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International Legal Theory and Teaching

A Fascinating Interview with Duncan Kennedy

by Kevin Jon Heller

Duncan, unlike David, is not primarily an international law scholar. But Kennedy’s work on critical legal studies has had a profound influence on most left-wing international law scholars — including me. So I wanted to post a link to a fascinating and wonderfully substantive interview with him conducted by Tor Krever, Carl Lisberger, and Max Utzschneider. I had no idea Kennedy worked for the CIA for two years before going to law school!

I spent two years at the CIA. The first I spent in the field, an agent of student politics, traveling all over the world. I was the overseas representative of the National Student Association. We organised conferences, produced manifestos, in alliance with the Western European student unions, and aided and cooperated with student organisations from developing countries in an effort to build a Western-oriented politics of a moderately left variety. The US organisation criticised the US government a lot, to establish credibility but also because the leaders believed the criticism. We also gathered information that went back to Washington about student politics, which was a side effect for some but maybe the main justification for others. The second year I spent inside the Langley headquarters, working for the internal staff that supervised the front organisations, collating the intelligence they gathered, and so forth. The operation was exposed at the end of my second year working for the CIA. Not everyone in the front organisation was a CIA agent. It was divided between the witting and the unwitting, and that is how the cover was eventually blown: the boundary turned out to be somewhat porous, especially when more and more of us liberal cold warriors were deciding that we, the US government, were no longer the good guys, or even good at all. I started out thinking the CIA was a good way to get out of the draft, which made me a lot less of a true believer than most of my colleagues. But by the end of my experience there, I had started to be radicalised. It was all about the war, but as the war came to seem an atrocity, many other long-term bad aspects of our foreign policy began to look like part of the pattern rather than like aberrations.

The interview is well worth a read. You can find a PDF of it here.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:



The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!

2016 Lieber Prize: Call for Submissions

by Chris Borgen

Professor Laurie Blank of The American Society of International Law’s Lieber Society on the Law of Armed Conflict has sent along the request for submissions for the 2016 Francis Lieber Prize. The prize is awarded to:

the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Here are the details

Criteria: Any work in the English language published during 2015 or whose publication is in proof at the time of submission may be nominated for this prize. Works that have already been considered for this prize may not be re-submitted. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit: Competitors must be 35 years old or younger on 31 December 2015. 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.

Submission: Submissions, including a letter or message of nomination, must be received by 9 January 2016. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e mail.

Printed submissions must be sent to:

Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia 30322

Electronic submissions must be sent to:

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2016.

In 2015, the winners were:

Book prize:
— Gilles Giacca, “Economic, social, and cultural rights in armed conflict” (OUP:2014)

Essay prize:
— Tom Ruys, “The meaning of ‘force’ and the boundaries of the jus ad bellum: are ‘minimal’ uses of force excluded from UN Charter Article 2(4)?’, 108 AJIL 159 (2014).

Fifth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

A few months ago, I participated as a senior faculty member at the Fourth Annual Junior Faculty Forum for International Law in Florence, Italy. It was a fantastic workshop, and the papers presented by the junior faculty were uniformly excellent, including the one by Maria Varaki to which I responded. So I encourage all young scholars to submit abstracts for the Fifth Annual Junior Faculty Forum, which will be held next year in New York City. Here is the call:

The Annual Junior Faculty Forum for International Law is delighted to announce its yearly call for applications for the fifth Forum, which will be held at New York University School of Law on Monday June 27, Tuesday June 28 and Wednesday June 29, 2016.

Designed as an annual feature of the international law calendar, the Forum is aimed at bringing together junior faculty working in the field of international law in order that their work can be presented before an audience of peers and experts and then discussed by established and senior scholars in international law and related fields. The initiative is thus dedicated toward encouraging and facilitating the work of young international law scholars by creating an unrivalled environment of intellectual opportunity, stimulation and exchange. The inaugural Forum was held at New York University in May 2012; it has been followed by the subsequent iterations of the second Forum at the University of Nottingham (May 2013), the third Forum at the University of Melbourne (July 2014) and, most recently, the fourth Forum at the European University Institute in Florence (June 2015).

The fifth Forum shall be convened by the Forum’s founding convenors—Dino Kritsiotis, Professor of Public International Law in the University of Nottingham; Anne Orford, Michael D. Kirby Professor of International Law in the University of Melbourne and J.H.H. Weiler, President of the European University Institute and University Professor at NYU School of Law—who shall be joined by guest convenors Benedict Kingsbury, Murray and Ida Becker Professor of Law at NYU School of Law, and José E. Alvarez, Herbert and Rose Rubin Professor of International Law at NYU School of Law, both of whom currently serve as the Editors-in-Chief of the American Journal of International Law.

Selected presentations from previous editions of the Forum have appeared in previous volumes of the European Journal of International Law (Oxford University Press); for the first time next year, selected presentations from the fifth Forum will be published in the American Journal of International Law.

Interested junior faculty can find additional information here. The deadline for abstracts is December 15.

The Post-Incarceration Life of International Criminals

by Kevin Jon Heller

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark’s takeaway, reached after he discusses the (very different) examples of Saif Gaddafi and Sam Kolo:

Still, these stories raise important questions: should convicted and alleged war criminals be allowed – perhaps even encouraged – to pursue higher education? Is there, as many believe, something curative in the pursuit of education that might help to deter relapses into criminality? Is there something morally egregious when former perpetrators of mass atrocities are afforded educational opportunities that they have – by their very actions – denied thousands of others? Is the best alternative to prevent them from pursuing any education and thus letting them ‘rot in prison’ or turning a blind eye and sending them back into the world without any support? What would be the risks in doing so? Do tribunals have any responsibilities for supporting released convicts? Should the tribunals and the international community consider the strategies of domestic prison systems, where education is often encouraged as a means of healing and skills development?

As the world of international criminal justice plods along and matures, new and uncomfortable questions will undoubtedly emerge, including what the post-incarceration life of war criminals should look like. There are no easy answers. The pursuit of higher education may leave a bitter taste in the mouths of some. But given all of the options and the ever-present risk of war criminals returning to their old habits, encouraging them to pursue an education may be a least-worst option.

I confess that I don’t find this a difficult issue at all. In my view, once an international criminal has served his sentence, he should be treated no differently than any other citizen. That’s the way we treat domestic criminals, as Mark notes. Why should international criminals be treated differently? Because their crimes are worse? That may be so — but once they have paid their debt to the international community, what is the basis for continuing to punish them by denying them educational opportunities? Human-rights groups and victims may believe that Lubanga got off easy; I might agree with them. But it’s not Lubanga’s fault that Moreno-Ocampo undercharged him. And it’s not Lubanga’s fault that the Trial Chamber arguably (I don’t agree) gave him too lenient of a sentence. He did the crime and served the time. That should be the end of the story. So I don’t like Mark’s question about whether Lubanga should be “allowed” to pursue a PhD. He would no more be “allowed” to pursue a PhD after his release than I would. There is no legal basis to deny him one. (Admission requirements, of course, are another story…)

For similar reasons, I don’t like the way Mark phrases his final takeaway: that encouraging international criminals to pursue an education “may be a least-worst option.” Nothing in Mark’s column indicates that anything negative will result from an international criminal getting a PhD. Saif Gaddafi is a poor example, because he didn’t actually write his own dissertation. And Sam Kolo’s post-LRA life indicates that Mark should have concluded encouraging international criminals to pursue an education may well be the very best option. So what is the basis for describing post-incarceration education as one of the “least worst” options? Is the fear that the international criminal will write a dissertation entitled “A Step-by-Step Guide to Committing Genocide”? It seems far more likely that the international criminal — if successful in, say, a PhD program — will rely on his previous actions to illuminate an aspect of conflict that we “peaceable” types cannot possibly understand in the same way.

Indeed, as I was  reading Mark’s column, I couldn’t get Albert Speer out of my mind. Speer did not pursue a PhD after he was released from Spandau prison in 1966, but there is no denying that he used both his incarceration and his post-incarceration life productively. He wrote Inside the Third Reich and Spandau: The Secret Diaries while in prison, and after his release he wrote Infiltration, a seminal work on Himmler’s SS. How much less would we know about the Third Reich if Speer had not been “allowed” to write and publish books on account of his crimes?

I’m not suggesting, of course, that Lubanga is likely to follow in Speer’s academic footsteps. But Lubanga’s proposed focus for his graduate studies does, in fact, seem worthwhile: “I hope to help identify a new form of sociology that will help the tribal groups to live together in harmony.” If anyone has something to say about that topic, isn’t it someone who knows tribal conflict all too well?

New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempted to frame the conflict within the context of international law and consider topics such as issues of legality and responsibility, the role of international law in conflict resolution, and what the conflict itself may show about the state of  international law and the international legal profession.  Following are two recent volumes and a set of videos covering a variety of such concerns:

The first is the current volume of the US Naval War College’s International Law Reports, which contains papers prepared for an October 2014 workshop organized by the West Point Center for the Rule of Law of the U.S. Military Academy and the Stockton Center for the Study of International Law of the U.S. Naval War College. These articles tend to focus on use of force and international humanitarian law related issues including Lieutenant Colonel Shane Reeves and Colonel David Wallace on the combatant status of “little green men,” Geoff Corn on regulating non-international armed conflicts after Tadic, and Opinio Juris’s Jens Ohlin on legitimate self-defense.

I was also one of the workshop participants and my paper, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. I address the question “of what use is legal rhetoric in the midst of politico-military conflict” by reviewing the laws of self-determination and territorial integrity and considering Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine.

In March, the Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of the Polish Academy of Sciences hosted a conference in Warsaw that brought together international lawyers from Russia, Ukraine, across Europe. (I was one of two participants from the U.S.) Given the breadth of views, the discussion was lively. Videos of the presentations are now available online. Panel topics include self-determination and secession (1, 2), use of force issues (1, 2), reactions of the international community (1, 2), issues of recognition and non-recognition (1), and the international responsibility of states and individuals (1).

In the West, we don’t often hear the Russian analyses of the international legal issues in the Ukraine conflict, so I want to highlight contributions by Prof. Anatoly Y. Kapustin, Institute of Legislation and Comparative Law and President of the Russian International Law Association (starting at the 36th minute of the panel on reactions of the international community), Prof. Vladislav Tolstykh of Novosibirsk State University (starting at the 52nd minute of the self-determination panel), and Prof. Evgeniy Voronin of MGIMO University (starting in the 54th minute of the use of force panel).

By the way, my own talk on the self determination panel begins at the 27th minute.

Third, the new issue of the German Law Journal is devoted to a broad range of approaches to assessing the conflict. The opening section uses the perspective of public international law. The next section, as described in the introduction by issue editor Zoran Oklopcic:

upset[s] traditional approaches by interrogating the professional commitments of international lawyers, insisting on the legal and factual hybridity of the conflict, and exposing larger ideational frames and their socio-economic underpinnings that make the conflict in Ukraine legally legible in a particular way.

Following this are discussions steeped in constitutional law and theory and normative political theory. The closing section proposes broader reform agendas and reconsiderations of the roles of law and of international actors. Contributors include organizer Zoran Oklopcic on early-conflict constitution-making, Brad Roth on the rules of secession, self-determination and external intervention, Mikulas Fabry on how to uphold the territorial integrity of Ukraine, Boris Mamlyuk on the Ukraine crisis, Cold War II, and international law, Umut Ozsu on the political economy of self determination, and Jure Vidmar on the annexation of Crimea and the boundaries of the will of the people.

I invite readers to point to other examples of scholarship on the Ukraine crisis via the comments section (or an e-mail to me). I think we all hope that this will become a historical incident rather than continue as a current event.

Elisa Massimino Defends Harold Koh (And So Do I)

by Kevin Jon Heller

Massimino is the head of Human Rights First, one of the leading human-rights organisations in the US. Here is a snippet from her editorial today in the Washington Post, with which I almost completely agree:

As a close observer of the U.S. government’s national security policy, I know it is better for Koh’s involvement.

That’s not to say that I agreed with all the positions he took and defended. Two years ago at our annual human rights summit, Koh gave a speech defending the Obama administration’s use of drone strikes. He made the best case anyone could, but it left a lot to be desired. Throughout his tenure at State, we called on the administration to ensure that its targeted killing program was consistent with the laws of war. We’re still not satisfied that it is.

But on a range of issues — military commissions, treaties, Guantanamo Bay, detention, and transparency on drones — Koh forged progress behind the scenes. This wasn’t the kind of work that made headlines, but it strengthened respect for human rights and reduced suffering. If that makes Koh a sellout, we need more of them.

I hope that the students who signed the anti-Koh petition — who by doing so have demonstrated a concern for human rights — will spend their lives trying to advance them. They would, I’m confident, find such work fulfilling. But they will discover that victories are seldom, if ever, absolute, and that we in the movement simply can’t afford to mistake allies for enemies.

In a better world, the views of knowledgeable (and progressive) national-security experts like Massimino would carry some weight with Koh’s critics. I’d also like to think I have at least some credibility regarding the situation — after all, it was my blog post arguing that the killing of al-Aulaqi was murder under US criminal law that seemingly led the OLC to greatly expand its notorious memo justifying the attack, and I wrote the first substantial (and deeply critical) legal analysis of signature strikes. Moreover, although I don’t think having a been a student or colleague of Koh’s disqualifies someone from defending him, I have no such ties — although I have always admired Koh’s scholarship, I had never even met him until about a year ago, when he gave a lecture at Melbourne (which I disagreed with!) about his time at State.

Alas, many of Koh’s most vociferous critics — though certainly not all — have little interest in reasoned debate. My posts defending Koh are “laughable” and nothing more than “the academic equivalent of the ‘I’m not a racist, but….’ argument” — because it apparently makes no difference how critical you are of the US government’s drone program; if you defend Koh, you’re just an apologist for the program. I have taken “a careerist and opportunity [sic] approach when it suits” me — even though I am a professor in the UK and shudder in horror at the thought of ever having a position in the US government (or any government, for that matter). I am a “hitman” for Koh and an agent “in the market of favors (rather than ideas)” — this part of a bizarre ad hominem attack (with bonus points for working in the word “Zionist”) on Koh for alleged venality. I’m “bullying” the students by defending Koh on the blog instead of letting their accusations of murder go unchallenged. And I’m “elitist’ and “insular” because I believe students have no right to demand “standards” from their professors — a claim based on precisely nothing other than my disagreement with the petition. This is the kind of rhetoric that people use when they have nothing substantive to argue.

Let me be clear: I have no problem with students, faculty, or anyone else criticising Koh. I’ve done that myself. I also fully support the First Amendment right of students, faculty, and anyone else to circulate a petition calling for NYU to rescind its offer to Koh to teach human rights at the law school. But it is not “bullying” for those who respect Koh to respond to irresponsible claims that he is a murderer and war criminal. Nor is it an “attack on the students” to meet their speech with counter-speech. Indeed, if Koh’s critics are “drowned out” by the response to their petition — by the fact that more than 750 people of every political persuasion imaginable believe that the petitioners are, in Massimino’s words, “mistaking allies for enemies” — perhaps the problem isn’t the response.

Perhaps the problem is that the petition’s claims are wrong.

Students, Junior Faculty, and Human Rights Scholars are Delicate Flowers

by Kevin Jon Heller

At least according to Fionnuala Ní Aolain, criticising the counter-petition that I and hundreds of others signed in defense of Harold Koh. Her entire Just Security post is deeply problematic; let’s go through it systematically.

When asked to sign, I articulated a deep discomfort with the petition and the precedent it sets. I strongly believe that any academic should be able (as should any student) to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat. The capacity to question and unreservedly critique is particularly important when the decisions made were controversial.

Actually, she doesn’t believe any academic should be able “to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat.” If she did, that belief would extend to academics who believe — rightly or wrongly — that the petition calling for NYU to rescind its offer to Koh to teach international human-rights law fundamentally misstates Koh’s role in the drone program. Why are the academics who signed the counter-petition not entitled to the same freedom as those who signed the original one?

I also expressed my discomfort as a non-American international lawyer, echoing the views of many others within and outside the United States, that one can reasonably take the position that the US government and its targeted killing programs breached international and human rights law standards.

As does the counter-petition, which specifically acknowledges “that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program,” and that “U.S. actions must conform to a demanding application of constitutional law and international law.”

The bottom line is that I am not fully in a position to judge, but neither really are those students who chose to express their views as they did, nor are the academics who were asked and chose to sign the petition. Petitions that purport to know what is unknowable and not in the public domain are neither good individual defenses, nor are they robust defenses that advance the protection of human rights in the United States or elsewhere.

True, we do not know exactly what Koh did. But that did not stop the signatories of the original petition from claiming that Koh “directly facilitated the extrajudicial, unconstitutional killing of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011” and generally played a significant role “in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes.” Yet Ní Aolain says not a word about the propriety of the signatories accusing Koh of being a murderer (and war criminal); her criticism is directed solely at the scholars who had the temerity to disagree with that accusation. And she simply ignores Ryan Goodman’s post on the same blog, which makes clear that what is publicly known about Koh favours the counter-petition, not the original one…

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]

The Advantage for Palestine of a Slow Preliminary Examination

by Kevin Jon Heller

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…