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International Security

Talk About the Imperial Presidency!

by Kevin Jon Heller

President Obama has issued the following memorandum concerning US participation in the UN’s Mali stabilisation mission:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and consistent with section 2005 of the American Servicemembers’ Protection Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces of the United States in certain United Nations peacekeeping and peace enforcement operations, I hereby certify that members of the U.S. Armed Forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali are without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC) because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States present in that country.

This is, of course, completely wrong. At most, the Article 98 agreement between the US and Mali would prohibit the ICC from asking Mali to surrender a US soldier wanted for war crimes. It would not in any way prohibit the Court from prosecuting a US soldier it managed to get its hands on without Mali’s help. (Or even if Mali decided its obligation under the Rome Statute took precedence over its Article 98 agreement with the US and handed a US soldier over despite the agreement.)

I realize Obama is a communist/marxist/fascist/socialist dictator, but he has not yet been crowned King of the ICC. Until he has, the Rome Statute remains more important than his presidential memoranda.

Guest Post: Ghodoosi–Comprehensive Solution to an Agreement: How the New Iran Deal Is Framed Under Iranian Law?

by Farshad Ghodoosi

[Farshad Ghodoosi is a JSD candidate at Yale Law School.]

In continuation of the discussion about the New Iranian Deal started by Duncan Hollis, I decided to take a stab at clarifying the Iranian side of the story.  The new deal, the so-called Geneva Agreement (24 Nov. 2013) and the ensuing implementation agreement (that took effect on Jan 20th, 2014), between Iran and the 5 plus 1 group seems to be more than a joint plan of action. Practically, it attenuates some of the bites of the previous Security Council Resolutions on the Iran Nuclear Program and will create tit-for-tat commitments on both sides. Whether the agreements reached thus far create binding obligations under international law is beyond the scope of this piece and requires further details on the recent –yet unpublished – implementation agreement. However, the drafters of the agreement of Nov. 24th deftly avoided the term “agreement” and instead employed the term “comprehensive solution”.

This choice of term might have been to avoid the formalities of treaty law internationally but also domestically vis-à-vis Iran.  Naming might make a difference under Iranian Law. Generally speaking, the Iranian Constitution seeds skepticism towards international agreements and contracts in the present Iranian legal system. Article 77 declares, “international protocols, treaties, contracts and agreements should be ratified by the Islamic Consultative Assembly (Majlis)”. The Article is very broad and all encompassing. Those hardliners unhappy about the deal in Iran’s parliament are pressing on implementing this article, stating that the agreement needs to be ratified domestically, otherwise it is void of effects. On the other hand, supporters in parliament categorize it as a “preliminary agreement” not requiring parliament approval.

I believe a preliminary agreement is still an agreement and is subject to Article 77 of the Iranian Constitution. If I were in the shoes of the supporters of the deal in the Parliament, I would emphasize the word “comprehensive solution” as it is reflected in the text. The term “comprehensive solution” is not listed in the Article 77 of the Iranian Constitution and therefore would arguably not need parliament approval.

Another hurdle for international agreements is Article 125 of the Iranian Constitution. This Article stipulates that “signing international treaties, protocols, agreements and contracts of the Iranian states with other states and also signing conventions pertaining to international organizations, subsequent to Islamic Consultative Assembly approval, is vested in the President or his legal representative.” The Council of Guardians, the body responsible for interpreting the Constitution, restricts this Article to instances where the international instrument contains “an obligation” or “a contract” (decision March 13, 1983). It handed down its decision in a situation where “a letter of intent” for cooperation was signed between Iran and India while there were doubts whether parliament had to approve it.

Despite the language in the Iranian Constitution, I believe, it is not certain that Articles 77 and 125 make the Iranian legal system a dualist system. In dualist systems, international instruments are devoid of any status in domestic law until ratified through the legislative process. I posit that the matter should be clear in the language of the Constitution. Under Article 77, however, the sanction for non-compliance with the provision is unclear. It does not mention whether non-compliance renders the international agreements ineffectual, or makes them of lower status (similar to regulations) in relation to other domestic laws. Alternatively, it could be simply a ground for impeachment or question from the President. Article 125 also seems only to vest the signing authority on the President to render the international instruments official, and not necessarily dictate their binding nature.  It might sound like a long shot, but I believe, notwithstanding the requirement of parliamentary approval, international agreements could still be invoked and enforced in Iranian domestic law—at least as a contractual agreement between parties. This interpretation makes international agreements and contracts with Iran, most of which are not ratified by parliament, valid and effective under Iranian Law.

I would like to end this post with a separate comment — the absence of any dispute resolution mechanism in the deal. It is indeed not a very smart idea to omit any form of dispute resolution mechanisms. Considering the lack of trust and the history of contention between both sides (especially Iran and the US), any minor disagreement might lead to dismantling the entire agreement and the new rapprochement (as was apparently close to happening in the implementation the Joint Action Plan). There are several potential reasons parties avoided incorporating any dispute resolution mechanism. First and foremost, they probably disliked the idea of handing over such a highly political matter to a judicial body of any sort. Another potential reason was to avoid making the agreement seem like a treaty subject to international law or otherwise a binding instrument. Nonetheless, I believe disagreements over implementing the agreement could have been vested to an arbitral body or a mediation panel at least in an advisory capacity.

No, the ASP Didn’t Hoodwink Kenya and the AU Concerning RPE 134quater

by Kevin Jon Heller

Standard Digital News, the online platform of The Standard, one of Kenya’s leading newspapers, published a long article yesterday entitled “Did State Parties Hoodwink Kenya, African Union on ICC Attendence?” Here are the opening paragraphs:

KENYA: Did the Rome Statute Assembly of State Parties hoodwink Kenya that the country’s chief executives would be excused from physical presence at their trials? This is the legal question some experts are raising after International Criminal Court Prosecutor Fatou Bensouda unveiled a shocker that Deputy President William Ruto must still show up at the ICC and face his accusers in the courtroom.

The Gambian-born prosecutor maintained that Ruto should not be tried in absentia despite recent amendments by the Assembly of State Parties (ASP) that were lauded by African Union as a major diplomatic victory for Kenya’s indicted leaders.

“The state parties amended the rules out of political pressure but in the end totally hoodwinked Kenya by handing over the discretion to the judges to decide only in exceptional circumstances,” said James Aggrey Mwamu, President of East Africa Law Society.

There is a grain of truth to this complaint: with its obsequious desire to placate Kenya, the ASP certainly didn’t go out of its way to highlight the fact that amending the Rules of Procedure and Evidence (RPE) instead of the Rome Statute left the new rules on presence subject to judicial review. That said, it’s not like the difference between amending the Rome Statute and amending the RPE is some kind of secret; after all, Art. 51(4) of the Rome Statue explicitly provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Presumably, Kenya and the AU have lawyers capable of reading the Rome Statute — so if they believed that the OTP simply had to accept the new rules, they really have no one but themselves to blame.

And, of course, the OTP is challenging Rule 134quater. The motion is here – and it’s one of the best motions to come out of the OTP in quite some time. Two aspects are particularly worth mentioning…

Is the New Iranian Nuclear Deal a Secret Treaty?

by Duncan Hollis

Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program.  But, what’s being held back is the actual text of the deal.  There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November?  Assuming it is legally binding, it’s also unclear as to why the text is not being released?  Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues?  Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?

Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”  That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations).  But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated.  As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain).  Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter).  Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.

A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants?  I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?).  Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)

Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another.  Even so, I’m curious to know more about the Iranian implementation agreement.  Is it intended to be legally binding or a political commitment?  And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution?  I’d welcome comments from readers who know more details here than I do.

Hat Tip:  Orde Kittrie

Why the Muslim Brotherhood (Wrongly) Believes the ICC Can Investigate

by Kevin Jon Heller

Gidon Shaviv called it. The Muslim Brotherhood does indeed believe that it can accept the ICC’s jurisdiction on an ad hoc basis because it is still the legitimate government of Egypt:

Just how successful the ICC action will be is unclear. Egypt is one of the few countries that have not accepted the ICC’s jurisdiction. However, Mr. Dixon and other members of the legal team said the court can act if it receives a declaration from the government accepting the court’s jurisdiction in a particular case. They argued that Mr. Morsi’s government is the still only legitimate ruler in Egypt and it has issued that declaration to the ICC.

“We hope, and we have good reason to believe, that the court will take this declaration seriously,” said John Dugard, a human rights lawyer from South Africa who is involved with the case and who has also worked with the United Nations.

With respect to Dugard, I think the Brotherhood’s efforts are doomed to fail. Had the Morsi government filed its declaration while it was still in power (as in the Cote d’Ivoire situation), that would have been one thing. But it didn’t — and although there are interesting political questions about the legitimacy of the military-led coup/revolution, I don’t think there is much question that the Brotherhood is no longer the government of Egypt. A number of states have condemned the Egyptian military’s actions (see Wikipedia here for a nice rundown pro and con), but none to my knowledge have refused to recognize the Mansour government. And just as importantly, representatives of the Mansour government have continued to represent Egypt at the UN.

Readers who know more about the recognition of governments after coups/revolutions should feel free to weigh in. But even if I’ve understated the legal strength of the Brotherhood’s position, I still find it inconceivable that the OTP will conclude that it has jurisdiction over the situation in Egypt. At the very least, the OTP will likely do what it did with Palestine’s ad hoc declaration — say that the issue is for the Assembly of States Parties, not the Office of the Prosecutor, to resolve.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

Daphne Eviatar on the Military Commission Train Wreck

by Kevin Jon Heller

Train wreck, fiasco, disaster, dumpster fire, bad joke, kangaroo court, show trial — take your pick, the description applies. Eviatar’s post at Just Security a while back is a must-read; here is but one particularly disturbing snippet:

Recent pre-trial hearings have revealed, for example, that the Guantanamo courtroom was equipped with microphones able to eavesdrop on privileged attorney-client communications; that the CIA was secretly monitoring the hearings and, unbeknownst to the judge, had the ability to censor the audio feed heard by observers; and that the meeting rooms where defense lawyers met their clients had been secretly wired with video and audio monitors, hidden in devices made to look like smoke detectors. In addition, all legal mail is screened by government security personnel, and documents previously deemed acceptable were later confiscated from the defendants’ prison cells without explanation; those documents included a detainee’s own hand-written notes or a photograph of the grand mosque in Mecca.

Seventy years ago, the United States bent over backwards to provide high-ranking Nazis with fair trials. These days, a fair trial for someone as unimportant as bin Laden’s driver is nothing but a dream. How far the mighty have fallen.

The Final Nail in the ICTY’s Coffin

by Kevin Jon Heller

So, it’s official: the ICTY Trial Chamber has decided to let Judge Niang replace Judge Harhoff on the Seselj case:

The Trial Chamber on Friday issued a decision on the continuation of the proceedings in the case of Vojislav Šešelj, following the disqualification of Judge Frederik Harhoff and appointment of Judge Mandiaye Niang to the Bench.

The Chamber unanimously ordered that the proceedings would resume from the point after the closing arguments, and move into the deliberations phase as soon as Judge Niang has familiarized himself with the file. The Trial Chamber will issue a decision once this has been completed.

The Chamber agreed that a new judge is able to assess witness testimony given in his absence through other means, including video recordings. Consequently, the Chamber concluded that Judge Niang will be thus able to evaluate the credibility of witnesses heard during the proceedings in the Šešelj case, and familiarise himself with the record of the proceedings to a satisfactory degree.

[snip]

The Prosecution argued that that the trial should continue at the deliberation stage, after Judge Niang familiarises himself with the existing case record. The Prosecution claimed that such a solution would not be unprecedented in the Tribunal’s practice, pointing to the trial of Slobodan Milosevic where Judge Bonomy replaced Judge May.

The ICTY has yet to release an English translation of the decision, but Dov Jacobs notes on twitter that the Trial Chamber claims allowing Judge Niang to participate in deliberations, despite not hearing a single witness or item of evidence, is “in the interest of justice.” By “in the interests of justice,” of course, the Trial Chamber means “in the interests of conviction,” because there is nothing remotely just about permitting a judge to decide the fate of an individual whose trial he did not attend for even a single day.

Alas, that is only one of many absurdities in the case. As I have pointed out before, the Tribunal is appointing Judge Niang pursuant to a rule of procedure, Rule 15bis, that applies only to “part heard” cases. But applying the rule as written would prevent Seselj from being convicted, so the Tribunal is simply ignoring what it says. And, of course, the OTP is playing its part by invoking the dreaded Milosevic case as precedent, conveniently ignoring the fact that Judge Bonomy was appointed to replace Judge May before the defence began its case in chief, a situation that — unlike Seselj’s — is actually covered by Rule 15bis.

But don’t worry, Judge Niang is supposedly going to spend the next six months “assess[ing] witness testimony given in his absence through other means, including video recordings,” and will thus be able to “familiarise himself with the record of the proceedings to a satisfactory degree.” Of course he will: it’s not like the trial lasted 175 days, involved 81 witnesses, included 1,380 exhibits, and generated more than 18,000 pages of trial transcript (a mere 100 pages of transcript per day, assuming Judge Niang never takes a day off and fits his reading in around the hundreds of hours of witness testimony he will need to watch).

I’ve always defended the legitimacy of the ICTY — even after experiencing first-hand in the Karadzic case how unfair the Tribunal can be at times. But no longer. Unless the Appeals Chamber does the right thing, this latest decision will forever tarnish both the ICTY’s legacy and international criminal justice more generally.

When the “Things to Come” are Already Here, Where Should International Law Go?

by Chris Borgen

Novelists such as H.G. Wells and George Orwell used fantastic fiction to describe their world as it was and to imagine, to use Wells’ title, “The Shape of Things to Come.” This past summer I wrote a post on what current science fiction can bring to international law. I mentioned various books that, though fantastic, illuminated topics related to international law, international relations, or national security.

Well, according to my tricorder, I mean, the newsfeed on my smartphone, this past week reality just got a little more science fictional with the revelations of US intelligence agents roaming around in World of Warcraft and Second Life, on the hunt for any terrorist who might be using these virtual worlds to communicate, plot, and even train.

For all the surprise this has elicited, this isn’t the first time we’ve seen virtual worlds (weirdly) interact with the very real world of international relations. There was that time that the Green Lantern Corps had to patrol a virtual refugee camp that had been built by human rights activists in Second Life’s Sudan in order to protect it from vandals.  Or that proprietary financial system owned by a Chinese company that would support financial transfers and investments across the economies of different virtual worlds.  Or that time that NATO commissioned an interactive model of Afghanistan for planning and training.  And then there’s the Swedish Embassy in Second Life

So, Snowden reveals that U.S. intelligence agents are posing as, let’s say, warrior elves and they’re running around on quests in World of Warcraft looking for al Qaeda organizers.  I’m just not all that surprised.  It is a bit amusing, though, that there ended up being so many intelligence officers online that they had to set up a “deconfliction group” to keep track of who was really whom, so that some Jack Ryan posing as a warrior elf wouldn’t report a wizard as being an al Qaeda operative when that wizard is actually a US agent posing as an al Qaeda operative who’s avatar is a wizard. This truly is “The Looking Glass War.”

These are the types of scenarios one sees in “political science fiction.” Sci-fi bloggers have remarked that the Snowden revelations are not that different from plot points in Neal Stephenson’s novel REAMDE, one of the books I mentioned in my post this summer.  And another author that I wrote about, Charles Stross, has decided to not write the third book in his near future cybercrime trilogy because the present is already arriving at his imagined future. Here’s how Stross put it:

At this point, I’m clutching my head. “Halting State” wasn’t intended to be predictive when I started writing it in 2006. Trouble is, about the only parts that haven’t happened yet are Scottish Independence and the use of actual quantum computers for cracking public key encryption (and there’s a big fat question mark over the latter—what else are the NSA up to?).

I’m throwing in the towel.…<snip> …The science fictional universe of “Halting State” and “Rule 34″ is teetering on the edge of turning into reality. Meanwhile, the financial crisis of 2007 forced me back to the drawing board for “Rule 34″; the Snowden revelations have systematically trashed all my ideas for the third book.

Our colleagues in the world of architecture and design have “design fiction”: films and websites devoted to as-yet non-existent objects as a means of thinking about the possibilities of design and engineering and their relationship to society.  Here are three very different examples (noted by Tobias Revell in the previous link): “New Mumbai,” “Microsoft’s Productivity Future Vision,” and “Post CyberWar.”

As lawyers, we spend much of our time looking at precedent, at the lessons of history.  We cannot stop doing that, as history is the great teacher. But we also have to remember that with every passing second, the future arrives. And, like the writers, the designers, the engineers, and the architects, we have to imagine what things may come, and how our work may shape the future and how the future may shape our work.

Because law is itself a disruptive technology.

Judge Harhoff Digs Himself Deeper

by Kevin Jon Heller

The two-part series I mentioned in my previous post seems designed to rehabilitate Judge Harhoff’s image in the international-law community. Unfortunately, the articles, which draw heavily on an interview with the judge himself, simply underscore why it was necessary for the ICTY to remove him from the Seselj case. To begin with, consider what the judge says in the second article about how his infamous email, sent to 56 of his closest friends, was leaked to the press. One might speculate that one of those 56 friends might have leaked it. But not Judge Harhoff. He suspects the shadowy hand of foreign intelligence services (emphasis added):

For Mr. Harhoff, however, the rub was elsewhere. He asks: Who would have had an interest in leaking the email – and why leak it to a tabloid newspaper like B.T.?

”None of 56 recipients reads a newspaper like B.T. If one of them wanted to leak my email they would most likely have preferred more reputable newspapers such as Politiken or Information,” Mr. Harhoff inferred, “and at least they would have consulted me first.”

All 56 recipients have since given him personal guarantees they didn’t leak it. Mr. Harhoff also asked each of them whether they had forwarded his message to someone else, but not everyone responded to this question. So he believes that in all likelihood the mail was passed on to a third party unknown to him.

Who could it be?

”I am sure that all judges are having their email correspondence monitored,” Mr. Harhoff said (a suspicion shared by several other judges, as far as Information has been able to ascertain).

”It might make sense to assume that if a foreign intelligence service were able to read my email this would be a smart way to silence me by making it public”, he said.

Yes, foreign intelligence services — presumably those of Israel and the US, whom Judge Harhoff believes put pressure on President Meron to adopt the specific-direction requirement — are so worried about one judge at a tribunal with limited jurisdiction that they read his email and conspire to silence him. Makes perfect sense.

Judge Harhoff also has interesting things to say about his President Meron accusation:

During the interview, Mr. Harhoff seemed to be of two minds. On the one hand, he conceded that his contention of Mr. Meron’s possible motives was ”pure  speculation”. On the other hand, he left open the possibility that a likely explanation for Mr. Meron’s radical departure from a “more or less set practice” could be that he had somehow been influenced by outside military interests.

”In military establishments, some people might have been uncomfortable having to accept the evolving liberal jurisprudence at ICTY, since this could set a precedent for the International Criminal Court, ICC. And in the future that could make it very hard to be a general,” Mr. Harhoff said.

[snip]

In the interview Mr. Harhoff mused: ”Why was it so important for Meron to ensure the acquittal of two Croatian officers who were accused of indiscriminate shelling of towns and civilian centers?”

He wondered: ”It has been pointed out by many others that the United States strongly supported the Croats with arms and intelligence. Gotovina was only able to defeat the Serbs militarily because of the American support. Would that in any way implicate the US Army? Probably not. But we don’t know what the accused might have revealed, if he had been convicted.”

So Judge Harhoff admits that it is “pure speculation” that President Meron manipulated his fellow judges into acquitting Perisic, Stanisic, and Simatovic.(And apparently Gotovina.) But he still believes — and, worse, says to a journalist after the email scandal — that President Meron is an American and Israeli puppet.

And we’re supposed to believe that the ICTY shouldn’t have removed Judge Harhoff from the Seselj case?

Seriously, Read the Damn Perisic Judgment

by Kevin Jon Heller

I get that many people don’t like the specific-direction requirement. I understand the anger that the Perisic, Stanisic, and Simatovic acquittals have generated. I’ve even explained why, though I think the Appeals Chamber was correct to reinvigorate the specific-direction requirement in Perisic, I would have preferred a different doctrinal mechanism.

But I am really, really tired of people — journalists, human-rights activists, scholars — who cannot be bothered to actually read the Perisic judgment. I’ve blogged about basic errors before. (See here and here.) But this two-part series (here and here) on Judge Harhoff takes the cake. Consider the following quotes from the articles (emphasis mine):

In the Perisic case, the Trial Chamber’s conviction was overturned by the Appeals Chamber by adding, without further explanation, the requirement that the accused general, in addition to his military assistance and his knowledge of the commission of the crimes, should also have given the direct perpetrators a “specific direction” to commit those crimes.

In his study Mr. Stewart showed that General Perisic was the first military commander to be acquitted according to the principle that it must be proven that a general gave his subordinates “specific direction” to commit a crime. [Note: Stewart understands the requirement. The journalist here doesn't understand Stewart.]

Charles Taylor was accused and convicted in trial court of ’aiding and abetting’ war crimes in Sierra Leone’s civil war. In its decision, the Appeals Chamber questioned whether at all, under the new standard, it would be possible to prove to whom the accused would actually have given his “specific direction” to commit the crimes.

In fact, as a judge in the Trial Chamber that had convicted general Perisic in the first instance, the South African strongly opposed the majority’s conviction of the accused and wrote a dissenting opinion in which he argued that the general should be acquitted, because the Prosecution had not proven that the general had given “specific direction” to the perpetrators.

In his dissenting opinion, Judge Moloto wrote that it was not enough that general Perisic had been aware of the crimes committed by the Bosnian Serbs in Bosnia, who received arms and intelligence from the Serbian army through general Perisic. It also had to be proven that the accused had in fact ordered the Bosnian forces allied with Serbia to commit the crimes in question.

In one of the cases, two high-ranking Croatian military officers were acquitted on a mere technicality. In the other case, the Appeals Chamber acquitted a Serbian general by overturning a standard previously used in Trial Chambers to convict senior officers for ”aiding and abetting” war crimes committed by perpetrators on the ground. All of a sudden, the Appeals Chamber required that a senior officer must have given “specific direction” to commit the crimes for which the officer stands accused.

Six quotes — each completely and utterly wrong. As I have pointed out before (many times…),Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. Ordering and aiding and abetting are completely different modes of participation. A perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.

Again, I have no problem with criticizing the specific-direction requirement. But people need to criticize what the Appeals Chamber actually held in Perisic. If you can’t be bothered to read the judgment, you have no business writing about it.

Guest Post: Iran and Diplomacy – Countermeasures Against Immunity and Immunity Against Countermeasures

by Sondre Torp Helmersen

[Sondre Torp Helmersen is an LLM candidate at the University of Cambridge, teaches at the University of Oslo, and is an editor at the Cambridge Journal of International and Comparative Law.]

The recent nuclear deal between Iran and the “P5+1” may potentially bookend a long period of intermittent diplomatic troubles for Iran. The mutual distrust and hostile rhetoric that have accompanied (and obstructed) the negotiations are traceable to the fallout over the taking of US diplomats in Tehran as hostages in 1979, in what is usually called the Iran hostage crisis. The diplomatic breakthrough that the deal represents provides an opportunity to revisit the impact of that crisis on the current state of diplomatic law. Some parts of its legacy are widely appreciated, while others are less well understood. This post will focus on a somewhat overlooked distinction, namely that between countermeasures against abuses of diplomatic immunity and violations of diplomatic immunity as countermeasures.

1. Background: The Tehran case and self-contained regimes

The hostage crisis led to a judgment by the International Court of Justice (the Tehran case, [1980] ICJ Rep 3). The Court found that actions attributable to Iran had violated the diplomats’ immunity. Iran argued, among other things, that the hostage takings could be seen as countermeasures against foregoing abuses of diplomatic immunity by the diplomats. Responding to this, the Court pronounced as follows:

“… diplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions.” (para 83)

“The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving States to counter any such abuse. These means are, by their nature, entirely efficacious, for unless the sending State recalls the member of the mission objected to forthwith, the prospect of the almost immediate loss of his privileges and immunities, because of the withdrawal by the receiving State of his recognition as a member of the mission, will in practice compel that person, in his own interest, to depart at once.” (para 86)

The interpretation and ramifications of these passages are still debated. There are (at least) four possible readings. (more…)