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International Legal Theory and Teaching

Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)

by Julian Ku

Grand Justices of the Constitutional Court, Judiciary Yuan, Republic of China – Taiwan

In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.*  I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here.  But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here)  cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.**  But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point.  Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).

I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision.  But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision.  The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way.  I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority.  No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.

There are, of course, international relations implications from this decision.  Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia.  This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.

*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.

**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.

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.

Why Unilateral Humanitarian Intervention Is Illegal and Potentially Criminal

by Kevin Jon Heller

I read Jennifer Trahan’s post yesterday with great interest — but not surprisingly I disagree with it. Before I get to my disagreements, though, I think it’s bizarre that we are all debating the legality of unilateral humanitarian intervention in the context of the recent US missile attack on Syria. It simply beggars belief to think that the attack was in any way motivated by humanitarian concerns. Chemical weapons, which have killed perhaps 2,000 civilians, are not the problem in Syria; conventional weapons, which have killed hundreds of thousands, are the real threat. And the US has done absolutely nothing to protect Syrians from conventional weapons — it has simply funnelled even more into the country to support various rebel groups (including some that are allied with al-Qaeda) in their struggle against Assad. The US cares about protecting its own interests in Syria, such as preventing chemical weapons from being used against Americans. (The real message of the completely ineffectual attack.) It does not care about the lives of ordinary Syrians, as the ever mounting death-toll indicates.

But let’s put aside the context of the missile attack and focus on Trahan’s legal claims. The first is that unilateral humanitarian intervention (UHI) — the qualifier, of course, is critical — can be legal in the right circumstances. The post, however, doesn’t even come close to establishing that claim. Just consider what Trahan cites in defence of it:

[1] NATO’s intervention in Kosovo, in which “all NATO members supported the intervention designed to stave off ethnic cleansing.” Trahan openly acknowledges that “many did not defend it as ‘humanitarian intervention’ per se, except Belgium” — but that gives away the ballgame. If the 26 other NATO states did not invoke UHI, the attack does not help establish UHI’s legality. As the ICJ pointed out in the Nicaragua case (para. 207), not even the Court itself has the “authority to ascribe to States legal views which they do not themselves advance.” So it doesn’t matter whether Trahan and other scholars would like to describe Kosovo as an example of UHI. All that matters is that NATO states could have invoked UHI but chose not to.

It is also telling that Trahan fails to point out that the Kosovo intervention met with significant international criticism. Here are Vaughan Lowe and Antonios Tzanakopoulos in the Max Planck Encyclopedia:

33  The response of other, non-NATO, States to arguments that there was a legal basis for the Kosovo bombing campaign and for a right of humanitarian intervention was overwhelmingly negative. The Non-Aligned Movement (NAM), numbering well over half of the Member States of the UN, unequivocally condemned the use of force against the (then) FRY, as did many other States, some of which are nuclear powers. In these circumstances, no right of unilateral forcible humanitarian intervention can be said to have emerged as a rule of customary international law.

[2] UK and US no-fly zones in Iraq. Once again opinio juris is lacking: the coalition initially provided no legal justification for the no-fly zones, and the US later justified them as self-defence (against threats to coalition aircraft, a wonderfully circular argument).

[3] ECOWAS’s interventions in Liberia in 1990 and Sierra Leone in 1998. Same problem: as Adam Roberts has pointed out, ECOWAS never invoked UHI to justify its actions. It relied instead on provisions in its own founding treaty.

[4] The UK’s endorsement of UHI in Syria, particularly in the context of the 2013 sarin gas attack that killed hundreds if not thousands. Unlike the other examples, this endorsement does, in fact, contribute opinio juris in favour of UHI.

So, there we have it: one state that explicitly and regularly endorses a right of UHI.  And against that, we have the unequivocal rejection of UHI by the 120 states that are part of the Non-Aligned Movement and the 134 states that are part of the Group of 77, which includes major powers like China, India, and South Africa. (The two groups obviously overlap.) How any scholar could conclude that customary international law nevertheless recognises a right of UHI, however limited, is simply beyond me.

For similar reasons, I also reject Trahan’s confident claim that UHI could never be criminal. Here is what she says:

Humanitarian intervention, narrowly construed, then clearly also would not constitute the crime of aggression, which is poised to activate this December 2017 before the International Criminal Court. (Anything in a legal “grey area” is excluded from that definition—and, at minimum, humanitarian intervention (sometimes supported and sometimes invoked) is within that legal grey area. The U.S., a non-State Party to the ICC’s Rome Statute, would be exempt from the crime’s jurisdictional reach, even if it does activate.)

I disagree. To begin with, during the Kampala Review Conference in 2010, states soundly rejected the US’s attempt to specifically exclude UHI from the crime of aggression. Here is the text of the US’s failed Understanding:

It is understood that, for purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression.

More importantly, the fact that scholars insist UHI can be legal does not make the legality of UHI fall into a “grey area.” On the contrary, it is difficult to imagine any issue that is more black and white given state practice. Article 2(4) of the UN Charter is clear: force is legal only when authorised by the Security Council or in self-defence. UHI does not involve the former by its very definition, and there is no argument de lege lata that UHI can be justified as a form of self-defence, because it does not involve an armed attack on the intervening state. Adil Haque made that point in response to Jens’s recent post, and here are Lowe and Tzanakopoulos again:

23  Humanitarian intervention in order to alleviate the suffering of a local population cannot, without more, be justified as self-defence. Self-defence under Art. 51 UN Charter requires that an armed attack occur against a State. In most cases, widespread violations of human rights will not reach the gravity threshold of an armed attack. Even if the oppression does reach the threshold of an armed attack, however, there will be no armed attack against a State, but at most an armed attack against the population of the State by or with the support or inaction of State authorities. The right to self-defence under international law vests in States and not in sub-State entities such as the local population. Moreover, the oppression will, ex hypothesi, not emanate from another State, but will be by the government upon its own people.

The illegality of UHI under Art. 2(4) is, of course, not set in stone. As Lowe and Tzanakopoulos rightly note, UHI could become legal through subsequent state practice that results in a new interpretation of the provision or (possibly) through the emergence of a supervening customary rule. But that has clearly not happened, given G77 and NAM’s ongoing and unwavering opposition to UHI.

It is unlikely, of course, that the ICC will ever prosecute a government official who is responsible for preparing, planning, initiating, or executing a UHI — and not simply because of the new crime of aggression’s crimped jurisdictional regime. But that does not mean UHI does not manifestly violate the UN Charter. It most certainly does.

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.

So . . . What do you think should be in your international law textbook?

by Duncan Hollis

I’m honored to have been invited by Allen Weiner to join him in the forthcoming 7th edition of the textbook, International Law, which he previously edited with the late Professor Barry Carter. We’re just beginning the effort of pulling together the new edition for Aspen this Spring and Summer.

Before we get too far along, I wanted to invite feedback from readers who have used the textbook on what they think of the text.  In particular, we’re interested in hearing about areas that we should be focusing on more closely or areas that we need to avoid cutting as we try to keep the text to a manageable length.  That said, I’d welcome more general feedback on what you like or don’t like about the textbook as well.  Moreover, for those of you who haven’t read it, I’d be interested in suggestions for cases or materials you’ve always wanted to see included in a basic introductory text for international law that have yet to receive sufficient attention.

Of course, I can’t guarantee that we’ll be able to respond to any and all suggestions, let alone adjust the next edition too dramatically from its roots.  Still, I know I speak for Allen in saying that we want to have an open door to new ideas and concepts.  So, feel free to comment below or e-mail me directly if you have suggestions, criticisms, or other thoughts to offer.  Thanks!

 

Symposium on Asia and International Law

by Chris Borgen

The forthcoming issue of the European Journal of International Law will feature an article by Professor Simon Chesterman, the Dean of the National University of Singapore’s Faculty of Law, entitled Asia’s Ambivalence About International Law and Institutions: Past, Present and Futures. This week, Opinio Juris and EJILTalk will hold a joint symposium on the two blogs on Professor Chesterman’s article.

The article’s abstract explains:

Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international organizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.

The symposium will begin on Monday with an opening post by Professor Chesterman, followed by posts on Opinio Juris by Professor Tony Anghie of the National University of Singapore and on EJILTalk by Professor Eyal Benvenisti of Cambridge University.  On Tuesday, Opinio Juris will have commentary by Professor B.S. Chimni of Jawaharlal Nehru University and EJILTalk will have a piece by Professor Robert McCorquodale of the University of Nottingham and the Director of the British Institute of International and Comparative Law.   Wednesday will have observations and reactions on Opinio Juris by Judge Xue Hanqin  of the International Court of Justice and on EJILTalk by Judge Paik Jin-Hyun of the International Tribunal for the Law of the Sea. Finally, there will be a closing post pn both blogs by Professor Chesterman on Thursday.

We hope you will join us on both blogs for the discussion.

Boer on Footnotes in Use of Force Scholarship

by Kevin Jon Heller

My friend Lianne Boer, who recently finished her PhD at VU Amsterdam, has just published a fantastic article in the Leiden Journal of International Law entitled “‘The greater part of jurisconsults’: On Consensus Claims and Their Footnotes in Legal Scholarship.” Here is the abstract:

This article portrays the use of consensus claims, as well as their substantiation, in the debate on cyber-attacks and Article 2(4) of the UN Charter. Focusing on (re)interpretations of the prohibition on the use of force in the light of cyber-attacks, the article first shows how scholars appeal to the ‘majority opinion’ of scholars or the ‘generally accepted’ interpretation of the norm. It points out the different uses of these ‘consensus claims’, as I refer to them, and what scholars invoke exactly when referring to this elusive majority. Elaborating on this ‘elusive’ nature of consensus, I argue that the appeal of a consensus claim lies precisely in its invocation of a fairly mystical ‘out there’. Consensus, as it turns out, evaporates the moment we attempt to substantiate it, and this might be precisely where its strength lies. The second part of the article thus shifts focus to how these claims are substantiated. An empirical inquiry into the footnotes supporting consensus claims reveals that, most of the time, writers refer to the same scholars to substantiate their claims. Making use of Henry Small’s idea of ‘concept symbols’, the article argues that these most-cited scholars turn into the ‘bearers’ of majority opinion. On the level of the individual academic piece, the singular reference might appear to be fairly innocent. Yet, when considered as a more widespread practice of ‘self-referentiality’, it seriously impacts who gets a say – and thus, ultimately, what we know – in international law.

This is truly innovative scholarship — the kind of work that makes you ask yourself, “why didn’t I think of that?” Well, Lianne did think of it. And I hope her article, as well as her dissertation, spurs similar work in other areas of international law.

Read Boer!

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.

Homage to California? (More on What Calexit Teaches Us About Secessionist Movements)

by Chris Borgen

Law professors should not be political prognosticators.  That’s probably something on which we can all agree.  Nonetheless, here’s my prediction: despite the current buzz (see also, this), California will not secede from the United States. Sorry, Silicon Valley Hamiltons.  However, the “Yes California” movement, spurred on by a Trump presidential victory can be instructive on the law,  psychology, and incentives behind more robust secessionist movements around the world.

As Julian mentioned in a post earlier today, the “#Calexit”  movement is seeking a referendum on secession in 2019.  The  group’s website states:

“As the sixth largest economy in the world, California is more economically powerful than France and has a population larger than Poland. Point by point, California compares and competes with countries, not just the 49 other states.”

In our view, the United States of America represents so many things that conflict with Californian values, and our continued statehood means California will continue subsidizing the other states to our own detriment, and to the detriment of our children.

Although charity is part of our culture, when you consider that California’s infrastructure is falling apart, our public schools are ranked among the worst in the entire country, we have the highest number of homeless persons living without shelter and other basic necessities, poverty rates remain high, income inequality continues to expand, and we must often borrow money from the future to provide services for today, now is not the time for charity.

This statement, and much about the movement, is like a study in secessionist politics, albeit with a sun-kissed white wine and Jacuzzis twist.  OK, that Jacuzzi quip may be snarky, but I wanted to attach an image to this idea: the yearning for Calexit, such as it is, is an example of a wish for a “secession of the successful” (to use a term political geographers John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga used to describe the attempted  Transnistrian secession from Moldova, actually). These types of separatist movements, in which the separating group wants to stop paying rents to the central government and/or keep resources within their own territory for themselves, are generally called “tax exits.”

The Transnistrian, Slovenian, and Croatian separations or or attempted secessions all had elements of tax exits. (See P. Collier & A. Hoeffler, ‘The Political Economy of Secession’, in H. Hannum & E. F. Babbitt (eds), Negotiating Self Determination (2006), 46 (concerning Slovenia and Croatia)). This is not even a solely a phenomenon of nation-building.  In the U.S., we have even had new towns made up of wealthy neighborhoods that separated themselves from existing municipalities over tax allocations.

Perhaps the best analogy, though, is Catalonia.  Relatively wealthy,  a large export economy, and the hub of creative industries in Spain, Catalonia even looks like parts of California (or vice versa). A common complaint is that wealth generated in Catalonia is redistributed by the national government to regions that are economically weak.

Now, here’s what the Calexiters argue:

Since 1987, California has been subsidizing the other states at a loss of tens and sometimes hundreds of billions of dollars in a single fiscal year. As a result, we are often forced to raise taxes and charge fees in California, and borrow money from the future to make up the difference. This is partly why California presently has some of the highest taxes in the country, and so much debt. Independence means that all of our taxes will be kept in California based on the priorities we set, and we will be able to do so while repaying our debts and phasing out the current state income tax.

You can’t state more clearly that a tax exit is a significant motivating factor for Calexit.

So, if a majority of Californians say “yes to California,” do they have a right to become their own country under domestic law or international law?

Julian answered the domestic law question in his post.

As for international law, the right to self-determination is described in Article 1 of both the International Covenant of Civil and Political Rights Covenant and the International Covenant on Economic, Social and Cultural Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, while Catalans, for example, can make a credible argument that they are a distinct people with their own language and culture and a heritage as a significant nation in European history, Calexiters are mainly upset about the recent election and would like to hang on to more tax revenues.  Those are disputes over policy, but not claims of an independent national identity.

Regardless, since the birth of the United Nations, diplomats and jurists emphasized that a right of self-determination does not provide a remedy of secession outside of the context of decolonization. A broad right to secession would have clashed with a cornerstone of the UN, the territorial integrity of states. Outside of the context of decolonization, the right of self-determination for communities that are within already existing states is understood as a right to “internal” self-determination: the pursuit of political, cultural, linguistic, and other rights within the existing state (in this case, the U.S.).

However, secession is not in and of itself illegal under international law (although it may be linked to an act that is breach in international law, such as a military intervention by another state: think Russia invading Georgia to assist South Ossetia.)

While secession may be neither a right nor illegal under international law, secessionist acts are usually illegal under domestic laws.  Taken together, whether or not a secession is successful begins as a domestic political struggle, framed by the legal system of the pre-existing country and sometimes implicating international law due to intervention by other countries (or if the secession becomes a non-international armed conflict, but that’s another story).

All this sounds quite exotic in the context of some tech industry founders applying their credo of “disruption” to national politics. (I’m just waiting for the first Calexiter to say he or she aims to “break shit.”)  The short answer is that there is no right for California to secede under either domestic or international law.

However, the rhetoric of self-determination is enticing to would-be nation-builders and Calexiters make many of the same mistakes as other tax exit secessionists:

First, they assume there is a clear path to secession, when that is rarely the case.  Talk to the Catalans about this.  They have mustered hundreds of thousands of people in the streets in (more…)

Don’t Blame IHL for Attacks on “Hospital Shields”

by Kevin Jon Heller

Just Security published a very interesting post yesterday entitled “Military Attacks on ‘Hospital Shields’: The Law Itself is Partly to Blame,” which seeks to explain why deliberate attacks on hospitals are becoming increasingly common — in Syria, in Yemen, and elsewhere. The authors acknowledge that deliberate attacks on hospitals are almost always unlawful under IHL, because they violate the principle of distinction. But they nevertheless insist that “[t]he tragic irony is that international humanitarian law itself offers the legal toolkit for these regimes to justify the bombing of hospitals.”

The argument is provocative, but it is also misguided. And the authors’ solution is, I think, worse than the problem.

Let’s take a look at the how the authors believe IHL itself helps justify the bombing of hospitals. They cite two interrelated rules. Here is the first:

First, the logic of the human shields clauses can, it seems, quite easily be transferred to medical facilities. International law prohibits the use of civilians as human shields to protect military targets, but it also permits the attacking forces to kill human shields as long as they abide by the principle of proportionality. In this instance, then, international law ceases to protect civilians and actually becomes a weapon of the strong, protecting those who kill non-combatants. By extension, if hospitals are used as shields, they too can be bombed provided the principle of proportionality is not breached.

This argument is absolutely correct. Yes, human shields can be killed as long as they are not directly targeted and as long as an attack on the legitimate military objective they are shielding does not kill them disproportionately. And yes, the same goes for civilians objects, including hospitals, that are being used to shield military targets. But it is not clear what is problematic about either of those IHL rules, which are straightforward expressions of distinction and proportionality — unless you think that combatants should be able to render themselves completely immune from attack by hiding in hospitals. (Which is precisely what the authors think, as discussed below.) You don’t have to be soft on the military to suggest that combatants should not be able to use the protection IHL offers hospitals to gain a military advantage over their enemy.

Moreover, the authors fail to note that even though IHL permits “hospital shields” to be attacked, it imposes significant restrictions on such attacks. Most importantly, Art.19 of the Fourth Geneva Convention provides that hospitals being misused lose their protection against attack “only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.” Assuming that the attacking military complies with Art. 19 (and it is hardly IHL’s fault if it doesn’t), no hospital will be attacked that has not had an opportunity to expel the military objective it is shielding. IHL thus puts so much emphasis on protecting hospitals that it would rather require an attacker to let the enemy escape unharmed rather than apply the normal targeting regime of distinction and proportionality.

A similar problem undermines the authors’ argument concerning the second rule:

Second, international law affirms that the protection to which hospitals are entitled is revoked when they are “used to commit, outside their humanitarian duties, acts harmful to the enemy.” This extremely vague formulation lends itself to those who target hospitals. Unlike IHL clauses prohibiting torture, which are absolute, applying at all times and in all circumstances, the articles relating to the bombardment of hospitals are conditional. Therefore, in certain “exceptional” situations medical facilities do lose their protected status.

This argument is vastly overstated. Is the “acts harmful to the enemy” formulation “extremely vague”? Sometimes, perhaps. But certainly not always. Art. 19 makes clear, for example, that “[t]he fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service, shall not be considered to be acts harmful to the enemy.” IHL can thus hardly be blamed when a military justifies attacking a hospital by claiming that the hospital was treating enemy soldiers. (A claim made by Afghanistan regarding the MSF hospital in Kunduz.)  Any such attack categorically violates IHL.

There is also widespread agreement about what kinds of acts do qualify as “acts harmful to the enemy.”  The ICRC’s commentary to Art. 21 of the First Geneva Convention is typical:

Such harmful acts would, for example, include the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack.

It is possible to criticise this understanding of harmful acts as being overbroad and in need of revision. I, for one, have a problem with the idea that a hospital can be attacked simply because combatants are using it as “an arms or ammunition dump.” Given the importance IHL puts on protecting medical units, that doesn’t strike me as enough to justify a hospital forfeiting its protected status. I might even be convinced that the mere presence of unwounded combatants in a hospital shouldn’t justify a deliberate attack.

But the authors are not arguing for a tightening of the rules that govern when hospitals can be deliberately attacked. No: because they believe it is too easy for an attacker to claim that a hospital is shielding a military objective (permitting attack after a warning), they want a categorical rule that prohibits attacking hospitals no matter how they are being used:

The only way to overcome this travesty is if IHL clauses pertaining to the protection of hospitals are reformulated in a way that categorically prohibits the use of lethal force against them. Currently, IHL provides the necessary protections for hospitals, and all that is really needed is to erase the clauses stipulating exceptions since these in essence hand out militaries a license to bomb medical facilities.

In other words, the authors believe that a hospital should be immune from attack even when combatants are using it to attack the enemy. What the attacked forces are supposed to do in such a situation, the authors never explain. Apparently, they are simply supposed to either tolerate casualties or somehow avoid coming within the hospital’s field of fire. (Which may well be impossible, depending on the kinds of weapons the holed-up combatants possess.)

That will never happen, of course. Not even the most professional military will tolerate being fired upon from a civilian hospital — or at least it won’t tolerate it indefinitely, which is what the authors expect. IHL recognises this basic reality of combat, which is why it attempts to strike a balance between humanitarian concerns and military necessity by permitting a hospital that is being used as a shield to be deliberately attacked, but requiring a warning and a reasonable time to comply.

As with the definition of “acts harmful to the enemy,” it is possible to quibble with the procedural requirements for attacking a hospital that is being used as a shield. Perhaps IHL should avoid using a mushy “reasonableness” test for the length of the warning a military must give before attacking a hospital, imposing a minimum amount of time instead. I’d be open to that. But again: the authors are not trying to strike an appropriate balance between humanity and necessity. They simply want a categorical ban on attacking hospitals — even those that are genuinely being used to shield military objectives.

I understand (and am sympathetic to) the reasoning behind the authors’ position. They don’t want innocent civilians, especially medical personnel and the wounded, to pay the price for the actions of combatants who have no respect for IHL. Hospitals don’t choose to be misused by combatants, and there will almost certainly be situations where combatants simply refuse to leave a hospital that has been warned of an impending attack. So hospitals may well find themselves in an impossible situation: subject to attack because their premises are being misused, but unable to do anything about it.

The answer, however, is not to categorically prohibit attacking hospitals. As noted, militaries would never comply with such a prohibition. And, of course, such a prohibition would ensure that combatants who don’t respect IHL will use hospitals as a shield as often as possible. The authors begrudgingly acknowledge that possibility, writing that “[s]ome might argue that such norms will produce the perverse incentive among certain belligerents to use hospitals as shields.” But that is a serious understatement. Some might argue? What IHL scholar wouldn’t? Why would a military that doesn’t respect IHL not use a well-placed hospital as a shield if doing so renders its forces absolutely immune from attack?

The authors are correct that anything short of a categorical prohibition on attacking hospitals will leave open the possibility of militaries inventing facts to justify attacks. That is the nature of IHL rules that are not categorical — and a reflection of the fact that IHL is neither purely humanitarian nor purely war-enabling. The authors’ solution, however, is worse than the problem. A categorical prohibition will not prevent IHL from being misused; it will simply ensure that IHL is ignored — resulting in far more “incidental” deaths than under the current IHL rules. The better solution (absent a tightening of the rules as discussed above) is to searchingly examine the legitimacy of each and every attack on a hospital and hold militaries to account when they use the concept of the “hospital shield” to justify an unlawful attack.

And that, of course, is exactly what IHL requires.

New Article on SSRN

by Kevin Jon Heller

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

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

As always, comments welcome!

New (And Better) Eligibility Rules for the Lieber Prize

by Kevin Jon Heller

Last year, I criticised ASIL for limiting its very prestigious Lieber Prize to academics under 35. I described that limit as “ageist,” noting that in today’s academic world there are many law professors over 35 who, because they joined academia late, should rightfully be considered junior scholars. So I am delighted to note that ASIL has changed the eligibility criteria for the 2017 Lieber Prize:

Anyone may apply for the article or book prize. For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in academic teaching or research position. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

This is a much better approach to eligibility. Kudos to ASIL for the change.


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