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International Security

Guest Post: The Mediterranean Migrants Crisis and the Use of Force–Is There a Case for Destroying Smugglers’ Boats?

by Sondre Torp Helmersen and Niccolo Ridi

[Sondre Torp Helmersen is a PhD Candidate at the University of Oslo and Niccolò Ridi is a PhD Candidate at King’s College London and SNSF Research Assistant, The Graduate Institute, Geneva.]

1. Introduction

The recent disasters off the coasts of Italy have been the deadliest documented incidents in the troubled history of migration in the Mediterranean sea. The unprecedented number of lives lost at sea has prompted outrage in a number of countries and brought the Mediterranean migrants Crisis at the top of the European political agenda. After more than 1000 people drowned in ten days, a summit was finally called by the President of the European Council Donald Tusk.

The outcome of the meeting has been met with disappointment: outside of southern European Countries, plans for a more equitable distribution of migrants within the European Union states do not seem a priority, and the measures agreed upon focus merely on preventing departure. States have agreed on a number of measures comprising the tripling of the funding allocated to Europe’s Operation Triton (which had previously been called ‘woefully inadequate’ by the UN High Commissioner for Refugees Antonio Guterres), improved cooperation against smugglers networks, a generic pledge to do more for refugee protection and resettlement on a voluntary basis and, more controversially, actions directed to identify, capture and destroy vessels used by smugglers before they can be used.

The idea of targeting smugglers’ vessels was originally included in a 10-point action plan relying on the precedent of Operation Atalanta, which focuses on protecting on preventing piracy acts off the coast of Somalia. The adoption of such a strategy as a means of dealing with a migrants crisis, however, calls for careful consideration.

European leaders have asked EU High Representative for Foreign Affairs Federica Mogherini “to propose actions in order to capture and destroy the smugglers’ vessels before they can be used”. However, aside from rumours on the possible use of Apache helicopters targeting vessels from a range of 2 km, proposals on the use of force have so far been quite vague, and their wording careful enough to suggest that any action would have to be consistent with international law. Angela Merkel is reported to have suggested that either a Security Council resolution or the cooperation of a Libyan unity government would be prerequisite for these operations. French President François Hollande has said that France and the United Kingdom will push for a Security Council resolution. But how do these proposed operations fit in the traditional paradigms on the use of force?

2. The Legality of Using Force

The force envisaged by European leaders would apparently be used to destroy boats docked in African harbours or internal or territorial waters. This would violate the prohibition of using force in Article 2(4) of the UN Charter, unless one of its exceptions apply. Attacking the boats may alternatively be classified as ‘law enforcement’ rather than ‘use of force’ (e.g. Guyana v Suriname para 445), but such enforcement would be equally illegal in another State’s territory or internal or territorial waters in the absence of the same exceptions.

The exception for self-defence is not applicable, since there has been no “armed attack” against European countries from African States or people smugglers (the latter would be relevant if one recognises a right to self-defence against non-State actors). There may also be a right for States to use force to protect their nationals abroad, but European nationals are generally neither threatened by nor involved in the smuggling. The more or less debunked doctrine of ‘humanitarian intervention’ would also not be applicable, since, even if one could argue that parts of Africa and/or the Middle East are suffering humanitarian crises, destroying people smugglers’ ships would not help alleviate those crises.

The simplest approach would be to have the consent of the relevant African States. In most cases this would mean Libya. A complicating factor is the current split between the two governments that claim to represent the State of Libya. One is based in Tripoli, the other in Tobruk. This raises the question of which of these, if any, that may give valid consent to the use of force in Libyan harbours and waters. The Tobruk government controls the majority of Libya’s territory, and is recognised by most other States as Libya’s government. However the Tripoli government controls the country’s traditional capital as well a substantial part of its territory. Some territory is also controlled by other groups, including the (so-called) Islamic State. In short, the situation is murky. After having repeatedly offered its cooperation to help fight the smuggling operations, the Tripoli government has said it will not give consent to using force against people smugglers. The Tobruk government has apparently not yet taken an official position.

The second option is to get authorisation from the UN Security Council, under the UN Charter Chapter VII. Such authorisation was given for the EU’s anti-piracy ‘Operation Atalanta’ off the coast of Somalia. However in that case the authorisation was made conditional on the consent of the Somali government. A similar condition could be set now. Authorisation would also require the consent of the UNSC’s five permanent members. Relations are currently frosty between Russia and the West, and one reason is how the Western powers used and possibly abused the 2011 authorisation to use force in Libya. Indeed, President Hollande has conceded that some convincing might be necessary to overcome Russian reluctance. Another basic condition for the UNSC to authorise the use of force is that the force is necessary to “maintain or restore international peace and security” (Article 42), in the presence of either a “threat to” or “breach of” international peace or an “act of aggression” (Article 39). The most plausible route would be to argue that the situation in the Mediterranean constitutes a “threat to the peace”. This is not obvious from the text of Article 39, but the UNSC has interpreted the provision highly flexibly in the past, and may well do so again. For example, in Resolution 668 (on Iraq’s treatment of its Kurdish population), the UNSC held that “a massive flow of refugees towards and across international frontiers … threaten[s] international peace and security”.

Other legal issues may also arise. African countries’ failure to clamp down on people smugglers’ activities may constitute a violation of the ‘duty of vigilance’ (Armed Activities para 246-250), but such a violation does not in itself authorise other States to respond with armed force. Further, if we concede that international humanitarian law applies, smugglers’ boats would be entitled to protection as civilian objects. The smugglers’ activities should not qualify as ‘piracy’ under the UNCLOS Article 101. That would in any case only make them liable to seizure by force by any State on the high seas (Article 105). To argue that the provision allows to destroy their ships when docked in a harbour seems too much of a stretch.

3. Conclusion: Another Problem that Cannot be Solved by Force

While there are legal avenues open for using force against African people smugglers, a wholly different question is whether this would actually contribute to solving the problem. The former head of operations of Atalanta has recently stated that to destroy smugglers’ boats would not be effective, as the boats used tend to be cheap and easy to replace. In a broader perspective, it would help solve neither the underlying causes of migration, which include conflict and misrule in Africa, nor the causes of the EU’s attempts to restrict migration, which include its social and economic costs.

The EU does seem to envisage the destruction of boats as one element in a broader set of tools. What is lacking, though, is an attempt to improve the current European asylum framework and a more equitable distribution of migrants among the members of the Union. This remains one of the most controversial and polarising issues in the EU. It therefore comes as no surprise that states less concerned by the refugee flows, such as the UK, would lend their support to operations at sea but avoid committing to any plans for a new resettlement system.

Finally, but perhaps most importantly, the construction of a narrative that places emphasis on the criminal nature of smuggling activities is conspicuous. There is clearly no question that smugglers are criminals. The idea of a “war on smugglers” seems to fit the policy goal of avoiding to give the Triton operation a clear search and rescue mandate – indeed, one of the most significant concerns voiced by human rights groups. As Kenneth Roth has suggested, to reduce the problem to the “false pretext of criminality” is to ignore the gravity of the situations from which many migrants are fleeing, and the resulting readiness to go to any lengths to seek better opportunities on European soil.

Breaking the Silence — About Israel’s Assault on Gaza

by Kevin Jon Heller

The irreplaceable Breaking the Silence has released a new report on Operation Protective Edge — and it’s a doozy. Here are some particularly disturbing snippets from the Guardian‘s article on the report, which contains dozens of testimonials by past and present IDF soldiers:

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

Soldiers were also encouraged to treat individuals who came too close or watched from windows or other vantage points as “scouts” who could be killed regardless of whether there was hard evidence they were spotting for Hamas or other militant groups. “If it looks like a man, shoot. It was simple: you’re in a motherfucking combat zone,” said a sergeant who served in an infantry unit in the northern Gaza strip.

“A few hours before you went in the whole area was bombed, if there’s anyone there who doesn’t clearly look innocent, you apparently need to shoot that person.” Defining ‘innocent’ he added: “If you see the person is less than 1.40 metres tall or if you see it’s a lady … If it’s a man you shoot.”

In at least one instance described by soldiers, being female did not help two women who were killed because one had a mobile phone. A soldier described the incident: “After the commander told the tank commander to go scan that place, and three tanks went to check [the bodies] … it was two women, over the age of 30 … unarmed. They were listed as terrorists. They were fired at. So of course they must have been terrorists.”

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

You can find the report here. And if you’re interested in a predictable right-wing attempt to discredit the report — which basically just complains that Breaking the Silence doesn’t release the identity of the soldiers who gave testimony (gee, can’t imagine why not…) — see here.

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…

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…

John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

[snip]

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

Guest Post on the ICC and Palestine at Justice in Conflict

by Kevin Jon Heller

My contribution to the symposium is now available. Here is the introduction:

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

My thanks to Mark Kersten for posting it — and to Kirsten Ainley for organising the roundtable at the LSE on which it’s based.

Israel’s “Defenders” Show Their True Colors Regarding Academic Freedom

by Kevin Jon Heller

From April 17-19, the University of Southampton is scheduled to host a conference entitled “International Law and the State of Israel: Legitimacy, Responsibility and Exceptionalism.” As the title indicates, the conference was always going to be controversial. (Full disclosure: I was originally scheduled to present at the conference, but pulled out a couple of weeks ago because I simply didn’t have time to prepare anything.) Indeed, the conference webpage contains the following statement by the organisers:

The conference “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism” at the University of Southampton on April 17-19th will engage controversial questions concerning the manner of Israel’s foundation and its nature, including ongoing forced displacements of Palestinians and associated injustices. The conference will examine how international law could be deployed, expanded, even re-imagined, in order to achieve regional peace and reconciliation based on justice.  The conference is intended to broaden debates and legal arguments concerning historic Palestine and the nature, role, and potentialities of international law itself.

Participants will be a part of a multidisciplinary debate reflecting diverse perspectives, and thus genuine disagreements, on the central themes of the conference. Diligent efforts, including face-to-face meetings with leading intellectuals in Israel, were made to ensure the widest range of opinions possible. Those who chose to abstain, however, cannot derail the legitimate, if challenging, academic discussion the conference will inspire.

The conference organizers are grateful to the University of Southampton for ensuring academic freedom within the law and for taking steps to secure freedom of speech within the law. The conference organizers accept that the granting of permission for this event does not imply support or endorsement by the University of any of the opinions to be expressed at the conference.

The final paragraph is more than a little ironic — because earlier today the University of Southampton caved to pressure from self-appointed right-wing “defenders” of Israel and withdrew its permission for the conference. To be sure, the University did not have the integrity to admit the real reason why it was withdrawing permission. Instead, it fell back on that time-worn excuse, “security.” (Read: Israel’s right-wing “defenders” promised to disrupt the conference if the University didn’t cancel it.) The organizers’ statement in response makes clear just how pathetic that excuse really is:

A number of risks have been identified by the police but it is very clear from the Police’s report that they are more than capable of policing the conference and ensuring the safety of university staff, speakers, delegates, students and property. However, instead of accepting this at face value the University decided to focus on the risks identified by the Police and ignore their statement about their ability to police the event – we were told the Police will never say in writing they are not able to police an event, in other words the University had doubts about the Police’s ability to do their job of upholding the law! The university claims that the Police are not able or unwilling to become too involved because the University is ‘private property’, which we find astonishing. The University is a public space, it was established by a Royal Charter and it has public roles and duties including upholding freedom of speech and to that extent it should be able to resort to police assistance in order to curb security risks to enable it to fulfil its legal obligation to uphold freedom of speech. If this is not done, if commitment to safety is not undertaken by the police, freedom of speech becomes an idle worthless notion. At no point were we given an indication that the University has indeed allowed itself the time to seek viable police assistance to supplement its own resources. Additionally, and unconvincingly, the University claims that it is now too late to put proper security arrangements in place. We do not accept that in any way as there are still 18 days left before the conference.

It will be a great shame if the conference does not go ahead as planned, whether at Southampton or at another venue. But the University’s decision does have a silver lining: it makes clear the contempt that Israel’s right-wing “defenders” have for academic freedom. They love to invoke academic freedom in the context of academic BDS, where the freedom in question is that of Israeli academics. (Regular readers know that I oppose academic BDS, and I voted against it recently at SOAS.) But when academic freedom means permitting criticism of Israel — well, then censorship is just fine. Consider the following…

So How Do We Assess Proportionality? (A Response to Blank, Corn, and Jensen) (UPDATED)

by Kevin Jon Heller

Just Security published a post by Laurie Blank, Geoffrey Corn, and Eric Jensen yesterday criticizing two surveys that are interested in how laypeople think about IHL’s principle of proportionality. Much of what the authors say is absolutely correct, particularly about the need to recognize that assessing ex post the ex ante decision-making process of military commanders is fraught with difficulty and likely to both overemphasize actual civilian casualties and underemphasize anticipated military advantage. But the post is still problematic, particularly the following claims:

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.

[snip]

Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

I can’t speak to one of the surveys, because the authors don’t provide any information about it. But I am aware of (and have completed) the survey they do link to, which is conducted by Janina Dill, an excellent young Oxford lecturer who is the Associate Director of the Oxford Institute for Ethics, Law and Armed Conflict. The authors caricature Dill’s survey when they claim that it is based on the “flawed assumption” that “public perception” is “the ultimate touchstone for compliance with the proportionality rule.” Dill does not suggest that the legality of a particular attack should be determined by public perception of whether it was proportionate; she is simply interested in how non-military people think about proportionality. Like the authors, I don’t believe Dill’s questions capture the complexity of the military commander’s task. But neither does Dill. That is not the point of the survey.

Dill, however, is more than capable of defending herself. I am more interested in the first paragraph quoted above, because the authors come perilously close therein to claiming that it is per se illegitimate for anyone — or at least individuals who are not soldiers themselves — to second-guess the targeting decisions of military commanders. I suppose they leave themselves a tiny escape from that position by implying (obliquely) that “you, or I, or anyone” could assess ex post a military commander’s ex ante proportionality calculation as long as we had “full knowledge of the circumstances at the time of the attack.” But the authors make no attempt whatsoever to explain how the decision-makers involved in any ex post “compliance assessment” could ever take into account everything the military commander knew about the circumstances of the attack — from “the enemy’s center of gravity and the relationship of the nominated target to that consideration” to “the exigencies of the tactical situation” to “the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences.” Some information about the objective circumstances of the attack may be available in written reports and through the testimony of the military commander’s superiors and subordinates. But those objective circumstances are only part of the story, because IHL proportionality requires (as the authors rightly note) assessing the reasonableness of the attack “through the lens” of the commander herself — what she actually knew about the objective circumstances of the attack. And that information will be located solely in the mind of the military commander. Perhaps some commanders are so honest and so mentally disciplined that they will provide a court-martial or international tribunal with an accurate assessment of what went through their mind before the attack. But most commanders faced with discipline or prosecution for a possibly disproportionate attack will either lie about their proportionality calculation or unconsciously rewrite that calculation after the fact to justify killing innocent civilians.

In most cases, therefore, the decision-makers involved in a compliance assessment will have no choice but to rely on circumstantial evidence — including, yes, an attack’s actual consequences — to infer what went through the mind of a military commander prior to launching an attack. Such inferences will always be, for all the reasons the authors note, complex, fraught with difficulty, and prone to error. But unless we are going to simply defer to “the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat,” we have no choice but to ask people to draw them. I doubt that any of the authors think that uncritical deference is appropriate; more likely, they think that although compliance assessment is necessary, no civilian should ever be permitted to sit in judgment of a soldier. If so — or if they think that civilian assessment is possible in the right system — the authors need to do more than just complain about how difficult it is to be a military commander and dismiss as irrelevant how civilians think about fundamental principles of IHL. They need to tell us what a properly-designed system of compliance assessment would look like.

UPDATE: Janina Dill has posted her own response at Just Security. It’s excellent; interested readers should definitely check it out.

Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.

The Security Council Workaround: How the Iran Deal Can Become Legally Binding Via a UN Security Council Resolution

by Julian Ku

Since the United States has made clear that its “deal” with Iran will NOT be a binding legal commitment under international law, one wonders what all the fuss over the Iran Letter from US Senators was about. As Duncan explains in his great post below, there is little doubt that the President can enter into a nonbinding “political commitment” and withdraw from it without violating international law.  Confusingly, though, Iran keeps talking as if there is going to be a binding international legal commitment.

The answer to this confusion appears to be that the US government plans to make a non-binding political commitment, and then take this commitment to the UN Security Council to get it “carved into marble” as a Security Council resolution that would be binding under international law.  Jack Goldsmith explains in detail at Lawfare how this might happen, and why this is constitutional (if also kind of sneaky).  The President gets to both avoid going to Congress AND get a binding legal obligation on Iran.

Of course, a future President could choose to withdraw or defy the UN Security Council resolution, but the legal and diplomatic costs would be much higher than withdrawing from a mere political commitment.  Congress could also, unquestionably, override any domestic legal effects of a UN Security Council Resolution by passing a statute refusing to lift sanctions on Iran, or stopping the President from doing so.  Diggs v. Shultz makes clear that a statute passed by Congress later in time than a Security Council resolution will have the force of law by operation of the last in time rule.  But the legal and diplomatic costs for doing so would also be higher than for a mere political commitment or even a bilateral executive agreement.

So the Administration has a plan to avoid Congress and get its deal sanctified by international law.  Pretty clever lawyering, although I (like Goldsmith) expect some serious political blowback from Congress.

Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement

by Kevin Jon Heller

Another complementarity fight is brewing, this time between the ICC and Cote d’Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however, Gbagbo was convicted in an Ivorian court and sentenced to 20 years imprisonment on very different charges:

A court in Ivory Coast has sentenced Simone Gbagbo, the wife of the former president Laurent Gbagbo, to 20 years in prison for her role in a 2011 post-election crisis in which around 3,000 people were killed, her lawyer said.

Simone Gbagbo, who is also wanted by the international criminal court, was tried alongside 82 other allies of her husband in a case that revived deep divisions in a nation still recovering from years of political turmoil and conflict.

Gen Bruno Dogbo Ble, who headed the elite republican guard, and the former navy chief Admiral Vagba Faussignaux were both jailed for 20 years, according to their lawyer, while others got shorter sentences. Michel Gbagbo, the former president’s son, was sentenced to five years.

Supporters of Laurent Gbagbo, whose refusal to acknowledge his defeat to Alassane Ouattara in elections in late 2010 sparked the brief civil war, claimed his wife’s trial was politically motivated.

“The jury members retained all the charges against her, including disturbing the peace, forming and organising armed gangs and undermining state security. It’s a shame,” said Simone Gbagbo’s lawyer, Rodrigue Dadje.

Cote d’Ivore will no doubt now file an admissibility challenge with the ICC, claiming that they do not have to surrender Gbagbo because  Art. 17(1)(c) of the Rome Statute provides that a case is inadmissible if “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” Art. 20(3) specifies that, as long as the trial is genuine, “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”

I do not know the precise conduct that underlies Gbagbo’s domestic conviction. But it seems highly likely that the “undermining state security” and “organizing criminal gangs” charges were not based on substantially the same conduct as the ICC’s crimes against humanity charges. If not, the case will still be admissible before the Court, because Art. 20(3) explicitly permits the ICC to prosecute conduct different than the conduct underlying a domestic conviction. That specific provision has never been litigated, but the judges are very unlikely to read Art. 20(3) more expansively. After all, in the context of cases still under investigation at the domestic level, the Appeals Chamber specifically held in the Kenya cases that the domestic investigation must focus on “substantially the same conduct” as the ICC’s investigation:

The defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(l)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.

Here is my question: what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t. As I have argued at length in my essay “A Sentence-Based Theory of Complementarity,” the ICC simply cannot afford the kind of hyper-formalism that underlies both the “same conduct” requirement and Art. 20(3). In my view, the Court should defer to any national prosecution that results (or any national investigation is likely to result) in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s investigation. The upcoming Gbagbo complementarity fight, I think, will likely illustrate why my theory of complementarity makes sense.

Finally, it’s worth noting that should the ICC agree with me, it does in fact have an out — Art. 89(4) of the Rome Statute, which provides as follows:

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Nothing in the Rome Statute seems to prohibit the Court from deciding, after such a consultation, to let the suspect serve his or her domestic sentence prior to — or even instead of — requiring the state to surrender the suspect to the Court. I hope the ICC will consider such a decision regarding Gbagbo. It has nothing to gain by forcing Cote d’Ivoire to turn her over.

Dealing with Iran: A Primer on the President’s Options for a Nuclear Agreement

by Duncan Hollis

Without weighing in on the merits of any deal with Iran on nuclear matters, I’ll express some frustration over the rhetoric used in the current firestorm between the White House, 47 Senators (plus Governors Perry and Jindal), Iran’s Foreign Minister, and the 4th Estate on what kind of deal the United States might conclude with Iran and the so-called P5+1 (the UK, France, China, Russia and Germany).  There seems to be a great deal of confusion and conflation of issues in terms of the legal logistics of concluding any deal.  Now, maybe some of that is willful — obfuscation in service of each side’s political goals.  But, on the chance that some of those weighing in are under-informed on the actual issues and options available, I thought I’d offer a (brief) primer on what the actual options are in this case and how those options may limit/shape U.S. behavior.

For starters, it’s critical to differentiate the question of how nation states can reach agreement from the question of how a domestic legal system authorizes a State to enter into agreements (let alone what effect it gives them).  As such, I think the conversation needs to split off the question of (1) what kind of international deal this will be; from asking (2) what authority does the United States have (or will it need) to conclude such a deal as a matter of U.S. law.  Let’s take each angle separately.

International Commitments

When it comes to nation States entering into an agreement (that is, a mutual commitment of shared expectations as to future behavior), there are actually three basic options States can choose: (a) a treaty; (b) a contract; or (c) a political commitment.

(a) a treaty:  The treaty is a (relatively) well understood vehicle that rests on international law for its authority and effects.  Article 2(a) of the Vienna Convention on the Law of Treaties (VCLT) defines a treaty as

an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

There’s some nuance to this definition, which I’ve explained in the Defining Treaties chapter of my book.  But for our purposes, it suffices to note that the VCLT lays out who has authority to make a treaty (i.e., heads of state and government, foreign ministers and those with full powers) and how they can do so (i.e., by signature, ratification, accession, acceptance, approval or any other agreed means).  Once formed, a treaty is subject to the general (and fundamental) principle of pacta sunt servanda — treaties are “binding upon the parties to it and must be performed by them in good faith.” Domestic legal obligations are not recognized as a basis for breaching treaty commitments, with one exception.  Article 46 provides that

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 46, however, has proven relatively limited in its availability to States as an exit option; the one time it got raised before the ICJ, the Court suggested that States are not obliged to keep track of other states’ legislative and constitutional regulations on treaty-making and that a violation could not be manifest “unless at least properly publicized.”   Given the varied ways the U.S. authorizes treaties (discussed in more detail below), it’s hard to imagine a later Administration being able to invoke Article 46.  Indeed, if U.S. foreign relations scholars can’t agree on the ground rules for when specific treaty-making procedures are required (or prohibited), I’m hard pressed to say other countries should be able to identify a manifest violation in a case where the Executive branch pursues one specific procedure over others.

(b) a contract:  Interstate commitments can also be contracts instead of treaties. Contracts, like treaties, are considered legally binding, but differ from them in that contracts rely on domestic law as the source of their “bindingness” instead of being governed by international law as treaties are. Still, governments from time to time will do deals (e.g., one State selling helicopters to another) where the agreement specifically indicates its terms are governed by, say, the “law of New York.” This doesn’t seem to be on the table with Iran though, so I’ll reserve to a latter date more detailed analysis of how contracts and treaties differ. 

(c) a political commitment:  The third — and final — option for agreements among States is a “political commitment.”  Some scholars prefer to call it “soft law,” but for reasons Josh Newcomer and I elaborated in our article on political commitments, I think that term is a bit of a misnomer. The basic idea is simple — states can make agreements where the basis of their commitment does not rest on law, but “political” (or perhaps “moral”) forces.  In a political commitment, the fact of the promise itself motivates compliance rather than importing the sanctity of law and its legitimacy to do so. Non-legally binding commitments have now been a feature of international relations for more than a century, and include some pretty high-profile agreements, including the Shanghai Communique, the Helsinki Accords, the recent US-China Deal on Climate Change, and the Comprehensive Joint Plan that started this whole set of negotiations with Iran.  Moreover, as Josh and my article details, these commitments exhibit a tremendous diversity in terms of the form they take, the substantive commitments they contain, the extent to which they establish or implicate institutions, not to mention their varied relationships to other legal and non-legal commitments.

Traditionally, political commitments are seen as distinct from treaties in terms of being (i) more flexible; (ii) less credible because exit options are easier; with (iii) greater opportunities for confidentiality; and (iv) fewer domestic legal hurdles to their formation.  The actual variation in political commitments suggests, however, that these differences may be over-stated — today’s practice suggests that there is some significant overlap in what political commitments and treaties do.  For example, it may have been true at one time that treaties were necessarily less flexible than political commitments, but with the advent of tacit amendment procedures, treaties have gained in flexibility, while some political commitments have become more highly structured and inflexible in terms of the precision or normativity of their contents or the institutional structure in which they operate.  The one area where political commitments appear to hold a distinct advantage (or disadvantage depending on your perspective) is with the relatively weak domestic law attention they receive.  As Josh and I concluded in our article — a point reiterated earlier today by Jack Goldsmith and Marty Lederman, states like the United States have imposed few (if any) legal restrictions on the Executive’s ability to enter into political commitments.

Domestic Authorities to Commit the United States Internationally

In Article II, Section 2, clause 2 of the Constitution, the President has the “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”  If one were to take up the issue de novo, you might think this text requires that all treaties the United States wishes to conclude under international law have to proceed to the Senate.  In practice, however, Senate Advice and Consent has become one of only four ways the United States may gain authority to enter into a treaty (in the international law sense of that term).  Add in the possibility that the Iran deal might be a political commitment, and there are actually five options for how U.S. law might authorize a deal with Iran: (i) Senate Advice and Consent; (ii) a Congressional-Executive agreement; (iii) via an existing Senate Advice and Consent treaty; (iv) a sole Executive Agreement; or (v) a political commitment.

(i) Senate Advice and Consent Treaty.  If the United States concludes a treaty (in the international law sense of the term) with Iran and the P5+1, President Obama could send that treaty to the Senate for advice and consent, and, assuming the Senate agreed (with or without reservations, understandings or declarations), the President would then clearly have constitutional authority to consent to the deal.  Senate advice and consent is much less used compared to the past (less than 10% of modern treaties go through the Senate), although it should be noted that almost all past arms control agreements have received Senate advice and consent.  Still, given the general stalemate that has pervaded the Senate’s role in treaty-making the last few years, this seems a complete non-starter as a path forward, particularly with 47 Senators on record against virtually any deal involving Iran.

(ii) Congressional-Executive Agreement:  The President could gain authority to conclude a treaty (again, in the international law sense of that term) with Iran and the P5+1 via Congress instead of the Senate alone.  A simply majority vote of both Houses could enact a bill that with the President’s signature would become federal law and thus create legal authority for the United States to conclude (and perform) an Iranian treaty.  As a practical matter, congressional consent can be ex ante or ex post, but again, domestic politics in this case countenances against this being a likely option (even though today the vast, vast majority of U.S. treaty commitments under international law rely on one or more statutory authorities for their formation).

(iii) via an Existing Senate Advice and Consent Treaty:  Article VI of the Constitution treats both statutes and treaties (i.e., those receiving Senate advice and consent) as the “supreme law of the land.” Thus, just as a statute could authorize President Obama to conclude an international agreement with Iran, so too could a pre-existing Senate advice and consent treaty.  So far, I’m not aware of any nominations for an existing U.S. treaty that could do this (but someone might want to carefully parse the 1955 Treaty of Amity and Peace with Iran if it’s still in force (it’s not listed in Treaties in Force)).   Or, this might be a way forward if, as Marty and Jack hint, the Executive branch concluded the deal with Iran as a political commitment, but then had it endorsed by the U.N. Security Council pursuant to its Chapter VII authorities.  In that case, legal authority to conclude the deal might reside in the U.N. Charter itself since the Senate long ago gave consent, subject to a U.S. veto, to Security Council measures to preserve international peace and security.  As such, I don’t think we can dismiss this option as much as it might seem inapplicable at first glance.

(iv) Sole Executive Agreement:  The President may rely on his own Constitutional powers (e.g., as commander in chief) to authorize a U.S. treaty commitment.  In practice, this is rarely done as the State Department will usually try to also locate authority in at least one federal statute (even something as bland as Congress’ authorization of State Department responsibility for foreign affairs).  That said, the Supreme Court has endorsed the President’s ability to conclude certain treaties as sole executive agreements, although often in the face of congressional acquiescence, not outright opposition.  So, one might imagine this option would generate some inter-branch litigation if the Republican-controlled Congress rejects reading the president’s powers to include whatever sort of commitments are contained in any agreement the United States concludes with Iran.  Still, if the deal is to be a treaty under international law, this seems the most likely basis for authorizing it under U.S. law.  As Fred Kaplan noted yesterday, and Secretary Kerry apparently suggested a few hours ago, all the attention on treaties may have been misplaced and an entirely different deal might be at work here, namely a political one.

(v) Political Commitment;  It’s possible that the White House is looking for a political commitment with Iran and the P5+1.  If so, then all the machinations about forming a treaty under international law, and, just as importantly, the relatively robust set of domestic approval options for treaty-making, are inapplicable.  Although Josh and I argued that functional similarities between treaties and political commitments should require a Congressional role in the formation of at least some political commitments, I concede that Marty and Jack are correct that at present it’s hard to say this is the law of the United States.  On the contrary, today, it still appears that political commitments by their very nature do not implicate any of the domestic legal, procedural hurdles associated with treaties and thus may be a path forward for the United States to do a deal with Iran without worrying about the views of either the Senate or Congress as a whole.

That said, if the United States is actually going to argue it is concluding a political commitment with Iran and not a treaty, I want to conclude with two important caveats on the international and domestic aspects of such a deal that I’ve not seen mentioned previously.

First, a political commitment must be a political commitment for all sides, not just one side.  There’s much ambiguity in the U.S. and Iranian statements surrounding some of the negotiations, and it’s possible to read some of yesterday’s press briefing to suggest a deal where the United States would have only a political commitment while Iran was legally bound to perform its promises (see, for example, the carefully worded “verifiable and enforceable commitments” language used). That, however, is not an available option in international law.  Either the agreement is a treaty for all parties or its a political commitment for all participants.  I am unaware of any case where the nature of the agreement varies for the parties to it (that is it was a treaty for one state and a political commitment for everyone else).  Certainly, there have been disputes in the past as to the status of a particular agreement, with the ICJ and international arbiters called upon to weigh in on whether the deal struck gave rise to international legal obligations or not.  And it’s also possible for a treaty to contain not just legally binding commitments but also political ones (see, e.g., Article 1 of the Algiers Accords).  But, a stand-alone political commitment is, by definition, mutually exclusive from the international legal commitment that defines a treaty.  As such, once an agreement contains at least one commitment intended to be governed by international law, it’s a treaty not a political commitment.  Indeed, unlike contracts, treaties do not require consideration.  Thus, a treaty can exist where only one side (e.g., Iran) makes all the promises to do (or not do) certain things. Taken together, this suggests that, unless the United States is making some new, novel move to unsettle the existing forms of international commitment, its suggestion that it is pursuing a political commitment with Iran should mean that none of the commitments will give rise to any international legal obligations in and of themselves (there may be separate estoppel arguments, but let’s save those for another post).

Second, turning to the U.S. domestic context, it may be true that the Constitution does not require any particular approval procedure for political commitments, but it is also true that the Senate retains significant political power to pressure the President to pursue a treaty over a political commitment or even to insist on having a treaty submitted for Senate advice and consent in lieu of simply relying on Executive Power.  For example, before it became the Senate-approved Moscow Treaty, President Bush had apparently considered the possibility of doing the deal with Russia as either a political commitment or a Sole Executive Agreement.  But the Senate objected; and in a bipartisan push succeeded in having the deal submitted for its advice and consent.  Thus, one could imagine that if the Senate (or I suppose Congress as a whole) wanted to deploy their political checks on Executive power (think appropriations or ambassadorial/cabinet approvals), the White House might have to recalculate whether and how it wants to proceed with Iran here.  Nor is this entirely a U.S. problem; reports suggest that when the United States was looking to craft a strategic framework with Iraq a few years back, the Iraqis ended up concluding that the deal had to be done as a treaty (in the international law sense) since their Parliament was insisting on approving it in lieu of going to more streamlined political commitment route.  Simply put, just because there may be no extant constitutional constraints on the President’s ability to conclude a political commitment with Iran does not mean that there won’t be domestic negotiations over whether and how the United States concludes any deal involving Iran and nuclear matters.

So . . . now that I have that all off my chest, I’ll get out of the way and let the various actors continue to negotiate and debate the merits of the appropriate way(s) forward here.  I just hope that folks will do so with more attention to what the existing international and domestic law has to say (or not say) on these questions.