In association with the International Commission of Jurists

International Human Rights Law

16 Oct

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, part of the Law Faculty of the University of Leiden.] The debate on the legality of a U.S. strike in Syrian territory is unlikely to produce consensus, in part because those involved in the debate take fundamentally different approaches to international law.  Unless the underlying commitments of each approach are brought to the foreground, contributors to the debate risk talking past each other.  As a result, an important opportunity will likely be lost. Prof. Harold Hongju  Koh, formerly of the U.S. State Department and now back at Yale, argued in favor of the potential legality of a U.S. strike in Syrian territory, as outlined by the U.S. government before the plan was placed on indefinite hold.  Prof. Carsten Stahn of Leiden University critiques Koh’s argument, ultimately supporting the bar on the use of armed force absent self-defense or U.N. Security Council authorization.  Koh then responded to Stahn and others, largely reiterating his earlier points, and Stahn provided a further rejoinder. I will not argue the merits of the debate, but rather highlight issues central to each scholar’s approach that merit further discussion by both sides.  Koh’s emphasis on the unacceptable results of a “rigid” approach is not likely to persuade a positivist focused on existing law.  Stahn’s exposition of possibilities and restrictions within the existing law may seem slightly beside the point for a reader who finds the likely results of restrictions on the (just) use of force intolerable. For the debate to continue productively, a good first step would be to candidly recognize the potential limitations of both positions.  Restrictions on the use of force, necessary to limit international armed conflict, may result in the commission of atrocity crimes that cannot be deterred by non-violent means.  Loosening restrictions on the use of force, even with the best of intentions, not only increases the potential frequency and intensity of armed conflict, but also may weaken the authority and function of international law more generally.  These are issues that should be tackled head-on, not minimized. I focus primarily on these blog posts by these two professors because I think they are exemplary in both senses of the word.  They are among the most well-argued pieces on the subject, and they demonstrate the strengths of their respective positions. Koh's Approach: Koh’s emphases—normative values, connecting law and policy, and a lawyer’s duty to play a leading and constructive role in interpreting law—are no accident.  They are a direct outgrowth of his long and fruitful engagement with the New Haven School of International Law.  In Koh’s 2007 evaluation of the New Haven School, he identifies a number of commitments the School has made, including normative values and connecting law and policy.  He emphasized that competing schools of international law such as those espousing a commitment to a “new sovereigntism” hold a depressing vision of international lawyers as yes men or scriveners, rather than architects, public servants, or simply “lawyers as leaders.”  In Koh’s 2001 An Uncommon Lawyer, he lovingly recalls examples of lawyers as “moral actors” who “guide the evolution of legal process with the application of fundamental values.”  In one of the most cited international law articles of all time, Koh’s 1997 Why Do Nations Obey International Law, he notes that the New Haven School “viewed international law as itself a decisionmaking process dedicated to a set of normative values” in contrast to “a set of rules promulgated by a pluralistic community of states, which creates the context that cabins a political decisionmaking process.”   (He also, notably, critiques past failures of the New Haven School and notes the critiques of others, demonstrating his own intellectual flexibility.)  In Koh’s 1995 A World Transformed, he recalls the 1974 founding of Yale Studies in World Public Order (which later became the Yale Journal of International Law) and recalls the demand for an evaluation of an ethical World Public Order, refreshed through the decades by scholars, including Koh himself.
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14 Oct

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project. An earlier post on this appears here.] Harold Koh and Daniel Bethlehem deserve credit for having launched this important and timely debate. Koh has formulated an excellent reply to critiques to his post which stands in the best tradition of debate over the prohibition of the use of force. As we all known, Article 2 (4) has been declared dead and rejuvenated too many times. It is thus legitimate to have struggles as to the proper way forward. I see merit in the need to map ‘current law onto modern reality’.  But I would argue that some of the underlying elements of his existing proposition of an ‘affirmative defence are rooted in tensions that are unlikely to be solved through discourse over the creation a new substantive exception to the prohibition of the use of force. A case-by-case assessment may be ultimately better than an abstract rule to accommodate the problems inherent in a formulation of a doctrine that has been controversial for centuries.  I would like to highlight three aspects that may require deeper reflection in the debate: (i) narratives regarding ‘progress’, (ii) the relationship between ‘threat of force’ and ‘use of force’, and (iii) the choice of the appropriate methodology for the way ahead.   1. Observational standpoints and narratives of progress Firstly, it is important to clarify observational standpoints. Koh presents change to the rule a ‘progress’ and adherence to it as stalemate. I have doubt whether the debate can be adequately addressed, let alone resolved, based on the dichotomy between a progress-adverse ‘absolutist’ view, represented by the illegal per se rule, and a modern ‘reformist ‘view’ which would argue that the rule is not ‘black and white’. It is an oversimplification to divide scholarly opinion into these two camps. Most international lawyers would acknowledge that the Charter is a ‘dynamic instrument’. It is a given, and not a point of controversy’ that it should be interpreted in light of its objectives and purposes. There are cases in which Art. 2 (IV) does not prohibit the use of force, such as intervention by invitation which raises difficult issues of the legitimacy consent in the context of civil war (as noted by Jordan Paust). The ICJ recognized in Nicaragua (Judgment, 27 June 1986, para. 175) that conventional and customary law on the use of force are not necessarily identical in content.  Even proponents of a strict interpretation of Article 2 (4) recognize ‘shades of grey’ and options for development. There may thus more agreement than divide. In my view, Koh takes a shortcut by criticizing international lawyers for having ‘become more comfortable stating rules than in figuring out how international law might help to push unfolding events towards the right resolution’. The roots of the controversy lie deeper. Koh’s position is based on a specific approach towards international law. His argument is based on the premise that international law is an instrument of problem-solving and a tool to facilitate decision-making processes over war and peace. This approach advocates different prerogatives than a more systemic vision of international law that regards norms and institutions as the centre of a normative system that protects collective interests and values and constrains behavior. This tension has been inherent in approaches to international law for decades. The main problem with Koh’s position is not so much the normative content of the proposition, i.e. the claim that use of force may in some circumstances be in the spirit of Charter principles and help ‘protect human rights. The fundamental difficulty of Koh’s argument is that it reduces the options for accountability of military action.  It shifts the balance from a centralized enforcement system to a decentralized system where nations become the arbiters over the legality of their claims to intervention. This causes fears and anxieties among many UN members. Koh’s plea for new abstract regulation would give formal recognition to the claim that the Council is an option à la carte than can be turned on and switched off in ‘hard cases’ where there is no agreement. Giving up this constraint weakens leverage for compliance and the need to justify choices of behavior before a collective forum, in circumstances in which international law is most important in debate. This is a position that many nations will be reluctant to sacrifice for the gain of greater clarity on the rule. One of the main dilemmas of ‘humanitarian intervention’ has been the question of ‘agency’, i.e. that action is carried out in the name of others. It has been inherent in humanitarianism since it its inception. R2P mitigated this dilemma through recourse to collective response schemes.  Koh’s suggested new rule turns a ‘blind eye’ to this. It fails to engage with the question how intervening nations could claim authority to speak for others/victims.  In the African Union, this dilemma has been mitigated by an institutional solution, i.e. consent under Articles 4 (h) and (j) of the Constitutive Act which recognizes
‘the right of the Union to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely; war crimes, genocide and crimes against humanity’.
Koh’s suggested norm does not address such institutional safeguards.  It simply uses institutional support as one optional parameter to support the claim for legality. He suggests that the claim for exemption from wrongfulness would be  ‘strenghtened’ if intervening nations could demonstrate ‘that the action was collective’. This may simply not be enough.
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13 Oct

One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I's remarkable unwillingness to question Libya's strategic invocation of its precarious "security situation." As described by Libya, that situation really is magic -- somehow managing to prevent the Libyan government from doing anything to protect al-Senussi's rights without preventing the government from prosecuting al-Senussi. Consider the issue I...

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12 Oct

Pre-Trial Chamber I has granted Libya's challenge to the admissibility of the case against Abdullah al-Senussi. This is obviously a major win for the Libyan government, especially given that the very same PTC denied its admissibility challenge regarding Saif Gaddafi. There is much to like in the PTC's decision. It takes a very broad approach to the "same conduct" requirement with regard...

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10 Oct

In my previous post on the Taylor appeal, I noted two troubling aspects of the Appeals Chamber's judgment concerning customary international law: (1) its erroneous belief that legal principles that narrow criminal responsibility have to have a customary foundation; and (2) its hypocritical affirmation that recklesness is the mens rea of aiding and abetting (which goes beyond the ICTY and ICTR)...

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04 Oct

[Andreas Ziegler is Professor at the University of Lausanne and Counsel at Blum & Grob Attorneys-at-law in Zurich.] The reference to John Gray’s bestselling “Men Are from Mars, Women Are from Venus” which states that most of common relationship problems between men and women are a result of fundamental psychological differences between the genders certainly oversimplifies Moshe Hirsch’s argument in his Chapter. And yet a recurring idea in his contribution is that human rights lawyers refer differently to human rights treaties than investment lawyers because of their socialization. What he describes as the sociological perspective can be summed as the explanation of these different attitudes by the different career paths of those involved in investment cases and those involved in human rights cases. He holds “[w]hile most human rights lawyers work in legal divisions of NGOs of academia, foreign investment lawyers (and arbitrators) are predominantly senior lawyers/practitioners, legal scholars of former judges affiliated with major international firms.” (p. 90 in fine). This is not the only argument in his contribution but I would like to focus on it as I find it particularly intriguing and worthwhile to be developed in more detail. There is certainly some truth in this statement. When it comes to the application of investment treaties we are traditionally confronted with lawyers who take a certain interest in the global economy and especially the role of investors (normally multinational enterprises). These were for a long time mostly civil servants negotiating such treaties and (national) business associations interested in the conclusion of such treaties with specific partner countries. More recently when these treaties (or chapters thereof – most prominently Chapter 11 NAFTA) were discovered for their practical use by practicing lawyers we got used to their arguments being heard by investment tribunals. When it comes, however, to the arbitrators one must say that originally and still to a large extent today we see small group of specialists in international commercial arbitration being appointed to the respective arbitration tribunals. But there is an increasing number of arbitrators being appointed who are not specialized in international commercial law but come from public international law – not only international economic law. Some may remember the very early appointment of René-Jean Dupuy as sole arbitrator in Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (1977). It is certainly still true that it is more often the State appointing a specialist in public international law than the investor involved in a case. This is not surprising as the investor is focusing on his individual commercial interests and the State often invokes some public policy concern or constraint for his action. Also commercial law firms actively search for appointment by multinational firms and have traditional links to commercial lawyers they have worked with in the past. Yet, one can no longer claim that there would not be an increasing number of arbitrators appointed who do not have a commercial arbitration background. Among the academics being appointed there is an increasing number of academics who have a broader view of the applicable law and are open to consider the relevance of human rights treaties or other norms of public international law that should be taken into account when settling a dispute. This is also true for the other participants in the proceedings where Parties have normally the possibility to involve experts from other fields and NGOs are increasingly making contributions – be it officially in amicus curiae briefs or using the public domain. The same is obviously true for academia where non-investment specialists have only recently discovered the relevance of investor-State arbitral awards but now contribute considerably to the debate on how investment treaties should be interpreted- and more importantly negotiated in the future. (see my forthcoming volume "Towards Better BITs") A particularly interesting situation results from the case law of tribunals when their character as a human rights or an investment tribunal is not so clear.
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04 Oct

[Moshe Hirsch is Professor of International Law at the Hebrew University of Jerusalem Faculty of Law.] Sociology of international law involves the study of how social factors influence the development and enforcement of international law. As elaborated below, sociological analysis casts a new light on a significant dimension of the relationships between different branches of international law, and enriches our understanding of social factors involved in in legal decision-makers' inclination to incorporate or reject legal rules developed in other branches of international law. This chapter aims to analyze the particular set of interactions between two branches of international law - human rights and investment treaties - from a socio-cultural perspective. Analysis of investment tribunals’ decisions relating to human rights instruments reveals that while these tribunals often incorporate rules of general international law (particularly on state responsibility and treaty law), they adopt a quite consistent approach opposing the incorporation of international human rights law in investment disputes.  Investment tribunals have generally declined to thoroughly examine the specific provisions of international human rights instruments invoked by the parties, notwithstanding the various arguments raised during different stages of litigation by the various parties. In all cases dealing with the interaction between investment and human rights instruments, not one investment tribunal has absolved a party from its investment obligations or reduced the amount of compensation as a result of the consideration of human rights instruments. Sociologists of law have long emphasized that law is "always rooted in communities"; and laws are considered by these scholars as expressive types of these communities. The basic argument of this chapter is that legal interactions between branches of international law may also be analyzed as social interactions between the relevant communities. These legal interactions are affected by the particular features of relevant social settings, as well as by the mutual relationships between the relevant social groups. More specifically, the socio-cultural distance between the particular international legal settings affects the inclination of relevant decision-makers to incorporate or reject legal rules developed in other branches of international law. Generally, greater socio-cultural ‘distance’ between the involved social settings and groups decreases the prospects for mutual incorporation of legal rules developed in the other legal sphere. The social settings in which international investment and human rights laws emerge and are interpreted, are very different.
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01 Oct

Ryan has kindly responded to my post commenting on his claim that "arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict." Unfortunately, our conversation has something of a Pinteresque quality: in claiming that I mischaracterized one of his central claims, he mischaracterizes my central claim....

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29 Sep

I pointed out last month that Owen Bowcott, a legal affairs correspondent for the Guardian, incorrectly claimed that "[g]enerals and politicians could evade responsibility for war crimes in future because of a ruling requiring proof that they 'specifically directed' atrocities." That is not what Perisic does: the Appeals Chamber did not say that a perpetrator must specifically direct a crime; it said that a perpetrator...

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28 Sep

The Pre-Trial Chamber has ordered the Registrar to arrange a privileged visit between al-Senussi and his ICC lawyer, Ben Emmerson, in Libya. On the positive side, the PTC seems to have learned something from Libya's abhorrent detention of Melinda Taylor. Witness the following language in the order: 15. Taking into account the purpose of the visit, the provisions of the ad...

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27 Sep

As readers know, the Special Court for Sierra Leone's Appeals Chamber upheld Charles Taylor's conviction and 50-year sentence yesterday. It's been interesting to watch human-rights groups and advocates claim, predictably, that the judgment is a milestone in the fight against impunity, a position that seems to wilfully ignore the significant failure of the prosecution in the case. After all, both...

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