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International Security

Guest Post: Foreign Official Immunity and the Chinese Cyberespionage Indictments

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]

As Duncan has pointed out, if a U.S. court sought to exercise jurisdiction over the five Chinese officials indicted by a Pennsylvania grand jury for computer fraud, identity theft, economic espionage, and trade secret theft, the officials would likely claim entitlement to foreign official immunity because they acted on behalf of China. While state action is not a required element of any of the alleged crimes, it permeates the facts of this case, which Attorney General Eric Holder emphasized “represents the first ever charges against a state actor for this type of hacking.”

The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over foreign states and their agencies or instrumentalities, see 28 U.S.C. § 1604, although it remains unsettled whether the FSIA applies to criminal proceedings against entities. The FSIA does not apply to individual foreign officials, see Samantar v. Yousuf, except for the section creating a limited private right of action for state sponsored terrorism, 28 U.S.C. § 1605A(c). Rather, the immunity of current and former foreign officials is governed by applicable treaties (such as the Vienna Convention on Diplomatic Relations, implemented by the Diplomatic Relations Act) and, in the absence of a statute, the common law.

As Duncan indicates and Jack Goldsmith also notes, the question of foreign official immunity will only arise as a practical matter if the Chinese defendants come within the personal jurisdiction of a U.S. court. The officials could not claim status-based immunity unless they were heads of state, diplomats, or members of special diplomatic missions at the time of the legal proceedings. Instead, they would claim conduct-based immunity on the grounds that their acts were all performed on behalf of the Chinese state.

The decision to bring charges suggests that the USDOJ does not view the defendants as lawfully entitled to assert immunity for their alleged conduct. This could be for one of several reasons: (more…)

Guest Post: Cullis on Iran Sanctions

by Tyler Cullis

[Tyler Cullis is a Policy Associate at National Iranian American Council.]

Introduction

We’ll soon find out whether the decade-old nuclear dispute with Iran can be resolved diplomatically, as the parties return to Vienna next month to hammer out a comprehensive agreement. So far, negotiations have been deftly handled by both US and Iranian negotiators – the positive atmosphere, so critical to staving off domestic opposition, having been maintained over several months. But still, the most difficult issues remain on the table, including the number (and type) of centrifuges Iran will be permitted, the duration of a final agreement, and the timing of sanctions relief. Successfully concluding a nuclear deal will require compromise from both parties on each of these issues.

While much attention has zeroed in on Iran’s obligations under a final deal, few have discussed the specific modes by which the US will comply with its own commitments. This is troubling, especially insofar as the White House’s ability to provide Iran measurable sanctions relief, absent an affirmative act of Congress, is not assured. In fact, relieving the sanctions will involve difficult questions of law and policy that deserve far more extensive discussion than received at present. Below, I discuss a few of these issues, posing as they do hurdles perhaps as sizeable as Iran’s own centrifuges.

Treaty or Not to Treaty?

Soon after the Joint Plan of Action was inked in Geneva last November, questions arose as to the legal nature of the preliminary agreement: Was it binding as a matter of international law? If so, would it need to be submitted to the Senate (or, in Iran’s case, to the Majles) for approval?

Consensus, here and elsewhere, said no: the interim deal was left unsigned by the parties and had couched its commitments as “voluntary measures,” not mandatory ones. This, it was argued, signified that the P5+1 and Iran did not intend for the document to be either binding on the parties nor governed by international law. Drawbacks to this approach were obvious, but the upside was that each of the parties avoided the need for legislative approval at home (Iran, too, has constitutionally-mandated procedures to follow before an international agreement can be entered into and take domestic effect). Now that we are more than halfway through the interim period and both parties remain in full compliance with their “voluntary” obligations, the choice of informal agreement looks to have been the correct one.

Going forward, however, the central question will be whether the parties replicate this model in a final deal or instead cement a binding international agreement (i.e., a treaty). While the White House remains keen on insulating Congress as much as possible from playing spoiler and is thus unlikely to submit a final deal to the Senate for approval, there are several factors that ward against replicating the “soft law” nature of the Joint Plan of Action.

First, because the US will be required to offer more lasting sanctions relief than that provided under the Joint Plan of Action and, as of now, the President is limited in the kind of sanctions relief he can provide, Congress will be called upon to lift the sanctions at some point in this process. Whether to include Congress at the front- or back-end of a final deal remains a strategic question for the White House, but avoiding Congress altogether is no longer a plausible scenario. (Nor is more aggressive action from the White House likely. It is improbable that the White House will attempt to conclude a sole executive agreement with Iran that overrides contrary federal law and gives the President the authorities he needs to provide Iran the requisite sanctions relief. Such a step would prove a legal leap beyond that of Dames & Moore — the President not acting pursuant to Congressional authorization or acquiescence but rather in ways contrary to Congress’s clear direction.)

Second, unlike the interim deal, which was intended as both a confidence-building measure and a place-holder to allow the parties time to negotiate a final deal, the final agreement will be one where the obligations actually matter. (more…)

The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.

Guest Post: Al Nashiri and the Existence of an Armed Conflict

by David Frakt

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense.]

I wanted to weigh in on the debate between my esteemed colleagues Steve Vladeck, Peter Margulies and Kevin Jon Heller at Just Security, Lawfare and Opinio Juris, on the issue of the existence of an armed conflict at the time of Mr. Al Nashiri’s alleged offenses and the critical questions of who should decide this issue, and when.  Peter argues that this is a question of fact best decided by the panel of military officers who will serve as jurors in the military commissions.  Al Nashiri’s defense team asserts that this is a question of law and they are asking the D.C. District Court to rule that the attack on the USS Cole in Yemen in 2000 was not part of an armed conflict.  As there was no armed conflict ongoing, so goes their argument, the law of armed conflict does not apply and his actions could not be considered a violation of the law of war; further, because military commissions are courts of limited jurisdiction with power only to try and punish violations of the law of war, the federal court should enjoin any further proceedings at Guantanamo.  It should be noted that Al Nashiri has already raised this matter in a pretrial motion in the military commission, seeking to have the charges dismissed by the military judge on the grounds that the commission lacks jurisdiction over his alleged offenses because they did not take place in the context of an armed conflict.  Judge Pohl declined to dismiss the charges, characterizing the issue as primarily a question of fact for the jury (Ruling AE104F).  Judge Pohl also acknowledged that the question was a “jurisdictional question subject to purely legal determination” but claimed that he must make this determination using a “wide deference” standard.”  Applying this standard, he found that the Congressional authorization to try offenses that occurred prior to 9/11, coupled with the fact that charges had been filed by the prosecutor, referred to trial by the Convening Authority, and not withdrawn by the Secretary of Defense or the President was sufficient to establish the existence of an armed conflict at the time of the offenses for jurisdictional purposes.  This determination is essentially tantamount to a finding that he considered there to be sufficient evidence to submit the question to a jury.  However, he left open the possibility of reconsideration at a later time, presumably in the form of a motion for a directed verdict at the close of the prosecution’s case.

(more…)

Did You Know Hazarding a Vessel Was a War Crime? Me Neither.

by Kevin Jon Heller

We have a new challenger in the competition for worst decision by a military commission ever! Judge Pohl has now issued an order in al-Nashiri concluding that Charge IX, Hijacking or Hazarding a Vessel or Aircraft, states a violation of the international laws of war. Here is the definition of that “war crime,” 10 U.S.C. § 950t(23):

(23) Hijacking or hazarding a vessel or aircraft.— Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

Hijacking or hazarding a vessel is not a grave breach of either the Geneva Conventions or the First Additional Protocol. The Rome Statute does not criminalise hijacking or hazarding a vessel. No international tribunal has ever prosecuted the hijacking or hazarding a vessel as a war crime — not the IMT, not the ad hocs, not the ICC. The ICRC’s study of customary IHL does not mention hijacking or hazarding a vessel — although it does note that both the US Naval Handbook (Vol. II, p. 3893)  and The Restatement (Third) of the Foreign Relations Law of the United States (Vol. II, p. 3938) specifically distinguish between hijacking and war crimes. And so on.

How, then, does Judge Pohl somehow conclude that hijacking or hazarding a vessel is a war crime — as opposed to attacking civilians or civilian objects, both of which are war crimes and are both of which are also detailed in al-Nashiri’s charge sheet? By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Seriously. By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Here is what Judge Pohl says (emphasis mine):

The M.C.A. prohibits conduct that “endangers the safe navigation of a vessel.” The similarity between the M.C.A. and the SUA Convention is plain and unambiguous. The SUA Convention proscribes the same conduct the M.C.A. proscribes and of which the Accused is charged… The Commission finds by a preponderance of the evidence the Prosecution has demonstrated the crime of Hijacking or Hazarding a Vessel or Aircraft is based on norms firmly grounded in international law and can be plainly drawn from established precedent. Therefore, the Commission concludes the offense of Hijacking or Hazarding a Vessel or Aircraft was an international law of war crime at the time the Accused allegedly engaged in the conduct, thus conferring jurisdiction over the offense.

That’s it. That’s Judge Pohl’s entire argument. Never mind that the SUA Convention says nothing about the laws of war, applying equally in armed conflict and peacetime. Never mind that the SUA Convention does not even purport to create an international crime — it is, of course, a suppression convention that simply obligates States Parties to domestically criminalise certain acts. Never mind that, even if it is possible to argue that the widespread ratification of the SUA Convention somehow creates a customary rule prohibiting hijacking or hazarding a vessel (difficult in itself), such a customary rule would still not create “an international law of war crime.”

I hope I don’t need to explain in more detail why the widespread ratification of a suppression convention doesn’t create a war crime. But let’s take Judge Pohl’s methodology seriously. Want to know what other kinds of acts are also war crimes prosecutable in a military commission?

  • Nuclear proliferation (NPT — 190 ratifications)
  • Threatening civilian aviation (Safety of Civilian Aviation Convention – 188 ratifications)
  • Drug trafficking (Illicit Traffic in Narcotics Convention – 188 ratifications)
  • Manufacturing hallucinogenic drugs (Psychotropic Substances Convention – 182 ratifications)
  • Using child labor (Worst Forms of Child Labor Convention – 177 ratifications)
  • Transnational organised crime (Transnational Organized Crime Convention – 176 ratifications)
  • Kidnapping diplomats (Internationally Protected Persons Convention – 176 ratifications)
  • Corruption (Anti-Corruption Convention – 167 ratifications)
All of those conventions are suppression conventions — and each has been much more widely ratified than the SUA Convention. According to Judge Pohl’s logic, therefore, all of those acts are also violations of the international laws of war.In the off chance you needed additional proof that the military commissions are a joke, Judge Pohl’s decision is Exhibit A.

No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

by Kevin Jon Heller

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack…

PTC II to Defence Attorneys: You Are All Criminals

by Kevin Jon Heller

I’ve been remiss in my blogging lately for a variety of reasons, but I can’t let pass two interrelated decisions by Pre-Trial Chamber II (sitting as a single judge) in the criminal proceedings against Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo — Bemba’s lead defence attorney and case manager, respectively. The two men, who are currently in custody, are accused of tampering with witnesses and manufacturing evidence.

The decisions in question concern the requests by Kilolo and Mangenda for release pending trial. To justify denying a suspect pre-trial release, the PTC must find (1) that there are reasonable grounds to believe the suspect committed the crimes alleged by the OTP, and (2) that ongoing detention is necessary for one of the reasons set forth in Art. 58(1)(b) of the Rome Statute — namely, to ensure that the suspect appears at trial, to prevent the suspect from obstructing the OTP’s investigation, or to prevent the suspect from continuing to commit crimes.

In both cases, and essentially on exactly the same grounds, the PTC found that continued detention was warranted. I’m willing to accept the PTC’s conclusion regarding the first limb of the detention test; although I’m skeptical the OTP can prove the allegations at trial for a variety of substantive and procedural reasons, a judge could find that there are reasonable grounds to believe Kilolo and Mangenda tampered with witnesses and/or manufactured evidence. But I am appalled by the PTC’s approach to the second limb of the detention test, where it concludes that Kilolo and Mangenda are both flight risks and are likely to obstruct the OTP’s investigation. The PTC’s reasoning exhibits a truly breathtaking contempt for the role that defence attorneys and case managers play at the ICC. Here is what the PTC says about Kilolo being a flight risk (and the PTC makes the same argument for Mangenda) (emphasis added):

22. Whilst acknowledging the handing over of Mr Kilolo’s passport to the authorities of the Detention Centre, the Single Judge observes that this does not detract from the risks of flight which are inherent in the very connection of Aimé Kilolo to the network of Jean-Pierre Bemba Gombo and to the ensuing likelihood that he might be made available resources enabling him to abscond from the jurisdiction of the Court. Furthermore, it is to be noted that Mr Kilolo requests to be released in Belgium, i.e. in a country within the Schengen area, where travel is to a great extent possible without the need that identity documents be shown or relied upon.

[snip]

24. The Single Judge is likewise not persuaded that Aimé Kilolo’s withdrawal from his role as lead counsel for Jean-Pierre Bemba in the Main Case entails per se the severance of all of his ties to the latter’s vast network and hence to the concrete risk that resources be made available to him for the purpose of evading justice. The fact that “depuis le 6 décembre 2013, le requérant n’a plus de contacts privilégiés avec M. Bemba” (emphasis added) does not mean that the long-established relationship between Mr Bemba and Mr Kilolo by virtue of the latter’s role as lead counsel in the Main Case has ceased to exist. Contrary to what stated by the Defence the absence of documents witnessing to the existence of a “relation personnelle” between the two cannot be considered as mitigating or otherwise affecting this conclusion. Similarly, if it is true that assets pertaining to Mr Bemba and Mr Babala have been seized by way of implementation of the Chamber’s order, such assets obviously form but a small part of the assets which are or might be made available to the network as a whole, which comprises a number of individuals by far exceeding the suspects in this case.

Notice what the PTC is claiming here: Kilolo is part of Bemba’s “network” simply because he served as Bemba’s defence attorney. Kilolo is thus “inherently” a flight risk, despite not having been convicted of any crime — presumably the presumption of innocence still applies to the pending charges — because he has access to the vast resources of Bemba’s criminal organisation. In short: Bemba’s defence attorney is no different than Bemba’s henchmen and enforcers. He just plays a different role in Bemba’s organisation.

The PTC’s argument is disturbingly reminiscent of the post-9/11 demonisation of defence attorneys in the US who had the temerity to represent individuals accused of terrorism. Marc Thiessen, for example, (in)famously claimed that “[t]he habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.” Such despicable claims led to significant pushback from both progressives and (to their credit) many conservatives — and rightfully so. Yet now we witness the unseemly spectacle of an international judge engaging in precisely the same kind of demonisation.

Nor is that all. The PTC’s explanation of why Mangenda is likely to obstruct the OTP’s investigation is just as offensive (emphasis added):

As stated by the Prosecutor, Mangenda’s former role as case manager for Jean-Pierre Bemba entails that he is likely to know the identity of most of the potential witnesses; moreover, given the precise information disclosed to him, now he is even in a better position to obstruct or endanger the investigations. As regards the fact that the Prosecutor’s investigation is close to completion, it cannot be reasonably excluded that additional action might be taken, in respect of other evidentiary items which might still be outstanding, whether in relation to the Main Case or to these proceedings, in spite of the fact that some pieces of evidence are indeed in the possession of the Court or of the relevant national authorities and as such beyond the suspects’ reach.

Is it possible to imagine greater contempt for the role — absolutely critical, as any defence attorney knows — of a case manager? Of course Mangenda will obstruct the OTP’s investigation (now the presumption of innocence is jettisoned completely); after all, what member of Bemba’s “network” would be better placed to do so than his case manager, who has access to all kinds of insider information?

Again, the PTC’s contempt for the defence function is truly shocking. Unfortunately, it seems to be a pattern at the ICC — let’s not forget how the Court essentially abandoned and apologized for Melinda Taylor when Libya imprisoned her on the basis of truly ludicrous allegations. Defence attorneys and case managers, even those accused of serious crimes, deserve better.

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

Marshall Islands Sues to Enforce Nuclear Non Proliferation Treaty; UK May Be Dragged Into ICJ

by Julian Ku

This lawsuit is mostly just grandstanding by a very small nation with the help of a savvy (but sloppy) US law firm.  But there is one possibly meaningful outcome.  It could result in an ICJ proceeding involving the United Kingdom.

The tiny Pacific nation of the Marshall Islands is taking on the United States and the world’s eight other nuclear-armed nations with an unprecedented lawsuit demanding that they meet their obligations toward disarmament and accusing them of “flagrant violations” of international law.

The island group that was used for dozens of U.S. nuclear tests after World War II was filing suit Thursday against each of the nine countries in the International Court of Justice in The Hague, Netherlands. It also was filing a federal lawsuit against the United States in San Francisco, naming President Barack Obama, the departments and secretaries of defense and energy and the National Nuclear Security Administration.

Reviewing the complaint and the ICJ applications, I conclude these cases are (mostly) going nowhere.

As for the U.S. complaint, the Marshall Islands is suing both the United States itself, and its President, and various military and civilian departments.  As an initial matter, there should be grave doubts about whether the NPT is self-executing. It is hard to imagine that it is.  And there are some grave doubts as to whether the U.S. has waived its sovereign immunity for this kind of claim in its own courts. And there are a variety of other problems: standing? political question? justiciability? that will no doubt make themselves felt here.

With respect to the ICJ applications, none of the target countries have accepted ICJ compulsory jurisdiction except the UK.  Indeed, the ICJ application against China mistakenly refers to it as the “Republic of China”, which is the name of the government in Taiwan, not China. I think Taiwan would be thrilled to be sued here, since they are not even allowed to join the ICJ or the U.N.  The China they want is the “People’s Republic”.

Putting both Chinas aside, the key here is that the UK has accepted compulsory jurisdiction of the ICJ, so this might require the UK to litigate this.  This seems like the one aspect of this case that might come to a real judicial outcome.

So if we get to the merits, I am deeply dubious.   What exactly is the “obligation to negotiate in good faith”? How can you ever tell if it has been violated?  The affidavit by Prof. Weston of the University of Iowa gives some content to this idea, but I don’t find it very persuasive.  

My basic thought is that this case is going nowhere, but will get some attention of the UK is forced to show up at the Hague and argue the merits.  Only then will we get to see if Prof. Weston’s idea tested by the ICJ.

Thoughts on the Ukraine Ad Hoc Self-Referral

by Kevin Jon Heller

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

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

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

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

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

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

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

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

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

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

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

by Chris Borgen

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

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

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

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

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

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

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

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

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

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