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International Security

The Ruto Trial Chamber Invents the Mistrial Without Prejudice

by Kevin Jon Heller

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

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

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

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

AJIL Unbound Symposium on Third World Approaches to International Law

by Kevin Jon Heller

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

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

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

Seeking the Regulatory High Ground: the International Civil Aviation Organization and Commercial Spaceflight

by Chris Borgen

In 1958, Air Force Chief of Staff Thomas D. White wrote: “For all practical purposes air and space merge, form a continuous and indivisible field of operations.” White later coined the term “aerospace” and used it in a Congressional hearing. Later it was used in policy papers to explain why the U.S. Air Force would also have the responsibility for space issues. (William Burrows, The New Ocean, 248.)

The International Civil Aviation Organization, a specialized agency of the UN, has just made a similar giant leap from air into space. Agence France Press reports that in a March 15 speech at the Second Annual Aerospace Symposium (there’s that word again) co-sponsored by ICAO and the UN Office on Outer Space Affairs (UNOOSA), ICAO Council President Olumuyiwa Benard Aliu said:

The International Civil Aviation Organization “recognizes that sub-orbital and outer space flights will foster new tourism and transport markets, and that investments in related research and development remain at a very healthy level,”…

“Personally, as an engineer, I am very excited to see the dream and theory of normalized space flight now becoming such a tangible reality,” he told an aerospace symposium in Abu Dhabi.

In making its case, the agency noted an uptick in the number of spacecraft designs that have made the leap from concept to reality, saying more will follow.

As SpaceNews put it: ICAO is “spreading its wings into commercial spaceflight.” Thinking holistically about the continuum of air and space activities does make sense. Virgin Galactic’s space planes and SpaceX’s and Blue Origin’s returnable, reusable rockets will have significant activities within the atmosphere as well as in space. And, so, we see domestic and international organizations adapting.

That adaptation is itself an interesting story. ICAO’s mandate is focused on aviation. Its vision statement is to “[a]chieve the sustainable growth of the global civil aviation system.” Even its 2014- 2016 strategic objectives make no mention on of space– or aerospace. However, Agence France Press reports that at the ICAO/ UNOOSA conference, the ICAO leadership stated that:

Rules must be put in place soon to ensure safety and security in space, as well as prevent the creation of a patchwork of regulations by individual states..

The agency suggested adapting the existing regulatory framework for aviation, for which the ICAO and national governments are responsible.

ICAO, as it stands, does not have enforcement authority. It studies,  fosters coordination and  develops policies and standards.

While there has been a focus on certain potential future space activities, such as asteroid mining, and their relation to the Outer Space Treaty, is there a need for a new treaty covering launches and activities such as space tourism? In the U.S., there seems to be a concern that too much regulation of the space tourism and orbital launch services could stifle the nascent industry. According to R&D:

Both the Federal Aviation Administration and the recently passed commercial-space competitiveness legislation from the U.S. Congress keep their distance from regulating space tourism, “as long as passengers receive explicit warnings about the hazards and the vehicles have basic safeguards,” the Wall Street Journal reported.

And so there are likely two discussions that will be taking place in the coming months. The first will concern the an institutional question: should ICAO become a norm-setter in regards to space activities? The second will address a set of regulatory issues: do we need a new treaty on aerospace activities, space tourism, and launch activities? Could consultation and coordination among national regulators be enough?

Stay tuned…

Article 87(5) of the Rome Statute — Bizarre and Possibly Counterproductive

by Kevin Jon Heller

In a recent post, I noted my puzzlement at Russia’s recent announcement that it will not cooperate with the ICC’s investigation in Georgia. Noting that “Russia has very little to fear” from the investigation, I asked why it would not “milk a little goodwill by at least pretending to cooperate with the ICC” — especially as Russia could simply stop cooperating with the ICC if the OTP ever found evidence that incriminated it.

My post elicited the following response from Patricia Jimenez Kwast on her personal blog:

This might be true in political terms. However, the legal picture is more complicated than this. Once Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute. As a permanent member of the Security Council, Russia would probably block any meaningful Security Council engagement under 87(5)(b), but the point is that ‘pretending to cooperate’ or stopping cooperation after agreeing to cooperate does carry legal consequences. It is not a decision that should be taken lightly.

To be perfectly honest, I had never paid any attention to Art. 87(5) until I read Kwast’s post. Here is what it says:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

In any case, I doubt Russia is trembling in its boots at the thought of a non-cooperation finding. The Security Council did not refer the situation in Georgia, so the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties. And the Assembly of States Parties has no authority over Russia — because it’s a non-party State…

I’m more than a little baffled by Art. 87(5). Comments from readers would be most appreciated.

Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict…

Al Jazeera Panel Discussion on Siege Warfare in Syria

by Kevin Jon Heller

Sorry for the endless self-promotion, but I thought readers might be interested in the following episode of Al Jazeera’s Inside Story, which includes a 30-minute panel on siege warfare in Syria that I participated in. It was quite a wide-ranging discussion, focusing less on international law than I expected.

As always, comments welcome! I hope readers don’t think I was too soft on either Assad or the UN…

Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict

by Jonathan Horowitz

[Jonathan Horowitz is a Legal Officer on National Security and Counterterrorism in the Open Society Justice Initiative. This post is based on his recently published article in Emory International Law Review, “Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict,” and will also appear in a longer form and under a different title in a forthcoming book, Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens Ohlin for Cambridge University Press.]

If a foreign State asked you (a government official) permission to let it kill an individual on your government’s territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren’t allowed to do?

These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.

The underlying assumption of a global NIAC is that the US, or any State, may chase its enemies around the world using international humanitarian law (IHL) targeting rules. John O. Brennan, when serving as assistant to the US president for homeland security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are more permissive than the host State’s international human rights law (IHRL) obligations. This is because, under our scenario, the host State is not in a NIAC with the attacking State’s enemies and so the host State’s IHRL obligations still apply in full.

A second observation it that under the obligations to respect and protect the human rights of people on its territory, a State must not take part in unlawful and arbitrary deprivation of life and it must protect people in its territory from the same.

When this second observation is linked with the first one, the situation arises whereby even if the foreign State sought to carry out a killing in complete conformity with IHL, the way the killing occurred may still have gone far beyond what IHRL allows the host State to permit. That being the case, the host State would be barred from providing its consent; and, as I explain in more detail in a new article, this significantly undercuts the notion of a global NIAC.

This conclusion, however disappointing it may be for attacking States that wish to use consent as a legal sanitizer, isn’t exactly legal nuclear science. But I do think it’s an area that has largely gone unexplored and allows consenting States to get off the hook for their unlawful role in permitting killings that they have no right to permit.

The problems that IHRL poses for a State that is asked to grant its consent in the context of a global NIAC doesn’t, however, mean that a State can’t defend itself from the serious threats of non-State actors abroad. It means that such use of force must be based on other legal authorities, be them host State law enforcement measures, relying on the inherent right to self-defense, UN Security Council authorization, joining a host State’s armed conflict with a common enemy, and so on.

And while it’s true that distinguishing between using a legally permissible framework or a legally impermissible framework may lead to no material difference in the final outcome (i.e., use of lethal force and casualties may still result), the distinction remains important. A global NIAC stands for something far greater than the consequences of any single lethal attack or group of lethal attacks that a State may wish to carry out. It permits a State to engage in long-lasting armed conflict whereby human rights law is sidelined and the more permissible IHL targeting rules are routinely applied without geographic constraint. Such a legal framework dramatically expands a State’s use of force beyond what international law had envisaged to date.

But herein lays a considerable problem. It will be an uphill battle to persuade host States to respect their human rights obligations (in this case by refusing to grant consent) within the extremely politicized and highly insecure sphere of terrorism, counterterrorism, and armed conflict, especially when the request for consent comes from an attacking State that has considerable military, political, and economic resources to provide or withhold. In turn, this will require a sustained focus and intensified discussions on the legal obligations of the host State and will have to include holding the host State accountable for its breach of international law.

Navy SEAL Who Supposedly Killed Bin Laden Under Investigation

by Kevin Jon Heller

The SEAL in question is Matthew Bissonnette, who published the bestselling No Easy Day under the pseudonym Mark Owen. According to the Intercept, the federal government is investigating Bissonnette for revealing classified information and using his position to make money while still on active duty:

A former Navy SEAL who shot Osama bin Laden and wrote a bestselling book about the raid is now the subject of a widening federal criminal investigation into whether he used his position as an elite commando for personal profit while on active duty, according to two people familiar with the case.

Matthew Bissonnette, the former SEAL and author of No Easy Day, a firsthand account of the 2011 bin Laden operation, had already been under investigation by both the Justice Department and the Navy for revealing classified information. The two people familiar with the probe said the current investigation, led by the Naval Criminal Investigative Service, expanded after Bissonnette agreed to hand over a hard drive containing an unauthorized photo of the al Qaeda leader’s corpse. The government has fought to keep pictures of bin Laden’s body from being made public for what it claims are national security reasons.

The investigation is a perfect example of the US government’s bipartisan unwillingness to address crimes committed by the military as part of the war on terror. As I noted more than three years ago, Bissonnette openly admits to committing the war crime of willful killing — a grave breach of the Geneva Conventions — in No Easy Day. Here is his description of how he and a fellow SEAL killed bin Laden (p. 315):

“The point man reached the landing first and slowly moved toward the door. Unlike in the movies, we didn’t bound up the final few steps and rush into the room with guns blazing. We took our time.

The point man kept his rifle trained into the room as we slowly crept toward the open door. Again, we didn’t rush. Instead, we waited at the threshold and peered inside. We could see two women standing over a man lying at the foot of a bed. Both women were dressed in long gowns and their hair was a tangled mess like they had been sleeping. The women were hysterically crying and wailing in Arabic. The younger one looked up and saw us at the door.

She yelled out in Arabic and rushed the point man. We were less than five feet apart. Swinging his gun to the side, the point man grabbed both women and drove them toward the corner of the room. If either woman had on a suicide vest, he probably saved our lives, but it would have cost him his own. It was a selfless decision made in a split second.”

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

This is about as clear-cut as IHL and ICL get in a combat situation. Bissonnette did not make a split-second decision to shoot bin Laden; his account makes clear that he had plenty of time to assess the situation. And there is no question bin Laden was hors de combat when Bissonnette pointed his weapon at him and finished him off. Bissonnette wasn’t even the SEAL who first shot bin Laden in the head, so he can’t argue that this was some kind of continuous action designed to eliminate any possibility that bin Laden remained a threat. Ergo: a war crime.

But it’s bin Laden, of course. Inter malum enim silent leges. So instead of prosecuting Bissonnette for murder under the UCMJ, the US government investigates him for hanging onto a trophy of his kill and profiting from his notoriety.

Behold impunity.

PS: In case anyone is wondering, “death throes” refers to the agonal phase of dying, when the body is shutting down. The agonal phase precedes clinical death (when the heart stops and respiration ceases), brain death, and biological death.

Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia: (more…)

Autonomous Legal Reasoning: Legal and Ethical Issues in the Technologies of Conflict

by Duncan Hollis

One of the highlights of my Fall semester was the opportunity to host a one-day workshop at Temple Law on how autonomous technology may impact the future of international humanitarian law (IHL) and the lawyers who practice it.  With co-sponsorship from the International Committee of the Red Cross (specifically, Rob Ramey and Tracey Begley) as well as Gary Brown of Marine Corps University, we wanted to have an inter-disciplinary conversation on the way autonomy may implicate the practice of law across a range of new technologies, including cyberwar, drones, and the potential for fully autonomous lethal weapons.  Although these technologies share common characteristics — most notably their ability (and sometimes their need) to operate in the absence of direct human control — discursive silos have emerged where these technologies tend to be discussed in isolation.

Our workshop sought to bridge this divide by including experts on all three technologies from an array of disciplinary backgrounds, including IHL, political science, and ethics (see here for a list of participants).  Fortunately, the day itself lived up to the hype, with a detailed agenda that prompted a wide-ranging set of conversations on the nature of the technology, the ethical issues, as well as IHL’s current regulations and its likely future evolution.  Subject to the Chatham House Rule, the ICRC has published summaries of these conversations on their blog, Intercross.

In addition to those blog posts, the Temple International and Comparative Law Journal will publish a series of short (and often provocative) think-pieces written for the workshop.  My own contribution, Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law is now available on SSRN.  Here’s the abstract:

This short essay seeks to reorient — and broaden — the existing discourse on international humanitarian law (IHL) and autonomous weapons. Written for a conference co-sponsored by the International Committee of the Red Cross, it employs a contextual analysis to pose new questions (and reformulate others) regarding the relationship between IHL and autonomous weapon systems. It asks six questions: (1) Who should IHL regulate in this context? Does IHL only regulate States and individuals, or can it provide rules for autonomous weapon systems themselves? (2) What types of autonomous technology should IHL regulate? Should the current focus on kinetic weapons expand to encompass cyber operations? (3) Where should this discourse occur? How do the trade-offs involved in locating legal discourse in a particular forum impact the elaboration of IHL vis-à-vis autonomous systems? (4) When should IHL regulate autonomous weapons? Should IHL ban autonomous weapons now or allow its regulation to emerge incrementally over time? Can IHL only apply when an autonomous system’s operations constitute an attack, or should IHL’s application reach more broadly? (5) How should IHL regulate autonomous weapon systems? Are prohibitions better or worse than prescriptive authorities? Should IHL regulate via rules, standards, or principles? Finally, (6) why should IHL regulate autonomous weapons? How can IHL best prioritize among its foundations in military necessity, humanitarian values, and the practical reality that the development of such systems now appears inevitable. In asking these questions, my essay offers a critical lens for gauging the current scope (and state) of international legal discourse on this topic. In doing so, it sets the stage for new lines of inquiry that States and other stakeholders will need to address to fully understand the perils — and potential — of increasing autonomy in technology for IHL and the international lawyers who practice it.

Fans of Thomas Aquinas may be particularly interested in this piece since I ask these questions using the same analytical frame Aquinas deployed to delineate those circumstances that define human acts.  Otherwise, interested readers should keep an eye out for the Symposium volume itself, which should be out sometime later this Spring or early this coming Summer.

 

Climate Change and the Syrian Civil War

by Chris Borgen

Scientific American has published an article by John Wendle on how climate change has spurred the conflict in Syria. Wendle writes:

Climatologists say Syria is a grim preview of what could be in store for the larger Middle East, the Mediterranean and other parts of the world. The drought, they maintain, was exacerbated by climate change. The Fertile Crescent—the birthplace of agriculture some 12,000 years ago—is drying out. Syria’s drought has destroyed crops, killed livestock and displaced as many as 1.5 million Syrian farmers. In the process, it touched off the social turmoil that burst into civil war, according to a study published in March in Proceedings of the National Academy of Sciences USA. A dozen farmers and former business owners like Ali with whom I recently spoke at camps for Syrian refugees say that’s exactly what happened.

He tells a story of environmental degradation, ill-conceived agricultural and water-management policies, and their effects:

“The war and the drought, they are the same thing,” says Mustafa Abdul Hamid, a 30-year-old farmer from Azaz, near Aleppo… “The start of the revolution was water and land,” Hamid says.

But the story Wendle writes is about more than Syria:

The refugee crisis will eventually subside, [Richard Seager,a professor at Columbia University’s Lamont–Doherty Earth Observatory] assumes, and the war in Syria will run its course. Nevertheless, he says, the region’s droughts will be more frequent and more severe for the foreseeable future. After closely studying dozens of climate models he and Kelley and their colleagues are convinced that continued greenhouse gas emissions will widen the Hadley cell, the band of air that envelops Earth’s tropics in a way that could further desiccate the lands of the eastern Mediterranean.

These past months many people have written about the Syrian civil war. Many have written about climate change. Wendle’s article considers both the perspectives of farmers who have become refugees and of scientists studying climate change. It is not only describes where we are, but how we got here, and what may be yet to come.

Highly recommended.

Weaponized Archaeology and Sovereignty Disputes

by Chris Borgen

Underwater archaeologist Peter B. Campbell has a very interesting opinion piece in the New York Times about how archaeological claims are being used as political weapons in sovereignty disputes. He explains:

For decades, global powers have been engaged in a race to exploit lucrative marine resources, from oil to fisheries to control of strategic waterways. But they have faced a challenge: How can a country claim new territory despite the restrictions of the United Nations Convention on the Law of the Sea? It turns out that “historical ties” to resource-rich regions can conveniently help to contravene international law.

At issue is how archaeological research is being injected into political rhetoric on issues such as claims of sovereignty in the Arctic, in the South China Sea, and over Crimea.  Campbell writes:

China’s deputy minister of culture, Li Xiaojie, put it bluntly: “Marine archaeology is an exercise that demonstrates national sovereignty.”

Russia has followed suit. In 2011, when he was prime minister, Vladimir V. Putin made headlines by retrieving two ancient ceramic jars from a shipwreck at Phanagoria, the ancient Greek city that is 10 miles from Crimea. The media cast it as a publicity stunt, but alarm bells sounded within the archaeological community. Mr. Putin’s political allies had invested $3.5 billion in research at Phanagoria, a submerged harbor with Roman-era shipwrecks. And while Phanagoria was the site of Greek colonies, Russian nationalists have adopted its ancient kings as proto-Russians.

For now, these archaeological findings are being used more as ostensible support of political rhetoric rather than as evidence, in the technical legal sense, of title.  Claims of sovereignty are most clearly based on specific treaties, such as boundary delimitation treaties, or broader treaties that set-forth rules for resolving disputes, such as the UN Convention on the Law of the Sea (UNCLOS).

This does not deny that historical state practice can be a component in resolving a dispute. But there are standards for assessing such historical examples. As the Permanent Court of International Justice wrote in the Eastern Greenland case:

a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.

Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.

The ICJ quoted this language at paragraph 134 in its Pulau Ligitan and Pulau Sipadan judgment. In the case of maritime sovereignty claims, the goal would be to turn old shipwrecks into evidence of a continued display of authority, also known as effectivite. Anneliese Guess wrote that Canada’s then-Minister of the Environment said in 2008 that, in regards to the search for shipwrecks in the Northwest Passage:

 We certainly think by establishing a long-standing presence in the Arctic that can enhance issues of sovereignty … Look at the strait (the Northwest Passage) not far from where this ship is….We think every bit of weight we can put behind our case for sovereignty is important. Adding history to that equation can only enhance that case.

While historic state practice can be important, the ICJ’s discussion in Pulau Ligitan is a good example of how difficult it can to make such a claim of effectivite. In that case, the ICJ wrote that the facts must “leave no doubt as to their specific reference to the islands in dispute as such.” (para. 136) In Pulau Ligitan, the ICJ was unmoved by many of the examples of naval activities as proof of claims of sovereignty. How much harder still, with archaeological shipwrecks from a century ago, let alone from Roman times.

Modern international law, with its focus on treaty obligations and effective dates (that draw a bright line making some historical facts less important than others) is not likely to accord much weight to  shipwrecks such as those mentioned by Campbell. (And probably no weight to some of them.) Nonetheless, politicians spin and deploy these archaeological finds in their wars of words. But in the end, as Campbell reminds us,

…archaeology rarely fits simple narratives. In fact, archaeology often demonstrates our shared human past.