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UN and other Int’l Organizations

The International Community and the Challenge to the Rule of Law: The Future of Iran Nuclear Deal

by Katayoun Hosseinnejad and Pouria Askary

[Katayoun Hosseinnejad is a university lecturer of international law and attorney at law in Iran and Pouria Askary is an assistant professor of international law at law school of ATU and a visiting professor of law at Islamic Azad University and Tarbiat Modarres University.]

On May 10, two days after the US President pulled his country out of the Joint Comprehensive Plan of Action (JCPOA), Iranian Foreign Minister, in a letter to the UN Secretary General, states that ‘If JCPOA is to survive, the remaining JCPOA Participants and the international community need to fully ensure that Iran is compensated unconditionally through appropriate national, regional and global measures.’(here). While political discussion on this matter is ongoing, which has led, inter alia, to the recent European Commission’s decision demonstrating the EU’s commitment to the JCPOA by preserving the interests of European companies investing in Iran (Press release), this post discuses the legal obligations of states in preserving the JCPOA under the Charter, in general, and the Security Council Resolution 2231 (2015), in particular (here).

The Resolution 2231, aimed at settling the dispute over Iran’s nuclear programme, was adopted under Chapters VI and VII of the UN Charter by the affirmative votes of all the members of the Security Council including the US. The Resolution refers several times to Article 41 and explicitly mentions the obligation of states under Article 25 to accept and carry out the Security Council’s decisions. The Resolution, in its first paragraph, endorses the JCPOA and urges its full implementation.

As discussed by Dan Joyner and by Julian Ku, the JCPOA is not a treaty; however, the fact that it is endorsed and urged to be implemented in full by the Resolution 2231, makes it binding on the UN member states. The obligatory character of the Security Council’s decisions, even those that are not related to the enforcement measures under Chapter VII of the Charter, despite what has been argued by a few commentators, has been emphasized by the ICJ in its Advisory Opinion on Reparation for Injuries, when the Court pronounced:

The Charter has not been content to make the Organization created by it merely a centre ‘for harmonizing the actions of nations in the attainment of these common ends’ … It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it… and to accept and carry out the decisions of the Security Council… (Advisory Opinion, p. 178)

The Court elaborates this point further in its Advisory Opinion on Namibia, to reject the contention that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. The Court by emphasizing that ‘[i]t is not possible to find in the Charter any support for this view’, and the fact that this article ‘is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council’ holds that Article 25 ‘is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter.’ The Court adds further that a reading that limits the application of Article 25 to the enforcement measures under Chapter VII would make Article 25 ‘superfluous, since this effect is secured by Articles 48 and 49 of the Charter.’ (Advisory Opinion, para 113). Based on these considerations, the Court concludes that:

Thus when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision… To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter. (Advisory Opinion, para 116).

The Resolution 2231, adopted in accordance with the Charter, urges for the full implementation of the JCPOA. It calls upon all member states, as well as other international actors, to support its implementation and to refrain from actions that undermine implementation of commitments under the JCPOA (para 2). Hence, all the UN member states, including the US, are fully committed to implement the Resolution and the JCPOA, which forms a part of it. Although the use of the term ‘calls upon’ has led a few scholars such as John B. Bellinger to argue that this paragraph has not created any obligation under international law (here), as stated by the ICJ, the terms of the Security Council Resolution should be interpreted considering ‘all circumstances that might assist in determining [their] legal consequences’:

The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances… (Namibia Advisory Opinion, para 114).

To adhere to the idea that simply because of the use of the phrase ‘calls upon’ in the Resolution, states are free to refrain from its implementation makes the whole Resolution superfluous. The Resolution 2231, which marked a fundamental shift in the Security Council’s consideration of Iran’s nuclear issue, was adopted with the aim of providing a comprehensive solution to the dispute over Iran’s nuclear programme for which the comprehensive lifting of nuclear-related sanctions, including international and national sanctions, was an essential part, as stated in the Joint Plan of Action of E3/EU+3 and Iran issued on 24.11.2013. Thus, it cannot be argued that no state except Iran has hard law obligation in implementing the Resolution. In light of this, the recent decision of the United States to withdraw from this agreement and the measures it has taken to defy the implementation of the Resolution, by reapplications of US sanctions on Iran and its commercial partners in the world, is a material breach of its obligations to comply with the decisions of the Security Council under the Charter and therefore, entails its international responsibility.

The question, however, remains as to the legal relations arising from the occurrence of the US internationally wrongful act with the other UN member states.

Of course, every state, by virtue of its membership in the international community, has a legal interest in the fulfillment of certain essential obligations, and for that reason, states are under general obligation not to provide any aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter (Article 16 of the draft rules on state responsibility). Nevertheless, we believe that in this situation the UN member states have also positive obligations in taking appropriate measures to ensure the continuous implementation of the Resolution 2231 and the JCPOA, because the challenge imposed by the US is not only against Iran but it targets what forms the universally recognized bases of international legal order: pacta sunt servanda, good faith, multilateralism, international cooperation, and the rule of law.

Since the Charter is an international treaty, the obligations it contains are, from the point of view of their origin, treaty obligations for which all state parties, and not only the injured state, have an interest of a general character in compliance with it. Moreover, obligations of states under the Charter, in general, and the decisions of the Security Council, in particular, have special importance not only because of the expressed reference of Article 103, but also due to the important role they play in maintaining international peace and security.

The United Nations was established by peoples who were determined to ‘achieve international co-operation in solving international problems’ and for that purpose, their governments had obliged themselves to ‘fulfill in good faith the obligations assumed by them in accordance with the present Charter’. (Articles 1(3) & 2(2) of the Charter). The good faith performance of obligations of states under the Resolution 2231 requires them to take measures to enable its implementation. The Resolution contains positive obligations by emphasizing on the ‘States’ rights and obligations relating to international trade’ (preamble); it expressly underscores that member states are obligated under Article 25 of the Charter to accept and carry out the Security Council’s decisions (preamble). It further calls upon all member states, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and the Resolution 2231 (para 2). The good faith implementation of these obligations cannot be equated with the mere disagreement with the violation occurred and for that reason, in the joint statement issued by the Prime Minister Theresa May, Chancellor Angela Merkel and President Emmanuel Macron, they announced their commitment to ensure ‘the continuing economic benefits … that are linked to the agreement.’ (here). In the same line, the EU high representative has emphasized that ‘for the sake of our own collective security’, not only the European Union is determined to preserve the deal, but also ‘expect the rest of the international community to continue to do its part to guarantee that it continues to be fully implemented.’ (here). Accordingly, the President of the European Commission stated that ‘We must act now and we will act now. That’s why we are launching the process to use the 1996 Blocking Statute to neutralise the extraterritorial effects of US sanctions on European companies’.

When a state violates such an obligation in a systematic way, i.e. ‘in an organized and deliberate way’ and with the clear intention to violate the norm, other states have obligations in stopping the violator as the ICJ in Consular Staff in Tehran case has emphasized:

Such events cannot fail to undermine the edifice of law carefully constructed by mankind… the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. (Judgment, para 92).

The deal, which ‘is one of the biggest achievements diplomacy has ever delivered… belongs to the entire international community’, as correctly mentioned by the EU High Representative, Federica Mogherini (here). Faced with such a threat to the foundations of international legal system, the international community, in general, and Iran’s JCPOA partners, in particular, not only have strong interest but also obligation to take all necessary measures in order to guarantee the rule of law in international relations.

In closing, we thank Opinio Juris for letting us contribute this guest blog post.

PTC I’s Problematic Closed, Ex Parte Hearing on the Myanmar Situation

by Kevin Jon Heller

Last Friday, Pre-Trial Chamber I issued an Order Convening a Status Conference to consider the OTP’s request for a ruling on whether the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh — an issue I discussed here. According to the Order, the status conference will be held “on 20 June 2018… in closed session, only in the presence of the Prosecutor.”

I find a number of aspects of the short Order troubling. To begin with, I don’t understand why the PTC believes the status conference has to be held in closed session. Whether the ICC has jurisdiction over deportation from a non-member state to a member state is a pure issue of law, so what justifies the secrecy?

The answer seems to come in paragraph 4 of the Order, where the PTC says that, “[w]ith a view to adjudicating the Prosecutor’s Request, the Chamber orders the Prosecutor to consider the issues set out in the annex appended to the present order and to address them during the status conference.” The PTC thus clearly believes that there are other issues at stake concerning the OTP’s request in addition to the purely legal one. But the annex is also secret, so we have no idea what those other issues might be.

I am also troubled by the ex parte nature of the status conference. Why are counsel for Myanmar and Bangladesh not invited, given that the interests of those states are obviously affected by the jurisdictional issue — particularly Myanmar’s, given that the conference concerns the potential criminal responsibility of its officials? Even if the PTC is within its power to hold the status conference ex parte (which it probably is), doing so will only further alienate non-member states concerned with the ICC’s overreach and penchant for secrecy. So I hope the PTC has a very good reason for inviting only the OTP.

Finally — and perhaps most problematically — there is no doubt whatsoever that the PTC’s Order violates the Regulations of the Court, which the judges themselves wrote and adopted. Here is Regulation 20, concerning public hearings (emphasis mine):

1. All hearings shall be held in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber.

2. When a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order.

Even if we assume that the PTC has the power to hold a closed hearing, the Order does not comply with Regulation 20(2). The Order makes no attempt to explain why the status conference cannot be held in public. Literally none.

The PTC’s failure to comply with the Regulations and its general lack of transparency is unacceptable given the stakes — legal and otherwise — in the Myanmar situation.

The End of the Iran Deal and the Future of the Security Council Snapback

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.]

Yesterday, President Trump announced that the United States will withdraw from the Iran deal. He is not claiming any major breach by Iran, but rather withdrawing because, in his view, it was a terrible deal from the start. As a matter of domestic and international law, he has the power to do this. As a matter of policy, this is a particularly ugly manifestation of the Trump Doctrine – of undoing President Obama’s signature initiatives based on dubious reasoning and questionable motives. Iran is a bad actor, but it is hard to fathom how this will be improved by re-raising its incentive to develop nuclear weapons, demonstrating that the United States is a deeply unreliable negotiating partner, and handing a propaganda gift to Iranian hard-liners.

But here we are. And what is next? I want to focus on one small piece of this unhappy question – the ability of the United States to invoke the “snapback” provision of Security Council Resolution 2231.

As a refresher, Resolution 2231 lifted prior sanctions imposed by the Security Council on Iran in the course of blessing the Iran deal (formally known as the Joint Comprehensive Plan of Action or JCPOA). These prior sanctions had been an important piece of the pressure brought to bear against Iran, in addition to separate sanctions imposed unilaterally by the United States and allies. But in lifting the Security Council sanctions, Resolution 2231 contained a “snapback” provision. This provision provides that if “a JCPOA participant State” notifies the Security Council of “an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA,” then all the prior Security Council sanctions will be re-imposed on Iran after 30 days unless the Security Council affirmatively votes not to re-impose the sanctions. In other words, provided that the pre-conditions are met, a JCPOA participant State who wields a Security Council veto can single-handedly force the re-imposition of prior Security Council sanctions.

In announcing withdrawal from the Iran deal, President Trump did not mention the snapback provision. And the United States is unlikely to try to invoke the snapback provision immediately. As a matter of strategy, this seems like a good card to hold in reserve, at least until Iran actually does cease complying with the deal. As a matter of law, for the Trump Administration to even try to invoke the snapback, it must specify its belief that Iran is not substantially performing its commitments under the JCPOA – and so far, the United States has not even attempted to argue this.   Over on Lawfare, Elena Chackho writes that “[i]f the U.S. does attempt to trigger this ‘snap-back’ mechanism … it appears that there is little the other members of the Council can do to prevent the Security Council sanctions being re-imposed.” I disagree. As I’ve written earlier, other nations could appropriately dispute the legal effectiveness of the snapback’s invocation if the United States triggers it without good faith grounds for believing Iran to be significantly non-performing its commitments under the JCPOA.

But what if Iran later ceases its performance of the JCPOA, now that the United States has failed to hold up its end? In that case, could the Trump administration successfully invoke the snapback provision?

As a legal matter, I think this also poses some challenging questions of interpretation. The snapback provision turns out to have been drafted mostly in anticipation of the wrong contingency, namely the risk that Iran would be the initial defector. That makes it rather complicated to apply to the current situation. I am still thinking through the interpretive issues, but let me sketch out a few initial thoughts here.

Because the United States will be withdrawing from the deal and re-imposing sanctions on Iran, there are at least two reasons why it might not be entitled to invoke the snap-back provision. First, one could argue that the United States will have lost its right to do so. Textually, one could argue that it will no longer be a “JCPOA participant state” once it has withdrawn from the deal. This may sound persuasive, but it doesn’t work so well on a closer look at the text. In paragraph 10, Resolution 2231 speaks of “China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran (the ‘JCPOA participants’).” Therefore, its use of “JCPOA participant state” just seems like a shorthand for these countries, excluding the EU. Nonetheless, the use of this shorthand does at least signal the underlying assumption that the party invoking the snapback will itself still be in the deal. This in turn might support a claim that the United States is estopped from invoking the snapback in a situation where it has itself first abandoned the deal.

Second, one could claim that the United States has no good-faith basis for believing Iran to be in “significant non-performance of commitments under the JCPOA” if Iran’s non-performance stems in turn from U.S. non-compliance. Let’s assume that, before ceasing its own performance, Iran invokes the dispute-resolution provisions of the JCPOA (which involve several steps, including ultimately an Advisory Board giving a non-binding opinion). Then, under paragraph 36 of the JCPOA, “[i]f the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant non-performance, then the participant could treat the unresolved issue as grounds to cease performing its commitments under the JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes non-performance.” Iran will presumably not notify the Security Council of U.S. non-performance, since that would trigger the snapback detrimental to Iran’s interests. But it will have “grounds to cease performing its commitments.” And if it has grounds to cease performing its commitments, then it is acting within its rights under the JCPOA. It is therefore not engaged in “significant non-performance of commitments” because these commitments have themselves been suspended. One can extend this, albeit with difficulty, to argue that the United States cannot make a good faith notification to the contrary. Overall, this argument is probably too cute to be convincing. It has a certain amount in common with the material breach argument that the United States used to justify the second Gulf War. Moreover, this reasoning would given Iran a way to duck the snapback any time it had exhausted the JCPOA dispute settlement provisions and continued to have a good-faith belief that one of the other JCPOA parties was failing to significantly perform under the deal – an interpretation which strikes me as unlikely to have been acceptable to the U.S. negotiators at the time.

But while these arguments are unlikely to be persuasive to all, they could well be persuasive to some. Any countries which are persuaded could legitimately dispute the legal effectiveness of the snapback’s invocation by the United States and therefore decline to treat the prior Security Council sanctions as being re-imposed on Iran. If they do this, the United States would not have any legal lever for making its invocation of the snapback prevail, except in the unlikely event that it could persuade the Security Council to formally endorse this invocation or have the Security Council (or General Assembly) seek and receive an advisory opinion from the International Court of Justice in favor of its interpretation. Thus, if the Trump Administration wishes to invoke the snapback, it must be aware that its own repudiation of the Iran deal may reduce the effectiveness of this invocation.

There is a broader point worth noting here about the use of snapbacks and other trigger termination provisions. After Resolution 2231 passed in 2015, I wrote a comment in AJIL celebrating the potential of such provisions. But I noted that these provisions need to “incorporate protection against arbitrary activation.” I also suggested that there would often be advantages to entrusting independent civil servants like the Secretary-General with the power to trigger termination, rather than vesting this power with individual states. These points seem all the more important today.

A Brief Comment on Jennifer Trahan’s Post About the P5

by Kevin Jon Heller

We have published a series of fascinating posts in recent days debating whether the permanent members of the Security Council have a legal obligation under the UN Charter not to veto resolutions calling for the investigation or prosecution of atrocity crimes. Jennifer Trahan argued yes; Mohamed Helal responded no; and Trahan replied yes again.

I am not convinced by Trahan’s response to Helal, but he can speak for himself. I simply want to take issue with one of Trahan’s central claims in her new post: namely, that a significant number of states reject the idea that the P5 “can veto absolutely any Security Council resolution, at complete discretion, without any concern whether their actions are consistent with other bodies of international law or the purposes and principles of the UN Charter.” Here is what she says:

The question is whether this is how one should read the UN Charter. And, whereas Dr. Helal attacks my post, as “utopian thinking” there are at least 115 States that have joined the ACT Code of Conduct and 96 States that have joined the French/Mexican initiative, both calling for veto restraint in the face of genocide, crimes against humanity or war crimes, that would likely take issue with his approach. Indeed, two of the permanent members of the Council (France and the United Kingdom) have joined these important initiatives—so even these permanent members do not maintain veto power should be unrestrained in the face of atrocity crimes.

In fact, both the ACT Code of Conduct and the French/Mexican initiative support Helal’s position, not Trahan’s. Trahan’s argument is that, as a matter of law, the P5 cannot veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Both of the documents that Trahan cites, however, make clear states believe that, as a matter of policy, the P5 should not veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Here is the Explanatory Note to the ACT Code of Conduct (emphasis mine):

UN Member States are increasingly expressing support for the idea that permanent members of the Security Council should voluntarily agree to refrain from using their veto in situations involving mass atrocity crimes. This initiative is actively being pursued by France, which is seeking the support of other permanent members.

And here is the French delegation to the UN explaining the France/Mexico initiative (emphasis mine):

France also promotes the framing of the use of veto by the five Security Council permanent members in case of mass atrocities.

At the United Nations Security Council, decisions are adopted with a majority of 9 votes out of the 15 votes of the Council’s members. Any decision is rejected if one of the five Security Council permanent members (China, France, Russia, The United Kingdom, and the United States of America) uses its veto power.

To avoid the paralysis of the Security Council, the President of the French Republic, François Hollande, proposed in 2013 that the permanent members voluntarily and collectively pledge not to use the veto in case of recognized mass atrocities.

Each document claims only that the P5 should “voluntarily” refrain from vetoing Security Council resolutions calling for the investigation or prosecution of atrocity crimes. Neither suggests that the P5 are under a legal duty to do so. Indeed, calling for voluntary renunciation of the veto would make no sense if the P5 were already legally obligated under the UN Charter not to veto.

In short: states’ support for the ACT Code of Conduct and the France/Mexico initiative provides significant opinio juris in favour of the idea that the P5 have a legal right to veto any Security Council resolution they oppose — even those that call for the investigation or prosecution of atrocity crimes.

Roundtable on the Siege of Eastern Ghouta

by Kevin Jon Heller

I had the pleasure of participating yesterday in a superb — and long! — panel on the 2013 siege of Eastern Ghouta. The panel discussed the facts, the law, and the politics of the siege. I was joined by Hussam Alkatlaby, the Executive Director of the Syrian Violations Documentation CentreJoost Hiltermann, programme director for Middle East & North Africa at the International Crisis Group; and Robin Peeters, the Syria Policy Officer in the Dutch Ministry of Foreign Affairs.

You can watch a recording of the event on the University of Amsterdam website here.

The panel was sponsored by the War Reparations Centre at the Amsterdam Centre for International Law (ACIL); the Amsterdam Students Association of International Law; and the Syria Legal Network.

Why Art. 4(h) of the AU’s Constitutive Act Does Not Support UHI

by Kevin Jon Heller

I like much of what Jennifer Trahan says in her recent post about the permanent veto. But I would take issue — unsurprisingly — with her claim that “there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice.” There is no need to belabour the Kosovo argument, which I have already criticised in my response to Harold Koh. Instead, I want to focus in this post on the idea that African practice provides support for a customary right to unilateral humanitarian intervention (UHI). That idea seems to be popping up with more regularity these days, as those who believe UHI should be legal cast about for a plausible argument to that effect. Marc Weller, for example, recently made a similar claim in his intemperate response to Marko Milanovic’s recent post at EJIL: Talk! on the illegality of the Syria attack:

Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties–an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force.

Weller is referring to Art. 4(h) of the Constitutive Act of the African Union, which has been ratified by all 53 African states have signed the Act. Art. 4(h) permits the AU’s Assembly of Heads of State and Government of the Union to authorise the use of force against a Member State that is responsible for the commission of international crimes:

The Union shall function in accordance with the following principles… (h) 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.

Properly understood, however, Art. 4(h) of the Constitutive Act provides no support whatsoever for the legality of UHI. To see why, it is useful to begin by explaining why the case for a customary rule permitting UHI is not supported by humanitarian uses of force authorised by the Security Council under Chapter VII of the UN Charter. The reason is straightforward: the essence of UHI is that the state being attacked does not consent to force being used on its territory, and all states consent to the possibility of the Security Council authorising the use of force on their territory when they ratify the Charter. The relevant provisions are Art. 24(1) and Art. 25:

Article 24

  1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Because of Art. 24(1) and Art. 25, humanitarian intervention authorised by the Security Council under Chapter VII is by definition legally consensual — even if the state being attacked is politically opposed to the use of force on its territory.

For similar reasons, humanitarian intervention authorised by the AU’s Assembly of Heads of State and Government of the Union pursuant to Art. 4(h) of the Constitutive Act cannot be non-consensual. By ratifying the Constitutive Act, all AU members have empowered the Assembly to authorise the use force on their territory to stop the commission of international crimes. They may not like that use of force, but they have consented to it.

Humanitarian intervention authorised by the AU, therefore, no more supports the customary legality of UHI than humanitarian intervention authorised by the Security Council. In each case, the use of force in question is authorised by a supranational organisation acting on the basis of the consent of the parties that have ratified its founding treaty. That is the antithesis of the nonconsensual use of force — the constitutive feature of UHI.

The Coming Attack on Syria Will Be Unlawful

by Kevin Jon Heller

You go to war with the President you have, not the President you wish you had.

We should keep that basic truth in mind as the US inches ever closer to war with Syria — and potentially with Russia, a far more terrifying possibility. Donald Trump does not care about civilians in Syria. He does not care about containing the spread of chemical or biological weapons. If he attacks Syria, it will be for one and only one reason: to distract attention from his collusion with Russia, his obstruction of justice, and his corruption. As Trump well knows, Americans love nothing more than high-def images of American bombs falling from the skies. No matter how many innocent civilians die (especially brown ones), an attack on Syria will give his approval ratings a healthy boost. That is all the motivation he needs.

That Trump will act with base motives does not mean, however, that an attack on Syria would be unlawful. Illegality has to be demonstrated, not assumed.

So let’s start with some basic principles. Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the “unwilling or unable” doctrine. Readers know that I do not believe that “unwilling or unable” reflects customary international law. (For the most recent scholarly rejection of that idea, by Brunee & Toope, see here.) But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was “self-defence” — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.

None of this jus ad bellum analysis should be remotely controversial — at least not to those who don’t believe the US has the God-given right to use extraterritorial force wherever and whenever it pleases. All of the conclusions above derive from a straightforward application of black-letter rules concerning the use of force.

That said, in recent days we have seen a number of scholarly attempts to justify Trump’s coming attack on Syria. I want to focus on one such attempt here, by my friend (and retired Maj. Gen.) Charlie Dunlap at Lawfire. Dunlap offers two potential justifications for attacking Syria: (1) self-defence; and (2) unilateral humanitarian intervention. Neither justification works.

With regard to self-defence, Charlie says the following with regard to Syria’s chemical and biological weapons:

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  – well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that these uniquely dangerous weapons of mass destruction require an aggressive response.

Even if we assume that US troops are in Syria lawfully — a big if, given that it requires accepting the “unwilling or unable” doctrine — this argument denudes Art. 51’s armed attack requirement of all meaning. As noted above, Syria has neither attacked US troops nor threatened to do so. The mere possibility of attack — involving the mere possibility of that attack involving chemical or biological weapons — cannot justify an armed “response” by the US. To argue otherwise is to embrace preventive self-defence on steroids — going beyond even the US’s rationale for attacking the shadowy Khorosan group, where the US spokesman openly acknowledged, with regard to what armed attack the US was supposedly trying to prevent, that “I don’t know that we can pin that down to a day or month or week or six months.” At least terrorists who were possibly associated with the Khorasan group had previously attacked US interests. With regard to Syria, there is not even one previous attack to invoke.

Charlie’s invocation of unilateral humanitarian intervention (UHI) is no more persuasive. Here is what he says:

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

I have previously explained — in response to Harold Koh — why there is no plausible argument for the legality of UHI. The same critique applies here. I would just add that the international reaction to the 2017 attack on the airfield at Shayrat does not help the argument, for one simple reason: the US never invoked UHI as a justification for the attack. Because it did not, states were under no obligation to denounce UHI after the attack took place — as they have repeatedly done in the face of attacks (such as Kosovo) where one or two states did invoke the doctrine. What I said a few days ago regarding Israel’s 2007 Al-Kibar attack applies no less to the 2017 Shayrat attack: had the US claimed that the attack was legal UHI, the international response would have assuredly been different.

The conclusion above thus remains sound: if the US attacks Syria, it will be the aggressor and both Syria and Russia will have the right to use force against the US in self-defence.

Let me end with what I hope is obvious: this is a legal analysis, full stop. It is not a normative argument. I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.

Implications of the Rohingya Argument for Libya and Syria (and Jordan)

by Kevin Jon Heller

In my previous post, I offered three cautionary thoughts about the OTP’s decision to ask the Pre-Trial Division to hold that the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh. In this post, I want to offer a few thoughts on what a successful outcome would mean for refugee crises elsewhere — particularly in Libya and Syria.

We can start with the relatively easy case: Libya. Because of UNSC Res. 1970, the ICC has jurisdiction over any international crime committed on the territory of Libya from 2011 onwards. If the OTP’s theory of deportation is correct, it would be able to prosecute both (1) deportations from Libya committed by the Libyan government and armed forces, and (2) deportations into Libya from neighbouring states that are not members of the ICC — namely, Egypt, Sudan, and Algeria. Fatou Bensouda has already signalled interest in prosecuting “migrant-related crimes” committed by Libyans in Libya. A positive outcome to the OTP’s request in the Rohingya situation would make it possible for her to prosecute Egyptian, Sudanese, and Algerian nationals as well.

The more interesting case is Syria, given that Syria is not a member of the ICC and there is little chance the Security Council will refer the situation in Syria to the Court anytime soon. There are two scenarios worth discussing here: (1) deportations by the Syrian government or by various Syrian rebel groups into a neighbouring state; and (2) deportations by the Syrian government or by various Syrian rebel groups onto the high seas.

Going in reverse order, the ICC would have no jurisdiction over any deportation from Syria onto the high seas. There are two possible situations here: where the deported civilians drown on the high seas, and where the deported civilians make it to an ICC member-state such as Italy or Germany. In the first (profoundly sad) situation, no essential element of deportation (or of any other international crime) would have taken place on the the territory of a state party. And in the second situation, the civilians would not have been deported “directly” into the territory of a member-state — they would have been directly deported onto the high seas and only “indirectly” deported into the territory of a state party. Deportation’s “essential element” of crossing an international border would thus have taken place in Syria and on the high seas — not on the territory of a member state. This is the importance of the OTP’s repeated insistence in its request (see paras. 4, 13, and 28) that only direct deportations activate the Court’s jurisdiction.

In the second scenario, where the civilians are directly deported into a neighbouring state’s territory, a positive outcome to the OTP’s request in the Rohingya situation would mean that the ICC would have jurisdiction over any deportation from Syria into the territory of a state party. There is, in fact, only one ICC member-state that borders Syria: Jordan. Jordan would be a particularly attractive application of the OTP’s theory of deportation, given that more than 650,000 Syrians are currently taking refuge there — almost exactly the same number as the Rohingya in Bangladesh. (Though not all of the Syrian refugees in Jordan have been the victim of deportation.)

I wonder, though, what Jordan would think of the OTP opening an investigation into deportations from Syria into Jordan. Presumably, that situation would not be limited to deportations, but would also include Jordan’s own treatment of Syrian refugees. (A more tailored situation would be immediately seen for what it was — a sop to Jordan.) As Human Rights Watch has ably documented, Jordan has been summarily returning hundreds of Syrian refugees back to Syria each month, a clear violation of international law. Those actions very likely qualify as the crime against humanity of persecution, especially when Jordanian authorities specifically target for expulsion a national group such as Palestinians. So it is not difficult to imagine the OTP bringing a case involving Jordan’s expulsions as part of an investigation into Syrian deportations. Indeed, the OTP would likely find it much easier to prosecute the expulsions, given that Jordan is not only obligated to cooperate with the ICC but has long been one of its most vocal supporters. Ironically, then, an investigation into Syrian deportations might mean that a Jordanian ends up in the dock before a Syrian!

NOTE: I don’t think the Jordan prosecution I discuss above is likely to happen. I’m just teasing out the possible implications of the ICC having jurisdiction over deportations from non-member states to member-states.

Three Cautionary Thoughts on the OTP’s Rohingya Request

by Kevin Jon Heller

Major news out of the ICC today: the OTP has formally asked the Pre-Trial Division to determine whether the Court has jurisdiction over the deportation of the Rohingya from Myanmar to Bangladesh. Here is the introduction of the OTP’s brief:

1. The Prosecution seeks a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

2. Consistent and credible public reports reviewed by the Prosecution indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described the Rohingya crisis as “a textbook example of ethnic cleansing”, and according to the UN Special Envoy for human rights in Myanmar, it potentially bears the “hallmarks of a genocide”. The coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under article 12(2)(a) of the Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).

3. Given these exceptional circumstances and the nature of this legal issue, the Prosecutor has exercised her independent discretion under articles 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. This will assist in her further deliberations concerning any preliminary examination she may independently undertake, including in the event an ICC State Party decides to refer the matter to the Court under articles 13(a) and 14.

This is one of the best OTP briefs I have ever read. It is rigorous, learned, and exceptionally sophisticated in its use of comparative materials. It is also far more persuasive than I expected it to be, particularly concerning the idea that the ICC has jurisdiction over a crime as long as one of its elements took place on the territory of a state party. I don’t know who wrote the brief — it names only Fatou Bensouda and James Stewart, the Deputy Prosecutor — but he or she needs to be promoted immediately.

I do, however, want to raise three concerns about the brief.

First, it is very important to understand how limited any ICC investigation into the Rohingya situation would be. There is a reason that the OTP is asking the Pre-Trial Division to offer its opinion only on deportation: no other war crime or crime against humanity necessarily involves conduct that crosses an international border. So even if the Pre-Trial Division agrees with the OTP about deportation, the Court will still not have jurisdiction over the many other crimes committed against the Rohingya. Not genocide. Not murder. Not sexual violence. Those acts have taken place solely on the territory of Myanmar.

Second, and relatedly, there is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

Third, although I find much of the brief convincing, I am not completely sold on the OTP’s argument that “an essential legal element of the crime — crossing an international border — occurred on the territory of a State which is a party to the Rome Statute.” The argument assumes that it is not possible to distinguish between crossing an international border and being on the territory of the state on the other side. But is that correct? Can we really not view crossing an international border and being on the territory of the state on the other side as two spatially distinct acts?

Although it does not directly answer the question, there is at least one situation in which civilians can cross an international border without being on the territory of another state — when they are deported to the high seas. The OTP acknowledges as much in its brief. Here is footnote 32:

As a matter of law, however, it is not necessary to prove entry to another State, but merely that the victim has been ejected from the originating State—as such, a victim may potentially be deported to the high seas. What is crucial is that the international border, de jure or de facto, of the originating State is crossed. Hence, customary international law has emphasised consideration of the kinds of borders that might suffice: see e.g. Stakić AJ, para. 300; Đorđević AJ, paras. 533-536; Prlić TJ, Vol. I, para. 47; Popović TJ, para. 892.

The first sentence of the footnote seems important — and complicating. If deportation does not actually require proof of “entry to another State,” only the crossing of an international border, how can we say that an “essential element” of deportation was committed in State Y simply because civilians happened to enter there after crossing an international border? Either entry to another state is an essential element of deportation or it is not — and the high seas example seems to point toward “not.”

This argument does not hold, of course, if an international border is somehow dual territory: the territory of State X and the territory of State Y; the territory of State X and the high seas. An international border cannot be the territory of just the State into which the civilians enter, because that would mean, irrationally, that the border’s spatial location would change depending on which State — X or Y — was doing the deporting. But if an international border is dual territory, the OTP’s theory works: crossing an international border “between” the two states would take place on the territory of both State X and State Y.

There are, in short, two possibilities. The first is to assume that an international border is part of the territory of both of the states it divides. The second is to assume that an international border is part of the territory of neither of the states it divides. The first possibility means that the OTP is correct: the ICC has jurisdiction over the deportation of the Rohingya, because at least one “essential element” of deportation — crossing an international border — took place on the territory of a state party, Bangladesh. The second possibility means that the OTP is wrong: the ICC does not have jurisdiction over the deportation of the Rohingya, because no “essential element” of deportation took place on the territory of a state party, Bangladesh. The essential elements took place either in Myanmar or somewhere that does not qualify as either Myanmar’s territory or Bangladesh’s territory.

To be honest, I have no idea which possibility is correct. I simply do not know enough about the legal status of international borders. I just think the OTP’s assumption that the Rohingya crossing the border into Bangladesh necessarily means that an essential element of deportation took place in Bangladesh is less obvious than it might first appear.

I’m really glad I’m not a member of the Pre-Trial Division right now.

The PTC’s Bizarre Request for Additional Information About Afghanistan

by Kevin Jon Heller

As Patryk Labuda noted earlier today on twitter, the Pre-Trial Chamber (PTC) has ordered the OTP to provide it with additional information concerning the investigation in Afghanistan. Here are the key paragraphs of the order:

3. The Chamber observes that the Prosecutor seeks authorisation to initiate an investigation for crimes committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.2 However, the supporting material provided, particularly in relation to the structure, organisation, and conduct of the Afghan Forces – collectively referred to by the Prosecutor as Afghan National Security Forces or Afghan National Defense and Security Forces (“ANSF”) – mostly falls within the time period 2011 to 2014. Further, little to no information has been provided regarding the structure and organisation of the Islamic State operating in Afghanistan, also refer red to as “Daesh” or “Islamic State Khorasan Province”3. Similarly, the information provided with respect to the structure of the United States of America (“US”) forces falls mainly within the period of 2001-2008, with regard to interrogation policies of the US forces within the period of 2001-2006 and with regard to the conduct of US forces within the period of 2003-2011.

4. The Chamber is of the view that further information is required for the Chamber’s determination under article 15(4) of the Statute. Accordingly, it orders the Prosecutor to submit to the Chamber the following:

a. Any publicly available report from the United Nations Assistance Mission in Afghanistan (“UNAMA”) on the treatment of detainees, apart from the reports from 2011, 2013, 2015 and 2017 already submitted;

b. Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, apart from the report from 2012 already submitted;

c. The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017;

d. Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan”, apart from the report from 2008 already submitted;

e. Further clarification and information, to the extent possible, about the structure and organisation of the Islamic State operating in Afghanistan; and

f. Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.

This is actually the second time that the PTC has asked for more information. On 5 December 2017, it ordered the OTP to provide it with “media reports and article 15 communications concerning allegations attributed to special forces of a number of international forces operating in Afghanistan,” as well as as a list of incidents where, in the OTP’s view, “there is a reasonable basis to believe that crimes falling within the jurisdiction of the Court were committed during military operations conducted by international military forces.”

The first request made some sense, given that the PTC generally asked for information either possessed only by the OTP (the communications) or reflecting of the OTP’s internal analysis of the situation in Afghanistan (the list of incidents). The new request, however, is bizarre. To begin with, there is no reason that the PTC could not obtain the information in the first four categories itself, given that it specifically wants the OTP to provide it with “publicly available” information. I know for a fact that the judges have legal officers and access to google. Any reasonably competent researcher could obtain the relevant reports in an hour or so.

A similar criticism could be offered of category five — assuming that the request is not based on the PTC’s belief that the OTP has non-public information about the structure of IS — as well as of the first two requests in category 6. After all, the OTP’s information about interrogation policies comes largely from publicly available sources such as the summary of the Senate Torture Report.

The final request in category 6 — about the conduct of US forces after 2011 — makes some sense, given that the PTC is basically asking the OTP to justify its conclusion that there is a reasonable basis to believe US forces are responsible for mistreating detainees. But I share Patryk’s confusion about why the PTC thinks it needs that information to decide whether to authorize the Afghanistan investigation. Art. 15(4)’s “reasonable basis to proceed” standard is anything but onerous. Such a basis exists, according to Art. 53, as long as the available information (1) “provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”; (2) admissibility is not an issue; and (3) there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” There is no question that the OTP’s request for authorization satisfies requirements 1 and 3, and it cannot seriously be argued that complementarity — the first aspect of the admissibility requirement — counsels against opening the Afghanistan investigation. As the request itself notes, none of the relevant parties (the Afghan government, the US government, and the armed groups) have have investigated or prosecuted those most responsible for international crimes in Afghanistan.

Which leaves gravity, the other aspect of admissibility. The only plausible interpretation of the PTC’s order is that it does not think it can assess the gravity of the situation in Afghanistan without the requested information. But that makes little sense. Can it be seriously maintained that the collective actions of the Afghan military between 2011 and 2014, the actions of the Taliban and IS since 2003, and the actions of US forces and the CIA between 2003 and 2011 are not sufficiently grave to warrant a proprio motu investigation? I dare anyone to read the OTP’s superbly argued and documented 181-page request for authorization and reach that conclusion. (Especially when Afghanistan is compared to, say, the Burundi investigation, which the PTC had no trouble authorizing.)

To be sure, that does not mean the OTP has provided sufficient information concerning the actions of all of the parties at all of the relevant times. But that is where the final clause of Art. 15(4) comes in (emphasis mine):

 If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

If the OTP brings a case against an individual whose criminal responsibility cannot be properly assessed without additional information of the kind the PTC wants, it can demand that information when the defendant challenges admissibility or the OTP seeks confirmation of charges. There is no reason why the PTC should demand that information now.

I have little doubt that the OTP will quickly comply with the PTC’s order. But there is no legal or evidentiary reason why it should have to. The PTC already has more than enough information at its disposable to authorize the Afghanistan investigation.

Activating the Crime of Aggression: A Response to Stürchler

by Kevin Jon Heller

Nikolas Stürchler, the Head of International Humanitarian Law and International Criminal Justice Section at the Swiss Federal Department of Foreign Affairs, has a new post at EJIL: Talk! discussing the ASP’s decision to completely exclude states parties from the crime of aggression unless they ratify the aggression amendments — the “opt-in” position advocated by a number of states, most notably the UK, Japan, and Canada. The post is very long and quite technical, so I won’t try to summarise it. Basically, Stürchler argues that the judges are still free to adopt the “opt-out” position, because the Resolution “confirming” the opt-in position, despite being adopted by consensus, conflicts with Art. 15bis(4) of the Rome Statute, which reflects the opt-out position. Here are the relevant paragraphs:

What remains is an operative paragraph 2 that, like the second sentence of paragraph 5 of article 121 of the Rome Statute which it seeks to leverage, stands in contradiction to paragraph 4 of article 15bis of the Rome Statute. Paragraph 4 of article 15bis literally asserts that the Court has jurisdiction over a crime of aggression “arising from an act of aggression by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.” In this sense, it is somewhat difficult to argue that operative paragraph 2 is simply a case of interpreting or clarifying the crime of aggression amendments. If the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions. One could argue that the Assembly did no more than clarify that the second sentence of paragraph 5 of article 121 fully applies, thus conditioning the application of article 15bis on a State Party’s ratification or acceptance, but this nonetheless would seem to imply a revision of the plain reading of article 15bis.

Be it as it may, with the Assembly having achieved activation, it is now up to the Court to determine the extent of its jurisdiction over acts of aggression committed by nationals or on the territory of non-ratifying States Parties. It is for this reason that the reference to the independence of the judges in operative paragraph 3 is so important. Pending a clear pronouncement by the Court, the only way for any State Party to legally ensure that its nationals fall outside the remit of the ICC’s jurisdiction continues to be to file an opt-out declaration in accordance with paragraph 4 of article 15bis of the Rome Statute.

I want to make three quick points here. The first is that, in fact, Operative Paragraph 3 (OP3) of the Resolution is completely irrelevant to the jurisdictional question. The judges are independent because of Art. 40 of the Rome Statute; OP3 simply reiterates their independence. So the judges would have the right to decide on the jurisdictional question even if OP3 was not included in the Resolution. (In that regard, I’m not sure why the states promoting the opt-in position were so opposed to OP3. A paragraph that tried to take away judicial independence concerning the interpretation of the new crime of aggression would have been patently ultra vires.)

The second — and more important — point is that Stürchler’s argument about the conflict between Operative Paragraph 2 (OP2) and Art. 15bis(4) is remarkably selective. The underlying principle is that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself. As he writes, “[i]f the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions.” I agree with the principle! But here is the problem: Art. 15bis(4) was also not adopted pursuant to the Rome Statute’s amendment provisions. Art. 121(5)’s second sentence “literally asserts” that, “[i]n respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” Art. 15bis(4)’s requirement of an opt-out thus can only apply to a state that has ratified the aggression amendments. If a state does not ratify the amendments, Art. 121(5) — which pre-existed Art. 15bis(4) — controls, the unamended Rome Statute applies to that state, and the Court has no jurisdiction over an act of aggression committed by that state’s nationals or on its territory.

This is not — or should not be — a controversial point. Not even the opt-out positions’s most fervent defenders claim that the adoption of Art 15bis(4) was consistent with the amendment provisions in Art. 121(5). Instead, they argue that the ASP agreed by consensus to apply only the first sentence of Art. 121(5), excluding the inconvenient second sentence. Stürchler’s own principle, therefore, means that the judges are perfectly free to ignore Art. 15bis(4) and apply Art. 121(5) as written — thus ending up with the same opt-in provision that OP2 is designed to confirm. Stürchler and the other opt-out proponents cannot have it both ways: either both OP2 and Art. 15bis(4) are valid (in which case opt-in applies) or neither of them are (in which case opt-in applies).

The third and final point is that Stürchler’s principle — that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself — supports what I argued a few weeks ago: that the new weapons amendments adopted by the ASP apply to non-states parties even though the ASP declared that they do not. As I noted in that post, the ASP did not amend the Rome Statute to exclude non-states parties, as it did with the crime of aggression. Instead, the ASP simply confirmed its understanding that the new war crimes (covering the use of biological, fragmenting, and blinding weapons) would not apply to non-states parties. According to Stürchler’s principle, therefore, the judges are free to ignore the ASP’s declaration and apply the Court’s normal jurisdictional regime in Art. 12(2) to the new war crimes — which means that the Court has every right to prosecute the national of a non-state party who uses a prohibited weapon on the territory of a state party.

A Problematic Take on the Lubanga Trial

by Kevin Jon Heller

Justice in Conflict has a guest post today from a scholar who has written a book about the Lubanga trial. I think the post makes some excellent points about the problems with the trial. But I have serious reservations — acknowledging that I have not read the book — about the author’s take on why the trial did not focus on sexual violence:

Another [serious flaw] was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.

This is both unfair and mistaken. There is one reason, and one reason only, that sexual violence did not figure more prominently in the trial: Luis Moreno-Ocampo decided not to charge Lubanga with the relevant war crimes or crimes against humanity, choosing instead to focus exclusively on the war crime of conscripting or enlisting child soldiers. Here, for example, is what Patricia Viseur Sellers, a former Legal Advisor for Gender and prosecutor at the ICTY has to say:

Crimes of sexual violence were not charged. Such accusations were certainly within the purview of the Prosecutor. The Prosecutor could have brought charges related to sexual violence. Under the ICC Statute, enslavement, rape, torture, sexual slavery and inhuman acts are defined as crimes against humanity. In the Lubanga case, charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity.

The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case [to include charges for crimes of sexual violence]. The Prosecutor has suggested that to do so would have been detrimental to the due process rights of the accused. However, in the event of granting the Prosecutor’s move to amend, the Trial Chamber could have allowed the accused whatever time he needed to prepare his case in light of additional charges. That is a fairly standard procedure at other international tribunals.

Given Moreno-Ocampo’s decision to charge Lubanga solely with conscripting or enlisting child soldiers, the Trial Chamber had no choice but to limit the amount of testimony the prosecution could introduce regarding sexual violence. The Chamber explained why in paras. 629 and 630 of its judgment:

629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions, it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence). Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.

630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue.

Moreover, I think the author’s claim that “[t]he matter of sexual violence loomed large in the trial not by its presence but by its absence” is considerably overstated. Not only did sexual violence figure prominently in both the prosecution’s opening and closing arguments, as the Trial Chamber notes in its judgment, there was also considerable testimony concerning sexual violence during trial. The judgment points out in a footnote (n. 54) that 30 different witnesses, 18 female, 12 male, “referred to acts of sexual violence which they either suffered or witnessed.” And it discusses testimony given by one witness, P-0046, at length. Here is just a snippet of P-0046’s testimony:

890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. Some fell pregnant, resulting in abortions; and there were instances of multiple abortions. The witness gave evidence that the psychological and physical state of some of these young girls was catastrophic.

891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.

Should the Lubanga trial have included specific crimes of sexual violence? Absolutely. But the absence of those charges and the (relatively) limited testimony concerning sexual violence cannot be attributed to the Trial Chamber. If you are looking for someone to blame — and you should be — blame Luis Moreno-Ocampo.

NOTE: I have not addressed the victims’ efforts to add sexual-violence charges in the middle of trial. If you want to blame the Chamber for rejecting that request, fair enough. But I have already explained why I think the Chamber was correct.