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International Security

Thoughts on the Ukraine Ad Hoc Self-Referral

by Kevin Jon Heller

As readers no doubt know, Ukraine has accepted the ICC’s jurisdiction on an ad hoc basis for acts committed between 21 November 2013 and 22 February 2014. The self-referral has already led to a good deal of intelligent commentary — see, for example, Mark Leon Goldberg’s discussion of the politics of an ICC investigation here and Mark Kersten’s convincing argument that Russia may not be particularly opposed to an ICC investigation here. I just want to add a few additional thoughts.

To begin with, I remain troubled by the insistence of Ukraine’s Constitutional Court that Ukraine cannot delegate its adjudicative jurisdiction to an international court. As it said in 2001:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

Parliament’s acceptance of the ICC’s jurisdiction, even on an ad hoc basis, seems specifically foreclosed by the Constitutional Court’s judgment. Ukraine’s President and Parliament clearly don’t care about that inconvenient fact; will the ICC? Martin Holtermann may be right — the ICC may simply defer to Ukraine’s President and Parliament. But I can help but think it would be unseemly for an international court like the ICC to simply ignore a clear judgment issued by the highest court in a state purporting to accept its jurisdiction. At the very least, Fatou Bensouda should take the Ukraine’s internal conflict into account when she decides whether to open a formal investigation — you can bet that any suspect wanted by the ICC would challenge the legality of the self-referral in Ukraine’s domestic courts, litigation that could make it very difficult for ICC proceedings to go forward.

Relatedly, I think it’s important to remind ourselves that Ukraine’s self-referral does not mean the OTP will open a formal investigation into the situation. Diane Amann writes today that the self-referral shows “Europe is on [the] ICC docket.” That’s true — but only in the formal sense. As Mark Kersten noted in February, Europe has been on the ICC docket for a long time in terms of preliminary investigations. After all, the OTP announced the Georgia investigation in August 2008 — nearly six years ago. (Its Afghanistan investigation has been plodding along even longer, since 2007.) That hasn’t quelled the voices that have been complaining — with justification — that the ICC has been overly obsessed with Africa. So unless and until the OTP decides to open a formal investigation into the situation in Ukraine, the country’s self-referral is unlikely to have any positive effect whatsoever on the Court’s African reputation.

Finally, a brief thought on the temporal limits of the self-referral. I don’t think the ICC will reject the referral on the ground that it is too carefully tailored to ensure only one side of the conflict. (A major problem with Comoros’s Mavi Marmara state referral.) The temporal limits, however narrow, make some sense — the referral begins when Yanukovych announced Ukraine was abandoning the agreement with the European Union and ends when Yanukovych fled the country. Should Ukraine have accepted the ICC’s jurisdiction for a longer period — most notably, to include Russia’s invasion of Crimea? I had an interesting twitter debate earlier today on that issue with a bunch of smart Court-watchers, including Ryan Goodman, Eugene Kontorovich, Mark Kersten, Martin Holtermann, and David Kaye. I pointed out that it’s difficult to see what international crimes Russia committed during the invasion, other than the non-prosecutable crime of aggression. Ryan replied that a longer self-referral could give the ICC an opportunity to address important issues in the law of occupation. (See also his post here.) That’s absolutely true — but only if Russia actually violates the law of occupation, which seems unlikely given the popularity (certainly not uniform) of the invasion and annexation within Crimea itself. The wildcard is the crime that Eugene mentioned during our discussion — the transfer of civilians into occupied territory. I have no idea whether Russia intends to directly or indirectly transfer Russians into Crimea; Eugene seems to think it does, and I will defer to his greater knowledge of the situation. But my position with regard to that possibility is the same as my position on Israel’s transfer of civilians into the West Bank: whatever the merits of the allegations, the war crime is legally uncertain and factually difficult to prove, especially when the transfer is indirect instead of direct — which it is in the West Bank and would almost certainly be in Crimea. In the absence of other violations of the law of occupation, therefore, I am not sure the OTP would get involved.

I imagine we will have much more to discuss concerning the ICC and Ukraine in the weeks to come!

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

Kosovo, South Ossetia, and Crimea: the Legal Rhetoric of Intervention, Recognition, and Annexation

by Chris Borgen

Following up on my previous post, I want to look at Russia’s rhetoric regarding Crimea and how it relates to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia. While countries may use arguments that start to seem inconsistent, Russia’s use of “law talk” is especially striking because it uses legal rhetoric so often, even when it has rather weak arguments. While Russia deploys legal language, increasingly they are not the concepts of international law as generally accepted. Rather, Russia is building a revisionist conception of international law to serve its foreign policy needs regarding the states of the former Soviet Union.

But, first, let’s take a few steps back. For President Putin, the situation in Crimea has its roots in Kosovo. Kremlin watchers have argued that the loss of Kosovo was a traumatic experience for President Putin and Foreign Minister Sergei Lavrov. (For some background on the run-up to Kosovo’s declaring independence, please see this post.)

In his speech of March 18, President Putin revisited the disagreements Kosovo declaration of independence, even quoting the U.S.’s argument before the ICJ:

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

This idea that the residents of Crimea just want the same ability to become a country that those in Kosovo had is rhetorically appealing. (And keep in mind the combination of legal rhetoric with ethnic grievance in his quote, I want to come back to that.) But wanting to be a country does not mean you have the right to become a country. As discussed before, there is no general right to secession, regardless of referendum results.

However, there are many differences between the two cases: Kosovo had been under international administration for close to a decade, its final status was left open in the UN Security Council Resolutions, it was the site of significant ethnic violence. None of that is true in Crimea.

But what is especially interesting is how Russia has changed what it is describing as the lesson of Kosovo. In 2008, Russian Foreign Minister Lavrov called Kosovo’s potential separation from Serbia a “subversion of all the foundations of international law, . . . [a] subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.”

In his March 18 speech, though, President Putin took a different tack. While (Serbia’s) sovereignty and territorial integrity were the focus of Russian diplomacy concerning Kosovo, there is little talk now about protecting Ukraine’s sovereignty. Rather, President Putin spent the opening sections of his speech decrying the historical mistake of handing Crimea over to Ukraine “like a sack of potatoes.” And what of agreements, such as the Budapest Memorandum, recognizing the “existing borders of Ukraine,” respecting Ukraine’s territorial integrity, and reaffirming the obligation not to use or threaten to use force? President Putin explained “Russia seemed to have recognized Crimea as part of Ukraine, but there were no negotiations to limit borders.” (Emphasis added.) That is contradicted by the text they actually signed. What about sovereignty? “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” (Perhaps he was confusing change of government with dissolution of a state.) And then “the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and their lives…”

Once again, this is an argument based on irredentism and a sense that borders and sovereignty can become rather wispy and insubstantial when you hear the call of people of the same ethnicity or who speak the same language as you do. (Not necessarily the same citizenship, mind you: ethnicity and/or language.)

From here, he opens his view to the state of international law… (Continue Reading)

Did the U.S. Infiltration of Chinese Company Huawei Violate International Law?

by Julian Ku

Just in time for Michelle Obama’s speech in Beijing extolling the benefits of free speech and a President Obama/President Xi summit, the NY Times published an article detailing how the U.S National Security Agency infiltrated the systems of Chinese telecom infrastructure giant Huawei.  According to documents the Times obtained from the Edward Snowden leak, the NSA “obtained information about the workings of the giant routers and complex digital switches that Huawei boasts connect a third of the world’s population, and monitored communications of the company’s top executives.”

From a legal perspective, there is no doubt that this is a violation of Chinese laws and an example of how the U.S. government is doing what it is alleging the Chinese government is doing to U.S. companies. There also seems little doubt that this action is clearly legal under U.S. laws, as the U.S. government has broad and largely unchecked authority to conduct surveillance of foreign nationals in foreign countries.  But is the action illegal under any international laws?

I am doubtful that such snooping could violate any international right to privacy, even if such a right existed.  The ICCPR might provide such a right, but it may or may not apply extraterritorially, and even if it did, it probably doesn’t restrict this kind of activity.

This essay in the Global Times, a hawkish Chinese-state-affiliated newspaper, suggests that such activity could also constitute an attack for the purposes of the law of war.  The author, a U.S.-based writer, argues that “launching attacks under another nation’s flag has long been seen as illegal under both codified law and international custom. In such a case, Chinese nationals would face financial and possibly physical risk, especially if US involvement remained undetected.”

I think this would be a stretch under the laws of war. Is snooping around in Huawei’s servers an “act of violence” within the meaning of the Geneva Convention? I don’t think walking into Huawei’s offices and ruffling through their papers is an act of violence. Taking down their servers, or planting viruses to disable those servers or related activities might be an act of violence, but even that seems a bit of  stretch under current international laws.

So the U.S. may have spied, but it cannot be said to have “attacked” China, in its reported Huawei infiltration.  As a matter of international law, the reported actions appear to be legal, even if they were unwise or hypocritical.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi’”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Even More on the Privacy and Civil Liberties Oversight Board Hearing: Why International Law Won’t Matter Much for NSA Spying

by Julian Ku

I was fortunate to participate in a discussion held at a hearing of the Privacy and Civil Liberties Oversight Board today in Washington D.C. I say “participate in a discussion” because it was not like giving testimony to a congressional hearing where the congressman make speeches and ask questions unrelated to your testimony.  Rather, it was closer to a mini-oral argument with five judges asking you questions about difficult legal issues (luckily, there were three other panelists though to field most of the questions).  The members of the PCLOB are all engaged and asked tough questions of me and of my fellow panelists. (I think C-SPAN will have video of our panel posted here)

The written testimony that was submitted (as well as  comments from the general public) can all be found here at the Regulations.Gov website. I want to flag for this blog’s readership the day’s last panel, which focused on international and transnational legal issues related to the NSA’s Section 702  surveillance program.  Three members of that panel (former State Dept. Legal Adviser John Bellinger, Human Rights Watch’s Laura Pitter, and the Max Planck Institute’s Ulrich Sieber) tackled the ICCPR’s applicability to overseas surveillance as well as the applicability of rules of customary international law.  (Video can be viewed here).  For those who don’t have the patience to watch the video or view the transcript, I live-tweeted the panel here).

Let me just add my two cents on the issues in this panel: Based on the questions, I don’t think the majority of the members of the PCLOB are convinced that international law does, or even should, constrain U.S. surveillance under Section 702.  They are also unimpressed with the complaints of foreign governments, most of whom have similar overseas surveillance schemes but with fewer oversight mechanisms.  The only concern that seemed to bother the Board was the fact that U.S. companies selling information technology overseas are being tarred with the NSA label, making it harder for them to compete in foreign markets.  These are just my impressions, mind you, but I wouldn’t be surprised if the final PCLOB report on Section 702 gives short shrift to international law issues.  (By the way, I would expect the opposite in their treatment of the Fourth Amendment, however).

Anyway, something to keep an eye on….

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

Reading Tea Leaves in Confirmation Hearings for U.S. Cyber Commander

by Duncan Hollis

Last week, the U.S. Senate held confirmation hearings for Vice-Admiral Michael S. Rogers to replace General Keith Alexander as head of U.S. Cyber Command.  It’s interesting to see how both men received almost identical written questions in their respective 2014 and 2010 hearings.  More interesting perhaps are the similarities and variations in their responses with respect to how international law operates in cyberspace.

For example, in both 2010 and 2014, the Senate asked the nominee the same question: “Does the Defense Department have a definition for what constitutes use of force in cyberspace, and will that definition be the same for [U.S.] activities in cyberspace and those of other nations?

Here was Alexander’s written response:

Article 2(4) of the U.N. Charter provides that states shall refrain from the threat or use of force against the territorial integrity or political independence of any State. DOD operations are conducted consistent with international law principles in regard to what is a threat or use of force in terms of hostile intent and hostile act, as reflected in the Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF). There is no international consensus on a precise definition of a use of force, in or out of cyberspace. Consequently, individual nations may assert different definitions, and may apply different thresholds for what constitutes a use of force. Thus, whether in the cyber or any other domain, there is always potential disagreement among nations concerning what may amount to a threat or use of force.

Remainder of answer provided in the classified supplement.

And this is what Vice Admiral Rogers provided to the Committee last week:

DoD has a set of criteria that it uses to assess cyberspace events. As individual events may vary greatly from each other, each event will be assessed on a case-by-case basis. While the criteria we use to assess events are classified for operational security purposes, generally speaking, DoD analyzes whether the proximate consequences of a cyberspace event are similar to those produced by kinetic weapons.

As a matter of law, DoD believes that what constitutes a use of force in cyberspace is the same for all nations, and that our activities in cyberspace would be governed by Article 2(4) of the U.N. Charter the same way that other nations would be. With that said, there is no international consensus on the precise definition of a use of force, in or out of cyberspace. Thus, it is likely that other nations will assert and apply different definitions and thresholds for what constitutes a use a force in cyberspace, and will continue to do so for the foreseeable future.

Similarly, both hearings had the Senate asking “Could U.S. Cyber Command lawfully employ offensive cyber weapons against computers located abroad that have been determined to be sources of an attack on the United States or U.S. deployed forces if we do not know who is responsible for the attack (i.e., a foreign  government or non-state actors)?

General Alexander’s response:

The establishment of U.S. Cyber Command, in and of itself, does not change the lawful employment of military force for self-defense. In this case, if the “attack” met the criteria approved by the President in our Standing Rules of Engagement, the military would exercise its obligation of self-defense. Operationally, it is difficult to develop an effective response when we do not know who is responsible for an “attack”; however, the circumstances may be such that at least some level of mitigating action can be taken even when we are not certain who is responsible. Regardless whether we know who is responsible, international law requires that our use of force in self-defense be proportional and discriminate. Neither proportionality nor discrimination requires that we know who is responsible before we take defensive action.

Vice-Admiral Rogers got the same question plus an additional add-on sentence, asking ”Without confident “attribution,” under international law, would the Defense Department have the authority to “fire back” without first asking the host government to deal with the attack?”  His written response?

International law does not require that a nation know who is responsible for conducting an armed attack before using capabilities to defend themselves from that attack. With that said, from both an operational and policy perspective, it is difficult to develop an effective response without a degree of confidence in attribution. Likely, we would take mitigating actions, which we felt were necessary and proportionate, to defend the nation from such an attack. I’d note that in such an event, U.S. Cyber Command would be employing cyber capabilities defensively, in the context of self-defense.

For me, I was struck by (a) the new emphasis on the ‘effects test’ that’s been bantered about for years in terms of identifying what constitutes a use of force subject to Article 2(4); (b) the lessened attention to ‘classified responses’, which peppered Alexander’s original written responses and that are now (thanks to Edward Snowden I assume) largely absent from Rogers’ answers; and (c) the softening of the language regarding the U.S. willingness to respond in self-defense where attribution is a problem.

What do readers think?  Is this all one, harmonious, consistent U.S. policy?  Or, are there shifts in these responses that bear watching?  Anyone interested in comparing the remainder of the two testimonies can do so by seeing what Alexander wrote here versus Rogers’ more recent written responses here.

Ukraine Insta-Symposium: Intervention and Colonialism as Responses to Alleged Fascism

by Boris Mamlyuk

[Boris N. Mamlyuk, Ph.D., is an Assistant Professor of Law at the University of Memphis School of Law.]

Julian Ku makes an interesting observation regarding Russia’s fact-based arguments in support of Crimea, versus what most commentators see as a weak legal case for self-determination.  Over the past week, I’ve tried to offer several mapping exercises in order to explore the expanding range of international law arguments and potential violations.  The purpose was by no means to describe a “Russian point of view,” or to criticize U.S. international law commentators, of which I am one.  Rather, the attempt was to assume in good faith the factual assertions proposed by Russia in support of Crimean independence, and then to explore the ramifications of the current standoff from the perspective of international law. 

Russia’s mounting argument for humanitarian intervention beyond Crimea, in Eastern and Southern regions of Ukraine, needs to be scrutinized carefully.  Thus far, Russia seems to be merely reserving the right to intervene, and to my knowledge, the Russian government has not articulated a standard for humanitarian intervention in Ukraine, or a ‘red line’ that would trigger an R2P intervention.  Short of that, we can consider the most recent standard for humanitarian intervention, formulated in the UK’s guidance document on the proposed intervention in Syria.  According to this guidance document, humanitarian intervention is permissible where:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).  (emphasis added).

These elements fall far short of the R2P ‘three pillar’ approach, which includes an express responsibility to prevent humanitarian catastrophe.  The current situation in Ukraine, while fluid and dangerous, does not seem to have risen to the level of extreme humanitarian distress required for intervention.  What Russia seems to be doing, then, is positioning itself for an intervention in the event of further escalation of violence… (Continue Reading)

Ukraine Insta-Symposium: Of Secession & Less-Drastic Means–Do the Åland Islands Hold Any Lessons for the Crimea Crisis?

by Rhodri Williams

[Rhodri C. Williams is a US human rights lawyer living in Sweden and working for the International Legal Assistance Consortium. He writes on human rights issues on his own blog, TerraNullius.]

In the crisis triggered by Russia’s poorly concealed incursion in Crimea, there are plenty of grounds to believe that Moscow’s international law arguments are largely a smokescreen, albeit one arguably enabled the West’s own blurring of legal lines in the course of two decades of liberal interventionism. Lying behind Russia’s normative protestations, however, are concrete assertions of political interest that will have to be addressed in order to achieve a sustainable resolution. In this sense, an emerging normative challenge relates to the extent to which international law and practice on self-determination would facilitate such a process.

Russia’s has a number of arguable political interests in the Crimean peninsula. The most obvious relate to security, and Crimea’s role as a warm water port of longstanding strategic significance to the Russian Navy. However, a far broader claim relates to Russia’s asserted right to protect both its citizens and Russian speaking minorities throughout a “near abroad” corresponding to the boundaries of the former Soviet Union. Like any country, Russia has a legitimate interest in the fate of its citizens and an arguable interest in supporting kin minorities. However, the unilateral and open-ended imposition of Russia’s own “protection” in a neighboring state is taken by many in the region as a thinly veiled excuse for a new round of post-Soviet revanchism. Indeed, comparisons have inevitably been drawn to “Hitler’s substitution of ethnicity for state borders” in the lead-up to World War II.

The issues raised by Russia’s “ethnic” claims in Crimea, eastern Ukraine and beyond play on debates about the alignment of states and nations that have been with us since the 19th century, but which gained an explosive new life since the end of the Cold War. Ironically, the original political emergence of these issues arguably came with the Crimean War of the 1850s, in which France and Britain sought to prevent Russia from encroaching on Ottoman Turkish-held territories in the Balkans. However, while both Ukraine and the Balkans have subsequently provided spectacular examples of the failure to peacefully manage diversity, the Åland Islands of Finland – the little known northernmost theatre of the Crimean War – give some grounds for hope.

The “Åland example”, as described in a recent book by the Åland Islands Peace Institute, has significant resonance for Crimea. Perhaps most obviously, Åland, like Crimea, occupies a strategic location in a region long troubled by ethno-linguistic cleavages. Åland is an archipelago in Finland that projects toward Sweden across a narrow strait in the Baltic Sea. Like the rest of Finland, Åland was part of Sweden until 1809, when the country was incorporated into Russia. Eager to consolidate an outpost within striking distance of Stockholm, the Russians built a fortress at Bomarsund on Åland.

Thus, the issue of strategic location arose early, with the British and French war aims focused on destroying both Bomarsund and Sevastapol in Crimea, and preventing them from being militarized again. Since the Crimean War, Åland – in contrast to Sevastapol – has remained demilitarized, in a local regime rooted in the 1856 peace settlement. The “ethnic issue” on Åland remained dormant for another 60 years until 1917, when Finland became independent. Until then, the tiny Åland population had aligned itself with the minority of mainland Finns (at the time about 10%) that spoke Swedish as their mother tongue, but that would quickly change.

In 1918, the first Finnish Constitution granted the Swedish language formal equality with Finnish, paving the way for an enduring cultural autonomy that has guaranteed linguistic and cultural rights for Swedish-speakers without granting them either political veto powers or control over their territories. Meanwhile, the Ålanders had already begun to agitate for secession to Sweden and succeeded in bringing their case to the newly founded League of Nations. The result was a 1921 compromise solution in which sovereignty was retained by Finland, but on the condition that Åland was to be granted an extensive territorial autonomy, or local self-rule. In order to assuage Sweden’s security concerns, Crimean War-era demilitarization was affirmed and expanded.

As described in the Peace Institute’s book, all this led to a surprisingly durable regime, sanctified by international law obligations (compiled here), but fundamentally anchored in consent. The authors attribute the longevity of Åland’s arrangements to a number of factors. A key departure point was the astute balance of dissatisfaction set by the original League of Nations decision. Finland was granted sovereignty without control, Åland self-rule without self-determination, and Sweden security guarantees without territorial gains. This may have contributed to a dynamic whereby all parties acted on “the basic premise of accepting a compromise and learning to live with it” (196). (more…)

Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham.]

Our responses to what has been happening in Ukraine and the reactions of various governments, may depend on how we view the politics of the region and the moral claims being made. The rule of law is also of direct relevance, as ‘[we] believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.’ These words are those of President Putin, written a few months ago in order to prevent the US, UK and other governments from intervening in Syria. International law is crucial to the situation in the Ukraine. It is of particular relevance to the right of self-determination of the people of Crimea and whether Russia can lawfully intervene on the territory of Ukraine.

The right of self-determination, as enshrined in the UN Charter and international human rights treaties, enables a people to determine for themselves their political, economic, social and cultural status. It has been applied in recent years in the former Yugoslavia, East Timor and South Sudan.  It is certainly arguable that the people in the Crimea have a distinct identity and territory, created over centuries and fostered by decisions of the USSR, Russia and Ukraine. This includes its status as an autonomous region within the state of Ukraine and by specific agreements about it between Russia and Ukraine.  It is not unlawful for it to have a referendum and declare itself independent (or that it wishes to merge with Russia), as this was allowed by the International Court of Justice in its (poorly reasoned) advisory opinion on the declaration of independence by Kosovo.

However, such a declaration of independence or merging is not effective in international law by itself. There are two key factors that are relevant: the actions of the state within whose borders the people live; and the responses of the international community. (more…)

Ukraine Insta-Symposium: The Crisis in Crimea–The Protection of Nationals Abroad and the Legality of Ukraine’s Possible Use of Force in Self-Defense

by Sina Etezazian

[Sina Etezazian is a PhD candidate at Monash Law School, researching the prerequisites for the exercise of self-defense in international law.]

Although Russia has now distanced itself from the doctrine of the forcible protection of nationals abroad, and instead has opted to rely on “intervention by invitation” as the main basis of its deployment of force in Crimea, the rescue of nationals at risk overseas was its original premise for military action against Ukraine. It is therefore worth clarifying whether Russia was legally permitted to deploy force in Crimea to protect Russian ethnics or Russian citizens whose lives, Russia argued, were threatened by Ukrainian forces.

Even if the contemporary international law governing the defensive actions of states extends to the protection of nationals abroad, Russia’s deployment of force in Crimea appears to fall short of meeting the conditions of permissible self-defense. However, while the Russian intervention has constituted an act of aggression, not self-defense, I can see no possible legal justification under the present circumstances for resort to (individual or collective) self-defense against Russia.

An examination of state practice since 1945 reveals that only a limited number of states – such as Israel, Russia, the UK and the US – have invoked self-defense to use force with the alleged aim of protecting their nationals threatened extraterritorially. Furthermore, the rescue of citizens abroad often seems to be a manifestation of aggressive political ambitions rather than a genuine exercise of the right of self-defense. The United States, for example, in its interventions in the Dominican Republic (1965), Grenada (1983) and Panama (1989), used the justification that it had acted in self-defense to protect its citizens allegedly at risk in those states. However, US actions in all the above instances received harsh criticism from the community of states, partly because the actions were disproportionate self-defense (The Yearbook of the United Nations (1965) 142; UN SCOR, 2491st mtg, UN Docs S/PV. 2491(27 October 1983) 5, paragraphs 38-9; Louis Henkin, “The Invasion of Panama Under International Law: A Gross Violation” (1991) 29 Columbia Journal of Transnational Law 293, 306, 308-9; Judith Gardam, Necessity, Proportionality and the Use of Force by States, 166-7), seeking to overthrow the governments of the states in which the US had intervened militarily (Christine Gray, International Law on the Use of Force (3rd ed, 2008) 88-92).

However, reacting to US interventions, states neither opposed nor supported the use of force for the protection of nationals abroad. Similarly, when Russia invoked Article 51 of the UN Charter to rescue Russian nationals allegedly threatened by Georgian forces in 2008, rather than challenge the doctrine in question, Western states disputed Russia’s motives behind its intervention in Georgia (Christine Gray, “The Use of Force and the International Legal Order” in: Malcom D. Evans (ed), International Law, 615, 627), which was far from a proportionate use of force in terms of damage and loss of life inflicted.

The better view, thus, would seem to be that expressed by Tom Ruys in 2008 (page 35):

In conclusion, we have seen that, de lege lata, the long-standing controversy over the legality of forcible protection of nationals remains unresolved. The new element in state practice, namely the increased political tolerance vis-à-vis limited evacuation operations, is arguably counterbalanced by the negative opinio iuris reflected in the UNGA debates on diplomatic protection. Ergo, in the final analysis, United Nations practice is and remains inconclusive, implying that it is virtually impossible to deduce from customary practice to what extent attacks or possible attacks against nationals abroad may trigger the right to self-defence.

Hence, the legal basis for the coercive protection of nationals abroad in lawful self-defense appears to remain largely unclear. At best, the doctrine of protection of nationals abroad is very controversial.

However, even if one assumes that the rescue of nationals at risk overseas falls within the scope of valid self-defense, it is very unlikely that Russia’s current deployment of force in Crimea falls within the limits of Article 51, as it may not satisfy the prerequisites of necessity and proportionality.

First, the “last-resort” criterion inherent in the principle of necessity dictates that self-defense is available to the victim state only when methods not involving force appear impracticable to settle the conflict. This view finds support in customary international law and in the jurisprudence of the International Law Commission (ILC) (para. 120):

The reason for stressing that action taken in self-defence must be necessary is that the State attacked (or threatened with imminent attack, if one admits preventive self-defence) must not, in the particular circumstances, have had any means of halting the attack other than recourse to armed force. In other words, had it been able to achieve the same result by measures not involving the use of armed force, it would have no justification for adopting conduct which contravened the general prohibition against the use of armed force. The point is self-evident and is generally recognized; hence it requires no further discussion.

 

In 2005, the Chatham House Principles on the Use of Force in Self-Defence, representing the work of a number of prominent commentators in the field, confirmed the ILC’s approach to the “last-resort” requirement in the following terms (pages 966-7):

Force may be used in self-defence only when this is necessary to bring an attack to an end, or to avert an imminent attack. There must be no practical alternative to the proposed use of force that is likely to be effective in ending or averting the attack.

In fact, when Russia chose to invoke the so-called right of the forcible protection of nationals abroad, diplomacy appeared practicable and effective in resolving the crisis; in other words, the “last resort” had not yet been reached.

Moreover, the force used in self-defense must satisfy the criterion of immediacy: unless there is an attack that can be proved imminent, the victim state may not be justified in resorting to self-defense. Even supposing that the use of force against nationals residing outside the victim state may be equated with an armed attack, there is no evidence that the lives of Russians in Crimea or other parts of Ukraine have been threatened with impending military force. It is therefore difficult to comprehend how Russia can validly engage in self-defense against Ukraine. It goes without saying that a response that fails to meet the demands of necessity is extremely unlikely to be considered proportionate defensive action.

The final point to consider is whether, in the given situation, Ukraine would have the right to act in individual or collective self-defense. The answer is no – despite the conclusion made by the Ukrainian Association of International Law that Russia’ military action in Crimea “provides legal grounds” for Ukraine exercising its right of individual or collective self-defense.

True, states’ reactions to the occupations of South Korea in 1950, the Falkland Islands in 1982 and Kuwait in 1990 leave no doubt that the commencement of occupation clearly amounts to the commencement of an armed attack. Furthermore, the 1974 Definition of Aggression and the Amendments to the ICC Statute have listed “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation…resulting from such invasion or attack” as an act of “aggression”. Thus there is little doubt that Russia has committed “aggression“. All this might suggest that Ukraine has an entitlement to self-defense, as embedded in Article 51, and the customary international law accompanying it.

However, at least in these circumstances, Ukraine’s possible use of force against Russia runs into the same obstacle with respect to the last-resort criterion as the Russian deployment of force in Crimea: given that “Russian troops have not so far used lethal force“, there still appear to be some prospects for the peaceful settlement of the conflict, which are likely to be practicable in dissuading Russia from continuing with its act of aggression. The fact that, on 7 March 2014, President Barack Obama had “a lengthy telephone talk” with his Russian counterpart, President Vladimir Putin, urging him to “seek a diplomatic solution to the crisis in Ukraine“, clearly illustrates this point.

Moreover, similar instances from the practice of states tend to support the proposition that, in cases akin to the occupation of Crimea, states have appeared more willing to pursue non-coercive measures in the first place. For example, in 1982, when the Falkland Islands, which belonged to the UK, were occupied by Argentine forces, the UK did not immediately decide to respond under the rubric of self-defense. Rather, British officials found force to be “necessaryonly when it was made clear that peaceful means had been impracticable to resolve the problem–  that is, when Argentina refused to abide by the relevant resolution of the UN Security Council demanding Argentina’s withdrawal from the Falkland Islands. Likewise, unless measures other than force are likely to be impracticable in rectifying the wrong created by Russian forces – that is, the occupation of Crimea – Ukraine (and its allies) may not lawfully resort to forceful measures against Russia within the confines of Article 51.