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International Security

The Protests in Ukraine and Normative Geopolitics

by Chris Borgen

One hundred and ten years ago next month, British geographer Halford Mackinder presented a paper at the Royal Geographical Society in London entitled “The Geographical Pivot of History,” setting out the basic tenets of what we now call “geopolitics.”  Strategic thinking during the Cold War was in part framed by geopolitical ideas such as the struggle over key territory in the “global heartland,” namely, Eurasia. But geopolitics today has evolved. It is no longer primarily a military stuggle to take or hold territory. It is now defined by competition over ideas and institutions in relation to strategic goals. Geopolitics has become normative.  Witness Ukraine.

Tens of thousands people are in the streets of Kiev because Ukraine’s political leadership announced two weeks ago that it would not sign an Association Agreement and a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU at the EU summit in Vilnius at the end of November. Rather, the government announced that Ukraine would join the Moscow-led Eurasian Customs Union.  The relationship of foreign policy strategy to norms and laws, of high politics to people in the streets, is the stuff of normative geopolitics.

I had recently written a post about the struggle to define the normative futures of countries in Russia’s “near abroad,” particularly Ukraine, Moldova, Armenia, and Georgia.  (And written about these topics at greater length in various articles and essays.) At issue is whether these countries will become more fully integrated into “European” institutions (especially the EU) or reintegrate with revamped “Russian” institutions (such as the Eurasian Customs Union). When a state is on one side or another of a normative border (Lithuania is part of the European normative order, Belarus is in Russia’s), normative boundaries coincide with national boundaries and the situation is relatively clear. But some states, such as Ukraine, are what I have called “systemic borderlands” that contain aspects of two or more normative systems. When normative systems overlap and jostle within a country, the result can be normative friction.  This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory or which international organizations a state may join.

Ukraine is a particularly stark example of a systemic borderland; its electoral map shows the normative division of the country between further integration with the EU or  with Russia.  The NY Times reported on November 21 that Ukraine’s decision not to sign the Association Agreement:

…largely scuttles what had been the European Union’s most important foreign policy initiative: an ambitious effort to draw in former Soviet republics and lock them on a trajectory of changes based on Western political and economic sensibilities. The project, called the Eastern Partnership program, began more than four years ago.

[This] a victory for President Vladimir V. Putin of Russia. He had maneuvered forcefully to derail the plans, which he regarded as a serious threat, an economic version of the West’s effort to build military power by expanding NATO eastward. In September, similar pressure by Russia forced Armenia to abandon its talks with the Europeans.

The EU issued a memorandum reiterating its (at least official) view that the signing of DCFTAs and Association Agreements with the EU is not normative competition, but rather normative bridge-building between east and west:

While being aware of the external pressure that Ukraine is experiencing, we believe that short term considerations should not override the long term benefits that this partnership would bring. However the European Union will not force Ukraine, or any other partner, to choose between the European Union or any other regional entity. It is up to Ukraine to freely decide what kind of engagement they seek with the European Union…

We therefore strongly disapprove of the Russian position and actions in this respect. The Association Agreement and a DCFTA are opportunities to accompany our common neighbours towards modern, prosperous and rule-based democracies. Stronger relations with the European Union do not come at the expense of relations between our Eastern partners and their other neighbours, such as Russia. The Eastern Partnership is conceived as a win-win where we all stand to gain.

This attempt at framing increasing integration with the EU as a “win-win” for the EU, Russia, and Ukraine, has not persuaded Vladimir Putin…(Continue Reading)

The OTP’s Remarkable Slow-Walking of the Afghanistan Examination

by Kevin Jon Heller

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now – nearly seven years later – has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? See below…

Even in Defeat, the DOJ Is Petty Regarding Assange

by Kevin Jon Heller

According to the Washington Post, the Department of Justice has essentially decided against trying to prosecute Julian Assange for publishing the Chelsea Manning documents:

The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

The Obama administration has charged government employees and contractors who leak classified information — such as former National Security Agency contractor Edward Snowden and former Army intelligence analyst Bradley Manning — with violations of the Espionage Act. But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

If true, this is very good news indeed. Some of us have been pointing out for a very long time that if publishing classified documents is espionage, Bill Keller deserves to be in the dock just as much as Julian Assange.

Note, though, the clear distinction the DOJ spokesman draws between Julian Assange and “journalists.” Assange is no less a journalist than Mark Mazzetti — and a far better one than, say, Judith Miller. To claim otherwise is just petty.

The New Iran Deal Doesn’t Look Legally Binding. Does it Matter?

by Duncan Hollis

A flurry of news today over the announcement that Iran has cut a deal with six major world powers — the Permanent 5 members of the UN Security Council — the US, Russia, China, France and the UK — plus Germany.  The text of the ‘Joint Plan of Action’ is also widely available (see here or here).

My first reaction on looking at this ‘deal’ is that it’s not legally binding under international law.  Look at how the Preamble begins:

The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful. Iran reaffirms that under no circumstances will Iran ever seek or develop any nuclear weapons….

The ‘goal’ implies something aspirational rather than required.  The big-ticket commitment that Iran won’t seek or develop nuclear weapons is also referenced as a ‘reaffirmation’ rather than an affirmative commitment via this text.

Similarly, the operative paragraphs maintain an emphasis on avoiding language of legal intent:

Elements of a first step

The first step would be time-bound, with a duration of 6 months, and renewable by mutual consent, during which all parties will work to maintain a constructive atmosphere for negotiations in good faith.

Iran would undertake the following voluntary measures:

  • From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line
  • Iran announces that it will not enrich uranium over 5% for the duration of the 6 months. . . . .

*********
In return, the E3/EU+3 would undertake the following voluntary measures:

  • Pause efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to  purchase their current average amounts of crude oil. Enable the repatriation of an agreed amount of revenue held abroad. For such oil sales, suspend the EU and U.S. sanctions on associated insurance and transportation services.
  • Suspend U.S. and EU sanctions on:
    • Iran’s petrochemical exports, as well as sanctions on associated services.5
    • Gold and precious metals, as well as sanctions on associated services.
  • · Suspend U.S. sanctions on Iran’s auto industry, as well as sanctions on associated services . . .

(emphasis added)

Note the operative verb in these paragraphs is ‘would’ not ‘shall’ (which everyone would agree connotes an intention to be legally bound) or even ‘will’ (which the United States often uses to convey a legal intent even through the British and several other countries insist signals an agreement meant to have political, in lieu of legal, force).

To further emphasize the political and non-legally binding nature of this agreement, note the two sides emphasize that the measures listed are ‘voluntary’.  Moreover, the document is unsigned and lacks final clauses.  So, the bottom line for me . . . this isn’t binding under international law.  It’s a political commitment, not a legal one.

OK.  Say I’m right?  Why does it matter if this is not a treaty?  To be clear, there’s nothing entirely novel about concluding a major political document in a non-legal form — from the Atlantic Charter, to the Shanghai Communique to the Helsinki Accords, there are plenty of ‘big ticket’ precedents for doing major deals in legally non-binding texts.  Nor is it that political commitments are devoid of content — to be sure they can contain much that is aspirational or even puffery.  But, many political commitments can contain significant expectations of changes to future behavior and, at first glance, I’d say the Joint Plan of Action falls in the latter category.  The text is chock full of commitments both sides indicate they’ll be taking in the next six months on the path to a comprehensive settlement with respect to the future of Iran’s nuclear program.

That said, I think there are at least three significant implications of the choice of a non-treaty form for this deal.  First, I think it offers all sides flexibility – all seven parties are cloaking their expectations of what’s going to happen now behind terms that allow them to turn on a dime as necessary, either to back away from their ‘voluntary measures’ or to adjust them as all involved carefully monitor the other side’s performance.  Indeed, I expect that such flexibility was a key criterion for the sort of cooperation this deal envisages.  Second, by choosing a political deal rather than a legal one, I think the results are less credible than if they’d been done via a more august instrument like a treaty.  The treaty signals a level of commitment that just isn’t available with respect to an unsigned ‘joint plan’.   Now, maybe a major legal text wasn’t possible in the time frame all sides were working under, but I’d be surprised if any subsequent, final deal isn’t coached in a legal form given the greater credibility that accompanies those sorts of promises.

For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it.  Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures.  The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties).  Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done.  In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself.  But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion.  Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties.  I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate.  I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).

What do others think?  Am I right the Joint Plan of Action is not intended to be a treaty or an international agreement?  And do you agree that it was a means for the United States to conclude a deal without involving a Congress, at least some portion of which has been overtly hostile to any negotiations with Iran?

[Update: over at Lawfare, Ingrid Wuerth rightly calls me to task for my earlier title -- referencing a 'U.S.-Iran' deal when there are 7 States involved -- en route to discussing whether this text would've required congressional or Senate approval IF it was legally binding.  I've fixed the title accordingly and recommend readers check out Ingrid's post.]

Why Is the New Agreement Between P5+1 and Iran Not Void?

by Kevin Jon Heller

A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran’s uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a “right” to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT):

Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of this Treaty.

Ryan disagreed, arguing that any such “right” in the NPT has been superceded by a series of Security Council resolutions — beginning with Res. 1696 in 2006 — demanding that Iran cease its enrichment activities. In defense of his position, Ryan cited a number of eminent non-proliferation scholars, such as Larry D. Johnson, a former Assistant-Secretary-General for Legal Affairs at the United Nations:

While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.

I think Ryan are Johnson are right that the “inalienable right” guaranteed by Iran’s ratification of the NPT is nullified — at least for now — by the various Security Council resolutions. So here is my question: why is the just-announced agreement between P5+1 and Iran not void ab initio for the same reason? SC Res. 1737 categorically prohibits Iranian uranium enrichment (emphasis mine)…

Proposals for RPE 134 — and an Unsuccessful Defence of Trial By Skype

by Kevin Jon Heller

A couple of days ago, I blogged about proposals that will soon be debated at the ICC’s Assembly of States Parties (ASP) to excuse Kenyatta and Ruto from having to be physically present at trial. Colum Lynch has kindly posted the text of the two proposals, both of which would amend Rule 134 of the Rules of Procedure and Evidence (RPE). Here is the first one — which the Chair’s Compilation document does not attribute to a particular delegation, but is almost certainly Kenya’s:

4.      Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence.

There are two problems with this proposal. The primary one is that, as I explained in my previous post, it is inconsistent with Art. 63(1) of the Rome Statute, which requires the accused to be physically present at trial. Art. 51(4) of the Rome Statue 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.” Permitting the accused to be “present” at trial through his counsel, therefore, requires amending Art. 63(1), not Rule 134.

The other problem with the proposal is that it does not even purport to generally redefine the meaning of presence in Art. 63(1). Even if presence could be redefined through the RPE, there would be no justification for excusing only sitting heads of state from physical presence at trial. There is thus little doubt that the proposal is nothing more than an instrumental attempt by Kenya to get around Art. 63(1).

The second proposed amendment to Rule 134 is more interesting…

Can the ASP Permit Trial by Skype?

by Kevin Jon Heller

As Mark Kersten discusses today at Justice in Conflict, one of the reasons the Security Council rejected Kenya’s request to defer the Kenyatta and Ruto prosecutions is that it believes the issue of their presence at trial is better addressed by the Assembly of States Parties. Here is how Mark summarizes what could happen at the ASP:

At this year’s ASP, Kenya is hoping to see a number of amendments to the Rome Statute adopted. Chief among them is a change to provisions pertaining to whether an accused (and especially a Head of State) is required to be continuously present and his/her trial in The Hague. The problem for Kenya, however, is that even if a sufficient number of ICC states parties agreed to amend the Rome Statute, those changes would only come into effect after one year. Kenyatta’s trial is due to begin in early February, less than three months from now.

Consequently, Kenya will also seek amendments to Rule 134 of the ICC’s Rules of Procedure and Evidence. In particular, the ASP will examine proposed amendments to sections pertaining to the ‘presence’ of defendants during their trial. In plain language, proposals will be made to amend this rule in order to: 1) allow a defendant to be ‘present’ during trial via “video technology” and 2) allow a defendant to be personally excused at trial but be ‘present’ during trial via his/her counsel. There is every indication that other member-states, as well as the Obama administration, are inclined to support these amendments. Crucially, and unlike the proposed changes to the Rome Statute itself, if these amendments are passed by a two-thirds majority of states parties at the ASP, they would take effect immediately. An ICC trial by Skype is emerging as a real possibility.

Mark argues that “The ASP faces two key hurdles: first, any amendments have to be consistent with the Rome Statute and, second, any amendment will have to jive with previous Appeal Chamber decisions.” I don’t think the second issue is particularly important: if the ASP amends the Rome Statute or the RPE, that amendment would presumably trump any judicial interpretation of the provision’s previous incarnation.

The first issue, however, is critical — and I don’t see how the ASP can get around the amendment provisions in the Rome Statute by amending RPE 134 instead of Art. 63(1) itself. Rule 134 says nothing about the defendant’s presence at trial; it simply establishes the procedures governing motions relating to trial proceedings. More importantly, as Mark notes, the RPE are subordinate to the Rome Statute — and Art. 63(1) specifically provides that “[t]he defendant shall be present at trial.” There is no question that “presence” in Art. 63(1) refers to physical presence; after all, Art. 63(2) provides that “[i]f the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused.” Presence also means physical presence throughout the RPE, as indicated by, inter alia, Rules 122, 123, and 124 (concerning the defendant’s presence at the confirmation hearing.)

Given the clear meaning of Art. 63(1), I don’t think the ASP can excuse Kenyatta and Ruto from being physically present at trial by redefining presence in the RPE. Indeed, I think it would be disingenuous for the ASP to try. The problem, of course, is that amending Art. 63(1) would not help Kenyatta and Ruto; as Mark notes, unlike amendments to the RPE, amendments to the Rome Statute do not immediately take effect. In fact, Mark significantly understates how long it would take for an amendment to Art. 63(1) to be activated: pursuant to Art. 121(4), non-substantive amendments come into force one year after 7/8 of States Parties have accepted the amendment, not one year after the amendment is approved by the ASP. That could take years.

We’ll see what the ASP does. Colour me skeptical, though, that the Security Council made a wise decision by punting the presence issue to the ASP.

Why It’s Not Surprising Syria Is Destroying Its Chemical Weapons

by Kevin Jon Heller

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability:

I don’t really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why? I very much doubt it’s because he fears retaliation from the United States. And given his past behavior, it’s hardly likely that it’s driven by feelings of moral revulsion.

So what’s his motivation? For reasons of his own, he must have decided that he was better off without chemical weapons than with them. Perhaps it has to do with the internal political situation in Syria. Or maybe Russia got fed up for some reason. But it’s a bit of a mystery, and not one that I’ve seen any plausible explanations for.

I don’t think it’s a mystery at all. Here is the explanation:

Forces loyal to Syrian President Bashar Assad have firmly seized the momentum in the country’s civil war in recent weeks, capturing one rebel stronghold after another and triumphantly planting the two-starred Syrian government flag amid shattered buildings and rubble-strewn streets.

Despite global outrage over the use of chemical weapons, Assad’s government is successfully exploiting divisions among the opposition, dwindling foreign help for the rebel cause and significant local support, all linked to the same thing: discomfort with the Islamic extremists who have become a major part of the rebellion.

The battlefield gains would strengthen the government’s hand in peace talks sought by the world community.

Both the Syrian government and the opposition have said they are ready to attend a proposed peace conference in Geneva that the U.S. and Russia are trying to convene, although it remains unclear whether the meeting will indeed take place. The Western-backed opposition in exile, which has little support among rebel fighters inside Syria and even less control over them, has set several conditions for its participation, chief among them that Assad must not be part of a transitional government — a notion Damascus has roundly rejected.

“President Bashar Assad will be heading any transitional stage in Syria, like it or not,” Omar Ossi, a member of Syria’s parliament, told The Associated Press.

The government’s recent gains on the outskirts of the capital, Damascus, and in the north outside the country’s largest city, Aleppo, have reinforced Assad’s position. And the more the government advances, the easier it is to dismiss the weak and fractious opposition’s demands.

As I have pointed out before, the US’s obsession with chemical weapons was manna from heaven for Assad. There is still no hard evidence that Assad personally ordered the Syrian military to use chemical weapons, and it would have been suicide for anyone associated with the Syrian government to risk US military intervention by using them again. Assad thus essentially traded his strategically useless chemical-weapons capability for the right to wage a ruthless counter-insurgency with impunity. That trade has obviously worked — there is almost no chance at this point that the rebels will overthrow Assad’s government, and it is equally unlikely that Assad will ever step down as part of some kind of negotiated peace agreement. Why would he? He is winning the war, and the West has essentially lost interest in the mass atrocities he has committed, and continues to commit, against innocent Syrian civilians. Indeed, the Syrian military is now routinely using incendiary weapons to kill civilians, yet the West remains silent.

But at least Assad no longer has chemical weapons. Success, right?

New Book: Hidden Histories of War Crimes Trials (Updated)

by Kevin Jon Heller

9780199671144_140I am delighted to announce the publication of a new book that I co-edited with my colleague and dear friend Gerry Simpson, The Hidden Histories of War Crimes Trials. As the title indicates, the book contains a number of essays that discuss little-known trials (such as the Franco-Siamese Mixed Court)  or re-narrate better known but misunderstood trials (such as the trial of Peter von Hagenbach). Here is the table of contents:

 

1: Gerry Simpson: Introduction

Part 1: Pre-Histories: From Von Hagenbach to The Armenian Genocide
2: Gregory S. Gordon: The trial of Peter von Hagenbach: Reconciling history, historiography, and international criminal law
3: Benjamin Brockman-Hawe: A supranational criminal tribunal for the colonial era: the Franco-Siamese Mixed Court
4: Jennifer Balint: The Ottoman state special military tribunal for the Genocide of the Armenians: ‘Doing government business’

Part 2: European Histories I: Prosecuting Atrocity
5: Rosa Ana Alija-Fernández: Justice for no-land’s men? United States military trials against Spanish Kapos in Mauthausen and universal jurisdiction
6: Dov Jacobs: A narrative of justice and the (re)writing of history: French trials after World War II
7: Frédéric Mégret: The Bordeaux Trial: Prosecuting the Oradour-sur-Glane massacre

Part 3: European Histories II: Americans in Europe
8: Grietje Baars: Capitalism’s victor’s justice? Prosecution of industrialists post WWII
9: Stephen Vladeck: Eisentrager’s (Forgotten) Merits: Military commissions and collateral review

Part 4: European Histories III: Contemporary Trials
10: Benedetta Faedi Duramy: Making peace with the past: Federal Republic of Germany’s accountability for World War II massacres before the Italian Supreme Court
11: Tamás Hoffman: Trying communism through international criminal law? The experiences of the Hungarian historical justice trials
12: Rain Liivoja: Competing histories: Soviet war crimes in the Baltic States
13: Julia Selman-Ayetey: Universal jurisdiction: Conflict and contoversy in Norway

Part 5: African Histories
14: Jackson Maogoto: Reading the shadows of history: The bridges between Turkish and Ethiopian ‘internationalised’ domestic crime trials
15: Firew Kebede Tiba: Mass trials and modes of responsibility for international crimes: Ethiopia

Part 6: Southern Histories
16: Georgina Fitzpatrick: War crimes trials, victor’s justice, and Australian military justice in the aftermath of the second world war
17: Narrelle Morris: Justice for ‘Asian’ victims: Australian war crimes trials of the Japanese 1945-51
18: Peter Rush: Dirty War crimes: Jurisdictions of memory and international criminal law

Part 7: Histories of a Type: Excavating the Crime of Aggression
21: Roger Clark: The crime of aggression: From the trial of Takashi Sakai in August 1946 to the Kampala Review Conference in 2010
22: Mark Drumbl: ‘Germans are the lords and Poles are the servants’: The trial of Arthur Greiser in Poland, 1946
23: Immi Tallgren: The Finnish war-responsibility trial in 1945-56: Flawed justice, anxious peace?

You can purchase a hard copy of the book at the OUP website here. You can also — as part of an experimental OUP initiative — download a complete PDF of the book for free at either www.oup.com/uk or www.oapen.org. If you cannot afford the £70.00, by all means download the PDF.

UPDATE: The free open-access version of the book is now available on the webpage linked to above.

Doesn’t the U.S. Senate Care about Mercury?

by Duncan Hollis

On November 6, the United States signed the Minamata Convention on Mercury and deposited an instrument of acceptance indicating its consent to be bound by the treaty on its entry into force, making it the first nation to do so.  Here’s how UNEP summarizes the Convention:

The Minamata Convention for Mercury is a global treaty to protect human health and the environment from the adverse effects of mercury. It was agreed at the fifth and final session of the Intergovernmental Negotiating Committee in Geneva, Switzerland at 7 a.m. on the morning of Saturday, 19 January 2013.

The major highlights of the Minamata Convention on Mercury include a ban on new mercury mines, the phase-out of existing ones, control measures on air emissions and the international regulation of the informal sector for artisanal and small-scale gold mining.

The treaty certainly seems to address an important environmental problem with significant momentum from State participants — although opened for signature only a month ago, it has already garnered 93 signatories (of course, everyone most people know that those signatures are not the same as consent, which is why the United States took the additional step of depositing an instrument of acceptance).  The treaty will enter into force on the deposit of the 50th instrument of ratification, accession, acceptance or approval.   

What interests me about the Mercury treaty though is not just its contents — which are the latest iteration of multilateral environmental governance — but the process for U.S. acceptance.  Here’s how the State Department describes it:

The Minamata Convention represents a global step forward to reduce exposure to mercury, a toxic chemical with significant health effects on the brain and nervous system. The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority. The Minamata Convention complements domestic measures by addressing the transnational nature of the problem.

Three questions.  First, is the Administration considering this a congressional executive agreement? If so, shouldn’t they be a bit more specific about which U.S. laws authorize U.S. participation in this treaty.  In particular, it would be interesting to know if the legislation authorizes not just the regulation of mercury but U.S. participation in an international legal regime regulating mercury (I’m guessing it doesn’t).  That’s a big distinction, especially since the Obama Administration has already gotten into quite a dust-up over how it reads statutes with respect to authorizing U.S. consent to treaties (e.g., ACTA).  And if there’s no statutory authority to join the Minamata Convention, doesn’t that mean it must be a sole executive agreement?

Second, where’s the U.S. Senate in all this? As Oona Hathaway has explained there are few, if any, ways to rationally explain why certain international agreements go to the U.S. Senate for advice and consent versus those that Congress approves via ex ante or ex post legislation (let alone those that are done under the President’s sole executive powers).  Rationality aside, however, there is a long history of the Senate exercising its prerogatives over certain subject areas when it comes to giving advice and consent to treaties.  Thus, when President Bush suggested he’d not send the Moscow Treaty on arms control with Russia to the Senate, the Senate issued a non-partisan threat request that he do so . . . and the Administration changed course and obliged the Senate by sending it there.  I’d always understood multilateral environmental agreements to warrant similar treatment.  With one notable exception — the 1976 Long Range Transboundary Air Pollution Convention and its various protocols —  I believe multilateral environmental agreements have always gone through the Senate advice and consent process . . . until now.

This raises a third and final question:  Why did the Administration decide to bypass the Senate in consenting to the Minamata Convention? Perhaps the Senate indicated to the Obama Administration that they would not object to having this treaty concluded as an executive agreement?  Or, maybe the statutory authority (would love further details on what it is) is more robust than in the ACTA context.  Alternatively, I wonder, if this isn’t the Obama Administration response to the Senate’s repeated intransigence lately to approve any of the Administration’s major treaty priorities; from the Disabilities Convention to UNCLOS, the Senate’s been pretty deadlocked of late. Maybe the idea here was to send a warning shot to demonstrate that the Administration no longer feels bound to adhere to past practice when it comes to reserving certain treaty subjects for Senate attention and/or that the Administration wants to remind the Senate that it has other ways to pursue its international agenda if the Senate continues to delay or deny consent to the treaties it receives from the White House.

I’d welcome comments, especially from any readers who know more of the back story on this Convention or the U.S. approach to consenting to it.

 

Is David Miranda a Terrorist? Legally, It’s Close — Which Is Precisely the Problem

by Kevin Jon Heller

In my previous post, I mocked Scotland Yard’s assertion that David Miranda, Glenn Greenwald’s partner, committed an act of terrorism by transporting documents stolen from the US government by Edward Snowden. Mockery remains the appropriate response, given the vast chasm that separates Miranda’s actions from any defensible conception of terrorism — such as the one I quoted from UN General Assembly Resolution 49/60, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” Yet it is important to avoid focusing solely on Scotland Yard’s abuse of its power, because the real problem lies not with those who apply the law — whose good faith we should never assume — but with the law itself. Simply put, the UK’s Terrorism Act 2000 is so overbroad that, in fact, Miranda’s actions come perilously close to qualifying as terrorism under it. Here is the Act’s definition of terrorism:

1.—(1) In this Act “terrorism” means the use or threat of action
where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.

(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person
committing the action,
(d) creates a serious risk to the health or safety of the public or a
section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an
electronic system.

Let’s examine each of these elements. First, is transporting Snowden documents “to influence the government or to intimidate the public or a section of the public”? Not to intimidate, surely. But transporting the documents is designed to facilitate their release, and the release of the documents is indeed “designed to influence the government” — namely, to convince Britain to abandon its mass surveillance of its citizens and the citizens of other European countries. That is a noble design, but it is a design nonetheless. And the Terrorism Act 2000 does not limit terrorism to acts that seek to influence the government to adopt bad policies. That’s one of its problems.

Second, is transporting Snowden documents done “for the purpose of advancing a political,
religious or ideological cause”? Yes, of course it is — releasing the documents is designed to promote greater transparency in government and to minimize unwarranted interference with people’s privacy. That is a noble political or ideological cause, but it is still a political or ideological cause. And once again, nothing in the Act says that actions in the service of a noble political or ideological cause cannot qualify as terrorism. That’s another problem.

Third, and finally, does transporting Snowden documents “fall within subsection (2)”? It clearly does not involve “serious violence against a person” or “serious damage to property.” But the other three categories of harm are a much closer call. I do not believe that releasing the Snowden documents endangers a person’s life, creates a serious risk to the safety of the public, or is designed to seriously disrupt an electronic system. But it is very easy to imagine an overzealous prosecutor arguing that their release would do any or all of those things — particularly the final one, because the surveillance abuses revealed by the documents are all the product of electronic systems. And given that UK courts have not exactly covered themselves with glory in the terrorism context, it is also all too easy to imagine a court buying that overzealous prosecutor’s argument.

That’s it. That’s all the Terrorism Act 2000 requires. It does not require a violent act. It does not require the intent to cause terror. It does not exclude peaceful acts designed to promote progressive policy change. It does not exclude pacifist or humanist causes. It simply requires the accused commit an act that is designed to influence the government for political or ideological reasons and that directly or indirectly endangers a person, the public, or a computer system.

To be clear: I do not think that David Miranda’s actions qualify as terrorism — even under the woefully overbroad Terrorism Act 2000. In particular, I think the mere act of transporting documents is too causally removed from endangering a person, the public, or a computer system to satisfy subsection (2) of the Act. But Miranda’s actions are far too close for comfort, given the Act’s definition of terrorism — and the actions of a person who actually releases Snowden documents, such as my friend Glenn Greenwald himself, are closer still. Indeed, I find it all too easy to imagine Glenn or one of his former colleagues at the Guardian being successfully prosecuted for terrorism under the Act.

And that, ultimately, is my point. It is a serious problem that Scotland Yard believes Miranda is a terrorist. But the more significant problem is that, viewed solely in terms of the law, its position is anything but absurd. Under the indefensible Terrorism Act 2000, many actions qualify as terrorism that are not, in fact, even remotely terrorist. Perhaps even Miranda’s.

Terrorism Is Dead, and Britain Has Killed It

by Kevin Jon Heller

No, not actual terrorism, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” That’s still going strong. I’m talking about the concept of terrorism, which has officially lost all meaning whatsoever:

British authorities claimed the domestic partner of reporter Glenn Greenwald was involved in “terrorism” when he tried to carry documents from former U.S. intelligence contractor Edward Snowden through a London airport in August, according to police and intelligence documents.

Greenwald’s partner, David Miranda, was detained and questioned for nine hours by British authorities at Heathrow on August 18, when he landed there from Berlin to change planes for a flight to Rio De Janeiro, Brazil.

After his release and return to Rio, Miranda filed a legal action against the British government, seeking the return of materials seized from him by British authorities and a judicial review of the legality of his detention.

At a London court hearing this week for Miranda’s lawsuit, a document called a “Ports Circulation Sheet” was read into the record. It was prepared by Scotland Yard – in consultation with the MI5 counterintelligence agency – and circulated to British border posts before Miranda’s arrival. The precise date of the document is unclear.

“Intelligence indicates that Miranda is likely to be involved in espionage activity which has the potential to act against the interests of UK national security,” according to the document.

“We assess that Miranda is knowingly carrying material the release of which would endanger people’s lives,” the document continued. “Additionally the disclosure, or threat of disclosure, is designed to influence a government and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism…”

Terrorism: now defined as any act that a government finds inconvenient. Actually, check that: now defined as any act that a good government finds inconvenient. Similar acts committed against a bad government like Iran — and even real acts of terror, like assassinating scientists – are called ”promoting freedom.”

RIP, terrorism. I thought the Americans would kill you, but it turns out the British beat them to it. Regardless, we mourn your untimely passing.