these differences may be much smaller than they initially appear. For example, one often cited variance is the power the East India Company had to “operate its own courts and establish its own law.” However, modern corporations likewise operate their own courts through grievance mechanisms, such as that offered by Barrick Gold in response to sexual violence at its mine in Papua New Guinea. In any event, what is relevant is that “the East India Company was on any number of occasions judged by English courts to be a legal person subject to both English common and civil law.

Also problematic with Arab Bank’s critique of the British case is the weight that it places on the intervention of the monarchy, namely, the decision by King Charles II to vacate the case. This decision is simply emblematic of the politics and the central role the Monarch played at the time. Using this political dynamic to criticize the case is unpersuasive.

To undermine the American piracy cases, Arab Bank argues that a ship is not a corporation and that holding a ship liable for the acts committed by the people operating it is not equivalent to accepting the concept of corporate liability. However, this argument is purely a matter of semantics and ignores the very basic concept of corporate liability, which is to hold a legal entity liable for the acts of individuals operating within it. This is exactly what the court did when imposing liability on the ships in these piracy cases.

Conclusion

If SCOTUS rules that corporations cannot be held liable under the ATS, it will be overturning hundreds of years of legal tradition, as well as undermining the chosen words and understanding of the drafters of the Constitution. Such a ruling would similarly undercut the legal interpretation adopted by numerous courts and policymakers following the First Congress. Furthermore, Arab Bank’s arguments are not convincing and fail to undermine the evidence that the ATS was intended to apply to both legal and non-legal persons.

Will SCOTUS respect the wishes of the drafters of the Constitution by holding Arab Bank liable for providing financial services to terrorist organizations? Those of us who believe in the underlying principles of this Nation certainly hope so.

Symposium: Aeyal Gross’s “The Writing on the Wall”

by Kevin Jon Heller

Over the next three days we will be featuring an online discussion of my SOAS colleague and TAU law professor Aeyal Gross‘s new book for Cambridge University Press, The Writing on the Wall: Rethinking the International Law of Occupation (CUP, 2017). The book develops ideas that Aeyal discussed on Opinio Juris — in a symposium on the functional approach to occupation — more than five years ago. So it’s fitting that we discuss his book on the blog now!

We are delighted to welcome a number of commenters, including Eliav Lieblich (TAU), Valentina Azarova (Koç) (who also contributed to the earlier symposium), Diana Buttu (IMEU), and Eugene Kontorovich (Northwestern). Aeyal will respond to the comments at the end of the symposium.

We look forward to the conversation!

Emailing Does Not Pass the Kiobel Test: US Court Dismisses ATS Case Against Anti-Gay Pastor

by Julian Ku

Distracted by #ComeyDay and other international crises, I missed this recent U.S. federal court decision in Sexual Minorities of Uganda v. Livelydismissing an Alien Tort Statute lawsuit on Kiobel extra-territoriality grounds.  While using unusually critical language to denounce U.S. pastor-defendant Scott Lively’s involvement in Uganda’s anti-homosexual laws and actions, the U.S. District Court for Massachusetts held:

…Defendant’s status as an American citizen and his physical presence in the United States is clearly not enough under controlling authority to support ATS extraterritorial jurisdiction. The sporadic trail of emails sent by Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669.

What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor, did not provide any

financial backing to the detestable campaign in Uganda, he directed no physical violence, he hired no employees, and he provided no supplies or other material support. His most significant efforts on behalf of the campaign occurred within Uganda: itself, when he appeared at conferences, meetings, and media events.

On these facts, this seems like the right result.  Kiobel requires something more than communications from the United States to “displace the presumption against extraterritoriality.” But caselaw continues to be a little muddy and I fully expect this to be appealed.

 

Actually, President Trump CAN Unilaterally Withdraw the U.S. From NATO

by Julian Ku

The estimable professor-pundit Daniel Drezner has a typically smart blogpost on President Trump’s refusal to affirm the U.S. commitment to Article 5’s collective defense provision of the North Atlantic Treaty.  I don’t have a problem with his views here, but I can’t help jumping in to correct this paragraph from his post:

So why is this such a big deal of a story? The United States is a member of NATO, which means that Article 5 is legally binding whether Trump says so out loud or not. Unlike NAFTA or the Paris climate treaty, I’ve been assured by smart lawyer types that Trump cannot unilaterally withdraw.

[Emphasis added].

Actually, as a matter of U.S. constitutional law, Drezner and his smart lawyer friends have things kind of backwards here, at least with respect to NAFTA and NATO. The broad consensus view is that the President has the unilateral authority to terminate a treaty pursuant to that treaty’s termination provisions or consistent with international law.  This means that as long as the President follows Article 13 of the North Atlantic Treaty — which requires the U.S. provide one year’s notice before termination — President Trump can terminate US membership in NATO without first getting consent from the Senate or the Congress as a whole.

The U.S. Supreme Court has never ruled on this question definitively, but it strongly hinted that the President has this power in its seminal 1979 Goldwater v. Carter decision refusing to require senatorial consent before President Carter’s termination of the U.S.-Republic of China (Taiwan) Mutual Defense Treaty.  The American Law Institute’s newly approved section on Treaties in the forthcoming Restatement (Fourth) on U.S. Foreign Relations Law explicitly endorses the President’s unilateral treaty termination power, and this was not even a change from the earlier Third Restatement.

Terminating NAFTA is the more complex problem, as John Yoo and I have argued here.  Although the President also has the power to terminate NAFTA’s international agreement status, he has to separately nullify the domestic legal effect of NAFTA. Some of that might be done via executive action, but it is our view that he will need another statute to completely eliminate all domestic legal effects of NAFTA.

It is also worth noting that the President’s unilateral termination power calls into question those who criticized President Obama for failing to submit the Paris Agreement to the Senate on the theory that this would have somehow insulated Paris from a unilateral President Trump termination.  In fact, President Trump could have terminated the Paris Agreement unilaterally, whether or not it was approved by the Senate.

None of this is meant to encourage or endorse any of President Trump’s actual or threatened treaty terminations.  But as a matter of U.S. constitutional law, there is no reason to doubt he can take the U.S. out of NATO, Paris, and many other international agreements.

Syria War Crimes Accountability Act — Now Revised!

by Kevin Jon Heller

Last month, I blogged about the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” I praised the bill, but pointed out that Section 7(a) was drafted in such a way that it permitted the US to provide technical assistance to entities investigating international crimes committed by pro-Assad forces and “violent extremist groups,” but did not permit the US to support entities investigating international crimes committed by rebels.

I am delighted to report that Sen. Ben Cardin (D-MD), the Ranking Member of the U.S. Senate Foreign Relations Committee (SFRC), successfully introduced an amendment to the bill at last Thursday’s SFRC’s business meeting that corrects the asymmetry in Section 7(a). The new version reads as follows (emphasis in original):

The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and all non-state armed groups fighting in the country, including violent extremist groups in Syria beginning in March 2011…

This is a welcome change, because — as I pointed out in my original post — there is no reason to treat crimes committed by rebels any differently than crimes committed by Assad’s forces or by ISIS.

Kudos to Sen. Cardin! Let’s hope the revised version of the bill passes the full Senate soon.

Pledging American Exceptionalism: US Supreme Court Justice Gorsuch on International Law

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

American exceptionalism is nothing new. Nor are debates about whether it is appropriate for US courts to look to foreign or international law, particularly when interpreting the US Constitution. Yet now-Justice Gorsuch’s recent testimony on the issue during his confirmation hearing still took my breath away. You can hear the question posed and his answer here (the exchange is also transcribed below). I think that every international lawyer should watch this clip. It’s exceptional …

Question by Sasse: As a sitting Supreme Court justice tasked with upholding the US Constitution, is it ever appropriate to cite international law and, if so, why?

Answer by Gorsuch: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt a foreign law. That’s an appropriate time to look at any choice of law provision by any party in any contract. Treaties sometimes require you to look at international law by their terms.

But if we’re talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us. For all the imperfections of our rule of law, it is still the shining example in the world. That’s not to say we should sweep our problems under the rug or pretend that we’ve solved all of the problems in our culture, in our society, in our civic discourse. But it is to say that we have our history and our Constitution and its by “we the people.”

And so, as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution — as a general matter.

So what do I find remarkable about this interaction?

First, the conflation of international law and foreign law is disconcerting. When asked about whether it is appropriate to cite to international law, Gorsuch immediately turns to choice of law provisions in contracts. But that is typically a question of foreign law, not international law. Certainly, both are non-American law. Yet the two of them raise distinct questions, particularly given that the United States contributes to the formation of international law, is bound by international law, and has hooks in its Constitution for looking to international law. As for when Gorsuch says that treaties sometimes require you to look at international law … I feel like telling him that, actually, treaties are international law. I have been critical elsewhere of how the US Supreme Court can interpret a treaty without even referencing the Vienna Convention on the Law of Treaties.

Second, the statement “I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us” is particularly striking. On a descriptive level, there is something to what Gorsuch says. Academics and courts in many states regularly look to US case law, but the same is much less true in reverse. I find clear evidence of this asymmetry in my forthcoming book Is International Law International? (OUP, 2017) where international textbooks from around the world look to US case law while US international law textbooks look to … US case law.

But on a normative level, I find this statement troubling. Why look at the experience of other states? For me the answer is simple: because you might learn something. You don’t have to be bound by what you find, but it might be instructive given that other states have often faced similar issues and the United States does not have a monopoly on good ideas. I fully accept that judges in a state can privilege that state’s own history and tradition when interpreting the law and that this might be particularly appropriate when interpreting that state’s constitution. But I don’t think that this requires them to ignore the histories and traditions of everyone else.

The double standard implicit in what he is saying is also grating. Instead of taking the position that “all states should look to their own history and tradition,” Gorsuch instead endorses the idea that other states not only do look to the United States (descriptive claim), but that they should look to the United States (normative claim), even though the US courts should not reciprocate. What is good for the goose is certainly not good for the gander.

Third, the next sentence is the kicker for me: “For all the imperfections of our rule of law, it is still the shining example in the world.” I find this exceptionalist rhetoric hard to stomach. It is also deeply ironic given that the whole world currently is looking at the United States and the Trump administration, but no one would say that this is because the United States represents the “shining example” of the “rule of law” in the world. In fact, the United States comes in 18th out of 113 countries in the World Justice Project’s rule of law rankings, and the Economist recently downgraded the United States to being a flawed democracy, partly because of a loss of faith in democracy in the United States, particularly by the younger generation.

Of course, I am not the intended audience for Gorsuch’s remarks. He is clearly playing to a domestic, political audience, not a foreign, internationalist one. To my ears, Gorsuch sounds like he is pledging a fraternity, but the institution to which he is pledging is American exceptionalism. Although this topic is contentious in the United States, the idea that it might be appropriate or useful to cite to international or foreign law is uncontroversial in many other states. I can’t imagine many judges in other common law jurisdictions, like Australia, Canada or the United Kingdom, feeling the need to make this sort of pledge. Nor am I am aware of judges in civil law states, like France and Germany, making similar such pledges.

Even though Gorsuch is not addressing his comments to people like me, the nature of the internet means that I form part of his audience nonetheless. And I suspect that many foreign internationalists would have a similar reaction to me. This failure to value the practice of others and to engage in a dialogue is one of the explanations that David Law and Mila Versteeg give about their empirical finding of the declining influence of the United States in comparative constitutional law (another is that constitutions around the world are increasingly departing from, rather than following, the US model). This finding also contrasts with the rising influence of the courts of some other states that regularly engage in this sort of discourse, like Canada, Germany, India, South Africa and the United Kingdom.

Whatever your views on this clip, I think that this exchange would make a great classroom teaching tool because it succinctly sets out a particular perspective and provides a useful starting point for debate. I would be interested if anyone has a good counterpoint clip that pithily sets out the opposite perspective as the two would be great to pair. In the end, part of what we need to take away from this sort of exchange is just how different people’s starting points of analysis can be when it comes to this question and how these differences may vary considerably across states.

American Law Institute Approves First Portions of Restatement on Foreign Relations Law (Fourth)

by Julian Ku

Big news (for international law nerds)! The full membership of the American Law Institute has approved the first three sections of the new Restatement of U.S. Foreign Relations Law (Fourth).  This is the first official change to the venerable Restatement (Third) that was approved by the ALI back in 1987.  Summaries of the changes to the newly approved sections on Jurisdiction, Treaties, and Sovereign Immunity are linked here.

The Restatements are supposed to “restate” the law in the United States.  But it is influential in shaping the law, especially in this area, since U.S. courts frequently cite the Restatement on questions of international law.  It is an important statement of where U.S. courts are, and will likely go, on questions of foreign relations and international law in the near future. As such, the Restatement should be interesting to non-US scholars as well.

The Restatement (Third) has been subjected to some pretty tough academic criticism over the years, but (from what I can recall), these three topics have not  been particularly controversial.  I am a member of the ALI and I have attended some of the meetings during this drafting process, but I haven’t been paying as much attention as I should have.

I will say that one general trend I have noticed in the new sections has been to cut back on statements in the comments of Restatement (Third) that may have gone beyond the caselaw at the time or no longer reflect current caselaw.  For instance, the new Restatement eliminates a comment in Restatement (Third) that suggested there are no subject-matter limitations on the treaty power (which itself departed from the Restatement (Second).  The Fourth Restatement says nothing about this point, which is probably the smart thing given there has been really no caselaw on this one way or the other from the Supreme Court or lower courts.

Having said that, I will note that Georgetown law professor Carlos Vazquez has already published a criticism of the newly approved sections on the self-execution doctrine.  I won’t go into his criticisms here, but they do suggest the new Restatement is unlikely to completely settle the continuing debate over the nature of this tricky doctrine.

There is a lot here to digest. At this point, I will simply salute the scholars who have made this project happen, all of whom I think we can count as prior contributors to and friends of the blog: Sarah Cleveland, Paul Stephan, Bill Dodge, Anthea Roberts, David Stewart, Ingrid Wuerth, Curt Bradley, and Ed Swaine. Of course, Duncan was also involved and I am sure other members of the OJ community.  There is more to do, of course, but what has been completed so far is a great achievement and one that will last for at least another thirty years, if we are lucky.

States Are Failing Us in Syria — Not International Law

by Kevin Jon Heller

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title “International Law is Failing Us in Syria.” The international law she is talking about is the jus ad bellum — the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the humanitarian crisis in Syria indicates that an exception to Art. 2(4) for UHI is “the only means of preserving international law’s credibility in the use of force realm”:

The reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most sound, narrow, acceptable grounds possible, together with our allies. This view is not an acceptance that international law does not matter. It is an acceptance that international law – like so much public law – operates in a dynamic space that is inevitably interwoven with the reality of how states act and the widespread acceptance of its legitimacy.

I don’t want to focus here on the legal aspects of Ingber’s post, other than to note that when she claims “our allies… have become comfortable stretching the outer bounds of what international law has historically been thought to permit” with regard to the use of force, she links almost exclusively to UK practice. (The one exception is “unwilling or unable,” where she refers to the flawed Chachko/Deeks post that tries to categorise state positions on the doctrine.)

The legal questions are, of course, interesting. But what I find most problematic about Ingber’s post is its most basic assumption: namely, that the international community has failed to do more in Syria because UHI is not legal. That assumption, I think, is categorically false. If the King of International Law announced tomorrow that UHI was consistent with Art. 2(4) of the UN Charter, it would have no effect on the international response to the Syrian crisis. Literally none.

And that is because international law is not failing us in Syria. States are.

Or, more precisely, the self-interest of states is failing us. States have not intervened in Syria to end the humanitarian crisis because doing so would be immensely costly in terms of both blood and treasure, not because Art. 2(4) doesn’t permit UHI. There is no easy solution for states concerned about Syria, such as a Kosovo- or Libya-style airpower campaign. If they want to end the crisis, they will have to invade Syria and destroy the large and generally well-equipped Syrian army — a task that would make the invasion of Iraq look positively economical by comparison. And the sad truth is that the US is not going to spend billions of dollars and accept thousands of dead American soldiers to save a bunch of defenceless Syrian civilians. Nor is the UK. Or France. Or Germany. Or any other state.

Do intervention-minded scholars disagree? Does anyone really believe that there is a head of state out there — actual or even potential — who at this very moment is saying to herself “I could end the Syria crisis tomorrow if that damn Art. 2(4) didn’t prohibit unilateral humanitarian intervention”? The idea beggars belief. I am on record with my insistence that UHI is not only unlawful but criminal, but I’m not stupid. A successful UHI in Syria would result in a Nobel Peace Prize, not a confirmation of charges hearing.

What is most striking about Ingber’s post is that she barely attempts to defend her claim that international law is preventing the kind of UHI she believes is necessary in Syria. All she says is that “with respect to Syria alone, the fact that international law may have played a role in taking intervention off the table during the Obama presidency (and there are subtle indications that it did) should weigh heavily on us now.” I’ve read both of the documents to which she links, and the indications are subtle indeed. In the press conference, Obama openly acknowledges the real reason why the US did not intervene in Syria while he was President — it wasn’t worth the cost:

So with respect to Syria, what I have consistently done is taken the best course that I can to try to end the civil war while having also to take into account the long-term national security interests of the United States.

And throughout this process, based on hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours — whenever we went through it, the challenge was that, short of putting large numbers of U.S. troops on the ground, uninvited, without any international law mandate, without sufficient support from Congress, at a time when we still had troops in Afghanistan and we still had troops in Iraq, and we had just gone through over a decade of war and spent trillions of dollars, and when the opposition on the ground was not cohesive enough to necessarily govern a country, and you had a military superpower in Russia prepared to do whatever it took to keeps its client-state involved, and you had a regional military power in Iran that saw their own vital strategic interests at stake and were willing to send in as many of their people or proxies to support the regime — that in that circumstance, unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.

Obama takes the same position in the interview with Jeffrey Goldberg. Nothing in the interview suggests that the illegality of UHI had anything to do with Obama’s unwillingness to intervene more dramatically in Syria. On the contrary, as Goldberg explains by means of contrasting Obama with Samantha Power, he simply doesn’t believe in UHI:

Power is a partisan of the doctrine known as “responsibility to protect,” which holds that sovereignty should not be considered inviolate when a country is slaughtering its own citizens. She lobbied him to endorse this doctrine in the speech he delivered when he accepted the Nobel Peace Prize in 2009, but he declined. Obama generally does not believe a president should place American soldiers at great risk in order to prevent humanitarian disasters, unless those disasters pose a direct security threat to the United States.

Goldberg recounts many of the factors underlying Obama’s realist view of American military power. The key one, though, is pragmatic, not legal — the disaster of NATO’s supposedly humanitarian intervention in Libya:

But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.

The Libya fiasco is particularly important, because it is tempting to believe that collective UHI in Syria might be more successful than individual UHI. It probably would — except that the benefits of collective action would still not outweigh the reluctance of powerful states to spend blood and treasure for merely humanitarian concerns. Libya is a case in point: NATO countries were willing to drop bombs on the Libyan army, but they would never have committed soldiers to a ground invasion. They are not willing to put them in Libya now, when the risks are minimal. So even if Ingber is right that states have shown “widespread support for military action in response to humanitarian crises” (and I don’t think she is), she is still missing the fundamental point: they support military action by others, not by them. It’s not an accident, for example, that interventionists like John McCain and Lindsey Graham expect Arab soldiers to do the fighting for them in Syria.

And, of course, Syria is not Libya. Or even Kosovo. On the contrary: unlike in those situations, UHI in Syria, whether individual or collective, risks a shooting war with Russia, the second most powerful military in the world, and perhaps with Iran. That unpleasant possibility provides a far more effective deterrent to military action against Assad than the text of Art. 2(4) ever will.

What, then, is to be gained by “divining” or “crafting” an exception to Art. 2(4) for UHI, as Ingber suggests? The legality of UHI would not lead to humanitarian interventions in Syria or in any other comparable situation. But it would give powerful states like the US yet another pretext for using force to promote their national interests. Why invoke an inherently selfish rationale such as self-defence as a pretext for aggression when you could invoke humanitarian intervention instead? Who is opposed to helping innocent civilians? And if we take your land and oil and other resources along the way, well, we have to pay for our selflessness somehow, don’t we?

Legalising UHI, in short, will not lead to more humanitarian uses of force. It will lead to more aggression. And that is because international law is not the problem in Syria and elsewhere. States are.