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International Law in U.S. Courts

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.

Charlie Dunlap’s Defence of Israel’s Attacks on Hezbollah in Syria

by Kevin Jon Heller

Last week, Asaf Lubin offered a compelling post at Just Security wondering why Israel’s repeated attacks on Hezbollah arms shipments in Syria have not received the same kind of jus ad bellum scrutiny as the US’s recent attack on a Syrian airfield. Today, Charles Dunlap provides his answer on the same blog: the Israeli attacks are clearly legal, so why would anyone scrutinise them? Here are the relevant paragraphs:

[I]t appears to me that the Israeli strike sought to destroy weapons in transit before Hezbollah can burrow them into densely-populated areas.  Of course, some JAB scholar might argue about the imminence of the threat as justifying anticipatory self-defense, but if one carefully reads the Obama administration’s “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on that point (p. 9), it would be hard not to conclude that the strike would fit the criteria.

It is especially telling that the Obama administration concluded – correctly in my view – that it is “now increasingly recognized by the international community, the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”

Along that line, this past January UK Attorney General Jeremy Wright gave a speech which echoed much of the Obama Administration’s approach.  Wright does caution that “remote threats or threats that have not yet materialized” would not fit the necessary criteria, but I don’t think in the case of Hezbollah those exclusions would apply.  Additionally, Wright endorsed – as does the Obama framework – Sir Daniel Bethlehem’s principles laid out in 2012 that included assessing whether there will be another “clear opportunity to act” defensively.

In other words, the analysis of “imminence” in this instance could properly take into account Hezbollah’s history of hostile actions against Israel, as well as its adaption of a “technique” which is “designed to exacerbate civilian risk.”  A strike on the Damascus warehouses makes sense as it could well be the last “clear opportunity to act” before the weapons could be embedded into civilian areas in easy range of Israel where they could be countered only at great risk to noncombatants.

Thus, the lack of JAB discussion about the reported Israeli bombings in Syria may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.  We can’t ignore the fact that few nations other than Russia or Syria evinced much concern about the legality of the strike.

I don’t find Charlie’s argument convincing. The first problem concerns his claim that the lack of attention to Israel’s attacks “may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.” He cites only two states in defence of the idea that the “international community” accepts this type of anticipatory self-defence: the US and the UK. Needless to say, two Global North states known for their aggressive interpretation of the jus ad bellum do not an “international community” make. Moreover, Charlie fails to acknowledge the repeated denunciations of anticipatory self-defence by the Non-Aligned Movement (NAM), which represents 120 states. 120>2.

To be fair, Charlie seemingly tries to address this problem by implying that the failure of states (other than Russia and Syria) to specifically condemn the Israeli attacks indicates that they accept the US and UK understanding of imminence. But that clearly isn’t the case. As he acknowledges, Israel itself has not claimed that the attacks are legitimate anticipatory self-defence. Nor has any other state on Israel’s behalf — the US and UK included. The “silence” of the international community can thus hardly be interpreted as acquiescence — particularly in light of NAM’s repeated denunciation of anticipatory self-defence. States are not required to respond to scholarly interpretations of the use of force. When Israel claims its actions are legal because they represent anticipatory self-defence and NAM remains silent, we’ll talk.

It’s also worth noting that Charlie’s account of Israel’s attacks in Syria does not even bring them within the ambit of anticipatory self-defence — or at least not easily. According to him, “the Israeli strike sought to destroy weapons in transit before Hezbollah [could] burrow them into densely-populated areas.” Charlie finds such “burrowing” problematic — justifiably! — because it makes it more difficult for Israel to destroy the weapons caches without causing disproportionate civilian harm. But that is a jus in bello problem, not a jus ad bellum one. The fact that Hezbollah weapons are in a difficult to attack location does not mean that those weapons will be immediately used against Israel. And that is true even in light of Hezbollah’s “history of hostile actions,” which hardly indicates that Hezbollah attacks Israel whenever it has the material means to do so. The mere presence of the weapons in a location near to Israel thus seems to represent precisely the kind of “remote threat[] or threat[] that [has] not yet materialized” that Jeremy Wright, the UK Attorney General whom Charlie cites in defence of his position, says does not give rise to the right of self-defence.

I will say, though, that Charlie’s explanation of the Israeli attacks raises an interesting issue concerning the relationship between the  jus in bello and the jus ad bellum. We are accustomed to the idea that the two legal regimes are independent, and it is beyond doubt that failing to comply with the jus ad bellum does not affect the equal application of the jus in bello. But the converse is not true, as the ICJ specifically affirmed in the Nuclear Weapons case (para. 42):

[A] use of force that is proportionate under the law of self- defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.

The jus ad bellum requirement that self-defence comply with IHL does, in fact, suggest that the imminence of an attack should be assessed in light of the victim state’s ability to defend itself in a way that complies with IHL. So I don’t think we can reject the “last clear opportunity to act” understanding of imminence out of hand. On the contrary, if an attack will only become imminent under the traditional conception at a time when the victim state cannot defend itself in an IHL-compliant way, I think the victim state should be entitled to defend itself at a temporally earlier moment, when IHL compliance is still possible.

Even that “relaxed” idea of imminence, however, presupposes that the defended-against attack is more than merely hypothetical. So it’s difficult to see how Israel’s strikes on Hezbollah’s arms shipments could qualify as legitimate acts of self-defence. On the contrary: they are precisely the kind of anticipatory self-defence that international law prohibits.

An Important Absence in the Syria War Crimes Accountability Act of 2017

by Kevin Jon Heller

On Monday, my friend Beth van Schaack posted an excellent analysis at Just Security of 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.” Beth summarises the most important aspects of the bill; in this post I want to focus on Section 7, which authorises US technical assistance to certain non-US accountability mechanisms. The most important paragraph in Section 7 is this one (emphasis mine):

(a) IN GENERAL.—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 violent extremist groups in Syria beginning in March 2011—

(1) identify suspected perpetrators of war crimes, crimes against humanity, and genocide; (2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence; (3) conduct criminal investigations; (4) build Syria’s investigative and judicial capacities and support prosecutions in the domestic courts of Syria, provided that President Bashar al Assad is no longer in power; (5) support investigations by third-party states, as appropriate; or (6) protect witnesses that may be helpful to prosecutions or other transitional justice mechanisms.

There a very interesting — and potentially very important — absence in Section 7(a). As the bolded text indicates, the paragraph only authorises the US to provide technical assistance to entities that are investigating international crimes committed by pro-Assad forces and “violent extremist groups.” Note what is missing from that construction: Syrian rebel groups. The bill does not permit the US to support any entity investigating war crimes, crimes against humanity, and acts of genocide committed by rebels.

Lest anyone think I am reading Section 7(a) too narrowly, consider the wording of Section 3(1), which summarises acts that the US “strongly condemns” (emphasis mine):

(A) the ongoing violence, use of chemical weapons, targeting of civilian populations with barrel, incendiary, and cluster bombs and SCUD missiles, and systematic gross human rights violations carried out by the Government of Syria and pro-government forces under the direction of President Bashar al-Assad; and (B) all abuses committed by violent extremist groups and other combatants involved in the civil war in Syria.

It is difficult to see who “other combatants involved in the civil war in Syria” might be if they are not rebels. Indeed, Section 5(a), which requires the Secretary of State to submit a report on international crimes to Congress, explicitly distinguishes between “violent extremist groups” and rebel groups (emphasis mine):

(b) ELEMENTS.—The reports required under subsection (a) shall include— (1) a description of alleged war crimes, crimes against humanity, and genocide perpetrated during the civil war in Syria, including— (A) incidents that may constitute war crimes, crimes against humanity, or genocide committed by the regime of President Bashar al-Assad and all forces fighting on its behalf; (B) incidents that may constitute war crimes, crimes against humanity, or genocide committed by violent extremist groups, anti-government forces, and any other combatants in the conflict.

In light of Section 5(a), it is clear that Section 7(a) does not authorise the US to support an entity that is investigating international crimes committed by rebels.

That said, the bill is unclear in one important respect: whether the US can support an entity that investigates international crimes committed by both pro-Assad forces and rebel groups. On a literal reading of Section 7(a), the answer would seem to be no. But the sponsors of the bill might disagree. Journalists?

I agree with Beth that the Syria War Crimes Accountability Act of 2017 is an important step forward for accountability in Syria. Unfortunately, it also reflects the US’s tendency to take international crimes committed by rebel groups much less seriously than those committed by Assad’s forces and by ISIS.

Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments

by Julian Ku

The blogosphere is now so fast that we can get an enormous sampling of expert opinion in a very short time. So within 24 hours of President Trump’s military strikes on Syria, we have already heard from former Bush State Department Legal Advisor John Bellinger, former Obama State Department Legal Advisors Harold Koh and Brian Egan, former DOJ officials and law profs Jack Goldsmith and Ryan Goodman, as well as numerous law profs and other experts including our very own Deborah Pearlstein and Edward Swaine. The bottom line: Almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter and many think it also violates the U.S. Constitution.

Most of what I have to say I said in 2012-13 on this issue, but I am struck by one group of important actors who seem relatively untroubled by the “illegality” of the U.S. strikes under the UN Charter: states.  With the notable exception of the Russian government, very few states have come out to criticize the U.S. strikes as a violation of international law. No one is saying it is illegal, but it is striking how few are willing to say it is illegal.  I’ve gathered a few statements and links below.

China’s Ministry of Foreign Affairs:

Q: Does China consider the missile strike on the Syrian airbase to be within the scope of international law? Or do you think it violates existing rules about intervention in other country’s sovereign territory?

A: The Chinese side has always stood for a political settlement of the Syrian issue. Under the current circumstances, we hope all parties can keep calm, exercise restraint and avoid escalating the tension.

The latest developments in Syria highlight once again the urgency of resolving the Syrian issue through political means. We call on all parties not to walk away from the process of political settlement.

 

France and Germany (President and Chancellor):

The joint statement by Mr Hollande and the German chancellor Angela Merkel said that “President Assad alone carries responsibility for these developments” with his “repeated use of chemical weapons and his crimes against his own people.”

United Kingdom Defence Minister:

The UK says it “fully supports” the US missile strike in Syria and has urged Russia to put more pressure on the Assad regime to end the civil war.

The US targeted an air base it says was responsible for a chemical attack which killed dozens of civilians.

Defence Secretary Michael Fallon said the UK was not asked to take part but backed the “wholly appropriate” strike.

European Union, President of European Council:

“US strikes show needed resolve against barbaric chemical attacks. EU will work with the US to end brutality in Syria.

Turkey, Deputy Foreign Minister:

TURKEY: NATO ally Turkey, which is a key player in the Syria conflict and has endured choppy relations with Washington recently, welcomed the strikes as “positive.” The deputy foreign minister added: “We believe that the Assad regime must be punished completely in the international arena.”

Turkey called for a no-fly zone in Syria in the wake of the US strike.

Japan, Prime Minister

JAPAN: Prime Minister Shinzo Abe said that Japan “supports the US government’s resolve that it will never tolerate the spread and use of chemical weapons.”

This survey is not comprehensive and some large players, like India, have yet to weigh in.  But it seems only Russia and Iran have condemned the strikes vigorously.  The general support for the attacks in Europe, the Middle East, along withChina’s acquiescence, seems to show that many states are not very troubled by the violation of Article 2(4) most scholars think has occurred here.  Is this because it is a one-off attack? Or does it suggest Article 2(4) has very little pull with many foreign governments these days?

On the domestic US law front, FiveThirtyEight has counted 69 senators have already issued statements supporting the Syria Strikes and while there are critics on constitutional grounds, it doesn’t seem like close to a majority in Congress.

Of course, none of this means that the experts are wrong on the law. But it is at least worth noting the limited impact of the law so far on governmental actors, as the debate on the legality of the Syria Strikes continues.

Initial Takes on Syria: International-Domestic Synergies

by Edward Swaine

There are lots of initial takes on the legality of the Syria strike.  (I see, just now, a great compendium of short takes at Just Security.)  Some ask for a legal justification, and other experts are holding (for a bit) until one is proffered.  As the posts below by Deborah Pearlstein and Julian Ku helpfully indicate, one thing to watch for is assumed or disputed equivalencies between the positions of the United States as it contemplated these questions in 2013 and as it now confronts them. Other unfolding differences, naturally, include the reactions of other states and of the U.S. Congress.

In addition, watch for explicit or implicit claims about the relationship between international law and U.S. domestic law.  International lawyers are free to ignore the latter.  Thus, for example, Marko Milanovic (via EJIL:Talk!) concludes that the strike was “clearly illegal” under international law, but ventures no particular position on U.S. law.  Whether one agrees or disagrees with the rest of the analysis, focusing on this one question is entirely proper, since a violation of international use of force principles does not depend on whether domestic law is satisfied (and it would be very bad if it did).  Maybe, but only maybe, constitutional lawyers can reciprocate by ignoring international law.  For example, Jack Goldsmith (via Lawfare) largely does, though in his case it could be because he confines himself to looking at the issue of constitutionality through the lens of the Office of Legal Counsel’s 2011 Libya opinion, which did not even use the term “international law” at all.  (It did define promoting the credibility and effectiveness of Security Council resolutions as part of the “national interest” inquiry, but that related only indirectly and partially to international law.)  However, as indicated below, and unlike the international law perspective, this runs the risk of offering an incomplete analysis even as to the domestic law perspective.

For those opining about both international law and U.S. domestic law, the ground is treacherous. The safer course, usually, is simply to assume for purposes of discussion that the legal constraints are independent and potentially sufficient.  Thus, for example, John Bellinger (via Lawfare) states that legality under U.S. law is dependent on the scope of Article II, and that as a matter of international law, the United States was lacking “clear authority.”  In contrast, however, Marty Lederman (via Just Security) concludes that the United States is “probably” violating international law, and “therefore” violating U.S. law.  Both have expertise and views that go far beyond these posts.  But one thing that stands out is how they hedge on legality, relative at least to non-U.S. views.  I don’t think that’s due to nationality.  It also reflects complicating assumptions about the right analytical approach entailed by grappling with the two questions, as might too a more recent post by Harold Koh (via Just Security).

(more…)

Symposium on the Nuremberg Trials

by Kevin Jon Heller

The Loyola of Los Angeles International and Comparative Law Review has just published a special issue on the Nuremberg trials. It contains many excellent contributions, including articles by Hilary Earl, David Fraser, Greg Gordon, and Jonathan Bush. I have also contributed a short chapter, entitled “Taking a Consenting Part: The Lost Mode of Participation,” which discusses a mode of participation developed by the NMTs and then promptly forgotten — for better or for worse — by international criminal law.

All of the articles in the special issue are free to download here.

GOP Wants the US to Leave the United Nations

by Kevin Jon Heller

Finally, a Republican bill we can all get behind! The American Sovereignty Restoration Act of 2017:

A bill was introduced to the House of Representatives in early January that, among other things, calls for the United States to withdraw from the United Nations. Sponsored by Senator Mike Rogers, the American Sovereignty Restoration Act (aka H.R. 193) had been previously introduced by the Alabama senator to no avail back in 2015 (then H.R. 1205), when he cited reasons ranging from spending waste to enabling an intercontinental “dictators’ club,” which sounds like a manuscript Ann M. Martin decided to leave in her desk drawer.

I believe in sovereignty — and in restoring it when it is lost. So I support the bill. And no more UN membership, of course, means no more permanent veto for the US. So no more holding peacekeeping missions hostage whenever the international community doesn’t let the US play by its own rules. No more US propping up its own preferred dictators while criticising the preferred dictators of others. No more US protecting Israel from the consequences of its actions. Sounds pretty good!

Does anyone know how to introduce similar bills in the Duma and the NPC? I hear Russia and China are suffering a sovereignty deficit, as well.

A Brief Rejoinder to Haque on the ICRC’s Interpretation of NIAC

by Kevin Jon Heller

My thanks to Adil Haque for his response to my post. Adil and I rarely disagree in any profound way about IHL, so it’s enjoyable to spar with him about whether a first-strike by government forces against an organized armed group automatically creates a NIAC — thus triggering IHL — or whether a certain intensity of hostilities between the two is required.

I will have more to say about Adil’s response soon, but I wanted to quickly address one particular implication in his post: namely, that the ICRC’s Commentary on AP II supports his claim that a single military operation by government forces or by an organized armed group is sufficient to trigger a NIAC because it is more than a “sporadic act of violence.” Here is what he writes:

In my view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a “sporadic act of violence” within the meaning of APII 1(2). On this point, I follow the ICRC Commentrary to APII, which negatively defines “isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups.” APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe “acts of violence against the adversary in offence or defence” (that is, attacks as defined by API).

With the exception of ambiguous quotes like the one above, there is little support in the ICRC’s Commentary on AP II or in any of the ICRC’s commentaries for Adil’s position. The ICRC clearly believes that any kind of NIAC — AP II or Common Article 3 — requires adequately intense hostilities.

Let’s start with the AP II Commentary Adil cites. The Commentary opens its discussion of AP II by emphasizing (p. 1343) that CA3 and AP II have the same structure — and that neither applies in the absence of sufficiently intense hostilities (emphasis mine):

The content and scope of all of these articles will be analysed in the respective comments on them. Before doing this it seems useful to have a closer look at the basic pattern of Part I, which reveals the similarity of the ideas which inspired Protocol II and common Article 3. To understand the scope of the Protocol one should indeed always bear in mind the fact that this instrument supplements and develops common Article 3; it is an extension of it, and is based on the same structure.l Their common characteristics find expression, explicitly or implicitly, in Part I. These can be summarized as follows…

The threshold where Protocol II becomes applicable is determined by the criteria expressed in Article 1 (Material field of application), which means that it is intended to apply only to conflicts of a certain degree of intensity.

Later, the Commentary discusses (p. 1355) what AP II means by “internal disturbances,” taking the position that such disturbances include situations in which military operations by government forces — even against an organized armed group — do not lead to sufficiently intense hostilities (emphasis mine):

[T]he ICRC gave the following description of internal disturbances during the first session of the Conference of Government Experts in 1971:

“This involves situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules.”

[snip]

In short, as stated above, there are internal disturbances, without being an armed conflict, when the State uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.

Finally the Commentaries specifically point out (p. 1356) that such “internal disturbances” do not create a NIAC and do not trigger IHL:

Internal disturbances and tensions are not at present within the field of application of international humanitarian law; the ICRC has carried out activities in this field on an ad hoc basis. However, this does not mean that there is no international legal protection applicable to such situations, as they are covered by universal and regional human rights instruments. 31 It is not within the scope of this commentary, however, to go into that subject.

The ICRC’s position on CA3 and AP II NIACs — as requiring hostilities of a certain intensity, and thus as not being triggered by “first strikes” — is an old one. Here is what Pictet said (p. 49) in the ICRC’s 1952 Commentary on the First Geneva Convention (emphasis mine):

[I]t was suggested that the term “conflict” should be defined or, which would come to the same thing, that a certain number of conditions for the application of the Convention should be enumerated. The idea was finally abandoned — wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list of those contained in the various amendments discussed; they are as follows:

(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

This statement only implicitly endorsed an intensity requirement, so Pictet clarified that the was talking about actual hostilities between government forces and an organized armed group in the ICRC’s 1960 Commentary on the Third Geneva Convention (p. 37):

Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities –conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.

And just in case that statement remained ambiguous (“both” would have been more precise than “either”), the ICRC clarified in its 2016 Commentary on the First Geneva Convention that of the various indicia of NIAC that Pictet discusses, intensity is one of the two most important ones (emphasis mine):

387  A situation of violence that crosses the threshold of an ‘armed conflict not of an international character’ is a situation in which organized Parties confront one another with violence of a certain degree of intensity. It is a determination made based on the facts.

421  Over time, of the criteria enumerated in the Pictet Commentaries, two are now widely acknowledged as being the most relevant in assessing the existence of a non-international armed conflict: that the violence needs to have reached a certain intensity and that it must be between at least two organized Parties/armed groups. The existence of a non-international armed conflict thus needs to be assessed according to these specific criteria.

422  The wording of common Article 3 gives some rudimentary guidance on its threshold of application: what is required is an ‘armed’ ‘conflict’ not of an international character, in which ‘Part[ies] to the conflict’ are involved. This indicates that for common Article 3 to apply, a situation of violence must have reached a certain level of intensity, characterized by recourse to arms by non-State armed groups that are capable of being Parties to an armed conflict.

According to the ICRC, in short, all NIACs require adequately intense hostilities. The difference between a CA3 NIAC and an AP II NIAC is one of degree rather than kind.

The ICRC Commentaries are only as good as the analysis they contain, so Adil is obviously free to defend an interpretation of Art. 1 of AP II and of Common Article 3 that reads the intensity requirement out of NIAC. In doing so, however, he is clearly breaking with the ICRC.

First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate

by Kevin Jon Heller

I have been following with great interest the debate at Just Security between Adil Haque and Jonathan Horowitz over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a “first strike” at an organized armed group or whether hostilities of a certain intensity between the two are required. Adil takes the former position (see here, here, and here); Jonathan takes the latter one (see here and here).

Though Adil’s posts exhibit his typical brilliance, my sympathies lie with Jonathan. To begin with, as a matter of the lex lata, I don’t think the argument is even close: the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).

Adil, it is worth noting, has a different interpretation of AP II, one that does not require intensity:

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict. The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

This is a difficult position to defend. The text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government? More importantly, despite some stray practice cited by Michael J. Adams and Ryan Goodman in this post, states have simply never interpreted the AP II standard to require only organization.

Even more problematic, though, is Adil’s argument that the “object and purpose” of IHL counsels against conditioning the application of IHL on adequately intense hostilities:

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

As regular readers know, whenever I see arguments based on the supposed “object and purpose” of a treaty, I reach for my pen. All too often, such arguments simply use object and purpose to justify interpreting a treaty in a manner that specifically contradicts the intention of the states that drafted and concluded it. And unfortunately I think that is what Adil does here. He defends applying IHL to first strikes by claiming that the “object and purpose” of IHL is “to protect human beings against dangers arising from military operations” (emphasis mine). But that is misleading: the object and purpose of IHL is to protect human beings against dangers arising from military operations in armed conflict. If there is no armed conflict, IHL has nothing to say about the danger of military operations — because IHL doesn’t apply. And as discussed above, states have always insisted that a first-strike military operation is not enough to create an armed conflict — IHL applies only once there are adequately intense hostilities between government forces and the organized armed group.

Adil is free, of course, to normatively argue that IHL should apply to first strikes in NIAC because doing so would better protect human beings. I would disagree, but the claim is coherent and deserving of discussion. What he can’t do is base that claim on the object and purpose of IHL, because that would be to use an object and purpose that only applies within armed conflict to justify changing the definition of armed conflict itself. The definition of when IHL applies cannot be determined by reference to what the goals of IHL are once it applies. That definition has to be sought outside of the IHL system — and again, it is clear that states do not want IHL to apply to first-strike military operations against organized armed groups.

There is, however, an even deeper problem with Adil’s argument that the need to protect human beings from military operations counsels a definition of NIAC that does not require adequately intense hostilities: if that is true, there is also no reason why the application of IHL should require armed groups to be organized. All of Adil’s arguments against the intensity requirement apply equally to the organization requirement. If we need to protect human beings from the dangers of first-strike military operations by states against organized armed groups, surely we also need to protect them from the dangers of first-strike military operations by states against unorganized armed groups. After all, Adil’s central argument is that the inherent danger of military operations means that IHL should apply to a first-strike regardless of whether that military operation leads to any kind of hostilities.

I see no convincing response to this criticism. It is tempting to argue that the organization requirement is important because a first-strike military operation against an organized armed group is much more likely to lead to actual hostilities than a first-strike military operation against an unorganized armed group. But Adil rejects the idea that hostilities are relevant to the application of IHL. He believes IHL should apply even if a first-strike military operation meets with no response whatsoever.

Another potential response would be to argue that first-strike military operations against organized armed groups pose greater dangers for innocent civilians than first-strike military operations against unorganized armed groups. But that would be a difference of degree, not of kind — and thus far from a convincing basis for applying IHL to the former and not the latter. I’m also not sure whether the claim is even empirically sound. It is at least equally plausible to assume that states are more willing to use military force against unorganized individuals whom they can assume will not fight back (or will not fight back effectively) than against an organized armed group with the capacity to respond to a first strike with military operations of its own.

Adil’s desire to protect human beings from the dangers of military operations is laudable, but his claim that IHL should apply to first strikes against organized armed groups cannot be sustained. Not only have states insisted that IHL applies only to hostilities that reach a certain level of intensity, the idea that protecting individuals from the danger of military operations requires eliminating the intensity requirement is underinclusive. Those dangers exist for all military operations, even those against unorganized armed groups. So the only consistent — if still objectionable — position is that IHL applies to any military operation launched by a state, regardless of its object. I’m curious whether Adil would be willing to take that position.