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International Security

Why Unilateral Humanitarian Intervention Is Illegal and Potentially Criminal

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Kevin Jon Heller

On Monday, my friend Beth van Schaack posted an excellent analysis at Just Security of the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” Beth summarises the most important aspects of the bill; in this post I want to focus on Section 7, which authorises US technical assistance to certain non-US accountability mechanisms. The most important paragraph in Section 7 is this one (emphasis mine):

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

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

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

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

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

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

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

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

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

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

Initial Takes on Syria: International-Domestic Synergies

by Edward Swaine

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

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

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

(more…)

Bad Criminal Law in the Alexander Blackman Case (With Addendum)

by Kevin Jon Heller

In September 2011, Alexander Blackman, a Sergeant in the Royal Marines serving in Afghanistan, executed a Taliban fighter who had been incapacitated by his wounds.This was no spur-of-the-moment killing, as video recovered one year later makes clear. Here is the Court Martial’s summary of Blackman’s actions, as shown on the video:

[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [Blackman] found him he was no longer a threat. Having removed his AK47, magazines and a grenade, [Blackman] caused him to be moved [because Blackman] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [Blackman] said: ‘PGSS can’t see what we are doing to him.

He was handled in a robust manner by those under [Blackman’s] command clearly causing him additional pain and [Blackman] did nothing to stop them from treating him in that way. When out of view of the PGSS [Blackman] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.

When [Blackman was] sure the Apache helicopter was out of sight, [Blackman] calmly discharged a nine millimetre round into his chest from close range. [Blackman’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence. It was rejected by the Board.

Although the insurgent may have died from his wounds sustained in the engagement by the Apache [Blackman] gave him no chance of survival. [Blackman] intended to kill him and that shot certainly hastened his death.

[Blackman] then told [his] patrol they were not to say anything about what had just happened and [Blackman] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.”

Not surprisingly, the Court Martial convicted Blackman of murder and sentenced him to life imprisonment. All of his fellow soldiers were acquitted.

Fast forward to last week — when the Court Martial Appeal Court (CMAC) allowed Blackman’s appeal, substituted a verdict of manslaughter for murder on the ground of diminished responsibility, and reduced his sentence to seven years imprisonment. Blackman will be a free man, with an honourable discharge from the Royal Marines, in a couple of weeks.

From a criminal law perspective, I find CMAC’s judgment profoundly unconvincing. I will explain why in this post.

CMAC’s reasoning proceeded in three steps. First, it found that Blackman had suffered from an “adjustment disorder” at the time of the killing…

IHL Does Not Authorise Detention in NIAC: A Response to Murray

by Kevin Jon Heller

Over the past couple of years, a number of scholars — including me — have debated whether IHL implicitly authorises detention in non-international armed conflict (NIAC.) The latest intervention in the debate comes courtesy of Daragh Murray in the Leiden Journal of International Law. As the article’s abstract makes clear, Murray is firmly in the “IHL authorises” camp:

On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups.

I disagree that IHL cannot regulate non-state actor (NSA) detention in NIAC unless it authorises that detention, for reasons I will explain in this post. Before we get to Murray’s argument, however, it is important to remind ourselves of what is at stake in the debate. Put simply, if Murray is right and IHL authorises NSAs to detain, two significant consequences follow: (1) states have no right to prosecute NSAs who detain government soldiers, even if such detention would qualify as kidnapping or wrongful imprisonment under domestic criminal law; and (2) NSAs have the right to detain government soldiers for as long as they pose a “security threat” to the NSA — ie, essentially forever. In other words, FARC could detain a Colombian soldier for five decades and Colombia couldn’t prosecute the commander responsible for that detention as long as FARC complied with NIAC’s procedural restrictions on detention.

Now let’s turn to Murray’s argument. Here are the critical paragraphs in the article:

[I]nternational law cannot regulate activity that is subject to an absolute prohibition. For example, instances of torture cannot be regulated as torture is subject to an absolute prohibition. The same is true with respect to armed group detention in non-international armed conflict: the absolute prohibition of arbitrary detention precludes the possibility of regulating arbitrary detention (p. 9)

Two possibilities are open: either international humanitarian law establishes an implicit legal basis for detention, or it does not and the authority to detain must be established elsewhere. If international humanitarian law does not establish an implicit legal basis for detention then all instances of detention by armed groups will necessarily violate the prohibition of arbitrary detention as a legal basis for armed group detention does not exist under domestic law or elsewhere in international law. Yet, to interpret Common Article 3 and Article 5 Additional Protocol II in this way is to conclude that states have developed international treaty law to regulate detention operations by armed groups, despite the fact that all instances of armed group detention are illegal. This interpretation is incapable of giving effect to states’ intentions, and to the object and purpose of the provisions themselves. As discussed above, states cannot regulate that which is absolutely prohibited, and so the only means by which Common Article 3 and Article 5 Additional Protocol II can regulate detention by armed groups is if these provisions establish an implicit legal basis for that detention  (p. 14)

The first thing to note is that the torture analogy is misplaced. International law does indeed absolutely prohibit torture. But it does not absolutely prohibit detention — not even in NIAC. On the contrary, a state is free to detain as long as it adopts the necessary domestic legislation. It is even free to domestically authorise an NSA to detain, as well. (Which is not absurd. A state may well conclude that an NSA is more likely to treat captured government soldiers humanely if it does not prohibit the very act of detention.) So what Murray is actually arguing is that because most states choose not to authorise NSAs to detain, international humanitarian law (IHL) necessarily authorises it for them so they can regulate that detention. That’s a very puzzling claim, given that states are the authors of IHL.

The fundamental problem with Murray’s position, however, is that it is simply not the case that IHL can’t regulate a practice that international law absolutely prohibits. I will discuss in a minute the situation regarding detention in NIAC, in which the regulation and the prohibition come from different legal regimes — regulation from IHL, prohibition from international human rights law (IHRL). But before doing so, it is worth noting that Murray’s argument does not work even when the regulation and the prohibition come from the same legal regime — a situation in which you would think Murray’s argument would be even stronger…

NATO, in Nine Tweets

by Chris Borgen

This morning President Trump tweeted that “Germany owes vast sums of money to NATO & the United States must be paid more for the powerful, and very expensive, defense it provides to Germany!”

But that’s not how NATO commitments work. And so this afternoon, former US Ambassador to NATO Ivo Daalder gave President Trump a tutorial in nine tweets.

Maybe we can get someone to read the tweets aloud on Fox & Friends.

 

America’s Hubris, Cambodia Version

by Kevin Jon Heller

It is difficult to overstate the horrors the US inflicted on Cambodia from the air during the Vietnam War: 230,000 sorties involving 113,000 different sites; 500,000 tonnes of bombs, as much as the US dropped in the entire Pacific theatre during WW II; at least 50,000, and probably closer to 150,000, innocent civilians killed. Even worse, that bombing campaign, along with the US-backed coup against Prince Sihanouk in 1970, is widely credited with helping bring Pol Pot and the Khmer Rouge to power, and we know how that turned out — at least 1.7 million Cambodians murdered, an auto-genocide of epic proportions.

The US has never apologized for its actions in Cambodia. President Obama didn’t even mention the Vietnam War when he became the first President to visit Cambodia in 2012. The Trump administration, however, is not afraid to discuss Vietnam. On the contrary, it is currently very interested in discussing US actions during the war — to demand that Cambodia pay back $500 million it owes the US for providing support to Lon Nol’s unpopular regime:

The debt started out as a US$274 million loan mostly for food supplies to the then US-backed Lon Nol government but has almost doubled over the years as Cambodia refused to enter into a re-payment program.

William Heidt, the US’s ambassador in Phnom Penh, said Cambodia’s failure to pay back the debt puts it in league with Sudan, Somalia and Zimbabwe.

“To me, Cambodia does not look like a country that should be in arrears…buildings coming up all over the city, foreign investment coming in, government revenue is rapidly rising,” Mr Heidt was quoted as saying by the Cambodia Daily.

“I’m saying it is in Cambodia’s interest not to look to the past, but to look at how to solve this because it’s important to Cambodia’s future,” he said, adding that the US has never seriously considered cancelling the debt.

Look forward, not backward. Where have we heard that before?

I have little doubt that Cambodia’s debt to the US is valid under international law. But that does not mean the US has the moral right to demand payment — much less to compare Cambodia to debt scofflaws like Zimbabwe. (How much does the US owe the UN right now? It was almost $3 billion at the end of 2015.) As James Pringle, Reuters bureau chief in Ho Chi Minh city during the Vietnam War, recently wrote in the Cambodia Daily, “Cambodia does not owe even a brass farthing to the U.S. for help in destroying its people, its wild animals, its rice fields and forest cover.”

But what do I know? Perhaps Donald Trump needs the $500 million to finance the US’s current bombing campaigns in Iraq, Libya, Somalia, Syria, Yemen, Pakistan, and Afghanistan.

Or to build the wall between the US and Mexico.

ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary…

Event: Australia, Refugees, and International Criminal Law (February 13)

by Kevin Jon Heller

I want to call readers’ attention to what should be — despite my participation — a fantastic event at City Law School the week after next. Here is the info:

City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity?

City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).

Refugees and asylum seekers are currently under attack in many developed countries, including in European states, the US, and Australia. International criminal law has developed around the need for international institutions to intervene on behalf of the most vulnerable populations, when states are unwilling or unable to do so. Can international criminal prosecution help counter the current encroachment upon refugee rights? Currently, the most flagrant examples of such encroachment are Australian practices, which have also served as a model for migration restrictionists around the world. Our focus will be on the treatment of refugees in Nauru and Manus Island by Australian officials and agents, including corporate actors. At issue, however, are not only legal questions. As important are contemporary political conditions, in which the international criminal court is under sustained critique for a seeming bias against African leaders; and in which Western governments and populist movements are proposing new policies that violate refugee rights. Does the concept of Crimes against Humanity accurately capture the conditions of detention and practices of mass deportations? And, if there are international crimes committed, are these grave enough for the International Criminal Court to investigate? Can and should International Criminal Law shift its focus from instances of spectacular or radical evil to the normalised and ‘banal’ violence waged by Western states as a consequence of the structures of global inequality?

Speakers: Ms Diala Shamas, Supervising Attorney and Lecturer, Stanford Law School International Human Rights and Conflict Resolution Clinic; Dr Cathryn Costello, Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, fellow of St Antony’s College, University of Oxford; Professor Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London; Dr Ioannis KalpouzosLecturer in Law, City Law School, City, University of London; Legal Action Committee, Global Legal Action Network; Dr Itamar Mann, Senior Lecturer in Law, University of Haifa; Legal Action Committee, Global Legal Action Network; Ms Anna Shea, Researcher and Legal Advisor, Refugee and Migrant Rights, Amnesty International.

The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

Hope to see some OJ readers there!

Symposium on Asia and International Law

by Chris Borgen

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

The article’s abstract explains:

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

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

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

Boer on Footnotes in Use of Force Scholarship

by Kevin Jon Heller

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

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

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

Read Boer!

Addendum to Goodman: Saudis Haven’t Promised to Stop Using Cluster Munitions

by Kevin Jon Heller

The inestimable Ryan Goodman has a new post at Just Security listing all the times the Saudis denied using cluster munitions in Yemen. As Ryan points out, we now know that those denials were what I like to call “shameless lies” (emphasis in original):

On Monday, British Defense Secretary Michael Fallon told the House of Commons that following the UK’s own analysis, the Saudi-led coalition has now admitted to using UK manufactured cluster munitions in Yemen. Mr. Fallon heralded the “transparent admission” by the coalition, and added, “we therefore welcome their announcement today that they will no longer use cluster munitions.” Many news outlets ran a headline focused on the Saudi-led coalition’s statement that it would stop using cluster munitions in Yemen (including Al Jazeera, Fox, ReutersUPI).

Lost in the news coverage is the Saudi-led coalition’s  consistent pattern of denial of using cluster munitions.

So, let’s take a walk down memory lane. At the end, I will discuss the significance of this pattern of denial for future policy options on the part of the United States and the United Kingdom.

At the heart of Monday’s revelations were allegations of the use of cluster munitions by Amnesty International, and here’s a key point: Riyadh previously assured the UK government that it had not used cluster munitions in response to Amnesty’s allegations.

Ryan’s post is very important, particularly its discussion of how Saudi Arabia’s admission could affect the US and UK. I simply want to point out something that also seems to have been lost in all the media coverage: Saudi Arabia did not promise to stop using cluster munitions in Yemen.

No, it promised to stop using British-made cluster munitions in Yemen. From Al Jazeera:

“The government of Saudi Arabia confirms that it has decided to stop the use of cluster munitions of the type BL-755 and informed the United Kingdom government of that,” said the Saudi statement, carried by state news agency SPA.

If Saudi Arabia only had BL-755 cluster munitions, its announcement today might be meaningful. But we know from investigations conducted by Human Rights Watch that Saudi Arabia has also used US-made cluster munitions in Yemen, particularly the CBU-105 Sensor Fuzed Weapon:

yemenclusters0516_map-01

Nothing in the Saudi statement rules out continuing to use American-made cluster munitions in Yemen. Only British ones are off the table. And if you believe that I am parsing the statement too carefully — well, I’d suggest reading Ryan’s post. Saudi Arabia cannot be trusted to tell the truth about the brutal UK- and US-backed counterinsurgency it is waging in Yemen. Full stop.