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Emerging Voices: Is Dissemination Sufficient to Promote Compliance with International Humanitarian Law?

by Elizabeth Stubbins Bates

[Elizabeth Stubbins Bates is a PhD candidate in Law at SOAS, University of London.]

States must disseminate international humanitarian law (IHL) as widely as possible, and integrate it into programmes of military instruction. These obligations exist in international and non-international armed conflict (with differences between treaty and customary international law for the latter) and are among the few IHL duties on states in peace-time. International humanitarian law typically applies only during armed conflict or belligerent occupation.

This post tackles the assumption that simply disseminating or teaching IHL is sufficient to promote compliance with the law; and explores the distinction between the obligation merely to disseminate IHL (including to the civilian population) and the obligation to train troops in that law. This distinction has stark relevance for the US’ reliance on civilian CIA drone operators, whose knowledge of IHL has not been openly assessed, and whose training programmes in IHL (if any) have not been disclosed. When official statements on the IHL applicable to drone strikes contain elisions, it is US policy rather than IHL which is disseminated to the civilian population. While it is appropriate to be sceptical that dissemination is sufficient to promote compliance with IHL, confused dissemination of IHL may promote non-compliance.

I.

Dissemination and training are assumed to promote compliance and prevent violations. The ICRC Commentary finds a link between dissemination and training on the one hand, and states’ broader obligation to ‘respect and ensure respect’ for IHL ‘in all circumstances’ on the other. Training as a mechanism to prevent violations (in effect assuming that more knowledge of law equals fewer violations of that law) also appears outside IHL: in Art 10 of the Convention against Torture, and as a guarantee of non-repetition in the Basic Principles and Guidelines on the Right to a Remedy and Reparation. As violations in armed conflict may be caused by sheer disregard of known law, by revenge, desensitisation, ‘othering’, an absence of empathy, or unlawful orders, it is appropriate to be sceptical that dissemination and training in IHL is sufficient to promote compliance.

While the necessity of disseminating IHL and training troops in the law is rarely questioned, its sufficiency is under-explored. Treaty texts give little guidance on how states should disseminate IHL and integrate it into military training, so state practice is apt to vary, with no guarantees that the dissemination and training will promote compliance. Scholarship on IHL dissemination and training is less developed than equivalent research on military ethics and psychology, and the analogous field (outside the military context) of human rights education (HRE). The literature suggests that ethics training should be an integral part of military instruction (Lovell); IHL training requires attitudinal change to be effective (Save the Children Sweden), so that the norms are internalised as ‘second nature’ (South Africa’s Law of Armed Conflict Manual); and barracks culture may influence or impede training (Lloyd Roberts). Flexibility is considered important: as to the moral/political background of ‘the individual to be convinced’ (Sassòli), to their rank, and to the deployment situations they are likely to face (Kuper). The interpretation of IHL norms, the educational background of soldiers and officers, and operational realities (such as the fluidity between armed conflict and law enforcement situations in Krulak’s ‘three-block war’) might all influence military training in IHL, and each of these should be theoretically and empirically studied.

Over the past two decades, the ICRC has gradually shifted its IHL assistance to armed forces and armed groups, from dissemination of the law (known internally as PREDIS) to an emphasis on ‘integration’ (PREIMP). In the ICRC’s theory, integration is a ‘continuous process’, in which IHL becomes relevant to ‘doctrine, training, education, equipment and sanctions’ (ICRC, Violence and the Use of Force, 2011). Integration requires the prior interpretation of the law, an understanding of its operational consequences, and the adoption of ‘concrete measures…to permit for compliance during operations.’ Integration recognises that the mere dissemination of IHL to armed forces and armed groups is insufficient for compliance, and the ICRC acknowledges explicitly that ‘the mere teaching of legal norms will not result, in itself, in a change in attitude or behaviour’. Conscious reflection is needed on…

Emerging Voices: The Role of Standby Counsel to a Self-Represented Accused–Lessons Learned from the Karadzic Case

by Žygimantas Juška

[Zygimantas Juska is a member of the defense team of Radovan Karadžić]

One of the most high-profile cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY)Prosecutor v. Radovan Karadžićprovides an opportunity to propose changes for the standby counsel model. Nevertheless, the ICTY has struggled to balance the effectiveness of standby counsel and its huge financial burden on the Tribunal.

The ICTY previously permitted self-representation in the two high-profile cases—Prosecutor v. Milošević and Prosecutor v. Šešelj—and in each, the Tribunal permitted self-representation but soon encountered disruptive behavior from the accused. When Milošević’s medical condition began causing his health to deteriorate, the Court decided that the counsel needed to be imposed. In Šešelj, the Trial Chamber revoked the accused’s right to self-represent and imposed standby counsel after Šešelj’s challenges against the legality of the ICTY, alleged intimidation of witnesses, and disruptive behavior. Similarly, the Trial Chamber ordered a standby counsel for Karadžić after he refused to attend proceedings (see here). The Trial Chamber permitted Karadžić to continue self-representing so long as he did not disrupt the trial process.

During the personal discussion with Peter Robinson, I have been introduced with key aspects of the current model of standby counsel. The current mechanism allows accused persons to represent themselves freely, yet it provides the Court with an insurance policy in the event they disrupt the trial. At the same time, this model works as an incentive for the accused to play under the rules.

Nevertheless, the international community has taken notice of the inefficiencies surrounding standby counsel. Under the current model, standby counsel prepares as if it were at trial, yet it essentially acts as an observer to the actual proceedings as Karadžić continues to self-represent (see, p. 14). Nevertheless, the standby counsel and Karadžić’s defense team often complete the same tasks, resulting in duplication and unnecessarily higher costs.

The current model could be improved by encouraging a more active role for standby counsel. It seems clear that a partnership between actual and standby counsel would likely increase the efficiency of the trial. A partnership would be feasible, provided that…

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…

Emerging Voices: Limits to R2P–Lessons from the Arab Spring Conflicts

by Aqsa Mahmud

[Aqsa Mahmud graduated from the University of Michigan Law School and currently practices as a government attorney in Washington, DC]

The international community’s application (or nonapplication) of Responsibility to Protect (R2P) to the recent Arab conflicts highlights notable limits to R2P. R2P is a relatively new doctrine that holds States responsible for protecting their populations and, where the sovereign fails, allows for foreign intervention. Although independent reports have proposed a test for application, the international community has not adopted a set criterion. Every situation of R2P’s potential use—whether applied or not—should be examined. In both Libya and Syria, the governments used military force against civilians and failed to protect their populations; however, R2P was only applied to Libya. The disparate application of R2P in Syria, in comparison to Libya, illustrates several limiting factors that will guide R2P in future scenarios.

Foremost, the Libya-Syria distinction shows that R2P application depends on, and is limited by, regional attitudes towards aggressive international action. This factor reflects the primary difference between the decision to intervene in Libya and not Syria. In the case of Libya, regional organizations showed their contempt for the Qaddafi regime early on. As the conflict escalated, organizations such as the Gulf Cooperation Council (GCC) and the Organization of the Islamic Conference (OIC) supported aggressive measures such as a no-fly zone. These options were already being debated at the international level but regional attitudes legitimized a hardline approach. A regional consensus on the Libyan conflict and against the Qaddafi regime activated Security Council members who, at that time, included non-permanent members associated with the region. Some have gone so far as to say that Resolution 1973 would have been impossible absent the position of the League of Arab States (LAS). Of importance, these regional organizations presented a general consensus on the deterioration of the humanitarian situation and need for aggressive action. They did not, however, envision or promote the same type of response. Thus, future use of R2P will likely depend on a general regional consensus in support of aggressive international action.

In comparison, the Syrian conflict failed to generate the type of regional support seen for Libya. The Syrian conflict raised concern without…

Emerging Voices: Together Again? Customary Law and Perpetration by Means

by Robert Clarke

[Robert Charles Clarke is a Research Associate at the Supreme Court of Western Australia]

It could as well be said that Darré, for example, is guilty of murder of numerous people in the occupied portion of Russia, because, as Minister of Food, he had charge of the Food Estate and supplied the food that maintained the Einsatzgruppen in that territory; that it was all a part of one operation and the feeding the troops an essential part, without which the murders could not have been committed. This may seem fanciful, and indeed it is … Ministries Case, 936 (Powers, J., dissenting)

One could be forgiven for assuming that this passage was directed at the conviction of Thomas Lubanga for his “essential” contribution to the use of child soldiers (see ¶ 1356), a conviction that, he argues on appeal, rested on a novel doctrine inappropriate to an international forum. But as the reference to Nazi death squads of 1940s vintage suggests, the doctrine may be less novel than Mr Lubanga thinks.

Trial Chamber V of the ICC found that Lubanga committed crimes under Article 25(3)(a) of the ICC Statute “jointly with” other leaders of his political-military organization, the FPLC, by playing an essential part in a common plan to recruit and deploy military forces, which to his knowledge would include children under 15: ¶¶ 1351–1357. Lubanga was therefore convicted as a perpetrator by means: one who remains absent from the scene but, as an essential link in the chain of causation, decides whether and how the crime occurs: see generally Confirmation of charges against Katanga, ¶¶ 473, 495.

According to the standard narrative, the theory of perpetration by means proliferated in civil law jurisdictions after being expounded by German scholar Claus Roxin. Indeed, the ICC relies so heavily on Roxin and other German-influenced sources that Judge Fulford felt the theory was “imported directly from the German legal system”: ¶ 10. This observation is front and centre in Lubanga’s challenge to the legality of perpetration by means on appeal: ¶¶ 332–338.

In this respect, Lubanga keeps good company among international jurists, the ICTY and other UN tribunals having likewise concluded that perpetration by means is not a norm of customary international law: see e.g. Ayyash, ¶ 256. However, they diverge when Lubanga asserts that a person can only commit a crime by engaging directly or physically in the relevant act. As the ICC Prosecutor now observes, UN tribunals hold that principal offenders include parties to a joint criminal enterprise (JCE), where their confederates carry out or procure the criminal act: ¶ 265 n.540. This doctrine draws on jurisprudence from the post-WWII period and is said to reflect a customary legal emphasis on a “common criminal purpose,” rather than causal predominance.

The theories preferred by the ICTY and ICC—JCE and perpetration by means, respectively—are therefore considered to have different juridical and philosophical origins, which has deterred each court from drawing on the other’s jurisprudence. This may concern the ICC little in black letter law terms, as it acts within the confines of its Statute. However, by limiting themselves so, both courts invite the criticism that they apply principles which, being rejected by the other, are obscure and parochial: see e.g. ¶¶ 5 & 20 of the concurring opinion of van den Wyngaert, J. The Prosecutor’s attempt to synthesize common principles from parallel lines of jurisprudence is therefore welcome; however, if it succeeds it will do so against the run of play.

Nevertheless, such harmonization is arguably possible. The principles underlying perpetration by means were canvassed at the international level well before the ICC and ICTY existed, in the same body of sources that ground what is now termed JCE doctrine. Consider, for example, the first treaty provision on parties to offences, Article 6 in fine of the Charter of the International Military Tribunal (IMT) 82 U.N.T.S. 279:

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any…

Emerging Voices: Configuring Admissibility Challenges in the ICC–Civil Dispute or Part of the Criminal Proceedings?

by Gilad Noam

[Dr. Gilad Noam teaches international criminal law at the Hebrew University and is also a practicing attorney at Israel's Ministry of Justice]

What is the underlying nature of a dispute between a State and the Prosecutor of the International Criminal Court (ICC) on issues of complementarity?  Are the proceedings in which a State challenges the admissibility of a situation or a case akin to inter-state disputes before international judicial or arbitral bodies? To what extent is the fact that such proceedings precede a criminal trial relevant?  These issues have practical implications, particularly on issues of burden and standard of proof.

The ICC has not produced significant jurisprudence on these issues in its first eleven years of existence. Decisions on issues of complementarity have focused on the technical interpretation of statutory provisions, usually in challenges brought by defendants. To a large extent, this is the result of the prevalence of “self-referrals” in those situations which have been brought to the Court, meaning that the relevant states have not sought challenge the prosecutions brought in the ICC. In the few non-self-referred situations in which states have objected to ICC proceedings (Sudan, Kenya and Libya), the nature of the admissibility dispute between those states and the Prosecutor, and rules establishing the burden and standard of proof in those disputes, have not been addressed methodically.

The issue did arise recently, however, when Libya challenged the admissibility of the cases brought by the Prosecutor against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, claiming that its national judicial system was actively investigating those cases. On May 31st, the Pre-Trial Chamber rejected Libya’s admissibility challenge with regard to Gaddafi (the admissibility challenge with regard to Al-Senussi is still pending) on the ground that Libya is “unable” to carry out the investigation. Libya appealed the decision. While various aspects of the admissibility challenges were discussed extensively in this blog and other forums, the controversy between Libya and the Prosecutor on issues of burden and standards of proof was largely overlooked. The controversy sheds light, however, on the nature of admissibility proceedings in the ICC and the procedural rules that should apply in that context.

Libya and the Prosecutor agreed that the burden of proving that there is an ongoing investigation or prosecution of the case falls upon the State challenging the admissibility of the case, according to a “balance of probabilities” standard. The Prosecutor submitted that because the State has superior access to the relevant information, the State bears the burden of proving inadmissibility with respect to both limbs of the complementarity test (namely, that proceedings are ongoing in the State, and that the State is willing and able to genuinely investigate and prosecute). Libya disagreed. It argued that the burden of showing that proceedings were…

Emerging Voices: Bemba as a Watershed in Judicial Discretion at the ICC–The Limits of Regulation 55

by David Benger

[David Benger is a student of Political Science at Brandeis University and International law at the Grotius Center for International Legal Studies at the University of Leiden. David can be reached at dabenger [at] gmail [dot] com]

One of the central debates surrounding the International Criminal Court has been the battle between the rights of the accused and the interests of justice. This discussion has been central to the International Criminal Justice field from its inception. Many argued, for example, that the system of due process at the International Military Tribunal in Nuremberg was flawed and that the verdicts were simply rubber stamped Victor’s Justice. Others felt that a fair trial was more than the defendants deserved and that they should have been all summarily executed. International Criminal law has come a long way since then, but the core of the question still stands: Is it possible to have a fair trial when the stakes are so high? At the International Criminal Court, one of the pivot points of this debate has become a rule called Regulation 55 of the Regulations of the Court.

Regulation 55 is a rule which allows judges to provide notice that they may revise the charges presented in the Confirmation of Charges document in light of changed circumstances as the trial progresses. This is called “recharacterization,” and it has emerged as a highly controversial element of the Lubanga, Katanga-Ngudjolo, and Bemba trials. [For a more comprehensive analysis of the roots of Regulation 55, I strongly recommend the Open Society’s analysis].

Proponents of Regulation 55 have argued that it closes impunity gaps inherent in the new and relatively untested jurisprudential cannon of the ICC, while opponents argue that it infringes on the fundamental fair trial rights of the accused (namely, the right “to be informed promptly… of the charge” under article 67(1)(a) of the Rome Statute of the ICC).  In these historic first ICC cases, the contextual elaboration of such rules will have an impact on the shape of the Court’s work in all that follows. In this post, I argue that though Regulation 55 was originally drafted to serve the ICC’s mission of ending impunity, its application, in the case against Jean Pierre Bemba Gombo in particular, has exceeded the scope of its aims.

One of the primary motivations for creating Regulation 55 was the fear that “the Prosecutor will burden the Chambers of the Court with an overload of alternative or cumulative charges in order to avoid risk of acquittal” (C. Stahn). Essentially, there was apprehension about the possibility that an overzealous Prosecutor would ‘throw the book’ at an accused in order to increase the chances of conviction. This would lead to a lengthy, expensive, and taxing trial which might violate the accused’s right to a trial “without undue delay” (Article 67(1)(d) of the Rome Statute).

This rule has played a pivotal role in all three of the cases that have gone to trial at the ICC so far. In the Lubanga trial, the Victims’s Representative filed an application to…

Emerging Voices: Taking Forced Marriage out of the “Other Inhumane Acts” Box

by Frances Nguyen

[Frances Nguyen is a recent J.D. graduate of Lewis & Clark Law School.]

Forced marriage is a complicated subject. The multilayered acts of brutality frequently overlap with sexual slavery, enslavement, rape, and arranged marriage. This can create confusion leading scholars, courts, and legal practitioners to either disregard forced marriage or shelve it into the box of “other inhumane acts” under crimes against humanity. The purpose of this post is to facilitate a proper discussion and address the legal complexities of forced marriage. More importantly, this post is calling for a robust recognition of forced marriage as an international crime. Instead of putting it under the general rubric of “other inhumane acts” it should be explicitly listed and placed alongside other sex and gender-based crimes under the International Criminal Court (ICC)’s Rome Statute.  In doing so, the criminalization of forced marriage by the international community will gain ground. This will lead to greater punishment against the perpetrators and properly accord the victims justice. Victims of forced marriage often endure severe long-term physical and emotional trauma due to their continuous and exclusive relationship with their perpetrators. For example, Fatmata Jalloh was selling pancakes on a rural road in Sierra Leone when a rebel soldier kidnapped her and made her his wife. “I was a child. I didn’t know anything about love at that time. But he said, “If you don’t take me [as your husband], I’ll kill you,” Jalloh said. As his wife, Jalloh was forced to perform sexual acts and domestic duties for two years until Sierra Leone’s civil war ended. “There was no way not to do it. If I would leave, I would have no food. He would kill me.”

Jalloh’s story is representative of many young women and girls who were forced to become “bush wives,” women who were forced into marriage and essentially became domestic and sexual slaves to militia soldiers. From 1991 to 2002, Sierra Leone was embroiled in a civil war, which resulted in the national government fighting against rebel groups. At least 50,000 people died, while an estimated 100,000 suffered from mutilation. While massive atrocities were prosecuted by the Special Court for Sierra Leone (SCSL), forced marriage remained a neglected issue until 2008 when the SCSL in Prosecutor v. Brima, Kamara, and Kanu formally recognized forced marriage as a crime against humanity as an “other inhumane act.”

(more…)

Emerging Voices: Distinction without a Difference – The UN’s Attempt to Fight A War Without Fighting A War

by Leslie Schildt

[Leslie Schildt is a criminal prosecutor at the Monroe County District Attorney's Office in Rochester, New York and previously worked in the Office of the Prosecutor at the International Criminal Court in the Hague.]

Earlier this year, the United Nations created its first ever offensive combat force – the “Intervention Brigade.”  It enters the Democratic Republic of Congo (DRC) as part of MONUSCO, the long-standing United Nations peacekeeping operation in the DRC.  According to Security Council Resolution 2098, the Intervention Brigade will act unilaterally or alongside the Congolese army.  The Brigade is a creature of Chapter VII of the UN Charter, which governs peace enforcement operations.  The force will execute “robust, highly mobile … targeted offensive operations” to find, engage, “neutralize,” and disarm the heavily armed rebel forces.  This is an unprecedentedly aggressive humanitarian combat force that arguably is the first of its kind.

The Intervention Brigade raises serious questions regarding how the offensive mission might affect the non-combatant peacekeepers in MONUSCO.  To understand the potential dangers to peacekeepers and how to avoid them, one must first understand the core legal distinctions between peacekeepers and peace enforcers.

UN peacekeeping operations operate under three bedrock principles: (1) Consent of the main parties, (2) impartiality, and (3) non-use of force except in self-defense and in defense of mandate.  Consent of the parties requires commitment and acceptance from the main parties to the conflict.  Without consent, “the peacekeeping operation risks becoming a party to the conflict; and being drawn towards enforcement action.”  Impartiality requires the peacekeepers’ even-handed treatment of all parties to the conflict, but not neutrality in execution of their mandate.  Indeed, where one party commits blatant violations, “continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil.” (Brahimi Report)  Peacekeepers also cannot use force except in self-defense or in defense of mandate.  “Defense of mandate” may accommodate offensive use of force in some circumstances (e.g., to protect civilians under imminent threat), but peacekeepers certainly cannot lawfully conduct offensive seek-and-disarm missions.

Because peacekeepers are not “used outside the humanitarian function to conduct hostilities,” they remain protected as civilian non-combatants.  During an armed conflict, “all persons who are neither members of the armed forces of a party to the conflict . . . are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”  This attribute enables combatants to distinguish lawful enemy targets from protected persons.  However, it is another matter entirely when peace enforcement units conduct aggressive seek-and-pacify operations. (more…)

AJIL Symposium: Sovereignty and Humanity

by José E. Alvarez

[José Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University School of Law and is the Co-Editor-in-Chief (along with Benedict Kingsbury) of the American Journal of International Law]

As the new co-editor in chief of the AJIL, I, along with my co-EIC, Benedict Kingsbury, are very grateful to Chris Borgen and Opinio Juris for hosting this on-line symposium on the Journal’s April 2013 issue.  We also thank the two authors, Eyal Benvenisti and Leila Sadat, for exposing themselves to this trial by fire.  It takes courage for scholars to expose themselves to instant and exceedingly public reactions by both the illustrious commentators solicited by Opinio Juris and readers encouraged to add instant posted comments.

The Benvenisti and Sadat pieces address core concerns of our discipline and the Journal is proud to have published these thoughtful contributions.  While strikingly different in approach and subject-matter, these articles raise provocative questions about what contemporary sovereignty means and how international law manages to serve the needs of states and the humans that live in them.  Both Benvenisti and Sadat are engaged in re-imaging the global rule of law as a tool to defend humanity rather than states as understood at the time of Hobbes or Bodin.  Benvenisti re-defines the hoary principle of self-determination, re-conceives of states’ responsibility to protect as a limiting not enabling concept, and transforms the reason-giving requirements found in administrative law into erga omnes obligations that states owe to each other.  Sadat uses her empirical findings on the work of international criminal courts to emphasize the need to go beyond the Nuremberg precedent to defend humanity from internecine atrocities that are often not dependent on organizational policies controlled by the state.  Both are working within recognizable legal positivist paradigms but both are also driven by normative aspirations to achieve progress through law, or as the centennial annual meeting of the ASIL put it, “a just world under law.”

This on-line symposium is the first (but hopefully not the last) for AJIL.  I hope that it is only one step in making the Journal more accessible and useful.  A quarterly and peer-reviewed publication like the Journal works under numerous constraints.  As our readers know, since nearly half of the Journal consists of sections devoted to coverage of international decisions, the contemporary practice of the U.S., and book reviews, we generally publish, at best, only two lead articles per issue.  Competing for those eight slots per year are the 600-800 submissions that we receive annually.  (At this mid-year mark, we are now reaching 300 submissions.)  Publishing the Journal also takes time.  Our double-blind peer review process for reviewing manuscripts requires considerable patience from those who submit articles to us and, in the usual case, considerable hard editing work even for those authors who secure an acceptance of publication.  While the over 100 year old Journal now competes with innumerable law reviews here and abroad, the gap between opportunities for print publication (particularly in a peer-reviewed journal) and the ever-rising numbers of members of Oscar Schachter’s “invisible college” has never been wider.  Today’s “college” is not an intimate society of individuals trained in a single mind set.  It is an ever expanding multitude of persons trained in diverse schools of thought and legal and non-legal disciplines, geographically disparate and often specializing in sub-fields that can no longer be defined as covering only “foreign affairs.”  While Benedict and I are attempting to make the Journal ever more reflective of the increasingly diverse “invisible college” (or should we say “invisible colleges”?) from around the world –as through our recent effort to solicit public submissions for an Agora on the Supreme Court’s Kiobel decision—inevitably, prospective AJIL authors will continue to receive more polite rejections than acceptances from us.  Web-based symposia such as this one are a great way to expand the conversation beyond the authors who make it to our print edition—to make sure that more of us have a voice in figuring out what makes a “sovereign” and what it means to serve “humanity.”

AJIL Symposium: Benvenisti response to Klabbers, McCrudden, Von Bogdandy and Schmalz

by Eyal Benvenisti

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]

I am grateful for the three incisive and insightful comments. Due to space limitations I will not be able to do justice to any of the comments in this response, but they will certainly help in my future work on this subject. I will use this brief response to clarify some parts of my argument and to situate the article in my broader research project.

To clarify my argument and hint at its potential significance I will use the pending case before the International Court of Justice concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The dispute focuses on Japan’s discretion to issue “special permits” for killing whales arguably for scientific research as provided by Article 8(1) of the International Convention for the Regulation of Whaling (1946). The said Article allows a member state to issue permits and impose conditions “as the Contracting Government thinks fit.” Japan interprets this obligation as a “good faith” obligation, arguing that neither the International Whaling Commission nor the ICJ “have power to approve or disapprove the issue of a special permit.” (Public seating, 4 July 2013, afternoon, verbatim record, p. 36 paras. 23-24). Australia argues, however, that Japan must demonstrate the scientific value of the permits because “Japan does not ‘own’ the whales it catches.” (Public seating, 10 July 2013, morning, verbatim record, p. 65 para. 23). As stated by Professor James Crawford, arguing for Australia: “In respect of resources in the international public domain, to recognize a wide margin of appreciation is, in effect, to allocate those resources to the exploiting State.” (id., para. 22). Given the global commons problem, continues Crawford, the Convention requires “a proper showing … that [research] proposals are genuinely motivated by scientific considerations and adapted appropriately to achieve scientific goals.” Moreover, Japan must “consider seriously” the views of the IWC and its subsidiary organs, otherwise the conclusion will be “that the project is not being carried out for the purposes of scientific research, but for some other purpose inconsistent with the Convention.” (id. at para. 26).

The trusteeship concept that I develop suggests that states are subject to rigorous accountability requirements not only with respect to their treatment of endangered migratory species, but also when they are using transboundary resources they share with a few other states, and even when they manage their “own” resources. For states do not fully “own” their “own” resources. Stated otherwise, following the German Basic Law concept of ownership (Article 14), “Ownership entails obligations. Its use shall also serve the public good.” As discussed in my article (at pp. 311-12), the same rationale applies with even greater force to states.

To some extent, such accountability obligations are minimal because they do not restrict the scope of sovereign discretion. If Australia is right, Japan would have to provide more data and expert analysis to prove the scientific basis for its decision to permit the killing of whales, and pay serious attention to the views of the IWC and others. But the ultimate decision would stay with Japan. Others may remain skeptical, and their suspicion may even have a stronger basis, but nothing more. This would be an “imperfect” obligation, in the sense that it would be a non-justiciable one; but an imperfect obligation is not necessarily an ineffective one, as anyone exposed to public shaming will appreciate.

The question whether the ICJ may question Japan’s explanation is a different and rather difficult one, which requires further deliberation. In my article I identified this as a question to be addressed at a later stage. Such an inquiry will have to assess the legitimate scope of review of national policymaking by external bodies such as international tribunals, in light of concerns with the impartiality of the judges, their competence to make better judgment calls than the reviewed sovereigns, and the potentially stifling impact of their interventions on domestic democratic processes. It may make sense, for example, for the reasons stated by Crawford, to authorize international tribunals to review national discretion when it applies to the use of migratory species but not to the management of domestic stocks.

This minimalist vision seems insufficient for von Bogdandy and Schmalz who want to “Push[] Benvenisti Further.” The opposite push comes from McCrudden who regards my position as “anything but ‘modest’ or ‘minimal’.” (more…)

AJIL Symposium: Comment on Eyal Benvenisti, Sovereigns as Trustees of Humanity

by Christopher McCrudden

[Christopher McCrudden FBA is Professor of Human Rights and Equality Law, Queen’s University, Belfast, William W Cook Global Professor of Law, University of Michigan Law School, and Leverhulme Major Research Fellow (2011-2014). I am particularly grateful to Kathleen McCrudden who provided helpful comments on an earlier draft.]

Eyal Benvenisti asks how far, if at all, national sovereign states are under an obligation to take into account the effects of their internal decisions on those outside the boundaries of the state. We can consider his argument either at a very high level of abstraction, or test his (and our) intuitions by using a worked example of a practical problem that raises the issue he discusses. I prefer the latter approach.

An example

Over the past couple of years, there has been an intense debate in the United Kingdom over whether the UK should leave the European Convention on Human Rights; as part of this larger debate, there has also been a narrower debate over whether (and if so how) the UK should implement the decisions of the European Court of Human Rights on prisoner voting (an issue on which I have blogged earlier elsewhere).  The way in which both the broader and narrower debates are conducted have potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court on prisoner voting, or high-ranking members of the Government arguing that the UK should leave the Convention, has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states.

It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records.  It is another thing entirely where the British debate is transmitted to barely democratic European states with a debatable human rights record, and a weak commitment to constitutionalism. In the latter states, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimizing their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody.  Is the UK under an obligation to take into account the adverse effects that the British debate, and any decisions flowing from it, may have elsewhere?

There is, of course, both an empirical as well as a normative issue in play here.  For the purposes of this post, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, the UK ought to take these into account. It is at this point that Eyal Benvenisti’s article is powerfully relevant, since it addresses directly the morality (as well as the legality) of ignoring what economists call ‘externalities’ in domestic decision-making.  On what might we base an obligation (whether moral or legal) to ‘internalise’ these externalities, for example in the debate over the UK’s continuing membership of the ECHR, or whether to implement the ECtHR’s decisions?

Benvenisti’s argument

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