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Non-State Actors

Syria Insta-Symposium: Jennifer Trahan-The Legality of a U.S. Strike on Syria

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor, NYU Center for Global Affairs, chair of the American Branch of the International Law Association International Criminal Court Committee, and member of the American Bar Association 2010 ICC Task Force]

As the U.S. prepares, with or without coalition partners, for a potential military strike against the Bashar al-Assad regime in Syria , it is important to consider the legality of such a strike as a matter of domestic and international law.  At the international level, with a U.N. Security Council resolution, such action would be clearly legal.  Without such a resolution, the law is in somewhat of a grey area, but the legality is supportable.

The “responsibility to protect” doctrine, developed in recent years, makes clear that the international communitydoes have a responsibility to protect a people in peril from grave atrocity crimes.  Recent formulations of the “responsibility to protect” doctrine suggest that large scale war crimes and/or crimes against humanity — acknowledge to have occurred in Syria — are such atrocity crimes.

While the clearest path to utilizing forceful intervention under the “responsibility to protect” framework is through Security Council authorization (as happened in the case of Libya ), tragedies such as genocides in Rwandan and Darfur dramatically pose the question:  what should the world do when the votes are not there at the Security Council level?  Should one simply allow massive humanitarian tragedies to be inflicted by a regime on its own people absent a Security Council resolution?  Does one really need to wait for recalcitrant China and Russia (permanent members of the Security Council possessing veto power) to do the right thing?

A legitimate argument exists that even when the Security Council does not authorize humanitarian intervention, it is arguably still permissible.  As formulated by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, while the decision to intervene should be made by the Security Council, if the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation.”

Clearly, intervention through a coalition of partners, such as a NATO coalition (as occurred with Kosovo) lends greater legitimacy (although even that is technically not sufficient under a strict reading of the U.N. Charter).  But when a broad coalition or regional actor is unavailable, does that mean that countries must stand by and let mass atrocities, such as the use of chemical weapons (a necessarily indiscriminate weapon), occur?  The answer is arguably no.

While the U.N. Charter only clearly permits intervention in two scenarios:  U.N. Security Council authorized action and article 51 individual or collective self-defense, the Charter also contains a clear commitment to human rights.  Committing mass atrocity crimes is about the clearest violation of human rights that one can get.  Thus, while humanitarian intervention is not clearly legal under the U.N. Charter, it is not clearly illegal either.  We are in a grey area where the demands of morality and those of international law are not yet fully harmonized in a clear manner.  Should thousands more die while we wait for international law (which can take decades to form) to catch up to where it should be?

We might have not reached this point had Assad regime members (as well as others actors in Syria ) felt much sooner that the international community was scrutinizing their actions.  This could have happened through a Security Council referral of the situation to the International Criminal Court.  Unfortunately, that has not happened, and any chance to deter crimes through a referral has been squandered.

While the U.S. contemplates a strike, important criteria for consideration include those formulated by the Secretary-General’s High-Level Panel on Threats, Challenges and Change.  Namely, last resort:  “Has every non-military option for meeting the threat in question been explored . . . ?”  Proportional means:  “Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question”? Balance of consequences:  “Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?”

The Administration is facing a difficult choice as the U.S. contemplates moving ahead, hopefully along with coalition partners such as France .  Yet, a flexible reading of international law does not demand that countries stand impotent in the face of over 100,000 fatalities and the use of chemical weapons.

Syria Insta-Symposium

by Jessica Dorsey

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the ongoing situation in Syria. We also are going to follow in our own footsteps from our Kiobel symposium, by inviting young academics and practitioners to submit guests posts for possible publication.

We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new and emerging voices. So if you want to write a guest post for Opinio Juris about Syria of approximately 500 to 1000 words, please do so in the next couple days and send it to me and An Hertogen at opiniojurisblog [at] gmail [dot] com. Our editorial team will review the posts and publish as many as we deem appropriate.

Emerging Voices: Drug Cartels, Bacrim, and Other Militarized Criminal Organizations–A New Role for the Inter-American System?

by David Attanasio

[David L. Attanasio is a professor of international law at the Jorge Tadeo Lozano University in Bogotá, Colombia]

The last few years have seen a rapidly changing landscape for serious human rights violations in the Americas.  Instead of government abuses committed in the alleged fight against left-wing guerilla groups, militarized criminal organizations now perpetrate many, if not most, serious human rights violations (or what would be such violations were they committed by state actors). While the Mexican drug cartels operating throughout Mexico and Central America are well known, Colombia has a serious problem with similar groups, the so-called Bacrim (criminal bands).  Although less known, Bacrim groups are representative of the regional trend, violently seeking control of drug production and trafficking routes—among other activities.  Reflecting their national significance, the Colombian Constitutional Court recently held that Bacrim victims have the right to reparations similar to those for other armed conflict victims.

The contentious case mechanism of the Inter-American Human Rights system has been an important tool to combat serious human rights violations, as individuals can use it to denounce specific state human rights violations.  But, given the new dynamics of human rights violations in the hemisphere, the mechanism must adapt to the sharp increase in violations committed by non-state, criminal actors.  To do so, the system should embrace a role as a secondary guarantor of human rights.   It should leave states with the primary responsibility for stopping violations by these non-state actors but should review state efforts to protect in a broad range of circumstances.  The dynamics of Bacrim indicate that there is a large risk of inadequate state protection against such militarized criminal organizations, a risk the Inter-American system could help to correct.

Adapting the contentious case mechanism to the changing dynamics of serious human rights violations is difficult because it is designed primarily to enforce state compliance with human rights norms: contentious suits can only be brought against states.  This mechanism is not directly useful to combat violations by non-state actors like militarized criminal organizations.  However, the Inter-American Court has recognized a state obligation to protect since its first merits decision in Velasquez Rodriguez v. Honduras, providing a potential way for the system to engage with non-state human rights violations. The system could adapt to become a secondary guarantor of human rights against militarized criminal organizations by ensuring that states adequately protect against the threats they pose.  While the system would not (and cannot) directly enforce human rights norms against these groups, it could require states to aggressively protect against them.

Unfortunately, current Inter-American Court doctrine allows review of state protection efforts only in a small set of cases: state officials must have known of (or should have known of) a particular threat to the non-state actor’s victim (or a small group to which the victim belonged).  But Bacrim and other militarized criminal organizations are by nature clandestine, at least to an extent. States currently can escape international review and responsibility even when their officials knew that a violent group was operating in a given area and failed to act with available resources.  The narrowness of current review prevents the system from adequately ensuring that states protect against these organizations. If the system is to be an effective guarantor of human rights against Bacrim and similar groups, review must be allowed in a broader set of circumstances.  For example, the mere knowledge of group presence and activity in a particular region should be sufficient for reviewing the measures that local state security forces took to reduce group activity, even when the state lacked knowledge of a threat to the specific victim.

It is important for the Inter-American system to take on this role as a secondary guarantor of human rights because of the substantial risk that states will take inadequate measures to protect against militarized criminal organizations.  Action by the Inter-American system could defuse some of this risk.

The nature of these groups and of the human rights violations they commit creates a risk of inadequate state protection for a number of reasons.

Fundamentally, these organizations are not revolutionary or even particularly political in nature, characteristics that might otherwise…

Could the Security Council Refer Only Assad’s Use of Chemical Weapons?

by Kevin Jon Heller

An interesting discussion recently broke out on twitter about whether the Security Council could refer the Syrian government’s use of chemical weapons — and only the Syrian government’s use of chemical weapons — to the ICC. Instead of breaking my thoughts into 60 tweets or so, I thought I’d be old-fashioned and write a blog post instead.

The issue raises a number of difficult and important questions. The first is whether such a narrow referral would qualify as a “situation” under Art. 13(b) of the Rome Statute, which provides in relevant part that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if… (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” Interestingly, the answer may depend on the theory of interpretation we adopt — an issue that Dapo Akande and I recently debated herehere, and here. Read literally, Art. 13(b)’s “one or more of such crimes” language would seem to permit the Security Council to refer crimes committed only by Syrian government using chemical weapons – the referral would simply have to include at least one crime within the Court’s jurisdiction.

The literal interpretation of Art. 13(b), however, is completely inconsistent with the provision’s drafting history. All of the major scholarly works on Art. 13(b) agree that the drafters did not intend to permit the Security Council to refer crimes committed solely by one side of a conflict. Typical in this regard is Bill Schabas and Sharon Williams’ entry in the definitive Triffterer article-by-article commentary on the Rome Statute:

Indeed, this is why the concept of referral in the Rome Statute relates to “situations” rather than “cases.” The language was adopted specifically to avoid the danger of one-sided referrals, which could undermine the legitimacy of the institution.

Antonio Marchesi makes a similar point in the Triffterer book with regard to, Art. 14, which includes the same “one or more of such crimes” language with regard to State referrals:

Although the proposal that the object of State complaints should be “situations” rather than specific crimes was well-received by the participants in the preparatory process, concern was expressed that the complainant State should not be able to “limit the referral to include crimes committed by one side to a conflict in a situation… or restrict the nationality of those who can be investigated and prosecuted. In other words, “the prosecutor must be free to investigate all persons who may be responsible for crimes within the Court’s jurisdiction in a situation.”

There are, of course, ways to avoid the debate between literal and intended meaning…

What’s So Terrible About Chemical Weapons?

by Kevin Jon Heller

Yes, the title is intended to be provocative. And yes, I think chemical weapons are indeed terrible. But statements like this — offered by John Kerry in thinly-veiled support for using military force against the Syrian government — still give me pause (emphasis mine):

What we saw in Syria last week should shock the conscience of the world. It defies any code of morality. Let me be clear. The indiscriminate slaughter of civilians, the killing of women and children and innocent bystanders by chemical weapons is a moral obscenity. By any standard, it is inexcusable. And despite the excuses and equivocations that some have manufactured, it is undeniable.

I don’t get it. Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons? Why should the US be willing to intervene if chemical weapons kill 1,000 civilians, but not if ordinary weapons kill tens of thousands? I’m with Stephen Walt concerning the US’s apparent belief that the Syrian government did not cross the (blurry) red line until it used chemical weapons:

But why? Nobody should be pleased that Assad’s forces (may) have used chemical weapons, but it is not obvious to me why the choice of weapon being used is a decisive piece of information that tips the balance in favor of the pro-intervention hawks. It’s been obvious for decades that the entire Assad regime was nasty, and it’s been equally clear that the government forces were using lots of destructive military force to suppress the opposition. How else did 70-80,000 Syrians die over the past two years? It’s not as though Assad has been acting with great restraint and sensitivity to civilian casualties and then suddenly decided to unleash sarin gas. Does it really matter whether Assad is killing his opponents using 500-pound bombs, mortar shells, cluster munitions, machine guns, icepicks, or chemical weapons? Dead is dead no matter how it is done.

If there was significant reason to believe that the attack near Damascus was merely the tip of the iceberg — that the Syrian government intended to launch a full-scale chemical attack in the near future, one that could kill hundreds of thousands of civilians — I could understand the obsession with chemical weapons. But I have not seen any evidence of that. And in any case, I’m not sure why we are supposed to believe that the Syrian government would not respond to US military intervention by using chemical weapons even more indiscriminately. (As an aside, why is it that dictators are expected to fight to the death in order to avoid being prosecuted by the ICC, but are expected to roll over meekly in the face of US military might?)

It’s also worth noting that US outrage at Syria’s use of chemical weapons is more than a little hypocritical. Just yesterday, FP.com published a blockbuster article detailing — on the basis of declassified CIA documents — the US’s knowing support for Saddam Hussein’s use of chemical weapons against Iranian soldiers during the Iran-Iraq War. Apparently it is only unacceptable to use chemical weapons when you’re an enemy of the US; if you’re an ally (as Saddam was at that point), they’re fine.

The bottom line, it seems to me, is this: either the US believes in unilateral humanitarian intervention or it doesn’t. If it does, it should have been willing to use militarily force in Syria long ago, when tens of thousands of civilians were being indiscriminately slaughtered by the Syrian government. If it doesn’t, the fact that civilians are now being indiscriminately slaughtered by the Syrian government through the use of chemical weapons should be irrelevant.

Murder by chemical weapons is terrible. But so is any kind of murder. As Walt says, “[d]ead is dead no matter how it’s done.”

Syria, Chemical Weapons, and the Incoherence of the VCLT

by Kevin Jon Heller

My friend Dapo Akande has a superb post at EJIL: Talk! discussing whether the ICC could prosecute the use of chemical weapons by the government in Syria. I agree almost entirely with Dapo’s analysis, but I do want to offer a couple of thoughts about his discussion of the Vienna Convention on the Law of Treaties:

The argument that chemical weapons are not covered by Art. 8 is thus based on the removal of the explicit prohibition and the fact that it was thought that it would be the annex to the Statute that would set out those weapons like chemical weapons that are deemed are indiscriminate and cause unnecessary suffering.

However, it is erroneous to interpret a treaty primarily by reference to drafting history. Under Art. 32 of the Vienna Convention on the Law of Treaties, the drafting history is only to be used as a supplementary or secondary tool of interpretation to resolve ambiguity. As Art. 31 of the VCLT indicates and ICJ has stated, the interpreter must start with the text of the treaty. Thus one must start by looking to see what the words of the treaty as agreed actually means.  It seems to me that the words “poison or poisoned weapons” and more clearly “asphyxiating, poisonous or other gases” would cover a variety of chemical weapons. The latter wording is taken from the Geneva Gas Protocol which was intended to cover chemical weapons. Although the Chemical Weapons Convention of 1993 does not use this wording (referring instead to “Toxic chemicals”), this does not mean that the wording of the ICC Statute does not extend to chemical weapons. Although weapons not in the form of a gas are not covered by para xvii, it is also arguable that ‘poison’ and ‘toxic chemicals’ are largely synonymous.

I have no doubt that Dapo is correctly applying the VCLT. But that means — as I have long thought — that the VCLT’s approach to treaty interpretation is incoherent. Treaties are an expression of sovereign will; states are free to draft treaty provisions however they want, subject only to peremptory norms of international law, and no state is required to ratify a treaty that does not reflect its values, even one it played an important role in drafting. States should thus be able to expect that the VCLT will not lead judges to interpret critical treaty provisions in a manner that runs directly counter to their intended meaning.

Yet that is precisely what the VCLT seems to allow with regard to chemical weapons. No one contests the idea that numerous states in the Global South would not have ratified the Rome Statute if Art. 8 had directly criminalized the use of chemical and biological weapons (the poor man’s WMD), but not nuclear weapons (the rich man’s WMD). That is why the explicit prohibition on their use was removed during the drafting of the Rome Statute. So what possible justification could there be for the VCLT analysis Dapo provides above, one that ignores the actual intent of the Rome Statute’s drafters in favor of a mechanical application of dictionary definitions? That analysis quite literally says the following to all of the states that opposed including chemical weapons in Art. 8: “sorry, we know you would have refused to ratify the Rome Statute if it had directly criminalized chemical weapons, but Art. 8 criminalizes chemical weapons anyway because you allowed a word to remain in Art. 8 (“poison”) whose dictionary definition can be construed to include them. Better luck next time the international community creates a permanent international criminal court.”

I’m not exaggerating. That is precisely what the VCLT says to states in the Global South if Dapo’s analysis is correct — which, again, I’m sure it is, because he knows more about the VCLT than I ever will. That said, I can imagine at least one analysis that is both arguably VCLT-consistent and would not directly undermine the sovereign will of the numerous states that ratified the Rome Statute thinking it did not directly criminalize the use of chemical weapons. That analysis would emphasize Art. 31(4), which provides that “[a] special meaning shall be given to a term if it is established that the parties so intended” — a provision that indicates the drafters of the VCLT recognized, however imperfectly, that it is impossible to separate the “ordinary meaning” of a word from its intended meaning. Given that Art. 8 was specifically drafted to exclude a direct prohibition on chemical weapons, it seems clear that the drafters intended “poison” to have a special meaning, one that did not include chemical weapons.

I agree with Dapo that, under the VCLT, “it is erroneous to interpret a treaty primarily by reference to drafting history.” But it shouldn’t be. When the intent of the drafters is clear, there is no conceivable justification for ignoring it in favor of “ordinary meaning.”

Emerging Voices: Pirates of the Indian Ocean–Enforcement in the Seychelles

by Tamsin Paige

[Tamsin Paige is an M.Phil (Law) Candidate, Australian National University College of Law]

Piracy originating from the coast of Somalia hit its peak in 2011, with 236 attacks occurring in the Red Sea, Gulf of Aden and the Somali region of the Indian Ocean in that year, according to the IMB’s 2012 piracy report. So far in 2013 the IMB has reported only 9 attacks originating from Somalia, resulting in two hijackings, indicating that significant headway has been made through counter-piracy efforts. As part of my thesis examining the role the law has played in the rise and fall of piracy, in Somalia and throughout history, I had the privilege of being invited by the Seychelles Attorney-General to spend January 2013 observing piracy prosecutions in the Seychelles and conducting confidential interviews with those involved in the investigation, prosecution and incarceration of Somali pirates. This fieldwork yielded a wealth of interesting data, some of which I will share here.

The first thing that struck me about the broader regional prosecution process was the importance that was put on the Seychelles involvement and how it was viewed as key to the continued efforts to engage in regional prosecutions of Somali pirates. The esteem in which the Seychelles government is being held for its efforts in counter piracy is tempered by two of the key issues being faced by the legal enforcement regimes: capacity and the repatriation of convicted pirates to United Nations Office on Drugs and Crime (UNODC) established and mentored prisons Somalia.

The repatriation of convicted pirates from Seychellois prisons to UNODC mentored prisons in Somaliland and Puntland are the key to the continued regional prosecutions. In January 2013 it was estimated that convicted and suspected pirates made up 20% of the prison population in the Seychelles. The repatriation program is referred to as the conveyor belt, as the Seychellois government is reluctant to take any more suspected pirates for prosecution unless it can repatriate an equal number of convicted pirates to Somali prisons. However, a number of capturing nations are disinclined to authorise these transfers as the prisons in Somalia did not meet European standards, even though evidence overwhelmingly shows that they more than meet human rights standards. However, more recently there have been indications that the EU has agreed to future repatriation transfers.

The capacity issues that were highlighted by my observations and by the interview participants are in no way restricted to the size of the prisons. The capacity and structure of the court systems in the region, the administrative capacity of the investigatory bodies and the investigatory capacity of the enforcing navies were all raised (along with other issues) as stumbling blocks to the effective prosecution of Somali pirates. Beyond highlighting the need for more nations within the region to engage in prosecuting captured piracy suspects, the issues being faced with the court system were varied.

One participant argued…

Time Journalist Defends Murdering Julian Assange

by Kevin Jon Heller

It’s been quite a month for the mainstream media. First, at FP.com, Elias Groll completely misstated the mens rea of the Espionage Act and refused to correct his mistake. (He obviously reads my tweets, because he re-tweeted a criticism I offered of a different article.) Then, at the Guardian, Owen Bowcott misrepresented the specific-direction requirement, eliding the distinction between aiding and abetting and ordering/instigating.

But that pales in comparison to a new tweet from Michael Grunwald, Time‘s Senior National Correspondent:

Screen Shot 2013-08-18 at 10.30.45 AM

Yes, Time‘s Senior National Correspondent can barely contain his enthusiasm for murdering Julian Assange. And let’s be clear: that is what Grunwald is so excited about. We can debate the legality of drone strikes. We can have a rational argument about whether the killing of Anwar al-Awlaki was consistent with IHL and/or IHRL. But there is no conceivable rationale for killing Julian Assange.

And that’s not the worst of it. Where, exactly, does Grunwald hope Assange will be murdered? In the Ecuadorian embassy in London? Does Grunwald think that all of the Ecuadorians in the building and any British passers-by would simply be justifiable collateral damage? Or does Grunwald simply not care where and when Assange is murdered? That seems to be the most plausible interpretation of the tweet — given that Grunwald has announced in advance that he will defend murdering Assange no matter what.

Grunwald has since deleted his tweet. But not because of any sense of shame. No, here is his reason:

Yes, how dare Assange supporters have a persecution complex! It’s not like journalists for major US newsmagazines think Assange should be murdered or anything.

Michael Grunwald is an embarrassment to Time and to journalism. Time should not let him cover anything related to US national-security activities ever again.

PS. I’ve removed the sentence calling for Grunwald to be fired. That might be an overreaction to one tweet. But Time has to prohibit him from covering national-security issues in the future. And a suspension for his complete lack of objectivity and judgment doesn’t seem unwarranted.

Emerging Voices: Counterterrorism and Humanitarianism–Assessing the Current (Im)Balance

by Elizabeth Holland

[Elizabeth Holland is an attorney with the law firm Foley Hoag LLP, where she focuses on international law and corporate social responsibility. The views expressed here are her own.]

There is clear need for effective counterterrorism measures.  Equally compelling is the humanitarian imperative to address civilian need in situations of armed conflict.  It has been questioned, however, whether the balance struck currently by counterterrorism measures impedes unacceptably the ability of humanitarian organizations to operate — particularly in areas controlled by listed armed groups (see, e.g., the Counterterrorism and Humanitarian Engagement Project at Harvard Law School and the Safeguarding Humanitarianism in Armed Conflict report published by the Charity & Security Network.  In the interests of full disclosure: I’ve been involved with both.)

Such a question belies simple answer. Policy and operational considerations are implicated in any analysis of the impact of counterterrorism measures on humanitarian action, and measuring the impact of such legislation is difficult.  A recent report commissioned by the UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council presented evidence of such negative impact, including “halts and decreases in funding to blocking of projects” as well as “suspension of programmes;” also listed are “planning and programming design not according to needs, as well as the slowing of project implementation.”

What follows will focus on U.S. counterterrorism legislation and measures, their potential impact on humanitarian operations, and possible responses.  This is simply a snapshot – a range of similar measures exist in other major donor states (e.g., Canada, the U.K., Australia), the EU, and the UN.   These measures, as well as requirements found with increasing frequency in agreements with key donor states, as well as more informal listing mechanisms (such as that seen in Afghanistan in the context of DoD contracts) raise issues of criminal, civil and contractual liability for humanitarian organizations.  Often their stringency, including the lack of a humanitarian exemption, make operating in an area controlled by an armed group very difficult for humanitarian organizations.  Not only may the legal risks be significant, but some of the measures imposed on the humanitarian organizations may require cooperation of a sort that jeopardizes their neutrality and independence.

Under the U.S. material support statute (18 U.S.C. § 2339(A),(B)) the provision of material support to a foreign terrorist organization (“FTO”) is categorically prohibited.  There are a number of armed groups — also parties to an armed conflict — who are also listed as FTOs (see, e.g., Al-Shabaab, Hamas, Al Qaida).  The definition of material support is broad, and includes both tangible and intangible property, currency, facilities, transportation, lodging, services, training, and expert advice or assistance.  Though at one point the statute included an exemption for humanitarian assistance, the current version exempts only medicine and religious materials.  This exemption is interpreted narrowly, as the Second Circuit in 2011 explained that “medicine” is limited to exactly that – it does not include medical supplies or medical assistance under the statute.  Such a strict prohibition may not seem questionable. Considered, however, in the context of humanitarian operations, such a categorical approach leaves no room for maneuver, no space for even de minimus or incidental engagement of the type often operationally necessary to conduct humanitarian activities.

In addition to the broad definition of material support, the statute does not require…

More Misdirection on Specific Direction

by Kevin Jon Heller

Another person who should know better has misrepresented the ICTY’s specific-direction requirement: Owen Bowcott, a legal correspondent for the Guardian. Here is the sub-headline of his new article on the impact of the Perisic judgment:

Legal experts say proof that accused ‘specifically directed’ atrocities now required after tribunal acquits Serbian commanders.

And here is the first paragraph of the article:

Generals and politicians could evade responsibility for war crimes in future because of a ruling requiring proof that they “specifically directed” atrocities, say some international lawyers and senior judges.

That is not what the specific-direction requirement requires. As I have pointed out before, Perisic does not say that a perpetrator must specifically direct a crime; it says that a perpetrator must specifically direct his assistance toward a crime. That is a fundamental difference — a perpetrator can aid and abet a crime without having any direct (or indirect) communication whatsoever with the person who actually commits it. The prosecution must simply prove — in terms of aiding and abetting’s actus reus — that the perpetrator specifically directed his assistance toward the commission of a crime and that the assistance had a substantial effect on the crime’s commission.

Compounding the mistake, Bowcott later quotes Judge Harhoff on the mens rea of aiding and abetting (emphasis mine):

You would think,” Harhoff speculated, “that the military establishment in leading states [such as USA and Israel] felt that the courts in practice were getting too close to the military commanders’ responsibilities … in other words: the court was heading too far in the direction of commanding officers being held responsible for every crime their subordinates committed. Thus their intention to commit crime had to be specifically proven.”

But military commanders are paid to ensure that crimes are not committed, Harhoff said. Had US or Israeli officials exerted any political pressure on the court? “Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed.”

Judge Harhoff is fundamentally mistaken. Perisic simply clarified aiding and abetting’s actus reus by (re-)adopting the specific direction requirement; it did not in any way modify the ICTY’s long-standing adoption of knowledge as aiding and abetting’s mens rea. Indeed, the Appeals Chamber specifically noted (para. 48) that “the mens rea required to support a conviction for aiding and abetting is knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.” (Alex Fielding also points out Judge Harhoff’s error here.)

Why did a knowledgeable legal correspondent like Bowcott make such a basic mistake regarding the specific-direction requirement? Unfortunately, because — despite the article’s sub-headline — he seems to have limited his research to Judge Harhoff’s letter and Ken Roth’s recent editorial in the New York Times, which also misdescribes the requirement. Bowcott quotes Roth’s editorial in the final paragraph of his article — a vivid reminder of how inaccurate information spreads.

I hope that Bowcott will correct his article. Being a journalist is difficult, particularly when one’s beat requires knowledge of a vast swath of international jurisprudence. Mistakes happen. The beauty of internet journalism, however, is that it is easily corrected. (I’m still waiting for FP.com to correct Elias Groll’s butchering of the mens rea required for espionage…)

If Bowcott issues a correction, I’ll update this post.

Emerging Voices: Piracy vs. Core Crimes–Assessing the Consequences of the Juxtaposition between Transnational and International Crimes

by Marta Bo

[Marta Bo is a Ph.D. candidate at the University of Genova, Italy and a member of the Peace and Justice Initiative. She wrote this post while she was a Visiting Fellow at the British Institute of International and Comparative Law]

Over the past few years, several proposals have been made to put an end to the culture of impunity persisting among Somali pirates. The use of international adjudicative mechanisms – such as an international piracy court, or the International Criminal Court with an amendment to its ratione materiae jurisdiction – has been proposed (United Nations Secretary General Report of 26 July 2010) and, also, defended by several scholars. These instruments are typical expressions of a direct system of adjudication that has been conceived exclusively for the prosecution of international crimes stricto sensu (genocide, war crimes, crimes against humanity and aggression). Although these options seem now to be displaced by more practical avenues for prosecution, such as specialized piracy chambers within national jurisdictions of Regional states (ex plurimis, R. Geiß and A. Petrig, Piracy and Armed Robbery at Sea, 2011, 184), they nonetheless deserve consideration in light of the existing fundamental differences between piracy and international crimes stricto sensu, otherwise called core crimes A closer scrutiny of piracy and core crimes, may suggest that, not only practical matters, but also a different logic should underpin the legal discourse concerning possible judicial fora to prosecute piracy.

Piracy and core crimes are a good example of the juxtaposition of transnational crimes and international crimes. Piracy is often referred to as an international crime, and sometimes as the first international crime. However, this is misleading. Piracy is not directly criminalised under international law: customary law and the UNCLOS regime neither provide for individual criminal responsibility for piratical acts nor proscribe the piratical conduct. Article 101 of the UNCLOS merely defines the offence. Notwithstanding the fact that national courts may directly apply the UNCLOS definition when constitutional arrangements allow so, piracy generally needs to be criminalised domestically in order to be adjudicated upon by national courts. The UNCLOS primarily sets out an obligation for states to adopt the necessary national criminal law establishing individual criminal responsibility for the conduct. Therefore, the customary definition of piracy as mirrored in the UNCLOS provision (“This definition is generally, though not universally, accepted as having codified pre-existing customary international law”, see D. Guilfoyle, Piracy off Somalia: UN Security Council Resolution 1816 and IMO regional counter-piracy efforts, 57 I.C.L.Q. 690 (2008), 693) does not ordinarily constitute the basis for piracy prosecutions, but rather it is the municipal legislation which does.  The Harvard Draft Convention, which is the basis for the UNCLOS piracy provisions, lends support to this argument.  The theory behind the Draft Convention was that “piracy is not a crime by the law of nations” (Harvard Research Draft Convention on Piracy, 26 Am. J. Int’l L. Sup 739 1932, 760) and “pirates are not criminals by the law of nations” (Id., 756). The Harvard Researchers adopted the view that piracy constitutes a special ground of jurisdiction, “the basis of an extraordinary jurisdiction ” (Id., 760).

By contrast, core crimes are directly criminalised under international law. International norms directly prohibit these offences by virtue of norms directed at individuals. These norms create universal direct criminal responsibility for individuals under international law.

Crimes that international law directly criminalises and piracy, only indirectly criminalised under international law, differ, in particular, on the following points: i) state involvement as compared to de-nationalisation; and ii) an exceptional gravity that constitute a threat to the most important values of the international community (international element) as compared to a cross-border harm to interests common to all or a number of states (transnational element). From these different characterizations, it follows that…

Libya Thumbs Its Nose at the ICC — Again…

by Kevin Jon Heller

As I recently noted, the Appeals Chamber has rejected Libya’s request to suspend its obligation to surrender Saif Gaddafi to the ICC pending resolution of its admissibility appeal. Libya, of course, has no intention of complying with that obligation. Indeed, it admitted as much today:

According to Libya’s Justice Minister Salah al-Marghani, Seif, who is being detained in the Libyan city of Zintan by order of the General attorney, will soon be transferred to Tripoli to stand trial. But the ICC wants to try him, and Gaddafi’s brother-in-law and former intelligence chief Abdullah Senussi on the same charges.

On July 18 the Hague-based ICC rejected Tripoli’s request to keep Seif in Libya for trial, saying that Libya remained “obliged” to hand over Seif to the court.

Libya’s representative to the ICC, Ahmed al-Jehani said that as soon as Seif is transferred to Tripoli, the Libyan government would again appeal the ICC decision.

Mr al-Jehani added: “The ICC decision is based on Seif al-Islam’s detention in Zintan and not under the control of the judicial authorities in Tripoli. This (ICC) decision is not final. Libya’s right to try Seif al-Islam is linked to his transfer to Tripoli.”

Salah al-Marghani said that Libya would appeal the Court’s decision as soon as it meets the three demands expressed by the ICC, namely, the transfer of the Seif to Tripoli and the appointment of lawyers for Seif and Abdullah Senussi. He pointed out that the Public Prosecution would handle the investigation.

He added: “The provision of lawyers, we are working on, that, as well as on several different investigations other than rape and murder.”

Put more simply: Libya will not comply with a binding order to surrender Saif to the ICC, but it fully expects the ICC to let it file a second admissibility challenge. The Rome Statute does, in fact, leave open the possibility of multiple admissibility challenges; Art. 19(4) provides that, “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial.” But there is nothing exceptional about Libya’s circumstances that would justify a second admissibility challenge; Libya simply wants to be rewarded for ignoring the Court’s surrender order long enough to fix the problems with its initial challenge. For that reason alone, the Court should reject any Libyan request to file a second admissibility challenge — a decision that, as Art. 19(4) makes clear, is left to the Court’s discretion.

As an aside, I feel obligated to point out that Ahmed el-Gehani, the same man who regularly makes clear to the press that Libya will not surrender Saif to the ICC — and who once told Saif that he was the “architect” of the domestic charges against him — also signs each and every legal document that Libya files with the Court. (See, for example, Libya’s latest brief.) In my view, a strong case can be made that el-Gehani’s actions violate the ICC’s Code of Professional Conduct for Counsel (CPCC) which specifically applies to “counsel acting for States.” Art. 7(3)  of the CPCC provides (emphasis mine) that “[c]ounsel shall comply at all times with the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and such rulings as to conduct and procedure as may be made by the Court, including the enforcement of this Code.” Moreover, Art. 25(1) provides (emphasis mine) that “Counsel shall at all times maintain the integrity of evidence, whether in written, oral or any other form, which is submitted to the Court. He or she shall not introduce evidence which he or she knows to be incorrect.” Those obligations seem difficult to reconcile with el-Gehani’s actions.