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International Legal Theory and Teaching

The Return of the Emoji: Flags, Emoji, and State Recognition

by Chris Borgen

I thought I had largely said what I had to say concerning emojis and international law in my previous post. SRSLY. 😉

But then John Louth, who knows of my interest in issues of recognition and non-recognition of aspirant states, pointed out this article from Wired which discusses, among other things, the issue of which national flags are awarded emoji and which are not. So let us return to the emoji for another post.

Consider the following passage for the Wired article:

…the most contentious emoji arena isn’t food, or even religion. It’s flags. From October 2010 until April 2015, there were a limited number of flag emoji, including the Israeli flag—but notably, no Palestinian flag. When the Palestinian flag was added—along with some 200 other flag emoji—it was cause for celebration.

Palestine exists in an unusual limbo in international law. It is recognized by some countries as Palestine, and by others as the Palestinian Territories.

“Technology has been used as a weapon to revolutionize the Middle East, and now it is being used as a weapon to legitimize Palestine,” wrote Palestinian columnist Yara al-Wazir at Al Arabiya earlier this year. “Introducing the Palestinian flag as an emoji is more than just a symbolic gesture.”

The article then goes on to note that some national groups, such as the Kurds, do not have flag emojis.

So, how does the Unicode Consortium, a non-state actor, decide whether to assign a symbol for the flag of an entity claiming to be a state, especially if that statehood is contested? (For more on the Unicode Consortium, please see my previous post.) The Consortium’s FAQ explains the criteria:

The Unicode Standard encodes a set of regional indicator symbols. These can be used in pairs to represent any territory that has a Unicode region subtag as defined by CLDR [Common Locale Data Repository], such as “DE” for Germany. The pairs are typically displayed as national flags: there are currently 257 such combinations. For more information, see Annex B: Flags in UTR #51.

In other words, the Consortium’s regional indicator symbols are based on the International Organization for Standardization’s (ISO’s) two-letter country codes.

As described on its own website, the ISO is:

an independent, non-governmental organization made up of members from the national standards bodies of 162 countries. Our members play a vital role in how we operate, meeting once a year for a General Assembly that decides our strategic objectives.

Our Central Secretariat in Geneva, Switzerland, coordinates the system and runs day-to-day operations, overseen by the Secretary General.

It also describes itself as a network of national standard–setting bodies.  With its combination of a permanent secretariat as well as a bureaucratic network, the ISO has aspects of both an intergovernmental network and an international organization.  (See more on ISO governance, here.)

To receive a top-level country code from the ISO, an entity must be: (a) a United Nations member state, (b) a member of a UN specialized agency, or (c) a party to the Statute of the International Court of Justice.

Thus, the Unicode Consortium’s decision-making process to decide whether or not to assign a glyph for a country flag is based on the decision by the ISO, an organization with significant national government involvement, on whether or not a territory receives a country-code. The ISO’s decision is itself reliant on the aspirant entity’s relationship to the United Nations.

In short, the ISO has a two-letter designator for Palestine (see, for example, this ISO newsletter [.pdf]), so the Consortium by its own rules can (though does not have to) assign a code for the flag of Palestine. No ISO code for a Kurd state; no Kurdish flag emoji. And all of these stem from degrees of relationship of these entities to the UN.

In sum, a non-state consortium is basing its decisions on a state-based regulatory network (the ISO), which in turn is using criteria based on an intergovernmental organization (the UN). The result in the case of flag emojis is that the Consortium unlikely to assign a flag where the  ISO is not willing to assign a separate country code, and ISO will not assign such a code without first looking to UN practice.

Receiving a flag emoji is not the recognition of a state by another state or even by an interstate organization. Nonetheless there are many hurdles to the designation of a flag emoji. Given the significant state interest in issues of recognition, explicit or implied, this is not surprising.

And if readers find other interesting overlaps of the Unicode Consortium, emojis, and international law, please let me know!

Emojis and International Law

by Chris Borgen

Emojis: love them or hate them, you can’t seem to get away from them.  🙂  The smiley face, the thumbs-up, the smiling pile of poop, and the hundreds of other little symbols and pictograms that get used in text messages, tweets, and the like.  And tomorrow, June 21, we will have 71 new emojis to play with.  Why will there be new emojis tomorrow? And what does this have to do with international law? Read on


First, a bit of background: while the smiley face is very much an iconic 1970’s symbol (“Have a Nice Day!’), the use of what we would call emoji in electronic communications started in the 1990’s in Japan, for use in cellphone texts.  Each little frowny face or thumbs-up, though, needs to be mapped using a common standard, or else it would only be able to be seen on certain platforms (say, an Android smartphone) but not on others (such as a Mac).

Consequently, there is actually an approved set of “official” emojis that can work across multiple software and hardware platforms and that new emojis are released once a year by a standard-setting organization called the Unicode Consortium, “a non-profit corporation devoted to developing, maintaining, and promoting software internationalization standards and data, particularly the Unicode Standard, which specifies the representation of text in all modern software products and standards.”  The Consortium’s membership includes Apple, Adobe, Google, Microsoft, Oracle, and Yahoo, among others. By providing cross-platform standards, the Consortium is essentially making the soft law of the interoperability of symbols across different programs and devices. 😎

Proposals for new emojis are made to the Unicode Consortium, which then reviews and decides which symbols  should become standard and how they should be encoded. There are currently about 1,300 emojis, with about 70 added each year.   (By way of perspective the total  “Unicode Standard is mammoth in size, covering over 110,000 characters. “) The list of new emojis being released on June 21 is here.  Can’t wait to use the team handball emoji!

But, besides this being an unexpected story of industry standard-making bodies and funny little symbols, one must keep in mind that the Unicode Consortium’s responsibilities go well beyond encoding the broken heart glyph. As NPR reported last year:

The Unicode Consortium’s job has always been to make basic symbols work across all computers and other devices, but the emoji has put the group at the center of pop culture.

“Our goal is to make sure that all of the text on computers for every language in the world is represented,”

However, as Mashable notes:

getting characters added to the Unicode Standard is a long, drawn-out process. In addition to the original Japanese emoji characters, the Unicode additions included other new characters — such as country maps and European symbols.

What this means is that there is a data file that maps every individual emoji symbol to a Unicode code point or sequence.

But this is just the standardization of the symbols. Supporting emoji, as well as the specific design of the emoji characters, is up to software makers.

Thus, the administrative scaffolding that makes emojis ubiquitous is based on a non-governmental standard-setting body using soft law to allocate Unicode points or sequences to symbols (be they emojis, letters, mathematical symbols, etc.) that are approved by the Consortium.   The approval of emojis is simply one example of a set of responsibilities with much broader implications than just whether “nauseated face” deserves its own encoding. (According to the Consortium, it does.)

Besides interest in the process of institutional decision-making in standard-setting bodies such as the Consortium, there is also a question  of whether the Consortium’s overall goal of ensuring that the script of every language in the world is represented digitally is in tension the current focus on encoding more and more emoji.  Some have expressed concern that this focus on emojis may divert time and resources away from the protection of endangered languages. Peoples who are trying to preserve endangered languages (such as, for example, Native American and First Nation languages) would be greatly helped if the alphabet of that language would be as easy to read across a variety of computer platforms and digital devices as a smiley-face. Consider this an issue of resource allocation.  Letterjuice, a Brighton and Barcelona-based type foundry, posted a thoughtful essay on Unicode and language rights, which stated: (more…)

Alexander Hamilton, the New Republic, and the Law of Nations

by Chris Borgen

There’s this musical on Broadway. It’s called Hamilton.  You might have heard of it. It’s causing legal scholars to say things like “I admired Hamilton since before he could rap,” and “My Shot has a pretty good lyric but have you tried Federalist no. 6?”

Anyway, a short note on A. Ham. and the law of nations seems in order.  For the following, I am particularly indebted to  Mark Janis’ book America and the Law of Nations 1776-1939 (Oxford 2010), David Bederman’s volume The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge 2008) and Hamilton’s Republic (The New Press 1997), a compilation of writings by Alexander Hamilton and later “Hamiltonian” writers edited and introduced by Michael Lind. These authors and others writing about Hamilton do not necessarily come to the same conclusions regarding his views on what we now call international law, but rather provide  varying perspectives on a complex man.

By way of background, the views of the founders were in part shaped by their education in classical history as well as Enlightenment philosophy.  David Bederman, in his study of classical thought and the U.S. Constitution, wrote that “[s]tarting first with classical writers in Greek, the Framing generation particularly prized the works of Plato, Aristotle, Thucydides, Polybius, and Plutarch, in that rising order of esteem.” (Bederman, 15.)   Thucydides’ international realism and Polybius’ conception of a “mixed constitution” combining monarchy, oligarchy, and democracy were especially influential on the founding generation. Hamilton was particularly fond of quoting Plutarch, whose biographies combine issues of public policy and state building with individual moral choice. (Bederman,16-17; 22.) Hamilton and other founders may have used “instrumental classicism,” to support their political arguments, but they also did a “reputable job in trying to make sense of antiquity,” with Hamilton among the “best” classicists. (Bederman, 228.)

Beyond classical history and philosophy, the founders were also influenced by Enlightenment philosophy and, as a group, were well-versed in the 18th century law of nations and often referred to it in their writings. Mark Janis, in the first volume of his history of the United States and international law, argued that “[n]o group of America’s leaders have ever been more mindful of the discipline[of international law] than were the Founding Fathers.” (Janis, 24.)

In relation to studies in natural law at Kings College (later, Columbia University), Alexander Hamilton suggested in 1775 a reading list of “Grotius, Pufendorf, Locke, Montesquieu, and Burlemaqui.” (Janis, 24-25.) This shows, at least, his exposure to foundational texts of international law.  However, suggesting a reading list on natural law and actual application of the law of nations in practice are two different things. So, how concerned was Alexander Hamilton with the application of the law of nations to the “young, scrappy, and hungry” republic?

Here we can see some divergence in interpretation by scholars. Janis notes that in 1795 Hamilton (more…)

Abkhazia Defeats Panjab in Overtime for ConIFA World Football Cup

by Chris Borgen

I know Opinio Juris is probably not where you come for sports updates but this is the result of the ConIFA World Football Cup, a tournament among unrecognized regimes, minorities, and stateless peoples.

For more on ConIFA, statehood, and nationalism, see my post from last week.  In short, the ConIFA competition may be an attempt not only to boost morale within unrecognized regimes, ethnic enclaves, and stateless people, but also remind the rest of the world of the claims that these groups have, be they claims of statehood or simply a desire to be recognized to exist as a people. Consider the following from an article posted by Al Jazeera:

…CONIFA’s president Per-Anders Blind explained how this World Cup has nothing to do with politics and borders.

“Our aim is to show that football can be a tool to bring our members to the global stage. We all have the same right to exist,” he said.

Chewing on a little pouch of “snus’, a Swedish chewing tobacco, Blind described how the idea for the CONIFA World Cup was inspired by his own life experience.

“My father is a reindeer herder in the Swedish and Norwegian mountains. I was born and raised as part of a group of forgotten people, the Sami, and endured discrimination because of that.”

Blind’s comments are reminiscent of the Olympic ideal to “use sport to foster peace and reconciliation, underlining the power of the Games to promote tolerance and solidarity among the participants, fans and people all over the world.”  Perhaps the founders of ConIFA were frustrated that membership international sports organizations such as the International Olympic Committee and (particularly relevant to ConIFA) FIFA, was too intertwined with statehood to extend these ideals to unrecognized regimes and stateless peoples. As the ConIFA website states, echoming the Olympic ideal,

CONIFA aims to build bridges between people, nations, minorities and isolated regions all over the world through friendship, culture and the joy of playing football. CONIFA works for the development of affiliated members and is committed to fair play and the eradication of racism.

But it can be difficult to set aside issues of politics, borders, and laws when the membership of ConIFA is practically defined by its tension with existing borders, politics,and/ or laws. While the structures of the International Olympic Committee and FIFA may favor recognized states, the tournament organization of ConIFA itself steps from the sports field into the arena of high politics.   Abkhazia, the Georgian breakaway region, not only won the tournament but was also the host. While the tournament may be a morale-booster for the population of Abkhazia, it was played in territory that Georgia views was taken from it by a Russian military invasion.   The Al Jazeera article notes that:

Georgian officials have complained that the CONIFA tournament is illegal since it it lacks Georgia’s authorisation within what it considers to be its territorial boundary. According to Georgian law, participants entering Abkhazia through Russia would be entering Georgian territory illegally.

The ConIFA World Football Cup symbolizes different things for different people. For some, it is an affirmation that they, too, matter. For others, the tournament is affront to the rule of law. And for some, it might just be a chance to watch the home team play a game of soccer. In any case, though, it matters.

Videos and summaries of the games are available at the ConIFA website. (And, by the way, Northern Cyprus beat ConIFA heavyweights Padania for the third place trophy.)

Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

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

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

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

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

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

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

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

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

Your thoughts, Jens?

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

The Ruto Trial Chamber Invents the Mistrial Without Prejudice

by Kevin Jon Heller

As readers no doubt know, on Tuesday the ICC’s Trial Chamber declared a “mistrial” in the case against William Ruto and Joshua Arap Sang. The decision likely puts an end to the fiasco of the Ocampo Six — now the “Ocampo Zero,” to borrow Mark Kersten’s nicely-turned expression — although the Trial Chamber dismissed the charges “without prejudice,” leaving the door open for the OTP to prosecute Ruto and Sang again if its evidence ever becomes stronger.

The decision is obviously terrible for the OTP. And it is difficult not to feel sympathy for its plight: although I fully agree with the majority that no reasonable finder of fact could convict Ruto and Sang on the evidence presented during the OTP’s case-in-chief, Kenya has consistently refused to cooperate with the Court (despite its treaty obligations under the Rome Statute) and the allegations that pro-Ruto and Sang forces intimidated (and perhaps even killed) witnesses seem well-founded. In the absence of those serious limitations on its ability to investigate, it is certainly possible the OTP might have been able to establish a case to answer.

In this (extremely long) post, however, I want to address a different issue: the majority’s decision to declare a mistrial and dismiss the charges against Ruto and Sang without prejudice, instead of entering a judgment of acquittal. That is very much a distinction with a difference: had the majority acquitted Ruto and Sang, the OTP could not prosecute them again for the same conduct, because Art. 20 of the Rome Statute — the ne bis in idem provision — specifically provides that “no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.”

My question is this: where did the majority get the idea it could declare a mistrial instead of granting the defence’s no-case-to-answer motion? Unfortunately, Neither Judge Fremr nor Judge Eboe-Osuji provide a convincing answer to that question. On the contrary, they have simply invented the possibility of a mistrial in order to leave open the possibility of Ruto and Sang being re-prosecuted…

AJIL Unbound Symposium on Third World Approaches to International Law

by Kevin Jon Heller

AJIL Unbound has just published a fantastic symposium entitled “TWAIL Perspectives on ICL, IHL, and Intervention.” The symposium includes an introduction by James Gathii (Loyola-Chicago) and essays by Asad Kiyani (Western), Parvathi Menon (Max Planck), Ntina Tzouvala (Durham), and Corri Zoli (Syracuse). All of the essays are excellent and worth a read, but I want to call special attention to Ntina’s essay, which is entitled “TWAIL and the ‘Unwilling or Unable’ Doctrine: Continuities and Ruptures.” Here is a snippet that reflects her central thesis:

The similarities between this practice and the prominent role of nineteenth-century international legal scholars in the construction of the “civilizing” discourse of the time are striking, even if “[s]ubsequent generations of international lawyers have strenuously attempted to distance the discipline from that period.” Imperial aspirations tied to such arguments also form a “red thread” that connect “the standard of civilization” with the “unwilling or unable” doctrine. The unequal international legal structure promoted by these arguments is intimately linked to an unequal political structure, characterized by the dominance of the Global North over the Global South. More specifically, states of the Global North are enabled to use force against the sovereignty and—importantly—the life and security of the citizens of states of the Global South in pursuing the former’s “war on terror” and the political and economic agendas accompanying it. Moreover, pressure is exerted upon states of the Global South to transform themselves and adopt policies appealing to powerful states, if they want to avoid being branded “unwilling or unable.” A strong parallel can be detected between this transformative process and the pressure exerted upon peripheral states during the nineteenth century to introduce reforms that would render them “civilized” and, hence, equal to Western states.

Ntina makes a number of points in the essay that I’ve tried to make over the years — but she does so far better than I ever have or could. For anyone interested in the “unwilling or unable” doctrine, her essay is a must read.

As Ukraine Prepares to Take Russia to UNCLOS Arbitration Over Crimea, I Predict Russia’s Likely Reaction

by Julian Ku

There have been noises coming out Ukraine for years that its government was preparing an international legal action against Russia over Crimea.  It looks like Ukraine has finally prepared to pull the trigger. According to this report, Ukraine is ready to charge Russia with violating the UN Convention on the Law of the Sea in the following ways.

“First, the seizure of fields with mineral reserves and illegal oil and gas on the continental shelf of Ukraine in the Black Sea. Secondly, the unlawful seizure of power to regulate fish catch, unlawful fish catch and not allowing Ukrainian fishing companies to catch fish in the offshore zone near the Crimean peninsula. Third, construction of a gas pipeline, a power line and a bridge across the Kerch Strait without the consent of Ukraine, the unlawful blocking of transit of Ukrainian vessels across the Kerch Strait and the unlawful seizure of navigation rights. Fourth, the conducting of studies of archeological and historical sites in the Black Sea bed without the consent of Ukraine,”

Both Russia and Ukraine have specified arbitration under Annex VII of UNCLOS. So if Ukraine filed a claim, it would follow the same procedure and rules as the one recently followed in the Philippines’ case against China and the Netherlands’ claim against Russia (over the Greenpeace seizures).

Unfortunately for Ukraine, I think I already know how Russia will react to any such arbitral claim.  First, like China has done against the Philippines, it will invoke its declaration under Article 298 excluding disputes “relating to sea boundary delimitations” from the jurisdiction of the UNCLOS arbitral tribunal.

Second, and like China again, Russia will almost certainly boycott the UNCLOS arbitration by refusing to appoint any arbitrators and refusing to show up at the hearings.  It followed this path in the Greenpeace “Arctic Sunrise” arbitration and there is no reason to think it will react any differently this time.

So although Ukraine probably has a good claim under UNCLOS, and it has a good case for jurisdiction as well, it should not get too excited.  Even if it wins its arbitration, it will probably not accomplish a great deal.

New Article on SSRN: “Radical Complementarity” (Updated)

by Kevin Jon Heller

The article is forthcoming in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Cîte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gbagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used complementarity to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

The article brings together thoughts I’ve developed both here at Opinio Juris and in my academic writing. In terms of the latter, it’s something of a sequel to my article “A Sentence-Based Theory of Complementarity.” (Double self-promotion!)

As always, thoughts are most welcome!

NOTE: I have uploaded a revised version of the article to SSRN. Chris’s comment below made me realise I should note my sentence-based theory of complementarity. It’s not a radical change, but — at the risk of seeming like I’m trolling for downloads — you should get the new version if you want to read the article but haven’t already.

Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?

by Julian Ku

When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.

China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise.  And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.

Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless.  Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)?  Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above.  So is it better to simply walk away?  If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether.  Will other states try this approach?

 

Transitional Justice and Judicial Activism Symposium: International Courts and Tribunals Should Have Discretionary Review

by Cesare Romano

[Cesare Romano is Professor of Law, Joseph W. Ford Fellow, and Director of the International Human Rights Clinic at Loyola Law School, Los Angeles. He is also Senior Research Fellow of iCourts, University of Copenhagen, and of Pluricourts, University of Oslo.]

Last September, the President of Colombia, Juan Manuel Santos, and Timoleón Jiménez, the top commander of the Revolutionary Armed Forces of Colombia (FARC), met in Havana to unveil a plan to put an end to the violence that has plagued their country for more than 50 years. According to the National Center for Historical Memory, between 1958 and 2012 about 220,000 people died as a result of the conflict between leftist guerrillas, right-wing paramilitary groups, and government security forces. Of those, about 80% were civilians. Moreover, violence, or the fear of it, created 6 million of refugees or internally displaced persons.

A key aspect of the plan is what sort of penalties the perpetrators of crimes against humanity during the long conflict should face. As agreed in Havana, while the rank-and-file of the FARC’s fighters will receive amnesties, leaders charged with “the most serious and representative” crimes will be judged by a Special Tribunal, containing a minority of foreign judges (para 3 of Joint Communique No. 60) (.pdf). Those who confess and collaborate with a Truth Commission will benefit from alternative penalties: between five and eight years of community work “with effective restriction of liberty”, though not in prison conditions. Those who do not collaborate will go to jail for up to 20 years. Similar procedures will apply to the armed forces and those found guilty of financing right-wing paramilitary vigilantes.

Once upon a time, ending civil wars was fairly straightforward, at least from the legal point of view. In return for demobilizing, insurgents would get an amnesty and, if they were lucky, political reforms or even a hand in writing a new constitution. That was what happened in the Central American peace deals of the 1990s, and with Colombia’s M-19 rebels, active between 1970 and 1990.

However, as Ruti Teitel’s article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf) details, international law has changed since then. Starting from the mid-1990s, the imperative of accountability has moved to the front and center, displacing time-honored transitional justice processes including lustration, exile and the many hard-bargains peoples have made throughout history to turn the page on traumatic events and move on. Nowadays, blanket amnesties that grant impunity for international crimes are, at best, frowned upon, and are even arguably prohibited by international law. Moreover, the range of crimes that cannot be pardoned or amnestied is growing by the day, going beyond jus cogens.

As the Colombian peace process advances, many wonder whether the agreements reached in Havana will pass muster with the International Criminal Court, the Inter-American Court of Human Rights or the UN Human Rights Committee. Will the punishment meted out by the Special Tribunal satisfy the ICC Prosecutor? Some victims will certainly challenge the legality of the agreement before the Human Rights Committee or the Inter-American Commission. The question might even reach the Inter-American Court, as it has been the case in the past with similar processes in Brazil, Uruguay, Chile and Peru. Will the imperatives of accountability and human rights undo the negotiations? Teitel’s article skillfully takes us through the maze of considerations and dilemmas that international judicial involvement in transitional justice efforts create.

I believe time has come to start considering the merits of allowing international adjudicative bodies, like the various international human rights courts, and quasi-adjudicative bodies, like the Inter-American Commission and the Human Rights Committee, to pick and choose their cases.

“Discretionary review” is the authority appellate courts have to decide which cases they will consider from among those submitted to them. The opposite of discretionary review is “mandatory review”, in which appellate courts must consider all appeals submitted (as long as they are admissible and the appellate court has jurisdiction, of course).

Discretionary review is widely employed in all modern and developed judicial systems. It has several advantages. It enables an appellate court to focus its limited resources on cases that have large public benefits, and to decide substantive cases with the lowest “opportunity cost”, thus giving the judges the opportunity to avoid being entangled in disputes where the political stakes are too high. It helps the system to develop a coherent body of case law, and reduce potential conflicts with past decisions or other jurisdictions.

Under contemporary international law, international courts and tribunals have mostly mandatory review. When a case is admissible and the adjudicating body in question has jurisdiction, there is little the judges can do to avoid deciding the case. Arguably, the International Court of Justice would have been better off if it had the chance to avoid answering questions that it could not really answer, such as whether the use or threat of use of nuclear weapons is against international law, or whether genocide had been committed in the former Yugoslavia in the 1990s.

I am sure the Inter-American Court would have preferred not having to pronounce itself on the legality under international law of amnesty laws in several Latin American states. But it had no choice. Once the Inter-American Commission brings a case before it, unless it finds the case not admissible or that it does not have jurisdiction (which has happened, for technical and practical reasons, extremely rarely in the history of the Court), it has to decide. And, given the legal parameters that it has to apply, and the general pro homine bias it necessarily has, the cases lead to scripted conclusions.

The same can be said about the African Court of Human and Peoples’ Rights and the European Court of Human Rights. Albeit in recent years, after the entry into force of Protocol 14 to the European Convention, the Strasbourg court has been given limited discretionary review through the introduction of pilot cases, it is still forced to decide more often than not cases that it should not decide as a matter of opportunity. Admittedly, international criminal tribunals have greater discretion that the other kinds of international adjudicative bodies. However, the discretion is only the Prosecutor’s. Once the Prosecutor has decided to investigate and indict, the judges cannot second guess the Prosecutor and dismiss the case because it might undermine delicate transitional justice efforts.

Faced with inopportune cases, international adjudicative bodies too often end up compromising their legitimacy. They stall, dither, and, eventually, render flawed decisions that try to square the circle and appease everyone but end up appeasing no one. And when they take advantage of the little leeway they have and manage to dodge the case, they are open to criticism because of the lack of transparency about the considerations that have been weighted.

Such a reform would be a momentous change in international procedural law, even if limited to just one adjudicative body. There are many questions to be considered, including whether it could be done by simply modifying the rules of procedure and add a new admissibility criterion, or whether it would require changing the statutes, and, thus, require states’ intervention; how much latitude should international judicial bodies have in deciding when to hear a case; who should be allowed to argue on whether the court should take on the case and how (petition of certiorari only or also hearings?); by what majority should the decision be taken (e.g. the U.S Supreme Court requires four judges out of nine to vote to take on a case); whether the judges should motivate the decision not to take on a case; and so on.

Granted, discretionary review has some disadvantages, too. It reduces access to justice and leaves the parties (mostly victims of human rights abuses) at the mercy of the discretion of the court. However, if we can trust the wisdom of these judges on the merits of the case, why can’t we trust them also on weighing the costs and benefits, writ large, of hearing the case? It is exactly the conundrums of transitional justices detailed in Teitel’s article that should give us pause and let us consider the merits of discretionary review in international adjudicative processes.

Keeping up with the UN’s On-Line Lectures on International Law

by Duncan Hollis

We wanted to pass along a quick update from our friends at the UN Office of Legal Affairs who continue to build out an on-line international law research portal that can hopefully have lasting impact:

The Codification Division of the UN Office of Legal Affairs recently added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to an unlimited number of recipients around the world free of charge.

The latest lectures were given by Sir Michael Wood on “International Law and the Use of Force: What Happens in Practice?”, Professor Djamchid Momtaz on “La sĂ©cession en droit international” and by Professor August Reinisch on “The Evolution of WTO Dispute Settlement”.