So reports the Kuwait News Agency. The building is expected to be completed in late 2015. Here is the winning design:

You can read more about the design, and see more artists renderings, here. It’s not a bad design, but it’s a bit too high-modernist for my taste. I preferred the one by Wiel Arets Architects & Associates that won third prize in the ICC’s competition. You can find it here.

How the financially-strapped Court is paying for its fancy new digs — which are expected to cost 190,000,000 euros — is anyone’s guess.

An opinion piece in Al-Jazeera by an international lawyer who works with the Palestinians, John Whitbeck, reports some interesting comments by Fatou Bensouda about Palestinian ratification:

During a public discussion held at the Academie Diplomatique Internationale in Paris on March 20, Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC. During the question time, she was asked:

“If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She started her reply by recalling why Palestine’s initial application was not approved — essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said, unsurprisingly, that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration. It was clear that, in her eyes, ICC membership for the State of Palestine was Palestine’s for the asking. There was even a hint of puzzlement that the ICC had not heard from Palestine subsequent to the UN vote. 

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status.

There is nothing particularly new here, but the retroactivity comment is useful. As a theoretical matter, I think the ICC could determine that Palestine qualified as a state prior to the UNGA resolution upgrading its status. But I think that the Court would be well-advised to take a conservative approach to Palestinian ratification — and as Whitbeck notes in his piece, the less retroactive Palestine’s acceptance of the Court’s jurisdiction (perhaps even purely prospective, from the date of ratification), the more difficult it will be for Israel to complain about it.

That said, as I’ve pointed out before, Palestine has reason to be wary of even prospective ratification. The ICC would find it much easier to prosecute Hamas’s rocket attacks on Israel than Israel’s expansion of the settlements or disproportionate attacks on Gaza.

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.

As regular readers of this blog might have noticed, I have become more and more interested China and its engagement with international law issues.   Last year, I proposed to the ASIL Planning Committee that we put together a panel of leading U.S. China law scholars.  But the ASIL organizers pushed back and put together a much more diverse group than I had suggested, which included a U.S. China scholar like Jacques Delisle from Penn, but also Chinese international law scholars like Bingbing Jia of Tsinghua and then added a nice dose of on-the-ground policy analysis from Stephanie Kleine-Ahlbrandt of the International Crisis Group.  It ended up being a terrific mix of style, topics, and expertise.  We didn’t rate a “livestream”, but I wanted to share a few thoughts for our readers on what I think is an important topic. I am not going to attempt to summarize their comments, but simply offer some of my reactions to their key points.

The idea of the panel (at least to me) was to consider whether the “rise of China” in global affairs has changed much about how China interacts with international law. In my crude formulation, the question is now less about what “international law does to China” but more what “China will do to international law.”

Both of the lawyer-panelists (Jia and Delisle) focused on “sovereignty” as the most important principle guiding China’s understanding and engagement with international law.

Since I was unable to attend their book launch at Georgetown yesterday, the least I can do is put in a hearty plug for a new casebook written by a number of superb IHL scholars: Geoff Corn, Victor Hansen, Chris Jenks, Richard Jackson, Eric Jensen, and James Schoettler. It’s entitled The Law of Armed Conflict: An Operational Approach, and it more than lives up to its name — which not surprising, given that all of the authors have vast experience in the military. Here is the description:

The Law of Armed Conflict: An Operational Approach comes to students with stunning authority. All of the authors are active or retired United States Army officers with more than 140 years of collective military operational experience among them. Several have experience in both legal and operational assignments as well.  They deliver a comprehensive coverage of all aspects of the law of armed conflict, explaining the difference between law and policy in regulation of military operations. The Law of Armed Conflict provides a complete operational scenario and introduction to the operational organization of United States forces. The focus remains on United States law perspective, balanced with exposure to areas where the interpretation of its allied forces diverge. Jus ad bellum and jus in bello issues are addressed at length. Rich with documentation and examples, the text includes excerpts from treaties and treaty commentaries, domestic and international cases, Department of Defense directives, service field manuals, and regulations implementing legal obligations. Its unique pedagogy is based on overviews of each topical area of the law and utilizes a wartime scenario. Students experience operational legal issues from pre-deployment preparation through post-conflict stability operations to war crimes investigation and prosecution. Carefully crafted problems, most based on actual operational experience, follow each chapter and place the student in the position of a military legal adviser providing operational legal advice.  In this way, students enhance their understanding of the relevance of the law in planning and executing military operations. Designed for either a three or four credit offering, 14 chapters correspond to a 14-week course.

A robust ancillary package accompanies the text with solutions to all study problems, model exam questions (multiple choice, short answer, essay,) recommended supplemental sources, suggested video clips to illustrate issues, Power Point slides for each chapter, and a website with links to all primary sources.

I have already used the book in my scholarship multiple times, and I am sure it will be a great text for any IHL course. The operational emphasis is particularly exciting; when I’ve taught IHL to UN field officers and to officers from various militaries, I’ve always found practical exercises to be the most effective way to convey the basic rules and principles of IHL. Anyone who teaches IHL will definitely want to check the book out.

Omar al-Bashir, the President of Sudan, visited Chad earlier this year. The Chadian government made no attempt to arrest him, despite the fact that — as a member of the ICC — both SC Res. 1593 (the Darfur referral) and the Rome Statute obligated it to cooperate with the Court’s arrest warrant. Human rights groups criticized Chad’s unwillingness to arrest Bashir at the time, and now the Pre-Trial Chamber has formally referred Chad’s non-cooperation to the Security Council. Here are the relevant paragraphs of its judgment:

22. In this context, the Chamber wishes to point out that, unlike domestic courts, the ICC has no direct enforcement mechanism in the sense that it lacks a police force. As such, the ICC relies mainly on the States’ cooperation, without which it cannot fulfil its mandate. When the Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Court as constituting a threat to international peace and security, it is expected that the Council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of the relevant State Party to the Statute to cooperate in fulfilling the Court’s mandate entrusted to it by the Council. Otherwise, if there is no follow up action on the part of the Security Council, any referral by the Council to the ICC under Chapter VII would never achieve its ultimate goal, namely, to put an end to impunity. Accordingly, any such referral would become futile.

23. Having said the above, the Chamber recalls article 87(7) of the Statute according to which, “[wjhere a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute [...] the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council”. Since the Republic of Chad has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al-Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council.

Although necessary, this is a risky move by the ICC. As Mark Kersten has repeatedly documented, the Security Council has proven far more willing to refer situations to the Court than to ensure that the Court has the ability to successfully investigate those situations. If the Security Council stays true to form and fails to respond to the PTC’s referral, it will do significant damage to the Court’s legitimacy. Why should any suspect fear arrest while traveling abroad if the Security Council won’t even penalize ICC member-states that fail to comply with its own resolutions?

Stay tuned.

The U.N. General Assembly has voted in favor of the Arms Trade Treaty, which would do what exactly?  Its proponents say it will create an international mechanism to regulate the international sale of arms and other weapons.  Its critics say it will infringe on the individual rights of citizens and nations to buy and possess weapons by requiring member states to keep national registries of end users.

I am probably more sympathetic to gun rights and the U.S. Constitution’s Second Amendment than most of my fellow co-bloggers, but my general take is that the National Rifle Association should not bother fighting this treaty. Earlier versions of this treaty could have given extra legal and political power to Congress for creating a more aggressive national gun and ammunition registry, but the final text is pretty weak on this point. It requires records of exports, but it only “encourages” records of imports.  For instance,

Article 12 Record keeping
1. Each State Party shall maintain national records, pursuant to its national laws and regulations, of its issuance of export authorizations or its actual exports of the conventional arms covered under Article 2 (1).
2. Each State Party is encouraged to maintain records of conventional arms covered under Article 2 (1) that are transferred to its territory as the final destination or that are authorized to transit or trans-ship territory under its jurisdiction.
3. Each State Party is encouraged to include in those records: the quantity, value, model/type, authorized international transfers of conventional arms covered under Article 2 (1), conventional arms actually transferred, details of exporting State(s), importing State(s), transit and trans-shipment State(s), and end users, as appropriate.
4. Records shall be kept for a minimum of ten years.

(Emphasis added).  A similar approach is followed in Article 3 (exports of ammunition) and Article 4 (exports of gun parts).  There is also no mandatory dispute settlement system, and a weak Secretariat with no enforcement or oversight powers.  With all due respect to Ted Bromund over at Heritage, I am not as worried about the philosophical issues he raises in this critique.

The bottom line is that as a practical matter, I don’t think this treaty can be used to regulate domestic use of firearms, or even the domestic registry of firearms.  In fact, I have doubts that this treaty will do much of anything for anyone given how weak its provisions are.  I have never heard the NRA worry about regulation of gun exports, and in any event, I am sure their members care little about that.

I would hope that the NRA will hold its fire on this treaty, and save its political credibility for laws that really would constrain the right of self-defense and the right to bear arms.  We’ll see.

I was struck by this line from an editorial in an Australian paper about the latest clashes between Sea Shepherd (e.g. the Ninth Circuit’s “pirates”) and Japanese whalers:

Just in case there was any doubt, the Philippines-China arbitration over the South China Sea will go forward.  International Tribunal of the Law of the Sea President Shunji Yanai has appointed a second arbitrator.

The [Philippines] Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

As I discussed here earlier, China’s refusal to appoint an arbitrator does not in any way divest the arbitral tribunal of jurisdiction under the Annex VII of UNCLOS.  President Yanai now will appoint the remaining three arbitrators, as he would do whether or not China had acted to appoint an arbitrator.

The interesting question is what China will do now.  It seems likely that they will continue to ignore the arbitration and question its propriety.  But China can no longer claim that the arbitration cannot proceed without China’s participation.  This article from the reliably hawkish state-owned Global Times offers a pretty clear-eyed analysis, correctly noting that UNCLOS itself grants the ITLOS arbitral tribunal the power to determine its own jurisdiction, and that UNCLOS also specifies the procedure for appointing arbitrators.  It also notes that China’s position is going to be somewhat more difficult, and that the Philippines is using this legal proceeding to level the playing field somewhat in this maritime dispute.

The nationality of President Shunji Yanai has not gone unnoticed.  As this news broadcast puts it, “Expert Says Nationality of ITLoS President Detrimental to China”.  The broadcast (full of ominous shots of the Japanese flags (interspersed with ominous shots of the U.S. flag since the US is often believed to be behind the Philippines litigation) also notes that Japanese nationals have also acquired other important positions within UNCLOS.  If things start to go south for China in UNCLOS institutions, expect this little factoid about Japan’s nefarious control of UNCLOS institutions to pop up more often in the Chinese media.

China still has the option to show up to contest jurisdiction once the tribunal is constituted. I think they could still do that, and that they would have a plausible case against jurisdiction here. But it is seems that China is committed to its path of rejecting the arbitration. Indeed, if the tribunal finds they have no jurisdiction, China wins.  But if the tribunal rules it can hear the case, expect the denunciations of the Japanese- appointed one-sided illegal tribunal to start flowing.

It’s always exciting when the media pays attention to expert reports on international law. Unfortunately, the media all too often gets international law wrong — and recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare is no exception. There has been a spate of articles in the past couple of days that breathlessly claim the Tallinn Manual permits the use of lethal force against hackers. The Huffington Post’s article is entitled “Report for NATO Justifies Killing of Hackers in a Cyberwar.” According to the Verge, “Killing Hackers is Justified in Cyber Warfare, Says NATO-Commissioned Report.”  And Silicon Angle claims that “Hacktivists Can Be Killed Under Rules of CyberWarfare.”

Does the Tallinn Manual permit a hacker to be killed? Yes, in extraordinary circumstances. But the articles mentioned above each fail to mention that the Manual imposes very significant limits on the use of lethal force against individuals involved in cyber-warfare — and that all of those limits are based on, and reflect, the traditional rules of international humanitarian law (IHL). There is nothing particularly troubling in the Manual, and I say that as someone who is profoundly sympathetic to hacking collectives like Anonymous. Indeed, properly understood, it almost inconceivable that the Manual would permit a state to use lethal force against Anonymous or a similar collective — no matter how dangerous (in the view of a state) their hacking might be.

To begin with, the Tallinn Manual deserves credit for not conflating the jus ad bellum and the jus in bello…

Ben Emmerson, counsel for al-Senussi, has asked the Pre-Trial Chamber to refer Libya to the Security Council for ignoring its February 6 decision ordering Libya to transfer al-Senussi to the Court. Here are the key paragraphs:

3. It has been almost six weeks since the Chamber‟s Order of 6 February, and Libya has failed to comply with every one of these instructions. Libya has failed to make any attempt to transfer Mr. Al-Senussi to the ICC and continues to detain him in Libya in violation of Security Council Resolution 1970 and the orders and requests of the ICC. Libya has ignored a formal request from the Registry to send representatives to The Hague to make arrangements to facilitate Mr. Al-Senussi‟s transfer and has not taken any other action to arrange his surrender.

4. Instead, the Libyan authorities continue to detain Mr. Al-Senussi, and are actively preparing to commence his trial in Libya as soon as possible. In so doing Libya has also violated the injunction contained within the Chamber‟s 6 February Order to the effect that Libya must refrain from any action which could hinder or delay his immediate transfer to the ICC.

5. Libya has also ignored the third order made by the Chamber requiring arrangements to be made for a privileged legal visit by appointed Defence Counsel. Mr. Al-Senussi has now spent six months in detention in Libya (from September 2012 to date) being questioned about criminal allegations without access to counsel. This in itself makes any claims regarding the fairness of proceedings in Libya untenable.

[snip]

8. This case has reached a point at which the impasse between Libya and the ICC can only be broken by a referral to the Security Council. If the authority of the Court is to be respected, its orders and requests must be complied with. Further latitude would simply enable Libya to perpetuate its tactics of delay, obfuscation and prevarication and its consistent attempts to mislead the Chamber and the Registry as to its true intentions. Libya’s intentions and actions are very clear.

None of this is remotely surprising, of course. But it puts the lie to Libya’s constant claims in Saif’s case to be cooperating fully with the Court. Libya only cooperates when it gets what it wants.

I got my first taste of international law some 25 years ago when I joined my high school’s model UN team.  So, what does it says that today’s high school students have model cyberwar teams?  The link’s a bit short on details, but, I wonder whether they have a student playing the lawyer on each team?  I’d imagine any cyberwar scenario must trigger serious legal questions (e.g., the rules for active defense, distinction, and proportionality). Still, I’m guessing the answer is “no”.  Indeed, I’d bet the cyberwar gaming model has yet to integrate legal rules let alone norm entrepreneurs to advocate for them.  Readers with more info are welcome to weigh in.

Hat Tip:  Eugene Hsue