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Emerging Voices: Extraordinary Reparations, Legitimacy, and the Inter-American Court

by David Attanasio

[David L. Attanasio is a professor of law at the Jorge Tadeo Lozano University in Bogotá, Colombia, and Doctoral candidate in philosophy at U.C.L.A.]

The Inter-American Court of Human Rights—the highest authority dedicated to enforcing international human rights law in the Inter-American system—has received deep praise for its influential and innovative reparations decisions (.pdf). Nonetheless, its more innovative reparations measures suffer from a serious problem of legitimacy, in that they do not seem to respond to the human rights violations that the Court identifies. Specifically, in the vast majority of its reparations decisions since 2001, the Court has ordered what I call extraordinary reparations, measures such as human rights training, changes to law and policy, improvements in the justice system, and provision of education, water, food, or public services (preceding links to .pdfs). These typically are in addition to compensation payments and other measures explicitly designed to eliminate the violation’s consequences. Although the Court has not adequately defended its practice of ordering extraordinary reparations, several potential bases of legitimacy may justify its principal decisions. Some extraordinary reparations are disguised orders to cease violations, others seek to repair damage to communities, and some aim to repair victim trust in the state.

Despite the importance of its innovations, the Inter-American Court has not explained why it may order extraordinary reparations, particularly when it has already ordered measures supposedly sufficient to eliminate the effects of past human rights violations. For example, following a forced disappearance (.pdf), the Court ordered monetary compensation for the victim’s family supposedly equivalent to the harm suffered, but went on to order, among other measures, a literacy program for the victim’s mother. The American Convention on Human Rights empowers the Court to order reparations only for identified human rights violations, not to order any measure it thinks might make for a better state or for a more human rights-friendly social environment. It is not an international legislature. However, extraordinary reparations, which often appear aimed at changing the victim’s circumstances, apparently lack any “causal nexus” (.pdf) with a past human rights violation. As states have complained (.pdf), they do not seem to address the violation’s effects, as other reparative measures such as restitution or compensation are supposedly sufficient for that objective. The Court lacks explicit principles in its jurisprudence sufficient to clarify when and why extraordinary reparations might be legitimate.

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Emerging Voices: New Citizenship Law Will Not End Race-based Statelessness in the Dominican Republic

by Jillian Blake

[Jillian Blake is an immigration attorney at a non-profit organization in Alexandria, Virginia. She is a graduate of the University of Michigan Law School and the Johns Hopkins School of Advanced International Studies (SAIS).]

In May, Dominican President Danilo Medina signed a new naturalization law aimed at restoring the rights of some who were stripped of their citizenship in a September 2013 Supreme Court ruling. The ruling held that those born in the Dominican Republic to undocumented immigrants, who are predominantly black and of Haitian origin, are not Dominican citizens and instructed the government to apply the ruling retroactively, going back to 1929. International human rights groups strongly condemned the decision as racist and xenophobic and argued it would render hundreds of thousands of people stateless. The Caribbean Community (CARICOM), an international organization made up of 15 Caribbean states, also denounced the ruling and suspended the Dominican Republic’s application for membership.

The new citizenship law, Law 169-14, was passed this spring in response to the international backlash against the Supreme Court decision. Law 169-14 establishes a regime to restore the citizenship rights of those born between 1929 and 2007 who are entered in the civil registry. Notably, the law excludes restoration of citizenship to those born between 2007 and 2010, the year the new Dominican Constitution first revoked jus soli citizenship, or citizenship based on where one is born. All those born after 2007, or who are not in the civil registry, are required to register as foreigners and will then have to apply for regularization and naturalization.

While the law could restore citizenship rights to thousands of people, it is far from a final victory against statelessness in the Dominican Republic. First, the law only addresses a small percentage of those impacted by the Supreme Court ruling. According to human rights groups roughly 24,000 of the more than 200,000 people rendered stateless could qualify to have their citizenship restored under the law, and even that restoration is not automatic. Part of the reason so few will be affected is that for many years hospitals and government agencies refused to issue birth certificates or other identity documents to children of parents of Haitian origin. Many children born in the Dominican Republic do not have birth certificates and/or are not listed in the civil registry. Any long-lasting solution will require hospitals to issue birth certificates for, and enter into the civil registry, all persons born in the Dominican Republic and recognize their citizenship. There also should be a national drive to document (as citizens) those born in the Dominican Republic who do not currently possess birth certificates.

Second, the new law is still premised on the illegal assumption that those born in Dominican territory are not citizens. This retrogression of established inter-American law, which recognizes jus soli citizenship, is not only illegitimate but could lead to the denial of rights elsewhere in the future. Third, given the racially-biased administration of past immigration and naturalization regulations in the Dominican Republic, there is a serious concern that even those entitled to the restoration of citizenship under the law will never actually be recognized as citizens. Fourth, the law requires those who are not in the civil registry to register with the government within 90 days after the law takes affect, which will exclude many who can’t register in time, especially the poor and those living in remote areas. Finally, the law will not restore citizenship to future generations born in the Dominican Republic, which will leave a perpetual system of statelessness in the country.

In an Article forthcoming in the Georgetown Journal of Law and Modern Critical Race Perspectives entitled, “Haiti, the Dominican Republic, and Race-based Statelessness in the Americas” I analyze the 2013 Supreme Court decision and long history of citizenship exclusion based on racial and ethnic prejudice in the Dominican Republic. (more…)

Emerging Voices: The Contribution of International Criminal Tribunals and Courts to the Development and Promotion of International Human Rights Law

by Clare Frances Moran

[Clare Frances Moran is a teaching fellow in law at Abertay University, and is due to submit her PhD thesis at the University of Glasgow in late 2014.]

In the eight years since Cesare Romano’s assertion that the ‘season’ of international criminal law was coming to an end, the season appears to have turned into an Indian summer. During this summer, the focus of international criminal law has evolved. The formative debates on the significance of the idea of aggression and the conceptual boundaries of genocide have developed into a discussion on how to use such concepts in order to protect individuals, regardless of traditional concerns such as a state link or sponsorship of the violence. This shift in focus indicates a continued interest in the idea of international criminal law, and the aim of creating a system of international criminal justice, but with greater attention to the protection of individuals. As such, the reason for continuing interest in international criminal law can be explored in relation to two strands of reasoning: the fading of the State requirement, and the shared purpose of international human rights law, international humanitarian law and international criminal law.

The law of the initial international criminal tribunals – those of Nuremberg, Tokyo, Rwanda and the former Yugoslavia – focused on criminal conduct committed by those acting on behalf of States. Even the name of such tribunals gives away their aim: punishing those who have committed crimes while acting in official positions. Although the International Criminal Court looked a likely successor to these tribunals, it has taken a different direction with its prosecutions. Not a single defendant convicted or tried by the International Criminal Court to date has been affiliated to a state; the focus of the Court has shifted to the most serious situations, rather than those linked to acts on behalf of a State or committed by those representing a State. This premise represents a true departure from the origins of international criminal law in national military tribunals and the internationalised tribunals of Nuremberg and Tokyo. The trial of such individuals utilises the silence by the Statute on what may constitute an ‘organisational policy’ in the context of a crime against humanity. Many international lawyers would, in a similar vein, read into article 8 on war crimes the idea that the criminal activity was backed by a State, or at least that the State was complicit. However, this article is similarly restrained on mentioning the idea of a link to a State.

The lack of direct prosecutions against State officials is interesting, and the arrest warrants issued for certain Heads of State indicate that the idea has not yet faded into obscurity. There is substantial difficult, however, apparent in organising such prosecutions. Laurent Gbagbo, former President of the Ivory Coast, remains the first and only Head of State to be detained by the ICC. His arrest warrant was issued in 2011 and initial hearing to confirm the charges was adjourned in February 2013, with the charges against him confirmed only recently in June 2014. In postponing the hearing in 2013, the Court clearly stated that the seriousness of the charges underpinned its decision to give the prosecution more time, and invariably it seems that trying Heads of States and the decision-makers of the piece is more complex. This again demonstrates the priority that the Court is giving to the seriousness of the crimes, rather than the link between the State and the individual.

The number of prosecutions which have been raised against individuals who are part of groups which are non-state actors further indicates a shift away from the traditional focus on the State. The reduction of the number of States which engaged in armed conflict with one another makes it less likely that States ought to be the central focus of the Court, and that its mission to prevent impunity would be better served by ensuring that those who breach international criminal law and international humanitarian law are prosecuted. The recent crimes committed by Boko Haram in Nigeria and ISIS in the Middle East indicate that the discipline is evolving with the world. (more…)

Emerging Voices: The Preliminary Examinations in Iraq: A Net Loss for the ICC’s Political Capital

by David Benger

[David Benger is the Course Assistant for the Brandeis University in The Hague intensive summer school in International Criminal Law. He may be reached at dabenger [at] gmail [dot] com.]

The International Criminal Court, an ostensibly purely legal organization, is nevertheless plagued by a wide variety of political pressures. For example, the attempt to balance The Court’s relationship with The African Union (widely considered to be deteriorating) and its relationship with the United States (widely considered to be improving) is an important thorn in the side of the Court’s daily operations. This post will examine the re-opening of the preliminary examination of British soldiers in Iraq through the lens of the potential political fallout of that decision. The re-opening of the preliminary examination in Iraq is not a signal of sufficient substance to appease the African anti-ICC lobby. Unless and until there are actual trials of European commanders in The Hague (not likely in the near future), the characterization of the ICC by African leaders as a neo-imperialist Western tool is not likely to dissipate based on a mere preliminary examination. With regard to the United States, however, the impact of this decision will almost certainly resonate. Though many observers of the USA-ICC relationship subscribe to the narrative of a steadily improving rapport between the two, this post will argue that this is not quite the case. In fact, the relationship between the Court and the USA is in a decidedly precarious position, and the re-opened Iraq investigation may have a decisive and damning impact on America’s potential support for The Court.

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Emerging Voices: The Rights of Women in Armed Conflict

by Jens Iverson

[Jens Iverson is a researcher at the Law Faculty of the University of Leiden.]

Imagine there is a potential peace agreement that would end a civil war, but only at the cost of leaving portions of the country in question in the hands of a group that systematically violates the human rights women and girls.  The government is backed by a foreign state who, in the past, effectively occupied the country.  Some policy considerations are obvious – continued armed conflict can be devastating to most involved, but resolving the armed conflict with a solution that denies at least half of the population their rights is deplorable.  But is this a purely pragmatic, policy question?

In this post, I assert that foreign states may be obliged to push for peace agreements that protect the rights necessary for a modern democracy, not only on the basis of a general concern for human rights but also based on a more ancient legal and ethical tradition.  The obligation emerges from a source one might not expect—the logic behind the exception to the prohibition of transformative occupation, and ultimately on self-interest.

Traditionally, radical transformation of the laws of occupied territory was prohibited.  There is, however, an exception to this rule, dating at least back to Immanuel Kant.  An occupying power is not obliged to protect a legal system that is itself geared towards war—it is acceptable to create a less war-like constitution for an occupied nation.  This is not a human rights argument, nor an argument based on sparing a civilian population, nor a purely pragmatic public policy argument.  Rather, the legitimate transformative role of an occupying power responds to the traditional justifications for going to war (satisfying the justa causa of the war).  If the war is being fought in response to aggression that has disrupted international peace, then the justa causa may be to restore a system of international peace.  But what does that have to do with the rights of women that would be protected in a modern democracy?

The general modern form of the hypothesis that democracy, including non-discrimination, is important for peace is the “democratic peace hypothesis.”  This hypothesis states that as the democratic nature of the two states increases, the probability for substantial armed conflict between those states during a given year decreases.  If this hypothesis is accurate, and should protecting and promoting the rights of women be an important component of the democratic nature of the state, then promoting and protecting the rights of women is not only important for its own sake but also because of the positive correlation with the sustainability of the peace.

Considered under this analysis, protecting the rights of women is not a side-issue or epiphenomenon that can be considered once the “primary” issues of national security and inter-state relations are resolved—rather such protection can be determinative as to whether the war was justified in the first place.

There are, of course, strong reasons to protect the rights of women based purely on a human rights analysis, and powerful points to be made in favor of protecting women’s interests purely on ethical and humanitarian grounds.  The argument in this post is not intended in any way to undermine such arguments or impugn their moral force.  It does suggest that there is a supplementary analysis that should be helpful in addressing the gap between the ideal of respect and promotion of women’s human rights in the transition to peace and the reality.  This supplementary analysis requires an analysis of the moral and legal justification of the foreign military intervention as a whole.  It is essentially rooted in a traditional framework for public international law-the legal relationship between sovereign states.

Protecting the rights of women during the transition out of armed conflict is critical for establishing a just and sustainable peace.  This is not a new insight.  The UN Security Council has passed several resolutions on women, peace, and security (UNSC Res. 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), and 1960 (2010)). These resolutions provide evidence of the seriousness of the issue, and provide but have proven unsuccessful in fully addressing the problem.  Women are frequently victimized during armed conflict, underrepresented at the peace table, and disserved by the peace.

So why is this need not being fully addressed?  One difficulty may be the foundations upon which efforts to protect the rights and interests of women are typically built.  During conflict, the main foundation is International Humanitarian Law.  During early peace, there is an increasing role for human rights law and public policy.  International Humanitarian Law has numerous protections for civilians generally and in certain cases for women in particular, but many of those interests are short-term, often simply avoiding death or damage.  Human rights concerns and public policy concerns may be at their weakest when the terms of the new peace are being resolved.  There is a need for an additional rationale that would align the long-term self-interest of powerful actors (such as foreign states) with the self-interest of those placed in an unequal situation by systematic discrimination.

This logic does not, of course, limit itself to women.  Protecting the human rights of children, religious minorities, ethnic minorities, and other minorities is important if the armed intervention is to be justified, and the peace is to be democratic and durable.

Sometimes grasping an immediate, imperfect peace will be ethically and legally preferable to ongoing armed conflict, even if continued conflict comes with the hope of a better peace later.  There is a rationale to say that a foreign state should be reluctant to get in the way should local elites desire peace.  But too often, the foreign state has been too ready to consolidate a peace around a new government that does not respect human rights.  Foreign states, if they continue to have any role, should weigh the obligations they have based on their prior acts, and not jump too quickly to compromise the rights of women.

Emerging Voices: Sexual Violence As War Crime: Controversial Issues in the International Criminal Court

by Rosemary Grey

[Rosemary Grey is a PhD Candidate at the Faculty of Arts and Social Sciences, University of New South Wales.]

The case of The Prosecutor v Bosco Ntaganda, which is currently before the International Criminal Court (ICC), is the latest of several cases in the ICC and Special Court for Sierra Leone (SCSL) to address the issue of sexual violence against female child soldiers by members of their own group.

The accused, Ntaganda, is the alleged former commander of the Union des Patriotes Congolais-Forces Patriotiques pour la libération du Congo (UPC-FPLC), an armed group which in 2002 and 2003 was involved in the non-international armed conflict in the Democratic Republic of Congo (DRC).

On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Ntaganda, including charges for the rape and sexual slavery of female child soldiers in the UPC–FPCL by their commanders and fellow soldiers, which the ICC Prosecutor characterized as war crimes under Article 8(2)(e)(vi) of the Rome Statute. This was the first time that Article 8(2)(e)(vi) had been used to prosecute sex crimes committed against child soldiers by members of the same armed group.

I recently discussed the Pre-Trial Chamber’s decision on Beyond The Hague; here I will focus on the parties’ interpretation of Article 8(2)(e)(vi), and highlight some important gender issues raised by this case.
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Emerging Voices: The Old Woe of Contemporaneity and Cartographic Evidence in a New Bottle

by Arpita Goswami

[Arpita Goswami currently serves as an Assistant Editor to China Oceans Law Review, and is a Graduate Assistant at the South China Sea Institute, Xiamen University, P.R. China. The views expressed here are her own and have no connection whatsoever to the above mentioned organizations.]

The recently concluded Bay of Bengal Maritime Arbitration Case between India and Bangladesh offers interesting insights into the application of the judicial pronouncements to the factual situation contemporaneous with it for determining the boundary lines and the usage of cartographic evidence in the same. This post examines the section of the Award delimiting the riverine boundary between the two States. The reasoning given by Tribunal in this case makes an interesting read regarding the technicalities of demarcation of boundaries, challenges in the contemporaneous applications and the validity of cartographic evidence in such an application.

Background (para. 50-55 of the judgment)

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India, the states of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 which was chaired by Sir Cyril Radcliffe. In Aug. 1947, the Commission submitted the report describing the boundary, and is known as “Radcliffe Award”. However, in 1948 the Indo-Pakistan Boundary Dispute Tribunal was set up by India and Pakistan to address the disagreement in the application of the Radcliffe Award. In 1950, the above mentioned Tribunal gave its Award, known as the “Bagge Award”.

In 1971, East Pakistan declared independence from West Pakistan, and succeeded as a new state of Bangladesh to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. Among its tasks of finding the land boundary terminus anddelimiting the territorial sea, EEZ and continental shelves between the two States, the present Tribunal also had to concern itself with delimiting the boundary river between the two, which will be discussed in the passages below.

Delimitation of the Boundary River

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Emerging Voices: Responsibility of the Netherlands for the Genocide in Srebrenica–The Nuhanović and Mothers of Srebrenica Cases Compared

by Otto Spijkers

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

Introduction

This post compares the recent judgment of the District Court in The Hague in the case of the “Mothers of Srebrenica” with the judgment of the Dutch Supreme Court of last year in the Nuhanović case. I will try not to repeat what Kristen Boon wrote about the case in an earlier post.

Facts

Both judgments deal with the legal responsibility of the Netherlands for the death of (some of) the Bosnian Muslims in Srebrenica in 1995. When the so-called “safe area” of Srebrenica fell into the hands of the Bosnian Serbs, the Dutch UN peacekeepers all left the area. Hasan Nuhanović was permitted to leave with them, because he had worked for the UN, but the UN peacekeepers refused to take the relatives of Hasan Nuhanović as well. Hasan’s brother and father were subsequently killed, together with thousands of other Bosnian Muslims. Most of the victims were situated outside the compound over which the Dutch peacekeepers exercised effective control. Even those Bosnian Muslims that managed to enter the compound, just before the fall of Srebrenica was a fact, were later surrendered by the Dutch peacekeepers to the Bosnian Serbs. Almost all of them were killed.

Legal Question

Nuhanović argued that the refusal of the Dutch UN peacekeepers to save his relatives constituted a wrongful act, attributable to the State of the Netherlands. The Mothers of Srebrenica argued that the refusal of the Dutch UN peacekeepers to save all Bosnian Muslims within the so-called “mini safe area” constituted a wrongful act, attributable to the Netherlands. This is the area where most people fled to after the city of Srebrenica had fallen into the hands of the Bosnian Serbs. This mini safe area consisted of the compound in Potočari and the surrounding area, where deserted factories and a bus depot were located (para. 2.35 of Mothers of Srebrenica judgment).

Attribution

In Nuhanović, The Dutch Supreme Court held that the same conduct could in principle be attributed both to the Netherlands and to the United Nations. In reaching this decision, the Court referred to Article 48 of the ILC’s Articles on the Responsibility of International Organizations (2011, DARIO). In the Mothers of Srebrenica case, the District Court reached the same conclusion (para. 4.34)

Since the UN was not party to the Nuhanović-proceedings, the Supreme Court could look only at the rights and responsibilities of the Netherlands. The Mothers of Srebrenica initially involved the UN in the proceedings as well, but the Organization effectively relied on its immunity (this led to some landmark judgments by the Dutch Supreme Court and the European Court of Human Rights), and thus the case continued without the UN. In Mothers of Srebrenica, the District Court explicitly rejected the position of the Mothers that, given the immunity of the UN, the rules on attribution should be interpreted more “broadly,” as otherwise the Dutch UN peacekeepers would be placed “above the law” (para. 4.35). At the same time, one cannot help get the feeling that it played a role.

With regard to attribution, the Supreme Court in Nuhanović based its decision primarily on Article 7 DARIO. This provision states that the conduct of an organ placed at the disposal of an international organization by a State must be considered to be the conduct of that international organization, when the organization has effective control over the conduct. The Netherlands argued that Article 6 DARIO was the relevant provision, and not Article 7. Article 6 DARIO states that the conduct of an organ of an international organization is attributable to that international organization. The argument of the State was thus that the peacekeepers were a UN organ. This is also the view of the UN itself. But the Supreme Court followed the ILC Commentary to DARIO, according to which a battalion of peacekeepers is not a UN organ, because the battalion to a certain extent still acts as an organ of the State supplying the soldiers. Important in this assessment is the fact that the troop-contributing State retains disciplinary powers and criminal jurisdiction over its peacekeepers.

Interestingly, the Dutch Supreme Court also referred to Article 8 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (2001, ARS). Strictly speaking, Article 7 DARIO says nothing about the attribution of conduct of an organ placed at the disposal of an international organization by a State to that State. The Article deals exclusively with the responsibility of international organizations, such as the UN. All it says is that, if the international organization does not have effective control over the conduct of the organ, then it is not responsible for that conduct. But that does not mean that, by definition, this makes the State responsible in such cases. In theory, it could very well be that neither of the two is responsible. And so to complete the picture, the Dutch Supreme Court relied on Article 8 ARS. According to this provision, the conduct of a group of persons shall be considered an act of a State if the group is in fact acting under the effective control of that State in carrying out the conduct. This provision was meant to make it possible to attribute acts of persons not formally part of the State system to the State in exceptional circumstances.

One may wonder why the Supreme Court did not instead make use of Article 4 ARS, according to which the conduct of any State organ shall be considered an act of that State. If peacekeepers are not UN organs, then it would be logical to consider the peacekeeping force as a State organ instead. Peacekeepers are not the mercenaries, militants or bands of irregulars for which Article 8 ARS has been designed. But if we follow the Dutch Supreme Court, the peacekeepers are nobody’s organ; and whoever happens to be in effective control of them at the relevant time, is responsible for their actions.

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Emerging Voices: Cyber Operations and the Prohibition of the Threat of Force

by Francois Delerue

[François Delerue is Ph.D. researcher in International Law at the European University Institute (EUI – Florence, Italy) and visiting scholar at Columbia University (fall term 2014)]

Article 2(4) of the UN Charter was revolutionary in its extension to the explicit prohibition of the threat of force, alongside the prohibition of the use of force. No cyber operation has ever been qualified as a threat or use of force by any States or international organizations; commentators are more nuanced and some consider certain cyber operations as likely to qualify as actual uses of force (see generally: Tallinn Manual p. 45; Marco Roscini pp. 53-55; Duncan Hollis). Most of the literature applying Article 2(4) to cyber operations focuses on the use of force and, therefore, the threat of cyber force remains understudied.

In this blog post I endeavor to fill this gap by analyzing inter-state cyber operations according to the prohibition of threat of force. My main argument is that for most inter-state cyber operations the qualification as the threat of force is arguably more suitable than trying to qualify them as an actual use of force at any cost. I will develop successively the two main forms of threat of force: open threat of prohibited force and demonstration of force.

A Threat of Prohibited Cyber Force As a Prohibited Threat of Force

The International Court of Justice, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, confined the prohibition of the threat of force to the prohibition of the threat of the use of the prohibited force (para. 47). In other words, an unlawful threat is a conditional promise to resort to force in circumstances in which use of force would itself be unlawful. This form of threat of force is the most obvious one and can be implied directly from the wording of the UN Charter. Formulated by Ian Brownlie in 1963 (p. 364), this approach is nowadays the prevailing one on the threat of force.

Applied to cyber operations, a threat of cyber force will violate the prohibition of Article 2(4) only if the threatened cyber force amounts to an unlawful use of force in the same circumstances. This is the contemporary leading approach among scholars and is, for instance, the approach followed by rule 12 of the Tallinn Manual:

A cyber operation, or threatened cyber operation, constitutes an unlawful threat of force when the threatened action, if carried out, would be an unlawful use of force.

Is a general threat to resort to force enough to constitute a violation of the prohibition of Article 2(4)? The answer is unequivocally yes. Most verbal or written threats of force constitute a general threat of force, without specification on which kind of force might be use. It seems most likely that threat of force will remain mainly general, and cyber force will be one of the possible options to be used by the threatening State.

Demonstration of Cyber Force As a Prohibited Threat of Force

Demonstration of cyber force constitutes the second form of threat of force. In contrast to an open threat of force, a demonstration of force is constituted by acts instead of words performed by a State. Force may be demonstrated in many ways: notably in military acts – such as deployment of troops, manoeuvres, nuclear arms build-ups or testing – showing the readiness of a State to resort to force against another. In the literature on the threat of cyber force, demonstration of force is sometimes analyzed but remains for the most part neglected and understudied.

Most cyber operations fail to qualify as an actual use of force; however, could they constitute a demonstration of force amounting to a prohibited threat of force? I will use recent examples of cyber operations to answer this question.

Large-Scale Distributed Denial of Service Attacks As a Demonstration of Force

A distributed denial of service (DDoS) attack is a cyber attack, which aims to make a machine or network resource unavailable by flooding it with requests from compromised systems. Could such a large-scale DDoS attack amount to a demonstration of force? The answer seems to be positive under certain conditions.

In April 2007, Estonia faced violent street protests by a minority group of Russian descent objecting to the removal of World War II bronze statue of a Soviet soldier. Simultaneously, the country experienced multiple cyber operations, notably large-scale DDoS attacks on the websites and servers of private and public institutions. The Estonian government accused Russia of the cyber attacks; Russia, however, denied any involvement. As Estonia is highly connected and extremely dependent on its computer infrastructure, these cyber operations were able to paralyze a large part of the Estonian economy, media and government. Could these cyber operations constitute a use of force? Estonia explored initially the possibility to invoke Article 5 of the North Atlantic Treaty and thus to treat these cyber operations as an ‘armed attack’[1] triggering ‘the right of individual or collective self-defence’; however, this solution was quickly ruled out (see e.g. Mary E. O’Connell pp. 192-193; see also: here and here).

While neither Estonia nor other States considered those cyber operations as a use or threat of force, could these cyber operations constitute a credible threat of force? Their consequences resulted in the partial paralysis of the State, limiting the ability of the country to respond in case of military action. Moreover, they occurred in fractured relations between the targeted State and the presumed threatening State, rendering any threat of force more credible. It seems, as a result, that those cyber operations could be considered as potential preluding measures to a use of force. They could thus be considered as a demonstration of force violating the prohibition of threat of force of Article 2(4).

The Estonian example demonstrates that a large-scale DDoS attack against an Internet-dependent State could constitute a threat of force. However, not all DDoS attacks might be that easy to qualify as a demonstration of force. In the case of similar cyber operations faced by Georgia before the 2008 Russo-Georgian War, the conclusion might be more nuanced. Unlike Estonia, Georgia is not highly dependent on the Internet; therefore the consequences of cyber operations were limited and resulted mainly in the inability for the Georgian Government to access its websites and use them to communicate. As a result, the qualification of a threat of force seems difficult and probably excessive for this situation. (more…)

Emerging Voices: Extraordinary Exceptions at the ICC–What happened with Rule 134quater?

by Abel Knottnerus

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

In November 2013, the Assembly of States Parties adopted Rule 134quater. Under the pressure of African States, the ASP agreed that the Trial Chamber should be able to excuse an accused from continuous presence at trial, when the accused “is mandated to fulfil extraordinary public duties at the highest national level”.

Rule 134quater

1. An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial.

2. The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.

While this amendment was welcomed by the international community – and most notably by the UK, the US and the AU – several commentators questioned its consistency with the Statute, and in particular with Articles 27.1 (“irrelevance of official capacity”) and 63.1 (“the accused shall be present during the trial”). An amendment to the Rules of Procedure and Evidence (RPE) may not extend the scope of Statute (Articles 51.4 and 51.5), but that is exactly what Rule 134quater seemed to do by deviating from the conditions that the Appeals Chamber (25 October 2013) had laid down for the Trial Chamber’s discretion to excuse an accused from continuous presence at trial. For this reason, Kevin Jon Heller predicted that the new Rule would “probably not” survive judicial review.

So what happened? Did Rule 134quater pass the scrutiny of the Court’s Judges?

Submission Prosecution

Almost immediately after the ASP, Ruto submitted an excusal request under the new Rule, which essentially said that the Trial Chamber should excuse him for as long as he would be Vice-President. Rule 134quater would allow the Chamber to excuse an accused who fulfils extraordinary public duties from all trial hearings, because it would omit a restriction to the duration of an excusal.

The Prosecution responded by questioning the consistency of this interpretation of Rule 134quater with the Statute. Remarkably, the Prosecution did not challenge the validity of the amendment, but argued that the new Rule could not “overrule the Appeals Chamber’s interpretation” (para. 30). In applying Rule 134quater, the Trial Chamber would have to respect all the conditions that the Appeals Chamber had listed, including that an excusal must be limited to what is strictly necessary.

In addition, the Prosecution claimed that Ruto’s interpretation of Rule 134quater would be inconsistent with the equal treatment principle, which is set down in Articles 27.1 and 21.3 (the Statute shall be interpreted and applied “without any adverse distinction”). If the new rule would allow an accused to skip all hearings for as long as he or she is (Deputy-) Head of State, it “would create a regime under which two accused seeking the same relief … would be treated differently, based only on official capacity” (para. 3). The Prosecution argued that Rule 134quater would only be consistent with the equal treatment principle, if the amendment would be read as emphasizing the duties of the individual instead of the office that the accused fulfils.

Finally, the excusal request would fail to distinguish Ruto’s extraordinary public duties from the “normal, day-to-day duties” that the Kenyan Vice-President has to perform. The Prosecution maintained that dealing with the aftermath of a terrorist attack (like the Westgate Mall bombing) would be an extraordinary public duty, but “opening new roads or welcoming a foreign dignitary would not be” (para. 41).

For all these reasons, the Trial Chamber would have to decline Ruto’s request for a “blanket excusal” (para. 38).  (more…)

Emerging Voices: Horizontal and Vertical Dimensions of International Law in U.S. Courts

by Zachary Clopton

[Zachary Clopton is the Public Law Fellow at the University of Chicago Law School.]

For decades, scholars and practitioners of international law in the United States have focused on the federal courts.  The combination of diversity, alienage, federal question, and Alien Tort Statute (ATS) jurisdiction largely justified this focus.  But in the wake of decisions such as Morrison and Kiobel, some of these scholars and practitioners have turned to state courts and state law to vindicate international norms (1, 2).  To give one example, New York state courts are adjudicating foreign-law claims against the Bank of China arising from its alleged facilitation of Hamas and Palestine Islamic Jihad attacks in Israel.

The attention to states may prove to be a positive development, but notably it has tended to rely on judicially created rights—common law claims under state or foreign law, or customary international law.  What about state political branches?  Is there is a role for governors and state legislatures, and should internationalists spend some of their energy lobbying these state-level political actors?

From a policy perspective, as well as from a doctrinal and constitutional one, international litigation in U.S. courts raises both horizontal (separation of powers) and vertical (federalism) questions.  Although some judges and scholars object to international law in all of its forms, and others applaud any expanded role for international law, acknowledging the independent horizontal and vertical dimensions opens up more nuanced options.

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Emerging Voices 2014 Kicking Off Today

by Jessica Dorsey

Last year’s inaugural Emerging Voices symposium was a big success, so today we’re kicking off our second annual edition. Through mid-August, we will be bringing you a wide variety of posts written by graduate students, early-career practitioners and academics.

Tune in over the next several weeks if you’d like to read more about litigation of international law in domestic courts, interstate arbitration, statelessness, and rape as a war crime–to name just a few of the topics some of our contributors will cover. Please feel free, as usual, to weigh in on the discussion. Thanks for following us here on Opinio Juris–we hope you enjoy this second edition of our Emerging Voices Symposium!