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Non-State Actors

Guest Post: The OPCW Grows Up

by Faiza Patel

[Faiza Patel is the Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law]

In the decade that I worked at the Organization for the Prohibition of Chemical Weapons in The Hague, few people outside the arms control community knew about my employer. Now, of course, everyone is talking about the OPCW as its inspectors undertake the difficult and dangerous task of monitoring the destruction of Syria’s chemical weapons stockpile. The award of the Nobel Peace Prize to this previously low-profile outfit has only piqued interest further.

So what is the OPCW and what does it do?

The OPCW is an inter-governmental organization charged with making sure that countries comply with their obligations under the Chemical Weapons Convention. For the past 16 years it has been doing so without much fanfare. As the Nobel committee made clear, the OPCW’s contribution to world peace is based on this long record, not just for stepping up in Syria.

The Chemical Weapons Convention, which came into force in 1997, is one of the most important achievements of the post-Cold War period. It is unique amongst arms control treaties because it bans not just the use, but also the stockpiling, of an entire category of weapons (In contrast, the Nuclear Non-Proliferation Treaty allows the five permanent members of the Security Council to maintain nuclear arsenals, although they are meant to be working towards eliminating them.) Countries that join the treaty are required to declare any chemical weapons they hold, as well as related facilities, and to get rid of them under international supervision. They must also undertake to never develop a chemical weapons capacity.

Under the treaty, countries were required to destroy their chemical weapons by 2012. Substantial progress has been made towards this goal, with approximately 80 percent of chemical agent stockpiles destroyed. Unfortunately, the two major possessor states, the United States and the Russian Federation, have not yet finished. They are, however, slated to finish up over the next few years and most experts are confident that both countries will eventually fulfill this commitment.

In addition to monitoring the elimination of chemical weapons, the OPCW has important non-proliferation mandate that will continue even after all weapons stockpiles are gone. Facilities producing dual use chemicals – such as Thiodiglycol, which is used to make ink but can also be used to produce mustard gas – are periodically inspected to ensure that toxic substances are not diverted to weapons uses. Since 1997, the organization has undertaken some 1900 of these types of inspections. Of course this represents only a fraction of the industrial facilities that deal in chemicals that could be turned into weapons, but the fact that countries allow inspections increases confidence that they are committed to the goals of the treaty.

Despite this impressive record, the OPCW faces a number of challenges as it embarks on the Syrian mission. (more…)

Book Symposium Investment Law: Comments on Ambach

by Howard Morrison

[Judge Howard Morrison is a Judge at the ICTY and the ICC]

Dr. Philipp Ambach deals with a topic that is contemporary and contentious.

In a world where the globalisation of most aspects of human life and endeavour is readily apparent it cannot be that case that those who engage in commercial, and often highly profitable, enterprises that have an impact upon the commission of serious crimes have no responsibility and affected communities no redress.

The author deals with the historical foundations of the concept of transnational corporate actors and notes the lacunae in the statutes of the UN ad hoc tribunals in respect of dealing with ‘legal persons’ as opposed to individual liability and potential guilt.

Dr Ambach points out that the exploitation of natural resources in conflict zones can easily further destabilize such situations and may be funding one or more parties to a conflict. Indeed if one examines the ongoing situation in the DRC it is arguable that the conflict is not parallel to such commercial activity but is generated by it and the territorial disputes that surround it. Resource wars, most particularly in a world of exponentially increasing human population, are with us and likely to increase, a situation not lost on the UN bearing in mind UN SC Resolution 1856 (2008). It is ironic that human rights may decrease proportionally with population growth.

The author examines how crimes against humanity and war crimes may be perpetrated by international corporate actors including in internal armed conflicts and cites relevant judgements of the ICTY and ICTR. He focuses on the war crime of pillage which has especial resonance, in particular noting that the ICC requires a qualitative requirement of personal or private use in contradistinction to the definition in the ad hocs.

Dr Ambach also examines genocidal liability and points out the potential although rightly noting the difficulty imposed by the requirement to possess a relevant specific destructive intent. He goes on to examine the crime of aggression and its current limitations.

The author makes a careful analysis of criminal responsibility distinguishing between those of corporate and individual actors  examining the legal requirements in differing national jurisdictions. He makes the important point that whilst there is yet to be a clear or common position in international law regarding the liability of international corporations for international crimes  there is a logical, if sometimes evidentially difficult, route top the liability of individual corporate officials and, perhaps, most obviously CEOs. It is important to remember that at its base level any corporation is simply an assembly of like minded individual pursuing a common commercial enterprise. The prosecution of just one senior director or executive sends a powerful message to the commercial world and should have practical and ethical consequences.

Dr Ambach goes on to examine modes of liability and discusses the vexed question of joint criminal enterprise as against co-perpetration. Making a specific analysis of Article 25 of the Rome Statute he goes on to point out the more obvious practical evidentiary obstacles and the position of an accessory by a virtue of being a corporate representative. It is important to examine Article 25 in all its parts. Dr Ambach takes the reader through the wording and interpretations with useful clarity.

He points out that the representatives of corporations may well have the sufficient mens rea to found liability under the statutes of both the ad hoc tribunals and the Rome Statute of the International Criminal Court. He makes the important point that the law relation to aiding and abetting such offences is far from clear and settled; indeed it is an aspect of the modes of liability that needs to be clarified and standardised to provide both a route to indictment and clarity for legitimate commercial actors.

This is an interesting and well thought through contribution by Dr Ambach which provides a very useful route into this important arena of international law for both the scholar and practitioner alike. He, in my view, rightly concludes that it is time to adjust the system on international criminal justice to the ‘modern landscape of perpetrators of the worst crimes in armed conflict’. This is a proposition difficult to argue against at any level. The reticence of some States to move this area of law forward in a decisive common international endeavour is, at the least, worrying for many tens of thousands of predominantly powerless citizens who are seriously, and too often fatally, affected by the activities of sometimes cynical corporate actors.

Book Symposium Investment Law: International Criminal Responsibility of Transnational Corporate Actors Doing Business in Zones of Armed Conflict

by Philipp Ambach

[Dr. Philipp Ambach is the Special Assistant to the President of the International Criminal Court. The views expressed are those of the author alone and cannot be attributed the International Criminal Court.]

The vast majority of armed conflicts of our times is, if not based on, at least closely tied with the economic interests of the belligerent parties or stakeholders behind the scenes. Business corporations which maintain trade relations with partner groups or entities that are, at the same time, engaged in an internal or international armed conflict may become directly or indirectly involved in the commission of serious crimes. Many international corporate actors provide financial resources to regional armed groups through the trade of goods that are the product of exploitation of natural resources in conflict zones, such as gold, diamonds, oil, uranium and other precious or strategic resources (so-called ‘resource wars’). These economic transactions often destabilize the region affected by armed conflict and even put oil on the fire of a looming conflict if the economic transactions serve to strengthen one or the other or both warring parties in the conflict.

Those economic actors involved may incur criminal liability if they are aware that their goods or funds serve to provide these armed groups with weapons or other means of warfare subsequently used against civilians. The crimes committed may amount to international crimes such as war crimes, crimes against humanity or genocide. In such cases, corporate actors may even come under scrutiny by the International Criminal Court (‘ICC’) for their participatory role in such crimes, if the individual criminal liability of the person(s) in control of such financial transactions on behalf of a corporate actor can be established.

International courts and tribunals have devoted little to no attention to the issue since the post-World War II criminal proceedings held against German businessmen who had been economically involved in the war (See the discussion by Nerlich). Also the UN ad hoc-Tribunals for the former Yugoslavia and for Rwanda, set up in the mid-nineties, and the ICC (which became operational in July 2002) have been set up to try individuals for international crimes; their statutes do not provide for criminal liability for corporate actors, as they are based on the principle of individual guilt for criminal conduct (nulla poena sine culpa). In contrast, companies have a corporate (not: individual) identity and are legally best described as ‘legal persons’ – to which the concept of individual guilt cannot easily be ascribed. However, even in larger corporations decisions on specific transactions are being taken by a rather small panel of senior stakeholders who are heading the corporation. Despite their remoteness from the crimes committed on the ground, individual criminal liability may attach to them if each individual only knew that the immediate effect of their business transaction would be the (continued) commission of crimes.

Individual criminal liability of representatives of corporations for international crimes can be ascribed broadly in two forms: either the company representative acts in close cooperation with his or her business partners as a co-author of crimes commonly envisaged; or the individual corporate actor’s contribution to the crime is of an auxiliary nature while the design and control over the crime is left to the business partner.

(more…)

Ryan Goodman Responds to War/Not War

by Kevin Jon Heller

Ryan has kindly responded to my post commenting on his claim that “arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict.” Unfortunately, our conversation has something of a Pinteresque quality: in claiming that I mischaracterized one of his central claims, he mischaracterizes my central claim. Ryan’s reply is predicated on the idea that I’m defending specific scholars against the idea that they have flip-flopped opportunistically regarding whether the US is involved in an armed conflict with al-Qaeda. I don’t know why he thinks that: he provided no examples of specific scholars flip-flopping in his post, and I did not defend any specific scholars against the claim of flip-flopping in mine. My primary point was simply this: because the existence of armed conflict, particularly non-international armed conflict, is fact-specific, context-dependent, and fluid, it is problematic to assume — as Ryan does, and as the USG alway has — that (in Ryan’s words) it would have been “a better path over the past twelve years” to take “a consistent position that one legal situation (war) or the other (not a war) exists” between the US and AQ than to take different positions on different aspects of that supposed “armed conflict” at different points of time. My secondary point, which built on the primary one, was that Ryan’s commitment to a unitary view of the supposed “armed conflict” between the US and AQ blinded him to the fact that it was impossible to infer anything untoward or opportunistic — “flip-flops” is obviously a word with negative connotations — from the fact that different scholars have taken different positions at different points in time on different aspects of that conflict. I stand by both points, and unfortunately, because of the misunderstanding between us, Ryan’s post addresses neither of them.

I also want to briefly address Ryan’s dismissal of my claim that, with regard to 9/11, “[o]ne attack, no matter how horrible, does not a (non-international) armed conflict make.” He disagrees, citing a 2003 article by Derek Jinks in which Jinks claims (1) that “the laws of war apply to all acts committed in an armed conflict even if committed prior to the point at which the ‘protracted’ threshold was crossed,” and (2) that NIAC exists even if the hostilities are not adequately organized and intense as long as “the state party to the hostilities interprets them as an ‘armed conflict (a subjective standard).” I have great respect for Derek’s work, but both points are well outside of the IHL mainstream. (And note that Derek repeated the second point today.)

I will try to write in more depth about Derek’s points soon. Suffice it for now to say that the only cite he provides for his first point does not actually support his argument. Here is what he says in the footnote, citing paras. 619-27 of the Trial Chamber’s judgment in Akayesu:

The jurisprudence of the ICTR is instructive on this point. The relevant “armed conflict” in Rwanda lasted a total of six months. Applying the ICTY definition, the tribunal held Common Article 3 applicable to the conflict, finding that the “armed conflict” existed from the initiation of the hostilities even if the existence of an armed conflict could only be discerned after the violence had become “protracted.”

That is not what the Trial Chamber held. It held only that “[i]n the present case, evidence has been presented to the Chamber which showed there was at the least a conflict not of a international character in Rwanda at the time of the events alleged in the Indictment” (para 627; emphasis mine). The events alleged in the indictment with regard to war crimes began on 7 April 1994, one day after President Habyarimana’s plane was shot down. By that time, the conflict had already begun between the RPF and FAR (see para. 109 of the judgment), justifying the Trial Chamber’s conclusion that a NIAC existed. More importantly, the Trial Chamber neither suggested nor implied that the attack on the plane — the Rwandan genocide equivalent to 9/11 — was itself part of the NIAC that began the next day. That was simply not an issue in the case.

Finally, it’s also worth briefly noting that Akayesu also contradicts Derek’s second point — that a state’s subjective belief a NIAC exists means that a NIAC exists even if the hostilities do not objectively qualify as armed conflict. The Trial Chamber specifically noted (para. 624) with regard to both Common Article 3 conflicts and Second Additional Protocol conflicts that “these criteria have to be applied objectively, irrespective of the subjective conclusions of the parties involved in the conflict.” But I’ll have more to say about that issue later.

Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

by Julian Ku

[See update at end of this post] Russia’s government has recently been talking up international law, so it will be interesting to see if they follow through with plans to charge Greenpeace activists with piracy.

MOSCOW — Russia opened a criminal case Tuesday against Greenpeace activists, accusing them of piracy for attempting to stage a protest on an Arctic oil rig. A Greenpeace spokeswoman called the accusation “absurd.”

Russian border troops seized the Greenpeace icebreaker Arctic Sunrise, along with its multinational crew of 30 activists and sailors, in a commando operation Thursday in the Barents Sea. The day before, the group had been foiled while attempting to raise a protest banner on a Russian oil drilling platform.

The facts remain pretty fuzzy, but I don’t think the Russian charge of piracy is quite as absurd as Professor Joseph Sweeney of Fordham, an eminent authority on admiralty law, makes it out to be.  Prof. Sweeney says in the article:

“They can’t be too serious about charging them with piracy,” said Joseph C. Sweeney, professor emeritus of international and maritime law at Fordham University Law School. “That requires stealing things and the intention of stealing things.”

But current definitions of piracy don’t require an intention for financial enrichment. Rather, as we noted back in February when the U.S. Ninth Circuit Court of Appeals upheld an injunction against anti-whaling protestors for attacking Japanese whalers, UNCLOS requires only that the attackers be acting for “private ends.”  As Kevin argued in his post, there is reason to believe that “private ends” does not include “politically motivated” acts (although Eugene Kontorovich has a good rebuttal of that point here).  In any event,  I think the traditional idea that piracy requires the goal of financial enrichment cited by Professor Sweeney is no longer widely held.

This means that the Russians can make out a colorable charge of piracy.  It also means that this theory will allow them to avoid questions about whether they were in the Russian exclusive economic zone, etc, since that shouldn’t matter if they stick with the piracy charge.  I expect the Russians will cite the Kozinski Ninth Circuit opinion, and if they do, this may be an important precedent for the development of modern piracy law.

[UPDATE: I stand by the analysis above, but I should note that 1) Eugene Kontorovich argues that this can't be piracy because they did not attack a "ship"; and 2) Russia's President Putin seems to have admitted this can't be piracy, although he maintains there is some other legal violation here somewhere since he alleges they tried to "seize the rig by force".]

A Reply to Goodman Re: War/Not War with Al-Qaeda

by Kevin Jon Heller

Ryan has a fascinating but problematic post today at Just Security in which he takes international-law scholars to task for opportunistically flip-flopping on whether the US is involved in an armed conflict with al-Qaeda. Here is the crux of his argument, taken from the post’s introductory paragraph:

Those arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict. In fact, a pattern has emerged over the years: opposition to different actions has alternated between arguing that the US is—or is not—involved in an armed conflict with Al Qaeda. It sometimes seems as though the preferred argument depends on how that threshold question—whether we’re in a war—affects the interests at stake.

I thought about writing a letter to the editor in response, but there is no guaranteed that Just Security would publish it — and there would be no way for anyone other than a Just Security member to join the discussion (Facebook and Twitter, as I’ve said, being inadequate media for dialogue.) So I thought I would reply on Opinio Juris and invite interested readers to comment here.

The basic problem with Ryan’s post is this: it conflates inconsistency of outcome and inconsistency of principle. In Ryan’s view, “war” with AQ is a simple binary: either the US has been or has not been at war with AQ. As he puts it:

What might have been a better path over the past twelve years and, more importantly, the way forward? At the very least: a consistent position that one legal situation (war) or the other (not a war) exists.

Ryan thus equates inconsistency of outcome with inconsistency of principle: if scholars have taken inconsistent positions about war/not war between the US and AQ, that must be because they have adopted inconsistent legal principles (opportunistically, no less) concerning the existence of war.

But that is a flawed understanding of international humanitarian law. The basic principle of conflict qualification, as I have pointed out many times before, is this: the existence of non-international armed conflict is a fact-specific determination, one that depends on the organization of the non-state actor and the intensity of hostilities between the non-state actor and a state. Conflicts evolve over time in terms of both organization and intensity, so peace can turn into NIAC and NIAC can turn into peace. And, of course, there are many other types of conflict: NIAC can turn into IAC (Libya when the West intervened on behalf of the rebels); IAC can turn into NIAC (Afghanistan with the toppling of the Taliban); IAC can turn into occupation and occupation can turn into NIAC (Iraq); IAC and NIAC can exist alongside of each other (which would be the case if the US started bombing Syria); and so on. The qualification matters, because the type of conflict affects everything from targeting rules to the detention regime (as Ryan well knows, having written very intelligently about detention of civilians).

Because conflict qualification, especially concerning the existence of NIAC, is an inherently fluid and fact-specific determination, it is impossible to infer inconsistency of principle with regard to the nature of the conflict between the US and AQ from inconsistency of outcome. It is completely possible to take a principled approach to conflict qualification and yet not conclude that “one legal situation (war) or the other (not a war) exists.” Indeed, I’d go further and suggest that the most unprincipled approach to conflict qualification is the one that the US has adopted. The USG has never made an effort to take conflict qualification seriously; it has simply assumed the existence of a global non-international armed conflict between the US and AQ since bin Laden “declared war” in 1996. (Hence the USG’s ability to claim with a straight governmental face that al-Nashiri was able to commit war crimes prior to 9/11 and prior to the AUMF.) The only principle behind the US position is expediency — the USG’s desire to have its “war” with AQ governed by IHL instead of by IHRL.

Let me be clear: I am not defending all of the scholars that Ryan mentions in his post. I have vast disagreements with some of them, and some of them may well be arguing opportunistically. But I suspect that, if we examined many of their positions, we would find that their supposed inconsistency actually reflects a good-faith effort to take conflict qualification far more seriously than the USG ever has. Specifically, I’m willing to wager that most of those positions were based on (1) a rejection of the idea that the US can be in a global NIAC with AQ, an idea that to the best of my knowledge no non-American scholar accepts; and (2) an insistence that although the US and AQ can be involved in NIACs in specific geographic areas — Afghanistan, Pakistan, Yemen, etc. — the existence of such NIACs has to not only be determined based on the situation on the ground (organization and intensity), but also needs to be re-assessed over time.

Let me end with a couple of examples. In “Turn 1,” Ryan chides Allain Pellet for claiming that it was “legally false” the US and AQ were at war after 9/11 and takes Antonio Cassese to task for calling it a “misnomer” to describe the US/AQ conflict as a “war.” Dig deeper, however, and both Pellet and Cassese were absolutely correct. Pellet’s article was written 10 days after 9/11, nearly three weeks before the US began bombing Afghanistan. At that point there was no armed conflict between the US and AQ. One attack, no matter how horrible, does not a (non-international) armed conflict make. And Cassese was not denying the possibility that the US and AQ could be involved in a non-international armed conflict; he was denying that the US and AQ could be involved in a “war” — a term that has always been reserved for armed conflict between states. So his claim, too, was accurate.

Emerson is right — “[a] foolish consistency is the hobgoblin of little minds.” The problem is not with international law scholars who have “flip flopped” on the qualification of the armed conflict between the US and AQ; the problem is with the USG’s insistence that it has be either/or. When it comes to IHL, very few complex legal issues admit of simple binaries.

Eric Posner on the Coming Death of the ICC

by Kevin Jon Heller

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.

If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.

Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity…

Brief Thoughts on the Russia-US Deal (and No, I’m Not in Favor of Force)

by Kevin Jon Heller

On both twitter and the blog, readers seem to have inferred from my previous post that I’m somehow disappointed that the US-Russia chemical-weapons deal does not automatically allow force for noncompliance. I suppose that’s my fault; I tend to assume when I write that readers have at least some prior knowledge of my politics. So let me be clear: I am categorically opposed to the US using military force against Syria in the absence of Security Council authorization. (And I’d be very skeptical of it with authorization, but at least it wouldn’t be illegal.)

So what do I think of the US-Russian deal? For what it is, and assuming Assad complies, it seems like a good idea. Anything that reduces Syria’s stockpiles of chemical weapons is positive. Although I don’t think Assad ordered the Damascus attack, I have no doubt he would use chemical weapons if (as seems unlikely at that this point) the rebels ever threatened to overthrow his regime. And of course someone in the Syrian military used chemical weapons, so it would be great if that could not happen again. I also have little doubt that the rebels would use chemical weapons if they could, so anything that limits that possibility, as well, is a good thing. I also hope that the deal will put pressure on other states in the region — Israel and Egypt, in particular — to ratify the Chemical Weapons Convention and destroy their own stocks of the weapons.

That said, my central critique of the US obsession with chemical weapons still stands: they are only a very minor part of the conflict. The real problem is the systematic violence the Assad regime has unleashed against its own people with conventional weapons — and the equally unconscionable, if less intense, violence inflicted on those same people by the rebels. This deal not only does nothing to address that violence, it significantly distracts attention from it. When was the last time the media focused  on anything in Syria other than chemical weapons? Just this week, Human Rights Watch published reports on a mass execution of 248 people by Syrian forces in May and on the Syrian military’s widespread use of cluster munitions, which are no less indiscriminate than chemical weapons, while the Commission of Inquiry published a report documenting the Syrian military’s numerous — and deliberate — attacks on medical facilities. How much attention have those reports received in the media?

My hope, of course, is that a successful resolution to the chemical-weapons problem will free up the relevant parties, and the media, to focus on the need to find non-military ways to pressure the Assad government and the rebels to stop killing innocent civilians. But I’m not holding my breath. I imagine 95% of the coverage we will see in the coming months will focus on whether Syria is actually complying with the US-Russian deal. In other words, business as usual. Meanwhile, Syrian civilians will continue to be killed through conventional means in large numbers.

Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?

by Geoffrey Corn

[Geoffrey Corn is the Presidential Research Professor of Law at South Texas College of Law in Houston. His prior articles addressing war powers include: 123.]

It seems almost abundantly clear that President Obama has resolved the question of “what if” the United Nations Security Council is unwilling to authorize military action against Syria for use of chemical weapons. The U.S. will act without such authorization, unilaterally if necessary. Why? Well, we know there are numerous overt and sub rosa motives being discussed, but ultimately because of a U.S. conclusion that the UNSC has proven ineffective. To bolster the credibility of this assertion, which is obviously dubious to certain other permanent members of the Security Council and countless other states, international law experts, and observers, the President has asked Congress to endorse his planned punitive strike with express statutory authorization.

Many have hailed this decision to submit the matter to Congress as a positive manifestation of the President’s respect for the Constitution’s allocation of war powers. But in reality, while Congress may be developing what it views as an authorization to use military force, this is not exactly how the President views their effort. Instead, he, like predecessors who have also sought express statutory authority for military actions, views it much more as support for the use of military force. Just as President George H.W. Bush emphasized when he, in 1991, requested congressional authorization to use military force to implement UNSC Resolution 678 and oust Iraqi forces from Kuwait, President Obama insists that while he wants this authorization, he does not need it. Of course, President Obama assertions of ‘desire’ versus ‘necessity’ follow the pattern of all modern presidents. However, by seeking authorization, the President does seem to be assuming a greater degree of risk than had he acted on his own asserted Article II authority. Thus, ironically, while the request for authorization will enhance strategic and constitutional legitimacy should Congress support the President, the risks associated with a down vote invokes the parable that, “it is easier to seek forgiveness than ask for permission.”

So, “what if” a majority of at least one house votes against his request, preventing enactment of an AUMF?  (more…)

Syria Insta-Symposium: Mark Kersten–Whose R2P Is It? The Responsibility to Protect Post-Syria

by Mark Kersten

[Mark Kersten is a PhD candidate in International Relations at the London School of Economics and author of the blog Justice in Conflict. You can find him on Twitter @MarkKersten]

Who would have thought that the most pressing question regarding the Responsibility to Protect in 2013 would be: what is it? The answer to this question is as unclear today as any time in R2P’s political life. It might even be less clear.

In the midst ongoing questions regarding the legality and legitimacy of direct military intervention in Syria, scholars and observers have passionately rehashed the main tenets of R2P, defending or castigating it depending on their political persuasions and which interventions they’ve cut their political teeth on. At the core of their debate is that pesky, simple question: what, exactly, is R2P?

The cacophony of reactions to plans of a potential military intervention in Syria by the US (perhaps with some coalition of powers) has been a déjà vu of the year 2000. There has been a lot of talk about reconciling international commitments to preserve and protect sovereignty with obligations to preserve and protect inalienable universal human rights. All of a sudden, the phrase “humanitarian intervention” is back with a vengeance. Echoing Richard Goldstone’s famous judgement regarding NATO’s intervention in Kosovo, many are suggesting that a military intervention without UN sanction being “illegal but legitimate”. Of course, it was out of this rather curious and, for many, frustrating proposition as well as the inability to reconcile universal human rights with the sovereign prerogatives of states, that the concept of R2P was born. Which begs the question: how did we get back to square one?

The early- to mid-2000s helped establish not one R2P but multiple R2Ps and that these have never been sufficiently reconciled. There are two dominant and distinct versions of R2P at play. First is R2P as a package of norms. This package of norms represents liberal cosmopolitan convictions, namely that the commission of mass atrocities against individuals is of concern to all other human beings and that sovereign inviability of states is conditioned upon their respect of individual rights and freedoms. R2P as a package of ideals is broadly appealing. NGOs, activists and key normative entrepreneurs like the UN Secretary General have been working tirelessly for over a decade to talk these norms into reality. But R2P in this context is also sometimes fuzzy. This has been made clear over the question of who can legitimately authorize R2P. If R2P is a set of principles, then it can be authorized outside of the UN Security Council. After all, the International Commission on Intervention and State Sovereignty (ICISS) stated that, in the situation where the Security Council is deadlocked, intervention by a coalition of states or a regional organization would be appropriate. Legally, however, this is highly dubious.

Distinct from R2P as a normative prescription for world politics is R2P as a legal doctrine. It is less fuzzy and rests primarily upon the two paragraphs in the World Summit Document, accepted by the UN General Assembly in 2005. With the experience of Iraq looming over UN member states, virtually none were inclined to support granting authority to invoke R2P outside the Security Council. And so they didn’t. Hence, whatever its merits, R2P can only lawfully be invoked through the Security Council.

R2P as law and R2P as a set of normative ideals are often in tension. But it is also something else. R2P has emerged as a language with its own vocabulary. The various reports and commissions, UN resolutions, nation state policies, and diplomatic statements are R2P’s lexicon. But as a language, R2P is a double-edged sword. All language can, after all, be used and abused. R2P as a vocabulary provides the invaluable discursive space within which any intervention is weighed against its ability to protect civilians. But it also allows its defenders and its critics to abuse the concept by pretending that R2P is something that it isn’t – or at least not yet.

Proponents of R2P have largely been uninterested in resolving the nature and tensions inherent between the different conceptions of R2P. Instead, many have used R2P language dressed up as R2P law in order to propagate their own desired version of the doctrine. To do so, they cherry-pick from passages in the ICISS Report, UN Secretary General Reports, and previous interventions.

The ultimate aim for R2P proponents is to turn the conceptual doctrine into a legal doctrine and thus to establish it as an integral part of a liberal cosmopolitan international legal landscape. There has been a concomitant belief that so long as R2P keeps chugging along, receiving endorsements in UN reports and being put in motion in situations like Libya and Ivory Coast, then the concept’s trajectory would guide it to the promise land of legal stature. But this trajectory is very unlikely to be fulfilled if the tensions within different conceptions of R2P aren’t resolved.

Importantly, it won’t be the ‘realists’ against ‘liberal internationalists’ who will diminish the concept. It will be liberal internationalists against themselves. Look closely. The most vicious fight today over R2P is not between proponents and critics of R2P but between proponents of the concept who have fundamentally different visions of what R2P is and should be.

As a result, non-intervention into Syria would be neither a success nor failure of R2P. It would be both. It would be a failure because the type of suffering of Syrian citizens (since the beginning of the civil, not just since the chemical weapons attack) is precisely why R2P was created in the first place. But it would also be seen as a success because if R2P is understood as a legal doctrine with resultant obligations on the part states, then it can only authorized by the Security Council. Intervention into Syria without a UN mandate might be moral and it might be imminent. But whatever its enactors suggest, it’s not the legal version R2P, it’s the normative dream of R2P.

The case of Syria could actually save R2P by helping to decipher what it is and, more importantly, what it should be. R2P desperately needs conceptual consistency if it has any hope in emerging as an accepted norm in international relations. But if R2P is simultaneously a fledgling legal doctrine, a package of normative prescriptions as well as a widely used and abused language, it risks meaning everything to everyone and thus meaning very little at all – especially to those in whose name it was supposedly established. If this is R2P’s destiny, for every future Syria we will be doomed to debate what R2P is and isn’t at cross-purposes and ad nauseum.

Syria Insta-Symposium: Ezequiel Heffes and Brian E. Frenkel–The Decision-Making Process of the R2P Doctrine: Towards New (Old) Paths in the Use of Force in International Law

by Ezequiel Heffes

[Ezequiel Heffes and Brian E. Frenkel are LL.M. candidates at the Geneva Academy of International Humanitarian Law and Human Rights and Teaching Assistants of Public International Law at the University of Buenos Aires, School of Law. This post reflects partial conclusions of our ongoing research at the University of Buenos Aires’s Law School as members of the project “Beyond the Jus In Bello? The Regulation of Armed Conflicts in the History of Jus Gentium and the Limits of IHL as an Autonomous Regime Before other Branches of a ‘Fragmented’ Public International Law.”]

In the last few years the general prohibition on the use of force enshrined in Article 2 (4) of the UN Charter has been approached differently from the classical view. In situations of mass violations of human rights and international humanitarian law, the responsibility to protect (R2P) and humanitarian intervention have begun to emerge as possible exceptions. As Jennifer Trahan correctly points out, from a legalistic point of view the UN Charter only allows intervention in two scenarios: UN Security Council authorized action, and the exercise of the “inherent right of individual or collective self–defence if an armed attack occurs” by one State against another State (Article 51 of the UN Charter).

In consequence both, R2P and humanitarian intervention, would be outside any legal framework. But perhaps, and only perhaps, by analyzing the use of force in international law from a different perspective, new proposals could be taken into account. In an earlier post on this blog, André Nollkaemper has presented the possibility that strikes could be part of a process of reconstruction of the law on the use of force, but what does this mean? An alternative view of the existence of the prohibition of the use of force in international law has to be approached.

Rosalyn Higgins has postulated in the past that international law is a legal decision–making process, i.e., it is a continuing process of authoritative decisions. This idea considers that rights and obligations of entities are created by participants –and not by subjects of international law, a notion that according to her has no functional purpose– and determined not by reference to the trend of past decisions, which she calls ‘rules’, but through a continuous and dynamic process of decisions made by authorized persons or organs. This participation, however, would depend in the end on their factual power to do so in order to be accepted by other established participants of that same system. Higgins affirmed in the same sense that if international law was only a set of rules, then it would be unable to contribute to a changing political world. This rejection means that “those who have to make decisions on the basis of international law –judges, but also legal advisers and others– are not really simply ‘finding the rule’ and then applying it. This is because the determination of what is the relevant rule is part of the decision – makers’ function; and because the accumulated trend of past decisions should never be applied oblivious in the context”. Precisely, Julian Ku raised a similar matter when he posted here that President Obama affirmed that international law is a “factor in the decisionmaking process in the U.S.” since U.S. officials were looking at Kosovo as a precedent for an intervention. The main issue therefore seems to be concerning the prohibition of aggression, is it possible to consider that it is only a set of rules? Could it be changed through the abovementioned process? Higgins answered these questions affirming that even when its prescription is a necessary rule of coexistence, it still must be taken into account the fact that it is “the practice of the vast majority of states that is critical, both in the formation of new norms and in their development and change and possible death”. This means that the foresaid prohibition could change without necessarily loosing its strength, and R2P and humanitarian intervention could be allowed only with the States’ consent. From a theoretical perspective this seems difficult, but not impossible.

Higgins’s theory is certainly susceptible to objections. Roland Portmann for instance affirms that there is a confirmed tendency today that supports the idea of having general rules of international law. Even though this could be taken into account, new paradigms shall be explored including other notions of the above–mentioned use of force regime having in mind that today the law created to maintain international order is not working, or it is working but only in a limited sense since it is not persuading some States to not use the force.

In the context of R2P, by adopting the World Summit Outcome Document, the UN instead of participating in this decision–making process decided to enclose possible new paths within the Charter (Secretary General Report “Implementing the responsibility to protect”; General Assembly Resolution 63/308; SC Resolutions 1674, 1894, among others). It decided then to incorporate all of these legal constructions but nonetheless expressly included the intervention and approval of the Security Council as a requirement. At that time none of the P–5 criticized this. On the contrary, they reaffirmed it (Resolution 1674/2006 unanimously adopted) perhaps as a way of legitimizing their delegitimized position. Nowadays, facing situations where SC action is blocked because of the veto of one or more P–5 members, the others are looking to go back to an alternative view outside Article 2 (4). This would be supported by Higgins’s design, which seems to be the most suitable guideline for the dynamic processes of the international community. It could be said therefore that certain States are continuously contributing in the creation of new international rights and obligations in order to develop new paradigms, either because they understand that the 1945´s does no longer solve current issues, or because it does not serves their interests. In any case, the struggle on the decision-making process cannot be denied. The changes on the UN conception about the R2P doctrine, the division within the Security Council and the veto possibility, the returning to old arguments, they all prove that the Article 2 (4) is no longer considered “sacred” and that there are some intentions to make a change.

Syria Insta-Symposium: Otto Spijkers–Can States Stand Idly By?: Bystander Obligations at the Domestic and International Level Compared

by Otto Spijkers

[Otto Spijkers is an Assistant Professor of Public International Law at Utrecht University]

It is interesting to compare the obligations of States at the international level with the obligations of individuals at the national level. Such a comparison is also interesting when it comes to the obligations of other States to intervene in Syria. In this post I will suggest some lessons we can learn from domestic experience.

Article 450 of the Dutch Penal Code states that any person who sees someone in immediate mortal danger, must provide support, if he can do so without endangering himself or others. If he refuses to do so, and if the death of the victim follows, the bystander will be punished with imprisonment not exceeding three months. In many other States, standing idly by when someone is in immediate mortal danger is equally a criminal offense. Does such a rule exist also at the international level? It seems safe to say that at the moment there is no general obligation of bystander States to intervene in certain predefined types of events, except perhaps in some extreme cases such as genocide. But should it exist?

Article 450 was included in our Penal Code in 1880. Inclusion of this article was defended at the time with the argument that the “popular consciousness” was annoyed by the impunity of people standing by when fellow citizens were dying.  Feldbrugge, who analyzed the theoretical foundations of similar provisions in domestic criminal legislation all over the world (see Feldbrugge, ‘Good and Bad Samaritans,’ in the American Journal of Comparative Law, Vol. 14 (1966)), concluded that “many legislators have come to realize that certain behavior with regard to persons in danger is so offensive to the moral feelings of a community that the interference of criminal law is called for.” Clearly, a similar argument can be made to recognize a legal responsibility to intervene at the international level: doing nothing in extreme cases is offensive to the moral feelings of an international community, and thus intervention should be a legal obligation. As “extreme cases” requiring bystander State intervention, we could think of the commission of serious breaches of obligations owed to the international community as a whole (erga omnes), but this is not the place to explore this issue in great detail.

States that do not have a similar provision in their criminal code – essentially the Anglo-American legal systems – believe that the law should not enforce altruism on people. Similarly, when the Dutch legislator discussed the article in 1880, a minority believed that it was better to leave it to the indignation of the public than to punish the perpetrator as lawbreaker. You cannot legally oblige people to be a hero, so it was said, and put them in prison if they refuse. Another argument against including an article like 450 Dutch Penal Code is that in extreme cases, doing nothing can always be qualified as the commission of a crime by omission, or as providing aid or assistance in the commission of the crime (complicity). Applying this to the international situation, it seems inappropriate to regard all States that “do nothing” as faciliators of the wrongful act in such strong sense. There is thus a need to oblige bystander States to intervene.

Although intervening might be the “right thing to do,” there are good reasons not to intervene.  Rescue operations might end badly, with both the victim and the rescuer seriously harmed. And even if a rescue is successful, nobody is really any better off than before the victim got into trouble. The victim will probably have suffered some harm already, and the rescuer might be traumatized or physically hurt because of the rescue. A rescue attempt can also be very costly. And thus, the bystander is in an unenviable position and it is remarkable that anyone should ever intervene at all. The same reasoning can be applied at the inter-State level: the intervening State is seldom rewarded for its intervention, even if the intervention is entirely successful, which is rarely the case at the international level.

In order to commit the offense of Article 450 Dutch Penal Code, the bystander must have had a certain awareness of the danger the victim was in. Since intervening is not an attractive option, most bystanders will do their best to interpret what appears to be a victim in trouble as, in fact, a normal course of events. The indecisiveness of other bystanders – and bystanders can remain indecisive for a very long time – is often interpreted as a decision not to intervene. If others appear to have decided not to intervene, it is easier to do the same. This phenomenon is referred to as “pluralistic ignorance.”  Clearly, this phenomenon occurs also at the international level. If all other States are hesitant to intervene, then a particular indecisive State will follow what it regards as the majority opinion: do not intervene.

If the event is interpreted as the kind of event which obliges the bystander to intervene, the bystander has to accept that it is his personal responsibility to intervene. Once again, one must keep in mind the unattractiveness of intervention. And thus the bystander will still try to find justifications for not-intervening. One justification for not intervening is to convince oneself that the victim somehow deserved it, or was asking for it.  In general, this justification for not intervening is not accepted. As Feldbrugge concluded, “where the victim himself is to be blamed, entirely or in part, for having placed himself in a dangerous situation, there is no fundamental change in the duty of potential rescuers.”  The argument that the population in Syria does not deserve to be rescued because it brought itself in the position it is now in is thus not a good argument.

Feldbrugge noted that the ability – and thus responsibility – to help depends on the bystander’s nearness to the danger and his ability to effectively intervene. This would make neighboring States (Turkey, Members of the League of Arab States), or particularly powerful States (USA), more responsible than others (e.g. the Netherlands).  An interesting question is whether the perpetrator (Syria), after having wounded the victim (its own population), has a duty to provide assistance to that victim. Although such an obligation seems awkward, it also seems unfair to suggest that the perpetrator can leave his victim to die when innocent bystanders have a legal obligation to assist the victim. Feldbrugge had an interesting solution to this dilemma: “where the danger to the victim has been caused intentionally [as in the case of Syria, presumably], the lesser offense of failure to rescue is “absorbed” by the greater offense of attempted homicide.”

Finally, if the bystander has decided to intervene, he must consider the appropriate type of assistance. Feldbrugge noted, on the consequences of “negligent execution of the duty to rescue,” that “the decisive factor in this respect is the rescuer’s motivation.” In other words, a bystander cannot be blamed for a very clumsy and thus failed rescue attempt, as long as he seriously meant to rescue the victim. Of course, Dutch people immediately think of the role of Dutchbat in Srebrenica in 1995. Indeed, it seems unfair that a failed rescue attempt can traumatize a nation for decades, whilst States that did not even try to rescue the victim (the Bosnian Muslims in Srebrenica) have no such trauma.

True enough, Article 450 of the Dutch Penal Code only asks of the bystander that he makes a serious attempt to rescue the victim. But nobody likes to make a fool of himself in public. In the words of Latané and Darley: “the bystander to an emergency is offered the chance to step up on stage, a chance that should be every actor’s dream. But in this case, it is every actor’s nightmare. He hasn’t rehearsed the part very well and he must play it when the curtain is already up. The greater the number of other people present, the more possibility there is of losing face.” (Source: Latané & Darley, The unresponsive bystander: why doesn’t he help? (1970), p. 40.) When the whole world is watching, the possibility of “losing face” does play a role. I am sure it also plays a role in Obama’s thinking about whether to intervene or not.